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.3 

117 

I    'if'''-:! 


VIEW 


or 


THE   STATE   OF   EUROPE 


DURISO 


THE  MIDDLE  AGES. 


bt  henry  HALLAM,  LLJ),  fjlab. 

WOmtl^f  AS50CIATX  OV  THB  IVSTITCn  OF  IXAVCB. 


IN  TWO  VOLUMES. 
VOLUME  II 


NEW    YORK 

A.   C.   ARMSTRONG   AND   SON 

714   Broadway 
1882 


Prest-iDork  by  Rockwell  S  ChurvhilU 


CONTENTS 


OF 


rn 


THE    SECOND    VOLUME, 


CHAPTER  YIL 

Past  n. 

Oontlniiftl  Progrew  of  the  Papacy— Canon  Law — Mendicant  Orden— 
Dispensing  Power — Taxation  of  the  Clergy  by  the  Popes  —  Encroach- 
ments on  Rights  of  Patronage  —  Mandats,  Reserves,  &g.  —  General  Dis- 
affection towards  the  See  of  Rome  in  the  Thirteenth  Century  —  Progress 
of  Ecclesiastical  Jurisdiction  —  Immunity  of  the  Clei|^  in  Criminal 
Cases  —  Restraints  imposed  upon  their  Jurisdiction  —  upon  their  Ac- 
quisition of  Property — Boniface  YIII.  —  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 
Avignon  Popes  —  Contested  Election  of  Urban  and  Clement  ptoduces 
the  great  Schism  —  Council  of  Pisa  —  Constance  —  Basle — Methods 
adopted  to  restrain  the  Papal  Usurpations  in  England,  Germany,  and 
France  —  Liberties  of  the  Gallican  Church  —  Decline  of  the  Papal  In- 
fluence in  Italy • Page  1 

Nona  TO  Chaptxb  YIL 57 

CHAPTER  Vm. 
THB  ooHsrmmoirAL  putobt  of  xxglaiid. 

Past  L 

Tlie  Anglo-Saxon  Constitution —  Sketch  of  Anglo-Saxon  History—  Sno- 
oession  to  the  Crown  —  Orders  of  Men  —  Thanes  and  CeorU — Witcn- 
agemot  —  Judicial  System  —  Division  into  Hundreds  —  County-Court 
—  Trial  by  Jury  —  its  Antiquity  investigated  —  Law  of  Frank-pledge  — 
Ks  several  Stages — Question  of  Feudal  Tenures  before  the  Conquest    68 


vi  CONTENTS  OF  THE  SECOND  VOLUME. 


Part  n. 

THB  AKOLO-NOBMAN  COHSTITUTIOll 

The^Anglo-Norman  Constitution  —  CauBea  of  the  Conquest  ^Policjr  ana 
Character  of  William — his  TTianny  — Introduction  of  Feudal  Services 
— Difference  between  the  Feudal  Governments  of  France  and  England 
—  Causes  of  the  great  Power  of  the  first  Norman  Kings  —  Arbitraiy 
Character  of  their  Government  —  Great  Council  —  Resistance  of  tiie 
Barons  to  John  —  Magna  Charta  —  its  principal  Articles  —  Reign  of 
Henry  111.  —  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  Con- 
stitution— Remarks  on  the  Limitation  of  Aristocratical  Privileges  in 
England 94 

HoTKs  TO  Cbaptbb  YUL,  Pabtb  L  and  U 140 


Pabt  nL 

THS  KNGUSH  OOSSTITUTIOV. 

Rdgn  of  Edward  L — Confinnatio  Chartarum— Constitution  of  Parb*- 
ment — the  Prelates — the  temporal  Peers -»  Tenure  by  Barony  — its 
Changes  —  Difficulty  of  the  Subject  —  Origin  of  Representation  of  the 
Commons — Knights  of  Shires  —  their  Existence  doubtfully  traced 
through  the  Reign  of  Heniy  IIL  —  Question  whether  Rep.'^sentation 
was  confined  to  Tenants  in  capite  discussed —  State  of  English  Towns 
at  the  Conquest  and  afterwards — their  Progress  —  Representatives 
from  them  summoned  to  Parliament  by  Earl  of  Leicester — Improbar 
bility  of  an  earlier  Origin  —  Cases  of  St.  Albans  and  Barnstaple  con- 
sidered—  Parliaments  under  Edward  L  —  Separation  of  Knights  and 
Burgesses  from  the  Peers  —  Edward  IL  —  Gradual  Progress  of  the 
Authority  of  Parliament  traced  through  the  reigns  of  Edward  IIL  and 
his  Successors  down  to  Henry  lY.  —  Privilege  of  Parliament  —  the 
early  Instances  of  it  noticed — Nature  of  Borough  Representation  — 
Right  of  Election  —  other  Particulars  relative  to  Election  —  House  of 
Lords  —  Baronies  by  Tenure  —  by  Writ — Nature  of  the  latter  dis- 
cussed—  Creation  of  Peers  by  Act  of  Parliament  and  by  Patent  — 
Summons  of  Clergy  to  Parliament — King's  Ordinary  Council  —  its 
Judicial  and  other  Power  —  Character  of  the  Plantagenet  Government 
— Prerogative  —  its  Excesses — erroneous  Views  corrected  —  Testimony 
of  Sir  John  Fortescue  to  the  Freedom  of  the  Constitution  —  Causes  of 
the  superior  Liberty  of  England  considered  —  State  of  Society  in  Eng- 
land—  Want  of  Police  —  Yillenage  —  its  gradual  Extinction — Latter 


CONTENTS  OF  THE  SECOND  VOLUME.  vii 

lean  oCrHeniy  YI. — Regencies  —  Instances  of  .them  enumerated  — 
Pretensions  of  the  Hoose  of  York,  and  War  of  the  Roses  —  Edward  rV. 
—  Conclusion Page  213 

Notes  TO  CiLAPTER  VIII.,  Paot  III 402 


CHAPTER  IX. 
ox  the  state  of  socibtt  in  eubofb  dubino  the  midllb  aoes 

Part  L 

Introduction  —  Decline  of  Literature  in  the  latter  Period  of  the  Roman 
Empire —  Its  Causes  —  Comiption  of  the  Latin  Language  —  Means  by 
which  it  was  effected  —  Formation  of  new  Languages  —  General  Igno- 
rance of  the  Dark  Ages  —  Scarcity  of  Books — Causes  that  prevented 
the  total  Extinction  of  Learning  —  Preyalenoe  of  Superstition  and  Fa- 
naticism —  General  Corruption  of  Religion — Monasteries  —  their  Effects 

—  Pilgrimages  —  Love  of  Field  Sports  —  State  of  Agriculture  —  of  In- 
ternal and  Foreign  Trade  down  to  the  end  of  the  Eleventh  Century  — 
Trnprovement  of  Europe  dated  firom  that  Age Page  462 

Part  II. 

rrof^ress  of  Commercial  Improvement  in  Germany,  Flanders,  and  Eng- 
land —  in  the  North  of  Europe  —  in  the  Countries  upon  the  Mediter- 
ranean Sea — Maritime  Laws — Usuiy — Banking  Companies  —  Progress 
of  Refinement  in  Manners  —  Domestic  Architecture  —  Ecclesiastical  Ar- 
chitecture —  State  of  Agriculture  in  England  —  Value  of  Mon^  —  Im- 
provement of  the  Moral  Character  of  Society  —  its  Causes  —  Police  — 
Changes  in  Religious  Opinion — Various  Sects  — Chivalry — its  Progress. 
Character,  and  Influence  —  Causes  of  the  Intellectual  Improvement  of 
European  Society  —  1.  The  Study  of  Civil  Law  —  2.  Institution  of 
Universities  —  their  Celebrity  —  Scholastic  Philosophy  —  8.  Cultivation 
of  Modem  Languages  —  Provencal  Poets  —  Norman  Poets  —  French 
Prose  Writers  —  Italian  —  early  Poets  in  that  Language  —  Dante  — 
Petrarch  —  English  language  —  its  Progress  —  Chaucer  —  4.  Revival  of 
Classical  Learning  —  Latin  Writers  of  the  Twelfth  Century  —  Literature 
of  the  Fourteenth  Century  —  Greek  Literature  —  its  Restoration  in  Italy 

—  invention  of  Printing 509 

N'vrEB  TO  Chapter  IX >• 654 

iMDBZ. 607 


VIEW 


or 


THE    STATE    OF    EUROPE 


DUBING  THE  MIDDLE  AGES. 


PART  n* 

Oontinual  Progreu  of  the  Papacy  —  Canon  Law  —  Hendtcant  OidetB — IHipenBlng 
Power — Taxation  of  the  Clexgj  bj  the  Popes  —  Encroaohments  on  Ki|(hta  of  Pa- 
tronage—  lOandata,  ReeerreSf  &c.  —  General  Diiiaffection  towards  the  See  of 
Borne  in  the  Thirteenth  Century  —  Progress  of  Ecclesiastical  Jurisdiction  —  Im 
munity  of  the  Clergy  in  Criminal  Cases—  Restraints  imposed  upon  their  Jurisdic- 
tion— Upon  their  Acquisition  of  Property — Boniflu»  VIII.  —  Uis  Quarrel  with 
Philip  the  Pair— Its  Termination  —  Oxadual  Decline  of  Papal  Authority  —  Louis 
of  Bamria  —  Secesrion  to  Arignon  and  Return  to  Rome  —  Conduct  of  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  — LibortieB  of  the  Gallkan  Choreh 
<-•  Decline  of  the  J^pal  Influence  in  Italy, 

The  noonday  of  papal  dominion  extends  from  the  pontifi- 
cate of  Innocent  m.  inclusively  to  that  of  Boniface  Papai  au- 
Vin. ;  or,  in  other  words,  through  the  thirteenth  JJSlSii" 
century.     Rome  inspired  during  this  age  all  the.teenthcen- 
ten'or  of  her  ancient  name.     She  was  once  more  *"^* 
the  mistress  of  the  world,  and  kings  were  her  vassals.     1 
have  already  anticipated  the  two  most  conspicuous  instances 
when  her  temporal  ambition  displayed  itself,  both  of  which 
are  inseparable  from  the  civil  history  of  Italy .^    In  the  first 
of  these,  her  long  contention  with  the  house  of  Suabia,  she 
finally  triumphed.     Afler  his  deposition  by  the  council  of 
Lyons  the  afiairs  of  Frederic  II.  went  rapidly  into  decay. 
With  every  allowance  for  the  enmity  of  the  Lombards  and 
the  jealousies  of  Germany,  it  must  be  confessed  that  his 
proscription  by  Innocent  IV.  and  Alexander  IV.  was  the 
main  cause  of  the  ruin  of  his  family.     Tliere  is,  however,  no 
other  instance,  to  the  best  of  my  judgment,  where   the  pre- 
tended right  of  deposing  kings  has  been  successfully  exercis- 

I  See  abore,  Gbapfter  m. 
VOL.  II  — M.  1 


2  CANON  JJlW.  Chap.  Vli.  Part  O. 

ed.  '  Martin  IV.  absolved  the  subjects  of  Peter  of  Aragon 
from  their  allegiance,  and  transferred  his  crown  to  a  prince 
of  Frajoice  ;  but  they  did  not  cease  to  obey  their  lawful  sover- 
eign. This  is  the  second  instance  which  the  thirteenth  cen- 
tury presents  of  interference  on  the  part  of  the  popes  in  a 
great  temporal  quarrel.  As  feudal  lords  of  Naples  and 
Sicily,  they  had  indeed  some  pretext  for  engaging  in  the 
hostilities  between  the  houses  of  Anjou  and  Aragon,  as  well 
as  for  their  contest  with  Frederic  II.  But  the  pontiffs  of  that 
age,  improving  upon  the  system  of  Innocent  III.,  and  san- 
guine with  past  success,  aspired  to  render  every  European 
kingdom  formally  dependent  upon  the  see  of  Rome.  Thua 
Boniface  VIIL,  at  the  instigation  of  some  emissaries  from 
Scotland,  claimed  that  monarchy  as  paramount  lord,  and  in 
terposed,  though  vainly,  the  sacred  panoply  of  ecclesiastica 
rights  to  rescue  it  from  the  arms  of  Edwsuxl  I.^ 

This  general  supremacy  effected  by  the  Roman  church 
Canon  law.  ^^^^  mankind  in  the  twelfth  and  thirteenth  centu- 
ries derived  material  support  from  the  promulga- 
tion of  the  canon  law.  The  foundation  of  this  jurisprudence 
is  laid  in  the  decrees  of  councils,  and  in  the  rescripts  or 
decretal  epistles  of  popes  to  questions  propounded  upon 
emergent  doubts  relative  to  matters  of  discipline  and  ecclesi- 
astical economy.  As  the  jurisdiction  of  the  spiritual  tribu- 
nals increased,  and  extended  to  a  variety  of  persons  and 
causes,  it  became  almost  necessary  to  establish  an  uniform 
syatem  for  the  regulation  of  their  decisions.  After  several 
minor  com()ilationd  had  appeared,  Gratian,  an  Italian  monk, 
published  about  the  year  1140  his  Decretum,  or  general 
collection  of  canons,  papal  epistles,  and  sentences  of  fathers, 
arranged  and  digested  into  titles  and  chapters,  in  imitation  of 
the  Pandects,  which  very  little  before  had  begun  to  be 
studied  again  with  great  diligence.^  This  work  of  Gratian, 
though  it  seems  rather  an  extraordinary  performance  for  the 
age  when  it  appeared,  has  been  censured  for  notorious  incor- 
rectness as  well  as  inconsistency,  and  especially  for  the 
authority  given  in  it  to  the  false  decretals  of  Isidore,  and  con- 
sequently to  the  papal  supremacy.  It  fell,  however,  short  of 
what  was  required  in  the  progress  of  that  usurpation.  Greg- 
ory DL  caused  the  five  books  of  Decretals  to  be  published 
by  Raimond  de  Pennafort  in  1234.     These  consist  almost 

1  Dalnrmple^f  Annals  of  Seotlandf  Tol.    date   of  !te  appearance  ({U.  848) ;  bnl 
1.  I).  2n'i .  ntiien  brinir  it  down  some  yean  later. 

■  Tlrabosrhi  tus  fixed  on  ])40  a<i  tJio 


RccLEs.  PowBB.  CANON  LAW.  3 

entirely  of  rescripts  issued  by  the  later  popes,  especially 
Alexander  III.,  Innocent  III.,  Honorius  III.,  aid  Gregory 
himself.  They  form  the  most  essential  part  of  the  canon 
law,  the  Decretum  of  Gratian  being  comparatively  obsolete. 
In  these  books  we  find  a  regular  and  copious  system  of  ja« 
risprudence,  derived  in  a  great  measure  from  the  civil  law, 
but  with  considerable  deviation,  and  possibly  improvement. 
Boniface  YIII.  added  a  sixth  part,  thence  called  the  Sext, 
itself  divided  into  five  books,  in  the  nature  of  a  supplement 
to  the  other  five,  of  which  it  follows  the  arrangement,  and 
composed  of  decisions  promulgated  since  the  pontificate  of 
Gregory  IX.  New  constitutions  were  subjoined  by  Clement 
Y.  and  John  XXII.,  under  the  name  of  Clementines  and 
Extravagantes  Johannis;  and  a  few  more  of  later  pontiffs 
are  included  in  the  body  of  canon  law,  arranged  as  a  second 
supplement  after  the  manner  of  the  Sext,  and  called  Ex- 
travagantes Communes. 

The  study  of  this  code  became  of  course  obligatory  upon 
ecclesiastical  judges.  It  produced  a  new  class  of  legal  practi- 
tioners, or  canonists ;  of  whom  a  great  number  added,  like 
their  brethren,  the  civilians,  their  illustrations  and  commenta- 
ries, for  which  the  obscurity  and  discordance  of  many  pas- 
sages, more  especially  in  the  Decretum,  gave  ample  scope. 
From  the  general  analogy  of  the  canon  law  to  that  of  Jus- 
tinian, the  two  systems  became,  in  a  remarkable  manner, 
collateral  and  mutually  intertwined,  the  tribunals  governed 
by  either  of  them  borrowing  their  rules  of  decision  from  the 
other  in  cases  where  their  peculiar  jurisprudence  is  silent  or 
of  dubious  interpretation.^  But  the  canon  law  was  almost 
entirely  founded  upon  the  legislative  authority  of  the  pope;  the 
decretals  are  in  fact  but  a  new  arrangement  of  the  bold  epis- 
tles of  the  most  usurping  pontiffs,  and  especially  of  Innocent 
III.,  with  titles  or  rubrics  comprehending  the  substance  of 
each  in  the  compiler's  language.  The  superiority  of  ecclesi- 
astical to  temporal  power,  or  at  least  the  absolute  indepen- 
dence of  the  former,  may  be  considered  as  a  sort  of  key-note 
which  regulates  every  passage  in  the  canon  law.*  It  is 
expressly   declared  that  subjects"  owe  no  allegiance  to  an 

1  Dock,  Ve  Usa  Juris  CiWIIs.  1.  i.  c.  8.  QasKunqne  a  prlndplbus  In  ordinlbui 

*  CooBtitutiones   priaclpum  eeclefliaji*  Tel  In  eccleiiUflticis  rebua  decreta  inve- 

•ieb  conititutlonlbafl  non  proDeminent,  ninntor,  nullius  auctoritatia  itsge  mon- 

Md  obfiequaatar.     Decretum,   dliitinct.  gtrantur.    Dcorctiim.  dhtinct.  !)6. 

10.    Statutum  gonemlo  laicorum  ad  ec-  ^  Domino   excommunictito    maoente. 

eliMia*  vol  ad  eccleflitutican  penooas,  Tel  iiubditi    fldolitatom    non   dubcnt ;    at  il 

•Oram  bona,  in  earnm  prajudicium  nou  longo  tempore  in  e  perstiterit,  et  moni 

ixteaditur.    DecrstaL  1   i.  Ut.  2,  c.  10.  tua  non  pareat  eoclesiA,  ab  (^ua  dabito 


1  UENDICAHT  OBDEBS.    Cur.  TH.  Fakt  n. 

ezcommuaicated  lord,  if  after  admonition  he  is  not  reconciled 
to  the  church.  And  the  rubric  prefixed  to  the  declaration 
of  Frederic  H.'b  deposition  in  the  council  of  Lyons  aaserta 
that  the  pope  may  dethrone  the  emperor  ibr  lawful  causes.^ 
These  rubrics  to  the  decretals  are  not  perhaps  of  direct 
authority  as  part  of  the  law  ;  but  they  express  its  sense,  so  as 
lo  be  fturly  cited  instead  of  it*  By  means  of  her  new  juris- 
prudence, Some  acquired  in  every  country  a  powerful  body 
of  advocates,  who,  though  many  of  them  were  laymen,  would^ 
with  the  usual  bigotry  of  lawyers,  defend  every  pretension  op 
abuse  to  which  their  received  standard  of  authority  gaVA 
sanction.* 

Next  to  the  canon  law  I  should  reckon  the  institution  of 
the  mendicant  orders  among  those  circumstances  which  prin> 
Mfndicut  dpally  contributed  to  the  a^randizement  of  Bome. 
<«'>*"■  By  the  acquisition,  and  in  some  respects  the  enjoy- 

ment, or  at  least  ostentation,  of  immense  riches,  the  ancient 
monastic  orders  had  forfeited  much  of  the  public  esteem.* 


ScoLM.  PowMB.  HEin)lCANT  0RDEB3.  6 

mankind,  were  of  verj  difiereat  characters ;  the  one,  active 
and  ferodooB,  had  token  a  prominent  part  in  the  crusade 
■gainst  the  unfortunate  Albigeoia,  and  waa  among  the  first 
who  bore  the  terrible  name  of  inquisitor ;  while  the  other,  a 
harmless  enthusiast,  pious  and  sincere,  but  hardly  of  sane 
mind,  was  much  rather  accessory  to  the  intellectual  than  to 
the  moral  degradation  of  his  species.     Various  other  mendi- 
cant orders  were  instituted  in  the  thirteenth  centurj ;  but 
most  of  them  were  soon  suppressed,  and,  besides  the  two 
principal,  none  remun  but  the  AugUBtiu  and  the  Carmelites.' 
These  new  preachers  were  received  with  astonishing  ap- 
probation bj  the  lait^,  wbose  religious  zeal  usually  depends 
a  good  deal  upon  their  opinion  of  sincerity  and  disinterest- 
edness in  their  pastors.     And  the  progress  of  the  Dominican 
a„A  i7»...:.,~..,  A^»»  ;-  tiig  thirteenth  century  bears  a  re- 
of  our  English  Mediodists.     Not 
ii    of  the    church,   but    professing 
«r  purity,  and  to  observe  her  ordi- 
rity,  while  they  imputed  supineness 
lular  clergy,  diey  drew  round  their 
:h  listeners  as  in  all  ages  ore  attract- 
hey  practised  all  the  stratagems  of 
ublic  streets,  and  administering  the 
altar.      Thirty  years  after  their  in- 
ilains  that  the  parish  churches  were 
>ed  except  to  these  friars,  in  short, 
was  subverted.'    This  uncontrolled 
sacerdotal  functions,  which  their 
for  themselves,  was  conceded  to  the 
&vor  of   Rome.     Aware  of  the 
ght  receive  in  turn,  the  pontiffs  of 
Ululated  benefits  upon  the  disciples 
They  were  exempted  from  episco- 
permitted  to  preach  or  hear  confes- 
e  ordinary,*  to  accept  of  legacies, 
:hes.     Such  privileges  could  not  be 
&om  the  other  clergy;  the  bishops 

hnr ;  qaonluD  eum  «pl»Dpa]««  jiAifHtl  apli  ^ 
iloln    codi  >b  homlDi,  nl  ■  Jan,  eanmiiDJter 

%  Deam  OmeDUbui  iplKopli  Ipdi  rn. 

tribu  cammltliiiitDr,  eC  noa  piHb^torli, 
r  tb*  quorum  iimplieitat  lum  suffiiit  aJur  /tiri 
bun;    fflufLf.     ^ilkiiu,  Cddc[LU,  t.  U.  p.  109 


6  PAPAL  DISPENSATIONS.    Chap.  VH.  Part  a 

remonstrated,  the  university  of  Paris  maintained  a  strenu* 
ous  opposition ;  but  their  reluctance  served  only  to  protract 
the  final  decision.  Boniface  YIII.  appears  to  have  peremp- 
torily established  the  privileges  and  immunities  of  the  mendi- 
cant orders  in  1295.^ 

It  was  naturally  to  be  expected  that  the  objects  of  such 
extensive  favors  would  repay  their  benefactors  by  a  m6re  than 
usual  obsequiousness  and  alacrity  in  their  service.  Accord- 
ingly the  Dominicans  and  Franciscans  vied  with  each  other 
in  magnifying  the  papal  supremacy.  Many  of  these  monks 
became  eminent  in  canon  law  and  scholastic  theology.  The 
great  lawgiver  of  the  schools,  Thomas  Aquinas,  whose  opin- 
ions the  Dominicans  especially  treat  as  almost  infallible,  went 
into  the  exaggerated  principles  of  his  age  in  favor  of  the 
see  of  Rome.^  And  as  the  professors  of  those  sciences  took 
nearly  all  the  learning  and  logic  of  the  times  to  their  own 
share,  it  was  hardly  possible  to  repel  their  arguments  by  any 
direct  reasoning.  But  this  partiality  of  the  new  monastic 
orders  to  the  popes  must  chiefly  be  understood  to  apply  to 
the  thirteenth  century,  circumstances  occurring  in  the  next 
which  gave  in  some  degree  a  different  complexion  to  their 
dispositions  in  respect  of  the  Holy  See. 

We  should  not  overlook,  among  the  causes  that  contribute 
ed  to  the  dominion  of  the  popes,  their  prerogative  of  dispens* 
ing  with  ecclesiastical  ordinances.  The  most  remarkable 
Papal  difl-  exercise  of  this  was  as  to  the  canonical  impedi- 
peiuatioiu  of  ments  of  matrimony.  Such  strictness  as  is  pre- 
marriage, scribed  by  the  Christian  reh'gion  with  respect  to 
divorce  was  very  unpalatable  to  the  barbarous  nations.  They 
in  fact  paid  it  httle  regard ;  under  the  Merovingian  dynasty, 
even  private  men  put  away  their  wives  at  pleasure.'  In 
many  capitularies  of  Charlemagne  we  find  evidence  of  the 
prevailing  license  of  repudiation  and  even  polygamy.^    The 

1  CroTler,   Hist,    de    PUniyersiti  de  might  perform  anj  spiritual  ftanctioitf 

Plaris,  t.  1.  et  t.  ii.  miiflim.    Floury,  ubi  within  his  diocese)  or  commit  the  charge 

supra.     Hist,  dn   Droit   EcclMastique  to  another  instMul,  and  that  the  pope, 

Francois,  t.  i.  p.  8M,  896.  446.    Collier's  being  to  the  whole  church  what  a  bishop 

BcclwiaBtical  History,  toi.  i.  p.  487,  448,  is  to  his  diocese,  might  do  the  sameeTery- 

4fi2.    Wood's  Antiquities  of  Oxford,  toI.  where.    Crevier,  1. 1.  p.  474. 

I.  p.  876, 480.    (Gutch's  edition.)  <  Biarculfi  Formulas,  1.  ii.  c.  80. 

<  It  was  maintained  by  the  enemies  of  *  Although  a  man  might  not  many 

the  mendicants,  especially  William  St.  again  when  his  wife  had  taken  the  reii, 

Amour,  that  the  pope  could  not  glre  he  was  permitted  to  do  so  if  she  was  in  • 

them  a  privilege  to  preach  or  perform  feoted  with  the  leprosy.    Compare  Cap 

the  other  duties  of  the  parish  priests,  pitnlaria  Pippini,  a.p.  762  and  756.    If 

Thomas  Aquinas  answered  that  a  bishop  a  woman  conHpired|9to  muider  har  !iiir 


EccLBs.  PowBB.        PAPAL  DISPENSATIONS.  7 

principles  which  the  church  inculcated  were  in  appearance 
the  very  reverse  of  this  laxity ;  yet  they  led  indirectly  to 
the  same  effect.  Marriages  were  forbidden,  not  merely  with- 
in the  limits  which  nature,  or  those  inveterate  associations 
which  we  call  nature,  have  rendered  sacred,  but  as  far  as  the 
seventh  degree  of  collateral  consanguinity,  computed  from  a 
common  ancestor.*  Not  only  was  affinity,  or  relationship  by 
marriage,  put  upon  the  same  footing  as  that  by  blood,  but  a 
fantastical  connection,  called  spiritual  affinity,  was  invented  in 
order  to  prohibit  marriage  between  a  sponsor  and  godchild. 
An  union^  however  innocently  contracted,  between  parties 
thus  circumstanced,  might  at  any  time  be  dissolved,  and  their 
subsequent  cohabitation  forbidden  ;  though  their  children,  I 
believe,  in  cases  where  there  had  been  no  knowledge  of  the 
impediment,  were  not  illegitimate.  One  readily  apprehends 
the  &cilities  of  abuse  to  which  all  this  led ;  and  history  is  full 
of  dissolutions  of  marriage,  obtained  by  fickle  passion  or  cold- 
hearted  ambition,  to  which  the  church  has  not  scrupled  to 
pander  on  some  suggestion  of  relationship.  It  is  so  difficult 
to  conceive,  I  do  not  say  any  reasoning,  but  any  honest  su- 
perstition, which  could  have  produced  those  monstrous  regu- 
lations, that  I  was  at  first  inclined  to  suppose  them  designed 
to  give,  by  a  side-wind,  that  facility  of  divorce  which  a  licen- 
tious people  demanded,  but  the  church  could  not  avowedly 
grant  This  refinement  would  however  be  unsupported  by 
facts.  The  prohibition  is  very  ancient,  and  was  really  deriv- 
ed from  the  ascetic  temper  which  introduced  so  many  other 
absurdities.'  It  was  not  until  the  twelfth  century  that  either 
this  or  any  other  established  rules  of  discipline  were  sup- 
band,  be  mlgfat  remurry.  Id.  a.d.  768.  btw.  Peter  Dunlan,  a  passionate  abettor 
JL  luige  proportioa  of  Pepin's  laws  re-  of  Hildebrand  and  his  maxims,  treats 
late  to  incestuous  connections  and  dl-  this  with  horror^  and  calls  it  an  heresy, 
forces.  One  of  Gharleaiagne  seems  to  Pleary,  t.  ziii.  p.  152.  St.  Mare,  ubi 
imply  that  polygamy  was  not  unknown  supra.  This  opinion  was  supported  by  a 
•Ten  among  priests.  Si  sacerdotes  plures  reference  to  the  Institutes  of  Justinian ; 
nxores  habuerint,  sacerdotio  prirentur ;  a  proof,  among  sereral  others,  how  much 
quia  sneularibus  deteriores  sunt.  Oapi-  earlier  that  book  was  known  than  is  tuI- 
tul.  A.D.  789.    This  seems  to  imply  ihat    garly  supposed. 

their  marriage  with  one  was  allowable,       >  Gregory  I.  pronounces   matrimony 

which  noTertheless  is   contradicted  by    to  be  unlawful  as  &r  as  Che  seventh 

other  passages  in  the  Capitularies  degree ;  and  eren,  if  I  understand  his 

1  See  the  canonical  computation  ex-    meaning,    as  long  as   any  relationship 

1»lidned  in  St.  Mare.  t.  Ui.  p.  876.  Also  could  be  traced ;  which  seems  to  haTe 
n  Blackstone's  Law  Tracts,  Treatise  on  been  the  maxim  of  strict  theologians, 
Consanguinity.  In  the  eleventh  eentnxy  thongh  not  absolutely  enlbreed.  Da 
an  opinion  began  to  gain  ground  in  Italy  Gauge,  t.  Qeneratio ;  Fleury,  Hist  Xo- 
tbat  thlrd-eousins  might  marry,  being  in  cite.  t.  Ix.  p.  2iL 
the  seTsnth  degree  according  to  the  eivii 


8  PAPAL  DISPENSATIONS.    Chap.  VH.  Paw  IL 

posed  liable  to  arbitrary  dispensation;  at  least  the  stricter 
churchmen  had  always  denied  that  the  pope  could  inMnge 
canons,  nor  had  he  asserted  any  right  to  do  so.^  But  Inno- 
cent III.  laid  down  as  a  maxim,  that  out  of  the  plenitude  of 
his  power  he  might  lawfully  dispense  with  the  law ;  and  ao- 
cordingly  granted,  among  other  instances  of  this  prerogative, 
dispensations  from  impediments  of  marriage  to  the  emperor 
Otho  IV.^  Similar  indulgences  were  given  by  his  succes- 
sors, though  they  did  not  become  usual  for  some  ages.  The 
fourth  Lateran  council  in  1215  removed  a  great  part  of  the 
restraint,  by  permitting  marriages  beyond  the  fourth  degree, 
or  what  we  call  third-cousins;'  and  dispensations  have 
been  made  more  easy,  when  it  was  discovered  that  they 
might  be  converted  into  a  source  of  profit  They  served  a 
more  important  purpose  by  rendering  it  necessary  for  the 
princes  of  Europe,  who  seldom  could  marry  into  one  an- 
other's houses  without  transgressing  the  canonical  limits,  to 
keep  on  good  terms  with  the  court  of  Rome,  which,  in  sev- 
eral ii^stances  that  have  been  mentioned,  fulminated  its 
censures  against  sovereigns  who  lived  without  permission 
in  what  was  considered  an  incestuous  union. 

The  dispensing  power  of  the  popes  was  exerted  in  several 
^  cases  of  a  temporal  nature,  particularly  in  the 

tionfl  from  Icgitmiation  ot  children,  for  purposes  even  of  suo 
p^iuoxy  cession.  This  Innocent  III.  claimed  as  an  indirect 
consequence  of  his  right  to  remove  the  canonical 
impediment  which  bastardy  offered  to  ordination ;  since  it 
would  be  monstrous,  he  says,  that  one  who  is  legitimate  for 
spiritual  functions  should  continue  otherwise  in  any  civil  mat- 
ter.^ But  the  most  important  and  mischievous  species  of 
dispensations  was  from  the  observance  of  promissory  oaths. 
Two  principles  are  laid  down  in  the  decretals  —  that  an  oath 
disadvantageous  to  the  church  is  not  binding ;  and  that  one 
extorted  by  force  was  of  slight  obligation,  and  might  be  an- 
nulled by  ecclesiastical  authority.^    As  the  first  of  these 

1  De  Maroa,  1.  iil.  co.  7,  8, 14.   Schmidt,  d«  Jaie  poMumiu  iupn  Jiu  dlspenauw. 

t.  It.  p.  286.     Dispensations  were  origi-  Schmidt,  t.  iv.  p.  235. 

naUj  granted  only  as  to  canonical  pen-  *  Fleury.  Institutions  an  Droit  BooM 

ancM,  but  not  prospectively  to  authorise  slastlquef  i.  i.  p.  296. 

a  breach  of  discipline.    Gratian  asserts  *  Decretal,  1.  iy.  Ut.  17,  e.  18. 

that  the  pope  is  not  bound  by  the  canons,  *  Juramentum  contra  ntilitatem  eoole- 

In  which,  Fleury  obterras,  he  goee  be-  siasticam  prsBstltnm  non  tenet.    Deora- 

yond  the  False  Deoretals.    SeptUme  Di»-  tal.  1.  U.  tit.  24,  o.  27,  «t  Best.  1.  i.  tit.  11, 

tears,  p.  291.  e.  1.    A  Juramento  per  metum  extorts 

s  Beeondum  plenitudinem  potestatis  ecclesia  solet  ftbflolT«i«,  et  ^us  tran^ 


Bocuis.  PowxB.      PAPAL  ENCROACHMENTS.  9 

maxims  gave  the  most  unlimited  privilege  to  the  popes  of 
breaking  all  faith  of  treaties  which  thwarted  their  interest  or 
passion,  a  privilege  which  thej  continually  exercised,^  so  the 
second  was  equally  convenient  to  princes  weary  of  observing 
engagements  towards  their  subjects  or  their  neighbors.  They 
protested  with  a  bad  grace  against  the  absolution  of  their 
people  from  allegiance  by  an  authority  to  which  they  did  not 
scruple  to  repair  in  order  to  bolster  up  their  own  perjuries. 
Thus  Edward  1.,  the  sti'enuous  asserter  of  his  temporal  rights, 
and  one  of  the  first  who  opposed  a  barrier  to  the  encroach- 
ments of  the  clergy,  sought  at  the  hands  of  Clement  V.  a 
dispensation  from  his  oath  to  observe  the  great  statute  agamst 
arbitrary  taxation. 

In  all  the  earlier  stages  of  papal  dominion  the  suprem<^ 
head  of  the  church  had  been  her  guardian  and  Encroach- 
protector ;  and  this  beneficent  character  appeared  "®^jj  the 
to  receive  its  consummation  in  the  result  of  that  fhwdom  of 
arduous  struggle  which  restored  the  ancient  prac-  *^'*'''^°'^ 
dee  of  free  election  to  ecclesiastical   dignities.     Not  long, 
however,  after  this  triumph  had  been  obtained,  the  popes 
began  by  little  and  little  to  interfere  with  the  regular  consti- 
tution.    Their  first  step  was  oonibrmable  indeed  to  the  pre- 
vailing system  of  spiritual  independency.     By  the  concordat 
of  Cahxtus  it  appears  that  the  decision  of  contested  elections 
was  reserved  to  the  emperor,  assisted  by  the  metropolitan 

groMorei  at  peooantM  mortaliter  oon  and  geoeral  declaiattOD  against  keeping 
panientar.  Bodem  lib.  et  tit.  o.  15.  lUth  with  heretics.  Attendentes  quod 
The  whole  of  this  title  in  the  decretals  huJaJmodioonftederationefl,colligatioDe8, 
upon  oaths  seems  to  haTe  given  the  first  et  li^e  sen  conveationes  factse  cam  hu- 
opening  to  the  lax  casuls^  of  succeed-  Jusmodi  hseretids  seu  schismatids  post- 
ing times.  quam  tales  effiooti  erant,  sunt  temerarisB, 

^  Take  one   instance  out  of  many,  illicitae,  et  ipso  jure  nuIlfe(etBi  forte  ante 

Piocinino,  the  fkmous  condottiere  of  the  ipsornm  lapsum  in  schlsma,  seu  hnresin 

fifteenth  century,  had  promised  not  to  iniCso  sea  fkctsB  fuisaent),  etiam  si  foreut 

attack  Francis  Sfona,  at  that  time  en-  Juramentorel  fide  datil  firmat«,aut  con- 
gaged  against  the  pope.    Bngenius  IV.  ,  firmatione  apostolicJL  rel  qu&cunque  fir- 

(tbe  same  exoeUeat  person  who  had  an-  mltate  alii  roboratfe.  postquam  tales,  ut 

nulled  the  compatacta  with  the  Hussites,  prsemittitur,  sunt  effecti.    Bymer,  t.  Til. 

leleasiDg  thorn  who  had  sworn  to  than,  p.  862. 

and  who  afterwards  made  the  king  of  It  was  of  little  consequence  that  all 

Hungary  break  his  treaty  with  Amurath  dlrines  and  souud  interpreters  of  canon 

II.)  absolves  him  from  this  promise,  on  law  maintain  that  the  pope  cannot  dls- 

tlM  express  ground  that  a  treaty  disad-  pense  with  the  divine  or  moral  bw,  as 

▼antageous  to  the  churoh  ought  not  to  De  Marca  tells  us,  1.  iii.  c.  16,  though  he 

be  lupt.    Sismondi,  t.  ix.  p.  196.    The  admits  that  others  of  less  sound  Judg- 

ehuroh  in  that  age  was  synonymous  with  ment  assert  the  contrary,  as  wascommon 

the  papal  territories  In  Italy.  enough.  I  believe,  among  the  Jesuits  at 

It  was  in  oonfi>rmity  to  &is  sweeping  the  beginning  of  the  seventeenth  oentury. 

Mlnaiple  of  eeolesiastleal  utility   that  His  power  of  interpreting  the  Uw  wai 

QiliMi  TL  made  the  fiiUowing  solemn  of  Itself  a  privilege  of  dispensing  with  It 


10  PAPAL  ENCROACHMENTS.     Chap.  VII.  Fiow  tt 

and  suffragans.  In  a  few  cases  during  the  twelflh  century 
this  imperial  prerogative  was  exercided,  though  not  altogether 
undisputed.^  But  it  was  consonant  to  the  prejudices  of  that 
age  to  deem  the  supreme  pontiff  a  more  natural  judge,  as  in 
other  cases  of  appeal.  The  point  was  early  settled  in  Eng- 
land, where  a  doubtful  election  to  the  archbishopric  of  York, 
under  Stephen,  was  referred  to  Rome,  and  there  kept  five 
years  in  litigation.*  Otho  IV.  surrendered  this  among  other 
rights  of  the  empire  to  Innocent  J 11.  by  his  capitulation  ;■ 
and  from  that  pontificate  the  papal  jurisdiction  over  such 
controversies  became  thoroughly  recognized.  But  the  real 
aim  of  Innocent,  and  perhaps  of  some  of  his  predecessorR, 
was  to  dispose  of  bishoprics,  under  pretext  of  determining 
and  on  coutcsts,  as  a  matter  of  patronage.    So  many  rules 

rights  of  were  established,  so  many  fonnalities  required  by 
,p»tronag«.  ^heip  constitutions,  incorporated  afterwards  into  the 
canon  law,  that  the  court  of  Rome  might  easily  find  means 
of  annulling  what  had  been  done  by  the  chapter,  and  bestow- 
ing the  see  on  a  favorite  candidate.^  The  popes  soon  assumed 
not  only  a  right  of  decision,  but  of  devolution ;  that  is,  of 
supplying  the  want  of  election,  or  the  unfitness  of  the  elected, 
by  a  nomination  of  their  own.*  Thus  archbishop  Langton, 
if  not  absolutely  nominated,  was  at  least  chosen  in  an  invalid 
and  compulsory  manner  by  the  order  of  Innocent  III.,  as  we 
may  read  in  our  English  historians.  And  several  succeeding 
archbishops  of  Canterbury  equally  owed  their  promotion  to 
the  papal  prerogative.  Some  instances  of  the  same  kind 
occurred  in  Germany,  and  it  became  the  constant  practice  in 
Naples.' 

While  the  popes  were  thus  artfully  depriving  the  chapters 

1  Schmidt,  t.  lit.  p.  299 ;  t.  It.  p.  149.  Institutions  an  Droit,  t.  i.  p.  425.    Len- 

According   to  tbe   concordat,  elections  &nt.  Condle  de  Constance,  t.  ii.  p.  180. 

ought  to  be  made  in  the  presence  of  the  *  F.  Paul,  c.  30.    Schmidt,  t.  ir.  p.  177, 

emperor  or  his  officers ;  but  the  chapters  247. 

contrived  to  exclude  them  by  degrees,  &  Thus  we  find  it  expressed,  as  cap- 
though  not  perhaps  till  the  thirteenth  tiously  as  words  could  be  devuied,  in  the 
century.  Compare  Schmidt,  t.  iii.  p.  decretals,  1.  i.  tit.  6,  c.  22.  £Iectiis  a 
296;  t.  ir.  p  146.  mi\}ori  et  saniori  parte  capituli,  m  eat,  et 

*  Henry's  lUst.  of  England,  yol.  ▼.  erat  idoneus  tempore  electionis,confirma- 
p.  d24.  Lyttelton's  Henry  II.,  vol.  i.  bitur;  siautem  erit  indignus  in  ordini- 
p.  856.  bus  scientil  vel  letate,  et  fult  scienter 

*  Schmidt,  t.  iv.  p.  149.  One  of  these  electus,  electud  a  miuori  parte,  si  est  dig- 
was  tbe  spolium^  or  movable  estate  of  a  nus,  conflrmabitur. 

bishop,  which  the  emperor  was  used  to  A  person  canonically  disqualified  when 

•else  upon  his  decease,    p.  154.    It  was  presented  to  the  pope  for  conflrmatioa 

^rtainly  a  very  leonine  prerc^tlve ;  but  was  said  to  be  postuiatus^  not  eUelus. 

the  popes  did  not  fidl,  at  a  subsequent  *  Glannono,  L  xiv.  c.  6  ;  1.  zix.  c.  6* 
ime,  to  claim  it  Ibr  themselyes.   Floury, 


iScGucs.  Power.  MANDATS.  H 

of  their  right  of  election  to  bishoprics,  they  inter-  j.  . 
fered  in  a  more  arbitrary  manner  with  the  collation 
of  inferior  benefices.  This  began,  though  in  so  insensible  a 
manner  as  to  deserve  no  notice  but  for  its  consequences,  with 
Adi-ian  IV.,  who  requested  some  bishops  to  confer  the  next 
benefice  that  should  become  vacant  on  a  particular  clerk.^ 
Alexander  III.  used  to  solicit  similar  favors.^  These  recom- 
mendatory letters  were  called  mandats.  But  though  such 
requests  grew  more  frequent  than  was  acceptable  to  patrons, 
they  were  preferred  in  moderate  language,  and  could  not 
decently  be  refused  to  the  apostolic  chair.  Even  Innocent 
m.  seems  in  general  to  be  aware  that  he  is  not  assr^rting  a 
right;  though  in  one  instance  I  have  observed  his  violent 
temper  break  out  against  the  chapter  of  Poitiers,  who  had 
made  some  demur  to  the  appointment  of  his  clerk,  and  whom 
he  threatens  with  excommunication  and  interdict.'  But,  as  we 
find  in  the  history  of  all  usurping  governments,  time  changes 
anomaly  into  system,  and  injury  into  right;  examples  beget 
custom,  and  custom  ripens  into  law ;  and  the  doubtful  prece- 
dent of  one  generation  becomes  the  fundamental  maxim  of 
another.  Honorius  III.  requested  that  two  prebends  in 
every  church  might  be  preserved  for  the  Holy  See;  but 
neither  the  bishops  of  France  nor  England,  to  whom  he 
preferred  this  petition,  were  induced  to  comply  with  it.* 
Gregory  IX.  pretended  to  act  generously  in  limiting  himself 
to  a  single  expectative,  or  letter  directing  a  particular  clerk 
to  be  provided  with  a  benefice  in  every  church.*  But -his 
practice  went  much  further.  No  country  was  so  intolerably 
treated  by  this  pope  and  his  successors  as  England  throughout 
the  ignominious  reign  of  Henry  HI.  Her  church  seemed 
to  have  been  so  richly  endowed  only  as  the  free  pasture  of 
Italian  priests,  who  were  placed,  by  the  mandatory  letters 
of  Gregory  IX.  and  Innocent  IV.,  in  all  the  best  benefices. 
If  we  may  trust  a  solemn  remonstrance  in  the  name  of  the 
whole  nation,  they  drew  from  England,  in  the  middle  of  the 
thirteenth  century,  sixty  or  seventy  thousand  marks  every 
year;  a  sum  far  exceeding  the  royal  revenue.'  This  waa 
asserted  by  the  English  envoys  at  the  council  of  Lyons. 

1  St.  Mare,  t.  t^.  41.    Art  de  TMfl«r  *  Matt.  Paris,  p.  267.    De  Ifana,  1.  If. 

Ifli  Datw,  t.  L  p.  288.    Bncyolop^dia.  art.  o.  9. 

Vandats.  &  F.  Paal  oa  Beneflc«a,  e.  80 

>  Behmldt,  t.  It.  p.  239.  •  M .  PaiU  p.  679, 740. 

*  Innooont  III.  Opera,  p.  602 


12  MANDATS.  Chap.  VII.  Pakt  II 

But  the  remedy  was  not  to  be  sought  in  remonstrances  to  the 
coiiit  of  Rome,  which  exulted  in  the  success  of  its  encroach- 
ments. There  was  no  defect  of  spirit  in  the  nation  to  oppose 
a  more  adequate  resistance ;  but  the  weak-minded  individual 
upon  the  tiirone  sacrificed  the  public  interest  sometimes 
through  habitual  timidity,  sometimes  through  silly  ambition. 
If  England,  however,  suffered  more  remarkably,  yet  other 
countries  were  far  from  being  untouched.  A  German  writer 
about  the  beginning  of  the  fourteenth  century  mentions  a 
cathedral  where,  out  of  about  thirty-five  vacancies  of  prebends 
that  had  occurred  within  twenty  years,  the  regular  patron 
had  filled  only  two.*  The  case  was  not  very  different  in 
France,  where  the  continual  usurpations  of  the  popes  pro- 
duced the  celebrated  Pragmatic  Sanction  of  Si.  Louis.  This 
edict,  the  authority  of  which,  though  probably  without  cause, 
has  been  sometimes  disputed,  contains  three  important  pro- 
visions; namely,  that  aJl  prelates  and  other  patrons  shall 
enjoy  their  full  rights  as  to  the  collation  of  benefices,  accord- 
ing to  the  canons ;  that  churches  shall  possess  freely  their 
rights  of  election;  and  that  no  tax  or  pecuniary  exaction 
shall  be  levied  by  the  pope,  without  consent  of  the  king  and 
of  the  national  church.^     We  do  not  find,  however,  that  the 

1  Schmidt,  t.  yl.  p.  104.  ooor  de  Rome,  elle  ne  oontlent  rien  qu« 
s  Ordonnanoes  des  Rois  de  Fianoe,  t.  i.  oette  conr  n'eufe  pa  pabUer  elle-m6me : 
p.  97.  Objections  hare  been  ma^e  to  et  quant  k  cet  article,  qui  paroit  seni 
the  authenticity  of  this  edict,  and  in  dirig6  oontre  la  chambre  apoetoliqu««  il 
particular  that  we  do  not  find  the  king  n*est  pas  plos  precis  que  ceoz  que  bien 
to  have  had  any  prorious  differences  d'autres  rois  de  France,  d'Angleterre,  et 
with  the  see  of  Rome ;  on  the  contrary,  d'AUemagne,  avaient  d^i  promulguis 
he  was  just  indebted  to  Clement  IV.  for  4  plusieurs  reprises,  et  tot^urs  sans 
bestowing  the  crown  of  Naples  on  his  effot.  EUst.  des  Franc,  t.  106.  But  Sis- 
brother  the  count  of  Provence.  Velly  mondiOTerlooks  the  fourth  article,  which 
baa  defended  it.  Hist,  de  France,  t.  fi.  enacts  that  all  collations  of  benefices 
p.  57 ;  and  in  the  opinion  of  the  learned  shall  be  made  according  to  the  maxims 
Benedictine  editors  of  L^Art  do  T^fler  of  councils  and  fathers  of  the  church, 
ies  Dates,  t.  i.  p.  586,  cleared  up  all  This  was  designed  to  repress  the  dis- 
dlfflcultiee  as  to  its  genuineness.  In  pensatlons  of  the  pope ;  and  if  the  French 
flict,  howeyer,  the  Pragmatic  Sanction  of  lawyers  had  been  powerful  enough,  it 
St.  Louis  stands  by  itself,  and  can  only  would  hare  been  successful  in  that  ob« 
be  considered  as  a  protestation  against  ject.  He  goes  on,  indeed,  himself  to 
abuses  which  it  was  still  impossible  to  say, — Ce  qui  changea  la  pragmatique 
suppress.  sanction  en  une  barrlire  puissantecontre 
Of  this  law,  which  was  published  in  les  usurpations  de  la  cour  de  Rome,  c'est 
1268,  Sismondi  says,  £n  liaint  la  pnig-  que  les  l^glstes  s*en  empar^rent;  lis  pri- 
matique  sanction,  on  se  demande  aveo  rent  bcAjx  de  rexptlquer,  de  la  eom- 
6tonnement  ce  qui  a  pn  causer  sa  prodi-  menter ;  plus  elle  6tait  vague,  et  plus, 
gieuse  o61dbritA.  Bile  nUntroduit  aucun  entre  leurs  mains  habiles,  elle  pouToit 
droit  nouTeau ;  elle  ne  change  rien  4  reccToir  d^extension.  Elle  sufllMut  seuls 
rorganisation  eoolMastiqne ;  eUe  dtelaie  pour  garantir  toutes  les  libertte  dn  roy- 
■euloment  que  tons  les  droits  existans  aume ;  nne  fois  que  les  parlemens  etoient 
feront  eonservte,  que  toute  la  legislation  rtoolus  de  ne  Jamais  permettre  qu'elle 
canonique  solt  ezteutte.  A  I'exoeption  fdt  yiolte,  tout  empi^tement  de  la  oour 
i*  I'AroBk  T,  flur  la  lertef  d^argent  de  la  da  Borne  oa  dee  tiibnnaux  eooUtlasth 


EOCLE8.  PowM.    PROVISIONS  AND  RESERVES.  13 

French  gOTernment  acted  up  to  the  spirit  of  this  ordinance 
and  the  Holy  See  continued  to  invade  the  rights  of  collation 
with  less  ceremony  than  they  had  hitherto  used.  Clemenf 
lY.  published  a  bull  in  1266,  which,  afler  asserting  an  abso- 
lute prerogative  of  the  supreme  pontiff  to  dispose  of  all  pre- 
ferments, whether  vacant  or  in  reversion,  confines  itself  in  s^ 
the  enacting  words  to  £he  reservation  of  such  benefices  as 
belong  to  persons  dying  at  Rome  (vacantes  in  curia).^  These 
had  for  some  time  been  reckoned  as  a  part  of  the  popc*s 
special  patronage ;  and  their  number,  when  all  causes  of  im- 
portance  were  drawn  to  his  tribunal,  when  metropolitans 
were  compelled  to  seek  their  pallium  in  person,  and  even  by 
a  recent  constitution  exempt  abbots  were  to  repair  to  Rome 
for  confirmation,'  not  to  mention  the  multitude  who  fiocked 
thither  as  mere  courtiers  and  hunters  after  promotion,  must 
have  been  very  considerable.  Boniface  VIII.  repeated  this 
law  of  Clement  lY.  in  a  still  more  positive  tone;*  and 
Clement  V.  laid  down  as  a  maxim,  that  the  pope  might  freely 
bestow,  as  universal  patron,  all  ecclesiastical  benefices.*  In 
order  to  render  these  tenable  by  their  Italian  courtiers,  the 
canons  against  pluralities  and  nonresidence  were  dispensed 
with ;  so  that  individuals  were  said  to  have  accumulated  iifty 
or  sixty  preferments.^  It  was  a  consequence  from  this  ex- 
travagant principle,  that  the  pope  might  prevent  provisions, 
the  ordinary  collator  upon  a  vacancy  ;  and  as  this  reserrM, 
could  seldom  be  done  with  sufficient  expedition  in  ^^ 
places  remote  from  his  court,  that  he  might  make  reversion- 
ary grants  during  the  life  of  an  incumbent,  or  reserve  certain 
benefices  specifically  for  his  own  nomination. 

The  persons  as  well  as  estates  of  ecclesiastics  were  secure 
from  arbitrary  taxation  in  all  the  kingdoms  founded  upon  the 
ruins  of  the  empire,  both  by  the  common  Hberties  of  free- 

qiua,  toate  I«Tte  de  deniera  ordonn^  jmr  thinks  the  piiTilef^  of  nominating  ben^ 

•11«,  coote  Election  irr^aliire,  toate  ex-  fiees  Tseant  in  euria  to  bare  been  among 

conmonication,  tout  Interdit,  qui  tou-  the  flint  claimed  by  the  popes,  even  be* 

ehotent  PantorlU  rojale  on  les  droits  du  fore  the  usage  of  mandate,    c.  80. 

>i:Oet,  farant  dAuonbkt  par  les  Mgistes  en       *  Matt.  Paris,  p.  817 

parlement,  eomme  eontraires  aux  fran-       *  Sext.  Decret.  1.  111.  t.  !▼.  o.  8.    He 

ehises  des  igllses  de  France,  et   &    la  extended  the  racaney  In  cnrift   to  all 

pragmatique  sanction.    AInsi  sMntrodui-  places  within  two  days'  journey  of  th« 

salt  Pappel  eomme  d'abus  qui  r^usslt  papal  court. 

•eul  ji  oontenlr  la  jurisdiction  eodesias-       *  F.  Paul,  o.  86. 

ttqne  dans  de  jostes  homes.  s  Id.  e.  83, 84, 85.    Schmidt,  t  It.  f 

i  Sext.  Deeretai.  1.  Mi.  t.  It.  e.  2.    V.  104 
PlMil  oo  Benefices,  o.  85     This  writer 


14  PAPAL  TAXATION        Chap.  VH.  Pabt  H. 

Papal  taxa-    ^®°>  *^^  iDore  particularly  by  their  own  iminu* 
Ion  of  the     nities  and  the  horror  of  sacrilege.*     Such  at  least 
•^e'Ky-  ^as  their  legal  security,  whatever  violence  might 

occasionally  be  practised  by  tyrannical  princes.  But  this 
exemption  was  compensated  by  aunual  donatives,  probably 
to  a  large  amount,  which  the  bishops  and  monasteries  were 
accustomed,  and  as  it  were  compelled;  to  make  to  their  sov- 
ereigns.* They  were  subject  also,  generally  speaking,  to  the 
fieudal  services  and  prestations.  Henry  I.  is  said  to  have 
extorted  a  sum  of  money  from  the  English  church.'  But 
the  fii*st  eminent  instance  of  a  general  tax  required  from  the 
clergy  was  the  famous  Saladine  tithe ;  a  tenth  of  all  movable 
estate,  Imposed  by  the  kings  of  France  and  England  upon  all 
their  subjects,  with  the  consent  of  their  great  councils  of 
prelates  and  barons,  to  defray  the  expense  of  their  intended 
crusade.  Yet  even  this  contribution,  though  called  for  by 
the  imminent  peril  of  the  Holy  Land  after  the  capture  of 
Jerusalem,  was  not  paid  without  reluctance;  the  clergy 
doubtless  anticipating  the  future  extension  of  such  a  precedent.* 
Many  years  had  not  elapsed  when  a  new  demand  was  made 
upon  them,  but  from  a  different  quarter.  Innocent  III.  (the 
name  continually  recurs  when  we  trace  the  commencement 
of  an  usurpation)  imposed  in  1199  upon  the  whole  church  a 
tribute  of  one  fortieth  of  movable  estate,  to  be  paid  to  his  own 
collectors;  but  stiictly  pledging  himself  that  the  money 
should  only  be  applied  to  the  purposes  of  a  crusade.*  This 
crusade  ended,  as  is  well  known,  in  the  capture  of  Constan- 
tinople. But  the  word  had  lost  much  of  its  original  mean- 
ing ;  or  rather  that  meaning  had  been  extended  by  ambition 
and  bigotry.  Gregory  IX.  preached  a  crusade  against  the 
emperor  Frederic,  in  a  quarrel  which  only  concerned  his 
temporal  principality ;  and  the  church  of  England  was  taxed 
by  his  authority  to  carry  on  this  holy  war.'     After  some 

1  MantorL,Diswrt.  70;  Schmidt,  t.  ill.  nnniTelfiig  a  tiiuiue  which  they  had  been 

p.  211.  amiduouiily  weHviag.     One  EngUab  pre- 

s  Schmidt,  t.  iii.  p.  211.    Dn  Cange,  t.  late  distinguinhed  himself  in  this  reijpi 

Dona.  by  his  utrenuoud  protentation  against  all 

*  Kadmer,  p.  88.  abuses  of  the  church.    Thi«  was  Koberl 

*  Schmidt,  t.  ir.  p.  212.  Ly  ttelton^s  Qrosstebe,  bishop  of  Lincoln,  who  died  in 
Ilenry  U.,  vol.  iii.  p.  472.  Velly,  t.  Ui.  1253,  the  moot  learned  Englishman  of 
p.  816-  his  time,  and  the  first  who  had  any  tine- 

&  Innocent.  Opera,  p.  266.  ture  of  Oreeic  literature.    Matthew  Parii 

*  M.  Paris,  p.  470.  It  was  hardly  gires  him  a  high  character,  which  he 
posAible  Ih-  the  clergy  to  make  any  ef-  deserred  for  his  learning  and  integrity; 
fectire   ntistanee  to  the  pope,  without  oueof  his  ommendationa  is  for  keeping 


EocLEa.  PowsB.  OF  THE  CLERGY.  15 

opposition  the  bishops  submitted;  and  from  that  time  no 
bounds  were  set  to  the  rapacity  of  papal  exactions.  The 
usurers  of  Cahors  and  Lombardy,  residing  in  London,  took 
up  the  trade  of  agency  for  the  pope ;  and  in  a  few  years,  he 
is  said,  partly  by  levies  of  money,  partly  by  the  revenues  of 
benefices,  to  have  plundered  the  kingdom  of  950,000  marks ; 
a  sum  equivalent,  perhaps,  to  not  less  than  fifteen  millions 
sterling  at  present.  Innocent  IV.,  during  whose  pontificate 
the  tyranny  of  Rome,  if  we  consider  her  temporal  and  spir- 
itual usurpations  together,  seems  to  have  reached  its  zenith, 
hit  upon  the  device  of  ordering  the  Ji^nglish  prelates  to  fur- 
nish a  certain  number  of  men-at-arms  to  defend  the  church 
at  their  expense.  This  would  soon  have  been  commuted 
into  a  standing  escuage  instead  of  military  service.^  But  the 
demand  was  perhaps  not  complied  with,  and  we  do  not  find 
it  repeated.  Henry  IIL's  pusillanimity  would  not  permit 
any  effectual  measures  to  be  adopted ;  and  indeed  he  some- 
times shared  in  the  booty,  and  was  indulged  with  the  produce 
of  taxes  imposed  upon  his  own  clergy  to  defray  the  cost  of 
his  projected  war  against  Sicily.^  A  nobler  example  was  set 
by  the  kingdom  of  Scotland:  Clement  IV.  having,  in  1267 
granted  the  tithes  of  its  ecclesiastical  revenues  for  one  of  his 
mock  crusades,  king  Alexander  III.,  with  the  concurrence  of 
the  church,  stood  up  against  this  encroachment,  and  refused 
tlie  legate  permission  to  enter  his  dominions.'  Taxation  of 
the  clergy  was  not  so  outrageous  in  other  countries ;  but  the 
popes  granted  a  tithe  of  benefices  to  St.  Louis  for  each  of 
his  own  crusades,  and  sAno  for  the  expedition  of  Ciiarles  of 
Anjou  against  Manfred.*  In  the  council  of  Lyon??,  held  by 
Gregory  X.  in  1274,  a  general  tax  in  the  same  proportion 
was  imposed  on  all  the  Latin  church,  for  the  pretended  pur- 
pose of  carrying  on  a  holy  war.*  * 

A  good  table.  But  Gromtete  appean  to  was  a  little  stimulated  by  personal  feel 
have  beea  imbivid  in  a  great  degree  with  Ings  for  the  abbey  of  St.  Alban's ;  and 
the  spirit  of  his  age  as  to  ecclesisstieal  the  same  remarlc  is  probably  applicable 
power,  though  unwilling  to  yield  it  up  to  his  love  of  civil  liberty, 
to  the  pope :  and  it  is  a  strange  thing  to  *  Ryxner,  t.  i.  p.  6d9,  &c.  The  sub- 
reckon  him  among  the  precursors  of  the  stance  of  English  ecclesiastical  history 
Beforroation.  M.  Paris,  p.  754'  Bering-  during  the  reigu  of  Henry  ill.  may  be 
con's  Literary  History  of  the  Middle  collected  from  Henxy,  and  still  bcttei 
Ages,  p.  878.  from  Collier. 

1  M.  Paris,  p.  613.    It  wonid  be  end-  >  Dalrymple^s  Annals  of  Scotland,  vol. 

leas  to  multiply  proofis  from  Matthew  i.  p.  179. 

Paris,  which  indeed  occur  in  almost  eyery  *  Telly,  t.  Iv.  p.  818;  t.  ▼.  p.  842  ;  t 

page.     His  laudable  seal  against  papid  tI.  p.  47. 

tyranny,    on   which    some    protestant  &  Idem,  t.  yi.  p.  808.    St.  Bfarc,  t.  r\ 

vrftexa  have  boon  so  pleased  to  dwell,  p.  847. 


16  DISAFFECTION  TOWABDS  EOMK     Chap.  VII.  Paw  U 

These  gross  inyasions  of  ecclesiastical  property,  however 
submissively  endured,  produced  a  very  general 
towards  the  disaffection  towards  the  court  of  Home.  The 
S)m6.°'  reproach  of  venality  and  avarice  was  not  indeed 
cast  for  the  first  time  upon  the  sovereign  pontiffs; 
but  it  had  been  confined,  in  earlier  ages,  to  particular  in- 
stances, not  affecting  the  bulk  of  the  catholic  church.  But, 
pillaged  upon  every  slight  pretence,  without  law  and  without 
redress,  the  clergy  came  to  regard  their  once  paternal  mon- 
arch as  an  arbitrary  oppressor.  All  writers  of  the  thirteenth 
and  following  centuries  complain  in  terms  of  unmeasured 
indignation,  and  seem  almost  ready  to  reform  the  general 
abuses  of  the  church.  They  distinguished  however  clearly 
enough  between  the  abuses  which  oppressed  them  and  those 
which  it  was  their  interest  to  preserve,  nor  had  the  least  in- 
tention of  waiving  their  own  immunities  and  authority.  But 
the  laity  came  to  more  universal  conclusions.  A  spirit  of 
inveterate  hatred  grew  up  among  them,  not  only  towards  the 
papal  tyranny,  but  the  whole  system  of  ecclesiastical  inde« 
pendence.  The  rich  envied  and  longed  to  plunder  the  estates 
of  the  superior  clergy;  the  poor  learned  from  the  Waldenses 
and  other  sectaries  to  deem  such  opulence  incompatible 
with  the  character  of  evangelical  ministers.  The  itinerant 
minstrels  invented  tales  to  satirize  vicious  priests,  which  a 
predisposed  multitude  eagerly  swallowed.  If  the  thirteenth 
century  was  an  age  of  more  extravagant  ecclesiastical  pre- 
tensions than  any  which  had  preceded,  it  was  certainly  one 
in  which  the  disposition  to  resist  tbem  acquired  greater  con- 
sistence. 

To  resist  had  indeed  become  strictly  necessary,  if  the  tem- 
poral governments  of  Christendom  would  occupy  any  better 
station  than  that  of  officers  to  the  hierarchy.  I  have  traced 
already  the  first  stage  of  that  ecclesiastical  juris- 
Mciesiuti-  diction,  which,  through  the  partial  indulgence  of 
Sctton*^  sovereigns,  especially  Justinian  and  Charlemagne, 
had  become  nearly  independent  of  the  civil  magis- 
trate. Several  ages  of  confusion  and  anarchy  ensued,  during 
which  the  supreme  regal  authority  was  literally  suspended 
in  France,  and  not  much  respected  in  some  other  countries. 
It  is  natural  to  suppose  that  ecclesiastical  jurisdiction,  so  far 
as  even  that  was  regarded  in  such  barbarous  times,  would  be 
esteemed  the  only  substitute  for  coercive  law,  and  the  best 


Booun.  PowsB.    ECCLESIASTICAL  JURISDICTION.  17 

secarity  against  wrong.  But  I  am  not  aware  that  it  extended 
itself  beyond  its  former  limits  till  about  the  beginning  of  the 
twelilh  century.  From  that  time  it  rapidly  encroached  upon 
the  secular  tribunals,  and  seemed  to  threaten  the  usurpation 
of  an  exclusive  supremacy  over  all  persons  and  causes.  The 
bishops  gave  the  tonsure  indiscriminately,  in  order  to  swell 
the  list  of  their  subjects.  This  sign  of  a  clerical  state, 
though  below  the  lowest  of  their  seven  degrees  of  ordination, 
implying  no  spiritual  office,  conferred  the  privileges  and  im- 
munities of  the  profession  on  all  who  wore  an  ecclesiastical 
habit  and  had  only  once  been  married.^  Orphans  and 
widows,  the  stranger  and  the  poor,  the  pilgrim  and  the  leper, 
under  the  appellation  of  persons  in  distress  (miserabiles  per- 
sons), came  within  the  peculiar  cognizance  and  protection  of 
the  church  ;  nor  could  they  be  sued  before  any  lay  tribunal. 
And  the  whole  body  of  crusaders,  or  such  as  merely  took 
the  vow  of  engaging  in  a  crusade,  enjoyed  the  same  cleri- 
cal privileges. 

But  where  the  character  of  the  litigant  parties  could  not, 
even  with  this  large  construction,  be  brought  within  their 
pale,  the  bishops  found  a  pretext  for  their  jurisdiction  in  the 
nature  of  the  dispute.  Spiritual  causes  alone,  it  was  agreed, 
could  appertain  to  the  spiritual  tribunal.  But  the  word  was 
indefinite ;  and  according  to  the  interpreters  of  the  twelilh 
centuiy,  the  church  was  always  bound  to  prevent  and  char^- 
tise  the  commission  of  sin.  By  this  sweeping  maxim,  which 
we  have  seen  Innocent  lU.  apply  to  vindicate  his  control 
over  national  quarrels,  the  common  differences  of  individuals, 
which  generally  involve  some  charge  of  wilful  injury,  fell 
into  the  hands  of  a  religious  judge.  One  is  almost  surprised 
to  find  tliat  it  did  not  extend  more  universally,  and  might 
praise  the  moderation  of  the  church.  Beal  actions,  or  suits 
relating  to  the  property  of  land,  were  always  the  exclusive 
province  of  the  lay  court,  even  where  a  clerk  was  the  defend- 
ant.^    But  the  ecclesiastical  tribunals  took  cognizance  of 

1  Cleriel  qtil  eum  unieii  at  Tii^nlbos  jeeted  them  married  clerks  to  taizes,  ad 

eoDtraxenrnt,  si  toiunnun  et  Testes  de-  later  ordlnanoes  of  the  French  kings  rea 

fbrant   clericales,  pririleginm  retineant  dered  them  amenable  to  temporal  juris 

pnesenti  declaramos  edicto,  hiOo^-  dicUon;  from  which,  in  Naples,  by  ra- 

,  modi  clo^cos  conjngatos  pro  comn^sis  rioos  proTlsions  of  the  Angerin  lioe,  they 

ab  lis  ezcessibos  Tel  delictis,  trahi  non  always  eontinoed  free.   Giannone,  I.  xix. 

poese  eriminaliter  aut  ciTiliter  ad  jtldl-  o.  6. 

dam  ssBColare.     Boni&cius  Octavns,  in  <  Decretal,  1.  U.  t.  11.      Ordonnanoee 

text.  Decretal.  1.  W.  tit.  il.  o.  i.  des  Rols,  t.  i.  p.  40  (a.d.  1189).    In  the 

Philip   the  Bold,  howerer,  had  sab-  conneil  of  Lambeth  in  1281  the  bishops 

VOL.  II.  —  M.  2 


y 


18  ECCLESIASTICAL  JURISDICTION    Chap.  YJL  Part  li. 

breaches  of  contract,  at  least  where  an  oath  had  been  pledg- 
ed, and  of  personal  trusts.^  Thej  had  not  only  an  exclusive 
jurisdiction  over  questions  immediately  matrimonial,  but  a 
concurrent  one  with  the  civil  magistrate  in  France,  tliough 
never  in  England,  over  matters  incident  to  the  nuptial  con- 
tract, as  claims  of  marriage  portion  and  of  dower.*^  They  took 
the  execution  of  testaments  into  their  hands,  on  account  of 
the  legacies  to  pious  uses  which  testators  were  advised  to  be 
queath.*  In  process  of  time,  and  under  favorable  circum 
stances,  they  made  still  greater  strides.  They  pretended  a 
right  to  supply  the  defects,  the  doubts,  or  the  negligence  of 
temporal  judges  ;^  and  invented  a  class  of  mixed  causes, 
whereof  the  lay  or  ecclesiastical  jurisdiction  took  possession 
according  to  priority.  Besides  this  extensive  authority  in 
civil  disputes,  they  judged  of  some  offences  which  naturally 
belong  to  the  criminal  law,  as  well  as  of  some  others  which 
participate  of  a  civil  and  criminal  nature.  Such  were  per- 
jury, sacrilege,  usury,  incest,  and  adultery ;  *  from  the  pun- 
ishment of  all  which  the  secular  magistrate  refrained,  at  least 
in  England,  after  they  had  become  the  province  of  a  sepa 
rate  jurisdiction.  Excommunication  still  continued  the  only 
chastisement  which  the  church  could  directly  inflict  But 
the  bishops  acquired  a  right  of  having  their  own  prisons 
for  lay  offenders,^  and  the  monasteries  were  the  a[)proj>riate 
prisons  of  clerks.  Their  sentences  of  excommunication  were 
enforced  by  the  temporal  magistrate  by  imprisonment  or 
sequestration  of  effects;  in  some  cases  by  confiscation  or 
death." 

claim  a  right  to  Judge  inter  clericoeflTios,  ehould  be  paDlshed  tvrlce  for  the  same 

▼el  iuter  laicoB  conquercntes  et  clericos  offunce;   therefore,  if  a  clerk  had  been 

defendentra,  in  personalibuK  actionlbas  degraded,  or  a  penance  inipofied  on  a 

super  coutrartibu8,autdelictisaut  quasi,  layman.it  was  supposed  unjust  to  pro> 

i.  e.  quasi  dilictls.  Wilkins,  Concilia,  c.  i.  cecd  against  him  in  a  temporal  court, 

p.  747.  &  Charlcmagciie  is  said  by  Giannone  to 

I  Ordonnaoces  des  Itois,  p.  81!)  (a.d.  have   permitted    the   bishops    to   have 

1290).  prisons  of  their  own.    1.  vi.  c.  7. 

»  Id.  p.  40, 121,  220,  319.  «  Giannone,  1.  xix.  c.  6,  t.  iii    Schmidt, 

s  Id.    p.  319.      GlaiiTil,  1.  vil.   c.   7.  t  iv.  p.  195;  t.  vi.  p.  1^.    Floury,  7'"* 

Sanrbo  IV'.  gave  the  mme  jurisdiction  to  Discours,  M6m.  do  TAcad.  des  In.<R  ript. 

the  clergy  ol  Castile,  Teoria  dc  but  Cortes,  t.  xxxix.   p.  603.      £cclesia«tical  juris- 

t.  iii    p.  20  ;  and  in  other  respects  fol-  diction  not  having  been  uniform  in  dif- 

lowed  the  example  of  his  fiither.  Alfonso  ferent  ages  and  countries,  it  L<i  difficult 

X.,  in    favoring   their    encroachments,  without  much  attention  to  distint^ui^^h 

The  church  of  Scotland  seems  to  have  its  general   and    permanent   attributes 

bad  nearly  the  same  jurisdiction  as  tliat  from  those  less  completely  e8t;iblu;hed. 

of    England.      Pinkerton's    History    of  Its  description,  as  given  in  the  Decretals, 

Scotland,  vol.  i.  p.  178.  lib.  li.  tit.  ii.,  De  foro  competenti,  does 

*  It  was  a  maxim  of  the  canon,  as  well  not  support  the  pretensioni*  ma>le  by  the 

M    lbs  oommou    law,  that   no   person  canoDists,  nor  come  up  to  the  sweeping 


EcCLBS.  PowBB.  AND  mMUNITT.  19 

The  clergy  did  not  forget  to  secure  along  with  this  juris- 
diction their  own  absolute  exemption  from  the  and  imma- 
criminal  justice  of  the  state.  Thi,^,  as  I  have  ^^^' 
above  mentioned,  had  been  conceded  to  them  by  Charle- 
magne;  and  this  privilege  was  not  enjoyed  by  clerkn  in 
England  before  the  conquest ;  nor  do  we  find  it  proved  by 
any  records  long  afterwards ;  though  it  seems,  by  what  we 
read  about  the  constitutions  of  Clarendon,  to  have  grown  into 
use  before  the  reign  of  Henry  11.  As  to  France  and  Ger- 
many, I  cannot  pretend  to  say  that  the  law  of  Charlemagne 
granting  an  exemption  from  ordinary  criminal  process  was 
ever  abrogated.  The  False  Decretals  contain  some  passages 
in  favor  of  ecclesiastical  inmiunity,  which  Gratian  repeats  in 
his  collection.^  About  the  middle  of  the  twelfth  century  the 
principle  obtained  general  reception,  and  Innocent  III.  de- 
cided it  to  be  an  inalienable  right  of  the  clergy,  whereof  they 
could  not  be  divested  even  by  their  own  consent.^  Much 
less  were  any  constitutions  of  princes,  or  national  usages, 
deemed  of  force  to  abrogate  such  an  important  privilege.' 
These,- by  the  canon  law,  were  invalid  when  they  affected  the 
rights  and  liberties  of  holy  church.*  But  the  spiritual  courts 
were  charged  with  scandalously  neglecting  to  visit  the  most 
atrocious  offences  of  clerks  with  such  punishment  as  they 
could  inflict.  The  church  could  always  absolve  from  her 
own  censures;  and  confinement  in  a  monastery,  the  usual 
sentence  upon  criminals,  was  frequently  slight  and  temporary. 
Several  instances  are  mentioned  of  heinous  outrages  that  re- 
mained nearly  unpunished  through  the  shield  of  ecclesiastical 
privilege.'  And  as  the  temporal  courts  refused  their  assist- 
ance to  a  rival  jurisdiction,  the  clergy  had  no  redress  for  their 
own  injuries,  and  even  the  murder  of  a  priest  at  one  time,  as 
we  are  told,  was  only  punishable  by  excommunication.' 

^nltion  of  eeeleslastlcal  JurfsdietioD  by  Buetado  regis  habeat  ut  fhres  a  Judiclbna 

Bonifiice  VIII.  In  the  Scxt.  1.  iil.  tit.  saecularibus  Judloentur.    Decretal.  1.  i. 

xziH.  c.  40,  dre  ambn  partes  hoc  Tola-  tit.  i.  e.  8. 

•rlut,  slve  ana  saper  causis  ecdesiasticls,  *  Deeret.  dbtlnct.  96. 

•Ive  qofD  ad  fontm  eceleslasticum  ratSone  ^  Collier,  rol.   I.   p.  861.     It  is   laid 

persoDarum,  negotlornm,  Tel  reram  de  down  In  the  canon  laws  that  a  layman 

Jure  T«l  de  antique  consuetudine  perti-  cannot  be  a  witnenn  in  a  criminal 


nere  nomuntur.  agiiinitt  a  clerk.    Decretal.  1.  il.  tit.  xz. 

»  Pleury,  7««»e  Discowrs.  c.  14. 

>  Id.    Institutions  au  Droit  Ecclte.  t.        •  Lyttvlton's  Henry  TI.,  toI.  iil.  p.  832. 

li.  p.  8.  This  must  be  restricted  to  that  period  of 

s  In  orimlnalibas  caasls  in  nnllo  casa  open  hostility  between  the  church  and 

poesunt  clericl  ab  aliquo  qukm  ab  cede-  state, 
ifastico  Judice  coodemnari,  etiamsl  con- 


20.  ENDEAVORS  TO  REPRESS    Chap.  VH.  Part  H. 

Such  an  incoherent  medley  of  laws  and  magistrates,  upon 
BadeaTor.  *^®  Symmetrical  arrangement  of  which  all  social 
madrto  n-  economy  mainly  depends,  could  not  fail  to  produce 
ISckiixd"  *  violent  collision.  Every  sovereign  was  inter- 
ested in  vindicating  the  authority  of  the  constitu- 
tions which  had  been  formed  by  his  ancestors,  or  by  the  people 
whom  he  governed.  But  the  first  who  undertook  this  arduous 
work,  the  first  who  appeared  openly  against  ecclesiastical^ 
tyranny,  was  our  Henry  11.  The  Anglo-Saxon  church,  not 
so  much  connected  as  some  others  with  Rome,  and  enjoying  a 
sort  of  barbarian  immunity  from  the  thraldom  of  canonical 
discipline,  though  rich,  and  highly  respected  by  a  devout  na- 
tion, had  never,  perhaps,  desired  the  thorough  independence 
upon  secular  jurisdiction  at  which  the  continental  hierarchy 
aimed^  William  the  Conqueror  first  separated  the  ecclesias- 
tical from  the  civil  tribunal,  and  forbade  the  bishops  to  judge 
of  spiritual  causes  in  the  hundred  court.^  His  language  is, 
however,  too  indefinite  to  warrant  any  decisive  proposition  as 
to  the  nature  of  such  causes ;  probably  they  had  not  yet  been 
carried  much  beyond  their  legitimate  extent.  Of  clerical  ex- 
emption from  the  secular  arm  we  find  no  earlier  notice  than, 
in  the  coronation  oath  of  Stephen ;  which,  though  vaguely 
expressed,  may  be  construed  to  include  it.^  But  I  am  not 
certain  that  the  law  of  England  had  unequivocally  recognized 
that  claim  at  the  time  of  the  constitutions  of  Clarendon.  It 
was  at  least  an  innovation,  which  the  legislature  might  with- 
out scruple  or  transgression  of  justice  abolish.  Henry  II.,  in 
that  famous  statute,  attempted  in  three  respects  to  limit  the 
jurisdiction  assumed  by  the  church;  asserting  for  his  own 
judges  the  cognizance  of  contracts,  however  confirmed  by 
oath,  and  of  rights  of  advowson,  and  also  that  of  ofiences 
committed  by  clerks,  whom,  as  it  is  gently  expressed,  afler 

1  T7t  nullus  episcopiui  Tel  archidiaco-  but  apparentlj  with  little  effect.    The 

nns  de  legibua  epiaeopalibuB  amplios  In  separation  of  the  civil  and  eocleeiastical 

Hundret  placita  tene&nt,  neccauninquM  tribunals  was  not  made  in  Denmark  till 

ad  regimen  animarum  pertinet,  ad  ju-  the  reign  of  Nicholas,  who  ascended  the 

dicium  889culariam  honunum  addueant.  throne  in  1106.    Lai^pebek,  Script.  Rer. 

WilkiDP,  Leges  Anglo-Saxon.  230.  Danio.  t.  It.  p.  880.    Others  refer  the 

Before  the  conquest  the  bishop  and  law  to  St.  Canut,  i^nt  1080.    t.  ii.  p. 

earl  sat  tt^ther  in  the  court  of  the  209. 

ooanty  or  hundred,  and,  as  we  may  in-  *  Eoclesfastieamm  personamm  et  om- 

fer  from  the  tenor  of  this  charter,  eccle-  ninm  olerieornm,  et  rerum  eorum  Jas- 

siastical  matters  were  decided  loosely,  tltiam  et  potestatem,  et  distributionem 

and  rather  by  the  common  law  than  ao-  honorum  ecclesiasticornm,  in  mann  epis* 

cording  to  the  canons.     This   practice  coporumesse  perhibeo,  etconflrmo.   \Vil 

had  l^n   already  forbidden   by   some  kins,  Leges  Anglo-Sajcon.  p.  810. 
eaorn*  enacted  under  Edgar,  id.  p.  88. 


E^c.LEs.  Power.    ECCLESUSTICAL  JURISDICTION.  21 

connction  or  confession  the  church  ought  not  to  protect.' 
These  constitutions  were  the  leading  subject  of  difference 
between  the  king  and  Thomas  a  Bccket.  Most  of  them  were 
annulled  by  the  pope,  as  derogatoiy  to  ecclesiastical  liberty. 
It  is  not  improbable,  however,  that,  if  Louis  VII.  had  played 
a  more  dignified  part,  the  see  of  Rome,  which  an  existing 
schism  rendered  dependent  upon  the  favor  of  those  two  moii- 
archs,  might  have  receded  in  some  measure  from  her  preten- 
sions. But  France  implicitly  giving  way  to  the  encroachments 
of  ecclesiastical  power,  it  became  impossible  for  Henry  com- 
pletely  to  withstand  them. 

The  constitutions  of  Clarendon,  however,  produced  some 
effect,  and  in  the  reign  of  Henry  HI.  more  unremitted  and 
successful  effoilB  began  to  be  made  to  maintain  the  indepen- 
dence of  temporal  government.  The  judges  of  the  king's 
court  had  until  that  time  been  themselves  principally  ecclesi- 
astics, and  consequently  tender  of  spiritual  privileges.^  But 
now,  abstaining  from  the  exercise  of  temporal  jurisdiction,  in 
obedience  to  the  strict  injunctions  of  their  canons,'  the  clergy 
gave  place  to  common  lawyers,  professors  of  a  system  very 
discordant  from  their  own.  These  soon  began  to  assert  the 
supremacy  of  their  jurisdiction  by  issuing  writs  of  prohibition 
whenever  the  ecclesiastical  tribunals  passed  the  boundaries 
which  approved  use  had  established.^  Little  accustomed  to 
such  control,  the  proud  hierarchy  chafed  under  the  bit ;  several 
provincial  synods  protest  against  the  pretensions  of  laymen  to 
judge  the  anointed  ministers  whom  they  were  bound  to  obey;' 
the  cognizance  of  rights  of  patronage  and  breaches  of  con- 
tract is  boldly  asserted ;'  but  firm  and  cautious,  favored  by  the 
nobility,  though  not  much  by  the  king,  the  judges  receded 
not  a  step,  and  ultimately  fixed  a  barrier  which  the  church 
was  forced  to  respect.^    In  the  ensuing  reign  of  Edward  L, 

1  WIUdDf,  Legal  Anglo-Saxon,  p.  8S28 ;  the  Ibrm  of  a  mrlt  of  prohibition  to  the 

Lc^ttelton's  Henrv  n. ;  Collier,  &c.  spiritual  eonrt  for  inquiring  de   ftodo 

>  Dngdale's  Or^nee  Juridiealee,  e.  8.  laico ;  for  it  liad  Jurisdiction  orer  lands 

s  Decretal.  I.  i.  tit.  xxxrii.  o.  1.    WU-  in  ftankalmoign.   This  is  comformable  to 

kins.  Concilia.  1. 11.  p.  4.  the  oonstitntions  of  Clarendon,  and  shows 

*  Prynne   nas   produced  sereral  ex-  that  they  were  still  in  force.    See  also 

tracts  ftom  the  pipe-rolls  of  Henry  II.,  Lyttelton's  Hedry  II.,  toI.  ill.  p.  07. 

whexe  a  person  has  been  fined  quia  placi-  *  Cum  Jndicandi  Chrtotos  domini  nulla 

tavit  de  laioo  feodo  in  curiA  christiani-  sit  laids  attributa  potestas,  apud  quos 

tads.    And  a  bishop  of  Durham  is  fined  manet  necessitas  obsequendi.    WUkJUui| 

ftTe  hundred  marks  quia  tenuitplacitum  Concilia.  1. 1.  p.  747. 

de advoeeuiofu  a^usdam  §eeUsia  in  euitt  *  Id.  iirfd. :  et  t.  il.  p.  00. 

•hiistlanltatls.     Bpistle    dedicatory   to  T  Vide  Wllkins,  Concilia,  t  tt.  passfan. 
Piyuia's  Bcoords,  toI.  ill.    QlaaTil  glTst 


22  ECCLESIASTICAL  JURISDICTION.    Chap.  VIL  Part  U. 

an  archbishop  acknowledges  the  abstract  right  of  the  king's 
bench  to  issue  prohibitions;^  and  the  statute  entitled  Circum- 
specte  agatis,  in  the  thirteenth  year  of  that  prince,  while  by 
its  mode  of  expression  it  seems  designed  to  guai*antec  the 
actual  privileges  of  spiritual  jurisdiction,  had  a  tendency, 
especially  with  the  disposition  of  the  judges,  to  preclude  the 
assertion  of  some  which  are  not  therein  mentioned.  Neither 
the  right  of  advowson  nor  any  temporal  contract  is  specified 
in  this  act  as  pertaining  to  the  church ;  and  accordingly  the 
temporal  courts  have  ever  since  maintained  an  undisputed 
jurisdiction  over  them.^  They  succeeded  also  partially  in 
preventing  the  impunity  of  crimes  perpetrated  by  clerks.  It 
was  enacted  by  the  statute  of  Westminster,  in  1275,  or  rather 
a  construction  was  put  upon  that  act,  wliich  is  obscurely  worded, 
that  clerks  indicted  for  felony  should  not  be  delivered  to  their 
ordinary  until  an  inquest  had  been  taken  of  the  matter  of  ac- 
cusation, and,  if  they  were  found  guilty,  that  their  real  and 
personal  estate  should  be  forfeited  to  the  crown.  In  later 
times  the  clerical  privilege  was  not  allowed  till  the  party  had 
pleaded  to  the  indictment,  and  being  duly  convict,  as  is  the 
practice  at  present* 

The  civil  magistrates  of  France  did  not  by  any  means 
Less  rittof  ^^^^t  thcmsclves  so  vigorously  for  their  emancipa< 
oiuin  tion.      The   same   or  rather   worse    usurpations 

Prance.  existed,  and  the  same  complaints  were  made, 
under  Philip  Augustus,  St.  Louis,  and  Philip  the  Bold ;  but 

1  Licet  prohibltiones  hujusmodl  a  enrii  had  no  Jarisdiction  at  all,  eren  where  un 

christianiMimi  r^s  nostri  Justi  procul-  oath  had  intervened,  unless  there  was  a 

dttblo,  ut   diximns.  concedantur.     Id.  deficiency  of  proof  by  writing  or  wit- 

t.  ii.  p.  100  and  p.  115.  nesses.    Glanril,  1.  z.  c.  12 ;  ^nstitut. 

*  The  statute  Circumspect^  agatis,  for  Clarendon,  art.  15. 

it  is  acknowledged  as  a  statute,  though  *  2  Inst.  p.  163.     This  is  not  likely 

not  drawn  up  in  the  form  of  one.  is  to  mislead  a  well-infonned  reader,  but 

foundeiTnpon  an  answer  of  Edward  I.  to  it  ought,  perhaps,  to  be  mentioned  that 

the  prelates  who  had  petitioned  for  some  by  the  ''clerical  privilege  "  we  are  only 

modification    of    prohibitions.     Collier,  to  understand  what  is  called  benefit  of 

always  prone  to  exaggerate  church  au-  clergy,  wbich  in  fkct  is,  or  rather  waa 

thority,  insinuates  that  the  juriiidiction  till  recent  alterations  of  the  law  since  thtt 

of  the  spiritual  court  over  breaches  of  first  edition  of  this  work,  no  more  than 

contract,  even  without  oath,  is  preserved  the  remission  of  capital  punishment  fbt 

by  this  statute;   but  the  express  words  the  first  conviction  of  felony,  and  thai 

of  the  king  show  that  none  whatever  was  not  for  the  clergy  alone,  but  for  all  cul 

intended,  and  the  archbishop  complains  prits  alike.    They  were  not  called  upon 

bitterly  of  it  afterwards.     Wilkins,  Con-  at  any  time,   I  believe,  to  prove  their 

cilia,  t.  ii.  p.  118.    Collier's  £ccl(#iast.  claim  as  clergy,  except  by  reading  tb« 

History,  vol.  i.   p.  487.      So   far   from  neck-versr  after  trial  and  conviction  in 

having  any  cognizance  of  civil  contracts  the  king's  court.     They  were  then  io 

not  confirmed  by  oath,  to  which  I  am  strictness  to  be  committed  to  the  ordl- 

not  certain  that  the  church  ever  pre-  nary  or    ecclesiastical    superior,  whio^ 

tended  in  any  country,  the  spiritual  court  probably  waa  not  oftan  dona. 


ECCLBS.  FowKR.      ALIENATIONS  IN  MORTMAIN.  28 

the  laws  of  those  sovereigns  tend  n^ch  more  to  confirm  than 
to  restrain  ecclesiastical  encroachments.^  Some  limitations 
were  attempted  bj  the  secular  courts ;  and  an  historian  gives 
ns  the  terms  of  a  confederacy  among  the  French  nobles  in 
1246,  binding  themselves  by  oath  not  to  permit  the  spiritual 
judges  to  take  cognizance  of  any  matter,  except  heresy,  mar- 
riage, and  usury .^  Unfortunately  Louis  IX.  was  almost  aa 
little  disposed  as  Henry  III.  to  shake  off  the  yoke  of  ecclesi- 
astical dominion.  But  other  sovereigns  in  the  same  period, 
from  various  motives,  were  equally  submissive.  Frederic  11. 
explicitly  adopts  the  exemption  of  clerks  from  criminal  as 
well  as  civil  jurisdiction  of  seculars.'  And  Alfonso  X.  intro- 
duced the  same  system  in  Castile ;  a  kingdom  where  neither 
the  papal  authority  nor  the  independence  of  the  church  had 
obtained  any  legal  recognition  until  the  promulgation  of  his 
code,  which  teems  with  all  the  principles  of  the  canon  law.* 
It  is  almost  needless  to  mention  that  all  ecclesiastical  powers 
and  privileges  were  incorporated  with  the  jurisprudence  of 
the  kingdom  of  Naples,  which,  especially  a^er  the  accession 
of  the  Angevin  line,  stood  in  a  peculiar  relation  of  depend* 
ence  upon  the  Holy  See.* 

The  vast  acquisitions  of  landed  wealth  made  for  many 
ages  by  bishops,  chapters,  and  monasteries,  began  Restraints 
at  length  to  excite   the  jealousy  of  sovereigns.  ?ioM*!n*' 
They  perceived  that,  although  the  prelates  might  mortmain. 
send  their  stipulated  proportion  of  vassals  into  the  field,  yet 
there  could  not  be  that  active  cooperation  which  the  spirit 
of  feudal  tenures  required,  and  that  the  national  arm  waA 
palsied  by  the  diminution  of  military  nobles.     Again  the  re- 

1  It  seems  deducible  from  »  law  of  Droit  Eccl.  Fran^.  t.  i.  '\>•^S^^.  A  soon- 
Philip  Aagustns,  Ordonnances  des  Hois,  oil  at  Boorges,  hold  in  1276  had  so  abso- 
t.  i.  p.  89,  that  a  clerk  oonvicted  of  some  lately  condemned  all  interference  of  the 
heinous  offences  might  be  capitally  pun-  secular  power  with  clerks  that  the  king 
ished  after  degradation :    yet  a  subse-  was  obliged  to  solicit  this  moderate  &- 

auent   ordinance,  p.    48,   renders   this  Tor.    p.  421. 

oubtftil:  and  the  theory  of  clerical  im-  <  Marina,  Ensayo  HIstorico-Critico  so- 

m unity  became  afterwards  more  folly  bre  las  Siete  Partidas,  c.  820,  &c.  Hist, 

established.  du  Droit  Eccl68.  Fran^.  1. 1.  p.  442. 

*  llatt.  Paris,  p.  G29.  ^  Qiannone,  1.  xlx.  o.  t.  ;  1.  xx.  o.  8. 

s  Statuimns,  ut  nullus  ecelodasticam  One  provision  of  Robert  king  of  Naples 

perAonam,  in   criminali    quiostione  rel  is  remarkable :  it  extends  the  immunity 

elTiii.  trahero  ad  judicium  ssrulare  pr»-  of  clerks  to  their  eoneubinrs.    Ibid, 

sumat.    Ordonnanceit  dts  KoisdeFmnce,  Villani  Btronglv  centiurcs  a  law  made 

t.  i.  p.  611,  where   thin  edict  is  recited  at  Florenre  in  1345,   caking  away   the 

and  approved  by  I^uis  Uutiu.    Philip  personal  immunity  of  clerks  in  criminal 

the  Bold  had  obtained  leave  from  the  canes.     Though   the  state   could  mak« 

pope  to  arrest  clerks  accused  of  heinous  such  a  law,  he  sayn,  it  had  no  right  to  d« 

crimes,  on  condition  of  remitting  them  so  against  the  liberties  of  holy  ohorobt 

to  the  bishop's  eourt  fbr  trial.    Hist,  da  1.  xii.  c.  48. 


24  BONIFACE  Vm.  Chap.  VII.  Part  IL 

Liefs  upon  succession,  and  similar  dues  upon  alienation,  inci- 
dental to  fiefs,  were  entirely  lost  when  they  came  into  the 
hands  of  these  undying  corporations,  to  the  serious  injury  of 
the  feudal  superior.  Nor  could  it  escape  reflecting  men, 
during  the  contest  about  investitures,  that,  if  the  church  per- 
emptorily denied  the  supremacy  of  the  state  over  her  tem- 
poml  wealth,  it  was  but  a  just  measure  of  retaliation,  or  rather 
self-defence,  that  the  state  should  restrain  her  further  acquisi- 
tions. Prohibitions  of  gifls  in  mortmain,  though  unknown  to 
the  lavish  devotion  of  the  new  kingdoms,  had  been  establish- 
ed by  some  of  the  Roman  emperors  to  check  the  overgrown 
wealth  of  the  hierarchy.^  The  first  attempt  at  a  limitation 
of  this  description  in  modem  times  was  made  by  Frederic 
Barbarossa,  who,  in  1158,  enacted  that  no  fief  should  be 
transferred,  either  to  the  church  or  otherwise,  without  the 
permission  of  the  superior  lord.  Louis  IX.  inserted  a  pro- 
vision of  the  same  kind  in  his  Establishments.'  Castile  had 
also  laws  of  a  similar  tendency.'  A  license  from  the  crown 
is  said  to  have  been  necessary  in  England  before  the  con- 
quest for  alienations  in  mortmain ;  but  however  that  may  be, 
there  seems  no  reason  to  imagine  that  any  restraint  was  put 
upon  them  by  the  common  law  before  Magna  Charta;  a 
clause  of  which  statute  was  construed  to  prohibit  all  gift?  to 
religious  houses  without  the  consent  of  tie  lord  of  the  fee. 
And  by  the  7th  Edward  I.  alienations  in  mortmain  are  abso- 
lutely taken  away ;  though  the  king  might  always  exercise 
his  prerogative  of  granting  a  license,  which  was  not  supposed 
to  be  affected  by  the  statute.* 

It  must  appear,  I  think,  to  every  careful  inquirer  that  the 
BonUkoe  papal  authority,  though  manifesting  outwardly 
^^^'-  more  show  of  strength  every  year,  had  been  se- 

cretly undermined,  and  lost  a  great  deal  of  its  hold  upon 
public  opinion,  before  the  accession  of  Boniface  YIII.,  in 
1294,  to  the  pontifical  throne.  The  clergy  were  rendered 
BuUen  by  demands  of  money,  invasions  of  the  legal  right  of 
patronage, .  and  unreasonable  partiality  to  the  mendicant 
orders ;  a  part  of  the  mendicants  themselves  had  begun  to 

1  Giannone,  1.  W.  >  Marina,  Bnaayo  fobn  las  Sete  Pif^ 

s  Ordonnances  des  Rols,  p.  218.    See,  tidas,  e.  285. 

too,  p.  808  and  aUbi.    Da  Oabge,  ▼.  M»-  *  2  Inst.  p.  74.    BlacksUmo,  TQl.  tt. 

nils  morta.    Amortissiment^  la  Denisart  o.  18. 
and  other  French  law-books.     Tleury, 
lostit.  au  Droit,  1. 1.  p.  8fi0. 


BooLBfl.  PowxB.  BONIFACE  YIIL  25 

dedaim  against  the  corruptions  of  the  papal  court ;  while  the 
laitj,  subjects  alike  and  sovereigns,  looked  upon  both  the 
head  and  the  members  of  the  hierarchy  with  jealousy  and 
dislike.  Boniface,  full  of  inordinate  arrogance  and  ambition, 
and  not  sufficiently  sensible  of  this  gradual  change  in  human 
opinion,  endeavored  to. strain  to  a  higher  pitch  the  despotic 
pretensions  of  former  pontiffs.  As  Gregory  YII.  appears 
the  most  usurping  of  mankind  till  we  read  the  history  of  In- 
nocent III.,  so  Innocent  III.  is  thrown  into  shade  by  the  su- 
perior audacity  of  Boniface  VIU.  But  independently  of  the 
less  favorable  dispositions  of  the  public,  he  wanted  the  most 
essential  quality  for  an  ambitious  pope,  reputation  for  integ- 
rity. He  was  suspected  of  having  procured  through  fraud 
the  resignation  of  his  predecessor  Celestine  Y.,  and  his  harsh 
treatment  of  that  wortiiiy  man  aflerwards  seems  to  justify  the 
reproach.  His  actions,  however,  display  the  intoxication  of 
extreme  self-confidence.  If  we  may  credit  some  historians, 
he  appeared  at  the  Jubilee  in  1300,  a  festival  successfully  in- 
stituted by  himself  to  throw  lustre  around  his  court  and  fill 
his  treasury,^  dressed  in  imperial  habits,  with  the  two  swords 
borne  before  him,  emblems  of  his  temporal  as  well  as  spirit- 
yal  dominion  over  the  earth.^ 

It  was  not  long  after  his   elevation  to  the  pontificate 
before  Boniface  displayed  his  temper.     The  two  m  diro  *« 
most  powerful  sovereigns  of  Europe,  Philip  the  with  the™ 
Fair  and  Edward  I.,  began  at  the  same  moment  ^°g^^ 
to  attack  in  a  very  arbitrary  manner  the  revenues 
of  the  church.     The  English   clergy   had,   by   their  own 
voluntary  grants,  or  at  least  those  of  the  prelates  in  their 
name,  paid  frequent  subsidies  to  the  crown  from  the  begin- 
ning of  the  reign  of  Henry  III.    They  had  nearly  in  effect 
waived  the  ancient  exemption,  and  retained  only  the  com- 
mon privilege  of  English  freemen  to  tax  themselves  in  a  con 

1  nie  JabUee  was  %  eentenarj  cony-  rastellos,  nutollantes  peeuntem  inflnlbun. 

aftimoniHoo  in  honor  of  St.  Peter  and  Anetor  apud  Muratori,  Annall  d'  Italia. 

8t.  Paul,  eatabliabed  by  Bonifitee  VIII.  Plenary  indulgencea  were   granted    by 

on  the  Iklth  of  an  Imaginary  precedent  a  Boniiace  to  all  who  ahould  keep  tbctr 

eentnry  before.     The  period  was  soon  jabilee  at  Ronie.  and  I  suppose  are  still 

xeduced  to  fifty  years,  and  from  thence  to  to  be  had  on  tbe  same  terms.    Hatteo 

twenty-fiTOf  as  it  still  eontinues.    The  Villani  gires  a  enrions  account  of  the 

eourt  of  Home,  at  tbe  next  Jubilee,  will  throng  at  Rome  in  1860. 
bowerer  read  with  a  sigh  the  description       *  Qiannone,  1.  xxi.  c.  8.    Velly,  t.  tU. 

plTen  of  that  in  1800.    Papa  innumera*  p.  1^.    I  have  not  obserred  any  good 

bilem  peenniam  ab  iisdem  recepit.,  quia  authority  reibrred  te  for  this  Ibot,  whicb 

4lUe  et  Docte  dno  elerici  stabant  ad  altare  is  howerer  in  the  ehaxaeter  of  Boni&oa 
sancti  Paull,  tenentM  in  eonun  manibus 


26  DISPUTES  OF  BONIFACE  YUL   Chap  VH.  Part  IL 

Btitutional  manner.  But  Edward  I.  came  upon  them  with 
demands  so  frequent  and  exorbitant,  that  they  were  compel- 
led to  take  advantage  of  a  bull  issued  by  Boniface,  forbidding 
them  to  pay  any  contribution  to  the  state.  The  king  disre- 
garded every  pretext,  and,  seizing  their  goods  into  his  hands, 
with  other  tyrannical  proceedings,  ultimately  forced  them  to 
acquiesce  in  his  extortion.  It  is  remarkable  that  the  pope 
appears  to  have  been  passive  throughout  this  contest  of 
Edward  I.  with  his  clergy.  But  it  was  far  otherwise  in 
and  of  France.     Philip  the  Fair  had  imposed  a  tax  on 

France.  ^]^g  ecclesiastical  order  without  their  consent,  a 
measure  perhaps  unprecedented,  yet  not  more  odious  than 
the  similar  exactions  of  the  king  of  England.  Irritated  by 
some  previous  differences,  the  pope  issued  his  bull  known  by 
the  initial  words  Clericis  laicos,  absolutely  forbidding  the 
clergy  of  every  kingdom  to  pay,  under  whatever  pretext  of 
voluntary  grant,  gift,  or  loan,  any  sort  of  tribute  to  their 
government  without  his  special  permission.  Though  France 
was  not  particularly  named,  the  king  understood  himself  to 
be  intended,  and  took  his  revenge  by  a  prohibition  to  export 
money  from  the  kingdom.  This  produced  angry  remon- 
strances on  the  part  of  Boniface ;  but  the  Galilean  church 
adhered  so  faithfully  to  the  crown,  and  showed  indeed  so 
much  willingness  to  be  spoiled  of  their  money,  that  he  could 
not  insist  upon  the  most  unreasonable  propositions  of  his  bull, 
and  ultimately  allowed  that  the  French  clergy  might  assist 
their  sovereign  by  voluntary  contributions,  though  not  by 
way  of  tax. 

For  a  very  few  years  after  these  circumstances  the  pope 
and  king  of  France  appeared  reconciled  to  each  other ;  and 
the  latter  even  referred  his  disputes  with  Edward  I.  to  the 
arbitration  of  Boniface,  "  as  a  private  person,  Benedict  of 
Graeta  (his  proper  name),  and  not  as  pontiff;"  an  almost  nu- 
gatory precaution  against  his  enciXMiohment  upon  temporal 
authority.^     But  a  terrible  storm  broke  out  in  the  first  j  ear 

1  Walt.  TIcmlngford,  p.  150.  The  award  to  follow  common  &me  ;  but  Vellj  haa 

of  Boniface,  which  he  expresses  himself  repeated  mere  falnehoods  from  Mexemy 

to  make  both  tm  pope  and  Benedict  of  and   Baillet,  while  he  refers   to  the  in- 

Oaeta.  is  published  in  Kymer,  t.  li.  p.  819,  8trum«nt  itsHulf  in    Kymer,  wliicb  dis- 

and   is    Tery  equitable.      Nevertheless,  prores  them.    Hist,   de  France,  t.   Til. 

the  ftench  historians  agreed  to  charge  ]>.  139.     M.  Qaillanl,  one  of  the  moet 

him    with    partiality  towards    Edward,  candid  critics  in  his^tory  that  Fmnce  eTer 

and  mention  sereml  proofs  of  it,  which  produced,  pointed  out  the  errtT  of  her 

Ao  not  appear  in  the  bull  itself.  Prerious  common  hii^torinu^  in  the  Mem.  <lc  TAca* 

to  Its  pablkation  it  was  allowable  enough  demie  dee  Inscriptions,  t.  xxxiz.  p.  612 ; 


JSOGLBS.  PowBB.    WITH  ENGLAND  AND  FRANCE.  27 

of  the  fourteenth  century.  A  bishop  of  Pamiers,  who  had 
been  sent  as  legate  from  Boniface  ivith  some  complaint,  dis- 
plajed  so  much  insolence  and  such  disrespect  towards  the 
kiug,  that  Philip,  considering  him  as  his  own  subject,  was 
provoked  to  put  him  under  arrest,  with  a  view  to  institute  a 
criminal  process.  Boniface,  incensed  beyond  measure  at  this 
violatioQ  of  ecclesiastical  and  legatine  privileges,  publbhed 
several  bulk  addressed  to  the  king  and  clergy  of  France, 
charging  the  former  with  a  variety  of  offences,*  some  of  them 
not  at  all  concerning  the  church,  and  commanding  the  latter 
to  attend  a  council  which  he  had  summoned  to  meet  at  Rome* 
In  one  of  these  instruments,  the  genuineness  of  which  does 
not  seem  liable  to  much  exception,  he  declares  in  concise 
and  clear  terms  that  the  king  was  subject  to  him  in  temporal 
as  well  as  spiritual  matters.  This  proposition  had  not  hitherto 
been  explicitly  advanced,  and  it  was  now  too  late  to  adyanc^ 
it.  Philip  replied  by  a  short  letter  in  the  rudest  language, 
and  ordeied  his  bulls  to  be  publicly  burned  at  Paris.  Deter- 
mined, however,  to  show  the  real  strength  of  his  opposition, 
he  summoned  representatives  from  the  three  orders  of  his 
kingdom.  This  is  commonly  reckoned  the  first  assembly  of 
the  States  Greneral.  The  nobility  and, commons  disclaimed 
with  firmness  the  temporal  authority  of  the  pope,  and  con 
yeyed  their  sentiments  to  Rome  through  letters  addressed  to 
the  college  of  cardinals.  The  clergy  endeavored  to  steer  a 
middle  course,  and  were  reluctant  to  enter  into  an  engage- 
ment not  to  obey  the  pope*s  summons;  yet  they  did  not 
hesitate  unequivocally  to  deny  his  temporal  jurisdiction. 

The  council,  however,  opened  at  Rome ;  and  notwithstand- 
ing the  king's  absolute  prohibition,  many  French  prelates 
held  themselves  bound  to  be  present.  In  this  assembly  Boni- 
face promulgated  his  famous  constitution,  denominated  Unam 
Banctam.  The  church  is  one  body,  he  therein  declares,  and 
has  one  head.  Under  its  command  are  two  swords,  the  one 
spiritual,  and  the  other  temporal ;  that  to  be  used  by  the 
supreme  pontiff  himself;  this  by  kings  and  knights,  by  liis 
license  and  at  his  will.  But  the  lesser  sword  must  be  subject 
to  the  greater,  and  the  temporal  to  the  spiritual  authority. 
He  concludes  by  declaring  the  subjection  of  every  human 
being  to  the  see  of  Rome  to  be  an  article  of  necessary  faith.^ 

and  tiie  adifeon  of  L^Art  ds  T«rlfl«r  1m       i  Utorqne  eat  In    potiwtate  ecclMits 
Vttm  liftTe  ftlao  xwtifl9d  It.  •plrlteUt  aclUoet  sladiitf  ct  matorialia 


28  DISPUTES  OF  BONIFACE  VUL    Chap.  VH.  Part  H. 

Another  bull  pronounces  all  persons  of  whatever  rank  obliged 
to  appear  when  personally  cited  before  the  audience  or  apos- 
tolical tribunal  at  Rome ;  ^^  since  such  is  our  pleasure,  who, 
by  divine  permission,  rule  the  world."  Finally,  as  the  rup- 
ture with  Philip  grew  more  evidently  irreconcilable,  and  the 
measures  pursued  by  that  monarch  more  hostile,  he  not  only 
excommunicated  him,  but  offered  the  crown  of  France  to  the 
emperor  Albert  I.  This  arbitrary  transference  of  kingdoms 
was,  like  many  other  pretensions  of  that  age,  an  improvement 
upon  the  right  of  deposing  excommunicated  sovereigns. 
Gregory  VII.  would  not  have  denied  that  a  nation,  released 
by  his  authority  from  its  allegiance,  must  reenter  upon  its 
original  right  of  electing  a  new  sovereign.  But  Martin  IV. 
had  assigned  the  crown  of  Aragon  to  Charles  of  Yalois ;  the 
first  instance,  I  think,  of  such  an  usurpation  of  power,  but 
which  was  defended  by  the  homage  of  Peter  II.,  who  had 
rendered  his  kingdom  feudally  dependent,  like  Naples,  upon 
the  Holy  See.^  Albert  felt  no  eagerness  to  realize  the  liberal 
promises  of  Boniface ;  who  was  on  the  point  of  issuing  a  bull 
absolving  the  subjects  of  Philip  from  their  allegiance,  and 
declaring  his  forfeiture,  when  a  very  unexpected  circumstance 
interrupted  all  his  projects. 

It  is  not  surprising,  when  we  consider  how  unaccustomed 
men  were  in  those  ages  to  disentangle  the  artful  sophisms, 
and  detect  the  falsehoods  in  point  of  fact,  whereon  the  papal 
supremacy  had  been  established,  that  the  king  of  France 
should  not  have  altogether  pursued  the  course  most  becoming 
his  dignity  and  the  goodness  of  his  cause.  He  gave  too  much 
tlie  air  of  a  personal  quarrel  with  Boniface  to  what  should 
have  been  a  resolute  opposition  to  the  despotism  of  Rome. 

Sed  is  qoldem  pro  eccled&,  ille  yero  ab  the  king  or  his  lawful  issae,  if  he  should 

eoclerii  ezercendus:  ille   sacerdotis.  is  have  any ,  of  the  kingdom.    But  this  iraa 

manu  regum  ac  militam,  sed  ad  nutnm  fonnded  on  the  request  of  the  Portuguese 

et  patlentiam  sacerdotis.    Oportet  autem  nobility  themselTes,  who  were  dissatis- 

gladium  esse  sub  gladio,  et  temporalem  fled  with  Sancho's  administration.  Sext. 

auctoritatem  spiritall  subjici  iratestoti.  Decretal.  1.  i.  tit.  viii.  o.  2.    Art  de  T^ri 

Porro  subesse   Romano    pontifici  omni  fler  les  Dates,  t.  i.  p.  778. 
humansB  creatnrss  declaramus,  dicimus,       Boui&ce  inrested  James  IT.  of  Aragon 

deflnimus  et  pronundamus  omnino  esse  with  the  crown  of  Sardinia,  over  which, 

de  necessitate  fldei.     BxtraTagant.  1.  i.  howorer,  the  see  of  Rome  bad  always 

tit.  viii.  e.  1.  pretanded  to  a  superiority  by  virtue  ot 

1  Innocent  IV.  had,  however,  in  1245,  the   concession  (probably  spnrloua)  of 

appointed  one  Bolon,  brother  to  Sancho  Louis  the  Debonair.    Ue  promised  Fred- 

11.,  king  of  Portugal,  to  be  a  sort  of  co-  eric  king  of  Sicily  the  empire  of  Con- 

adjutor  in  the  government  of  that  king-  stantlnople,  which,  I  suppom,  was  not  a 

dom,  ei\}oining  the  barons  to  honor  him  flef  of  the  Holy  See.    Giannone,  L  xxi. 

as  their  soveieign,  at  the  same  time  de-  o.  8 
flaring  that  he  did  not  intend  to  deprive 


RccLES.  PowKB.     DECLINE  OF  THE  PAPACY.  29 

Accordingly,  in  an  assembly  of  his  states  at  Paris,  he  pre- 
fei^d  virulent  charges  against  the  pope,  denying  him  to  have 
been  legitimately  elected,  imputing  to  him  various  heresies, 
and  ultimately  appealing  to  a  general  council  and  a  lawful 
head  of  the  church.  These  measures  were  not  very  happily 
planned ;  and  experience  had  always  shown  that  Europe 
would  not  submit  to  change  the  common  chief  of  her  religion 
for  the  purposes  of  a  single  sovereign.  But  Philip  succeeded 
in  an  attempt  apparently  more  bold  and  singular.  Nogaret, 
a  minister  who  had  taken  an  active  share  in  all  the  proceed- 
ings against  Boniface,  was  secretly  despatched  into  Italy,  and, 
joining  with  some  of  the  Colonna  family,  proscribed  as  Ghib- 
elinsy  and  rancorously  persecuted  by  the  pope,  arrested  him 
at  Anagnia,  a  town  in  the  neighborhood  of  Rome,  to  which 
he  had  gone  without  guards.  This  violent  action  was  not, 
one  would  imagine,  calculated  to  place  the  king  in  an  advan- 
tageous light ;  yet  it  led  accidentally  to  a  favorable  termination 
of  his  dispute.  Boniface  was  soon  rescued  by  the  inhabitants 
of  Anagnia;  but  rage  brought  on  a  fever  which  ended  in  his 
death ;  and  the  first  act  of  his  successor,  Benedict  XI.,  was 
to  reconcile  the  king  of  France  to  the  Holy  See.^ 

The  sensible  decline  of  the  papacy  is  to  be  dated  from  the 
pontificate  of  Boniface  VIII.,  who  had  strained  its  authority 
to  a  higher  pitch  than  any  of  his  predecessors.  There  is  a 
spell  wrought  by  uninterrupted  good  fortune,  which  captivates 
men's  understanding,  and  persuades  them,  against  reasoning 
and  analogy,  that  violent  power  is  inmiortal  and  iiTesistible. 
The  spell  is  broken  by  the  first  change  of  success.  We  have 
seen  the  working  and  tlie  dissipation  of  this  charm  with  a 
rapidity  to  which  the  events  of  former  times  bear  as  remote 
a  relation  as  the  gradual  processes  of  nature  to  her  deluges ' 
and  her  volcanoes.  In  tracing  the  papal  empire  over  mim- 
kind  we  have  no  such  marked  and  definite  crisis  of  revolution. 
But  slowly,  like  the  retreat  of  waters,  or  the  stealthy  pace  of 
old  age,  that  extraordinary  power  over  human  opinion  has 
been  subsiding  for  five  centuries.  I  have  already  observed 
that  the  symptoms  of  internal  decay  may  be  traced  further 
back.  But  as  the  retrocession  of  the  Roman  terminus  under 
Adrian  gave  the  first  overt  proof  of  decline  in  the  ambitious 
energies  of  that  empire,  so  the  tacit  submission  of  the  sue- 

1  V0U7,  ISst.  de  rntDoe,  t.  tU.  p.  10^268;  OreTbr.  Hist,  de  rUnivvniU  dt 
PUI0,  t.  0.  p.  170,  fte. 


30  CONTEST  OP  POPES     Chap.  YVL  Part  U. 

cessors  of  Boniface  YIEL  to  the  king  of  France  might  have 
been  hailed  by  Europe  as  a  token  that  their  influence  was  be- 
ginning to  abate.  Imprisoned,  insulted,  deprived  eventually 
of  life  by  the  violence  of  Philip,  a  prince  excommunicated, 
and  who  had  gone  all  lengths  in  defying  and  despising  the 
papal  jurisdiction,  Boniface  had  every  claim  to  be  avenged 
by  the  inheritors  of  the  same  spiritual  dominion.  When 
Benedict  XI.  rescinded  the  bulls  of  his  predecessor,  and  ad- 
mitted Philip  the  Fair  to  communion,  without  insisting  on 
any  concessions,  he  acted  perhaps  prudently,  but  gave  a  fatal 
blow  to  the  temporal  authority  of  Rome. 

Benedict  XI.  lived  but  a  few  monUis,  and  his  successor 
RemoTai  of  Element  v.,  at  the  instigation,  as  is  commonly  sup- 
papAi  court    posed,  of  the  king  of  France,  by  whose  influence 

aIpViISs!"*  ^®  ^^  ^^^"^  elected,  took  the  extraordinary  step 
of  removing  the  papal  chair  to  Avignon.  In  this 
city  it  remained  for  more  than  seventy  years ;  a  period  which 
Petrarch  and  other  writers  of  Italy  compare  to  that  of  the 
Babylonish  captivity.  The  majority  of  the  cardinals  was 
always  French,  and  the  popes  were  uniformly  of  the  same 
nation.  Timidly  dependent  upon  the  court  of  France,  they 
neglected  the  interests  and  lost  the  affections  of  Italy;  Rome, 
forsaken  by  her  sovereign,  nearly  forgot  her  allegiance ;  wliat 
remained  of  papal  authority  in  the  ecclesiastical  territories 
was  exercised  by  Ciirdinal  legates,  little  to  the  honor  or  ad- 
vantage of  the  Holy  See.  Yet  the  series  of  Avignon  pontiffs 
were  far  from  insensible  to  Italian  politics.  These  occupied, 
on  the  contrary,  the  greater  part  of  their  attention.  But 
engaging  in  them  fix>m  motives  too  manifestly  selfish,  and 
being  regarded  as  a  sort  of  foreigners  from  birth  and  resi- 
dence, they  aggravated  that  unpopularity  and  bad  reputation 
which  from  various  other  causes  attached  itself  to  their  court. 
Though  none  of  the  supreme  pontiffs  after  Boniface  VIII. 
ventured  upon  such  explicit  assumptions  of  a  a:en- 
pop4M  with  eral  jurisdiction  over  sovereigns  by  divme  right  as 
nS^liu  ^®  ^^*^  made  in  his  controversy  with  Philip,  they 
maintained  one  memorable  struggle  for  temporal 
power  against  the  emperor  Louis  of  Bavaria.  Maxima 
long  boldly  repeated  without  contradiction,  and  engratled 
upon  the  canon  law,  passed  almost  for  articles  of  faith  among 
the  clergy  and  those  who  trusted  in  them ;  and  in  despite  of  all 
ancient  authorities,  Clement  V.  laid  it  down  that  the  popes. 


itccLES.  Power.      WITH  LOUIS  OF  BAVARIA.  31 

having  transferred  the  Roman  empire  from  the  Greeks  to 
the  Germans,  and  delegated  the  right  of  nominating  an  em- 
peror to  certain  electors,  still  reserved  the  prerogative  of 
approving  the  choice,  and  of  receiving  from  its  subject  upon 
his  coronation  an  oath  of  fealty  and  obedience.^  This  had  a 
regai-d  to  Henry  VII.,  who  denied  that  his  oath  bore  any 
such  interpretation,  and  whose  measures,  much  to  the  alarm  of 
the  court  of  Avignon,  were  directed  towards  the  restoration 
of  his  imperial  rights  in  Italy.  Among  other  things,  he  con- 
ferred the  rank  of  vicar  of  the  empire  upon  Matteo  Visconti, 
lord  of  Milan.  The  popes  had  for  some  time  pretended  to 
possess  that  vicariate,  during  a  vacancy  of  the  empire ;  and 
after  Henry's  death  insisted  upon  Visconti's  surrender  of  the 
title.  Several  circumstances,  for  which  I  refer  to  the  political 
historians  of  Italy,  produced  a  war  between  the  pope's  legate 
and  the  Visconti  family.  The  emperor  Louis  sent  assistance 
to  the  latter,  as  heads  of  the  Gliibelin  or  imperial  party. 
This  interference  cost  him  above  twenty  years  of  trouble. 
John  XXII.,  a  man  as  passionate  and  ambitious  as  Boniface 
himself,  immediately  pubUshed  a  bull  in  which  he  asserted 
the  right  of  administering  the  empire  during  its  vacancy 
(even  in  Gernumy,  as  it  seems  from  the  generality  of  hia 
expression),  as  well  as  of  deciding  in  a  doubtful  .choice  of 
the  electors,  to  appertain- to  the  Holy  See;  and  commanded 
Louis  to  lay  down  his  pretended  authority  until  the  supreme 
jurisdiction  should  determine  upon  his  election.  Louis's 
election  had  indeed  been  questionable ;  but  that  controversy 
was  already  settled  in  the  field  of  Muhldorf,  where  he  had 
obtained  a  victory  over  his  competitor  the  duke  of  Austria 
nor  had  the  pope  ever  interfered  to  appease  a  civil  war  dur- 
ing several  years  that  Germany  had  been  internally  distracted 
by  the  dispute.  The  emperor,  not  yielding  to  this 
peremptory  order,  was  excommunicated ;  his  vas- 
sals were  absolved  from  their  oath  of  fealty,  and  all  treaties 
of  alliance  between  him  and  foreign  princes  annulled.     Ger- 

1  Ronianl  prlodpeSf  fte Romano  potestas  eligvndl  regem^  In  Impmioraan 

pontiflei,  a  quo  approbationem  penonie  poatmoilam  promovendum,  pertinet,  ad- 

■d  Imperial^  oelitltudinis  apicem  amu-  Btrtngtra  Tincuio  jurainouti,  &e.    01»- 

in«nd8B,  necnon  unctionem,  conaecmtlo-  ment.  1.  H.  t.  Ix.    The  t«rni8  of  the  oath, 

iiem  ei  Imperii  coronam  acclpiunt,  una  aa  recited  la   this  constitution,  do  not 

•ubmlttere  capita  non  reputArunt  indig-  warrant  the  pope's  interpretation,  but 

nam.  mque  llli  et  eidcm  ecrleriae,  quae  a  imply  only  that  the  emperor  shall  be  Um 

Grnrifl  imperlum  transtulit  in  Gennanos.  advocate  or  defender  of  the  church, 
•t  a  qvA  ad  oeztos  eoram  principes  jua  et 


32  RESISTANCE  TO  POPES.     Chap.  VH.  Pabt  TL 

manj,  however,  remained  firm ;  and  if  Louis  himself  had 
manifested  more  decision  of  mind  and  uniformity  in  his  con- 
duct, the  court  of  Avignon  must  have  signallj  failed  in  a 
contest  from  which  it  did  not  in  fact  come  out  verj  successfuL 
But  while  at  one  time  he  went  intemperate  lengths  against 
John  XXII.,  publishing  scandalous  accusations  in  an  assem- 
bly of  the  citizens  of  Rome,  and  causing  a  Franciscan  friar 
to  be  chosen  in  his  room,  after  an  irregular  sentence  of  dep- 
osition, he  was  always  anxious  to  negotiate  terms  of  accom 
modation,  to  give  up  his  own  active  partisans,  and  to  make 
concessions  the  most  derogatory  to  his  independence  and 
dignity.  From  John  indeed  he  had  nothing  to  expect ;  but 
Benedict  XII.  would  gladly  have  been  reconciled,  if  he  had 
not  feared  the  kings  of  France  and  Naples,  political  ad- 
versaries of  the  emperor,  who  kept  the  Avignon  popes  in  a 
sort  of  servitude.  His  successor,  Clement  VL,  inherited  the 
implacable  animosity  of  John  XXII.  towards  Louis,  who  died 
without  obtaining  the  absolution  he  had  long  abjectly  solicited.^ 
Though  the  want  of  firmness  in  this  emperor's  chai-acter 
gave  sometimes  a  momentary  triumph  to  the  popes, 
Bbtance  toT  it  is  evident  that  their  authority  lost  ground  during 
P*^^"*^  the  continuance  of  this  struggle.  Their  right  of 
confirming  imperial  elections  was  expressly  denied 
by  a  diet  held  at  Frankfort  in  1338,  which  established  as  a 
fundamental  principle  that  the  imperial  dignity  depended 
upon  God  alone,  and  that  whoever  should  be  chosen  by  a 
majority  of  the  electors  became  immediately  both  king  and 
emperor,  with  all  prerogatives  of  that  station,  and  did  not 
require  the  approbation  of  the  pope.*  This  law,  confirmed 
as  it  was  by  subsequent  usage,  emancipated  the  German 
empire,  which  was  immediately  concerned  in  opposing  the 
papal  claims.  But  some  who  were  actively  engaged  in  these 
transactions  took  more  extensive  views,  and  assailed  the 
whole  edifice  of  temporal  power  which,  the  Roman  see  had 

1  Schmidt,  HlKt.  defl  Allemands,  t.  Ir.  dtatim  ex  noil  electione  est  rex  yeraa  et 

p.  446-636,  seems  the  best  modern  au-  imperator  Komanorum  censendus  et  no- 

thority  for  this  con  test  between  the  em-  minaudus,  et  eidem  debet  ab  omnibus 

piro  and  papacy.  See  abo  Struvius,  Corp.  \m perle  subjectis  ohodlri,  et  admiuistrandl 

Hist.  Qerman.  p.  591.  jura  imperii,  et  cietera  faciendi,  quae  ad 

*  Quod  imperialis  dignitas  et  potestas  iDipemtorem  Terum  pertinent,  pleuariam 

Immediate  ex  nolo  Deo,  et  quod  do  Jure  tjabet  poteRCatem,  nee  pap«  riwe  sedJs 

et  imperii  consuetudtne  antiquitiig  appro-  -ipoiitoUcflD  aut  alicujus  alter! us  approba- 

bat&  postquamaliqulaeligitur  in  impera-  tione.  conflrmatione,  auctoritate  indiget 

torem  sire  rpf^m  ab  electoribuH  imperii  Tcl  censensu.    Schmidt,  p.  61^ 
30ncorditer,  vel  majori  parte  eorundem, 


SccuBS.  PowBB.    RAPACITY  OF  AVIGNON  POPES.  33 

been  oonstnicting  for  more  than  two  centuries.  Several  men 
of  learning,  among  whom  Dante,  Ockham,  and  Marsilius  of 
Padua  are  the  most  conspicuous,  investigated  the  foundations 
of  this  superstructure,  and  exposed  their  insufficiency.^  Lit- 
erature, too  long  the  passive  handmaid  of  spiritual  despotism, 
began  to  assert  her  nobler  birthright  of  ministering  to  liberty 
and  truth.  Though  the  writings  of  these  opponents  of  Rome 
are  tiot  always  reasoned  upon  very  solid  principles,  they  at 
least  taught  mankind  to  scrutinize  what  had  been  received 
with  implicit  respect,  and  prepared  the  way  for  more  philo- 
sophical discussions.  About  this  time  a  new  class  of  enemies 
had  unexpectedly  risen  up  against  the  rulers  of  the  church. 
These  were  a  part  of  the  Franciscan  order,  who  had  seceded 
from  the  main  body  on  account  of  alleged  deviations  from 
the  rigor  of  their  primitive  rule.  Their  schism  was  chiefly 
founded  upon  a  quibble  about  the  right  of  property  in  things 
consumable,  which  they  maintained  to  be  incompatible  with 
the  absolute  poverty  prescribed  to  them.  This  frivolous 
sophistry  was  united  with  the  wildest  fanatacism ;  and  as  John 
XXII.  attempted  to  repress  their  follies  by  a  cruel  persecu- 
tion, they  proclaimed  aloud  the  corruption  of  the  church,  fixed 
the  name  of  Antichrist  upon  the  papacy,  and  wannly  sup- 
ported  the  emperor  Louis  throughout  all  his  contention  with 
the  Holy  See.* 

Meanwhile  the  popes  who  sat  at  Avignon  continued  to  in* 
vade  with  surprising  rapaciousness  the  patronage  r^-^i^-  ^ 
and  revenues  of  the  church.      The  mandats  or  At^ou 
letters  directing  a  particular  clerk  to  be  preferred  '^**'*** 
seem  to  have  given  place  in  a  great  degree  to  the  more 
effectual  method  of  appropriating  benefices  by  reservation  or 
provision,  which  was  carried  to  an  enormous  extent  in  the 
fourteenth  century.     John  XXIL,  the  most  insatiate  of  ix>n- 
tiffs,  reserved  to  himself  all  the  bishoprics  in  Christendom.' 

1  OiannoDe,  L  zxll.  o.  8.     Schmidt,  mora  celebrated  performance,  aflcrlbed  to 

L  Tl.  p.  152.     Dante  was  dead  befora  Raoul  de  Prenles  under  Charles  V. 

tfacee  erentn,  bnt  his  principles  were  the  *  The  schism  of  the  rigid  Franciseani 

•■me.    Oekham  bad  already  exerted  hia  or  Fratrieelli  is  one  of  the  most  singular 

latoota  in  the  same  cause  by  writing,  in  parts  of  ecclesiastical  history,  and  had  » 

behalf  of  Philip  IV.,  against  Bonifiice,  a  material  tendency  both  to  depress  tlia 

dialogue  between  a  knight  and  a  dork  on  temporal  authority  of  the  papacy,  and  to 

the  temporal  snpramacy  of  the  church,  pare  the  way  for  the  Reformation.    It  Is 

This  Is  published  among  other  tracts  of  fully  treated  by  Moshuim,  cent.  13  and 

the  same  class  in  OoldMtos,  Monarehla  14,  and  by  Crevier,  IIi.«t.  de  rUnlreTslti 

Imperil,  p.  18.    This  dialogue  is  trans-  de  Paris,  t.  ii.  p.  '233-2S4.  &e. 

lalid  antire  in  the  Songe  du  Vergier,  a  *  Fleiiry.  Institutions,  fro.,  t.  i.  p.  86^| 

F.  Paul  on  Benefices,  c.  87. 

VOL.  11  — M.  a 


34  RAPACITY  OF  AVIGNON  POPES.    Chap.  Vn.  Part  IL 

Benedict  XII.  assumed  the  privilege  for  his  own  life  of  di^ 
posing  of  all  benefices  vacant  by  cession,  deprivation,  or 
translation.  Clement  VI.  naturally  thought  that  his  title  was 
equally  good  with  his  predecessor's,  and  continued  the  same 
right  for  his  own  time;  which  soon  became  a  permanent 
rule  of  the  Roman  chancery.*  Hence  the  appointment 
of  a  prelate  to  a  rich  bishopric  was  generally  but  the  first 
link  in  a  chain  of  translation  which  the  pope  could  regulate 
according  to  his  interest  Another  capital  innovation  was 
made  by  John  XXII.  in  the  establishment  of  the  famous  tax 
called  annates,  or  first  fruits  of  ecclesiastical  benefices,  which 
he  imposed  for  his  own  benefit.  These  were  one  year's 
value,  estimated  according  to  a  fixed  rate  in  the  books  of  the 
Roman  chancery,  and  payable  to  the  papal  collectors  through- 
out Europe.*  Various  other  devices  were  invented  to  obtain 
money,  which  these  degenerate  popes,  abandoning  the  mag- 
nificent schemes  of  their  predecessors,  were  content  to  seek 
as  their  principal  object  John  XXII.  is  said  to  have  accu- 
mulated an  almost  incredible  treasure,  exaggerated  perhaps 
by  the  ill-will  of  his  contemporaries  ;^  but  it  may  be  doubted 
whether  even  his  avarice  reflected  greater  dishonor  on  the 
church  than  the  licentious  profuseness  of  Clement  VI.* 

These  exactions  were  too  much  encouraged  by  the  kings 
of  France,  who  participated  in  the  plunder,  or  at  least  re- 
quired the  mutual  assistance  of  the  popes  for  their  own  im- 
posts on  the  clergy.  John  XXII.  obtained  leave  of  Charles 
the  Fair  to  levy  a  tenth  of  ecclesiastical  revenues;'  and 
Clement  VI.,  in  return,  granted  two  tenths  to  Philip  of 
Valois  for  the  expenses  of  his  w^ar.  A  similar  tax  was 
raised  by  the  same  authority  towards  the  ^ransom  of  John.' 

1  F.  Paul,  c.  88.  Translations  of  bifihopa  Lenfltnt,   ConcUe   de   Gonstanoe,  i.   tt 

had  be«a  made  by  the  authority  of  the  p.  188. 

metropolitan  till  Innocent  III.  reserved  >  G.  Tillanl  puts  this  at  25,000.000  of 

this  prerogative  to  the  Holy  See.    De  florins,  which  it  is  liardly  poenible  to 

Marca,  1.  vi.  c.  8.  believe.     The  Italians  were   credulou« 

>  F.  Paul,  0.  88;  Fleury,  p.  424;  De  enough  to  listen  to  any  report  against 

Harca,  I.  vi.  c.  10 ;  Pasquier,  I.  lii.  c.  28.  the  popes  of  Avifl^non.  1.  zi.  c.  20.  Gian* 

The  popes  had  long  been  in  the  habit  of  none,  1.  zxii.  e.  8. 

receiving  a   pecuniary   gratuity    when  ^  For  the  corruption  of  morals  at  Avig- 

they  granted  the  pallium  to  an  arch-  non  during  the  seeeasiotK  see  De  Sade. 

biffhop,  though  this  was  reprehended  by  Vie  de  Petrarque,  t.  i.  p.  lO,  and  sevenu 

strict   men,  and   even   condemned   by  other  pawuiges. 

themselves.    De  Marca,  ibid.    It  is  no-  ft  Continuator  Gul.  de  Nangia,In  Spiel* 

tieed  as  a  remarlcable  thing  of  Innocent  legio  d'Aohery,  t.  ill.  p.  86,  (folio  edition.) 

IV.  that  he  gave  the  pall  to  a  German  Ita  miseram  eeclesiam,  says  this  monk, 

archbishop  without  accepting  anything,  unus  tondet,  alter  excoriat. 

Behmidt,  t.  iv.  p.  172.    The  original  and  o  Fleury,   Institut.   au   Droit   ecclasl 

natore  of  aonatei  is  copiously  traated  in  astique,  t.  ii.  p.  246.    ViUaiet|  t.  U. 


BOOLBS.  PowKB.    BAPACmr  OF  AVIGNON  POPES.  35 

These  were  contributions  for  national  purposes  unconnected 
with  religion,  which  the  popes  had  never  before  pretended  to 
impose,  and  whicli  the  king  might  properly  have  levied  with 
the  consent  of  his  clergy,  according  to  the  practice  of  Eng- 
land. But  that  consent  might  not  always  be  obtained  with 
ease,  and  it  seemed  a  more  expeditious  method  to  call  in  the 
authority  of  the  pope.  A  manlier  spirit  was  displayed  by  our 
ancestors.  It  was  the  boast  of  England  to  have  placed  the 
first  legal  barrier  to  the  usurpations  of  Rome,  if  we  except 
the  insulated  Pragmatic  Sanction  of  St.  Louis,  from  which 
the  practice  of  succeeding  ages  in  France  entirely  deviated. 
The  English  barons  had,  in  a  letter  addressed  to  Boniface 
VIIL,  absolutely  disclaimed  his  temporal  supremacy  over 
their  crown,  which  he  had  attempted  to  set  up  by  intermed- 
dling in  the  quarrel  of  Scotland.^  This  letter,  it  is  remarkar 
ble,  is  nearly  coincident  in  point  of  time  with  that  of  the 
French  nobility ;  and  the  two  combined  may  be  considered 
as  a  joint  protestation  of  both  kingdoms,  and  a  testimony  to 
the  general  sentiment  among  the  superior  ranks  of  the  laity. 
A  very  few  years  afterwards,  the  parliament  of  Carlisle 
wrote  a  strong  remonstrance  to  Clement  V.  against  the  sys- 
tem of  provisions  and  other  extortions,  including  that  of  first 
fruits,  which  it  was  rumored,  they  say,  he  was  meditating  to 
demand.'  But  the  court  of  Avignon  was  not  to  be  moved 
by  remonstrances ;  and  the  feeble  administration  of  Edward 
II.  gave  way  to  ecclesiastical  usurpations  at  home  as  well  a 
abroad.*  His  magnanimous  son  took  a  bolder  line.  After 
complaining  ineffectually  to  Clement  VI.  of  the  enormous 
abuse  which  reserved  almost  all  English  benefices  to  the 
pope,  and  generally  for  the  benefit  of  aliens,*  he  passed  in 
1 350  the  famous  statute  of  provisors.  This  act,  reciting  one 
supposed  to  have  been  made  at  the  parliament  of  Carlisle, 
which,  however,  does  not  appear,'^  and  complaining  in  strong 

fe48l.    Tt  became  a  regular  practice  for  the  osnon  law  also  ihows.    ExtraTaganfe. 

e  king  to  obtain  the  pope's  consent  to  Communes,  1.  iii.  tit.  ii.  c.  11. 

Ixj  a  tax  on  his  clergy,  though  he  some-  ^  The  statute  called  Articnll  clerl,  in 

times  applied  flnt  to  themselres.    Oar-  1316,  was  directed  rather  towards  con- 

nier,  t.  xx.  p.  141  firming  than  limiting  the  clerical  imma- 

1  Kymer,  t.  U.  p.  878.    Collier,  vol.  i.  nity  in  criminal  eases, 

p  725  «  Collier,  p.  646. 

s  RotuU  ParliamentI,  toI.  I.  p.   201.  »  It  is  singular  that  Sir  E.  Colce  should 

This  pamage,  hoMtUy  read,  has  led  Collier  assert  that  this  act  recites  and  is  founded 

and  other  KngU^h  writers,  such  as  Uenry  upon  the  statute  86  £.  I.,  De  asporta^ 

and  Blaclcstone,  into  the  supposition  that  tis  religiosorum   (2  Inst.  680);  whensai 

annates  were  imposed   by  Clement  V.  there  is  not  the    least  resemblance  In 

But  the  concurrent  testimony  of  foreign  Uie  words,  and  very  little,  if  any,  in  the 

Mthora  nAcs  this  tax  to  John  XXII.  tm  lubstanee.    Blaokstone,  in  ooDsequenoe* 


36  RErURN  OF  POPES  TO  ROME.    Chap.  VH.  Pabt  a 

language  of  the  mischief  sustained  through  continual  reser- 
vations of  benefices,  enacts  that  all  elections  and  collations 
shall  be  free,  according  to  law,  and  that,  in  case  any  provi- 
sion or  reservation  should  be  made  by  the  court  of  Kome, 
the  king  should  for  that  turn  have  the  collation  of  such  a 
benefice,  if  it  be  of  ecclesiatical  election  or  patronage.^ 
This  devolution  to  the  crown,  which  seems  a  little  arbitrary, 
was  the  only  remedy  that  could  be  effectual  against  the  con* 
nivance  and  timidity  of  chapters  and  spiritual  patrons.  We 
cannot  assert  that  a  statute  so  nobly  planned  was  executed 
with  equal  steadiness.  Sometimes  by  royal  dispensation, 
sometimes  by  neglect  or  evasion,  the  papal  bulls  of  provision 
were  still  obeyed,  though  fresh  laws  were  enacted  to  the 
same  effect  as  the  former.  It  was  found  on  examination  in 
1367  that  some  clerks  enjoyed  more  than  twenty  benefices 
by  the  pope's  dispensation.^  And  the  parliaments  both  of 
this  and  of  Richard  II.'s  reign  invariably  complain  of  the 
disregard  shown  to  the  statutes  of  provisors.  This  led  to 
other  measures,  which  I  shall  presently  mention. 

The  residence  of  the  popes  at  Avignon  gave  very  general 
Return  of  offcncc  to  Europe,  and  they  could  not  themselves 
popes  to        avoid  perceiving  the  disadvantage  of  absence  from 

™*'  their  proper  diocese,  the  city  of  St.  Peter,  the 

source  of  all  their  claims  to  sovereign  authority.  But 
Rome,  so  long  abandoned,  offered  but  an  inhospitable  recep- 
tion: Urban  V.  returned  to  Avignon,  after  a  short  ex- 
periment of  the  capital ;  and  it  was  not  till  1376  that  the 
promise,  often  repeated  and  long  delayed,  of  restoring  the 
papal  chair  to  the  metropolis  of  Christendom,  was  ultimate^ 
ly  fulfilled  by  Gregory  XI.  His  death,  which  happened 
soon  afterwards,  prevented,  it  is  said,  a  second  flight  that  he 
was  preparing.     This  was  followed  by  the  great  schism,  one 

cont««ted  ^^  ^^®  °^®^*  i*emarkable  events  in  ecclesiastical 

election  of  history.   It  is  a  difficult  and  by  no  means  an  inter- 

andCiMaent  ^sting  question  to  determine  the  validity  of  that 

vn.  contested   election    which    distracted    the    Latin 

*"^'    *  '  church   for  so   many  years.     All  contemporary 

mistakes  the  natnra  of  that  aet  of  Ed-  17  B.  m.  (Rot.  Pari.  t.  it.  p.  144),  li 

ward  I.,  and  suppoeei  tt  to  have  been  hard  to  decide;  and  perhaps  those  who 

made  against  papal  proTfsions,  to  which  examine  this  point  will  hay*  to  chooso 

I   do   not  peroeive   even   an   allusion,  between  wilful   suppresdon  and  wilAal 

Whether  any  such  statute  was   really  interpolation, 

made  in  the  Carlisle  parliament  of  86  >  26  B.  III.  stat.  6. 

B.  I.,  as  is  asserted  both  in  26  K.  III.  *  Collier,  p.  568. 
and  m  the  toll  o    another  parliament. 


EccLES.  PoWEB.    CONTESTED  PAPAL  ELECTION.  87 

testimonies  are  subject  to  the  suspicion  of  partiality  in  a  c^ose 
where  no  one  was  permitted  to  be  neutral.  In  one  fact  how- 
ever there  is  a  common  agreement,  that  the  cardinals,  of 
whom  the  majority  were  French,  having  assembled  in  con- 
clave, for  the  election  of  a  successor  to  Gregory  XI.,  were 
disturbed  by  a  tumultuous  populace,  who  demanded  with 
menaces  a  Roman,  or  at  least  an  Italian,  pope.  This  tumult 
appears  to  have  been  sufficiently  violent  to  excuse,  and  in 
fact  did  produce,  a  considerable  degree  of  intimidation. 
After  some  time  the  cardinals  made  choice  of  the  arch- 
bishop of  Bari,  a  Neapolitan,  who  assumed  the  name  of 
Urban  VI.  His  election  satMed  the  populace,  and  tranquil- 
lity was  restored.  The  cardinals  announced  their  choice  to 
the  absent  members  of  their  college,  and  behaved  towards 
Urban  as  their  pope  for  several  weeks.  But  his  uncommon 
harshness  of  temper  giving  them  offence,  they  withdrew  to  a 
neighboring  town,  and,  protesting  that  his  election  had  been 
compelled  by  the  violence  of  the  Roman  populace,  annulled 
the  whole  proceeding,  and  chose  one  of  their  own  number, 
who  took  the  pontifical  name  of  Clement  VII.  Such  are  the 
leading  drcumstances  which  produced  the  famous  schism. 
Constr^nt  is  so  destructive  of  the  essence  of  election,  that 
suffrages  given  through  actual  intimidation  ought,  I  think,  to 
be  held  invalid,  even  without  minutely  inquiring  whether 
the  degree  of  illegal  force  was  such  as  might  reasonably 
overcome  the  constancy  of  a  firm  mind.  It  is  improbable 
that  the  free  votes  of  the  cardinals  would  have  been  be- 
stowed on  the  archbishop  of  Bari;  and  I  should  not  feel 
much  hesitation  in  pronouncing  his  election  to  have  been 
void.  But  the  sacre<l  college  unquestionably  did  not  use  the 
earliest  opportunity  of  protesting  against  the  violence  they 
had  suffered ;  and  we  may  infer  almost  with  certainty,  that, 
if  Urban's  conduct  had  been  more  acceptable  to  that  body, 
the  world  would  have  heard  little  of  the  transient  riot  at  his 
election.  This  however  opens  a  delicate  question  in  juris- 
prudence ;  namely,  under  what  circumstances  acts,  not  only 
irregular,  but  substantially  invalid,  are  capable  of  receiving 
a  retroactive  confirmation  by  the  acquiescence  and  acknowl- 
edgment of  parties  concerned  to  oppose  them.  And  upon 
this,  I  conceive,  the  great  problem  of  legitimacy  between 
Urban  and  Clement  will  be  found  to  depend.^ 

I  LBD&Qt  hM  eoUected  all  the  origliial    of  his  Goneile  de  Pisa.    No  poeitlre  d»> 
on  both  ddw  In  the  flnt  book    cialon  ban  »T«r  been  made  on  the  eulOeett 


38  THE  GREAT  SCHISM.    Chap.  VH.  Paw  11, 

Whatever  posterity  may  have  judged  about  the  preten- 
The  Great  fiions  of  these  Competitors,  they  at  that  time 
Bchiim.  shared  the  obedience  of  Europe  in  nearly  equal 
proportions.  Urban  remained  at  Rome ;  Clement  resumed 
the  station  of  Avignon.  To  the  former  adhered  Italy,  the 
Empire,  England,  and  the  nations  of  the  north ;  the  latter 
retained  in  his  allegiance  France,  Spain,  Scotland,  and  Sicily. 
Fortunately  for  the  church,  no  question  of  religious  faith  in« 
termixed  itself  with  this  schism  j  nor  did  any  other  impedi- 
ment to  reunion  exist  than  the  obstinacy  and  selfishness  of 
the  contending  parties.  As  it  was  impossible  to  come  to  any 
agreement  on  the  original  merits,  there  seemed  to  be  no 
means  of  healing  the  wound  but  by  the  abdication  of  both 
popes  and  a  fresh  undisputed  election.  This  was  the  general 
wish  of  Europe,  but  urged  with  particular  zeal  by  the 
court  of  France,  and,  above  all,  by  the  university  of  Paris, 
which  esteems  this  period  the  most  honorable  in  her  annals. 
The  cardinals  however  of  neither  obedience  would  recede  so 
far  from  their  party  as  to  suspend  the  election  of  a  successor 
upon  a  vacancy  of  the  pontificate,  which  would  have  at  least 
removed  one  half  of  the  obstacle.  The  Roman  conclave 
accordingly  placed  three  pontiffs  successively,  Boniface  IX., 
Innocent  VI.,  and  Gregory  XIL,  in  the  seat  of  Urban  VI.; 
and  the  cardinals  at  Avignon,  upon  the  death  of  Clement  in 
1394,  elected  Benedict  XIII.  (Peter  de  Luna),  famous  for 
his  inflexible  obstinacy  in  prolonging  the  schism.  He  re- 
peatedly promised  to  sacrifice  his  dignity  for  the  sake  of 
union.  But  there  was  no  subterfuge  to  which  this  crafty 
pontiiF  had  not  recourse  in  order  to  avoid  compliance  with  his 
word,  though  importuned,  threatened,  and  even  besieged  in  his 
palace  at  Avignon.  Fatigued  by  his  evasions,  France  with- 
drew her  obedience,  and  the  GaUican  church  continued  for  a 
few  years  without  acknowledging  any  supreme  head.  But 
this  step,  which  was  rather  the  measure  of  tlie  university 
of  Paris  than  of  the  nation,  it  seemed  advisable  to  retract; 
and  Benedict  was  again  obeyed,  though  France  continued  to 
urge  his  resignation.  A  second  subtraction  of  obedience,  or 
at  least  declaration  of  neutrality,  was  resolved  upon,  as  pre- 
paratory to  the  convocation  of  a  general  council.     On  the 

but  the  Roman  popes  are  numbered  in  gitimacy  of  Urban ;  the  French  at  most 

the  commonly  receiTed  list,  and  those  of  intimate  that  Clement'e  preCenaioiu  wera 

Atignon  are  not.     The  mo(l«>rn  Italian  not  to  be  wholly  rejected, 
wxltera  exprera  no  doubt  about  the  le- 


BocLBS.  PoWKB.   COUNCILS  OF  PISA  AND  CONSTANCE.       39 

Other  hand,  those  who  sat  at  Borne  displayed  not  less  insiii« 
cerity.  Gregory  XIl.  bound  himself  by  oath  on  his  ao- 
cession  to  abdicate  when  it  should  appear  necessary.  But 
while  these  rivals  were  loading  each  other  with  the  mutual 
reproach  of  schism,  they  drew  on  themselves  the  suspicion  of 
at  least  a  virtual  collusion  in  order  to  retain  their  respective 
stations.  At  length  the  cardinals  of  both  parties,  wearied 
with  so  much  dissimulation,  desei'ted  their  masters,  and  sum- 
moned a  general  council  to  meet  at  Pisa.^ 

The  council  assembled  at  Pisa  deposed  both  Gregory  and 
Benedict,  without  deciding  in  any  respect  as  to  ^^^^^^^  ^^ 
their  pretensions,  and  elected  Alexander  Y.  by  its  Pba, 
own  supreme  authority.  This  authority,  however,  ^•*'  ^^* 
was  not  universally  recognized ;  the  schism,  instead  of  being 
healed,  became  more  desperate ;  for  as  Spain  adhered  firm- 
ly  to  Benedict,  and  Gregory  was  not  without  supporters, 
there  were  now  three  contending  pontiffs  in  the  church.  A 
general  council  was  stiU,  however,  the  favorite  and  indeed 
the  sole  remedy;  and  John  XXIIL,  successor  of  of  coMtaaoe, 
Alexander  V.,  was  reluctantly  prevailed  upon,  or  *•»•  ^*^*» 
perhaps  trepanned,  into  convoking  one  to  meet  at  Constance. 
In  this  celebrated  assembly  he  was  himself  deposed  ;  a  sen- 
tence which  he  incurred  by  that  tenacious  clinging  to  his  dig- 
nity, after  repeated  promises  to  abdicate,  whidi  had  already 
proved  fatal  to  his  competitors.  The  deposition  of  John, 
confessedly  a  legitimate  pope,  may  strike  us  as  an  extraor- 
dinary measure.  But,  besides  the  opportunity  it  might  afford 
of  restoring  union,  the  council  found  a  pretext  for  this  sen- 
tence in  his  enormous  vices,  which  indeed  they  seem  to  have 
taken  upon  common  fame  without  any  judicial  process.  The 
true  motive,  however,  of  their  proceedings  against  him  was 
a  desire  to  make  a  signal  display  of  a  new  system  which  had 
rapidly  gained  ground,  and  which  I  may  venture  to  call  the 
whig  principles  of  the  catholic  church.  A  great  question 
was  at  issue,  whether  the  polity  of  that  establishment  should 
be  an  absolute  or  an  exceedingly  limited  monarchy.  The  papal 
tyranny,  long  endured  and  still  increasing,  had  excited  an 
active  spirit  of  reformation  which  the  most  distinguished 
ecclesiastics  of  France  and  other  countries  encouraged.  They 
recurred,  as  far  as  their  knowledge  allowed,  to  a  more  primi- 

1  Vmanl:  Leofluit.  OcneUB  da  Pise:  Creyler.  Hist    <!•  WnlrenAU  d*  Pada, 

tin 


40  COUNCIL  OF  CONSTANCE.    Chap.  VH.  Pam  IL 

tire  discipline  than  the  canon  law,  and  elevated  the  suprenla- 
cy  of  general  councils.  But  in  the  formation  of  these  thej 
d[id  not  scruple  to  introduce  material  innovations.  The 
bishops  have  usually  been  considered  the  sole  members  of 
ecclesiastical  assemblies.  At  Constance,  however,  sat  and 
voted  not  only  the  chiefs  of  monasteries,  but  'lie  ambassadors 
of  all  Christian  princes,  the  deputies  of  universities,  with 
a  multitude  of  inferior  theologians,  and  even  doctors  of  law.* 
These  were  naturally  accessible  to  the  pride  of  sudden  eleva- 
tion, which  enabled  them  to  control  the  strong,  and  humiliate 
the  lofty.  In  addition  to  this  the  adversaries  of  the  court 
of  Rome  carried  another  not  less  important  innovation.  The 
Italian  bishops,  idmost  universally  in  the  papal  interests, 
were  so  numerous  that,  if  suffrages  had  been  taken  by  the 
head,  their  preponderance  would  have  impeded  any  meas- 
ures of  transalpine  nations  towards  reformation.  It  was  de- 
termined, therefore,  that  the  council  should  divide  itself 
into  four  nations,  the  Italian,  the  German,  the  French,  and 
the  English,  each  with  equal  rights ;  and  that,  every  proposi- 
tion having  been  separately  discussed,  the  majority  of  the 
four  should  prevail.^  This  revolutionary  spirit  was  very  un- 
acceptable to  the  cardinals,  who  submitted  reluctantly,  and 
with  a  determination,  that  did  not  prove  altogether  unavail- 
ing, to  save  their  papal  monarchy  by  a  dexterous  policy. 
They  could  not,  however,  prevent  the  famous  resolutions  of 
the  fourth  and  fifth  sessions,  which  declare  that  the  council 
has  received,  by  divine  right,  an  authority  to  which  every 
rank,  even  the  papal,  is  obliged  to  submit,  in  matters  of  faith, 
in  the  extirpation  of  the  present  schism,  and  in  the  reforma- 
tion of  the  church  both  in  its  head  and  its  members ;  and 
that  every  person,  even  a  pope,  who  shall  obstinately  refuse 

1  Leaflint,  Coneilo  de  Constant,  t.  1.  litloxi  the  Immeasurable  pedigrees  of  IrB> 

?.  107  (edit.  1727).    Creyier,  t.  iii.  p.  406-  land.    Joeeph  of  Arlmathea,  who  planted 

t  wu  agreed  that  the  amharaadon  could  Ghrtotianity  and  his  stick  ac  Glantonbury, 

not  Tote  npon  articles  of  Iklth,  but  only  did  his  best  t^  help  the  cause.   The  recent 

on  questions  relating-  to  the  settlement  lictory  of  Azinoourt,  I  am  inclined  to 

of  the  charch.    But  the  second  order  of  think,  had  more  weight  with  the  council, 

eccleeiastios  were  allowed  to  vote  gener-  Lenfimt,  t.  ii.  p.  46. 

ally.  At  a  time  when  a  Tery  different  spirit 

3  This  separation  of  England,  as  a  co-  prevaiied,  the   English    bishops   under 

equal  limb  of  the  council,  gare  great  Henry  II.  and  Henry  III.  had  claimed 

umbrage  to  the  French,  who  maintained  as  a  right  that  no  more  than  ft>ur  of  their 

that,  like  Denmark  and  Sweden,  it  ought  number  should  be  summoned  to  a  general 

to  have  been  reckoned  along  with  Oer-  councU.    Ho^eden.  p.  820 ;  Carte,  toI.  IL 

many.    The  English  deputies  camo  down  p.  84.    This  was  like  boroughs  praying 

with  a  profusion  of  authorities  to  prove  to  be  released  firom  sending  members  to 

the   antiquity  of  their   monarchy,  for  parliament, 
vhieh  they  did  not  fiUl  to  put  in  requl- 


EocLBs.  PowBB.      COUNCIL  OF  CONSTANCK  41 

to  obey  that  council,  or  any  other  lawfully  assembled,  is  lia« 
ble  to  such  punishment  as  shall  be  necessary.^  These  de- 
crees are  the  great  pillars  of  that  moderate  theory  with 
respect  to  the  papal  authority  which  distinguished  the  Galli- 
can  church,  and  is  embraced,  I  presume,  by  almost  all  lay- 
men and  the  major  part  of  ecclesiastics  on  this  side  of  the 
Alps.^  They  embarrass  the  more  popish  churchmen,  as  the 
Revolution  does  our  English  tories ;  some  boldly  impugn  the 
authority  of  the  council  of  Constance,  while  others  chicane 
upon  the  interpretation  of  its  decrees.  Their  practical  im- 
portance is  not,  indeed,  direct ;  universal  councils  exist  only 
in  possibility ;  but  the  acknowledgment  of  a  possible  author- 
ity paramount  to  the  see  of  Rome,  has  contributed,  among 
other  means,  to  check  its  usurpations. 

The  purpose  for  which  these  general  councils  had  been 
required,  next  to  that  of  healing  the  schism,  was  the  refor- 
mation of  abuses.  All  the  rapacious  exactions,  all  the  scan- 
dalous  venality  of  which  Europe  had  complained,  while 
unquestioned  pontiffs  ruled  at  Avignon,  appeared  light  in 
comparison  of  the  practices  of  botli  rivals  during  the  schism. 
Tenths  repeatedly  levied  upon  the  clergy,  annates  rigorously 
exacted  and  enhanced  by  new  valuations,  fees  annexed  to  the 
complicated  formalities  of  the  papal  chancery,  were  the 
means  by  which  each  half  of  the  church  was  compelled  to 
reimburse  its  chief  for  the  subtraction  of  the  othei^s  obedi- 
ence. Boniface  IX.,  one  of  the  Roman  line,  whose  fame  is 
a  little  worse  than  that  of  his  antagonists,  made  a  gross  traffic 
of  his  patronage ;  selling  the  privileges  of  exemption  from 
ordinary  jurisdiction,  of  holding  benefices  in  commendam, 
and  other  dispensations  invented  for  the  benefit  of  the  Holy 
See.*  Nothing  had  been  attempted  at  Pisa  towards  reforma- 
tion. At  Constance  the  majority  were  ardent  and  sincere ; 
the  representatives  of  the  French,  German,  and  English 
churches  met  with  a  determined  and,  as  we  have  seen,  not 
always  unsuccessful  resolution  to  assert  their  ecclesiastical 
liberties.  They  appointed  a  committee  of  reformation,  whose 
recommendations,  if  carried  into  effect,  would  have  annihi- 
lated almost  entirely  that  artfully  constructed  machinery  by 

1  Id.  p.  164.    OfcriiT,  t.  iH.  p.  417.  exceedingly  dllfereiit  flrom  what  it  wm 

•  This  WM  written  In  1816.    The  pree-    in  the  Uat  two  eentnriea.    (1847.1 
•nt  atnte  of  opinion  among  thoee  who       *  Lenlhnt,  Wat.  dn  Ooncile  oe  PiM, 
belong  to  tlieOftUleuiohaiohhaBbecomie    panim;    Crovler:    VlUuet;    Schmidt; 

OoUiw. 


42  COUNCIL  OF  BASLE.    Chap.  VH.  Part.  IL 

which  Rome  had  absorbed  so  much  of  the  revenues  and 
patronage  of  the  church.  But  men,  interested  in  perpetuat- 
ing these  abuses,  especially  the  cardinals,  improved  the  ad- 
vantages which  a  skilful  government  always  enjoys  in  playing 
against  a  popular  assembly.  They  availed  themselves  of  the 
jealousies  arising  out  of  the  division  of  the  council  into  na- 
tions, which  exterior  political  circumstances  had  enhanced. 
Franc(»,  then  at  ws\x  with  England,  whose  pretensions  to  be 
counted  as  a  fourth  nation  she  had  warmly  disputcd,'and  not 
well  disposed  towards  the  emperor  Sigismund,  joined  with 
the  Italians  against  the  English  and  German  members  of  the 
council  in  a  matter  of  the  utmost  importance,  the  immediate 
election  of  a  pope  before  the  articles  of  reformation  should 
be  finally  concluded.  These  two  nations,  in  return,  united 
with  the  Italians  to  choose  the  cardinal  Colonna,  against  the 
advice  of  the  French  divines,  who  objected  to  any  member 
of  the  sacred  college.  The  court  of  Rome  were  gainers  in 
both  questions.  Martin  V.,  the  new  pope,  soon  evinced  his 
determination  to  elude  any  substantial  reform.  Afler  pub- 
lishing a  few  constitutions  tending  to  redress  some  of  the 
abuses  that  had  arisen  during  the  schism,  he  contrived  to 
make  separate  conventions  with  the  several  nations,  and  as 
soon  as  possible  dissolved  the  council.^ 

By  one  of  the  decrees  passed  at  Constance,  another  gen- 
eral council  was  to  be  assembled  in  five  years,  a  second  at 
the  end  of  seven  more,  and  from  that  time  a  similar  repre- 
sentation of  the  church  was  to  meet  every  ten  years.  Mar- 
tin V.  accordingly  convoked  a  council  at  Pavia,  which,  on 
account  of  the  plague,  was  transferred  to  Siena ;  but  nothing 
of  importance  was  transacted  by  this  assembly.*  That  which 
of  BmIo,  he  summoned  seven  years  afterwards  to  the  city 
A.D.  im  Qf  Basle  had  very  different  results.  The  pope, 
dying  before  the  meeting  of  this  council,  wm  succeeded  by 
Eugenius  IV.,  who,  anticipating  the  spirit  of  its  discussions, 
attempted  to  crush  its  independence  in  the  outset,  by  trans- 
ferring the  place  of  session  to  an  Italian  city.  No  point  was 
reckoned  so  material  in  the  contest  between  the  popes  and 
reformers  as  whether  a  council  should  sit  in  Italy  or  beyond 

1  T^nfant,  Conclle  de  Conntance.    The  i^vvl  Mketch  of  the  ronncU.  nnd  Srhmidt 

copion*«n(>iiH  ntt  welt  oa  iuipMrtMlity  of  (Hist.  desAUeuumdes,  t.  ▼.)  ia  worthy  of 

taw  %7ork  juf«tlv  readers  it  an  almost  ex-  att«ction. 

eluitivo    RutUoritv.     Cl^crier    (Hist,    do  <  Lenfitnt,  Giiem  dea  Huttitflt,  t.  i.  |^ 

rUniTonitA  de  Paris,  t.  iii.)  hns  given  a  228. 


BccLKS.  Pow«B.  COUNCIL  OF  BASLE.  43 

tlie  Alps.  The  council  of  Basle  began,  as  it  proceeded,  in 
open  enmity  to  tlie  court  of  Rome.  Eugenius,  after  several 
years  had  elapsed  in  more  or  less  hostile  discussions,  exerted 
his  ])rerogative  of  removing  the  assembly  to  Ferrara,  and 
fix>ra  thence  to  Florence.  For  this  he  had  a  specious  pretext 
in  the  negotiation,  then  apparently  tending  to  a  prosperous 
issue,  for  the  reunion  of  the  Greek  church ;  a  triumph,  how- 
ever transitory,  of  which  his  council  at  Florence  obtained  the 
glory.  On  the  other  hand,  the  assembly  of  Basle,  though 
much  weakened  by  the  defection  of  those  who  adhered  to 
Eugenius,  entered  into  compacts  with  the  Bohemian  insur- 
gents, more  essential  to  the  interests  of  the  church  than  any 
union  with  the  Greeks,  and  completed  the  work  begun  at 
Constance  by  abolishing  the  annates,  the  reservations  of 
benefices,  and  other  abuses  of  papal  authority.  In  this  it 
received  the  approbation  of  most  princes;  but  when,  pro- 
voked by  the  endeavors  of  the  pope  to  frustrate  its  decrees, 
it  proceeded  so  far  as  to  suspend  and  even  to  depose  him, 
neither  France  nor  Germany  concurred  in  the  sentence. 
Even  the  council  of  Constance  had  not  absolutely  asserted  a 
right  of  deposing  a  lawful  pope,  except  in  case  of  heresy, 
though  their  conduct  towards  John  could  not  otherwise  be 
justified.^  This  question  indeed  of  ecclesiastical  public  law 
seems  to  be  still  undecided.  The  fathers  of  Basle  acted 
however  with  greater  intrepidity  than  discretion,  and,  not 
perhaps  sensible  of  the  change  that  was  taking  place  in  pub- 
lic opinion,  raised  Amadous,  a  retired  duke  of  Savoy,  to  the 
pontifical  dignity  by  the  name  of  Felix  V.  They  thus  re- 
newed the  schism,  and  divided  the  obedience  of  the  catholic 
church  for  a  few  years.  The  empire,  however,  as  well  as 
France,  observed  a  singular  and  not  very  consistent  neutral- 
ity ;  respecting  Eugenius  as  a  lawful  pope,  and  the  assembly 
at  Basle  as  a  general  council.  England  warmly  supported 
Eugenius,  and  even  adhered  to  his  council  at  Florence; 
Aragon  and  some  countries  of  smaller  note  acknowledged 

1  The  coandl  of  Baala  ondeaTored  to  font  itep  agalnit  Bagvntm ;    but   tbe 

•fade  this  difliealty  by  decluioK  Ea-  minor  theoIogUitf,  the  democmcj  of  th« 

tRnins   ft    relftpnd    heretic.     Lenlknt,  Cfttholie  church,  whom  right  of  raffra^e 

Oa«ri«  desIIiuAiteii.  t.  ii.  p.98.    But  u  seenu    rather  an    anomalous   infringe- 

the  ebureh  coulJ  discoTer  no  hensy  in  ment  of  episcopal  authority,  praseed  it 

hia   dlMgreement  with  that  assembly,  with  much  heat  and  rashness.    See  « 

the  sentence  of  deposition  gained  little  curious   pasaage  en    this  subject  in  « 

•tm^^th  by  this  preTions  decision.    The  speech  of  the  csfdlnal  of  Arias.   LsnfanI 

MBhops  were  unwilling  to  take  this  vio-  t.  U.  n.  325. 


44  UNIVEBSAL  COUNCILS.    Chap.  VH.  Paict  H. 

Felix.  But  the  partisans  of  Basle  became  every  year 
weaker :  and  Nicholas  V.,  the  successor  of  Eugenius,  found 
no  great  difficulty  in  obtaining  the  cession  of  Felix,  and  ter- 
minating this  schism.  This  victory  of  the  court  of  Rome 
over  the  council  of  Basle  nearly  counterbalanced  the  disad- 
vantageous events  at  Constance,  and  put  an  end  to  the  project 
of  fixing  permanent  limitations  upon  the  head  of  the  church 
by  means  of  general  councils.  Though  the  decree  that  pre- 
scribed the  convocation  of  a  council  every  ten  years  was  still 
unrepealed,  no  absolute  monarchs  have  ever  more  dreaded 
to  meet  the  representatives  of  their  people,  than  the  Roman 
pontiffs  have  abhorred  the  name  of  those  ecclesiastical  synods : 
once  alone,  and  that  with  the  utmost  reluctance,  has  the 
catholic  church  been  convoked  since  the  council  of  Basle; 
but  the  famous  assembly  to  which  I  allude  does  not  fall 
within  the  scope  of  my  present  undertaking.^ 

It  is  a  natural  subject  of  speculation,  what  would  have 
been  the  effects  of  these  universal  councils,  which  were  so 
popular  in  the  fifteenth  century,  if  the  decree  passed  at  Con- 
stance for  their  periodical  assembly  had  been  regularly  ob- 
served. Many  catholic  writers,  of  the  jnoderate  or  cisalpine 
school,  have  lamented  their  disuse,  and  ascribed  to  it  that 
irreparable  breach  which  the  Reformation  has  made  in  the 
fiibric  of  their  church.  But  there  is  almost  an  absurdity  in 
conceiving  their  permanent  existence.  What  chemistry  could 
have  kept  united  such  heterogeneous  masses,  furnished  with 
every  principle  of  mutual  repulsion  ?  Even  in  early  times, 
when  councils,  though  nominally  general,  were  composed  of 
the  subjects  of  the  Roman  empire,  they  had  been  marked  by 
violence  and  contradiction :  what  then  could  have  been  ex- 
pected fix)m  the  delegates  of  independent  kingdoms,  whose 
ecclesiastical  polity,  whatever  may  be  said  of  the  spiritual 
unity  of  the  church,  had  long  been  far  too  intimately  blended 
with  that  of  the  state  to  admit  of  any  general  control  without 
its  assent?  Nor,  beyond  the  zeal,  unquestionably  8incei*e, 
which  animated  their  members,  especially  at  Basle,  for  the 
abolition  of  papal  abuses,  is  there  anything  to  praise  in  their 
conduct,  or  to  regret  in  their  cessation.    The  statesman  who 

1  There  is  not,  I  beliete,  any  gnfBdent  its  tnniftotf one  with  hii  htetocy  of  th« 

hlBtory  of  the  coandl  of  Beale.   Leniiuit  Hiudte  war,  which  ts  commonly  quoted 

deidgned  to  write  it  from  the  origioal  nnder  the  Utle  of  Uistory  of  the  CoonoU 

acts,  but,  finding  his  health  deeUne,  in-  of  Basle.    Schmidt,  GreTier,  Viilaxet,  an 

tormized  s<»ne  rather  imperfeot  notioes  of  still  mj  other  authoritlei. 


KoouB.  FowsB.         UNIVEESAL  COUNCILS.  45 

dreaded  the  encroachments  of  priests  upon  the  civil  govern- 
ment, the  Christian  who  panted  to  see  his  rights  and  faith 
purified  from  the  corruption  of  ages,  found  no  hope  of  im- 
provement in  these  councils.  They  took  upon  themselves  the 
pretensions  of  the  popes  whom  they  attempted  to  supersede. 
Dj  a  decree  of  the  fathers  at  Ck)nstance,  all  persons,  include 
ing  princes,  who  should  oppose  any  obstacle  to  a  journey 
imdertaken  by  the  emperor  Sigismund,  in  order  to  obtain  the 
cession  of  Benedict,  are  declared  excommunicated,  and  de- 

§  rived  of  their  dignities,  whether  secular  or  ecclesiastical.^ 
l^heir  condemnation  of  Huss  and  Jerome  of  Prague,  and 
the  scandalous  breach  of  faith  which  they  induced  Sigismund 
to  commit  on  that  occasion,  are  notorious.  But  perhaps  it  is 
not  equally  so  that  this  celebrated  assembly  recognized  by  a 
Bolenm  decree  the  fiagitious  principle  which  it  had  practised, 
declaring  that  Huss  was  unworthy,  through  his  obstinate  ad- 
herence to  heresy,  of  any  privilege ;  nor  ought  any  faith  or 
promise  to  be  kept  with  him,  by  natural,  divine,  or  human 
law,  to  the  prejudice  of  the  catholic  religion.^  It  will  be  easy 
to  estimate  the  claims  of  this  congress  of  theologians  to  our 
veneration,  and  to  weigh  the  retrenchment  of  a  few  abuses 
against  the  formal  sanction  of  an  atrocious  maxim. 

It  was  not,  however,  necessary  for  any  government  of 
tolerable  energy  to  seek  the  reform  of  those  abuses  which 
affected  the  independence  of  national  churches,  and  the  integ- 

>  Leidknt,  1. 1.  p  489.  fkr  the  imperial  nib-condnet  was  a  legal 

*  Nee  aliqna  >ibi  fides  ant  promlsslo.  protectioD  within  the  city  of  CoDStance. 

iejture  natnraU,  dlrino,  et  humano,  ftierit  6.  Sigismund  was  persuaded  to  acquiesce 

In  prqjQdiclam  CatholiesB  fidei    obser*  in  the  capital  punishment  of  Huss,  and 

tanda.    Len&nt,  1. 1.  p.  491.  eren  to  make  it  his  own  act  (Lenfant, 

This  proposition  is  the  great  dJ^^^nice  p.  409);  by  which  he  manifestly  broke 

of  the  council  in  the  aflUr  of  Huss.    But  his  engagement.    6.  It  is  erident  that  la 

the  TloUttion  of  his  safe-conduct  being  a  this  he  acted  by  the  advice  and  sanction 

flunoos  event  in  ecclesiastical  history,  and  of  the  council,  who  thus  became  aocce- 

which  has  been  very  much  disputed  with  sory  to  the  guilt  of  his  treachery. 
some  degree  of  erroneous  statement  on       The  great  moral  to  be  drawn  from  the 

both  sides,  it  may  be  proper  to  give  briefly  story  of  John  Huss's  condemnation  is, 

an  impartial  summary.    1.  Hum  came  that  no  breach  of  laith  can  be  ezcuAed  by 

to  Constance  with  a  safe-conduct  of  the  our  opinion  of  ill  desert  in  the  party,  or 

emperor  very  loosely  worded,  and  not  by  a  narrow  interpretation  of  our  own 

directed  to  any  indlTiduals.     Len&nt,  engagements.    Every  capitulation  ought 

t.  i.  p.  £8.     2.  This  pass  however  was  to     be    construed    fevorably    for    the 

binding  upon  Uie  emperor  himself,  and  weaker  side.    In  such  cases  it  is  emphat- 

was  so  considered  by  him,  when  he  re-  ically  true  that,  if  the  letter  kllleth,  the 

monstrated  a^piinst  the  arrest  of  Uuss.  spirit  should  give  life. 
Id.  p.  78,  88.    8.  It  was  not  binding  on       Gerson,  the  most  eminent  theologian 

the  eoundl,  who  possessed  no  temporal  of  his  a^e,  and  the  coryphseus  of  the 

powex,  but  bad  a  right  to  decide  upon  party  that  opposed  the  transalpine  prin* 

the  question  of  heresy.     4.  It  Is  not  ciples,  was  deeply  concerned  in  this  utrv 

■umifest  by  what  civil  authority  Huss  oious  business.    Crevier,  p.  432 
VM  avrested,  nor  ean  I  determine  how 


46  UNIVERSAL  COUNCILS.    Chap.  VH.  Pabt  IL 

ritj  of  their  regular  discipline,  at  the  hands  of  a  general 
council.  Whatever  dijfficulty  there  might  be  in  overturning 
the  principles  founded  on  the  decretals  of  Isidore,  and  sanc- 
tioned by  the  prescription  of  many  centuries,  the  more  flagrant 
encroachments  of  papal  tyranny  were  fresh  innovations,  some 
within  the  actual  generation,  others  easily  to  be  traced  up^ 
and  continually  disputed.  The  principal  European  nations 
determined,  with  different  degrees  indeed  of  energy,  to  make 
a  stand  against  the  despotism  of  Rome.  In  this  resistance 
England  was  not  only  the  first  engaged,  but  the  most  c^msist- 
ent ;  her  free  parliament  preventing,  as  far  as  the  times  per- 
mitted, that  wavering  policy  to  which  a  court  is  liable.  We 
have  already  seen  that  a  foundation  was  laid  in  the  statute  of 
provisors  under  Edward  III.  In  the  next  reign  many  other 
measures  tending  to  repress  the  interference  of  Rome  were 
adopted,  especially  the  great  statute  of  pi*semunire,  which 
subjects  all  persons  bringing  papal  bulls  for  translation  of 
bishops  and  other  enumerated  purposes  into  the  kingdom  to 
the  ()enalties  of  forfeiture  and  perpetual  imprisonment^  This 
act  received,  and  probably  was  designed  to  receive,  a  larger 
interpretation  than  its  language  appears  to  warrant.  Com- 
bined with  the  statute  of  provisors,  it  put  a  stop  to  the  pope's 
usurpation  of  patronage,  which  had  impoverished  the  church 
and  kingdom  of  England  for  nearly  two  centuries.  Several 
attempts  were  made  to  overthrow  these  enactments ;  the  first 
parliament  of  Henry  IV.  gave  a  very  large  power  to  the  king 
over  the  statute  of  provisos,  enabling  him  even  to  annul  it  at 
his  pleasure.*  This,  however,  does  not  appear  in  the  statute- 
book.  Henry  indeed,  like  his  predecessoi-s,  exercised  rather 
largely  his  prerogjitive  of  dispensing  with  the  law  against 
papal  provisions ;  a  prerogative  which,  as  to  this  point,  was 
itself  taken  away  by  an  act  of  his  own,  and  anotlier  of  his 
son  Henry  V.'  But  the  statute  always  stood  unrepealed ; 
and  it  is  a  satisfactory  proof  of  the  ecclesiastical  supremacy 
of  the  legislature  iliat  m  the  concordat  made  by  Martin  V.  at 
the  council  of  Constance  with  the  English  nation  we  find  no 
mention  of  reservation  of  benefices,  of  annates,  and  tlie  other 

1  16  Ric.  n.  e.  6.  iti  repeal.     Collier,  p.  6138.     Chlcheley 

*  Rot.  Pari.  Tol.  ill.  p.  428.  'did all  In  his  power:  but  the  coiuniont 

*  7  II.  IV.  c.  8;  8  il.  V.  c.  4.     Martin    were  always  inexorable  on  this  head,  p. 
V.  published  an  angry  bull  sgainst  the    636;  and  the  archbishop  even  incurred 
"  execrable  Ptatutp  "  of  pmmunlre  ;  en-    Martinis  resentment  by  it.   Wilkins,  0  »• 
Joining  archbUhop  Oliiahaley  to  procure    ollift,  t.  iil.  p.  488. 


BocuBS.  PowKB.       mFLUENCE  OF  WICLIFF.  47 

principal  grievances  of  that  age;^  our  ancestors  dis^daining  to 
accept  by  compromise  with  the  pope  anj  modification  or  even 
confirmation  of  their  statute  law.  They  had  already  restrained 
another  flagrant  abuse,  the  increa-^e  of  first  fruits  by  Boniface 
IX. ;  an  act  of  Henry  IV.  forbidding  any  greater  sum  to  be 
paid  on  that  account  than  had  been  Ibrmeriy  accustomed.' 

It  will  appear  evident  to  every  person  acquainted  with  the 
contemporary  historians,  and  the  proceedings  of  pariiament, 
that,  besides  partaking  in  the  general  resentment  of  Europe 
against  the  papal  court,  England  was  under  the  influence  <f 
influence  of  a  peculiar  hostility  to  the  clergy,  aris-  wiciiff»« 
ing  from  the  dissemination  of  the  principles  of  ^^^' 
Wicliff.'  AH  ecclesiastical  possessions  were  marked  for 
spoliation  by  the  system  of  this  reformer ;  and  the  house  of 
commons  more  than  once  endeavored  to  carry  it  into  effect, 
pressing  Henry  lY.  to  seize  the  temporalities  of  the  church 
for  public  exigencies.^  This  recommendation,  besides-  its 
injustice,  was  not  likely  to  move  Henry,  whose  policy  had 
been  to  sustain  the  prelacy  againvst  their  new  adversaries. 
Ecclesiastical  jurisdiction  was  kept  in  better  control  than 
formerly  by  the  judges  of  common  law,  who,  through  rather 
a  strained  construction  of  the  statute  of  praemunire,  extended 
its  penalties  to  the  spiritual  coui*ts  when  they  transgressed 
their  limits.*  The  privilege  of  clergy  in  criminal  cases  still 
remained ;  but  it  was  acknowledged  not  to  comprehend  high 
treason.* 

i  Lenfitnt,  t.  ii.  p.  444.  •  8  Inst.  p.  121 ;  Collier,  rol.  1.  p.  668. 

S6Ii.  IV.  e.l.  •  2  Inst.   p.   634;   where  (WTeral    in- 

s  See,  among  many  other  paMiage8,th«  itances  of  priests  executed  for  coining 

articles  exhibited  by  the  Lollards  to  par-  and  other  treasons  arr  adduced.     And 

Uami'nt  against  the  clerer  in  1394.    Col-  this  may  also  be  inferred  from  25  E.  III. 

Uer  gires  thnstttMtance  of  them,  and  they  stat.  8,  c.  4 ;  and  from  4  II.  IV.  o.  8.  In- 

an?  noticed  by  Henry;   but  they  are  at  deed  the   benefit   of  clergy  has    never 

full  length  in  Wilkins^^t.  iii.  p.  2^1.  been  taken  away  by  statute  from  high 

*  Wabiingham,  p.  8(1,  879;  Hot.  Pari,  treason.    This  renders  it  improbable  that 

II  II.  IV.  Tol.  iii.  p.  645.   The  remarkable  chief  Justice  Goscoyne  should,  as  Carte 

eireumstances  detailed  by  Walsingham  tells  us,  toI.  ii.  p.  664,  have  refused  to 

In  the  former  psjiss^^  are  not  eorrobo-  try  archbishop  Sorope  Ibr  treason,  on 

rated  by  anything  in  the  records.    Hutas  the  g^und  that  no  one  could  lawfully 

it  is  unlikely  that  so  particular  a  narra-  sit  in  Judgment  on  a  bishop  for  his  life, 

tire  should  have  no  fouudation,  Hume  ^Vhctber  he  might  have  declined  to  try 

has  plausibly  conjectured  that  the  roll  him  as  a  peer  is  another  question.     Tha 

has  been  wilfully  mutilated.      As  this  pope  excomrannicated  all  who  were  eon- 

suspirion  occurs  in  other  instances,  it  cemed  in  Scrope's  death,  and  it  <HMt 

would  be  desirable  to  astcertaln,  by  ex-  Henry  a  large  sum  to  obtain  absolution, 

amiuation  of  the  original  rolls,  whether  But  Bnnif.vce  IX.  was  no  arbiter  of  the 

they  bear  any  external  marks  of  injury,.  English    law.      iSdward  IV.  granted  a 

Tha  mutilators,  howerer,  if  such  there  strange  charter  to  the  clergy,  not  only 

irere,  bave  left  a  great  deal.    The  rolls  of  dispensing  with    the   statutes   of  prs»> 

Benzy  IV.  and  V.'s  parliaments  are  quite  munire,  but  absnlutelv  exempting  them 

fiiU  of  patttUkni  against  the  elexgy.  from  temporal  Jurisdiction  In  cases  of 


^■«--  ^w. 


48       CONCOKDATS  OF  ASCHAFFENBURG.  Chap.  VH.  Pabt  O. 

Grermanj,  as  well  as  England,  was  disappointed  of  her  hopes 
of  general  reformation  by  the  Italian  party  at  Constance  ;  but 
she  did  not  supply  the  want  of  the  council's  decrees  with  suf- 
ficient decision.  A  concordat  with  Martin  V.  lefl  the  pope  in 
Goneordats  possession  of  too  great  a  part  of  his  recent  usurpa- 
of  Aachaf-  tions.*  This,  however,  was  repugnant  to  the  spirit 
n  "*■  of  Grermany,  which  called  for  a  more  thorough 
reform  with  all  the  national  roughness  and  honesty.  The 
diet  of  Mentz,  during  the  continuance  of  the  council  of  Basle, 
adopted  all  those  regulations  hostile  to  the  papal  interests 
which  occasioned  the  deadly  quarrel  between  that  assembly 
and  the  court  of  Rome.^  But  the  German  empire  was  be- 
trayed by  Frederic  III.,  and  deceived  by  an  accomplished  but 
profligate  statesman,  his  secretary  ^neas  Sylvius.  Fresh 
concordats,  settled  at  Aschaffenburg  in  1448,  nearly  upon  a 
footing  of  those  concluded  with  Martin  V.,  surrendered  great 
part  of  the  independence  for  which  Germany  had  contended. 
The  pope  retained  his  annates,  or  at  least  a  sort  of  tax  in 
their  place ;  and  instead  of  reserving  benefices  arbitxarily,  he 
obtained  the  positive  right  of  collation  during  six  alternate 
months  of  every  year.  Episcopal  elections  were  freely  re- 
stored to  the  chapters,  except  in  case  of  translation,  when  the 
pope  still  continued  to  nominate ;  as  he  did  also  if  any  person, 
canonically  unfit,  were  presented  to  him  for  confirmation.* 
Such  is  the  concordat  of  Aschafienburg,  by  which  the  catholic 
principalities  of  the  empire  have  always  been  governed, 
though  reluctantly  acquiescing  in  its  disadvantageous  provis- 
ions. Home,  for  the  remainder  of  the  fifteenth  century,  not 
satisfied  with  the  terms  she  had  imposed,  is  said  to  have  con- 
tinually encroached  upon  the  right  of  election.^  But  she 
purchased  too  dearly  her  triumph  over  the  weakness  of 
Frederic  III.,  and  the  Hundred  Grievances  of  Germany, 
presented  to  Adrian  VI.  by  the  diet  of  Nuremberg  in  1522, 

troason  as  well  as  felony.    Wllldos,  Con-  Roma  wonld   aniwer,    If    the   annatea 

dlia,  t.  iii.  p.  688 ;  Collier,  p.  678.    This,  were  bnt  sufflcient  for  the  pope^s  maia- 

howerer,  being  an  illegal  grant,  took  no  tenanoe  at  that  time,  what  most  they  be 

flOect,  at  least  after  his  death.  now  ? 

1  I^n&nt,  t.  ii.  p.  428;  Schmidt,  t.  T  «  Schmidt,  p.  08 ;  Aneas  SyMns,  Epist. 
p.  181.  889  and  871 ;  and  De  Moribus  German- 
s  Schmidt,  t.  T.  p.  221 ;  Lenfiint  oram,  p.  1041,  1061.  Seveml  little  dis- 
•  Schmidt,  t.  t.  p.  250 ;  t.  vi.  p.  04,  putes  with  the  pope  indicate  the  spirit 
fre.  He  observes  that  there  is  three  that  was  fermenting  in  Germany  through- 
times  as  much  money  at  present  as  in  out  the  fifteenth  century.  But  this  is 
the  fifteenth  century:  if  therefore  the  the  proper  subject  of  a  more  detailed 
annates  are  now  f^It  as  a  bnrden,  what  ecclesiastienl  history,  and  shouli  Ibrm  an 
nust  they  have  been?  p.  118.    TO  this  introduction  to  that  of  the  B«fiwmatioii. 


BCCLB.  PowBB.      PAPAL  ENCBOACHMENTS.  49 

manifested  the  working  of  a  long-treasured  resentment,  tluit 
had  made  straight  the  path  befoi*e  the  Saxon  reformer. 

I  have  akeadj  taken  notice  that  the  Castilian  church  was 
in  the  first  acres  of  that  monarchy  nearly  inde- 
pendent  of  Rome.  But  after  many  gi-adual  en-  cSiilchminta 
croachments  the  code  of  laws  promulgated  by  »«» church  of 
Alfonso  X.  had  incorporated  a  great  part  of  the 
decretals,  and  thus  given  the  papal  jurisprudence  an  author- 
ity which  it  nowhere  else  possessed  in  national  tribunals.^ 
That  richly  endowed  hierarchy  was  a  tempting  spoil.  The 
popes  filled  up  its  benefices  by  means  of  expectatives  and 
reserves  with  their  own  Italian  dependents.  We  find  the 
cortes  of  Palencia  in  1388  complaining  that  strangers  are 
beneficed  in  Castile,  through  which  the  churches  are  ill  8up« 
plied,  and  native  scholars  cannot  be  provided,  and  requesting 
the  king  to  take  such  measures  in  relation  to  this  as  the 
kings  of  France,  Aragon,  and  Navarre,  who  do  not  permit 
any  but  natives  to  hold  benefices  in  their  kingdoms.  The 
king  answered  to  this  petition  that  he  would  use  his  en- 
deavors to  that  end.'  And  this  is  expressed  with  greater 
warmth  by  a  cortes  of  1473,  who  declare  it  to  be  the  custom 
of  all  Christian  nations  that  foreigners  should  not  be  pro- 
moted to  benefices,  urging  the  discoui^ement  of  native 
learning,  the  decay  of  charity,  the  bad  performance  of  relig- 
ious rites,  and  other  evils  arising  from  the  non-residence  of 
beneficed  priests,  and  request  the  king  to  notify  to  the  court 
of  Rome  that  no  expectative  or  provision  in  favor  of  foreign- 
ers can  be  received  in  future.*  This  petition  seems  to  have 
passed  into  a  law ;  but  I  am  ignorant  of  the  consequences. 
Spain  certainly  took  an  active  part  in  restraining  the  abuses 
of  pontifical  authority  at  the  councils  of  Constance  and 
Basle ;  to  which  I  might  add  the  name  of  Trent,  if  that  as- 
sembly were  not  beyond  my  province. 

France,  dissatisfied  with  the  abordve  termination  of  her 
exertions  during  the  schism,  rejected  the  concor-  q^^^^  ^ 
dat  offered  by  Martin  Y.,  which  held  out  but  a  papal  an- 
promise  of  imperfect  reformation.*     She  suffered  i^nS.*" 
in  consequence  the  papal  exactions  for  some  years, 
till  the  decrees  of  the  council  of  Basle  prompted  her  to  more 

1  Marina,  Sniajo  Hbtorico-Critieo,  o.       *  Teoria  de  Ian  Oortef ,  t.  U.  p.  8M; 
w«  ke,  Mariana,  Hint.  Uispan.  1.  zU.  o.  X. 

•      ■  Id.    TMria  de  laa  Oortw,  t.  U.  p.  126.       *  VUlant,  t.  xv.  o.  12B. 

VOL  U.  —  M.  4 


50  CHECKS  ON  PAPAL      Chap.  VH.  Pakt  II. 

vigorous  efforts  for  independence,  and  Charles  VTI.  enacted 
the  famous  Pragmatic  Sanction  of  Bourges.*  This  has  been 
deemed  a  sort  of  Magna  Charta  of  the  Gallican  church ;  for 
though  the  hiw  was  speedily  abrogated,  its  principle  has  re- 
mained fixed  as  the  basis  of  ecclesia^tia^l  liberties.  By  the 
Pragmatic  Sanction  a  general  council  was  declared  superior 
to  the  pope;  elections  of  bishops  were  made  free  from  all 
control;  mandats  or  grants  in  expectancy,  and  reservations 
of  benefices,  were  taken  away ;  firet  fruits  were  abolished. 
This  defalcation  of  wealth,  which  had  now  become  dearer 
than  power,  could  not  be  patiently  borne  at  Rome.  Pius  II., 
the  same  ^neas  Sylvius  who  had  sold  himself  to  oppose  the 
council  of  Basle,  in  whose  service  he  had  been  originally  dis- 
tinguished, used  every  endeavor  to  procure  the  repeal  of  this 
ordinance.  With  Charles  VII.  he  had  no  success;  but  Louis 
XI.,  partly  out  of  blind  hatred  to  his  fatlier's  memory,  partly 
from  a  delusive  expectation  that  the  pope  would  support  the 
Angevin  faction  in  Naples,  repealed  the  Pragmatic  Sanc- 
tion.^ This  may  be  added  to  other  proofs  that  Liouis  XL, 
even  according  to  the  measures  of  worldly  wisdom,  was  not  a 
wise  politician.  His  people  judged  from  better  feelings ;  the 
parliament  of  Paris  constantly  refused  to  enregister  the  rev- 
ocation of  that  favorite  law,  and  it  continued  in  many  re- 
spects to  be  acted  upon  until  the  reign  of  Francis  I.'  At  the 
States  Grcneral  of  Tours,  in  1484,  the  inferior  clergy,  second- 
ed by  the  two  other  orders,  eaniestly  requested  that  the 
Pragmatic  Sanction  might  be  confirmed;  but  the  prelates 
were  timid  or  corrupt,  and  the  regent  Anne  was  unwilUng  to 
risk  a  quarrel  with  the  Holy  See.*  This  unsettled  state  con- 
tinued, the  Pragmatic  Sanction  neither  quite  enforced  nor 
quite  repealed,  till  Francis  L,  having  accommodated  the 
differences  of  his  predecessor  with  Rome,  agreed  upon  a  final 
concordat  wllh  Leo  X.,  the  treaty  that  subsisted  for  almost 
three  centuries  between  the  papacy  and  the  kingdom  of 
France.*  Instead  of  capitular  election  or  papal  provision,  a 
new  method  was  devised  for  filling  the  vacancies  of  episcopal 
sees.     The  king  was  to  nominate  a  fit  person,  whom  the 

iTdem,  p.  263;  Ilist.  da  Droit  Public  3  Garnier,  t.  x«i.  p.  432:   t.'  zrli.  p. 

Eeeles.  Francis,  t.  I',  p.  23«;   Fleury,  222  «t  aUbl.    Crw?i«r,  t.  Iv.  p.  818  at 

Institutions  au  Droit;  Orevier,  t.  ir.  p.  alibi. 

lOU  ;  Paffoiilor,  Recherclies  dc  la  Fruiice«  «  Gamier,  t.  xix.  p  216  add  821. 

LfU.  c.  2i.  frtlHriiivr.  t.   xxiii.  p.   151;   Uist.  dv 

*  Viilarvt,  and  Garnier,  t.  xtI.  ;   Crv  Droit  Public  Ecclat.  Vr.  t.  U.  p.  243; 

fkr,  t.  It.  p.  260,  274.  Fkury.  losUtutions  au  Droit,  t.  i.  p.  lOZ 


BcGLBS.  Pother.       AUTHORITY  IN  FRANCE.  51 

pope  was  to  collate.  The  one  obtained  an  essential  patron* 
age,  the  other  preserved  his  theoretical  supremacy.  Annates 
were  restored  to  the  pope  ;  a  concession  of  great  importance. 
He  giive  up  his  indetinite  prerogative  of  reserving  benefices, 
and  received  only  a  small  stipulated  patronage.  '  This  con- 
vention met  with  strenuous  opposition  in  France  ;  the  parlia- 
ment of  Paris  yielded  only  to  force ;  the  university  hardly 
stopped  short  of  sedition ;  the  zealous  Gallicans  have  ever 
since  deplored  it,  as  a  fatal  wound  to  their  liberties.  There 
is  much  exaggeration  in  this,  as  far  as  the  relation  of  the 
Gallicjin  church  to  Rome  is  concerned ;  but  the  royal  nomina- 
tion to  bishoprics  impaired  of  course  the  independence  of  the 
hierarchy.  Whether  this  prerogative  of  the  crown  were 
upon  the  whole  beneficial  to  France,  is  a  problem  that  I  can- 
not affect  to  solve ;  in  this  country  there  seems  little  doubt 
that  capitular  elections,  which  the  statute  of  Henry  VIII.  has 
reduced  to  a  name,  would  long  since  have  degenerated  into 
the  corruption  of  close  boroughs ;  but  the  circumstances  of 
the  Gallican  establishment  may  not  have  been  entirely  simi- 
lar, and  the  question  opens  a  variety  of  considerations  that 
do  not  belong  to  my  present  subject. 

From  the  principles  established  during  the  schism,  and  in 
the  Pragmatic  Sanction  of  Bourges,  ai'ose  the  far-  u^^rties  of 
famed  liberties  of  the  Gallican  church,  which  hon-  tbo  Gaiucan 
orably  distinguished  her  from  other  members  of  ®*"*"^- 
the  Roman  communion.  These  have  been  referred  by  French 
writers  to  a  much  earlier  era ;  but  except  so  far  as  that  country 
participated  in  the  ancient  ecclesiastical  independence  of  all 
Europe,  before  the  papal  encroachments  had  subverted  it,  I 
do  not  see  that  tliey  can  be  properly  traced  above  the 
fifleenth  century.  Nor  had  they  acquired  even  at  the  expi- 
ration of  that  age  the  precision  and  consistency  which  was 
given  in  later  times  by  the  constant  spirit  of  the  parliaments 
and  universities,  as  well  as  by  the  best  ecclesiastical  authors, 
with  little  assistance  from  the  crown,  wliich,  except  in  a  few 
periods  of  disagreement  with  Rome,  has  rather  been  disposed 
to  restrain  the  more  zealous  Gallicans.  These  liberties, 
therefore,  do  not  strictly  fall  within  my  limits  ;  and  it  will  be 
sufficient  to  observe  that  they  depended  upon  two  maxims : 
one,  that  the  pope  does  not  possess  any  direct  or  indirect 
temporal  authority ;  the  other,  that  his  spiritual  jurisdiction 
can  only  be  exercised  in  conformity  with  such  parts  of  the 


52  ECCLESIASTICAL  JUBISDICTION  Chap.  YIL  Past  IL 

canon  law  as  are  received  by  the  kingdom  of  France. 
Hence  the  Gkillican  church  rejected  a  great  part  of  the  Sext 
and  Clebientines,  and  paid  httle  regard  to  modern  papal 
bulls,  which  in  fact  obtained  validity  only  by  the  king^s  ap- 
probation.^ 
The  pontifical  usurpations  which  were  thus  restrained^  af* 

fected,  at  least  in  their  direct  operation,  rather  the 
eai^juru- '  church  than  the  state ;  and  temporal  governments 
d*ction  r».      would  ouly  havc  been  half  emancipated,  if  their 

national  hierarchies  had  preserved  their  enormous 
jurisdiction.^  England,  in  this  also,  began  the  work,  and 
had  made  a  considerable  progress,  while  the  mistaken  piety 
or  policy  of  Louis  IX.  and  his  successors  had  laid  Franoa 
open  to  vast  encroachments.  The  first  method  adopted  in 
order  to  check  them  was  rude  enough ;  by  seizing  the  bishop's 
effects  when  he  exceeded  his  jurisdiction.*  This  jurisdiction, 
according  to  the  construction  of  churchmen,  became  perpetu- 
ally larger :  even  the  reforming  council  of  Constance  give  an 
enumeration  of  ecclesiastical  causes  far  beyond  the  limits 
acknowledged  in  England,  or  perhaps  in  France.^  But  the 
parliament  of  Paris,  instituted  in  1304,  gradually  estab- 
lished a  paramount  authority  over  ecclesiastical  as  well  as 
civil  tribunals.  Their  progress  was  indeed  very  slow.  At  a 
famous  assembly  in  1329,  before  Philip  of  Yalois,  his  advo- 
cate-general, Peter  de  Cugnieres,  pronounced  a  long  harangue 

1  FleiU7,  TnRtltatiODS  an  Droit,  t.  II.  p.  gnblhaiafl  noerdotnm,  qaanto  et  de  n^ 

226, 8ce.j  and  Diacoun  tur  les  Libertte  de  bas  UU  In  diTino  reddituri  sunt  ezamlna 

PE^lim  Galllcane.     Tb«  last  editors  of  rationem  ;  et  ideo  scire  debet  regia  eelsl- 

thls  disAertfttion  go  fiur  beyond  Fleurr,  tndo  ex  Uloram  Toe  dependero  judicio, 

and  perbaps  reacb  tbe  utmost  p<dDt  in  non  illos  ad  vestram  dirlgl  posse  toIud- 

Umiting  the  papal  authority  which  a  tatem.    Wilkins,  CoDciUa,  t.  U.  p.  068. 

sincere  member  of  that  communion  can  This  amaadng  Impadenee  towards  such  a 

attain.    See  notes,  p.  417  and  446.  prince  as  Edward  did  not  succeed ;  but  it 

s  It  ought  always  to  be  remembered  is  interesting  to  follow  the  track  of  tlM 

that  eecUsiastietiiy  and  not  merely  papal^  star   which   was  now   rather  receding, 

encroachments   are  what  clTil  gorern-  though  still  fierce, 
ments  and  the  laity  In  general  hare  had       *  De  Marea,  De  ConoordantiA,  I.  It.  o 

to   resist;    a  point  wnlch   some   Tery  18. 

Malous   onposers  of   Rome   hare  been       *  De  Marra,  De  GoneordantUl,  1.  iT. 

willing  to  keep  out  of  sight.    The  latter  o.  16 ;  Lenftint,  Cone,  de  Constance,  t.  iL 

arose  out  of  the  former,  and  perhapewere  p.  83l.    De  Harea,  1.  It.  e.  16,  giree  as 

in  some  respects  less  ol:|)ectionable.    But  passages  fVom  one  Durandns  about  1809. 

the  true  enemy  is  what  are  called  High>  complaiaing  that  the  lay  Judges  luTadea 

ehurch  principles;  be  they  maintained  ecclesiastical  jurisdiction,  and  i^ckonlng 

by  a  pope,  a  bishop,  or  a   presbyter,  the  cases  sut^t  to  the  latter,  under 

Thus  archbishop  Stratford  writes  to  Ed-  which  he  includes  feudal  and  criminal 

ward  III. :    Duo   sunt,  quibus  princi-  causes  in  some  circumstances,  and  also 

paliter  regitur  mundns,  sacra  ponnflcalis  those  in  which  the  temporal  judges  are 

auctoritas,  et  regalis  ordiuata  potestas :  In  doubt ;  si  quid  ambiguum  inter  judl- 

Ia  quibus  est  poodns  taato  graTius  et  oes  aeeularss  oxiatnr. 


EcouBs.  PowEB.  RESTRMKED.  53 

against  the  excesses  of  spiritual  jurisdictioii.  This  is  a 
curious  illustration  of  that  branch  of  legal  and  ecdesia&tical 
history.  It  was  answered  at  large  by  some  bishops,  and  the 
king  did  not  venture  to  take  any  active  measures  at  that  time.' 
Several  regulations  were,  however,  made  in  the  fourteenth 
century,  which  took  away  the  ecclesiastical  cognizance  of 
adultery,  of  the  execution  of  testaments,  and  other  causes 
which  bad  been  claimed  by  the  clergy.^  Their  immunity  in 
criminal  matters  was  straitened  by  the  introduction  of  privi- 
ledged  cases,  to  which  it  did  not  extend ;  such  as  treason, 
murder,  robbery,  and  other  heinous  offences.'  The  parlia- 
ment began  to  exercise  a  judicial  control  over  episcopal 
courts.  It  was  not,  however,  till  the  beginning  of  the  six- 
teenth  century,  according  to  the  best  writers,  that  it  devised 
its  famous  form  of  procedure,  the  '^appeal  because  of  abuse." ^ 
This,  in  the  course  of  time,  and  through  the  decline  of  ecde- 
siastical  power,  not  only  proved  an  effectual  barrier  against 
encroachments  of  spiritual  jurisdiction,  but  drew  back  again 
to  the  lay  court  the  greater  part  of  those  causes  which  by 
prescription^  and  indeed  by  law,  had  appertained  to  a  different 
cognizance.  Thus  testamentary,  and  even,  in  a  great  degree, 
matrimonial  causes  were  decided  by  the  parliament ;  and  in 
many  other  matters  that  body,  being  the  judge  of  its  own 
competence,  narrowed,  by  means  of  the  appeal  because  of 
abuse,  the  boundaries  of  the  opposite  jurisdiction.*  This 
remedial  process  appears  to  have  been  more  extensively  ap- 
plied than  our  English  writ  of  prohibition.  The  latter  merely 
restrains  the  interference  of  the  ecclesiastical  courts  in  matters 
which  the  law  has  not  committed  to  them.  But  the  parlisr 
ment  of  Paris  considered  itself,  I  apprehend,  as  conservator 
of  the  liberties  and  discipline  of  the  Gallican  church ;  and 
interposed  the  appeal  because  of  abuse,  whenever  the  spir- 
itual court,  even  in  its  proper  province,  transgressed  the 
canonical  rules  by  which  it  ought  to  be  governed.' 

1  VeUy,  t.  TiU.  p.  284 ;  Fleuxr,  Insti-  cage,  w)iich  till  lately  was  shown  in  the 

tatlODa.  i.  U.  p.  12 ;  HiBt.  da  Droit  XocUs.  caetie  of  Lochea. 

IfeaDC.  t.  U.  p.  88.  4  Paaqaier,  1.  iii.  e.  88;  Hist,  da  I>roit 

<  VilUmt,  t.  zi.  p.  182.  Eccl«a.  Vran^ola.  t.  ii.  p.  119 ;  Fleory, 

*  Vleorj.  ImtitutiODa  aa  Droit,  t.  U.  p.  Institatioaa  aa  Droit  Bcclte  Francois,  t. 

188.     In  the  fiunoaa  case  of  Balne,  a  il.  p.  221 ;  De  Marca,  De  Concordantl& 

biahop  and  cardiDal,  w'lom  Louia  XI.  de-  Saeerdotii  et  Imperii,  1.  It.  c.  19.    The 

teeted  in  a  traaaona}>le  Intrigoe,  it  was  last  aathor  seems  to  carry  it  rather 

contended  by  the  king  that  he  had  a  rijrtit  higher. 

to  punish  him  capitally.    Da  Gloe,  Vie  *  Flenry,  Institutions,  t.  ii.  p.  42.  fro. 

de  Louis  XI.  t.  i.  p.  422 ;  Gamier,  Hist.  *  De  Marca,  De  Concordanti&,  1.  ir.  o. 

ds  Fiance,  t.  zril.  p.  880.     Balae  was  9 ;  Fleory,  t.  U.  p.  224.     In  Spain,  evea 

for  many  yean  In  a  small  iron  now,  sayi  De  Sfaroa,  bishops  or  okikf 


54  HECLINE  OF  PAPAL      Chap.  Vn.  Pajw  11. 

While  the  bishops  of  Rome  were  losing  their  general  in- 
Dncifne  of  Aucnce  over  Europe,  they  did  not  gain  more  esti- 
papiii  influ-  mation  in  Italy.  It  is  indeed  a  problem  of  some 
•iioa  A  y.  jijjf^^juijy^  whether  they  derived  any  substantial  ad- 
vantage from  their  temporal  principality.  For  the  last  three 
centuries  it  has  certainly  been  conducive  to  tlie  maintenance 
of  tlieir  spiritual  supremacy,  which,  in  the  complicated  re- 
lations of  policy,  might  have  been  endangered  by  their 
becoming  the  subjects  of  any  particular  sovereign.  But  I 
doubt  whether  their  real  authority  over  Christendom  in  the 
middle  ages  was  not  better  preserved  by  a  state  of  nominal 
dependence  upon  the  empire,  without  much  effective  control 
on  one  side,  or  many  temptations  to  worldly  ambition  on  the 
other.  That  covetousness  of  temporal  sway  which,  having 
long  prompted  their  measures  of  usurpation  and  forgery, 
seemed,  from  tlie  time  of  Innocent  III.  and  Nicholas  III.,  to 
reap  its  gratification,  impaired  the  more  essential  parts  of  the 
papal  authority.  In  the  fourteenth  and  fifteenth  centuries 
the  popes  degraded  their  cliaracter  by  too  much  anxiety  about 
the  politics  of  Italy.  The  veil  woven  by  religious  awe  waa 
rent  asunder,  and  the  features  of  ordinary  ambition  appeared 
without  disguise.  For  it  was  no  longer  that  magnificent  and 
original  system  of  spiritual  power  which  made  Gregory  VII., 
even  in  exile,  a  rival  of  the  emperor,  which  held  forth  re- 
dress where  the  law  could  not  protect,  and  punishment  where 
it  could  not  chastise,  which  fell  in  sometimes  with  supersti- 
tious feeling,  and  sometimes  with  political  interest.  Many 
might  believe  tliat  the  pope  could  depose  a  schismatic  prince, 
who  were  disgusted  at  his  attacking  an  unoffending  neighbor. 
As  the  cupidity  of  the  clergy  in  regard  to  worldly  estate  had 
lowered  their  character  everywhere,  so  the  similar  conduct  of 
their  head  undermined  the  respect  felt  for  him  in  Italy.  The 
censures  of  the  church,  those  exconmiunications  and  inter- 
dicts which  had  made  Europe  tremble,  became  gradually  des- 
picable as  well  as  odious  when  they  were  lavished  in  every 
squabble  for  temtory  which  the  pope  was  pleased  to  make 
his  ovvn.^     Even  the  crusades,  which  had  already  been  tried 

not  obeying  royftl  mavdateB  that  Inhibit  lay  down  the  goTcrnment  within  a  month, 

the  excedMS  of  eoelexiatitlcal  courts  aae  Bloratori  ad  ann.    Acuriounstylefor  th« 

•ipcllml  from  the  kingaom  and  depriTed  pope  to  adopt  towardt)  a  free  city !    Six 

of  the  rljchtu  of  dtMiiwn'ship.  yearn  before  the  Venetians  had  been  in- 

1  In  1290  l*tffa  was  put  under  an  Inter-  terdicted  because  they  would  not  allow 

dkt  for  haWtig  conferred  the  signiory  their  galleys  to  be  hired  by  the  king  of 

oa  the  count  of  Montefvltro ;  and  he  waa  Naples.    Bnt  it  would  be  ahnoafe  andleM 

«vdM«d,  on  pain  of  eaconununteation,  to  to  quota  •wj  instanna. 


ILccuss.  PowBB.         INFLUENCE  IN  ITALY.  55 

against  the  heretics  of  Languedoc,  were  now  preached  against 
all  who  espoused  a  different  party  from  the  Roman  see  in  the 
quarrels  of  Italy.  Such  were  those  directed  at  Frederic  II., 
at  Manfred,  and  at  JVIatteo  Yisconti,  accompanied  by  the 
usual  bribery,  indulgences,  and  remission  of  sins.  The  papal 
in*^erdicts  of  the  fourteenth  century  wore  a  different  complex- 
ion from  those  of  former  times.  Though  tremendous  to 
the  imagination,  they  had  hitherto  been  confined  to  spiritual 
effects,  or  to  such  as  were  connected  with  religion,  as  the 
prohibition  of  marriage  and  sepulture.  But  Clement  V.,  oa 
account  of  an  attack  made  by  the  Venetians  upon  Ferrara 
in  1309,  proclaimed  the  whole  people  infamous,  and  incapa- 
ble for  three  generations  of  any  office,  their  goods,  in  every 
part  of  the  world,  subject  to  confiscation,  and  every  Venetian, 
wherever  he  might  be  found,  liable  to  be  reduced  into  slave- 
ry.* A  buU  in  the  same  terms  was  published  by  Gregory 
XI.  in  1376  against  the  Florentines. 

From  the  termination  of  the  schism,  as  the  popes  found 
their  ambition  thwarted  beyond  the  Alps,  it  was  diverted 
more  and  more  towards  schemes  of  temporal  sovereignty. 
In  these  we  do  not  perceive  that  consistent  policy  which 
remarkably  actuated  their  conduct  as  supreme  heads  of  the 
church.  Men  generall}^  advanced  in  years,  and  bom  of  noble 
Italian  families,  made  the  papacy  subservient  to  the  elevation 
of  their  kindred,  or  to  the  interests  of  a  local  faction.  For 
Buch  ends  they  mingled  in  the  dark  conspiracies  of  that  bad  age, 
distinguished  only  by  the  more  scandalous  turpitude  of  their 
vices  from  the  petty  tyrants  and  intriguers  with  whom  they 
were  engaged.  In  the  latter  part  of  the  fifteenth  century, 
when  all  favorable  prejudices  were  worn  away,  those  who 
occupied  the  most  conspicuous  station  in  Europe  disgraced 
their  name  by  more  notorious  profligacy  than  could  be  paral- 
leled in  the  darkest  age  that  had  preceded ;  and  at  the  mo- 
ment beyond  which  this  work  is  not  carried,  the  invasion  of 
Italy  by  Charles  VIII.,  I  must  leave  the  pontifical  throne  in 
the  possession  of  Alexander  VI. 

It  has  been  my  object  in  the  present  chapter  to  bring 
within  the  compass  of  a  few  hours*  perusal  the  substance  of 
a  great  and  interesting  branch  of  history ;  not  certainly  with 
fuch  extensive  reach  of  learning  as  the  subject  might  require^ 

1  Muratoil. 


56  DECLINE  OF  PAPAL  INFUENCK  Chap.  VH.  Part  IL 

but  from  sources  of  unquestioned  credibility.  Unconsdoiif 
of  any  partialities  that  could  give  an  oblique  bias  to  mj 
mind,  1  have  not  been  very  solicitous  to  avoid  ofience  where 
offence  is  so  easily  taken.  Yet  there  is  one  misinterpretA* 
lion  of  my  meaning  which  I  would  gladly  obviate.  I  hav€ 
not  designed,  in  exhibiting  without  disguise  the  usurpations 
of  Rome  during  the  middle  ages,  to  furnish  materials  foi 
unjust  prejudice  or  unfounded  distrust.  It  is  an  advan 
tageous  circumstance  for  the  philosophical  inquirer  into  the 
history  of  ecclesiastical  dominion,  that,  as  it  spreads  itself 
over  the  vast  extent  of  fifteen  centuries,  tlie  dependence  of 
events  upon  general  causes,  rather  than  on  transitory  combi 
nations  or  the  character  of  individuals,  is  made  more  evident, 
and  the  future  more  probably  foretold  from  a  consideration 
of  the  past,  than  we  ai*e  apt  to  find  in  political  history.  Five 
centuries  have  now  elapsed,  during  every  one  of  which  the 
authority  of  the  Roman  see  has  successively  declined.  Slowly 
and  silently  receding  from  their  claims  to  temporal  power, 
the  pontiffs  hardly  protect  their  dilapidated  citadel  from  the 
revolutionary  concussions  of  modem  times,  the  rapacity  of 
governments,  and  the  growing  averseness  to  ecclesiastical 
influence.  But  if,  thus  bearded  by  unmannerly  and  threat- 
ening innovation,  they  should  occasionally  forget  that  cautious 
policy  which  necessity  has  prescribed,  if  they  should  attempt 
(an  unavailing  expedient  1)  to  revive  institutions  which  can 
be  no  longer  operative,  or  principles  that  have  died  away, 
their  defensive  efforts  will  not  be  unnatural,  nor  ought  to 
excite  either  indignation  or  alarm.  A  calm,  comprehensive 
study  of  ecclesiastical  history,  not  in  such  scraps  and  frag- 
ments as  the  ordinary  partisans  of  our  ephemeral  literature 
obtrude  upon  us,  is  perhaps  the  best  antidote  to  extravagant 
apprehensions.  Those  who  know  what  Rome  has  once  beeo 
are  best  able  to  appreciate  what  she  is ;  those  who  have  seeo 
the  thunderbolt  in  the  hands  of  the  Gregories  and  the  Inno- 
cents will  hardly  be  intimidated  at  the  siJlies  of  decrepitude 
he  impotent  dart  of  Priam  amidst  the  crackling  ruins  of 
Troy.* 

1  It  It  again  to  bo  xcmembeTed  ttutt  thia  paxagnph  wMwiitten  In  ISIA. 


HoTEB  ro  Chap.  YII.  TITHES.  57 


NOTES  TO  CHAPTER  VH. 


Note  I.     Vol.  1.  page  620, 

This  grant  is  recorded  in  two  charters  diflTering  materially 
from  each  other ;  the  first  transcribed  in  Ingulfus's  History 
of  Croyland,  and  dated  at  Winchester  on  the  Nones  of  No- 
vember, 855 ;  the  second  extant  in  two  chartularies,  and 
bearing  date  at  Wilton,  April  22,  854.  This  is  marked  by 
Mr.  Kenible  as  spurious  (Codex  Ang.-Sax.  Diplom.  ii.  52) ; 
and  the  authority  of  Ingulfus  is  not  sufficient  to  support  the 
first.  The  fact,  however,  that  Ethelwolf  made  some  great 
and  general  donation  to  the  church  rests  on  the  authority  of 
Asser,  whom  later  writers  have  principally  copied.  His 
words  are,  —  "  Eodem  quoque  anno  [855]  Adelwolfus  vener- 
abilis,  rex  Occidentalium  Saxonum,  decimam  totius  regni  sui 
partem  ab  omni  regali  servitio  et  tributo  liberavit,  et  in  sem- 
pitemo  grafio  in  cruce  Christi,  pro  redemptione  animsa  suas 
et  antecessorum  suorum,  Uni  et  Trino  Deo  immolavit" 
(Gale,  XV.  Script  iii.  156.) 

It  is  really  difficult  to  infer  anything  from  such  a  passage ; 
but  whatever  the  writer  may  have  meant,  or  whatever  truth 
there  may  be  in  his  story,  it  seems  impossible  to  strain  his 
words  into  a  grant  of  tithes.  The  charter  in  Ingulfus  rather 
leads  to  suppose,  but  that  in  the  Codex  Diplomaticus  deci- 
sively proves,  that  the  grant  conveyed  a  tenth  part  of  the 
land,  and  not  of  its  produce.  Sir  F.  Palgrave,  by  quoting 
only  the  latter  charter,  renders  Selden's  Hypothesis,  that  the 
general  right  to  titlies  dates  from  this  concession  of  Ethel- 
wolf,  even  more  untenable  than  it  is.  Certainly  the  charter 
copied  by  Ingulfus,  which  Sir  F.  Palgrave  passes  in  silence, 
does  grant  '*  decimam  partem  bonorum;"  that  is,  I  presume, 
of  chattels,  which,  as  far  as  it  goes,  impUes  a  tithe ;  while  the 
words  applicable  to  land  are  so  obscure  and  apparently  cor- 
nipl,  that  Selden  might  be  warranted  in  giving  them  the 


53  EDWT  AND  ELGIYA.  B^otkb  t© 

like  construction.  Both  charters  probably  aie  spurious;  but 
there  may  have  been  an  extensive  grant  to  the  church,  not 
only  of  immunity  from  tiie  trlnoda  necessitcu,  which  they 
express,  but  of  actual  possessions.  Since,  however,  it  must 
have  been  impracticable  to  endow  the  church  with  a  tenth 
part  of  appropriated  lands,  it  might  possibly  be  conjectured 
that  she  took  a  tenth  part  of  the  produce,  either  as  a  compo- 
sition, or  until  means  should  be  found  of  putting  her  in 
possession  of  the  soil.  And  although,  according  to  the  no- 
tions of  those  times,  the  actual  property  might  be  more 
desirable,  it  is  plain  to  us  that  a  tithe  of  the  produce  was 
of  much  greater  value  than  the  same  proportion  of  the  land 
itself. 

Note  II.    Vol.  I.  pages  630,  631. 

Two  living  writers  of  the  Roman  Catholic  communion,  Dr. 
Milner,  in  his  History  of  Winchester,  and  Dr.  Lingard,  in 
his  Antiquities  of  the  Anglo-Saxon  Church,  contend  that 
Elgiva,  whom  some  protestant  historians  are  willing  to  repre- 
sent as  the  queen  of  Edwy,  was  but  his  mistress ;  and  seem 
inclined  to  justify  the  conduct  of  Odo  and  Dunstan  towards 
this  unfortunate  couple.  They  are  unquestionably  so  far 
right,  that  few,  if  any,  of  those  writers  who  have  been  quoted 
as  authorities  in  respect  of  this  story  speak  of  the  lady  as  a 
queen  or  lawful  wife.  I  must  therefore  strongly  reprobate  the 
conduct  of  Dr.  Henry,  who,  calhng  Elgiva  queen,  and  assert- 
ing that  she  was  married,  refers,  at  the  bottom  of  his  page, 
to  William  of  Malmsbury  and  other  chroniclers,  who  give  a 
totally  opposite  account ;  especially  as  he  does  not  intimate, 
by  a  single  expression,  that  the  nature  of  her  connection  with 
the  king  was  equivocal.  Such  a  practice,  when  it  proceeds, 
as  I  fear  it  did  in  this  instance,  not  from  oversight,  but  from 
prejudice,  is  a  glaring  violation  of  historical  integrity,  and 
tends  to  render  the  use  of  references,  that  great  improvement 
of  modem  history,  a  sort  of  fraud  upon  the  readier.  The 
subject,  since  the  first  publication  of  these  Tolumes,  luis  been 
discussed  by  Dr.  LingJird  in  his  histories  both  of  England 
and  of  the  Anglo-Saxon  Church,  by  the  Edinburgh  reviewer 
of  that  history,  vol.  xlii.  (Mr.  Allen),  and  by  other  late 
;\rriter3.  Il^Ir.  Allen  has  also  given  a  short  dissertation  on 
the  subject,  in  the  second  edition  of  his  Inquiry  into  the 


OiiAP.  VII.  DEWY  AND  ELGIVA.  59 

Royal  Prerogative,  posthumously  published.  It  must  ever 
be  impossible,  unless  unknown  documents  are  brouglit  to 
light,  to  clear  up  all  the  facts  of  this  litigated  story.  But 
though  some  protest  ant  writers,  as  I  have  said,  in  maintain- 
ing the  matrimonial  connection  of  Edwy  and  Elgiva,  quote 
authorities  who  give  a  different  color  to  it,  there  is  a  pre- 
sumption of  the  marriage  from  a  passage  of  the  Saxon 
Chronicle,  a.d.  958  (wanting  in  Gibson's  edition,  but  dis- 
covered by  Mr.  Turner,  and  now  restored  to  its  place  by  Mr. 
Petrie),  which  distinctly  says  that  aix^hbishop  Odo  separated 
Eidwy  the  king  and  Elgiva  because  they  were  too  nearly 
related.  It  is  therefore  highly  probable  that  she  was  queen, 
though  Dr.  Lingard  seems  to  hesitate.  This  passage  was 
written  as  early  as  any  other  which  we  have  on  the  subject, 
and  in  a  more  placid  and  truthful  tone. 

The  royalty,  however,  of  Elgiva  will  be  out  of  all  pos- 
sible doubt,  if  we  can  depend  on  a  document,  being  a  refer- 
ence to  a  charter,  in  the  Cotton  library  (Claudius,  B.  vi.), 
wherein  she  appears  as  a  witness.  Turner  says  of  this,  •«* 
^  Had  the  charter  even  been  forged,  the  monks  would  have 
taken  care  that  the  names  appended  were  correct."  This 
Dr.  Lingard  inexcusably  calls  '^confessing  that  the  instru- 
ment is  of  very  doubtful  authenticity." 

The  Edinburgh  reviewer,  who  had  seen  the  mannscripty 
believes  it  genuine,  and  gives  an  account  of  it.  Mr.  Kemble 
has  printed  it  without  mark  of  spuriousness.  (Cod.  Diplom* 
ToL  V.  p.  378.)  In  this  document  we  have  the  names  of 
^Ifgifu,  the  king's  wife,  and  of  ^thelgifu,  the  king's  wife's 
mother.  The  signatures  are  merely  recited,  so  that  the 
document  itself  cannot  be  properly  styled  a  charter ;  but  we 
are  only  concerned  with  the  testimony  it  bears  to  the  exist- 
ence of  the  queen  Elgiva  and  her  mother. 

If  this  charter,  thus  redled,  is  established,  we  advance  a 
step,  80  as  to  prove  the  existence  of  a  mother  and  daughter, 
bearing  nearly  the  same  names,  and  such  names  as  appar- 
ently imply  royal  blood,  the  latter  being  married  to  Edwy* 
This  would  tend  to  corroborate  the  coronation  story,  divesting 
it  of  the  gross  exaggerations  of  the  monkish  biographers  and 
their  followers.  '  It  might  be  supposed  that  the  young  king, 
little  more  than  a  boy,  retired  from  the  drunken  revelry  of 
his  courtiers  to  converse,  and  perhaps  romp,  with  his  cousin 
and  her  mother;  that  Dunstan  audaciously  broke  in  upon 


60  EDWT  AND  ELGIVA.  Notes  to 

him,  and  forced  him  back  to  the  banquet ;  that  both  he  and 
the  ladies  resented  this  insolence  as  it  deserved,  and  drove  the 
monk  into  exile  ;  and  that  the  marriage  took  place. 

It  is  more  difficult  to  deal  with  the  story  originally  related 
by  the  biographer  of  Odo,  that  after  his  marriage  Edwy 
carried  off  a  woman  with  whom  he  lived,  and  whom  Odo 
seized  and  sent  out  of  the  kingdom.  This  lady  is  called  by 
Eadmer  una  de  prsescriptis  mulieribus ;  whence  Dr.  Lingard 
assumes  her  to  have  been  Ethelgiva,  the  queen's  mother. 
This  was  in  his  History  of  England  (i.  517) ;  but  in  the 
Becond  edition  of  the  Antiquities  of  the  Anglo-Saxon  Church 
he  is  far  less  confident  than  either  in  the  f[rst  edition  of  that 
work  or  in  his  History.  In  fact,  he  plainly  confesses  that 
nothing  can  be  clearly  made  out  beyond  the  circumstances  of 
the  coronation. 

Although  the  writers  before  the  conquest  do  not  bear 
witness  to  the  cruelties  exercised  on  some  woman  connected 
with  the  king,  either  as  queen  or  mistress,  at  Gloucester,  yet 
the  subsequent  authorities  of  Eadmer,  Osbem,  and  Malms- 
bury  may  lead  us  to  believe  that  there  was  truth  in  the  main 
facts,  though  we  cannot  be  certain  that  the  person  so  treated 
was  the  queen  Elgiva.  If  indeed  their  accounts  are  accurate, 
it  seems  at  first-  that  they  do  not  agree  with  their  predeces- 
sors ;  for  they  represent  the  lady  as  being  in  the  king's  com- 
pany up  to  his  flight  from  the  insurgents :  — "  Begem  cum 
adultera  fugitantem  persequi  non  desistunt."  But  though  we 
read  in  the  Saxon  Chronicle  that  Odo  divorced  Edwy  and 
Elgiva,  we  are  not  sure  that  they  submitted  to  the  sentence. 
It  is  therefore  possible  that  she  was  with  him  in  this  disas- 
trous flight,  and,  having  fallen  into  the  hands  of  the  pursuers, 
was  pljt  to  death  at  Gloucester.  True  it  is  that  her  prox- 
imity of  blood  to  the  king  would  not  warrant  Osbem  to  call 
her  adidtera;  but  bad  names  cost  nothing.  Malmsbury's 
words  look  more  like  it,  if  we  might  supply  something, 
"  proxime  cognatam  invadens  uxorem  [cujusydam  ?]  ejus  forma 
deperibat ; "  but  as  they  stand  in  his  text,  they  defy  my  scanty 
knowledge  of  the  Latin  tongue.  On  the  whole,  however,  no 
reliance  is  to  be  placed  on  very  passionate  and  late  authori- 
ties. What  is  manifest  alone  is,  that  a  young  king  was  per- 
secuted and  dethroned  by  the  insolence  of  monkery  exciting 
a  superstitious  people  against  him* 


Ohap.  Vn.  PiOMACY  OF  ROME.  61 

Note  III.     Vol.  I.  page  631. 

# 

I  AM  induced,  bj  further  study,  to  modifj  what  is  said  in 
the  text  with  respect  to  the  well-known  passages  in  Irenaeus 
and  Cyprian.  The  former  assigns,  indeed,  a  considerable 
weight  to  the  Church  of  Rome,  simply  as  testimony  to  apos- 
tolical teaching  ;  but  this  is  plainly  not  limited  to  the  bishop 
of  that  city,  nor  is  he  personally  mentioned.  It  is  therefore 
an  argument,  and  no  slight  one,  against  the  pretended  su* 
premacy  rather  than  the  contrary. 

The  authority  of  Cyprian  is  not,  perhaps,  much  more  to 
tlie  purpose.  For  the  only  words  in  his  treatise  De  Unitate 
Ecclesiae  which  asseit  any  authority  in  the  chair  of  St.  Peter, 
or  indeed  connect  Rome  with  Peter  at  all,  are  interpolations, 
not  found  in  the  best  manuscripts  or  in  the  oldest  editions. 
They  are  printed  within  brackets  in  the  best  modem  ones. 
(See  James  on  Corruptions  of  Scripture  in  the  Church  of 
Rome,  1612.)  True  it  is,  however,  that,  in  his  Epistle  to 
Cornelius  bishop  of  Rome,  Cypnan  speaks  of  '^  Petri  cathe- 
dram,  atque  ecclesiam  principalem  unde  unitas  sacerdotalis 
exorta  est"  (Epist  lix.  in  edit  Lip.  1838 ;  Iv.  in  Baluze 
and  others.)  And  in  another  he  exhorts  Stephen,  successor 
of  Cornelius,  to  write  a  letter  to  the  bishops  of  Gaul,  that 
they  should  depose  Marcian  of  Aries  for  adhering  to  the  No- 
yatian  heresy.  (Epist  Ixviii.  or  Ixvii.)  This  is  said  to  be 
found  in  very  few  manuscripts.  Yet  it  seems  too  long,  and 
not  sufficiently  to  the  purpose,  for  a  popish  forgery.  All 
bishops  of  the  catholic  church  assumed  a  right  of  interference 
with  each  other  by  admonition ;  and  it  is  not  entirely  clear 
irom  the  language  that  Cyprian  meant  anything  more  authori- 
tative ;  though  I  incline,  on  the  whole,  to  believe  that,  when 
on  good  terms  with  the  see  of  Rome,  he  recognized  in  her  a 
kind  of  primacy  derived  from  that  of  St  Peter. 

The  case,  nevertheless,  became  very  different  when  she 
was  no  longer  of  his  mind.  In  a  nice  question  which  arose, 
during  the  pontificate  of  this  very  Stephen,  as  to  the  re- 
baptism  of  those  to  whom  the  rite  had  been  administered  by 
heretics,  the  bishop  of  Rome  took  the  negative  side;  while 
Cyprian,  with  the  utmost  vehemence,  maintained  the  contrary. 
Then  we  find  no  more  honeyed  phrases  about  the  principal 
church  and  the  succession  to  Peter,  but  a  very  different  style : 
^  Cur  in  tantom  Stephani,  fratris  nostri,  ebstinatio  dura  pro* 


62  PRMACT  OF  ROME.    Notes  to  Crap.  Vll 

rupit?"  (Epist  Ixxiv.)  And  a  correspondent  of  Cyprian, 
doubtless  a  bishop,  Firmilianus  by  name,  uses  more  violent 
language:  —  "Audacia  et  insolentia  ejus  —  aperta  et  rnani* 
festa  Stephani  stultitia  —  de  episcopatus  sui  loco  gloriatur,  et 
Be  successiouem  Petri  tenere  coutenditJ'  (Epist.  Ixxv.)  Cy- 
prian proceeded  to  summon  a  council  of  the  African  bishops, 
who  met,  seventy-eight  in  number^  at  Carthage.  They  all 
agreed  to  condemn  heretical  baptism  as  absolutely  invalid. 
Cyprian  addressed  them,  requesting  that  they  would  use  full 
liberty,  not  without  a  manifest  reflection  on  the  pretensions  of 
Rome :  —  '^  Neque  enim  quisquam  nostrum  episcopum  se  esse 
episcoporum  constituit,  aut  tyrannico  terrore  ad  obsequendi 
necessitatcm  coliegas  suos  adigit,  quando  habeat  omnis  epis- 
copus  pro  licentia  libertatis  et  potestatis  suae  arbitrium  pro- 
prium,  tamque  judicari  ab  alio  non  possit,  quam  nee  ipse 
potest  alterum  judicare.*'  We  have  here  an  tdlusion  to  what 
Tertullian  had  called  harrendavox,  ''episcopus  episcoporum;'' 
manifestly  intimating  that  the  see  of  Rome  had  begun  to 
assert  a  superiority  and  right  of  control,  by  the  beginning  of 
the  third  century,  bat  at  the  same  time  that  it  was  not  gener- 
ally endured.  Probably  the  notion  of  their  superior  author- 
ity, as  witnesses  of  the  faith,  grew  up  in  the  Church  of 
Rome  very  early ;  and  when  Victor,  towards  the  end  of  the 
second  century,  excommunicated  the  churches  of  Asia  for  a 
ilifference  as  to  the  time  of  keeping  Easter,  we  see  the  ger- 
mination of  that  usurpation,  that  tyranny,  that  uncharitable- 
ncss,  which  reached  its  culminating  point  in  the  centre  of  the 
mediflsval  period. 


Ciui.Vn  ANGLO-SAXON  CONSTITUTION.  63 


CHAPTER  VIIL 

THE   CONSTITUTIONAL  HISTOBT  OF  ENGLAND. 


PART  L 


Tbm  Anglo-Saxon  GonBtitntlon — Sketch  of  Anglo-Saxon  TRKtory — Succession  to 
the  Crown  —  Orden  of  Men  —  Thanes  and  Ceorla  —  Witenagemot — Judicial 
Byftem  —  DiTli»iofa  into  Hundreds  —  County  Court — Trial  by  Jury  —  Its  An- 
tiquity inTestigated  —  Law  of  J^rank-Pledge — Its  several  Stages  —  Question  of 
Feudal  Tenures  before  the  Conquest. 

No  unbiassed  observer,  who  derives  pleasure  from  the  wel- 
fare of  his  species,  can  fail  to  consider  the  long  and  uninter- 
ruptedly increasing  prosperity  of  England  as  the  most  beau- 
tiful phenomenon  in  the  history  of  mankind.  Climates  more 
propitious  may  impart  more  largely  the  mere  enjoyments  of 
existence;  but  in  no  other  region  have  the  benefits  that 
political  institutions  can  confer  been  diffused  over  so  extend- 
ed a  population  ;  nor  liave  any  people  so  well  reconciled  the 
discordant  elements  of  wealth,  order,  and  liberty.  These  ad 
vantages  are  surely  not  owing  to  the  soil  of  this  island,  nor  to 
the  latitude  in  which  it  is  placed,  but  to  the  spirit  of  its  laws, 
from  which,  through  various  means,  the  characteristic  inde- 
pendence and  industriousness  of  our  nation  have  been  de- 
rived. The  constitution,  therefore,  of  England  must  be  to 
inquisitive  men  of  all  countries,  far  more  to  ourselves,  an  ob- 
ject of  superior  interest;  distinguished  especially,  as  it  is, 
from  all  free  governments  of  powerful  nations  which  history 
has  recorded,  by  its  manifesting,  after  the  lapse  of  several  cen- 
turies, not  merely  no  symptom  of  irretrievable  decay,  but  a 
more  expansive  energy.  Comparing  long  periods  of  timcj 
it  may  be  justly  asserted  that  the  administration  of  govern- 
ment has  progressively  become  more  equitable,  and  the  privi- 
leges of  the  subject  more  secure ;  and,  though  it  would  be  both 
presumptuous  and  unwise  to  express  an  unlimited  confidence 
as  to  the  durability  of  liberties  which  owe  their  greatest 
•ecnritj  to  the  constant  suspicion  of  the  people,  yet,  if  we  calmly 


64  SKETCH  OF  CiiAP.  Vni.  Paet  t 

reflect  on  the  present  aspect  of  this  country,  it  will  probably 
appear  that  whatever  perils  may  threaten  our  constitution  are 
rather  from  circumstances  altogether  unconnected  with  it 
than  from  any  intrinsic  defects  of  its  own.  It  will  be  the 
object  of  the  ensuing  chapter  to  trace  the  gradual  formation 
of  this  system  of  government.  Such  an  investigation,  im- 
partially conducted,  will  detect  errors  diametrically  opposite ; 
those  intended  to  impose  on  the  populace,  which,  on  account 
of  their  palpable  absurdity  and  the  ill  faith  with  which  they 
are  usually  proposed,  I  have  seldom  thought  it  worth  while 
directly  to  repel ;  and  those  which  better  informed  persons 
are  apt  to  entertain,  caught  from  transient  reading  and  the 
misrepresentations  of  late  historians,  but  easily  refuted  by 
the  genuine  testimony  of  ancient  times. 

The  seven  very  unequal  kingdoms  of  the  Saxon  Heptar- 
Sketch  of  ^^y»  formed  successively  out  of  the  countries 
Angio-Saion  wrestcd  from  the  Britons,  were  originally  inde- 
hiatory.  pendent  of  each  other.  Several  times,  however, 
a  powerful  sovereign  acquired  a  preponderating  influence 
over  his  neighbors,  marked  perhaps  by  the  payment  of  trib- 
ute. Seven  are  enumerated  by  Bede  as  having  thus  reigned 
over  the  whole  of  Britain;  an  expression  which  must  be  very 
loosely  interpreted.^  Three  kingdoms  became  at  length  pre- 
dominant —  those  of  Wessex,  Mercia,  and  Northumberland. 
The  first  rendered  tributary  the  small  estates  of  the  South- 
East,  and  the  second  that  of  the  Eastern  Angles.  But  Eg- 
bert king  of  Wessex  not  only  incorporated  with  his  own 
monarchy  the  dependent  kingdoms  of  Kent  and  Essex,  but 
obtained  an  acknowledgment  of  his  superiority  from  Mercia 
and  Northumberland ;  the  latter  of  which,  though  the  most 
extensive  of  any  Anglo-Saxon  state,  was  too  much  weakened 
by  its  internal  divisions  to  off*er  any  resistance.'  Still,  how- 
ever, the  kingdoms  of  Mercia,  East  Anglia,  and  Northum- 
berland remained  under  their  ancient  line  of  sovereigns ;  nor 
did  either  Egbert  or  his  five  immediate  successors  assume  the 
title  of  any  other  crown  than  Wessex.* 

The  destruction  of  those  minor  states  was  reserved  for  a 
different  enemy.    About  the  end  of  the  eighth  century  the 

1  [Not*  T.]  Bat  hb  son  Edward  the  Elder  takes  the 

■    Ohronicoa  Sazonloom,  p.  70.  title  of  Rex  Anglorum  on  his  coins.  Vid. 

Alfred  denominates  himself  in  his  Numlsmata   AnKio-Saxoa.    in    Uiekea's 

will  Occidentalinm  Saxorom  rex;    and  Thesaiurus,  vol.  U. 
AM«riuit  never  gives  him  aaj  other  naatm. 


XvgubbCohst.        ANGLO-SAXON  HISTORY.  65 

northern  pirates  began  to  ravage  the  coast  of  England. 
Scandinavia  exhibited  in  that  age  a  very  singular  condition 
of  society.  Her  population,  continually  redundant  in  those 
barren  regions  which  gave  it  birth,  was  cast  out  in  search  of 
plunder  upon  the  ocean.  Those  who  loved  riot  rather  than 
famine  embarked  in  large  armaments  under  chiefs  of  legiti- 
mate authority  as  well  as  approved  valor.  Such  were  the 
Sea-kings,  renowned  in  the  stories  of  the  North :  the  younger 
branches,  commonly,  of  royal  families,  who  inhented,  as  it 
were,  the  sea  for  their  patrimony.  Without  any  territory  bu 
on  the  bosom  of  the  w^ves,  without  any  dwelling  but  their 
ships,  these  princely  pirates  were  obeyed  by  numerous  sub- 
jects, and  intimidated  mighty  nations.^  Their  invasions  of 
England  became  continually  more  formidable  :  and,  as  their 
confidence  increased,  they  began  first  to  winter,  and  ultimate- 
ly to  form  permanent  settlements  in  the  country.  By  their 
command  of  the  sea,  it  was  easy  for  them  to  harass  every 
part  of  an  island  presenting  such  an  extent  of  coast  as 
Britain  ;  the  Saxons,  afler  a  brave  resistance,  gradually  gave 
way,  and  were  on  the  brink  of  the  same  servitude  or  exter- 
mination which  their  own  arms  had  already  brought  upon 
the  ancient  possessors. 

From  this  imminent  peril,  aAer  the  three  dependent  king- 
doms, Mercia,  Northumberland,  and  East  Anglia,  had  been 
overwhelmed,  it  was  the  gloiy  of  Alfred  to  rescue  the  Anglo- 
Saxon  monarchy.  Nothing  less  than  the  appearance  of  a 
hero  so  undes{>onding,  so  enterprising,  and  so  just,  could 
have  prevented  the  entire  conquest  of  England.  Yet  he 
never  subdued  the  Danes,  nor  became  master  of  the  whole 
kingdom.  The  Tluunes,  the  Lea,  the  Ouse,  and  the  Roman 
road  called  Watling  Street,  determined  the  limits  of  Alfred's 
dominion.'  To  the  north-east  of  this  boundary  were  spread 
the  invaders,  still  denominated  the  armies  of  East  Anglia 
and  Northumberland;*  a  name  terribly  expressive  of  foreign 
conquerors,  who  retained  their  warlike  confederacy,  without 
melting  into  the  mass  of  their  subject  population.  Three 
able  and  active  sovereigns,  Edward,  Athelstan,  and  Edmund 
Uie  Buccessors  of  Alfred,  pursued  the  course  of  victory,  and 

1  For  thflM  Tlkings,  or  Saa-Ungif  a    almost  eT«rypartioa1&r  that  can  lllustraU 
mam  and   interMtlng  saUeet,  I    would    our  earlj  an  nab  will  be  fcund. 
nfer  to  Mr.  Tumor'i    Watorj  ot  the       <Wllkln]i,  Leges  Anglo-Saxon,  p   47 
Anglo-flazoDB,  In  which  Talu^le  wrrk    Chron.  Saxon,  d.  99. 

•  Chxonloon  Saxon.  paHtsi. 


66  SUCCESSION  TO  THE  CROWN.    Ch.\p.  Vin.  Part  L 

not  only  rendered  the  English  monarchy  coextensive  with 
the  present  limits  of  England,  but  asserted  at  least  a  suprem- 
acy over  the  boi-dering  nations.*  Yet  even  Edgar,  the  most 
powerful  of  the  Anglo-Saxon  kings,  did  not  venture  to  inter- 
fere with  the  legal  customs  of  his  Danish  subjects." 

Under  this  prince,  whose  rare  fortune  as  well  as  judicious 
conduct  procured  him  the  surname  of  Peaceable,  the  king- 
dom appears  to  have  reached  its  zenith  of  prosperity.  But 
his  premature  death  changed  the  scene.  The  minority  and 
feeble  character  of  Ethelred  II.  provoked  fresh  incursions 
of  our  enemies  beyond  the  German  Sea.  A  long  series  of 
disasters,  and  the  inexplicable  treason  of  those  to  whom  tho 
public  safety  was  intrusted,  oveilhrew  the  Saxon  line,  and 
established  Canute  .of  Denmark  upon  the  throne. 

The  character  of  the  Scandinavian  nations  was  in  some 
measure  changed  from  what  it  had  been  during  their  first 
invasions.  They  had  embraced  the  Christian  faith ;  they  were 
consolidated  into  great  kingdoms  ;  they  had  lost  some  of  that 
predatory  and  ferocious  spirit  which  a  religion  invented,  as  it 
seemed,  for  pirates  had  stimulated.  Those,  too,  who  had  long 
been  settled  in  England  became  gradually  more  assimilated 
to  the  natives,  whose  laws  and  language  were  not  radically 
different  from  their  own.  Hence  the  accession  of  a  Danish 
line  of  kings  produced  neither  any  evil  nor  any  sensible 
change  of  polity.  But  the  English  still  outnumbered  their 
conquerors,  and  eagerly  returned,  when  an  opportunity  ar- 
rived, to  the  ancient  stock.  Edward  the  Confessor,  notwith- 
standing his  Norman  favorites,  was  endeared  by  the  mildness 
of  his  chai*acter  to  the  English  nation,  and  subsequent  mise- 
ries gave  a  kind  of  posthumous  credit  to  a  reign  not  eminent 
either  for  good  fortune  or  wise  government 

In  a  stage  of  civilization  so  little  advanced  as  that  of  the 
SueeeMioato  Anglo-Saxons,  and  under  circumstances  of  such 
the  crown,  inccssant  peril,  the  fortunes  of  a  nation  chiefly  de- 
pond  upon  the  wisdom  and  valor  of  its  sovereigns.  No  free 
people,  therefore,  would  intrust  their  safety  to  blind  chance, 
and  permit  an  uniform  observance  of  hereditary  succession 
to  prevail  against  strong  public  expediency.     Accordingly, 

1  [Note  TI.]  It  n^emi  now  to  !»  ascertained,  by  th« 

>  Wllkins,  Leges  Anglo-Saxon,  p.  83.  contpari.4on  of  diftlecut,  that  the  iuhab- 

In  1064,  after  a  revolt  of  the  Northum-  itantt  from  the  Ilumbor,  or  at  leut  the 

bxiaiM,  Edward  the  Confessor  renewed  Tyne,  to  the  Firth  of  Forth,  wer*  ohiaflj 

tha  lawv  of  Canute.    Chzonie.  Saxon.  Daaei. 


fiNOLWH  CoxsT.    SUCCESSION  TO  THE  CROWN.  67 

the  Saxons,  like  most  other  European  nations,  while  they 
limited  the  inheritance  of  the  crown  exclusively  to  one  royal 
family,  were  not  very  scrupulous  about  its  devolution  upon  the 
nearest  heir.  It  is  an  unwarranted  assertion  of  Carte,  that 
the  rule  of  the  Anglo-Saxon  monarchy  was  ^  lineal  agnatic 
succession,  the  blood  of  the  second  son  having  no  right  until 
the  extinction  of  that  of  the  eldest."^  Unquestionably  the 
eldest  son  of  the  last  king,  being  of  full  age,  and  not  mani- 
festly incompetent,  was  his  natural  and  probable  successor ; 
nor  is  it  perhaps  certain  that  he  always  waited  for  an  election 
to  take  upon  himself  the  rights  of  sovereignty,  although  the 
ceremony  of  coronation,  according  to  the  ancient  form,  appears 
to  imply  its  necessity.  But  the  public  security  in  those  times 
was  thought  incompatible  with  a  minor  king ;  and  the  artificial 
substitution  of  a  regency,  which  stricter  notions  of  hereditary 
right  have  introduced,  had  never  occurred  to  so  rude  a  people. 
Thus,  not  to  mention  those  instances  which  the  obscure  times 
of  the  Heptarchy  exhibit,  Ethelred  I.,  as  some  say,  but  cer- 
tainly Alfred,  excluded  the  progeny  of  their  elder  brother  from 
the  throne.^  Alfred,  in  his  testament,  dilates  upon  his  own 
title,  which  he  builds  upon  a  triple  foundation,  the  will  of  his 
father,  the  compact  of  his  brother  Ethelred,  and  the  consent 
of  the  West  Saxon  nobility.'  A  similar  objection  to  the  gov- 
ernment of  an  infant  seems  to  have  rendered  Athelstan,  not- 
withstanding his  reputed  illegitimacy,  the  public  choice  upon 
the  death  of  Edwai'd  the  Elder.  Thus,  too,  the  sons  of  Ed- 
mund L  were  postponed  to  their  uncle  Edred,  and,  again, 
preferred  to  his  issue.  And  happy  might  it  have  been  for 
England  if  this  exclusion  of  infants  had  always  obtained* 
But  upon  the  death  of  Edgar  the  royal  family  wanted  some 
prince  of  mature  years  to  prevent  the  crown  from  resting 
upon  the  head  of  a  child  ;^  and  hence  the  minorities  of  Ed- 
ward IL  and  Ethelred  II.  led  to  misfortunes  which  over- 
whelmed for  a  time  both  the  house  of  Cerdic  and  the  English 
nation. 

The  Anglo-Saxon  monarchy,  during  its  earlier  period, 

1  Vol.  i.  p.  865.    Blackstone  baa  la-  ooasin ;  ivhieh  ha  would  Im  as  the  aon 

bored   to   prove  the  iame  proposition ;  of  Bthelred. 

bat  his  knowledge  of  £ogUih  hliitory  was  '  Spelman,  Vita  Alfred!,  Appendix, 

imttasr  f  aperflclal.  ^Aoeordlng  to  the  hiatoriaa  of  Ram 

<  Chrooicon  Saxon,  p.  'JO.    Home  says  sey,  a  sort  of  interregnam  took  place  oa 

that  Bthelwold.  who  attempted  to  raise  Eklgar's  death;  his  sou's  birth  not  being 

ao    insnrrection    against    Ifidward    the  thought  suffldent  to  give  him  a  cleax 

■der,  was  son  of  Ethelbert.    The  Saxon  right  duzisg  iajkoey.  8  Qal«,  XT  Seript 

ihsonlBle  onlj  oaUs  him    the  king's  p.  418. 


68  PROVINCIAL  GOVERNORS.    Chap.  VIH.  Pabi 

inflvtftiM  of  ^®™3  ^  have  suffered  but  little  from  that  insubor- 
pTOTincUi  dination  among  the  superior  nobility  which  ended 
goreraor*.  ^^  dismembering  the  empire  of  Charlemagne. 
Such  kings  as  Alfred  and  Athelstan  were  not  likely  to  permit 
it.  And  the  English  counties,  each  under  its  own  alderman* 
were  not  of  a  size  to  encourage  the  usurpations  of  their  gov* 
emors.  But  when  the  whole  kingdom  was  subdued,  there 
arose,  unfortunately,  a  fashion  of  intrusting  great  proyinces 
to  the  administration  of  a  single  earl.  Notwithstanding  their 
union,  Mercia,  Northumberland,  and  East  Anglia  were  re- 
garded in  some  degree  as  distinct  parts  of  the  monarchy.  A 
difference  of  laws,  though  probably  but  slight,  kept  up  this 
separation.  Alfred  governed  Mercia  by  the  hands  of  a  no- 
bleman who  had  married  his  daughter  Ethelfleda ;  and  that 
lady  after  her  husband's  death  held  the  reins  with  a  masculine 
energy  till  her  own,  when  her  brother  Edward  took  the  prov- 
ince into  his  immediate  conmiand.^  But  from  the  era  of 
Edward  IL's  succession  the  provincial  governors  began  to 
overpower  the  royal  authority,  as  they  had  done  upon  the 
continent  England  under  this  prince  was  not  far  removed 
from  the  condition  of  France  under  Charles  the  Bald.  In 
the  time  of  Edward  the  Confessor  the  whole  kingdom  seems 
to  have  been  divided  among  five  eaHs,*  three  of  whom  wefe 
Grodwin  and  his  sons  Harold  and  Tostig.  It  cannot  be  won- 
dered at  that  the  royal  line  was  soon  supplanted  by  the  most 
powerful  and  popular  of  these  leaders,  a  prince  well  worthy 
to  have  founded  a  new  dynasty,  if  his  eminent  qualities  had 
not  yielded  to  those  of  a  still  more  illustrious  enemy. 

There  were  but  two  denominations  of  persons  above  the 
Dittribution  ^^^  ^^  Servitude,  Thanes  and  Ceorb ;  the  owners 
Into  thEDM  and  the  cultivators  of  land,  or  rather  perhaps,  as  a 
^Qd  fworia.  jj^q^  accurate  distinction,  the  gentry  and  the  infe- 
rior people.  Among  all  the  northern  nations,  as  is  well  known, 
the  weregild,  or  compensation  for  murder,  was  the  standard 
measure  of  the  gradations  of  society.  In  the  Anglo-Sjixon 
laws  we  find  two  ranks  of  freeholders ;  the  first,  called  King's 
Thanes,  whose  lives  were  valued  at  1200  shillings ;  the  second 

>  Cbronloon  Saxon.  omor  of  a  eonntj  or  proTluco.    Aftei 

*Tbe  wonl  Mri  (eori)  m«tnt  orlgl>  the  conquest  it  snponeded    altogether 

■ally  a  man  of  noblo  birth,  as  opposed  to  the  more  ancient  title.   Selden'c  Titlef 

the  oeori.    It  wm  not  a  title  of  office  UU  of  Uonor,  toI.  iU.  p.  688  (edit.  WilUnsV 

Ihe  eloTenth  eenturi*.  when  it  was  uned  and  Anglo-Saxon  wtltingi  passim 
«•  tjwmfmovM  to  aM*n&ao.  Iir  a  guv* 


AsiouaH  CosrsT.    CONDITION  OF  THE  CEOBLS.  69 

of  inferior  degree,  whose  composition  was  hiilf  that  sum.' 
That  of  a  ceoii  was  200  shillings.  The  nature  of  this  distinc- 
tion between  royal  and  lesser  thanes  is  very  obscure ;  and  I 
shall  have  something  more  to  say  of  it  presently.  However, 
the  thanes  in  general,  or  Anglo-Saxon  gentry,  must  have  been 
very  numerous.  A  law  of  Ethelred  directs  the  sheriff  to 
take  twelve  of  the  chief  thanes  in  every  hundred,  as  his 
assessors  on  the  bench  of  justice.'  And  from  Domesday  Book 
we  may  collect  that  they  had  formed  a  pretty  large  dass,  at 
least  in  some  counties,  und^r  Edward  the  Confessor.' 

The  composition  for  the  life  of  a  ceorl  was,  as  has  been 
fuud,  200  shillings.  If  this  proportion  to  the  value  CoDdiUon  of 
of  a  thane  points  out  the  subordination  of  ranks,  **>«c«*^* 
it  certainly  does  not  exhibit  the  lower  freemen  in  a  state  of 
complete  abasement.  The  ceorl  was  not  bound,  at  least  uni- 
Tersally,  to  the  land  which  he  cultivated  ;^  he  was  occasionally 
called  upon  to  bear  arms  for  the  public  safety ;'  he  was  pro* 
tected  against  personal  injuries,  or  trespasses  on  his  land;' 
he  was  capable  of  property,  and  of  the  privileges  which  it 
conferred.  If  he  came  to  possess  five  hydes  of  land  (or  about 
600  acres),  with  a  church  and  mansion  of  his  own,  he  was 
entitled  to  the  name  and  rights  of  a  thane.^  And  if  by  own- 
ing five  hydes  of  land  he  became  a  thane,  it  is  plain  that'  he 
might  possess  a  less  quantity  without  reaching  that  rank. 
There  were,  therefore,  ceorls  with  land  of  their  own,  and 
ceorls  without  land  of  their  own ;  ceorls  who  might  commend 
themselves  to  what  lord  they  pleased,  and  ceorls  who  could 
not  quit  the  land  on  which  they  lived,  owing  various  services 
to  the  lord  of  the  manor,  but  aJways  freemen,  and  capable  of 
becoming  gentlemen.' 

1  WUMos.  p.  40, 48,  64|  72, 101.  tkm  of  all  oeorls  meed  not  be  rappoeed  to 

*  Id.  p.  117>  bare  been  the  same ;  and  In  the  latter 

•  Domeeday  Book  haTlog  been  com-  period  this  can  be  shown  to  hare  been 
piled  by  dlflbrent  sets  of  commiaaioners,  subject  to  much  diTersity. 

their  laogaage  has  sometimes  varied  In  i  Legee  ln»,  e.  ol,  11  id. 

describing  the  same  clam   of  penons.  *  Leges  AlfVedi,  o.  3l,  35. 

The  Uberi  homines^  of  whom  we  find  con-  T  Leges  Athelstani,  ibid.  p.  70,  71. 

tfnual  mentiOQ  In  HOme  counties,  were  >  It  is  said  in  the  Introduction  to  the 

perhaps  not  dlflbrent  fVom  the  Uuiini^  Supplementary  Records   cf  Domeeday, 

who  occur  in  other  places.     But  this  which  I  quote  from  Cooper^s  Account  of 

subject  Is  Terv  obscure ;  and  a  clear  ap-  Public  Records  (i.  228),  that  the  word 

pcehenslon  of  the  classes  of  society  men-  eommendalia  is  confined  to   the  three 


tinned  In  Domesday  seems   at  present  counties  In  the  second  rolume  of  Domes 

unattainable.  day,  except  that  It  occurs  twice  in  the 

*  Leges    Alfredi,   o.   88,   in  Wllkins.  InquiAltio  Kllensls  for  Cambridgeshire. 

This  text  Is  not  un«viuiTocel ;  and  I  con-  But,  If  this  particular  word  does  not  oe* 

Um  that  a  law  of  Ina  (e.  SO)  has  rather  cur,  we  have  the  sense,  in  ^*  ire  cum  terra 

*  eontnoy  appeannee.    But  the  condi-  ubi  roluerit,"  or  ''quarere  dominoia 


70  COXDITION  OF  THE  CEORLS.    Chap.  VIIL  Part  1. 

Some  might  be  inclined  to  suspect  that  the  ceorls  were 
sliding  more  and  more  towanls  a  state  of  servitude  before  thu 
concjuest.^  The  natural  tendency  of  such  times  of  rapine, 
with  the  analogy  of  a  similar  change  in  France,  leads  to  this 
conjecture.  But  there  seems  to  be  no  proof  of  it ;  and  the  pas- 
sages which  recognize  the  capacity  of  a  ceorl  to  become  a 
thane  are  found  in  the  later  period  of  Anglo-Saxon  law.  Nor 
can  it  be  shown,  as  I  apprehend,  by  any  authority  earlier  than 
that  of  Glanvil,  whose  treatise  was  written  about  1180,  that 
the  peasantry  of  England  were  reduced  to  that  extreme  de- 
basement which  our  law-books  call  villenage;  a  oonditioo 
which  \eh  them  no  civil  rights  with  respect  to  their  lord« 
For,  by  the  laws  of  WUliam  the  Conqueror,  there  was  still  a 
composition  fixed  for  the  murder  of  a  villein  or  ceorl,  the 
strongest  proof  of  his  being,  as  it  was  called,  law-worthy,  and 
possessing  a  rank,  however  subordinate,  in  political  society. 
And  this  composition  was  due  to  his  kindred,  not  to  the  lord.' 
Indeed,  it  seems  positively  declared  in  another  passage  that 
the  cultivators,  though  bound  to  remain  upon  the  land,  were 
only  subject  to  certain  services.'  Again,  the  treatise  denomi- 
nated the  Laws  of  Henry  I.,  which,  though  not  deserving 
that  appellation,  must  be  considered  as  a  contemporary  docu- 
ment, expressly  mentions  the  twyhinder  or  villein  as  a  freeman.* 
Nobody  can  doubt  that  the  viUani  and  hordarii  of  Domesday 
Book,  who  are  always  distinguished  from  the  serfs  of  the  de« 
mesne,  were  the  ceorls  of  Anglo-Saxon  law.  And  I  presume 
that  the  socmen,  who  so  frequently  occur  in  that  record, 
though  far  moi'e  in  some  counties  than  in  others,  were  ceorls 
more  fortunate  than  the  rest,  who  by  purchase  had  acquired 
freeholds,  or  by  prescription  and  the  indulgence  of  their  lorda 
had  obtained  such  a  property  in  the  outlands  allotted  to  them 
that  they  could  not  be  removed,  and  in  many  instances  might 
dispose  of  them  at  pleasure.  They  are  the  root  of  a  nobk 
plant,  the  free  socage  tenants,  or  £nglish  yeomanry,  whose 
independence  has  stamped  with  peculiar  features  both  oui 
constitution  and  our  national  character.^ 

Beneath  the  ceorls  in  pohtical  estimation  were  the  con 

vbi  Toluerf t."  which  meet  onr  eyes  per-  tbone  of  his  predecessor  Sdward,  th^ 

?»taall.y  in  the  fint  volume  of  Domosdny  were  already  annexed  to  the  loU.  p.  225 

he  difference  of  phra««A  In  this  record  >  Wllkina,  p.  221. 

must,  in  groat  measure,  be  attributed  to  '  Id.  p.  225. 

that  of  the  persons  employed.  <   Lefcos,  Uenr.    I.    9.  70  and  id,  !■ 

1  If  the  laws  that  bear  the  name  of  Wilkins. 

WiUlom  an,  m  is  generally  supposed,  »  [NoTS  HI.] 


SvoLisH  Ck>X8T.  BRITISH  NATIVES.  71 

quered  natives  of  Britain.  In  a  war  so  long  and  Bnthh 
80  obstinately  maintained  as  that  of  the  Britons  ^^^^ 
against  their  invaders,  it  is  natural  to  conclude  that  in  a  great 
part  of  the  country  the  original  inhabitants  were  almost  ex- 
tirpated, and  that  the  remainder  were  reduced  into  servitude. 
This,  till  lately,  has  been  the  concurrent  opinion  of  our  anti- 
quaries ;  and,  with  some  qualification,  I  do  not  see  why  it 
should  not  still  be  received.*  In  every  kingdom  of  the  con- 
tinent which  was  formed  by  the  northern  nations  out  of  the 
Roman  empire,  the  Latin  language  preserved  its  superiority, 
and  has  much  more  been  corioipted  through  ignorance  and 
want  of  a  standard,  than  intermingled  with  their  original 
idiom.  But  our  own  language  is,  and  has  been  from  the 
earliest  times  after  the  Saxon  conquest,  essentially  Teutonic, 
and  of  the  most  obvious  affinity  to  those  dialects  which  are 
spoken  in  Denmark  and  Lower  Saxony.  With  such  as  are 
extravagant  enough  to  controvert  so  evident  a  ti*uth  it  is  idle 
to  contend ;  and  those  who  believe  great  part  of  our  language 
to  be  borrowed  fjfom  the  Welsh  may  doubtless  infer  that  great 
part  of  our  population  is  derived  from  the  same  source.^  If 
we  look  through  the  subsisting  Anglo-Saxon  records,  there  is 
not  very  frequent  mention  of  British  subjects.  But  some 
undoubtedly  there  were  in  a  state  of  freedom,  and  possessed 
of  landed  estate.    A  Welshman  (that  is,  a  Briton)  who  held 

1  [Non  TV.]  of  labor  wn>  designated.    On  the  eon- 

*  It  Is  but  jast  to  mention  a  partial  trary,  the  conqaertng  race  are  apt  to 

•xceptlon,  aecording  to  a   coniiderable  adopt  these  natiies  from  the  conquered ; 

anthocity,  to  what  has  been  said  in  the  and  thus,  after  the  lapse  of  twelre  cen- 

text  as  to  the  abMQce  of  British  roots  In  turiesand  innumerable  civil  conruLsions. 

the  Bnglidh  language ;  though  it  can  but  the  principal  words  of  the  class  describea 

sltghtly  aiTect    the  genend  proposition,  yet    prerail    in   the    language   of    our 

Ur.  Kemble   remarks   the  number  of  people,  and  partially  In  our  literature, 

minute  distinctions,   in   demrlbing  the  Many,  then,  of  the  words  which  we  seek 

local  features  of  a  country,  which  abound  in  Tain  in  the  Anglo-Saxon  dictionaries. 

In  the  Anglo-Saxon  charters,  and  thedifll-  are,  in  foct,  to  be  sought  in  those  of  the 

enltie:*  which  occur  in  their  explanation.  Cymri,  from   whose  practice  they  were 

One  of  these  relates  to  the  Ian»;uage  it-  adopted  by  the  Tictorlous  Saxons,  in  all 

•elf    **  It  cannot  be  doubtful  that  local  parts  of  the  country  ;  and  they  are  not 

names,  and  those  dcroted  to  distinguish  Anglo-Saxon,  but  Welsh  (t.  e.  forvign, 

the  natumi  features  of  a  country,  poesoss  Wylisc),    Tery    frequently    unmodified 

an  inherent  vitality,  which  even  the  ur-  either  in   meaning  or    pronunciation." 

gency  of  conquest  Is  frequently  unable  Prefiice  to  Codex  Dlplom.  vol.  iii.  p.  16. 

to  destroy.    A  race  is  rarely  so  entirely  Though  this   bears  intrinsic  marks  of 

removed  as  not  to  fbrm  an  integral,  al-  probability,  it  is  yet  remarkable  that,  in 

though  subordinate,  part  of  the  now  state  a  long  list    of  descriptive  words  which 

based  upon  its  ruins;  and  in  the  case  immediately  follows,  there  are  not  six 

where  the  cultivator  continues  to  be  oc-  for  which  Mr.  Kemble  sugK<>"te  *  Cam- 

copied  with  the  soil,  a  change  of  master  brian  root :  iind  of  these  some,  such  af 

will  not  necessarily  lead  to  the  abandon-  eomb^  a  valley,  belong  to  parte  of  Jing- 

ment  of  the  names  by  which  the  land  land  where  ttte  Bxltisb  long  kept  tiuiiit 

HaaU,  and  the  Insirnmenti  or  r  '^BQcsses  ground 


72  THE  WriENAGEMOT.       Chap.  Vffl.  Part  L 

five  hydes  was  raised,  like  a  ceorl,  to  the  dignity  of  thane.' 
In  the  composition,  however,  for  their  lives,  and  consequently 
in  their  rank  in  society,  they  were  inferior  lo  the 
meanest  Saxon  freemen.  The  slaves,  who  were 
frequently  the  objects  of  legislation,  rather  for  the  purpose 
of  ascertaining  their  punishment  than  of  securing  their  rights, 
may  be  presumed,  at  least  in  early  times,  to  have  been  part 
of  the  conquered  Britons.  For  though  his  own  crimes,  or 
the  tyranny  of  others,  might  possibly  reduce  a  Saxon  ceorl 
to  this  condition,^  it  i&  inconceivable  that  the  lowest  of  those 
who  won  England  with  their  swords  should  in  the  establish- 
ment of  the  new  kingdoms  have  been  left  destitute  of  per- 
sonal liberty. 

The  great  council  by  which  an  Anglo-Saxon  king  waa 
The  witea-  guided  in  all  the  main  acts  of  government  bore  the 
agemot.  appellation  of  Witenagemot,  or  the  assembly  of 
the  wise  men.  All  their  laws  express  the  assent  of  this 
council ;  and  there  are  instances  where  grants  made  without 
its  concurrence  have  been  revoked.  It  was  composed  of 
prelates  and  abbots,  of  the  aldermen  of  shires,  and,  as  it  is 
generally  expressed,  of  the  noble  and  wise  men  of  the  king- 
dom.' Whether  the  lesser  thanes,  or  inferior  proprietors  of 
lands,  were  entitled  to  a  place  in  the  national  council,  as 
they  certainly  were  in  the  shiregemot,  or  county-court,  is  not 
easily  to  be  decided.  Many  writers  have  concluded,  f-'om  a 
passage  in  the  History  of  Ely,  that  no  one,  however  nobly 
born,  could  sit  in  the  witenagemot,  so  late  at  least  as  the  reign 
of  Edward  the  Confessor,  unless  he  possessed  forty  hydes  of 
land,  or  about  five  thousand  acres.^  But  the  passage  in 
question  does  not  unequivocally  relate  to  the  witenagemot ; 
and  being  vaguely  worded  by  an  ignorant  monk,  who  perhaps 
had  never  gone  beyond  his  fens,  ought  not  to  be  assumed  as 
an  incontrovertible  testimony.  Certainly  so  very  high  a 
qualification  cannot  be  supposed  to  have  been  requisite  in  the 
kingdoms  of  the  Heptarchy ;  nor  do  we  fjid  any  collateral 
evidence  to  confirm  the  hypothesis.  If,  however,  all  the  body 
of  thanes  or  freeholders  were  admissible  to  the  witenagemot, 
it  is  unlikely  that  the  privilege  should  have  been  fully  exer- 
cised.    Very  few,  I  believe,  at  present  imagine  that  there 

1  Leg!*!  InsB,  p.  18;  Leg.  Athelflt.  p.  71.  *  Qaoniam  ille  quadreginta  hydarui* 

>  Legw  IniOf  e.  24.  t«rm  domiaiuni  miiiime  ubtineret,  licet 

*  LcigM    ADglo-Sazon.      In    WUklna,      oobills  t^Met,  Inter  prorerw  taoc  uumei 

Hi  Don  j^otuit.    8  Uale,  p.  S13. 


Vhglish  Coast.  JUDICIAL  POWER.  73 

was  any  representatiye  system  in  that  age ;  much  less  thai 
the  ceorls  or  inferior  freemen  had  the  smallest  share  in  the 
deliberations  of  the  national  assembly.  Every  argument 
which  a  spirit  of  controversy  once  pressed  into  this  service 
has  long  since  been  victoriously  refuted.^ 

It  has  been  justly  remarked  by  Hume,  that,  among  a  peo* 
pie  who  lived  in  so  simple  a  manner  as  these  judicial 
Anglo-Saxons,  the  judicial  power  is  always  of  !><>*«'• 
more  consequence  than  the  legislative.  The  liberties  cf 
these  Anglo-Saxon  thanes  were  chiefly  secured,  next  to  their 
swords  and  their  free  spirits,  by  the  inestimable  right  of 
deciding  civil  and  criminal  suits  in  their  own  county-court ; 
an  institution  which,  having  survived  the  conquest,  and  con- 
tributed in  no  small  degree  to  fix  the  liberties  of  England 
upon  a  broad  and  popular  basis,  by  limiting  the  feudal  aris- 
tocracy, deserves  attention  in  following  the  history  of  the 
British  constitution. 

The  division  of  the  kingdom  into  counties,  and  of  these 
into  hundreds  and  decennaries,  for  the  purpose  of  ]){vij,ion  in- 
administering  justice,  was  not  peculiar  to  England,  to  couotiei, 
In  the  early  laws  of  France  and  Lombardy  fre-  Md  ^JS!* 
quent  mention  is  made  of  the  hundred-court,  and  *°sb* 
now  and  then  of  those  petty  village-magistrates  who  in  Eng- 
land were  called  tything-men.    It  has  been  usual  to  ascribe  the 
establishment  of  this  system  among  our  Saxon  ancestors'  to 
Alfred,  upon  the  authority  of  Ingull'us,  a  writer  contemporary 
with  the  conquest.     But  neither  the  biographer  of  Alfred, 
Asserius,  nor  the  existing  laws  of  that  prince,  bear  testimony 
to  the  fact.     With  respect  indeed  to  the  division  of  counties, 
and  their  government  by  aldermen  and  sheri£fs,  it  is  certain 
that  both  existed  long  before  his  time ; '  and  the  utmost  that 
can  be  supposed  is,  that  he  might  in  some  instances  have 
ascertained  an  unsettled  boundary.     There  does  not  seem- to 

1  [Sen  v.]  hj  sir  H.  Ellts,  on  the  anthority  of  an 

*  Countin,  aa  well  aa  the  aldeiman  ancient  record,  to  have  consisted  of  an 

«4io  presided  over  them,  are  mentioned  hundred  bydes  of  laud,  cultivated  nnd 

In  the  lawB  of  Ina,  c.  38.  waiite  taken  together.      Introduction  to 

Vor  the  dJTision  of  eountiea,  which  Domesday,    1.  186.     But    thia    impllMt 

wwe  not  always  formed  in  the  same  age,  equality  of  siie,  which  la  eridently  not 

DOT  on  the  same  plan,  see  PalgraTe,  I.  the  caae.    A  passage  Id  the  DIalogus  de 

116.    We  do  not  know  much  about  the  Scaccario  (p.  81)  is  conclnslTe: —  Hyda  a 

Inland  conntles  in  general ;  those  on  the  primitlma   institutlone  in  centum  acris 

eoasta  are  in    general   larger,  and  are  constat:  hundredus  eat  ex  hydarum  ali- 

mentloned  in  history.    All  we  can  say  quot  oentenarils,  sed  non  determinatia  ; 

is,  that  they  all  existed  at  the  conquest  quidam  enlm  ex  plurlbus,  quidam  ex 

•■  at  pvosent.    The  hundred  is  suppoaed  paadcnribus  hjdis  constat. 


74  JUDICIAL  DIVISION.     Chaf.  VHI.  Pawp  1 

be  equal  eyideiice  as  to  the  antiquity  of  the  minor  divisionSi 
Hundreds,  I  think,  are  first  mentioned  in  a  law  of  Edgar, 
and  tjthings  in  one  of  Canute.^  But  as  Alfred,  it  must  be 
remembered,  was  never  master  of  more  than  half  the  king- 
dom, the  complete  distribution  of  England  into  these  districts 
cannot,  upon  any  supposition,  be  referred  to  him. 

There  is,  indeed,  a  circumstance  observable  in  this  division 
which  seems  to  indicate  that  it  could  not  have  taken  place  at 
one  time,  nor  upon  one  system ;  I  mean  the  extreme  inequal- 
ity of  hundreds  in  different  parts  of  England.  Whether 
the  name  be  conceived  to  refer  to  the  number  of  free  fami- 
lies, or  of  landholders,  or  of  petty  vills,  forming  so  many  asso- 
ciations of  mutual  assurance  or  frank-pledge,  one  can  hardly 
doubt  that,  when  the  term  was  first  applied,  a  hundred  of  one 
Dr  other  of  these  were  comprised,  at  an  average  reckoning, 
within  the  district.  But  it  is  impossible  to  reconcile  the  vary- 
ing size  of  hundreds  to  any  single  hypothesis.  The  county 
of  Sussex  contains  sixty-five,  that  of  Dorset  forty-three; 
while  Yorkshire  has  only  twenty-six,  and  Lancashire  but  six. 
No  difference  of  population,  though  the  south  of  England 
was  undoubtedly  far  the  best  peopled,  can  be  conceived  to 
account  for  so  prodigious  a  disparity.  I  know  of  no  better 
solution  than  that  the  divisions  of  the  north,  properly  called 
wapentakes,^  were  planned  upon  a  different  system,  and  ob- 
tained the  denomination  of  hundreds  incoiTectly  afler  the 
union  of  all  England  under  a  single  sovereign. 

Assuming,  therefore,  the  name  and  partition  of  hundreds 
to  have  originated  in  the  southern  counties,  it  will  rather,  I 
think,  ap[>ear  probable  that  they  contained  only  an  hundred 
free  families,  including  the  ceorls  as  well  as  their  landlords. 
If  we  suppose  none  but  the  latter  to  have  been  numbered, 
we  should  find  six  thousand  thanes  in  Kent,  and  six  thousand 
five  hundred  in  Sussex ;  a  reckoning  totally  inconsistent  with 
*any  probable  estimate.*  But  though  we  have  little  direct 
testimony  as  to  the  population  of  those  times,  there  is  one 
passage  which  falls  in  very  sufficiently  with  the  former  sup- 
position. Bede  says  that  the  kingdom  of  the  South  Saxons, 
comprehending  Surrey  as  well  as  Sussex,  contained  seven 

1  WIUcIds,  pp.  87,  186.  The  fbrmer.  *  It  would  be  easy  to  mentton  par- 
howeTer.  refen  to  them  as  an  aarieat  ticular  hundreJi  Id  tlteM  countiM  M 
Institution  :  quicntur  ceutnriss  coiiTen-  Bmall  an  to  r«ud«r  thia  fuppovltioa  quiif 
tOf,  aicut  anto.i  in.stitutuui  erat.  ridiouloua. 

<  LegM  Edwardi  CooreiM.  c  88. 


EaousH  CoKST.  THE  COUNTY-COURT.  75 

thousand  families.  The  county  of  Sussex  alone  is  divided  into 
nxtj-fiye  hundreds,  which  comes  at  lea^t  close  enough  to  prove 
that  free  families,  rather  than  proprietors,  were  the  subject 
of  that  numeration.  And  this  is  the  interpretation  of  Du 
Cange  and  Muratori  as  to  the  Centens  and  Decani®  of  their 
own  ancient  laws. 

I  cannot  but  feel  some  doubt,  notwithstanding  a  passage 
in  the  laws  ascribed  to  Edward  the  Confessor,^  whether  the 
tything-man  ever  possessed  any  judicial  magistracy  over  his 
small  district  He  was,  more  probably,  little  different  from  a 
petty  constable,  as  is  now  the  case,  I  believe,  wherever  that 
denomination  of  office  is  preserved.  The  court  of  the  hun- 
dred was  held,  as  on  the  continent,  by  its  own  centenarius,  or 
hundred-man,  more  often  called  alderman,  and,  in  the  Nor 
man  times,  bailifT  or  constable,  but  under  the  sheriff's  writ 
It  is,  in  the  language  of  the  law,  the  sheriff's  toum  and  leet 
And  in  the  Anglo-Saxon  age  it  was  a  court  of  justice  for 
suitors  within  the  hundred,  though  it  could  not  execute  its 
process  beyond  that  limit  It  also  punished  small  offences, 
and  was  intrusted  with  the  "  view  of  frank-pledge,"  and  the 
maintenance  of  the  great  police  of  mutual  surety.  In  somu 
cases,  that  is,  when  the  hundred  was  competent  to  render 
judgment,  it  seems  that  the  county-court  could  only  exercise 
an  appellant  jurisdiction  for  denial  of  right  in  the  lower  tri- 
bunal. But  in  course  of  time  the  former  and  more  cele** 
brated  court,  being  composed  of  &r  more  conspicuous  judges, 
and  held  before  the  bishop  and  the  earl,  became  the  real  ar  • 
biter  of  important  suits ;  and  the  court-leet  fell  almost  entirely 
into  disuse  as  a  civil  jurisdiction,  contenting  itself  with  pun- 
ishing petty  offences  and  keeping  up  a  local  police.^  It  was, 
however,  to  the  county-court  that  an  English  free-  coontj- 
man  chiefly  looked  for  the  maintenance  of  his  civil  ^^*^ 
rights.  In  this  assembly,  held  twice  in  the  year  by  the 
bishop  and  the  alderman,*  or,  in  his  absence,  the  sheriff,  the 
oath  of  allegiance  was  administered  to  all  freemen,  breaches 
of  the  peace  were  inquired  into,  crimes  were  investigated, 

>  LcffM  Sdvudl  Oonftn.  p.  206.  Noth*    timflt  belonged.    Every  county  had  ite 
Ing,  M  fltf  as  I  know,  eonflrmB   this    alderman ;  bat  the  name  Is  not  applied 
s,  whleh  hardly  talUM  with  what    in  written  doooments  to  magistrateB  of 


genuine    Anglo-Saxon    documents  boroughs  befbre  the  conquest.    Palgiave, 

eontain  as  to  thejudleial  arrangements  U.  860.    He  thinks,  howeTer,  that  Lon- 

flf  that  period.  don  had  aldermen  from  time  immemo- 

*  (MOTB  VI.]  rial.    After  the  conquest  the  title  seems 

s  The  alderman  was  the  highest  rank  to  have  beoome  appropriated  tomunidpal 

the  royal  flunS^,  to  which  he  some-  magistrates. 


76  THE  COUNTY-COURT.  '  Chap.  Vm.  Part  L 

and  claims  were  determined.  I  assign  all  these  ftmctions  to 
the  county-con rt  upon  the  supposition  that  no  other  subsisted 
during  the  Saxon  times,  and  that  the  separation  of  im 
sheriff's  tourn  for  criminal  junsdiction  had  not  73t  taken 
place ;  which,  however,  I  cannot  pretend  to  determine.* 

A  very  ancient  Saxon  instrument,  recording  a  suit  in  the 
Suit  In  the  county-court  under  the  reign  of  Canute,  has  been 
oonnty-  published  by  Hickes,  and  may  be  deemed  worthy 
court.  ^£  ^  literal  translation  in  this  place.     **  It  is  made 

known  by  this  writing  that  in  the  shiregemot  (county-court) 
held  at  Agelnothes-stane  (Aylston  in  Herefordshire)  in  the 
reign  of  Canute  there  sat  Athelstan  the  bishop,  and  Ranig 
the  alderman,  and  Edwin  his  son,  and  Leofwin  Wulfig's  son ; 
and  Thurkil  the  White  and  Tofig  came  there  on  the  king's 
business ;  and  there  were  Bryning  the  sheriff,  and  Athel- 
weard  of  Frome,  and  Leofwin  of  Frome,  and  Groodric  of 
Htoke,  and  all  the  thanes  of  Herefordshire.  Then  came  to 
(be  mote  £dwin  son  of  Enneawne,  and  sued  his  mother  for 
fome  lands,  called  Weolintun  and  Cyrdeslea.  Then  the 
1  ishop  asked  who  would  answer  for  his  mother.  Then  an- 
f  wered  Thurkil  the  White,  and  said  that  he  would,  if  he 
I'jiew  the  facts,  which  he  did  not.  Then  were  seen  in  the 
laote  three  thanes,  that  belonged  to  Feligly  (Fawley,  ^ve 
lailes  from  Aylston),  Leofwin  of  Frome,  ^gelwig  the  Red, 
imd  Thinsig  Stsegthman ;  and  they  went  to  her,  and  inquired 
what  she  had  to  say  about  the  lands  which  her  son  claimed. 
She  said  that  she  had  no  land  which  belonged  to  him,  and  fell 
into  a  noble  passion  against  her  son,  and,  calling  for  Leofleda 
her  kinswoman,  the  wife  of  Thurkil,  thus  spake  to  her  before 
them :  '  This  is  Leofleda  my  kinswoman,  to  whom  I  give  my 
lands,  money,  clothes,  and  whatever  I  possess  after  my  life : ' 
and  this  said,  she  thus  spake  to  the  thanes :  *  Behave  like 
thanes,  and  declare  my  message  to  all  the  good  men  in  the 
mote,  and  tell  them  to  whom  I  have  given  my  lands 
and  all  my  possessions,  and  nothing  to  my  son  ;  *  and  bade 
them  be  witnesses  to  this.  And  thus  they  did,  rode  to  the 
mote,  and  told  all  the  good  men  what  she  had  enjoined  them. 
Then  Thurkil  the  White  addressed  the  mote,  and  requested 
all  the  thanes  to  let  his  wife  have  the  lands  which  her  kins- 
woman had  given  her ;  and  thus  they  did,  and  Thurkil  n>de 

1  Thii  point  is  obsenn ;  bat  I  do  not    tlngnUh  tli«  dTil  from  tha  oximiiMl  tal 
peroeiT^  thst  th«  Anglo-Saxon  lam  dl»*    bnnaL 


Eholibb  CoHn.  THE  COUNTY-COUKT.  77 

to  the  church  of  St.  Ethelbert,  with  the  leave  and  witness  of 
all  the  people,  and  had  this  inserted  in  a  book  in  the 
church."  * 

It  may  be  presumed  from  the  appeal  made  to  the  thanes 
present  at  the  county-court,  and  is  confirmed  by  other  ancient 
authorities,'  that  all  of  them,  and  they  alone,  to  the  exclusion 
of  inferior  freemen,  were  the  judges  of  civil  controversies. 
The  latter  indeed  were  called  upon  to  attend  its  meeting.^,  or, 
in  the  language  of  our  present  law,  were  suitors  to  the  court, 
and  it  was  penal  to  be  absent.  But  this  was  on  account  of 
other  duties,  the  oath  of  allegiance  which  they  were  to  take, 
or  the  frank-pledges  into  which  they  were  to  enter,  not  in 
order  to  exercise  any  judicial  power ;  unless  we  conceive  that 
the  disputes  of  the  ccorls  were  decided  by  judges  of  their 
own  rank.  It  is  more  important  to  remark  the  crude  state 
df  legiU  process  and  inquiry  which  this  instrument  denotes. 
Without  any  regular  method  of  instituting  or  conducting 
causes,  the  county-court  seems  to  have  had  nothing  to  recom- 
mend it  but,  what  indeed  is  no  triHing  matter,  its  security 
from  corruption  and  tyranny ;  and  in  the  practical  jurispru- 
dence of  our  Saxon  ancestors,  even  at  the  beginning  of 
the  eleventh  century,  we  perceive  no  advance  of  civility  and 
skill  from  the  state  of  their  own  savage  progenitors  on  the 
banks  of  the  Elbe.  No  appeal  could  be  made  to  the  royal 
tribunal,  unless  justice  was  denied  in  the  county-court.* 
This  was  the  great  constitutional  judicature  in  all  questions 
of  civil  right.  In  another  instrument,  published  by  Uickes, 
of  the  age  of  Ethelred  II.,  the  tenant  of  lands  which  were 
claimed  in  the  king*s  court  refused  to  submit  to  the  decree  of 
that  tribunal,  without  a  regular  trial  in  the  county ;  which 
was  accordingly  granted.^  There  were,  however,  royal, 
judges,  who,  either  by  way  of  appeal  from  the  lower  courts, 
or  in  excepted  cases,  formed  a  paramount  judicature;  but 

>  IHekes,  DlMertatlo  EpijitAlarls,  p.  4,  The  book  kept  In   the  chureh  of  St 

fn  ThcMuros  Antiqaltatum  Septentrion,  Ethelbert,  wherein  Thnrkll   ]»  faid   tt 

vol.  ill.     **Beibre  the  Conquest,"  nvi  have  iosertod    the   proceediiigH  of  tot 

Ourdon    (on    OonrCs-Baron,     p.    689),  county -eourt,  may  or  may  not  baTe  beui 

**  grants  were  enrolled  in  the  shire-book  a  public  record. 
In  public  shire-mote,  after  proelamstion       *  Id.  p.  8.    lieges  Henr.  Priroi,  e  29. 
made  for  any  to  come  in  that  could  claim       'Leges    Endgnri,    p.  77;    Canutl,   p. 

the  lends  cooTeyed ;  and  this  was  ns  Ir-  186 ;  Henrici  Priml,  e.  84.    I  quote  the 

reversible  as  the  modem  fine  wiih  proo-  latter   freely   as    Anglo-Saxon,    though 

lamatlons,  or  recovery."    This  may  be  posterior  to  the  conquest ;  their  spirit 

•o;  but  the  eounty-«ourt  has  at  leas;  beiog  perfectly  of  the  Ibrmer  period, 
ftoi^  ceased  to  be  a  court  of  record  ;  and       *  DLnertatlo  Kpistolaris,  p.  6. 
•M  would  aak  tut  proof  of  the  assertioa. 


78  TRIAL  BT  JURY.        Chap.  Vm.  Pari  I. 

how  their  court  was  composed  uQder  the  Anglo-Saxon  soveiv 
eigns  I  do  not  pretend  to  assert^ 

It  had  been  a  prevailing  opinion  that  trial  by  jury  maj  be 
Trial  bj  referred  to  the  Anglo-Saxon  age,  and  common 
^^^-  tradition  has  ascribed  it  to  the  wisdom  of  A16«d. 

In  such  an  historical  deduction  of  the  English  government  as 
I  have  attempted,  an  institution  so  peculiarly  characteristic 
deserves  every  attention  to  its  origin ;  and  I  shall,  therefore, 
produce  the  evidence  which  has  been  supposed  to  bear  upon 
this  most  eminent  part  of  our  judicial  system.  The  first  text 
of  the  Saxon  laws  which  may  appear  to  have  such  a  mean- 
ing is  in  those  of  Alfred.  ^  If  any  one  accuse  a  king^s  tliane 
of  homicide,  if  he  dare  to  purge  himself  (ladian),  let  him  do 
it  along  with  twelve  king^s  thanes."  "  If  any  one  accuse  a 
thane  of  less  rank  (laessa  maga)  than  a  king's  thane,  let  him 
purge  himself  along  with  eleven  of  his  equals,  and  one  king^s 
thane."  '  This  law,  wliich  Nicholson  contends  to  mean  noth- 
ing but  trial  by  jury,  has  been  referred  by  Hickes  to  that 
ancient  usage  of  compurgation,  where  the  accused  sustained 
his  own  oath  by  those  of  a  number  of  his  friends,  who 
pledged  their  knowledge,  or  at  least  their  belief,  of  his  inno- 
cence.* 

In  the  canons  of  the  Northumbrian  clergy  we  read  as  fol- 
lows :  **  If  a  king's  thane  deny  this  (the  practice  of  heathen 
superstitions),  let  twelve  be  appointed  for  him,  and  let  him  take 
twelve  of  his  kindred  (or  equals,  maga)  and  twelve  British 
strangers ;  and  if  he  fail,  then  let  him  pay  for  his  breach  of 
law  twelve  half-marcs :  If  a  landholder  (or  lesser  thane) 
deny  the  charge,  let  as  many  of  his  equals  and  as  many 
strangers  be  taken  as  for  a  royal  thane ;  and  if  he  fail,  let 
him  pay  six  half-marcs :  If  a  oeorl  deny  it,  let  as  many  of 
his  equals  and  as  many  strangers  be  taken  for  him  as  for  the 
others ;  and  if  he  fail,  let  him  pay  twelve  one  for  his  breach 
of  law.**^    It  is  difficult  at  first  sight  to  imagine  that  these 

t  Hadoz,  mstonr  of  the  EzchraiMr,  limits  of  the  royal  and  local  Jariadietloni 

p.  05  will  not  admit  tho  exi«tence  of  any  are  defined,  as  to  criminal  matters,  and 

court   analogous    to    the   Curia    Regis  seem  to  hare  been  little  changed  sine* 

before  *>he  conquest;   all   pleas   being  the   reign    of   Canute,    p.    185    [181S]> 

determined  in  the  county.    There  are,  [Note  VII.] 

however,  several  instances  of  decisions  >  lieges  Alfred!,  p.  47. 

before  the  king;  and  in  some  cases  it  *  Nicholmn,  Prefittio  ad  Leges  Anado- 

•eoms  that  the  wirenaitemot  had  a  Judl-  Saxon.;   Wilkinuli,  p.  lO;  Bickes,  W^ 

cUl  authority.  LegwCanuti,p.  135, 186;  serUtio  Epistolaris. 

Hint.  KUensis,  p.  460 ;  Chron.  Sax.  p.  «  WilkinS|  p.  100. 
ie9.    Ib  the  Leges  Ilenr.  I.  e.  10,  the 


BiiuLUH  CoKST.  TRIAL  BY  JT7RT.  79 

thirtj-six  so  selected  were  merely  compurgators,  since  it 
seems  absurd  that  the  judge  should  name  indifferent  persons, 
who  without  inquiry  were  to  make  oath  of  a  pai*ty's  inno^ 
cence.  Some  have  therefore  conceived  that,  in  this  and 
other  instances  where  compurgators  are  mentioned,  they 
were  virtually  jurors,  who,  before  attesting  the  facts,  were  to 
inform  their  consciences  by  investigating  them.  There  arrt 
however  passages  in  the  S:ixon  laws  nearly  parallel  to  that 
just  quoted,  which  seem  incompatible  with  this  interpreta- 
tion. Thus,  by  a  law  of  Athelstan,  if  any  one  claimed  a  stray 
ox  as  his  own,  five  of  his  neighbors  were  to  be  assigned,  of 
whom  one  was  to  maintain  the  claimant's  oath.^  Perhaps 
the  principle  of  these  regulations,  and  indeed  of  the  whole 
law  of  compurgation,  is  to  be  found  in  that  stress  laid  upon 
genera]  character  which  pervades  the  Anglo-Saxon  jurispru- 
dence. A  man  of  ill  reputation  was  compelled  to  undergo  a 
triple  ordeal,  in  cases  where  a  single  one  sufficed  for  persons 
of  credit ;  a  provision  rather  inconsistent  with  the  trust  in  a 
miraculous  interposition  of  Providence  which  was  the  basis 
of  that  superstition.  And  the  law  of  frank-pledge  proceeded 
upon  tlie  maxim  that  the  best  guarantee  of  every  man's  obe- 
dience to  the  government  was  to  be  sought  in  the  confidence 
of  his  neighbors.  Hence,  while  some  compur^tors  were  to 
be  chosen  by  the  sheriff,  to  avoid  partiality  alid  collusion,  it 
was  still  intended  that  they  should  be  residents  of  the  vicin- 
age, witnesses  of  the  defendant's  previous  life,  and  competent 
to  estimate  the  probability  of  his  exculpatory  oath.  For 
the  British  strangers,  in  the  canon  quoted  above,  were 
certainly  the  original  natives,  more  intermingled  with  their 
conquerors,  probably,  in  the  provinces  noilh  of  the  H  umber 
tlian  elsewhere,  and  still  denominated  strangers,  as  the  dis- 
tinction of  races  was  not  done  away. 

If  in  this  instance  we  do  not  feel  ourselves  warranted  to 
infer  the  existence  of  trial  by  jury,  still  less  shall  we  find 
even  an  analogy  to  it  in  an  article  of  the  treaty  between 
England  and  Wales  during  the  reign  of  Ethelred  IL 
'*  Twelve  persons  skilled  in  the  law,  six  English  and  six 
Welsh,  shall  instruct  the  natives  of  each  country,  on  pain  of 
forfeiting  their  possessions,  if,  except  through  ignorance,  they 
give  false  iufbi*mation."  ^  This  is  obviously  but  a  regulation 
intend<^d  to  settle  disputes  among  the  Welsh  and  EngUsh,  to 

1  JUgw  Atbelftanl,  p.  68  >  T^get  EUulxvdi,  p.  126. 


80  TRIAL  BY  JUET.         Chap.  Vm.  Part  L 

which  their  ignorance  of  each  other's  customs  might  give 
rise. 

By  a  law  of  the  same  prince,  a  court  waa  to  be  held  in 
every  wapentake,  where  the  sheriff  and  twelve  principal 
thanes  should  swear  that  they  would  neither  acquit  any 
criminal  nor  convict  any  innocent  person.^  It  seems  more 
probable  that  these  thanes  were  permanent  assessors  to  the 
sheriff,  like  the  scabini  so  frequently  mentioned  in  the  early 
Liws  of  France  and  Italy,  than  jurors  indiscriminately  selected. 
This  passage,  however,  is  stronger  than  those  which  have 
been  already  adduced ;  and  it  may  be  thought,  perhaps,  with 
justice,  that  at  least  the  seeds  of  our  present  form  of  trial 
are  discoverable  in  it.  In  the  History  of  Ely  we  twice  read 
of  pleas  held  before  twenty-four  judges  in  the  court  of  Cam- 
bridge ;  which  seems  to  have  been  formed  out  of  several 
neighboring  hundreds.^ 

But  the  nearest  approach  to  a  regular  jury  which  has 
been  preserved  in  our  scanty  memorials  of  the  Anglo-Saxon 
age  occurs  in  the  history  of  the  monastery  of  Ramsey.  A 
controversy  relating  to  lands  between  that  society  and  a  cei^ 
tain  nobleman  was  brought  into  the  county-court,  when  each 
party  was  heard  in  his  own  behalf.  After  this  commence- 
ment, on  account  probably  of  the  length  and  difficulty  of  the 
investigation,  it  was  referred  by  the  court  to  thirty-six  thanes^ 
equally  chosen  by  both  sides."  And  here  we  begin  to  per- 
ceive the  manner  in  which  those  tumultuous  assemblies,  the 
mixed  body  of  freeholders  in  their  county-court,  slid  gradu- 
ally into  a  more  steady  and  more  diligent  tribunal.  But  this 
was  not  the  work  of  a  single  age.  In  the  Conqueror's  reign 
we  find  a  proceeding  very  similar  to  the  case  of  Ramsey,  in 
which  the  suit  has  been  commenced  in  the  county-court,  be- 
fore it  was  found  expedient  to  remit  it  to  a  select  body  of 
freeholders.  In  tlie  reign  of  William  Rufus,  and  down  to 
that  of  Henry  II.,  when  the  trial  of  writs  of  right  by  the 
grand  assize  was  introduced,  Hickes  has  discovered  other  in- 
stances of  the  original  usage.*  The  language  of  Domesday 
Book  lends  some  confirmation  to  its  existence  at  the  time  of 
that  survey ;  and  even  our  common  legal  expression  of  trial 
by  the  country  seems  to  be  derived  from  a  period  when  the 
form  was  literally  popular. 

1  liCgM  Ethelredi,  p.  117.  *  Iliat.  RamMy,  id.  p.  415. 

t  Hint.  Elienris,  in  Qale'a  ScriptorM       «  Uicktui  DiBMrtaUoBpistolaxis^p  88, 
UL  p.  471  aod  478.  88. 


fvoLiSH  CoKBii.       LAW  OF  FRANK-PLEDGE.  81 

In  comparing  the  various  passages  whicli  I  have  quoted  it 
Lb  impossible  not  to  be  struck  with  the  preference  given  to 
twelve,  or  some  multiple  of  it,  in  fixing  the  number  either  of 
judges  or  compurgators.  This  was  not  peculiar  to  England. 
Spelman  has  produced  several  instances  of  it  in  the  earlj 
German  laws.  And  that  number  seems  to  have  been  re- 
garded with,  equal  veneration  in  Scandinavia.^  It  is  very 
immaterial  from  what  caprice  or  superstition  this  predilection 
arose.  But  its  general  prevalence  shows  that,  in  searching 
for  the  origin  of  trial  bj  jury,  we  cannot  rely  for  a  moment 
upon  any  analogy  which  the  mere  number  affords.  I  am  in- 
duced to  make  this  observation,  because  some  of  the  pas 
sages  which  have  been  alleged  by  eminent  men  for  the  pur- 
pose of  establishing  the  existence  of  that  institution  before 
the  conquest  seem  to  have  little  else  to  support  them.' 

There  is  certainly  no  part  of  the  Anglo-Saxon  polity  which 
has  attracted  so  much  the  notice  of  modem  times  j^^  ^ 
as  the  law  of  frank-pledge,  or  mutual  responsi-  frank- 
bility  of  the  members  of  a  tything  for  each  other's  p^®***'* 
abiding  the  course  of  justice.  This,  like  the  distribution  of 
hundreds  and  tythings  themselves,  and  like  trial  by  jury,  has 
been  generally  attributed  to  Alfred ;  and  of  this,  I  suspect, 
we  must  also  deprive  him.  It  is  not  surprising  that  the  great 
services  of  Alfred  to  his  people  in  peace  and  in  war  should 
have  led  posterity  to  ascribe  every  institution,  of  which  the 
beginning  was  obscure,  to  his  conti'ivance,  till  his  fame  has 
become  almost  as  fabulous  in  legislation  as  that  of  Arthur  in 
arms.  The  English  nation  redeemed  from  servitude,  and 
their  name  from  extinction ;  the  lamp  of  learning  refreshed* 
when  scarce  a  glimmer  was  visible ;  the  watchful  observance 
of  justice  and  public  order ;  these  are  the  genuine  praises  of 
Alfred,  and  entitle  him  to  the  rank  he  has  always  held  in 
men's  esteem,  as  the  best  and  greatest  of  English  kings.  But 
of  his  legislation  there  is  little  that  can  be  asserted  with  suffi- 
cient evidence ;  the  laws  of  his  time  that  remain  are  neither 
numerous  nor  particularly  interesting ;  and  a  loose  report  of 
late  writers  is  not  sufficient  to  prove  that  he  compiled  a  dom- 
boc,  or  general  code  for  the  government  of  his  kingdom. 

An  ingenious  and  philosophical  writer  has  endeavored  to 

1  BpAflum't  OloMuy,  too.  Jamta;  Da    toI.  zzzl.  p.  115— ft  moot  iMKMd  9aA 
Oingij  TOO.   Nembdft:   Bdlnb.  Berlew,    otoborate  osmv. 

•  INOTl  VIII.] 

VOL.  II.  —  M.  6 


82  LAW  OF  FRANK-PLEDGE.  "  Chap.  Vffl.  Pabt  L 

found  the  law  of  frank-pledge  upon  one  of  those  general  prin« 
ciples  to  which  he  always  loves  to  recur.  "  If  we  look  upon 
a  tything,"  he  says,  **  as  regularly  composed  of  ten  famiUeSy 
this  branch  of  its  police  will  appear  in  the  highest  degree 
artificial  and  singular ;  but  if  we  consider  that  society  as  of 
the  same  extent  with  a  town  or  village,  we  shall  find  that 
such  a  regulation  is  conformable  to  the  general  usage  of  bar- 
barous nations,  and  is  founded  upon  their  common  notions  of 
justice."*  A  variety  of  instances  are  then  brought  forward, 
dmwn  from  the  customs  of  almost  every  part  of  the  world, 
wherein  the  inhabitants  of  a  district  have  been  made  answer- 
able for  crimes  and  injuries  imputed  to  one  of  them.  But 
none  of  these  fuUy  resemble  the  Saxon  institution  of  which 
we  are  treating.  They  relate  either  to  the  right  of  reprisals, 
exercised  with  respect  to  the  subjects  of  foreign  countries,  or 
to  the  indemnification  exacted  from  the  district,  as  in  our 
modem  statutes  which  give  an  action  in  certain  cases  of  fel- 
ony against  the  hundred,  for  crimes  which  its  internal  police 
was  supposed  capable  of  preventing.  In  the  Irish  custom, 
indeed,  which  bound  the  head  of  a  sept  to  bring  forward  every 
one  of  his  kindred  who  should  be  charged  with  any  heinous 
crime,  we  certainly  perceive  a  strong  analogy  to  the  Saxon 
law,  not  as  it  latterly  subsisted,  but  under  one  of  its  prior 
modifications.  For  I  think  that  something  of  a  gradual  pro* 
gression  may  be  traced  to  the  history  of  this  famous  police, 
by  following  the  indications  afforded  by  those  laws  tlirougb 
which  alone  we  become  acquainted  with  its  existence. 

The  Saxons  brought  with  them  from  their  original  forests 
at  least  as  much  roughness  as  any  of  the  nations  which  over- 
turned the  Roman  empire ;  and  their  long  struggle  with  the 
Britons  could  not  contribute  to  polish  their  manners.  The 
royal  authority  was  weak ;  and  little  had  been  learned  of  that 
regular  system  of  government  which  the  Franks  and  Lom- 
bturds  had  acquired  fix)m  the  provincial  Romans,  among  whom 
they  were  mingled.  No  people  were  so  much  addicted  to 
robbery,  to  riotous  frays,  and  to  feuds  arising  out  of  family 
revenge,  as  the  Anglo-Saxons.  Their  statutes  are  filled  with 
complaints  that  the  public  peace  was  oj>enly  violated,  and 
with  penalties  which  seem  by  their  repetition  to  have  becm 
disregarded.  The  vengeance  taken  by  the  kindred  of  a 
murdered  man  was  a  sacred  right,  which  no  law  ventured  to 

>  Millar  oa  the  EngliBh  GoYurnmant,  vol.  i.  p  188 


Eholxbb  Conar.      LAW  OP  FRANK-PLEDGE.  83 

forbid,  though  it  waa  h'mited  by  those  which  established  a 
composition,  and  by  those  which  protected  the  family  of  the 
murderer  fi-om  their  resentment.  Even  the  author  of  the  laws 
ascribed  to  the  Confessor  speaks  of  this  family  warfare,  where 
the  composition  had  not  been  paid,  as  perfectly  lawful.^  But 
tlic  law  of  composition  tended  probably  to  increase  the  num- 
ber of  crimes.  Though  the  sums  imposed  were  sometimes 
heavy,  men  paid  them  with  the  help  of  their  relations,  or 
entered  into  voluntary  associations,  the  purposes  whereof 
might  often  be  laudable,  but  which  were  certainly  susceptible 
of  this  kind  of  abuse.  And  many  led  a  life  of  rapine,  form- 
ing large  parties  of  ruffians,  who  committed  murder  and 
robbery  with  little  dread  of  punishment. 

Against  this  disorderly  condition  of  society,  the  wisdom  of 
our  English  kings,  with  the  assistance  of  their  great  councils, 
was  employed  in  devising  remedies,  which  ultimately  grew 
Qp  into  a  peculiar  system.  No  man  could  leave  the  shire  to 
which  he  belonged  without  the  permission  of  its  alderman.* 
No  man  could  be  without  a  lord,  on  whom  he  depended ; 
though  he  might  quit  his  present  patron,  it  was  under  the 
condition  of  engaging  himself  to  another.  If  he  failed  in 
this,  his  kindred  were  bound  to  present  him  in  the  county- 
court,  and  to  name  a  lord  for  him  themselves.  Unless  this 
were  done,  he  might  be  seized  by  any  one  who  met  him  as  a 
robber.*  Hence,  notwithstanding  the  personal  liberty  of  the 
peasants,  it  was  not  very  practicable  for  one  of  them  to  quit 
his  place  of  residence.  A  stranger  guest  could  not  be  received 
more  than  two  nights  as  such ;  on  the  third  the  host  became 
responsible  for  his  inmate's  conduct.^ 

The  peculiar  system  of  frank-pledges  seems  to  have  passed 
through  the  following  very  gradual  stages.  At  first  an  accused 
person  was  obliged  to  find  bail  for  standing  his  trial.*  At  a 
subsequent  period  his  relations  were  called  upon  to  become 
sureties  for  payment  of  the  composition  and  other  fines  to 
which  he  was  liable.*  They  were  even  subject  to  be  im- 
pri^ned  until  payment  was  n^e,  and  this  imprisonment  was 
commutable  for  a  certain  sum  of  money.    The  next  sUxgQ 

1  Parantibus  occM  fiat  emendatlo,  Tel  prlrata  reTengn  waa  tolerated  by  laH 

Kem  vorum  portetur.   WilklnSf  p.  190.  after  the  eonquext. 
lU,  lilce   many  other   parts   of  that       >  lieges  Alfredi,  e.  88. 
Ipurioiui  treatlw,  appears  to  have  been       *  hinges  Athclstani,  p.  66. 
taken  fnm  aome  older  lawn,  or  at  least       *  Leges  Edwardl  Confess,  p.  203. 
indltlona.    I  do  not  cooceiTe  that  this       *  Leges  Lotharli  [regis  CantUU  P  8. 

•  Legea  Sdwardi  Senioris,  p.  68. 


86  FEUDAL  TENURES.      Chap   VIII.  Part  L 

Glossary,  that  lands  were  not  held  feudally  before  that  period, 
having  been  denied  bj  the  Irish  judges  in  the  great  case  of 
tenures,  he  was  compelled  to  draw  up  his  treatise  on  Feuds, 
in  which  it  is  more  fully  maintained.  Several  other  writers, 
especially  Hickes,  Maidox,  and  Sir  Martin  Wright,  have 
taken  the  same  side.  But  names  equally  respectable  might 
be  thrown  into  the  opposite  scale ;  and  I  think  the  prevailing 
bias  of  modern  antiquaries  is  in  favor  of  at  least  a  modified 
affirmative  as  to  this  question. 

Lands  are  commonly  supposed  to  have  been  divided, 
among  the  Anglo-Saxons,  into  bodand  and  folkland.  The 
former  was  held  in  full  propriety,  and  might  be  conveyed  by 
hoc  or  written  grant ;  the  latter  was  occupied  by  the  common 
people,  yielding  rent  or  other  service,  and  perhaps  without 
any  estate  in  the  land,  but  at  the  pleasure  of  the  owner. 
These  two  species  of  tenure  might  be  compared  to  freehold 
and  copyhold,  if  the  latter  had  retained  its  original  depend 
ence  upon  the  will  of  the  lord.^  Bocland  was  devisable  by 
will;  it  was  equally  shared  among  the  children;  it  was  capa- 
ble of  being  entailed  by  the  person  under  whose  grant  it  was 
originally  taken ;  and  in  case  of  a  treacherous  or  cowardly 
desertion  from  the  army  it  was  forfeited  to  the  crown.*  But 
a  different  theory,  at  least  as  to  the  nature  of  folkland,  has 
lately  been  maintained  by  writers  of  very  great  authority.* 

It  is  an  improbable,  and  even  extravagant  supposition,  that 
all  these  hereditary  estates  of  the  Anglo-Saxon  freeholders 
were  originally  parcels  of  the  royal  demesne,  and  conse- 
quently that  the  king  was  once  the  sole  proprietor  in  his 
kingdom.  Whatever  partitions  were  made  upon  the  con- 
quest of  a  British  province,  we  may  be  sure  that  the  shares 
of  the  army  were  coeval  with  those  of  the  general.  The 
great  mass  of  Saxon  property  could  not  have  been  held  by 
actual  beneficiary  grants  from  the  crown.  However,  the 
royal  demesnes  were  undoubtedly  very  extensive.  They 
continued  to  be  so,  even  in  the  time  of  the  Confessor,  afler 

1  This    Biippoidtlofn   may   plead   the  folkland  alodial ;  the  second  takes  folk- 

freat  authoriUen  of  Somner  and  Lye,  the  land  for  feudal.    I  cannot  satis^  myself 

Anglo-Saxon  loxicographenif  and  appears  whether  thainland  and  reyeland,  which 

to  me  fur  more  probable  than  the  theory  occur    sometimes'   in    Ttomesday  Book, 

of  Sir  John  Dairy mple,  in  bis  Esmy  on  merely  correspond  with  the  othvr  two 

Feudal  Property,  or  that  of  the  author  of  denominations. 

a  discourse  on  the  Bocland  and  Folkland  *  Wilkins,  p.  43, 145.    The  latter  law 

cf  the  Saxons,  1775,  whose  name,  I  think,  is  copied   m>m  one  of  Charl«magiKe*a 

was  Ibbetron.    TUe  first  of  these  sup-  Capitularies.    Baluae,  p.  767. 

bcdand  to  have  beeu  ftudal,  and  *  [llont  IX.] 


EmauBS  Const.  FEUDAL  TENURES.  87 

the  donations  of  his  predecessors.  And  several  instramenta 
granting  lands  to  individuals,  besides  those  in  favor  of  the 
church,  are  extant.  These  are  generally  couched  in  that 
style  of  full  and  unconditional  conveyance  which  is  observa- 
ble in  all  such  charters  of  the  same  age  upon  the  continent. 
Some  exceptions,  however,  occur ;  the  lands  bequeathed  by 
Alfred  to  certain  of  his  nobles  were  to  return  to  his  family 
in  default  of  male  heirs ;  and  Hickes  is  of  opinion  that  the 
royal  consent,  which  seems  to  have  been  required  for  the 
testamentary  disposition  of  some  estates,  was  necessary  on 
account  of  their  beneficiary  tenure.^ 

All  the  freehold  lands  of  England,  except  some  of  those 
belonging  to  the  church,  were  subject  to  three  great  public 
burdens:  military  service  in  the  king's  expeditions,  or  at 
least  in  defensive  war,^  the  repair  of  bridges,  and  that  of 
royal  fortresses.  These  obligations,  and  especially  the  first, 
have  been  sometimes  thought  to  denote  a  feudal  tenure* 
There  is,  however,  a  confusion  into  which  we  may  fall  by 
not  sufficiently  discriminating  the  rights  of  a  king  as  chief 
lord  of  his  vassals,  and  as  sovereign  of  his  subjects.  In 
every  country  the  supreme  power  is  entitled  to  use  the  arm 
of  each  citizen  in  the  public  defence.  The  usage  of  all  na- 
tions agrees  with  common  reason  in  establishing  this  great 
principle.  There  is  nothing  therefore  peculiarly  feudal  in 
this  military  service  of  landholders ;  it  was  due  from  the 
alodial  proprietors  upon  the  continent ;  it  was  derived  from 
their  Grerman  ancestors ;  it  had  been  fixed,  probably,  by  the 
legislatures  of  the  Heptarchy  upon  the  first  settlement  1^ 
Britain.  , 

It  is  material,  however,  to  observe  that  a  thane  forfeited 
his  hereditary  freehold  by  misconduct  in  battle :  a  penalty 
more  severe  than  was  infiicted  upon  alodial  proprietors  on  the 
continent.  We  even  find  in  the  earliest  Saxon  laws  that  the 
dthcundman,  who  seems  to  have  corresponded  to  the  inferior 
thane  of  later  times,  forfeited  his  land  by  neglect  of  attend- 
ance in  war ;  for  which  an  alodialist  in  France  would  only 
have  paid  his  heribannum,  or  penalty.'    Nevertheless,  as  the 

1  Piawrtatfo  Eplatolariii,  p.  00.  Saxon  freebolder  had  to  render  was  of 

*  Thia    duty  is    by  acme    expressed  the  latter  kind. 

nta  ttxpoditio  ;  by  othen,  hostis   pro-  •  Leges  Inas,  p>  28;  Da  Gangs,  too. 

poMo   whieh  seems  to  make  no  small  lleribanoum.      By  the  laws  of  Canute, 

iUcrenoe.    But,  unfortunately,  most  of  p.  135,  a  flue  only  wa«  Lapo«ed  fi>r  thii 

the  military  service   which  an   Au^o-  offisnoe. 


88  FEUDAL  TENUBES.        Chap.  VIIL  Pabt  L 

policy  of  different  states  may  enforce  the  duties  of  sabjects 
by  more  or  less  severe  sanctions,  I  do  not  know  that  a  law  of 
forfeiture  in  such  cases  is  to  be  considered  as  positively  im- 
plying a  feudal  tenure. 

But  a  much  stronger  presumption  is  afforded  by  passages 
that  indicate  a  mutual  relation  of  lord  and  vassal  among  the 
free  proprietors.  The  most  powerful  subjects  have  not  a 
natural  right  to  the  service  of  other  freemen.  But  in  the 
laws  enacted  during  the  Heptarchy  we  find  that  the  sithcund- 
mim,  or  petty  gentleman,  might  be  dependent  on  a  superior 
lord.^  This  is  more  distinctly  expressed  in  some  ecclesiasti- 
cal canons,  apparently  of  the  tenth  century,  which  distinguish 
the  king's  thane  from  the  landholder,  who  depended  upon  a 
lord.*  Other  proofs  of  this  might  be  brought  from  the  Anglo- 
Saxon  laws.'  It  is  not,  however,  sufficient  to  prove  a  mutual 
relation  between  the  higher  and  lower  order  of  gentry,  in 
order  to  establish  the  existence  of  feudal  tenures.  For  this 
relation  was  often  personal,  as  I  have  mentioned  more  fully 
in  another  place,  and  bore  the  name  of  commendation.  And 
DO  nation  was  so  rigorous  as  the  English  in  compelling  every 
man,  from  the  king's  thane  to  the  ceorl,  to  place  himself 
under  a  lawful  superior.  Hence  the  question  is  not  to  be 
hastily  decided  on  the  credit  of  a  few  passages  that  express 
this  gradation  of  dependence ;  feudal  vassalage,  the  object  of 
our  inquiry,  being  of  a  real,  not  ?i  personal  nature,  and  result- 
ing entirely  from  the  tenure  of  particular  lands.  But  it  is 
not  unlikely  that  the  personal  relation  of  client,  if  I  may  use 
that  word,  might  in  a  multitude  of  cases  be  changed  into  that 
of  vassal.  And  certainly  many  of  the  motives  which  oper- 
ated in  France  to  produce  a  very  general  commutation  of 
alodial  into  feudal  tenure  might  have  a  similar  influence  in 
England,  where  the  disorderly  condition  of  society  made  it 
the  interest  of  every  man  to  obtain  the  protection  of  some 
[)otent  lord. 

The  word  thane  corresponds  in  its  derivation  to  vassal ;  and 
the  latter  term  is  used  by  Asserius,  the  contemporary  biog- 
rapher of  Alfred,  in  speaking  of  the  nobles  of  that  prince.' 

1  Leg«s  Inie,  p.  10, 28.  obijeets  to  the  authenticity  of  a  charter 

*  Wilkina.  p.  101.  a«cribed  to  Edgar,  because  It  contain! 

*  p.  71,  144,  145.  the  word  Vaasallua.  **  quam  it  Nortinan- 

*  Alfredus  cam  paucfs  ania  noblllbua  nia  Anirii  habuerunt.''  Disaertatio  Kpia* 
•t  etiam  eum  quibuadam  militibua  et  tol.  p.  7. 

TaaaalU^.  p.   16o.    Nobilea  Vasaali    Su-       The  word  fsis^aUua  occurs  not  only  in 
BMrtajifoala  pagi,  p    167.    Yet  Hickea    the  auspiciooa  charter  of  Ceo  uU;q.40t«l 


£v6usii  CoKBT.  FEUDAL  TENUBES.  89 

In  their  attendance,  too,  upon  the  royal  court,  and  the  fidelity 
which  was  expected  from  them,  the  king's  thanes  seem  ex- 
actlj  to  have  resembled  that  class  of  followers  who,  under 
different  appellations,  were  the  guards  as  well  as  courtiers 
of  the  FraJik  and  Lombard  sovereigns.  But  I  have  remark- 
ed that  the  word  thane  is  not  applied  to  the  whole  body  of  gen- 
try in  the  more  ancient  laws,  where  the  word  eorl  is  opposed 
to  the  ceorl  or  roturien  and  that  of  sithcundman  ^  to  the  royal 
thane.  It  would  be  too  much  to  infer,  from  the  extension  of 
this  latter  word  to  a  large  class  of  persons,  that  we  should  in- 
terpret it  with  a  close  attention  to  etymology,  a  very  uncer- 
tain guide  in  almost  all  investigations. 

For  the  age  immediately  preceding  the  Norman  invasion 
we  cannot  have  recourse  to  a  better  authority  than  Domes- 
day Book.  That  incomparable  record  contains  the  names  of 
every  tenant,  and  the  conditions  of  his  tenure,  under  the  Con- 
fessor, as  well  as  at  the  time  of  its  compilation,  and  seems  to 
give  little  countenance  to  the  notion  that  a  radical  change  in 
the  system  of  our  laws  had  been  effected  during  the  intervaL 
In  almost  every  page  we  meet  with  tenants  either  of  the 
crown  or  of  other  lords,  denominated  thanes,  freeholders  (liberi 
homines),  or  socagers  (socmanni).  Some  of  these,  it  is  stated, 
might  sell  their  lands  to  whom  they  pleased ;  others  were  re- 
stricted from  alienation.  Some,  as  it  is  expressed,  might  go 
with  their  lands  whither  they  would ;  by  which  I  understand 
the  right  of  commending  themselves  to  any  patron  of  tlieir 
choice.  These  of  course  could  not  be  feudal  tenants  in  any 
proper  notion  of  that  term.  Others  could  not  depart  from  the 
lord  whom  they  served ;  not,  certainly,  that  they  were  per- 
sonally bound  to  the  soil,  but  that,  so  long  as  they  retained  it, 
the  seigniory  of  the  superior  could  not  be  defeated.^     But  I 

in»fiilMeqi]entnota,biitiD<m«  A.D.962  hu   been  colled   In    qnesUon   bj   Mr. 

(Codex  Diplomat,  fi.  808),  to  which  I  Wright,  who  refers  that  Life  to  the  a^e 

was  led  by  Hr.  Spenoe  (Suitable  Ju-  of  the  Conquest.  Archieologia,  toI  xziJL 

xiadlction^.  44),  who  quotes  another  l  WUkinji,  p.  8,  7,  28,  &c. 

from  p.  828,  which  la  probably  a  mi»-  *  It  Boaietiines  weakens  a  propositdon, 

print ;  but  I  have  found  one  of  Edgar,  which  is  capable  of  innumerable  proofs, 

A.o.  867.   Cod.  Diplomat,  ill.  11.    I  think  to  take  a  my  few  at  random  ;  yet  the 

that  Mr.  Spence,  In  the  niath  and  tenth  following  casual  specimens  will  illustrate 

ehapters  of  his  learned  work,  has  too  the    common    language   of    Domesday 

much  blended  the  Anglo-Saxon  man  of  Book. 

a  lord  with  tiie  continental  vassal ;  which  Hno  tria  maneria  tennit  UlTeva  tem- 

]»  %  petitio  prineipiL    Certainly  the  word  pore  regis  Edwardi  «t  potuit  ire  ouni 

was  of  rare  use  in  England ;  and  the  terriL  qu6  Tolebat.  p.  85. 

»athenticity  of  Aseerins,  whom  I  have  Toti  emit  earn  T.  R.  E.  (temp,  regia 

■iftoCed  as  a  contemporary  biographer  of  Edwardi)  de  cccIesiSL  Ualmsburipcisl  ad 

Alfred,  wtJob  is  the  common  opinion,  SBtatem  trium  hominum ;  et  infra  hone 


90  FEUDAL  TENtTRES.       Chap.  Vttl.  Pabt  L 

am  not  aware  that  military  service  is  specified  in  any  in- 
stance to  be  due  from  one  of  these  tenants ;  though  it  is  diffi- 
cult to  speak  as  to  a  negative  proposition  of  this  kind  with 
any  conhdence. 

^o  direct  evidence  appears  as  to  the  ceremony  of  homage 
or  the  oath  of  fealty  before  the  (Conquest  The  feudal  ex- 
action of  aid  in  certain  prescribed  cases  seems  to  have  been 
unknown.  Still  less  could  those  of  wardship  and  marriage 
prevail,  wldch  were  no  general  parts  of  the  great  feudal  sys- 
tem. The  English  lawyers,  through  an  imperfect  acquaint- 
ance with  the  history  of  feuds  upon  the  continent,  have  treat- 
ed these  unjust  innovations  as  if  tiiey  had  formed  essential 
parts  of  the  system,  and  sprung  naturally  from  the  relation 
between  lord  and  vassal.  And,  with  reference  to  the  pres- 
ent question,  Sir  Henry  Spelman  has  certainly  laid  too  much 
stress  upon  them  in  concluding  that  feudal  tenures  did  not 
exist  among  the  Anglo-Saxons,  because  their  lands  were  not 
in  ward,  nor  their  persons  sold  in  marriage.  But  I  cannot 
equally  concur  with  this  eminent  person  in  denying  the  ex- 
istence of  reliefs  during  the  same  period.  If  the  heriot, 
which  is  first  mentioned  in  the  time  of  Edgar  *  (though  it 
may  probably  have  been  an  established  custom  long  before) , 
were  not  identical  with  the  relief,  it  bore  at  least  a  very 
strong  analogy  to  it  A  charter  of  Ethelred's  interprets  one 
word  by  the  other.^  In  the  laws  of  William,  which  reenact 
those  of  Canute  concerning  heriots,  the  term  relief  is  em- 
ployed as  synonymous.*  Though  the  heriot  was  in  later 
times  paid  in  chattels,  the  relief  in  money,  it  is  equally  true 
that  originally  the  law  fixed  a  sum  of  money  in  certain  cases 
for  the  heriot,  and  a  chattel  for  the  relief.  And  the  most 
plausible  distinction  alleged  by  Spelman,  that  the  heriot  is  by 
law  due  from  the  personal  estate,  but  the  relief  from  the  heir, 
seems  hardly  applicable  to  that  remote  age,  when  the  law 
of  succession  as  to  real  and  personal  estate  was  npt  dif 
ferent. 

It  has  been  shown  in  another  place  how  the  right  of  ter- 

terminam  poterat  ire  cum  «ft  ad  quern  Tolnerunt  irs  poterunt,  pneter  uoam 

vellet  dominum.    p.  72.  Beric  Tocatum,  qui  in  llagendal  tenuit 

Tree  Angli    tenuttrnnt    Daroeford  T.  ill  carucatas  torrie ;  aed  non  poterat  cum 

a.    B.    et    non    poterant    ab    ecclocii&  eftaiicubi  recodere.  p.235. 

Mparari.    Duo  ex  lis  reddebant  ▼.  soli-  *  Selden's  Worka,  toI.  ii.  p.  1G20. 

don.  et  tertius  serriobat  sicut  ThainuB.  *  Uist.  Kamseions.  p.  430. 

p.  Qb.  *  Leges    CaouiJ,  p.  144 ;    Leget   G» 

Uaa  terru  qui  tenuerunt  T.  H.  E.  qu6  lielmi,  p.  228 


Ebolish  0<m»t.  VEUDAL  TENURES.  91 

litoiial  jurisdiction  was  generally,  and  at  last  inseparably, 
connected  with  feudal  tenure.  Of  this  right  we  meet  fre- 
quent instances  in  the  laws  and  records  of  die  Anglo-Saxons, 
though  not  in  those  of  an  early  date.  A  charter  of  Edred 
grants  to  the  monastery  of  Croyland,  soc,  sac,  toll  team,  and 
infangthef :  words  which  generally  went  together  in  the  de- 
scription of  these  privileges,  and  signify  the  right  of  holding 
a  court  to  which  aU  freemen  of  the  territoiy  should  repair,  of 
deciding  pleas  therein,  as  well  as  of  imposing  amercements 
according  to  law,  of  taking  tolls  upon  the  sale  of  goods,  and 
of  punishing  capitally  a  thief  taken  in  the  fact  within  the 
limits  of  the  manor.^  Another  charter  fi'om  the  Confessor 
grants  to  the  abbey  of  Ramsey  similar  rights  over  all  who 
were  suitors  to  the  sheriflfs  court,  subject  to  military  service, 
and  capable  of  landed  possessions ;  that  is,  as  I  conceive,  all 
who  were  not  in  servitude.'  By  a  law  of  Ethelred,  none  but 
the  king  could  have  jurisdiction  over  a  royal  thane.*  And 
Domesday  Book  is  full  of  decisive  proofs  that  the  English 
lords  had  their  courts  wherein  they  rendered  justice  to  their 
suitors,  like  the  continental  nobility:  privileges  which  are 
noticed  with  great  precision  in  that  record,  as  part  of  the 
statistical  survey.  For  the  right  of  jurisdiction  at  a  time 
when  punishments  were  almost  wholly  pecuniary  was  a  mat* 
ter  of  property,  and  sought  from  motives  of  rapacity  as  well 
as  pride. 

Whether  therefore  the  law  of  feudal  tenures  can  be  said 
to  have  existed  in  England  before  the  Conquest  must  be  left 
to  every  reader's  determination.  Perhaps  any  attempt  to 
decide  it  positively  would  end  in  a  verbal  dispute.  In  trac- 
ing the  history  of  eveiy  political  institution,  three  things  are 
to  be  considered,  the  principle,  the  form,  and  the  name.    The 

1  Inglilftu,  p.  86.    I  do  not  pretend  to  Mr.  Kemble  Is  of    opinion  that  th« 

Mnrt  the  snthentklty  of  these  oharters,  words  grHnting  territorial  jurisdiction  do 

wlilch  at  all  eirenta  are  nearly  as  old  as  not  occur  In  any  genuine  charter  befort 

theConqaeet.    flicks  calls  most  of  them  the    Confessor.     Codex    Dlplom.   1.  48. 

in  qoeaaon.    IMssert.  Epist.  p.  66.    But  They  are  of  constant  occurrence  in  those 

aome  later  antiquaries  seem  to  have  been  of  the  first  Nonuan  reigns.     But  the 

more  IhTorable.     Arohsoologia,  toI.  xriii.  Nprmans  did  not  understand  them,  and 

p.  49 ;  NouTeaa  Traits  da  Diplomatique,  the  words    are    often    misspelled.     H« 

t.1.  n.  848.  thinks,  therefore,  that  the  rights  were 

•  Hist.  Ramsey,  p.  454.  older  than  the  Conquest,  and  accounts 

s  p.  118.    This  is  the  earHeat  allusion,  for  the  rare  mention  of  tJiem  by  ths 

If  I  am  not  mistaken,  to  territorial  Juris-  somewhat  unsatisiiiGtory  supposition  that 

diction  in  the  Saxon  laws.    Probably  it  they  were  so  inherent  in  the  possessloa 

was  not  frequent  till  near  the  end  of  the  of  land  as  not  to  require  particular  no> 

lentil  eentoiy.  tioe.  See  Spence,  Equit.  Juris,  pp.  64, 68 


92  FEUDAL  TENTTHES.      Chap.  Vm.  Past  L 

last  will  probably  not  be  found  in  any  genuine  Anglo-Saxon 
record.^  Of  the  form  or  the  peculiar  ceiemonies  and  inci- 
dents of  a  regular  fief,  there  is  some,  though  not  much,  ap- 
pearance. But  those  who  reflect  upon  the  dependence  in 
which  free  and  even  noble  tenants  held  their  estates  of  other 
subjects,  and  upon  the  privileges  of  territorial  jurisdiction, 
will,  I  think,  perceive  much  of  the  intrinsic  character  of  the 
feudal  relation,  though  in  a  less  mature  and  systematic  shape 
than  it  assumed  after  the  Norman  conquest' 

1  Faodom  twice  ocean  In  the  teste-  >tlll  alodial.     Talni  lex  est.  sbjs  a  en- 

ment  of  Alfred ;  bat  it  does  not  appeer  rioos  docament  oa  the  righte,  that  la 

to  be  used  in  its  proper  sense,  nor  do  I  obligations,  of  different  ranks,  pablish- 

apprehend  that  instramcnt  to  nave  been  ed  br  Mr.  Thorpe,  —  at  sit  dignns  reo> 

originally    written   in    Latin.     It  was  tttndlne  testament!  sol  {hi*  boe-rigku^ 

mnch  more  consonant  to  Alfted*s  prao-  wyrthe.  that  Is,  periiaps,  bonnd  to  the 

tSce  to  employ  his  own  langaage.  duties  bnplied  by  the  deed  which  creates 

s  It  will  probably  be  never  dispnted  his  estates), — et  ut  ita  ftciat  pro  terri 

again  that  Lands  were  granted  by  a  mill-  suA,  scilicet  expeditlonem  bwhhotam  el 

tuy  tennre  befbre  the  Conquest.    Thus,  brigbotam,     Kt  de  multis  tcrris  mijus 

beeides  the  proofli  in  the  text,  in  the  landirectum  exsurgltad  bannum  regis, 

laws  of  Canute  (c.  78):  — "And  the  man  Itc.  p.   186.      Here  we  find  the  well- 

who  shall  flee  m>m  his  lord  or  from  his  known  trinoda  neeessita*  of  alodial  land, 

comrade  by  reason  of  his  cowardice,  be  it  with  other  contingent  UabilltleB  imposed 

In  the  shipfyrd.  be  it  in  the  landiyrd,  by  grant  or  usage.* 

let  him  forfeit  all  he  owns,  and  his  own  We  mav  probably  not  err  Tery  mnch 

life ;  and  let  the  lord  seise  his  posses  in  supposing  that  the  state  of  tenures  in 

sioDS.  and  his  land  which  he  preTiousIy  England  under  Canute  or  the  Gonlbssor 

gave  nim ;  and  if  he  hare  bOcland,  let  was  a  good  deal  like  tiiose  in   Franoa 

that  go  into  the  king's  hands. "   Ancient  under  Charlemagne  or  Charles  the  Bald, — 

Laws.  p.  180.     And  we  read  of  tands  an  alodial  trunk  with  numerous  bxaochef 

called  hiafardsgifuy  lord's  gift.     Leges  of  feudal  benefice  grafted  Into  it.    But 

Ethelred  1.,  Ancient  Laws,  p.  126.    But  the  couTersion  of  the  one  mode  of  tenure 

these  were  not  always  feudal,  or  even  into  the  other,  so  fkequent  in  Fiance, 

hereditary ;  they  were  what  was  called  does  not  appear  by  eridence  to  have  pre 

on  the  conttnent  pr»starifle,  granted  fbr  Tailed  on  tUs  side  of  the  channel. 

Ufe  or  for  a  certain  term ;  and  this,  as  I  will  only  add  here  that  Mr.  Spenoe, 

it  appears   to  me,  may  have  been  the  an  authority  of  great  weight,  maintains  a 

proper  meaning  of  the  term  Isen-lands.  more  complete  establishment  of  the  feudal 

But  the  general  tenure  of  lands  waa  polity  before  the  Conquest  than  I  haTe 

*  Mr.  Kemble  has  printed  a  charter  of  Oenulf  Ung  of  Merda  to  the  abbey  of 
Abingdon,  in  820,  without  the  asterisk  of  spuriousness  (Codex  Diplom.  i.  269);  and 
It  is  quoted  by  Sir  F.  PalmTe  (toI.  i.  p.  169)  In  proof  of  military  tenures.  The  ex- 
pression, however,  expeditlonem  cum  duodeclm  vauaUU^  et  totldem«r«tuexeroeant, 
seems  not  a  little  against  ita  authentidty.  The  former  has  obsetred  that  the  testa- 
mentary documents  befbre  the  Conquest,  made  by  men  who  were  under  a  superior 
lord,  contain  a  clause  of  great  intereiit ;  namdy,  an  earnest  prayer  to  the  lord  that 
he  will  permit  the  will  to  stand  according  to  the  disposition  of  the  testator,  coupled 
not  unfrequently  with  a  legacy  to  him  on  condition  of  his  so  doing,  or  to  soma 
person  of  influence  about  him  for  intercearion  on  the  testator's  behalf.  And  henca 
he  infers  that,  **  as  no  man  supplicates  for  that  which  he  Is  of  his  own  right  en 
titled  to  eiOoy,  it  appears  as  if  these  great  rassals  of  the  crown  had  not  the  power 
of  diapodng  of  thdr  lands  and  chattels  but  as  the  king  might  permit ;  and,  in  tha 
strict  construction  of  the  bond  between  the  king  and  them,  all  that  they  gained  In 
his  seryioe  must  be  taken  to  fell  into  his  hands  after  thdr  death."  Introduction  to 
Cod.  Dip.  p.  111.  This  inference  seems  hardly  borne  out  by  the  premises:  a  man 
might  sometimea  be  reduced  to  supplicate  a  supericr  for  that  which  he  had  a  right 
laei^y. 


Kiairun  Const. 


FEUDAL  TKNURKS. 


93 


p.  48.  This  In  a  ral^ect  on  which 
it  ill  hard  to  Uy  down  a  definite  Une. 
But  I  rnunt  protest  against  my  learned 
fHend*8  derivation  of  the  feudal  Ryutem 
from  **  the  arifftoeratic  principle  that  pre- 
vailed In  the  lloman  dominions  while  Um 
republic  endured,  and  which  was  incor- 
iKMrated  with  the  principles  of  despotism 
iBtrodttoed  during  Um  empire.'*    It  It 


because  the  arlstocratio  principle  eonia 
not  be  incorporated  \rith  that  of  despot- 
ism, that  I  conceive  the  feudal  system  to 
have  be«n  incapable  of  development, 
whatever  inchoate  rudiments  of  It  mty 
be  traced,  until  a  powerful  territorial 
aristocracy  had  rendered  dispotiam  BO 
longer  poMlhto.    [1M7.] 


94  CONQUEST  OF  BNGLAND    Chap.  VOL  Pajw  O. 


PART  IL 

THE   ANGLO-NORMAN   CONSTITUTION. 

Ibe  Anglo-Nonnan  C!on8titiitIon — CameB  of  the  Conotieet — Policy  and  Oharaetar 
of  WilUMii  —  hia  Tyranny — Introductton  of  Feudal  Serrioee — DUbrenee  between 
the  Feudal  Qoveramente  of  France  and  England  — Causes  of  the  great  Power  of 
the  first  Norman  Kings  —  Arbitrary  Character  of  their  QoTemnient  —  Oreat 
Council  —  Resistance  of  the  Barons  to  John — Magna  Charta — its  principal  Ar^ 
tides —  Reign  of  Henry  III.  —  The  Constitution  acquires  a  more  liberal  Character 
—  Judicial  System  of  the  Anglo-Normans — Curia  Regis,  Exchequer,  &c.  —  Es* 
tablishment  of  the  Common  L«aw  —  its  Effect  in  fixing  the  Constitution — Bemarkv 
on  the  Limitation  of  Aristoeratical  PriTileges  in  England. 

It  is  deemed  by  William  of  Malmsbury  an  extraordinaiy 
Oonanest  of  ^^^^  ^^  Providence  that  the  English  should  have 
England  by  given  up  all  foF  lost  after  the  battle  of  Hastings, 
^»ii»**a.  where  only  a  small  though  brave  army  had  per- 
ished.* It  was  indeed  the  conquest  of  a  great  kingdom  by 
the  prince  of  a  single  province,  an  event  not  easily  paralleled, 
where  the  vanquished  were  little,  if  at  all,  less  courageous 
than  their  enemies,  and  where  no  domestic  factions  exposed 
the  country  to  an  invader.  Yet  William  was  so  advan- 
tageously situated,  that  his  success  seems  neither  unaccount- 
able nor  any  matter  of  discTedit  to  the  English  nation.  The 
heir  of  the  house  of  Cerdic  had  been  already  set  aside  at  the 
election  of  Harold;  and  his  youth,  joined  to  a  mediocrity  of 
understanding  which  excited  neither  esteem  nor  fear,^  gave 
no  encouragement  to  the  scheme  of  placing  him  upon  the 
throne  in  tliose  moments  of  imminent  peril  which  followed 
the  battle  of  Hastings.  England  was  peculiarly  destitute  of 
great  men.  The  weak  reigns  of  Ethelred  and  Edward  had 
rendered  the  government  a  mere  oligarchy,  and  reduced  the 

1  Malmsbury,  p.  68.    And  Henry  of  attempts  to  reeoTer  the  kingdom,  wu 

Huntingdon   says   emphatically,  Mille-  treated    by    William   with    a   kindness 

tlmo  et  sexagesimo  sexto  anno  gratia,  which  could  only  haye  proceeded  At>m 

perfecit  dominator  Deus  du  gente  An-  contempt  of  his  understanding ;  for  be 

glorum   quod   diu   oogitaverat.     Genti  was  not  wanting  in  courage.    Ue  became 

nxunque  Normannorum  asperse  etcalUdsB  the  Intimate  friend  of  Robert  duke  of 

Iradldit  eoa  ad  exterminandum.  p.  210.  Normandy,  whose  fortunes,  as  well  M 

s  Jidgar,  after  one  or  two  InefEBctuai  character,  much  resembled  his  own. 


BaousH  G0H8T.  BY  WILLIAM  95 

nobility  into  the  state  of  retainers  to  a  few  leading  houses, 
the  repi'esentatives  of  which  were  every  way  unequal  to  meet 
each  an  enemy  as  the  duke  of  Normandy.  If  indeed  the 
concurrent  testimony  of  historians  does  not  exaggerate  his 
forces,  It  may  be  doubted  whether  England  possessed  military 
resources  sufficient  to  have  resisted  so  numerous  and  well- 
appointed  an  army.^ 

This  forlorn  state  of  the  country  induced,  if  it  did  not  jus- 
tify, tlie  measure  of  tendering  the  crown  to  William,  which 
he  had  a  pretext  or  title  to  claim,  arising  from  the  intentions, 
perhaps  the  promise,  perhaps  even  the  testament  of  Edward, 
which  had  more  weight  in  those  times  than  it  deserved,  and 
was  at  least  better  than  the  naked  title  of  conquest.  And 
this,  supported  by  an  oath  exactly  similar  to  that  taken  by  the 
Anglo-Saxon  kings,  and  by  the  assent  of  the  multitude,  Eng- 
lish as  well  as  Normans,  on  the  day  of  his  coronation,  gave  as 
much  appearance  of  a  regular  succession  as  the  circumstances 
of  the  times  would  permit.  Those  who  yielded  to  such  cir- 
cumstances could  not  foresee,  and  were  unwilling  to  anticipate, 

1  It  has  been  iiag|re«ited,  to  the  second  i«  tt  quite  accurate  to  speak  of  a  mtUtary 
Report  of  a  Committee  of  tbo  Ix>nlii'  force  then  efitabn.<'hed  ia  Normandy,  or 
House  on  the  Dixaitj  of  a  Peer,  to  which  anj'where  else.  We  apply  tliese  words  to 
I  shall  have  much  recouniu  io  the  follow-  a  pemiunent  body  always  under  arms* 
Ing  paj^f*  that  *'  the  fiiciUty  with  which  This  was  no  attribute  of  fi>udAl  tenure, 
the  Conquest  had  been  achieved  seems  however  the  frequency  of  war,  general  or 
to  have  been,  In  part,  the  connotiuence  of  private,  may  have  inured  the  tenauttii  by 
defects  in  the  Saxon  institution<>,  and  of  military  service  to  a  mora  habitual  di»- 
the  want  of  a  military  force  siaiilar  to  cipline  than  the  thanes  of  Englnnd  ever 
that  which  had  then  been  established  in  ktiew.  The  adventurers  in  William's 
liormandy,  and  in  some  other  parts  of  army  were  from  various  countries,  and 
the  continent  of  Kurope.  The  adven-  most  of  them,  doubtless,  jiad  served  be- 
turers  in  the  army  of  William  were  of  fore,  but  whether  as  hired  mep^naries 
those  countries  in  which  such  a  military  or  no  we  have  probably  not  sufficient 
•Htablishment  had  prevailed/'  p.  24.  It  means  of  determining.  The  practice  of 
oanuot  be  said,  I  think,  that  there  were  hiring  troops  does  not  attract  the  notice 
any  manifest  defects  in  the  S.txoa  imtti-  of  hlAtorianst;  I  believe,  in  so  early  an  age. 
tutions,  so  &r  u  related  to  the  defence  We  need  not,  however,  resort  to  this  con- 
of  tike  country  against  invasion.  It  was  Jecture,  since  hltttory  sufllciently  ex- 
part  of  the  trinofia  necessitas,  to  which  pbdns  the  success  of  William. 
•U  aiodial  landholden  were  bound.    Nor 

•  This  Report  I  generally  quote  firom  that  printed  in  1819;  but  in  1829  It  wm 
nprinted  with  corrections.  It  has  been  said  that  the«<e  were  occasioned  by  the  strie- 
turca  of  Mr.  Alien,  in  the  d5th  volume  of  the  Bdinburgh  Iteview,  not  more  remark* 
able  for  their  learning  and  acuteness  than  their  severity  on  the  Report.  The  cof 
lections,  I  apprehend,  are  chietly  confined  to  erron  of  names,  dates,  and  othere  of 
a  similar  kind,  which  no  doubt  tiad  been  copiously  pointed  out.  But  it  has  not 
•Apeared  to  me  that  the  Lords'  Committee  have  altered,  in  any  con»(iderable  degree, 
the  positions  upon  which  the  reviewer  animadverts.  It  was  hardly,  indeed,  to  ba 
•xpected  that  the  supposed  compiler  of  the  Iteport,  the  late  L.ord  Itedesdale, 
having  taken  up  his  own  line  of  opinion,  would  abandon  it  on  the  suggestions 
sf  one  whose  comments,  though  extremely  able,  and  often,  in  the  eyes  of  many. 
wU  founded,  are  certainly  not  couched  in  the  most  coneiliatoi7  or  rraparifuJ 


96  TYRANNY  OF  WILLIAM  L   Chap.  Vifl.  Pirt  XL 

the  bitterness  of  that  servitude  which  William  and  his  Nor- 
man followers  were  to  bring  upon  their  country. 

The  commencement  of  his  administration  was  tolerably 
His  conduct  ^^^uitablc.  Though  many  confiscations  took  place, 
at  &nt  in  order  to  gratify  the  Norman  army,  yet  the  mass 

m  erata.  ^p  property  was  left  in  the  hands  of  its  former  pos- 
sessors. Offices  of  high  trust  were  bestowed  upon  Englisli- 
men,  even  upon  those  whose  family  renown  might  have  raised 
the  most  aspiring  thoughts.^  But  partly  through  the  inso- 
itbflcomet  Ic^ce  and  injustice  of  William's  Norman  yassxds, 
more  tynn-  partly  through  the  suspiciousness  natural  to  a  man 
'^****'  conscious  of  having  overturned  the  national  govern- 

ment, his  yoke  soon  became  more  heavy.  The  English  were 
oppressed  ;  they  rebelled,  were  subdued,  and  oppressed  again. 
AH  their  risings  were  without  concert,  and  desperate ;  they 
wanted  men  fit  to  head  them,  and  fortresses  to  sustain  their 
revolt*  Afler  a  very  few  years  they  sank  in  despair,  and 
yielded  for  a  century  to  the  indignities  of  a  compamtively 
small  body  of  strangers  without  a  single  tumult  So  possible 
is  it  for  a  nation  to  be  kept  in  peimanent  servitude,  even  with- 
out losing  its  reputation  for  individual  courage,  or  its  desii*e 
of  freedom  I  • 

The  tyranny  of  William  displayed  less  of  passion  or  inso- 

1   Orderfcns  Vitalbi,   p.   620  (in   Da  giren  it  in  nome  detail  from  the  former. 

Cheiine,  Hist.  Norm.  Script.).  Ilereward  ultimately  made  bis  peace  wiUi 

*  Ordericus  notices  the  want  of  castlei  William,  and  recovered  liis  estate.  Ac- 
In  England  as  one  reason  why  rebel-  oording  to  Ingulfus,  he  died  peaceably, 
Uons  wore  easily  quelled,  p.  511.  JKail-  and  was  buried  at  Croyiand:  according 
Ing  in  their  attempts  at  a  gonerons  re-  to  Gaimar,  he  was  assassinated  in  liii 
Bistance,  tbe  English  endeavored  to  get  house  by  some  Normans.  The  latter  ac- 
rid of  their  enemies  by  assassination,  to  count  is  confirmed  by  an  early  chronicler, 
which  many  Normans  became  victims,  from  whom  an  extract  is  i^ven  by  Mr. 
William  therefore  enacted  ttiat  in  every  Wright.  A  more  detailed  memoir  of  Uere- 
case  of  tMur^/rr,  which  strictly  meant  the  ward  {De  Oestis  Herewardi  Saxouis)  is 
killing  of  any  one  by  an  unknown  hsnd,  found  in  the  chartulary  of  Swaffham  Ab- 
the  hundred  should  be  liable  in  a  fine,  bey,  now  preserved  in  Peterborough  Oa- 
unless  they  could  prove  the  person  mur*  thedral,  and  said  to  be  as  old  as  the 
dered  to  be  an  Englishman.  This  was  twelfth  century.  Mr.  Wright  published 
tried  by  an  inquettt,  upon  what  was  called  it  in  1838,  from  a  copy  in  the  library  of 

presentment  of  EngSishry.    But  from  Trinity  College.  Cambridge.    If  the  an 

the  reign  of  Ilenry  II.,  the  two  nations  thor  is  to  be  believed,  he  had  conversed 

having   been  very  much  intermingled,  with  some  companions  of  Ilereward.  But 

this  inquiry,  as  we  learn  from  the  Dia-  such  testimony  is  often  feigned  by  the 

logue  de  Scaccario,  p.  26,  ceased  ;  and  in  medispval  semiromancers.    Though  the 

•very  case  of  a  ftveman  murdered  by  per-  writer  appears  to  affiect  a  different  origin, 

eons  unlcnown  the  hundred  was  fined,  he  is  too  fall  of  Anglo-Saxon  sympathiee 

Bee  however  Bracton,  1.  iii.  c.  16.  to  be  dii%;uised  ;  and  in  fkct,  he  has  cvi 

*  The  bmve  resistance  of  Hereward  in  dently  borrowed  greatly  traca  exaggerated 
fhe  fhns  of  Lincoln  and  Cambridge  is  well  legends,  perhaps  metrical,  current  among 
told  by  M.  Thierry,  tmm  Ingulfus  and  the  EngUsh,  as  to  the  early  life  of  Ilere- 
Gaimar.  Conqndte  d'Anglet.  par  ies  ward,  to  which  Ingulfds.  or  whoever  per- 
Kormands,  toI.  U.  p.  168.    Turner  had  sonatod  him,  cursorily  alludes. 


BwousR  C0H8T.      TTSANNT  OF  WILLIAM  L  97 

lence  than  of  that  indifference  about  human  suffering  which 
distirguishes  a  cold  and  far-sighted  statesman.  Impressed  by 
the  fi-equent  risings  of  the  English  at  the  commencement  of 
his  reign,  and  by  the  recollection,  as  one  historian  observes^ 
that  the  mild  government  of  Canute  had  only  ended  in  the 
expulsion  of  the  Danish  line/  he  formed  the  scheme  of  rivet- 
ing such  fetters  upon  the  conquered  nation,  that  all  resistance 
should  become  impracticable.  Those  who  had  obtained  hon- 
orable offices  were  successively  deprived  of  them ;  even  the 
bishops  and  abbots  of  English  birth  were  deposed  ^  ^  a  stretch 
of  power  very  singular  in  that  age.  Morcar,  one  of  the  most 
illustrious  English,  suffered  perpetual  imprisonment  Wal- 
theoff,  a  man  of  equally  conspicuous  birth,  lost  his  head  upon 
a  scaffold  by  a  very  harsh  if  not  iniquitous  sentence.  It  was 
so  rare  in  those  times  to  inflict  judicially  any  capital  punish- 
ment upon  persons  of  such  rank,  that  his  death  seems  to  have 
produced  more  indignation  and  despair  in  England  than  any 
single  circumstance.  The  name  of  Englishman  was  turned 
into  a  reproach.  None  of  that  race  for  a  hundred  years  were 
raised  to  any  dignity  in  the  state  or  church.'    Their  language 

1  Malmsbary,  p.  104.  Th«  English  ehnnh  Ibund  hsiMlf,  u  It 

•  Uoveden,  p.  4G8.     This   waa  done  were,  with  an  attainted  peerage.     But 

with  the  eonourrence  and  sancUon  of  the  Che  calender  withstood  these  innoratlons. 

pope,  Alexander  II..  so  that  the  stretch  Mr.  Turner,  in  his  usaal  spirit  of  pane- 

of  power  was  by  Kome  rather  than  by  gyric,  says.  —  ^'He  (William)  made  Im- 

William.    It  must  pass  for  a  gross  wk>-  portant    changes    among    the   Bnglish 

lation  of  ecclesiastical  as  well  as  of  na-  clergy  ;  he  caused  Stigand  and  others  to 

tlonal  rights,  and   Lanfrane  cannot   be  be  deposed,  and  he  filled  their  plaosa 

reckoned,   notwithstanding   his    dlstln-  with  men  nom  Normandy  and  France, 

gnished  name,  as  any  better  than  an  In-  who  wen  distinguished  by  theeharacten 

truslTS  bishop.    He  showed  his  arrogant  of  piety,  decorous  morals,  and  a  Iotb  of 

•Qom  of  the  English  nation  in  another  literature.    This  measure  was  an  impor> 

and  rather  a  singular  manner.     They  taut  addition  to  the  ciTilixatlon  of  tba 

w«rs  exoi9«Ri?ely  proud  of  their  natioual  island,"  &e.    Hist,  of  England,  vol.  i.  p. 

■ainto,  soma  of  whom  were  little  Icnown.  101.    Admitting  this  to  be  partly  troa, 

and  whose  barbarous  names  disgusted  though  he  would  hare  found  by  no  means 


Italian  ears.    Angli  inter  quos  yiTimus,  so  Ihvorable  an  account  of  the  Norman 

•aid  the  foreign  priests,  quosdam  sibi  in-  prelates  in  Orderlcus  Vi tails,  if  he  had 

Btltuenint  sanctos,  quorum  inoerta  sunt  read  a  few  pages  beyond  the  passages  to 

nerita.    This  might  be  true  enough;  but  which  he  lefen,  is  it  consonant  to  his- 


the  same  measure  should  hare  been  met-  torical  Justice  that  a  violent  act,  like  the 

•d  to  others.      Thierry,  vol.  it.  p.  168,  deposition  of  almost  all  the  Anglo-Saxon 

edit.  1830.     The  Norman  bishops,  and  hierarchy,  should  be  spoken  of  in  a  tona 

ttM  primate  especially,  set  themselves  to  of  praise,  which  the  whole  ten<v  of  the 

disparage,  and  in  ftet  to  dispossess,  St.  paragraph  conveys? 

Aldhetm,  St.  Blflg,  and,  for  aught  we  s  Becket  is  said  to  have  been  the  firs 

know,  St.  Swlthin,  St.  WerbuTg,St.  Ebb,  Englishman  who  reached  any  consider 

and   St.  Alphafa:  names,  it  must  be  able  dignity.    Lord  Lyttelton's  Hist,  of 


Henry  11.  vol.  ii.  p.  22.    And  Eadmer 

••That  would  have  made  Qnlntilian  i^^Tv^^iluZ"^  Ji^.'T^i^^^ 

■ft«M  mwkA  trmmn  »  ^  slnglo  Englishman  at  the  head  of  a  mon- 

snre  ana  gasp.  Mtery.    Ri  Anglus  erat,  nulla  virtus,  ut 

Wo  may  Jndge  wliat  the  eminent  native  honors  aliquo  dignus  JudicareCUTy 


if  Pavia  thought  of  such  a  haglology.    poterat  a^Juvare.  p.  110. 
VOL.  II.  —  M.  7 


98 


TYRANNY  OF  WILLIAM  L    Chap.  Vm.  Part  IL 


and  the  characters  in  which  it  was  written  were  rejected  as 
barbarous;  in  all  schools,  if  we  trust  an  authority  often  quoted, 
children  were  taught  French,  and  the  laws  were  administered 
in  no  other  tongue.^  It  is  well  known  that  this  use  of  French 
in  all  legal  proceedings  lasted  till  the  reign  of  Edward  IIL 
Several  English  nobles,  desperate  of  the  fortunes  of  their 
country,  sought  refuge  in  the  court  of  Constantinople,  and  ap- 
proved their  valor  in  the  wars  of  Alexius  against  another 
Norman  conqueror,  scarcely  less  celebrated  than  their  own 
Robert  Guiscard.  Under  the  name  of  Varangians,  those  true 
and  faithful  supporter^  of  the  Byzantine  empire  preserved  to 
its  dissolution  their  ancient  Saxon  idiom.* 

An  extensive  spoliation  of  property  accompanied  these 
revolutions.  It  appears  by  the  great  national  survey  of 
Domesday  Book,  completed  near  the  close  of  the  Conqueror's 
reign,'  that  the  tenants  in  capite  of  the  crown  were  generally 


1  Ingnlfuf,  p.  61.  Tantam  tauo  An- 
glicw  abomlnati  sunt,  ut  qaantocunque 
merito  polleront,  de  digaitatibus  ropello- 
bantur;  et  mnlto  minus  babiies  alieDl- 
genfo  de  qaicunque  alii  nadoue,  quao 
Bub  coelo  est,  extitiMent,  ^^ratanter  ajiaa- 
merentur.  Ipnum  etiam  idioma  tantum 
abhorrebant,  quod  leges  temc,  statutaque 
Anglicorum  regain  lingul  Oallirft  trao- 
tarentur ;  et  puerls  etiaui  io  scholia  prin- 
dpia  literarum  grammatica  Qallici.  ac 
nou  Anglic^  traJerentut ;  modus  etiam 
acribenm  Angllcus  omitteretur,  et  modus 
GalUcus  in  chartis  et  in  libris  omnibus 
admit  terotur. 

But  the  passage  in  Tngulftis,  quoted 
in  support  of  tills  position,  bas  been 
placed  by  Sir  F.  Palgrave  among  the 
proofiii  that  we  bare  a  forgery  of  the  four- 
teenth ceotury  In  that  hiacoriaUf  the  focts 
being  in  absolute  contradiction  to  him. 
*'  Before  the  reign  of  Ucurv  III.  we  can- 
not dlscorer  a  deed  or  law  drawn  or  corn- 
pored  in  French.  Instead  of  prolilbiting 
the  English  language,  it  was  employed 
by  the  Conqueror  and  his  successors  in 
their  charters  until  the  reign  of  Ilenry 
IT.,  when  it  was  superseded,  not  by  the 
French,  but  by  the  Eiatin  language,  which 
had  been  gradually  gaining  or  rather  re- 
sainiDg  ground."  Bdiub.  Key.  xxxiv. 
262.  ^^The  Ijatin  language  had  given 
way  in  a  great  measure,  from  the  time  of 
Canute,  to  the  vemarular  Anglo-Saxon. 
Several  charters  in  the  latter  language 
occur  before ;  but  for  fifty  years  ending 
with  the  Conquest,  out  of  2S4  (published 
In  the  fourth  volume  of  the  Codex  Dip- 
lomaticus),  137  are  in  Ani^lo-Saxon,  and 
onl^  117  in  lAtio.*'    Kemble's  Pre&ce, 


If  I  have  rightly  translated,  in  the  text 
of  Ingulfus,  leges  trcKtarentur  by  admin" 
istered,  the  &l8ehood  Is  manifest;  since 
the  laws  were  administered  in  the  county 
and  hundred  courts,  and  certainly  not 
there  in  French.  I  really  do  not  per- 
ceive how  this  passage  could  have  been 
written  by  Ingulfiis,  who  must  have 
known  the  truth ;  at  all  events,  his  testi- 
mony must  be  worth  little  on  any  sub- 
ject, if  he  could  so  palpably  misrppreseut 
a  matter  of  'public  notoriety.  The  sup- 
position of  entire  forgery  is  one  which  we 
should  not  admit  without  full  proof; 
but,  in  this  instance,  tliere  are  perhaps 
fewer  difficulties  on  this  side  than  on 
that  of  authenticity. 

*  Gibbon,  vol.  x.  p.  228.  No  writer, 
except  perhaps  the  Saxon  Chronicler,  is 
so  full  of  William's  tyranny  as  Ordericus 
Vitaits.  See  particularly  p.  607,  512, 
6^,  521,  523,  in  Du  Chesne,  Ilidt.  Nonn. 
Script.  Ordericus  was  an  Kngllsbman, 
but  passed  at  ten  years  old,  a.d.  1084, 
into  Normandy,  where  he  became  pro 
fe.<i8ed  in  the  monastery  of  £u.  Ibid,  p 
024. 

*  The  regularity  of  the  course  adopted 
irhen  this  record  was  compiled  is  very 
remarlcable;  and  affords  a  satisfactory 
proof  that  the  business  of  the  government 
was  well  conducted,  and  with  much  less 
rudeness  than  is  usually  supposed.  The 
commissioners  were  furnished  with  in* 
terrogatories,  upon  which  they  examined 
the  jurors  of  tlie  shire  and  hundred,  and 
also  such  other  witnessn  as  they  thoughl 
expedient. 

ilic  subseribltur  inqnislcio  terrarnm 
quomodo  Barones  Reges  inquiruot,  vide- 
licet, per  sacramentum  vicecomltls  Seim 


VsQUBE  C0H8T.      TYRANNY  OF  WILLIAM  L  99 

foreigners.  Unddubtedlj  there  were  a  few  left  in  almost 
every  county,  who  still  enjoyed  the  estates  which  they  held 
under  Edward  the  Confessor,  free  from  any  superiority  but 
that  of  the  crown,  and  were  denominated,  as  in  former  times, 
the  king's  thanes.^  Cospatric,  son  perhaps  of  one  of  that 
name  who  had  possessed  the  earldom  of  Northumberland, 
held  forty-one  manors  in  Yorkshire,  though  many  of  them  are 
stated  in  Domesday  to  be  waste.  But  inferior  freeholders 
were  much  less  disturbed  in  their  estates  than  the  higher  class. 
Brady  maintains  that  the  English  had  suffered  universally  a 
deprivation  of  their  lands.  But  the  valuable  labors  of  Sir 
Henry  Ellis,  in  presenting  us  with  a  complete  analysis  of 
TX)mesday  Book,  afford  an  opportunity,  by  his  list  of  mesne 
tenants  at  the  time  of  the  survey,  to  form  some  approximation 
to  the  relative  numbers  of  English  and  foreigners  holding 
manors  under  the  immediate  vassals  of  the  crown.  The  bap- 
tismal names  (there  are  rarely  any  others)  are  not  always 
conclusive ;  but,  on  the  whole,  we  learn  by  a  little  practice  to 
distinguish  the  Norman  from  the  Anglo-Saxon.  It  would  be 
manifest,  by  running  the  eye  over  some  pages  of  this  list,  how 
considerably  mistaken  is  the  supposition  that  few  of  English 
birth  held  entire  manors.  Though  I  will  not  now  affirm  or 
deny  tliat  they  were  a  majority,  they  form  a  large  proportion 
of  nearly  8000  mesne  tenants,^  who  are  summed  up  by  the 
diligence  of  Sir  Henry  Ellis.  And  we  may  presume  that 
they  were  in  a  very  much  greater  proportion  among  the 
"  liberi  homines,"  who  held  lands,  subject  only  to  free  services, 
seldom  or  never  very  burdensome.     It  may  be  added  that 

•t  omninm  Baronam  et  eomm  FnncI-  1  Brady,     whoso    anfliimess    alwayi 

ganarumet  tociiui  renturiatUB  —  presbi-  keeps    pace  with    his  abilitj,  pretends 

teri  pnepo«iti  VI  Tillaui  uniuacujusque  that  all  these  wore  menial  officers  of  the 

Titi«   [sic]. —  Delnde   qaomodo   vocatur  king's  household.    But  notwithstanding 

manslo,  quis  tenuit  earn  tempore  11^^  the  difllculty  of  dlsproring  these  gratul- 

Edwardiy  qais  modo  tenet,  quot  hide,  tons   sUpposidoos,  it  is  pretty  certain 

qaot  earrttcatie  in  domino  quot  homines,  that  many  of  the  Bogllsh  pmpricton  in 

qoot  Tillani,  qaot  eotarii,  quot  servi,  Domesday  could  not  hare  been  of  this 

quot  Uberi  homines,  quot  sochemanni.  description.     See  p.  08,  168,  218,  219, 

quantum  sllvie,  quantum   prati,    quoi  and  other  places.     The  question,  how- 

pascuorum,  qaot moUdensB.  quot  piseinie,  ever,  was  not  worth  a  battle,  though  it 

quantum  est  additum  Tel  ablatum,quaa-  makes  a  figure  in  the  controversy  of 

turn  valebat  totum  simul ;  et  quantum  Normans    and   Anti-Normans,  between 

modo ;  quantum  Ibi  quisqae  liber  homo  Dugdale  bnd  Brady  on  the  one  side,  and 

vel  sochemanus  habult  tcI  habet.    Hoc  TyrreU,    Petyfc,   and    Attwood    on    tha 

totum  tripliciter,  scilicet  tempore  Regis  other. 

JEfitvardi;   et   qaando   Rex  WiUi'lmus  *  £1118*8   Introduction   to   Domesday, 

dsdit;  et  quomodo  sit  modo,  et  si  plus  toI.  ii.  p.  811.    '*  The  tenants  in  capitOi 

potest  haberl  quam  iMbeatur.    Isti  ho-  including     eoolesiastlcal      corporations, 

mines  JaraTerunt(  then  follow  the  names!,  amounted  scarcely  to  1400',  the  uiid«r> 

Inquisitio  SUenais,  p.  497.    PalgiaTe,  ii.  tenants  were  7871." 


100  TYRANNY  OF  WILLIAM  I.   Chap.  Vm.  Part  H. 

many  Nbrmans,  as  we  learn  from  history,  married  English 
heiresses,  rendered  so  frequently,  no  doubt^  by  the  violent 
deaths  of  their  fathers  and  brothers,  but  still  transmittuig 
ancient  rights,  as  well  as  native  blood,  to  their  posterity. 

This  might  induce  us  to  suspect  that,  great  as  the  spoliation 
must  appear  in  modem  times,  and  almost  completely  as  the 
nation  was  excluded  from  civil  power  in  the  commonwealth, 
there  is  some  exaggeration  in  the  language  of  those  writers 
who  represent  them  as  universally  reduced  to  a  state  of  penury 
and  servitude.  And  this  suspicion  may  be  in  some  d(igree 
just.  Yet  these  writers,  and  especially  the  most  English  in 
feeling  of  them  all,  M.  Thierry,  are  warranted  by  the  language 
of  contemporary  authorities.  An  important  passage  in  the 
Dialogus  de  Scaccario,  written  towards  the  end  of  Henry 
III.'s  reign,  tends  greatly  to  diminish  the  favorable  impres- 
sion which  the  Saxon  names  of  so  many  mesne  tenants  in 
Domesday  Book  would  create.  If  we  may  trust  Grervase  of 
Tilbury,  author  of  this  little  treatise,  the  estates  of  those  who 
had  borne  arms  against  William  were  alone  confiscated; 
though  the  others  were  subjected  to  the  feudal  superiority  of 
a  Norman  lord.  But  when  these  lords  abused  their  power 
to  dispossess  the  native  tenants,  a  clamor  was  raised  by  the 
English,  and  complaint  made  to  the  king ;  by  whom  it  was 
ordered  (if  we  rightly  understand  a  passage  not  devoid  of 
obscurity)  that  the  tenant  might  make  a  bargain  with  his  lord, 
60  as  to  secure  himself  in  possession ;  but  that  none  of  the 
English  should  have  any  right  of  succession,  a  fresh  agree- 
ment with  the  lord  being  required  on  every  change  of  tenancy. 
The  Latin  words  will  be  found  below.^  This,  as  here  expressed, 

1  Poet  ngnl  oonqul8itionem,*p<Mt  Jos-  dominb  snli  odlosl  passim  a  powesctonl- 

tam  rebeUium  subvenlonem,  oum  rex  bus   pellerantur,  nee  etset  qui   ablatis 

Ipm  regisque  proceres  loca  noTa  perlos-  restituerit,  coumunis   indigeDarum   ad 

trarent,  fkcta  est  inqnlsitio  diUgens,  qui  regem    perrvnit   querimonia,  quasi   sio 

fuerunt  qui  contra  regem  in  bello  dimi-  omnibus  ezosi  et  rebus  spoliatis  ad  alien- 

cantes  per  fUgam  so  salTaverant.    His  igcnas  transire  cogerentnr.  Comraunlcato 

omnibus  et  item  hieredibus  eorum  qui  tantum  super  his  consilio.  decretum  est, 

In  bello  oecubuerant,  spes  omuls  terra-  nt    quod   a  dominls    suis  exlgentibus 

rum  et  fundorum  atque  rodituum  quos  mentis   interreniente  paotione  legitima 

ante  possederant,  pneclusa  est;  magnum  poterant  obtinere,  iUls  iDTiolabiUs  Jura 

namque  reputabant  frui  ritsB  beneOclo  concederentur ;  eseterum  autem  nomine 

•ub  inimicis.    Verum  qui  Tocati  ad  bel-  suooessionls  a  temporibus  subactsD  ^ntii 

lum  necdum  convenennt,  vel  fiuniliari-  nihil  sibi  Tindicarent.  ...  Sio  igitur 

bus  Tel  quibuslibet  uecessariis  occupati  quisquis  de  gente  subacta   fUndos  tbI 

negotils  non  interftiorant,  cum   tractu  aliqmd    hujusmodi   poesidet,  oon  qucd 

temporis  defotis  obsequiis  gratlam  do-  ratione    successionis    debeii    sibi   vide- 

minorum  poesedissent  sine  spe  succes-  batur,  adeptus  est;  sed  quod  solummodo 

fionis,  fllU  tantum  pro  yoluptate  [sic.  to-  meritip  snls  exlgentibus,  Tel  allqna  pao- 

luntate?]   tamen  dominorum   possidere  tlone  interTeniente,  obtinuit.    hial.  dt 

Mspsrunt  siivedBnte  too  tempore  oum  Scaooatio,  c.  10. 


i£holi8B  C0H8T.       TYRANNY  OF  WILIJAM  1.  101 

suggests  something  like  an  uncertain  relief  at  the  lord's  will, 
and  paints  the  oondition  of  the  English  tenant  as  wretchedly 
dependent  But'  an  instrument  published  bj  Spelman,  and 
which  wiU  be  found  in  Wilkins,  Leg.  Ang.  Sax.  p.  287,  gives  a 
more  favorable  view,  and  asserts  that  William  permitted  those 
who  had  taken  no  part  against  him  to  retain  their  lands; 
though  it  appears  bj  the  very  same  record  that  the  Normans 
did  not  much  regard  the  royal  precept. 

But  whatever  may  have  been  the  legal  condition  of  the 
English  mesne  tenant,  by  knight-service  or  socage,  (for  the 
case  of  villeins  is  of  course  not  here  considered,)  during  the 
first  two  Norman  reigns,  it  seems  evident  that  he  was  protected 
by  the  charter  of  Henry  I.  in  the  hereditary  possession  of  his 
lands,  subject  only  to  a  ^  lawful  and  just  relief  towards  his 
lord."  For  this  charter  is  addressed  to  all  the  liege  men  of 
the  crown,  ^  French  and  English ;"  and  purports  to  abolish  all 
the  evil  customs  by  which  the  kingdom  had  been  oppressed, 
extending  to  the  tenants  of  the  barons  as  well  as  those  of  the 
crown.  We  cannot  reasonably  construe  the  language  in  the 
Dialogue  of  the  Exchequer,  as  if  in  that  late  age  the  English 
tenant  had  no  estate  of  fee-simple.  If  this  had  been  the 
case,  there  could  not  have  been  the  difficulty,  which  he  men- 
tions in  another  place,  of  distinguishing  among  freemen  or 
fireeholders  (libcri  homines)  the  Norman  blood  from  the 
Englishman,  which  frequent  intermarriage  had  produced. 
He  must,  we  are  led  to  think,  either  have  copied  some  other 
writer,  or  made  a  careless  and  faulty  statement  of  his  own. 
But,  at  the  present,  we  are  only  considering  the  state  of  the 
English  in  the  reign  of  the  Conqueror.  And  here  we  have, 
on  the  one  hand,  a  manifest  proof  from  the  Domesday  record 
that  they  retained  the  usufruct,  in  a  very  great  measure,  of 
the  land ;  and  on  the  other,  the  strong  testimony  of  contem- 
porary historians  to  the  spoliation  and  oppression  which  they 
endured.  It  seems  on  the  whole  most  probable  that,  notwith- 
standing innumerable  acts  of  tyranny,  and  a  general  exposure 
to  contumely  and  insolence,  they  did  in  fact  possess  what  they 
are  recorded  to  have  possessed  by  the  Norman  Commission- 
ers  of  1085. 

The  vast  extent  of  the  Norman  estates  in  capite  is  apt  to 
deceive  us.  In  reading  of  a  baron  who  -held  forty  or  fifty  or 
one  hundred  manors,  we  are  prone  to  fancy  his  wealth  some- 
thing like  what  a  similar  estate  would  pi'oduce  at  this  day. 


102  TYKANNY  OF  WILLIAM  L    Chap.VIIL  Pabt  O. 

But  if  we  look  at  the  next  words,  we  shall  continually  find 
that  some  one  else  held  of  him;  and  this  was*a  holding  by 
knight's  service,  subject  to  feudal  incidents  no  doubt,  but  not 
leaving  the  seigniory  very  lucrative,  or  giving  any  right  of 
possessory  ownership  over  the  laud.  The  real  possessions 
of  the  tenant  of  a  manor,  whether  holding  in  chief  or  not, 
consisted  in  the  demesne  lands,  the  produce  of  which  he  ob- 
tained without  cost  by  the  labor  of  the  villeins,  and  in  what- 
ever other  payments  they  might  be  bound  to  make  in  money 
or  kind.  It  will  be  remembered,  what  has  been  more  than 
once  inculcated,  that  at  this  time  the  villani  and  bordarii,  that 
is,  ceorls,  were  not  like  the  villeins  of  Bracton  and  Littleton, 
destitute  of  rights  in  their  property ;  their  condition  was  tend- 
ing to  the  lower  stage,  and  with  a  Norman  lord  they  were  in 
much  danger  of  oppression ;  but  they  were  "law-worthy,"  they 
had  a  civil  sicUus  (to  pass  from  one  technical  style  to  another), 
for  a  century  afler  the  Conquest. 

Yet  I  would  not  extenuate  the  calamities  of  this  great 
revolution,  true  though  it  be  that  much  good  was  brought  out 
of  them,  and  *hat  we  owe  no  trifling  part  of  what  inspires 
self-esteem  to  the  Norman  element  of  our  population  and  our 
polity.  England  passed  under  the  yoke ;  she  endured  the 
arrogance  of  foreign  conquerors ;  her  children,  even  though 
their  loss  in  revenue  may  have  been  exaggerated,  and  still  it 
was  enormous,  became  a  lower  race,  not  called  to  the  coun- 
cils of  their  sovereign,  not  sharing  his  trust  or  his  bounty. 
They  were  in  a  far  different  condition  from  the  provincial 
Romans  af^er  the  conquest  of  Gaul,  even  if,  which  is  hardly 
possible  to  determine,  their  actual  deprivation  of  lands  should 
have  been  less  extensive.  For  not  only  they  did  not  for  sev- 
eral reigns  occupy  the  honorable  stations  which  sometimes 
fell  to  the  lot  of  the  Roman  subject  of  Clovis  or  Alaric,  but 
they  had  a  great  deal  more  freedom  and  importance  to  lose. 
Nor  had  they  a  protecting  church  to  mitigate  barbarous  su- 
periority; their  bishops  were  degraded  and  in  exile;  the 
footstep  of  the  invader  was  at  their  altars ;  their  monasteries 
were  plundered,  and  the  native  monks  insulted.  Rome 
herself  looked  with  little  favor  on  a  church  which  had  pre- 
served some  measure  of  independence.  Strange  contrast  to 
the  tiiumphant  episcopate  of  the  Merovingian  kings  I  ^ 

1  The  opprenion  of  the  English  during    described    by    the   Norman    tilstorlani 
the  first  reigns  after  the  Conquest  is  fully    themselves,  M  well  as   by  the   Saxw 


£h«J8H  Coxwr.    DEVASTATION  OF  TORESHIBE.  103 

Besides  the  seyerities  exercised  upon  the  English  afler 
every  insurrection,  two  instances  of  William's  un- 
sparing  cruelty  are  well  known,  the  devastation  of  of  Yorkuhm 
Yorkshire  and  of  the  New  Forest    In  the  former,  •***  ^* 
which  had  the  tyrant's  plea,  necessity,  for  its  pre- 
text, an  invasion  being  threatened  from  Denmark,  the  whole 
country  between  the  Tyne  and  the  Humber  was  laid  so  des- 
olate, that  for  nine  years  afterwards  there  was  not  an  inhal> 
ited  village,  and  hardly  an  inhabitant,  left ;  the  wasting  of 
this  district  having  been  followed  by  a  famine,  which  swept 
away  the   whole   population.^     That  of   the  New  forest 
though  undoubtedly  less  calamitous  in  its  effects,  seems  even 
more  monstrous  from  the  frivolousness  of  the  cause.^    He 
afforested  several  other  tracts.     And  these  favorite  demesnes 
of  the  Norman  kings  were  protected  by  a  system  of  iniqui- 
tous and  cruel  regulations,  called  the  Forest  Laws,  which  it 
became  afterwards  a  great  object  with  the  assertors  of  liber- 
ty to  correct.    The  penalty  for  killing  a  stag  or  a  boar  was 
loss  of  eyes ;   for  William  loved  the  great  game,  says  the 
Saxon  Chronicle,  as  if  he  had  been  their  father.' 

A  more  general  proof  of  the  ruinous  oppression  of  William 
the  Conqueror  may  be  deduced  from  the  comparative  condi- 

Obroolcle.    Thdr  testimonies  an  well  ions  of  the  Uiq^dom,  drll  or  eccleslas- 

eollected  by  M.  Thierry,  in  the  second  tical,  nor  isoTemed  by  the  ordinary  courts 

volume  of  his  Talnable  history.  of  law,  bat  were  set  apart  for  the  recrea- 

1  Malmsbury,  p.  108;  HoTeden,  p.  451;  tion  and  diversion  of  the  king,  as  waste 

Orderic.  Vttalls,  p.  514.    The  desolation  lands,  which  he  might  use  and  dispoee  of 

of  Torkshira  continned  in  Malmsbury's  at  pleasure.*'  "  Forestss,"  says  Sir  Henry 

time,  sixty  or  serenty  years  afterwards;  Spelman,  "  nee  Tillas  propria  accepere, 

nndnm  omnium  solum  usque  ad  hoc  nee  parochias,  nee  de  corpore  alicujua 

ctiam  tempus.  eomltatris  Tel  episcopatAs  habitss  sunt, 

s  Maimsbury,  p.  HI.  sed  extraneum  qniddam  et  feria  datum. 

'  Chron.  Saxon,  p.  191.    M    Thierry  'erino  Jure,  non  civili,  non  municipal! 

eoiOectures  that  these  severe  r^ulations  iiruebantur;   regem  in  omnibus  agnos- 

had  a  deeper  motive  than  the  mere  pres-  centea  dominum  unlearn  et  ex  arbltrio 

•rvation  of  game,  and  were  intended  to  disponentem."    Hr.  Allen  quotes  after- 

prevent  the  Englbh  from  assembling  In  wards   a   passage  from    the    '  Dialogus 

ftrms  on  pretence  of  the  chase.    Vol.  li.  de  Scaccario,'  which  indicates  the  p«cu- 

p.  257.    But  perhaps  this  is  not  neces-  liarity  of  the  forest-laws.    "  Forestarum 

■ary.    We  know  that  a  disproportionate  ratio,  poena  quoque  vel  absolutio  delin- 

•everity  has  often  guarded  the  beasts  and  quentium  In  eas,  sive  pecuniaria  fuerit 

Urds  of  cliase  from  depredation.  slve  corporalis,  seondui  ab  aliis  regni  Ju- 

Allen  admits  (fidinburgh  Rev.  zxvi.  dlciis  aecernltur,  et  solius  regis  arbitrio, 

855)  that  the  forest-laws  seem  to  have  vel  cujuslibet  famiUaris  ad  hoc  special! ter 

Men  enacted  by  the  king's  sole  author-  deputati    subjicltur.     Legibns    quidem 

ity;  or,  as  we  may  rather  say,  that  they  proprils  subsisUt;   quas  non  communl 

were  considered  as  a  part  of  his  prerofi(a-  regni  Jure,  sed  voluntaria  principum  in- 

tive.    The  ro}*al  forests  were  protected  stitnUone  subnixas  dicunt."    The  forests 

by  eztraordinarv  penalties  eveta  before  were,  to  u«  a  word  in  rather  an  op- 

the  Conquest.    "  The  royal  forests  were  posite  sense  to  the  usual,  an  oasis  of 

part  of  thfl  demesne  of  the  crown.    They  d^potism  in  the  midst  oi  the  old  eom- 

•m  not  ittolttded  in  the  territorial  divls-  mon  law 


104  RICHES  OF  WILLIAM  L     Chap.  VDl.  Part.  IL 

tion  of  the  English  towns  in  the  reiCT  of  Edward 
depopaiaJon  the  Confessor,  and  at  the  compilation  of  Domesdaj. 
2?°Boo£'*'  ^^  ^^®  former  epoch  there  were  in  York  1607  in- 
^  habited  houses,  at  the  latter  967 ;  at  the  former 

there  were  in  Oxford  721,  at  the  latter  243  ;  of  172  houses 
in  Dorchester,  100  were  destroyed ;  of  243  in  Derby,  103 ; 
of  487  in  Chester,  205.  Some  other  towns  had  suffered  less, 
but  scarcely  any  one  fails  to  exhibit  marks  of  a  decayed 
population.  As  to  the  relative  numbers  of  the  peasantry 
and  value  of  lands  at  these  two  periods,  it  would  not  be  easy 
to  assert  anything  without  a  laborious  examination  of  Domes- 
day Book.* 

The  demesne  lands  of  the  crown,  extensive  and  scattered 
Domains  of  over  every  county,  were  abundantly  sufficient  to 
the  crown,  support  its  dignity  and  magnificence ;  *  and  William, 
far  from  wasting  this  revenue  by  prodigal  grants,  took  care  to 
let  them  at  the  highest  rate  to  farm,  little  caring  how  much  the 
cultivators  were  racked  by  his  tenants.*  Yet  his  exactions, 
both  feudal  and  in  the  way  of  tallage  from  his  burgesses  and 
the  tenants  of  his  vassals,  were  ahnost  as  violent  as  his  confisca- 
tions. No  source  of  income  was  neglected  by  him,  or  indeed 
by  his  successors,  however  trifling,  unjust,  or  unreasonable. 
BichM  of  ^^  revenues,  if  we  could  trust  Ordericus  Vitalis, 
the  Con-  amounted  to  1060^  a  day.  Tiiis,  in  mere  weight 
queior.         ^^  g-j^^^^  ^^^j^j  ^  ^qujj  ^  nearly  1,200,000/.  a 

year  at  present.  But  the  arithmetical  statements  of  these 
writers  are  not  implicitly  to  be  relied  upon.  He  left  at  hia 
death  a  treasure  of  60,000/,  which,  in  conformity  to  his  dy- 
ing request,  his  successor  distributed  among  the  church  and 
poor  of  the  kingdom,  as  a  feeble  expiation  of  the  crimes  by 
which  it  had  been  accumulated ;  ^  an  act  of  disinterestedness 
which  seems  to  prove  that  Rufus,  amidst  all  his  vices,  was  not 
destitute  of  better  feelings  than  historians  have  ascribed 
to  him.  It  might  appear  that  William  had  little  use  for  his 
extorted  wealth.  By  the  feudal  constitution,  as  established 
during  his  reign,  he  commanded  the  service  of  a  vast  aimy 

1  The  population  recorded  In  Domee-  *  Chron.  Saxon,  p.  188. 

day  i«  about  288.000;  which,  In  round  *  HuntiogdoD,     p.     871.      Orderlcns 

numbers,  allowing  for  women  and  chil-  Vltalisi  puts  a  long   penitential   speech 

dren«  may  be  culled  about  a  million.  Into  Wiiliam^s  month  on  bis  death-bed. 

BUis's  Introduction  to  Domesday,  toI.  U.  p.  66.    Though  this  may  be  his  Inven 

p.  511.  tion,  yet  Cicts  seem  to  show  the  emn* 

*  They    eonNisted    of    1422    mahori.  puootion  of  the  tyrant's  conaclenee. 
l(ytUlton's  Henry  U.  toI.  U.  p.  288. 


Bmoush  (>>nst.    F£UDAIi  SYSTEM  ESTABLISHED.  105 

at  its  own  expense,  either  for  domestic  or  continental  war- 
fare. But  tliis  was  not  sufficient  for  his  purpose ;  m*  merve- 
like  other  tynuits,  he  put  greater  trust  in  raerce-  ^^^  troops. 
nary  obedience.  Some  of  his  predecessors  had  kept  bodies  of 
Danish  troops  in  pay ;  partly  to  be  secure  against  their  hos- 
tility, partly  from  the  convenience  of  a  regular  army,  and 
the  love  which  princes  bear  to  it.  But  William  carried  this 
to  a  much  greater  length.  He  had  always  stipendiary  sol- 
liers  at  his  command.  Indeed  his  army  at  the  Conquest 
X>uld  not  have  been  swollen  to  such  numbers  by  any  other 
means.  They  were  drawn,  by  the  allurement  of  high  pay, 
not  from  France  and  Brittany  alone,  but  Flanders,  Germany, 
and  even  Spain.  When  Canute  of  Denmark  threatened  an 
invasion  in  1085,  William,  too  conscious  of  his  own  tyranny 
to  use  the  arms  of  his  English  subjects,  collected  a  merce- 
nary force  so  vast,  that  men  wondered,  says  the  Saxon  Chron- 
icler, how  the  country  could  maintain  it.  This  he  quar- 
tered upon  the  people,  according  to  the  proportion  of  their 
estates.^ 

Whatever  may  be  thought  of  the  Anglo-Saxon  tenures,  it 
is  certain  that  those  of  the  feudal  system  were  peudai  »▼«- 
thoroughly  established  in  England  under  the  Con-  tem  ettab- 
queror.  It  has  been  observed,  in  another  part  of  ^  ' 
this  work,  that  the  rights,  or  feudal  incidents,  of  wardship  and 
marriage  were  more  common  in  England  and  Normandy 
than  in  the  rest  of  France.  They  certainly  did  not  exist  in 
the  former  before  the  Conquest ;  but  whether  they  were  an- 
cient customs  of  the  latter  cannot  be  ascertained,  unless  we 
had  more  incontestable  records  of  its  early  jurisprudence. 
For  the  Great  Customary  of  Normandy  is  a  compilation  as 
late  as  the  reign  of  Richard  Coeur-de-Lion,  when  the  laws  of 
England  might  have  passed  into  a  country  so  long  and  inti- 
mately connected  with  it.  But  there  appears  reason  to  think 
that  the  seizure  of  the  lands  in  wardship,  the  selling  of  the 
heiress  in  marriage,  were  originally  deemed  rather  acts  of 
violence  than  conformable  to  law.  For  Henry  L's  charter 
expressly  promises  that  the  mother,  or  next  of  kin,  shall  have 
the  custody  of  the  lands  as  well  as  person  of  the  heir.^  And 
as  the  charter  of  Henry  II.  refers  to  and  confirms  that  of  his 

1  Chxoa.  Saxon,  p.  18G;  loguUtu,  p.  erne  dnbeblt;  et  prnelplo  at  buones  mat 

H.  similiter   se   eonllneant   ergi    fllkM  ▼•! 

s  Terns  et  Ubaromm  emitot  erit  «{▼«  flHan    vel    uxorea    hominuin    maoruia 

■nr,  fllT*  Allai  propinqaorttm,  qui  jiutot  Leges  Anglo-SaxonicsB,  p.  284. 


106    PRESERVATION  OF  PUBLIC  PEACE.  Chap.  Vm.  Part  fl. 

grandfather,  it  seems  to  follow  that  what  is  called  goai^ 
diansliip  in  chiyalrj  liad  not  jet  been  established.  At  leait 
it  is  not  till  the  assize  of  Clarendon,  confirmed  at  Northamp- 
ton in  1176,^  that  the  custody  of  the  heir  is  clearly  reserved 
to  the  lord.  With  respect  to  tlie  right  of  consenting  to  the 
marriage  of  a  female  vassal,  it  seems  to  have  been,  as  I  have 
elsewhere  observed,  pretty  general  in  feudal  tenures*  But 
the  sale  cf  her  person  in  maFriage,  or  the  exaction  of  a  sum 
of  money  in  lieu  of  this  scandalous  tyranny,  was  only  the  law 
of  England,  and  was  not  perhaps  fully  authorized  as  such  till 
the  statute  of  Merton  in  1236. 

One  innovation  made  by  William  upon  the  feudal  law  is 
very  deserving  of  attention.  By  the  leading  principle  of  feuds, 
an  oath  of  fealty  was  due  from  the  vassal  to  the  lord  of  whom 
he  immediately  held  his  land,  and  to  no  other.  The  king  of 
France,  long  after  this  period,  had  no  feudal  and  scarcely  any 
royal  authority  over  the  tenants  of  his  own  vassals.  But 
William  received  at  Salisbury,  in  1085,  the  fealty  of  all  land- 
holders in  England,  both  those  who  held  in  chief,  and  their 
tenants ;  ^  thus  breaking  in  upon  the  feudal  compact  in  its 
most  essential  attribute,  the  exclusive  dependence  of  a  vassal 
upon  his  lord.  And  this  may  be  reckoned  among  the  several 
causes  which  prevented  the  continental  notions  of  indepen- 
dence upon  the  crown  from  ever  taking  root  among  the  En^ 
lish  aristocracy. 

The  best  measure  of  William  was  the  establishment  of  pub« 
preMrration  ^*®  P^^^cc.  He  permitted  no  rapine  but  his  own. 
of  pubUo  The  feuds  of  private  revenge,  the  lawlessness  of 
^^^^'  robbery,  were  repressed.     A  girl  laden  with  gold, 

if  we  believe  some  ancient  writers,  might  have  passed  safely 
through  the  kingdom.'  But  this  was  the  tranquillity  of  an 
imperious  and  vigilant  despotism,  the  degree  of  which  may  be 
me&sured  by  these  effects,  in  which  no  improvement  of  civili- 
sation had  any  share.     There  is  assuredly  nothing  to  wonder 

>  Leges  AnRlo-Saxonieie,  p.  890.  •  Chron.  Saxon,  p.  190 ;  M.  Paris,  p.  10. 

s  CliroQ.  Saxon,  p.  187.    The  oath  of  I  will  not  omit  one  other  circutniitanoe, 

alle^nce  or  fealty,  fbr  they  were  in  apparently  prairaworthy,  which  Oderi- 

•pirit  the  cain%  had  been  due  to  the  king  cus  mentions  of  William,  that  he  tried 

before  the  Conquest;  we  find  It  among  to    learn    En^li.nh,   in   order    to  render 

the  laws  ot  Kdmund.    Allen^s  Inquiry,  Justice  by  understanding  eTery  man's 

p.  68.     It  was  not,  therefore,  likely  that  complaint,  but  failed  on  nccount  of  his 

William  would  Burrendcr  such  a  tie  upon  adranced  age.    p.  520.    This  was  in  tha 

hbt  subjects.    But  it  had  alAO  been  usual  enrly  part  of  hbi  reign,  before  the  relu<s 

In  Vrauce  under  Charlemagne,  and  per-  tance  of  the  Bngiiith  to  subiuit  had  ex* 

W^iM  later.  asperated  bis  dlMposition. 


English  Const.  FEUDAL  POLICY.  107 

at  in  the  detestation  with  which  the  English  long  regarded 
(he  memory  of  this  tyrant.^  Some  advantages  undoubtedlj, 
in  the  course  of  human  affairs,  eventually  sprang  from  the 
Norman  conquest.  The  invaders,  though  without  perhaps 
any  intrinsic  superiority  in  social  virtues  over  the  native  £ng> 
lish,  degraded  and  barbarous  as  these  are  represented  to  lis^ 
had  at  least  that  exterior  polish  of  courteous  and  chivalric 
manners,  and  that  taste  for  refinement  and  magnificence,  which 
serve  to  elevate  a  people  from  mere  savage  rudeness.  Their 
buildings,  sacred  as  well  as  domestic,  became  more  substantial 
and  elegant.  The  learning  of  the  clergy,  the  only  class  to 
whom  that  word  could  at  all  be  applicable,  became  infinitely 
more  respectable  in  a  short  time  afler  the  Conquest.  And 
though  this  may  by  some  be  ascribed  to  the  general  improve- 
ments of  Europe  in  that  point  during  the  twelfth  century,  yet 
I  think  it  was  partly  owing  to  the  more  free  intercourse  with 
France,  and  the  closer  dependence  upon  Rome,  which  that 
revolution  produced.  This  circumstance  was,  however,  of  no 
great  moment  to  the  English  of  those  times,  whose  happinesr 
could  hardly  be  effected  by  the  theological  reputation  of  Lan* 
franc  and  Anselm.  Perhaps  the  chief  benefit  which  the  na- 
tives of  that  generation  derived  from  the  government  of  WiL 
liam  and  his  successors,  next  to  that  of  a  more  vigilant  police 
was  the  security  they  found  from  invasion  on  the  side  of  Den 
mark  and  Norway.  The  high  reputation  of  the  Conqueror 
and  his  sons,  with  the  regular  organization  of  a  feudal  militia, 
deterred  those  predatory  armies  which  had  brought  such  re- 
peated calamity  on  England  in  former  times. 

The  system  of  feudal  policy,  though  derived  to  England 
from  a  French  source,  bore  a  very  different  ap-  i^ifcrono* 
pearance  in  the  two  countries.     France,  for  about  between  tb«. 
two  centuries  afler  the  house  of  Capet  had  usurped  [ey  tn^Kngl 
the  throne  of  Charlemagne's  posterity,  could  hardly  j»nd»nd 
be  deemed  a  regular  confederacy,  much  less  an 
entire  monarchy.     But  in  England  a  government,  feudal  in- 
deed in  its  form,  but  arbitrary  in  its  exercise,  not  only  main- 
tained subordination,  but  almost  extinguished  liberty.    Several 
causes  seem  to  have  conspired  towards  this  radical  difference. 
In  the  first  place,  a  kingdom  comparatively  small  is  much 
more  easily  kept  undei*  control  than  one  of  vast  extent.    And 

1  W.  liftliub.  Pnsf.  ad  1.  UL 


108  FEUDAL  POLICY.       Chap.  Vni.  Part  1L 

the  fiefs  of  Anglo-Norman  barons  after  the  Conquest  were 
far  less  considerable,  even  relatively  to  the  eize  of  the  two 
countries,  than  those  of  France.  The  earl  of  Chester  held, 
indeed,  almost  all  that  county ;  *  the  earl  of  Shrewsbury, 
nearly  the  whole  of  Salop.  But  these  domains  bore  no  com- 
parison with  the  dukedom  of  Gruienne,  or  the  county  of  Tou- 
louse. In  general,  the  lordships  of  William's  barons,  whether 
this  were  owing  to  policy  or  accident,  were  exceedingly  dis- 
persed. Robert  earl  of  Moreton,  for  example,  the  most  richly 
endowed  of  his  followers,  enjoyed  248  manors  in  Cornwall, 
54  in  Sussex,  196  in  Yorkshire,  99  in  Northamptonshire,  be- 
sides many  in  other  counties.*  Estates  so  disjoined,  however 
immense  in  their  aggregate,  were  ill  calculated  for  supporting 
a  rebellion.  It  is  observed  by  Madox  that  the  knight's  fees 
of  almost  every  barony  were  scattered  over  various  counties. 

In  the  next  place,  these  baronial  fiefs  were  held  under  an 
actual  derivation  from  the  crown.  The  great  vassals  of  France 
had  usurped  their  dominions  before  the  accession  of  Hugh 
Capet,  and  barely  submitted  to  his  nominal  sovereignty. 
They  never  intended  to  yield  the  feudal  tributes  of  relief  and 
aid,  nor  did  some  of  them  even  acknowledge  the  supremacy 
of  his  royal  jurisdiction.  But  the  Conqueror  and  his  succes- 
sors imposed  what  conditions  they  would  upon  a  set  of  barons 
who  owed  all  to  their  grants ;  and  as  mankind's  notions  of  right 
are  generally  founded  upon  prescription,  these  peers  grew 
accustomed  to  endure  many  burdens,  reluctantly  indeed,  but 
without  that  feeling  of  injury  which  would  have  resisted  aa 
attempt  to  impose  them  upon  the  vassals  of  the  French  crown. 
For  the  same  reasons  the  barons  of  England  were  regularly 
summoned  to  the  great  council,  and  by  their  attendance  in  it^ 
and  concurrence  in  the  measures  which  were  there  resolved 
upon,  a  compactness  and  unity  of  interest  was  given  to  the 
monarchy  which  was  entirely  wanting  in  that  of  France. 

We  may  add  to  the  circumstances  that  rendered  the  crown 
powerful  during  the  first  century  after  the  Conquest,  an 

i  This  mt,   upon    the  whole,   more  the  hoiue  of  Hontgomerr,  It  aequhed 

Hke  a  greet  French  flef  than  any  English  all  the  oonntry  between  the  Mersey  and 

earldom.    Hugh  de  Abrincis,  nephew  of  Kibble.    Sevezal  eminent  men  inherited 

William  I.f  had  barons  of  hie  own,  one  the  earldom ;  but  upon  the  death  of  the 

of  whom  held  forty-six  and  another  thirty  most  distinguished,  Ranulff  in  1282,  it 

manors.     Chester   was    first    called    a  fell  into  a  female  line,  and  soon  escheated 

ecunty-palatine  under  Henry  11. ;  but  it  to  the  crown.  Dugdale's  BaronaOB,  p.  46 

pnviously  possessed  all  reaallan  rights  Lytteltoo^s  Henry  II.,  toI.  il.  p.  818. 

•f  Jorisdietion.    After  the  forleitnree  of  *  Dugdale's  Baronage,  p.  25. 


EitouBH  COHST.  NORMAN  TYRANNY.  109 

extreme  antipathy  of  the  native  English  towards  g^^ ^  ^ 
their  invaders.  Both  William  Rufus  and  Henry  I.  Engibh  to 
made  use  of  the  former  to  strengthen  themselves  ^'*"°*"*- 
against  the  attempts  of  their  hrother  Rohert ;  though  they 
forgot  their  promises  to  the  English  after  attaining  their  ob- 
ject.^ A  fact  mentioned  by  Ordericus  Vitalis  illustrates  the 
advantage  which  the  government  found  in  this  national  ani- 
mosity. During  the  siege  of  Bridgenorth,  a  town  belonging 
to  Robert  de  Beiesme,  one  of  the  most  turbulent  and  powerful 
of  the  Norman  barons,  by  Henry  I.  in  1102,  the  rest  of  the 
nobility  deliberated  together,  and  came  to  the  conclusion  that 
]f  the  king  could  expel  so  distinguished  a  subject,  he  would  be 
able  to  treat  them  all  as  his  servants.  They  endeavored 
therefore  to  bring  about  a  treaty ;  but  the  English  part  of 
Henry's  army,  hating  Robert  de  Belesme  as  a  Norman,  urged 
the  king  to  proceed  with  the  siege ;  which  he  did,  and  took 
the  castle.^ 

Unrestrained,  therefore,  comparatively  speaking,  by  the 
aristocratic  principles  which  influenced  other  feudal  ^-^^n-  ^ 
countries,  the  administration  acquired  a  tone  of  the  Norman 
rigor  and  arbitrariness  under  William  the  Con-  ko^""*^***- 
queror,  which,  though  sometimes  perhaps  a  little  mitigated, 
did  not  cease  during  a  century  and  a  half.  For  the  first 
three  reigns  we  must  have  recourse  to  historians ;  whose 
language,  though  vague,  and  perhaps  exaggerated,  is  too 
uniform  and  impressive  to  leave  a  doubt  of  the  tyrannical 
character  of  the  government  The  intolerable  exactions  of 
tribute,  the  rapine  of  purveyance,  the  iniquity  of  royal  courts, 
are  continually  in  their  mouths.  ^  Grod  sees  the  wretched 
people,''  says  the  Saxon  Chronicler,  ^  most  unjustly  oppressed ; 
first  they  are  despoiled  of  their  possessions,  tiien  butchered 
This  was  a  grievous  year  (1124).  Whoever  had  any  prop- 
erty lost  it  by  heavy  taxes  and  unjust  decrees. "  •  The  same 
ancient  chronicle,  which  appears  to  have  been  continued  from 
time  to  time  in  the  abbey  of  Peterborougli,  frequently  utters 
similar  notes  of  lamentation. 

From  the  reign  of  Stephen,  the  miseries  of  which  are  not 
to  my  immediate  purpose,  so  far  as  they  proceeded  from 

1  W.  UftlnubiiTy,  p.  120  «t  166.    R.  potest  narnui  aniierU,  MLys  Rogmr  d» 

BovedeD,  p.  461.    Chron.  Saxon,  p.  IM.  HoTedon,  quam   stuUnoIt  illo  t«mpor« 

*  Du  Chono,  Script.  Norman,  p  907.  icira.  ann.  1106]  terra  Anglorom  propter 

•  QhroB.  SmxttL    p.  228.     Non  fkcUe  regtai  ezaettonee.    p.  470. 


110  NORMAN  EXACTIONS.    Chap.  VHI.  Pabt  IL 

anarch}  and  intestine  war,^  we  are  able  to  trace 
itoexac  ona.  ^^  chara'»ter  of  government  by  existing  records.* 
These,  digested  bj  the  industrious  Madox  into  his  History 
of  the  Exchequer,  gives  us  far  more  insight  into  the  spirit 
of  the  constitution,  if  we  may  use  such  a  word,  than  all  our 
monkish  chronicles.  It  was  not  a  sanguinary  despotism. 
Henry  II.  was  a  prince  of  remarkable  clemency ;  and  none 
of  the  Conqueror's  successors  were  as  grossly  tyrannical  as 
himself.  But  the  system  of  rapacious  extortion  from  their 
subjects  prevailed  to  a  degree  which  we  should  rather  ex- 
pect to  iind  among  eastern  slaves  than  that  high-spirited 
race  of  Normandy  whose  renown  then  filled  Europe  and 
Asia.  The  right  of  wardship  was  abused  by  selling  the  heir 
and  his  land  to  the  highest  bidder.  That  of  marriage  was 
carried  to  a  still  grosser  excess.  The  kings  of  France 
indeed  claimed  the  prerogative  of  forbidding  the  marriage 
of  their  vassals*  daughters  to  such  persons  as  they  thought 
unfriendly  or  dangerous  to  themselves ;  but  I  am  not  aware 
that  they  ever  compelled  them  to  marry,  much  less  that  they 
turned  this  attribute  of  sovereignty  into  a  means  of  revenue. 
But  in  England,  women  and  even  men,  simply  as  tenants  in 
chief,  and  not  as  wards,  fined  to  the  crown  for  leave  to  marry 
whom  they  would,  or  hot  to  be  compelled  to  marry  any 
other.'  Towns  not  only  fined  for  original  grants  of  fran- 
chises, but  for  repeated  confirmations.  The  Jews  paid  ex- 
orbitant sums  for  every  common  right  of  mankind,  for  pro- 
tection, for  justice.  In  return  they  were  sustained  against 
their  Christian  debtors  in  demands  of  usury,  which  supersti- 
tion and  tyranny  rendered  enormous.^  Men  fined  for  the 
king's  good-will ;  or  that  he  would  remit  his  anger ;  or  to 
have  his  mediation  with  their  adversaries.  Many  fines  seem 
as  it  were  imposed  in  sport,  if  we  look  to  the  cause ;  though 

1  The  following  gimple  picture  of  that  en.       And  Uila  lasted,  growing  worse 

reign  flrom  the  Saxon  Chrouicle  may  be  and  worne,  throughout  Stephen^fi  reign, 

worth  inwrtinff.    **  The  nobles  and  bish-  Men  said  openly  that   Christ  and  his 

ops  built  castJeSf  and  filled  them  with  saints  were  asleep.''    p.  289. 

deriliiih  and  wicked  men,  and  oppressed  >  The  earliest  record  in  the  Plpe-oSco 

the  people,  cruelly  tortunng  men  for  is  that  which  Madox,  in  conformity  to 

their  money.    They  imposed  taxes  upon  the  usage  of  others,  cites  by  the  name  of 

towns,  and,  when  they  had  exhaunted  Miagnum  Rotulum  quinto  Stephani.  But 

them  of  erery thing,  set  them  on  fire,  in  a  particular  dissertation,  sul^joined  to 

Tou  might  travel  a  day,  and  not  find  one  his  History  of  the  Exchequer,  he  inclines, 

man  living  in  a  town,  nor  any  land  in  though  not  decisively,  to  refor  this 

cultivation.    Never  did  the  oountiy  sof*  ord  to  the  reign  of  Heiuy  I. 

IS»r  greater  evils.    If  two  or  three  men  *  Madox,  o.  10. 

wme  seen  riding  up  to  a  town,  all  its  in-  *  Id.  c.  7. 
tiabitants  left  it,  taking  them  for  plunder- 


r 


EiroLiBB  CoHBT.  GENERAL  TAXES.  Ill 

their  extent,  and  the  solemnity  with  which  they  were  recorded, 
prove  the  humor  to  have  been  differently  relished  by  the  two 
parties.  Thus  the  bishop  of  Winchester  paid  a  tun  of  good 
wine  for  not  reminding  the  king  (John)  to  give  a  girdle  to 
the  countess  of  Albemarle ;  and  Robert  de  Vaux  five  best 
palfreys,  that  the  same  king  might  hold  his  peace  about 
Henry  PineFs  wife.  Another  paid  four  mai*ks  for  leave  to 
eat  (pro  licentii  comedendi).  But  of  all  the  abuses  which 
deformed  the  Anglo-Norman  government,  none  was  so  flagi* 
tious  as  the  sale  of  judicial  redress.  The  king,  we  are  often 
told,  is  the  fountain  of  justice ;  but  in  those  ages  it  was  one 
which  gold  alone  could  unseal.  Men  fined  to  have  right 
done  them ;  to  sue  in  a  certain  court ;  to  implead  a  certain 
person ;  to  have  restitution  of  land  which  they  had  recovered 
at  law.*  From  the  sale  of  that  justice  wliich  every  citizen 
has  a  right  to  demand,  it  was  an  easy  transition  to  withhold 
or  deny  it.  Fines  were  received  for  the  king's  help  against 
the  adverse  suitor ;  that  is,  for  perversion  of  justice,  or  for 
delay.  Sometimes  they  were  paid  by  opposite  parties,  and, 
of  course,  for  opposite  ends.  These  were  called  counter- 
fines  ;  but  the  money  was  sometimes,  or  as  Lord  Lyttelton 
thinks  invariably,  returned  to  the  unsuccessful  .>uitor.^ 

Among  a  people  imperfectly  civilized  the  most  outrageous 
injustice  towards  individuals  may  pass  without  the  oeoeni 
slightest  notice,  while  in  matters  affecting  the  com-  *»»«•• 
munity  the  powers  of  government  are  exceedingly  controlled. 
It  becomes  therefore  an  important  question  what  prerogative 
these  Norman  king's  were  used  to  exercise  in  raising  money 
and  in  general  legislation.  By  the  prevailing  feudal  customs 
the  lord  was  entitled  to  demand  a  pecuniary  aid  of  his  vas- 
sals in  certain  cases.  These  were,  in  England,  to  make  his 
eldest  son  a  knight,  to  marry  his  eldest  daughter,  and  to  ran- 
bom  himself  from  captivity.  Accordingly,  when  such  cir- 
cumstances occurred,  aids  were  levied  by  the  crown  upon  its 
tenants,  at  the  rate  of  a  mark  or  a  pound  for  every  knight's 
fee.*    These  aids,  being  strictly  due  in  the  prescribed  cases, 

1  Ifadoz.  0. 12  and  18.  e.   86,   at   twenty   Bhlllinga   fbr    ererr 

*  The  moKt  oppcMlto  inataneea  of  these  knight^s  fee,  and  as  much  fbr  erery  2(M. 
•zartlona  are  well  selected  flnm  Mudox  ralue  of  land  held  br  soca^.  The  aid 
by  llume,  Appendix  II.;  upon  which  pour  falre  fltz  ehcTalwr  might  be  raised 
■cooant  I  haTe  gone  less  into  detail  than  when  he  entered  into  his  fifteenth  year; 
would  otherwise  hare  been  necessary.  pour  fllle  marier,  when  she  reached  th« 

*  The  rfasoTUibU  aid  was  fixed  by  the    age  of  seven. 
mlate  of  W«*tniir«ci»r  I..  8  Sdw.  I.. 


112  GENERAL  TAXES.   Chap.  VUI.  Pakt  11. 

were  taken  without  requiring  the  consent  of  parliament. 
Escuage,  which  was  a  commutation  for  the  personal  service 
of  military  tenants  in  war,  having  rather  the  appearance  of 
an  indulgence  than  an  imposition,  might  reasonably  be  levied 
by  the  king.^  It  was  not  till  the  charter  of  John  that  escu- 
age became  a  parliamentary  assessment ;  the  custom  of  com- 
muting service  having  then  grown  general,  and  the  rate  of 
commutation  being  variable. 

None  but  military  tenants  could  be  liable  for  escuage ; 
but  the  inferior  subjects  of  the  crown  were  oppressed  by  tal« 
lagcs.  The  demesne  lands  of  the  king  and  all  royal  towns 
were  liable  to  tallage  ;  an  imposition  far  more  rigorous  and 
irregular  than  those  which  fell  upon  the  gentry.  Tallages 
were  continually  raised  upon  different  towns  during  all  the 
Norman  reigns  without  the  consent  of  parliament,  which 
neither  represented  them  nor  cared  for  their  interests.  The 
itinerant  justices  in  their  circuit  usually  set  this  tax.  Some- 
times the  tallage  was  assessed  in  gross  upon  a  town,  and  col- 
lected by  the  burgesses :  sometimes  individually  at  the  judg- 
ment of  the  justices.  There  was  an  appeal  from  an  exces- 
sive assessment  to  the  barons  of  the  exchequer.  Inferior 
lords  might  tallage  their  own  tenants  and  demesne  townsi 
though  not,  it  seems,  without  the  king's  permission.'  Cus- 
toms upon  the  import  and  export  of  merchandise,  of  which 
the  prisage  of  wine,  that  is,  a  right  of  taking  two  casks  out 
of  each  vessel,  seems  the  most  material,  were  inmiemorially 
exacted  by  the  cro\Mi.  There  is  no  appearance  that  these 
originated  with  parliament.^  Another  tax,  extending  to  all 
the  lands  of  the  kingdom,  was  Danegeld,  the  ship-money  of 
those  times.  This  name  had  been  originally  given  to  the  tax 
imposed  under  Ethelred  U.,  in  order  to  raise  a  tribute  exact- 
ed by  the  Danes.  It  was  afterwards  applied  to  a  permanent 
contribution  for  the  public  defence  against  the  same  enemies. 
But  afler  the  Conquest  this  tax  is  said  to  have  been  only 

1  Fit  interdam,  nt  imminente  Tel  loo  d«  Sc&ocarlo,  ad  flnem.     Madoz,  Hbt. 

•argente  in  regaum  hostiam  machlna-  Exchequer,  p.  25  (edit,  in  folio). 

Uone,   deoernat   rex  de  ninffuliH  feodis  *  The  tenant  in  capite  was  entitled  to 

militnm  sumuuun  aliquam  som,  marcam  be  reimbuned  what  would  hare  been 

•cilicet,  Tel  librain  unam ;  nnde  militibus  hln  eiicuage  by  his  TSMals  eTcn  if  he  p«r> 

■tipendla  Tel  donatira  succedant.  MaTult  formed  penional  serrlee.    Madox,  c.  16. 

eniui    princeps    stipendiarioe  quim  do-  *  For  the  important  sut^t  of  tallageti 

niestlcos  bellicls  exponere  caxibus.    Uno  see  Mailox,  c.  17. 

Itaque  summa,  quia  nomine  scutorum  *  Madox,  e.  18.     Haloes  Treatise  on 

tolTltur,  scutagiam  nominator.  Dialoffus  the  Customs  in  UargraTe's  Txacte,  toI.  i 

p.  116. 


EvQLiSH  CoHST.        RIGHT  OF  LEGISLATION.  n3 

occasionally  required ;  and  the  latest  instance  on  record  of 
its  payment  is  in  the  20th  of  Henry  II.  Its  imposition 
appears  to  have  been  at  the  king's  discretion.^ 

The  right  of  general  legislation  was  undoubtedly  placed 
in  the  king,  conjointly  with  his  great  council,^  or,  Right  of 
if  the  expression  be  thought  more  proper,  with  logi*!***®!!. 
their  advice.     So  little  opposition  was  found  in  these  assem- 
blies by  the  early  Norman  kings,  that  they  gratified  their  own 
love  of  pomp,  as  well  as  the  pride  of  their  barons,  by  con- 
sulting them  in  every  important  business.     But  the  limits  o 
legislative  power  were  extremely  indefinite.     New  laws,  lik 
new  taxes,  affecting  the  community,  required  the  sanction  of 
that  assembly  which  was  supposed  to  represent  it ;  but  there 
was  no  security  for  individuals  against  acts  of  prerogative, 
which  we  should  justly  consider  as  most  tyrannical.     Henry 
n.,  the  best  of  these  monarchs,  banished  from  England  the 
relations  and  friends  of  Becket,  to  the  number  of  four  hun- 
dred.    At  another  time  he  sent  over  from  Noi*mandy  an 
injunction,  that  all  the  kindred  of  those  who  obeyed  a  papal 
interdict  should  be  banished,  and  their  estates  confiscated.' 

The  statutes  of  those  reigns  do  not  exhibit  to  us  many 
provisions  calculated  to  maintain  public  liberty  on 
a  broad  and  general  foundation.     And  although  ohartonof 
the  laws  then  enacted  have  not  all  been  preserved,  Npnnan 
yet  it  is  unlikely  that  any  of  an  extensively  reme- 
dial nature  should  have  left  no  trace  of  their  exi>)tence.     We 
find,  however,  what  has  sometimes  been  called  the  Magna 
Charta  of  William  the  Conqueror,  published   by  Wilkins 
firom  a  document  of  considerable  authority.*    We  will,  enjoin, 
and  grant,  says  the  king,  that  all  freemen  of  our  kingdom 
shall  enjoy  their  lands  in  peace,  free  from  all  tallage,  and  from 
every  unjust  exaction,  so  that  nothing  but  their  service  law- 
fully due  to  us  shall  be  demanded  at  their  hands.'    The  laws 

1  Henr.'  Hnntingdoo,   1.   t.   p.  206.  Some  SngUsh   barons  might  donbtlefls 

DUloffUii  de  Scaccario,  c.  11.  liadox,  e.  hare  been  with  the  king,  as  at  VemeuU 

17.    Lyttelton**  Henry  II.  yol.  U.  p.  170.  In   1176,    where  a   mixed   aasembly  ot 

*  OlanTil,  Prologns  ad  Tractatom  de  Snglish   and    French  enacted  laws  for 
OooKuntud.  both  countries.    Beuedict.  Abbas  apnd 

*  Horeden^  p.  496.  Lyitelton,  toI.  11.  Hume.  So  at  Northampton,  in  ll65 
p.  530.  The  latter  rays  that  this  edict  several  Norman  barons  voted ;  nor  ii 
unst  have  been  flramed  by  the  king  with  any  notice  taken  of  this  as  irregular, 
the  advice  and  assent  of  his  council.  Fits  Stephen,  ibid.  So  unfixed,  or  rather 
Bat  If  he  means  his  great  council,  I  unformed,  were  all  oonstitational  prln- 
eannot  suppose  that  all  the  barons  and  clples.    [NoTC  X.] 

tmants  in  capita  could  have  been  duly       *  [Noti  XI.] 

•iimmooed  toaoouncil  held  beyond  seas.       *  Volumns  etiaro,  ao  firmlter  pnsdpi- 

TOL.  11. —  U.  8 


lU 


LAWS  OF  NORMAN  KINGS.    Chap.  VIU.  Part  il 


of  the  Conqueror,  found  in  Hoveden,  are  wholly  different 
from  those  in  Ingulfus,  and  are  suspected  not  to  have  escaped 
considerable  interpolation.^  It  is  remarkable  that  no  refer- 
ence is  made  to  this  concession  of  William  the  Conqueror 
in  any  subsequent  charter.  A  charter  of  Henry  L,  the  au- 
thenticity of  which  is  undisputed,  though  it  contains  nothing 
specially  expressed  but  a  remission  of  unreasonable  reliefs, 
wardships,  and  other  feudal  burdens,^  proceeds  to  declare  that 
he  gives  his  subjects  the  laws  of  Edward  the  Confessor,  with 
the  emendations  made  by  his  father  with  consent  of  his  bar« 
ons.'  The  chai*ter  of  Stephen  not  only  confirms  that  of  his 
predecessor,  but  adds,  in  fuller  terms  tlian  Henry  had  used, 
an  express  concession  of  the  laws  and  customs  of  Edward,* 
Henry  II.  is  silent  about  these,  although  he  repeats  the  con- 
firmation of  his  grandfather's  charter.*  The  people  however 
had  begun  to  look  back  to  a  more  ancient  standard  of  law. 
The  Norman  conquest,  and  all  that  ensued  upon  it,  had  en- 
deared the  memory  of  their  Saxon  government.  Its  disor- 
ders were  forgotten,  or,  rather,  were  less  odious  to  a  rude 
nation,  than  the  coercive  justice  by  which  they  were  after- 
wards restrained.^     Hence    it  became  the  favorite  cry  to 


ntu  et  eoncedimas,  nt  omnefl  liberi  ho- 
niinefl  totius  mouarchise  pnedicti  regni 
noAtri  habeant  et  ten«ant  terraa  suan  et 
poflMssioDea  suaa  bene,  et  in  pace,  liberft 
ab  omtii  ezactione  iivJuntl,  et  ab  ouni 
tallH^o,  ica  quod  nihil  ab  Us  exigatur 
Tel  CHpiatur,  nisi  aervitium  suntn  liber- 
tim,  quod  de  jura  nobis  fkcere  debent,  et 
fiicera  tenentur ;  et  prout  Btatutum  est 
Us,  et  illis  a  nobis  datum  et  conoessuin 
jure  haereditarlo  in  perpetuum  per  com- 
mune concilium  totius  regni  nostri  prso- 
dicU. 

1  Selden,  ad  Eadmerum.  Ilody  (Trea- 
tise on  Convocations,  p.  249)  infers  trom. 
the  groat  alterations  risibie  on  the  face 
of  these  laws  that  they  wero  alteied  from 
the  French  original  by  Glanvil. 

<  Wllkins.  p.  234.  The  accession  of 
Henry  inspired  hopes  into  the  English 
nation  which  were  not  well  realised. 
His  marriage  with  Matilda,  **of  the 
rightful  English  kin,"  is  mentioned  wiUi 
apparent  pleasure  by  the  Saxon  Chroni- 
oler  under  the  year  1100.  And  in  a  fng> 
ment  of  a  Latin  treatise  on  the  Bagli(«h 
laws,  praising  them  with  a  genuine  fuel* 
Ing,  and  probably  written  in  the  earlier 

Eart  of  Henry's  rpign,  the  author  extols 
Is  behavior  towards  the  people,  in 
eontrast  with  that  of  preceding  times. 
Mkd  bears  explicit  testimony  to  the  con- 


firmation and  amendment  of  Bdward^t 
laws  by  the  Conqueror  and  by  the  reign- 
ing king — Qui  non  solum  legem  regit 
Eadwardi  nobis  reddidit,  quam  omni 
gaudiorum  delectatione  suscepimus,  sed 
beati  patris  ^us  emendationibus  robo- 
ratam  propriis  in^titutionibus  honesta- 
Tlt.  See  Cooper  on  Public  Records  (toL 
ii.  p.  423),  in  which  very  useful  collec- 
tion the  whole  fragment  (for  the  first 
time  in  England)  is  published  fitnn  a 
Cottonian  manuscript.  Henry  ceased 
not,  according  to  the  Saxon  Chronicle,  to 
lay  on  many  tributes.  But  it  is  reasona- 
ble to  suppose  that  taUages  on  towns 
and  on  his  demesne  tenants,  at  that  time 
legal,  were  reckoned  among  them. 

*  A,  great  impression  is  said  to  havn 
been  made  on  the  barons  coofe<lerated 
against  John  by  the  production  of 
Henry  I.'s  charter,  whenx»f  they  had 
been  ignorant.  Matt.  Paris,  p.  212.  But 
this  could  hardly  have  been  the  existing 
charter,  for  reasons  all^^ed  by  Black- 
stone.  Introduction  to  fifagna  Cbartn, 
p.  6. 

*  Wilklns,  Leges  Anglo-Saxon,  p.  81A 
»  Id.  p.  818. 

>  The  Saxon  Chronicler  complains  of 
a  witenagemot,  as  he  calls  it.  or  assiaet, 
held  at  Leicester  in  1124,  where  forty 
four  Uiieres  were  hanfed,  a  greater  nam 


BvaLOH  Const.    RICHARD  1/8  CHANCELLOR  DEPOSED.      115 

demand  the  laws  of  Edward  the  Confessor ;  and  the  Normans 
themselves,  as  they  grew  dissatisfied  with  the  royal  adminis- 
tration, fell  into  these  Engli^^h  sentiments.^  But  what  these 
laws  were,  or  more  properly,  perhaps,  these  customs  subsist- 
ing in  the  CJonfessor's  age,  was  not  very  distinctly  understood.* 
So  far,  however,  was  clear,  that  the  rigorous  feudal  servitude, 
the  weighty  tributes  upon  poorer  freemen,  had  never  pre- 
vailed before  the  Conquest.  In  claiming  the  laws  of  Edward 
the  Confessor,  our  ancestors  meant  but  the  redress  of  griev- 
ances, which  tradition  told  them  had  not  always  existed. 

It  is  highly  probable,  independently  of  the  evidence  sup- 
plied by  the  charters  of  Henry  I.  and  his  two  suc- 
cessors, that  a  sense  of  oppression  had  long  been  ohanoeiior 
stimulating  the  subjects  of  so  arbitrary  a  govern-  JJP*J®1**^ 
ment,  before  they  gave  any  demonstrations  of  it 
sufficiently  palpable  to  find  a  place  in  history.     But  there  are 
certainly  no  instances  of  rebellion,  or  even,  as  far  as  we 
know,  of  a  constitutional  resistance  in  parliament,  down  to 
the  reign  of  Richard  I.    The  revolt  of  the  earls  of  Leicester 
and  Norfolk  against  Henry  II.,  wliich  endangered  his  throne 
and  comprehended  his  children  with  a  large  part  of  his  barons, 
appears  not  to  have  been  founded  even  upon  the  pretext  of 
public  grievances.     Under  Richard  I.  something  more  of  a 
national  spirit  began  to  show  itself.     For  the  king  having 
left  his  chancellor  William  Longchamp  joint  regent  and  justi- 
ciary with  the  bishop  of  Durham  during   his  crusade,  the 
foolish  insolence  of  the  former,  who  excluded  his  coadjutor 


bcr  than  wm  ervr  b*fi>re  knawn ;  IC  was  at  dixman  ierrllia  condltionla  indicia,  p. 

■aid  that  many  lafferod  URJantly,  p.  228.  26.    [Notk  XII.] 

Mr.  Tamer  tranalatM  thin   differently;        >  Nod  qaa«  tullt,  led  qoas  ohserra- 

bttt,  aa  I  eoncelTe,  without  atteadiag  to  Terit,  says  William  of  Malmsbury,  con- 

the  spirit  of  the  context.    Hist,  of  £ogi.  ceming    the   Confessor's    laws.     Those 

Tol.  I.  p.  174.  btutrlng  his  name  ia  Lnmbard  and  Wil- 

1  The  distinction   between    the    two  Iciua  are  erideutly  spurioas,  though  it 

nations  was  pretty  well  obliterated  at  may  not  be  easy  to  fix  upon  the  time 

the  end  of  Henry  n.'s  reign,  as  we  leara  when  they  were  forged.    Those  found  in 

flrum  the  Dialogue  on  the  £xcheqaer,  Ingulfus,  in  Che  French  language,  are 

then  written:  Jam  oohabitantibiis  An*  genuine,  though  translated  from  Latin, 

fUds  et  Normannls,  et  alterutrftm  ux-  and  were  confirmed  by  William  the  Ocn- 

Mes  dnoentibos  Tel  nubentibus,  sic  per-  queror.     Neither  of    these   collections, 

mlxtsB  soot   natiooes,  at   vix  discerni  however,  can  be  thought  to  hare  any  re- 

possit  hodle,  da  liberis  loqaor,  quis  Aa«  lation  to  the  cItU  liberty  of  the  subject, 

gliens,  quis  Normannns  tdt  gene  re  ;  ex-  It  has  been  deemed  more  rational  to  sup- 

ceptis  dontaxat  ascriptitiis   qai  riUani  pose  tliat  these  longings  for  Kdwani'a 

dicuntor,  quibasnon  eetlibernmobstan-  laws  were  rather  meant  tor  a  mild  ad- 

tibuadmnlnis  suis  a  sui  status  eonditione  ministration  of  goTemment,  flree  from 

diseedere.     Bapropter  peue  quicunque  ui^just  Norman  innOTations,  than  any 

slo  hodie  ooebus  rsperitur,  ut  murdrum  written  and  definltlTe  system, 
pnnltur,  exoeptis  bJs  quibua  oarta  sunt 


116  BfAGNA  CHARTA.       Cs^*-.  Vin.  Pakt  1L 

from  any  share  in  the  administration,  provoked  everj  one  of 
the  nobility.  A  convention  of  these,  the  king's  brother 
placing  himself  at  their  head,  passed  a  sentence  of  removal 
and  banishment  upon  the  chancellor.  Though  there  might 
be  reason  to  conceive  that  this  would  not  be  unpleasing  to 
the  king,  who  was  already  apprised  how  much  Longchamp 
had  abused  his  trust,  it  was  a  remarkable  assumption  of  power 
by  that  assembly,  and  the  earliest  authority  for  a  leading 
principle  of  our  constitution,  the  responsibility  of  ministers 
to  parliament. 

In  the  succeeding  reign  of  John  all  the  rapacious  exactions 
Msgna  usual  to  these  Norman  kings  were  not  only  re- 

Charta.  doubled,  but  mingled  with  other  outrages  of 
tyranny  still  more  intolerable.^  These  too  were  to  be  endured 
at  the  hands  of  a  prince  utterly  contemptible  for  his  folly  and 
cowardice.  One  is  surprised  at  the  forbearance  displayed  by 
the  barons,  till  they  took  up  arms  at  length  in  that  confeder« 
acy  which  ended  in  establishing  the  Great  Charter  of  Liber- 
ties. As  this  was  the  first  effort  towards  a  legal  government, 
80  is  it  beyond  comparison  the  most  important  event  in  our 
history,  except  that  Revolution  without  which  its  benefits 
would  have  been  rapidly  annihilated.  The  constitution  of 
England  has  indeed  no  single  date  from  which  its  duration  is 
to  be  reckoned.  The  institutions  of  positive  law,  the  far 
more  important  changes  which  time  has  wrought  in  the  <jrder 
of  society,  during  six  hundred  years  subsequent  to  the  Great 
Charter,  have  undoubtedly  lessened  its  direct  application  to 
our  present  circumstances.  But  it  is  still  the  keystone  of 
English  liberty.  All  that  has  since  been  obtained  is  little 
more  than  as  confirmation  or  commentary;  and  if  every 
subsequent  law  were  to  be  swept  away,  there  would  still 
remain  the  bold  features  that  distinguish  a  free  from  a  des- 
potic monarchy.  It  has  been  lately  the  fashion  to  depreciate 
the  value  of  Magna  Charta,  as  if  it  had  sprung  from  the 
private  ambition  of  a  few  selfish  barons,  and  redressed  only 
some  feudal  abuses.  It  is  indeed  of  little  importance  by  wliat 
motives  those  who  obtained  it  were  guided.  The  real  charac- 
ters of  men  most  distinguished  in  the  transactions  of  that 
time  are  not  easily  determined  at  present.     Yet  if  we  bring 

1  In  1207  John  took  a  serenth  of  the  ed.  1684.    Bat  his  fniults  upon  the  no- 

momblea  of  lay  and  spiritual  penonB,  bility   in  debanching  their  wiTes   and 

ennetismurmurantibaSfMdoonCradlcere  daughter*  weie,  as  usnaUy  happens,  the 

non  aodentibus.      Matt.  Paris,  p.  186,  most  ezaspeiatlng  proTOcation 


KxoM8H  Const.  MAGNA  CHABTA.  117 

these  ungrateful  suspicions  to  the  test,  Ihey  prove  destitute  of 
all  reasonable  foundation.  An  equal  distribution  of  civil 
rights  to  all  classes  of  freemen  forms  the  peculiar  beauty  of 
the  charter.  In  this  just  solicitude  for  the  people,  and  in  the 
moderation  which  infringed  upon  no  essential  prerogative  of 
the  monarchy,  we  may  perceive  a  liberality  and  patriotism 
very  unlike  the  selfishness  which  is  sometimes  rashly  imputed 
to  those  ancient  barons.  And,  as  far  as  we  are  guided  by 
historical  testimony,  two  great  men,  the  pillars  of  our  church 
and  state,  may  be  considered  as  entitled  beyond  the  rest  to 
the  glory  of  this  monument ;  Stephen  Langton,  archbishop 
of  Canterbury,  and  William  earl  of  Pembroke.  To  their 
temperate  zeal  for  a  legal  government,  England  was  indebted 
during  that  critical  period  for  the  two  greatest  blessings  that 
patriotic  statesmen  could  confer;  the  establishment  of  civil 
liberty  upon  an  immovable  basis,  and  the  preservation  of 
national  independence  under  the  ancient  line  of  sovereigns, 
which  rasher  men  were  about  to  exchange  for  the  dominion 
of  France. 

By  the  Magna  Charta  of  John  reliefs  were  limited  to  a 
certain  sum  according  to  the  rank  of  the  tenant,  the  waste 
oonmiitted  by  guardians  in  chivalry  restrained,  the  disparage- 
ment in  matrimony  of  female  wards  forbidden,  and  widows 
secured  from  compulsory  marriage.  These  regulations,  ex- 
tending to  the  suthvassals  of  the  crown,  redressed  the  worst 
grievances  of  every  military  tenant  in  England.  The  fran- 
chises of  the  city  of  London  and  of  aU  towns  and  boroughs 
were  declared  inviolable.  The  freedom  of  commerce  was 
guaranteed  to  alien  merchants.  The  Court  of  Common  Pleas, 
instead  of  following  the  king's  person,  was  fixed  at  West- 
minster. The  tyranny  exercised  in  the  neighborhood  of  royal 
forests  met  with  some  check,  which  was  further  enforced  by 
the  Charter  of  Forests  under  Henry  III. 

But  the  essential  clauses  of  Magna  Charta  are  those  which 
protect  the  personal  liberty  and  property  of  all  freemen,  by 
giving  security  from  arbitrary  imprisonment  and  arbitrary 
spoliation.  ^'  No  freeman  (says  the  29th  chapter  of  Henry 
IIL's  charter,  which,  as  the  existing  law,  I  quote  in  preference 
to  that  of  John,  the  variations  not  being  very  material)  shall 
be  taken  or  imprisoned,  or  be  disseized  of  his  freehold,  or 
tiberties,  or  free  customs,  or  be  outlawed,  or  exiled,  or  any 
otherwise  destroyed ;  nor  will  we  pass  upon  him,  nor  send 


118  MAGNA  CHARTA.       Chaf.  VHI.  Pabt  IL 

upon  him,  but  by  lawful  judgment  of  his  peers,  or  by  the  law 
of  the  land.^  We  will  sell  to  no  man,  we  will  not  deny  or 
delay  to  any  man,  justice  or  right."  It  is  obvious  that  these 
words,  interpreted  by  any  honest  court  of  law,  convey  an 
ample  security  for  the  two  main  rights  of  civil  society.  From 
the  era,  therefore,  of  king  John's  charter,  it  must*  have  been 
a  clear  principle  of  our  constitution  that  no  man  can  be  de* 
tained  in  prison  without  trial.  Whether  courts  of  justice 
framed  the  writ  of  Habeas  Corpus  in  conformity  to  the  spirit 
of  this  clause,  or  found  it  already  in  their  register,  it  became 
from  that  era  the  right  of  every  subject  to  demand  it.  That 
writ,  rendered  more  actively  remedial  by  the  statute  of  Charles 
II.,  but  founded  upon  the  broad  basis  of  Magna  Charta,  is 
the  principal  bulwark  of  English  liberty ;  and  if  ever  tempo- 
rary circumstances,  or  the  doubtful  plea  of  political  necessity, 
shall  lead  men  to  look  on  its  denial  with  apathy,  the  most  dis- 
tinguishing characteristic  of  our  constitution  will  be  effaced. 
As  the  clause  recited  above  protects  the  subject  from  any 
absolute  spoliation  of  his  freehold  rights,  so  others  restrain 
the  excessive  amercements  which  had  an  almost  equally  ruin- 
ous operation.  The  magnitude  of  his  offence,  by  the  14th 
clause  of  Henry  IIL's  charter,  must  be  the  measure  of  his 
fine ;  and  in  every  case  the  corUenement  (a  word  expressive 
of  chattels  necessary  to  each  man's  station,  as  the  arms  of  a 
gentleman,  the  merchandise  of  a  trader,  the  plough  and  wag^ 
ons  of  a  peasant)  was  exempted  from  seizure.  A  provision 
was  made  in  the  charter  of  John  that  no  aid  or  escuage  should 
be  imposed,  except  in  the  three  feudal  cases  of  aid,  without 
consent  of  parliament.  And  this  was  extended  to  aids  paid 
by  the  city  of  London.     But  the  clause  was  omitted  in  the 

1  NM    per  legiU«  Judiciam    pRrinm  term,  oeenrs.      Blackstone^B  Charters, 

■Qorum,  ««/  per  legem  terne.     SeTeral  p.  42.    And  the  word  vel  is  so  fVequentlj 

ezplanatloiu  haye   been  oflered  of  the  used  for  et^  that  I  am  not  wholly  fn% 

alternatiTO  clause,  which  some  have  re-  fh>m  a  suspicion  that  it  was  so  intended 

lenred  to  Judgmeut  by  default  or  de-  in  this  place.    The  meaning  will  be  thai 

murrer — others  to  the  process  of  attach-  no  person  shall  be  dlAseiaed,  &c.,  except 

ment  for  contempt.    Certainly  there  are  upon  a  lawful  cause  of  action  or  indiet> 

many  legal  procedures  besides  trial  by  ment  found  by  the  Tenlict  of  a  Jury. 

Jury,  through  which  a  party's  goods  or  This  rt»Llly  seems  as  good  as  any  of  the 

Serson  may  be  taken.     But  one  may  disjunctive  interpretations,  but  I  do  not 

oubt  whether  these  were  in  con  tern  pla-  offer  it  with  much  confidence, 
tion  of  the  framera  of  Magna  Ohurta.        But  perhaps  the  best  sense  of  the  dl^ 

In  an  entry  of  tlie  charter  of  1217  by  a  Junctive  will  be  perceived  by  remember- 

eontemporary  hand,  prp.«erved  in  a  book  ing  that  Judicium  parium  was  generaily 

In    the    town-clerk's  office   in  Loudon,  opposed  to  the  combat  or  the  ordea^ 

ealled  Liber  Custumarum  et  Regnm  an-  which  were  equally  lex  terrm, 
dquorum,  avaxious  leading,  el  per  legem 


ExoLiBH  CoKST.    CONSTITUTION  UNDER  HENRY  m.  119 

three  charters  granted  by  Henry  III.,  though  parliament 
seem  to  have  acted  upon  it  in  most  part  of  his  reign.  It  had, 
however,  no  reference  to  tallages  imposed  upon  towns  without 
their  consent  Fourscore  years  were  yet  to  elapse  before  the 
great  principle  of  parliamentary  taxation  was  explicitly  and 
absolutely  recognized. 

A  law  which  enacts  that  justice  shall  neither  be  sold,  denied, 
nor  delayed,  stamps  with  infamy  that  government  under  which 
it  had  become  necessary.  But  from  the  time  of  the  charter, 
accoi*ding  to  Madox,  the  disgraceful  perversions  of  right, 
which  are  upon  record  in  the  rolls  of  the  exchequer,  became 
less  frequent* 

From  this  era  a  new  soul  was  infused  into  the  people  of 
England.  Her  liberties,  at  the  best  long  in  abey-  state  of  the 
ance,  became  a  tangible  possession,  and  those  ^^^M^HeD^ 
indefinite  aspirations  for  the  laws  of  Edward  the  ui. 
Confessor  were  changed  into  a  steady  regard  for  the  Great 
Charter.  Pass  but  from  the  history  of  Roger  de  Hoveden  to 
that  of  Matthew  Paris,  from  the  second  Henry  to  the  third, 
and  judge  whether  the  victorious  struggle  had  not  excited  an 
energy  of  public  spirit  to  which  the  nation  was  before  a 
stranger.  The  strong  man,  in  the  sublime  language  of  Mil- 
ton, was  aroused  from  sleep,  and  shook  his  invincible  locks. 
Tyranny,  indeed,  and  injustice  will,  by  all  historians  not  abso- 
lutely servile,  be  noted  with  moral  reprobation ;  but  never 
shall  we  find  in  the  English  writers  of  the  twelfth  century 
that  assertion  of  positive  and  national  rights  which  distin* 
guishes  those  of  the  next  age,  and  particularly  the  monk  of 
St  Alban's.  From  his  prolix  history  we  may  collect  three 
material  propositions  as  to  the  state  of  the  English  constitu- 
tion during  the  long  reign  of  Henry  HI. ;  a  prince  to  whom 
the  epithet  of  worthless  seems  best  applicable;  and  who^ 
without  committing  any  flagrant  crimes,  was  at  once  insincere, 
ill-judging,  and  pusillanimous.  The  intervention  of  such  a 
reign  was  a  very  fortunate  circumstance  for  public  liberty, 
which  might  possibly  have  been  crushed  in  its  infancy  if  an 
Edward  had  immediately  succeeded  to  the  throne  of  John. 

1.  Tlie  Great  Charter  was  always  consfdered  as  a  fundi^ 
mental  law.  But  yet  it  was  supposed  to  acquire  additional 
•ocurity  by  frequent  confirmation.     This  it  received,  with 

>  Hist  of  Sxcheqner,  o.  12 


120  STATE  OF  THE  CONSTITUTION    Chap.  VIH.  Part  H 

Bome  not  inconsiderable  variation,  in  the  first,  second,  and 
ninth  years  of  Henry's  reign.  The  last  of  tiiese  is  in  our 
present  statute-book,  and  has  never  received  any  alterations ; 
but  Sir  £.  Coke  reckons  thirty-two  instances  wherein  it  has 
be^n  solemnly  ratified.  Several  of  these  were  during  the 
reign  of  Henry  III.,  and  were  invariably  purchased  by  the 
grant  of  a  subsidy.^  This  prudent  accommodation  of  parlia- 
ment to  the  circumstances  of  their  age  not  only  made  the  law 
itself  appear  more  inviolable,  but  established  that  correspond- 
ence between  supply  and  redress  which  for  some  centuries 
was  the  balance-spring  of  our  constitution.  The  charter, 
indeed,  was  oflen  grossly  violated  by  their  administration. 
Even  Hubert  de  Burgh,  of  whom  history  speaks  more  favor- 
ably than  of  Henry's  later  favorites,  though  a  faithful  servant 
of  the  crown,  seems,  as  is  too  often  the  case  with  such  men, 
to  have  thought  the  king's  honor  and  interest  concerned  in 
maintaining  im  unlimited  prerogative.'  The  government  was, 
however,  much  worse  administered  after  his  fall.  From  the 
great  difficulty  of  compelling  the  king  to  observe  the  boundar 
ries  of  law,  tlie  EngUsh  clergy,  to  whom  we  are  much  indebted 
for  their  zeal  in  behalf  of  liberty  during  this  reign,  devised 
means  of  binding  his  conscience  and  terrifying  his  imagination 
by  religious  sanctions.  The  solemn  excommunication,  accom- 
panied with  the  most  awful  threats,  pronounced  against  the 
violators  of  Magna  Charta,  is  well  known  from  our  common 
histories.  The  king  was  a  party  to  this  ceremony,  and  swore 
to  observe  the  charter.  But  Henry  HI.,  though  a  very  de- 
vout person,  had  his  own  notions  as  to  the  validity  of  an  oath 
that  sifiected  his  power,  and  indeed  passed  his  life  in  a  series 
of  perjuries.  According  to  the  creed  of  that  age,  a  papal 
dispensation  might  annul  any  prior  engagement ;  and  he  was 
generally  on  sufficiently  good  terms  wi^  Bome  to  obtain  such 
an  indulgence. 

2.  Though  the  prohibition  of  levying  aids  or  escuages 
without  consent  of  parliament  had  been  omitted  in  all 
Henry's  charters,  yet  neither  one  nor  the  other  seem  in  fact 
to  have  been  exacted  at  discretion  throughout  his  reign.  On 
the  contrary,  the  barons  frequently  refused  the  aids,  or  rather 
subsidies,  which  his  prodigality  was  always  demanding.  In« 
deed  it  would  probably  have  been  impossible  for  the  king 

1  Matt.  Paris,  p.  272  t  id.  p.  284 


KSGLIBH  Ck>B8T.  UNDER  HENRT  UL  121 

however  frugal,  stripped  as  he  was  of  so  many  lucrative 
though  oppressive  prerogatives  bj  the  Great  Charter,  to  sup- 
port the  expenditure  of  government  from  his  own  resources. 
Tallages  on  his  demesnes,  and  especially  on  the  rich  and  ill- 
affected  citj  of  London,  he  imposed  without  scruple ;  but  it 
does  not  appear  that  he  ever  pretended  to  a  right  of  gen« 
eral  taxation.  We  maj  therefore  take  it  for  granted  that 
the  clause  in  John's  charter,  though  not  expressly  renewed, 
was  still  considered  as  of  binding  force.  The  king  was  oflen 
put  to  great  inconvenience  by  the  refusal  of  supply ;  and  at 
one  time  was  reduced  to  sell  his  plate  and  jeweli,  which  the 
citizens  of  London  buying,  he  was  provoked  to  exclaim  with 
envious  spite  against  their  riches,  which  he  had  not  been  able 
to  exhaust.^ 

8.  The  power  of  granting  money  must  of  course  imply  the 
power  of  withholding  it ;  yet  this  has  sometimes  been  little 
more  than  a  nominid  privilege.  But  in  this  reign  the  Eng- 
lish parliament  exercised  their  right  of  refusal,  or,  what  was 
much  better,  of  conditional  assent.  Great  discontent  was 
expressed  at  the  demand  of  a  subsidy  in  1237  ;  and  the  king 
alleging  that  he  had  expended  a  great  deal  of  money  on  his  \ 
Bister's  marriage  with  the  emperor,  and  also  upon  his  own, 
the  barons  answered  that  he  had  not  taken  their  advice  in 
those  affairs,  nor  ought  they  to  share  the  punishment  of  acts 
of  imprudence  they  had  not  committed.'  In  1241,  a  subsidy 
having  been  demanded  for  the  war  in  Poitou,  the  barons 
drew  up  a  remonstrance,  enumerating  all  the  grants  they  had 
made  on  former  occasions,  but  always  on  condition  that  the 
imposition  should  not  be  turned  into  precedent  Their  last 
subsidy,  it  appears,  had  been  paid  into  the  hands  of  four 
barons,  who  were  to  expend  it  at  their  discretion  for  the 
benefit  of  the  king  and  kingdom  ;*  an  early  instance  of  par- 
liamentary control  over  public  expenditure.  On  a  similar 
denuind  in  1244  the  king  was  answered  by  complaints  against 
the  violation  of  the  charter,  the  waste  of  former  snbsidies, 
and  the  maladministration  of  his  servants.^  Finally  the 
barons  positively  refused  any  money ;  and  he  extorted  1500 

>  M.  Parte,  p.  660.  langiugB  is  partknlarlj  nneoartlj :  rax 

*  Qnod  luee  omnia  do*  eomdUo  fld»-    eum  instandnliiii,  oa  dlcam  impndon- 
Imm  saomm  fcorat^  dm  d«baerant  «8m    tinlniA,  aazllinm  peeanian  ab  tta  Itemm 


panuB  partleipea,  qoi  ftaerant  a  calp4  poatolazct,  totiaa  IsmI  et  Uliui,  eontn 

boBunea.    p.  867.  dixemnt  el  iinaiitmiter  at  odo  om  la 

*  M.  Paria,  p.  616.  ftda. 

«  U.  p.  MS,  672.     MattlMW  Parts'a 


122  STATE  OF  THE  CONSTITUTION  Ciiap.  Vm.  Pabt  U. 

marks  from  the  citj  of  London.  Some  jears  aflerwards 
they  declared  their  readiness  to  bui'den  themselves  more 
than  ever  if  they  could  secure  the  observance  of  the  charter ; 
and  requested  that  the  justiciary,  chancellor,  and  treasurer 
might  be  appointed  with  consent  of  parliament,  according, 
as  they  asserted,  to  ancient  custom,  and  might  hold  their 
oflSces  during  good  behavior.^ 

Forty  years  of  mutual  dissatisfaction  had  elapsed,  when  a 
signal  act  of  Henry's  improvidence  brought  on  a  crisis  which 
endangered  his  throne.  Innocent  IV.,  out  of  mere  animosity 
against  the  family  of  Frederic  II.,  lefc  no  means  untried  to 
raise  up  a  competitor  for  the  crown  of  Naples,  which  Man- 
fred had  occupied,  llicbard  earl  of  Ck)rnwall  having  been 
prudent  enough  to  decline  this  speculation,  the  pope  offered 
to  support  Henry's  second  son,  prince  Edmund.  Tempted 
by  such  a  prospect,  the  silly  king  involved  himself  in  irre- 
trievable embarrassments  by  prosecuting  an  enterprise  which 
could  not  possibly  be  advantageous  to  England,  and  upon 
which  he  entered  without  the  advice  of  his  parliament.  Des- 
titute himself  of  money,  he  was  compelled  to  throw  the  ex- 
pense of  this  new  crusade  upon  the  pope ;  but  the  assistance 
of  Rome  was  never  gratuitous,  and  Henry  actually  pledged 
his  kingdom  for  the  money  which  she  might  expend  in  a  war 
for  her  advantage  and  his  own.*  He  did  not  even  want  the 
effrontery  to  tell  parliament  in  1257,  introducing  his  son 
Edmund  as  king  of  Sicily,  that  they  were  bound  for  the  re- 
payment of  14,000  marks  with  interest.  The  pope  had  also, 
in  furtherance  of  the  Neapolitan  project,  conferred  upon 
Henry  the  tithes  of  all  benefices  in  England,  as  weU  as  the 
first  fruits  of  such  as  should  be  vacant.*  Such  a  concession 
drew  upon  the  king  the  implacable  resentment  of  his  clergy, 
already  complaining  of  the  cowardice  or  connivance  that  had 

i  De  communl  consilio  regni,  slcut  ab  parliament  of  1248  complalnod  that  the 

antiquo  con^uutum  et  juntum.     p.  778.  king  had  not  followed  the  steps  of  his 

This  was  not  m>  great  an  eucroachaient  preJeccMors  in  appointing  these  three 

as  it  may  appear.      Ralph  de  Nerille,  great  offlceni  by  their  conwnt.      p.  646. 

bishop  of  Chirheiiter,  had    been  made  What  had  been  in  fact  the  practice  of 

'shunrellor  in  1223,  aasensu  totius  regni ;  former  kingA  I  do  not  know{  but  it  is 

Itaque  scilicet  utnoudeponereturabi^us  not  likely   to  have  been  such  as  they 

ligilli  custodi     uiai    totius  regni    ordi-  represent.     Ueiinr,  however,  had  named 

nante  consensu  et  consilio.   p.  266.    Ac*  the  archbishop  of  Vork  to  the  regency  of 

eordiugly,  the  king  demanding  the  great  the  kingtiom  during  his  abwnce  beyond 

seal  from  him  in   12<i6.  he  refuMd  to  seaa  in  1242,  deconidlio  omnium  eomltum 

give  it   up,  alleging   that,    having   re-  et  baron um  nostrorum  et  omnium  file 

oeived  it  in  the  general  council  of  the  lium  no«trorum.    Rymer,  t.  i.  p.  400 

kingdom,  he  C'uld  not  roftign  it  without  *  Id.  p.  771. 

the  same  authority,    p.  308.    And  the  *  p.  813 


JfiaeuBH  COM8T.  ONBEB  HENBT  m.  123 

during  all  his  reign  exposed  them  to  the  shameless  exactions 
of  Rome.  Henry  had  now  indeed  cause  to  regret  his  precip- 
itancy. Alexander  IV.,  the  reigning  pontiff,  threatened 
him  not  only  with  a  revocation  of  the  grant  to  his  son,  hut 
with  an  excommunication  and  general  interdict,  if  the  money 
advanced  on  his  account  should  not  be  immediately  repaid ,  ^ 
and  a  Roman  agent  explained  the  demand  to  a  parliament 
assembled  in  London.  The  sum  required  was  so  enormous, 
we  are  told,  that  it  struck  all  the  hearers  with  astonishment 
and  horror.  The  nobility  of  the  realm  were  indignant  to 
think  that  one  man's  supine  folly  should  thus  bring  them  to 
rain.'  Who  can  deny  that  measures  beyond  the  ordinary 
coarse  of  the  constitution  were  necessary  to  control  so  prodi- 
gal and  injudicious  a  sovereign  ?  Acconiingly  the  barons  iu- 
sbted  that  twenty-four  persons  should  be  nominated,  half  by 
the  king  and  half  by  themselves,  to  reform  the  state  of 
the  kingdom.  These  were  appointed  on  the  meeting  of  the 
parliament  at  Oxford,  after  a  prorogation. 

The  seven  years  that  followed  are  a  revolutionary  period, 
the  events  of  which  we  do  not  find  satisfactorily  explained 
by  the  historians  of.  the  time.*  A  king  divested  of  preroga- 
tives by  his  people  soon  appears  even  to  themse^lves  an  in- 
jured party.  And,  as  the  baronial  oligarchy  acted  with  that 
arbitrary  temper  which  is  never  pardoned  in  a  government 
that  has  an  air  of  usurpation  about  it,  the  royalists  began  to 
gain  ground,  chiefly  through  the  defection  of  some  who  had 
joined  in  the  original  limitations  imposed  on  the  crown,  usu- 
ally called  the  provisions  of  Oxford.  An  ambitious  man, 
confident  in  his  talents  and  popularity,  ventured  to  display  too 
marked  a  superiority  above  his  fellows  in  the  same  cause. 
But  neither  his  character  nor  the  battles  of  Lewes  and 
Evesham  hJl  strictly  within  the  limits  of  a  constitutional 
l^story.  It  is  however  important  to  observe,  that,  even  in 
the  moment  of  success,  Henry  HI.  did  not  presume  to  revoke 
any  part   of  the   Great    Charter.     His    victory  had  been 

1  Rymer.tJ.p.  682.  Thla  inaiupieioiu  n»-  Doltdt  Igltnr  oobllltM  ragni,  m  qqIwi 

locution  for  Sicily , which  it  not  altosefcher  hominia  ita  confUndl  siiplQi  siimpUeltate. 

inililu  that  of  James  I.  aboat  the  Span*  M.  Paris,  p.  827. 

tah  match,  in  its  folly,  bad  raocees,  and  *  The  Wt  aeooant  of  the  prorisioni  of 

Che  diasatiBihction  it  oceasioned  at  home,  Oxford  in  12S0  and  the  circame«ax«e«0 

geedrue  a  good  deal  of  illattration  from  connected  with  them   is  found  in  the 

doeomenta  in  Rymer's  collection.  Burton  Annals.    2  Qale,  XV  Scrlptores, 

s  Qoantitas  pecunin  ad  tantam  asoen-  p.  407.     Eany  of  these  proYislons  wen 

ttt  snmmam.  ut  stuporem  slmnl  et  hor-  afturwnrds   enacted   In   the  statole  of 

in  aunbos  generarst  audientlom.  Uarlebridgs. 


124        LIMITATIONS  OF  PREROGATIVE.    Chap.  VHI.  Part  li. 

achieved  by  the  arms  of  the  English  nobility,  who  had,  gen- 
erally spetiking,  concurred  in  the  former  measures  against  his 
government,  and  whose  opposition  to  tlie  earl  of  Leicester's 
usurpation  was  compatible  with  a  steady  attachment  to  ood- 
Btitutional  liberty.^ 

The  opinions  of  eminent  lawyers  are  undoubtedly,  where 
Limiutiona  legislative  or  judicial  authorities  fail,  the  best  evi- 
SLmUre'*"  ^^^^  ^^^  can  be  adduced  in  constitutional  history. 
proTedfrom  It  will  therefore  be  satisfactory  to  select  a  few 
Bnctoa.  passages  from  Bracton,  himself  a  judge  at  the 
end  of  Henry  IIL's  reign,  by  which  the  limitations  of 
prerogative  by  law  will  clearly  appear  to  have  been  fully 
established.  ^The  king,"  says  he,  *'must  not  be  subject 
to  any  man,  but  to  God  and  the  law  ;  for  the  law  makes  him 
king.  Let  the  king  therefore  give  to  the  law  what  the  law 
gives  to  him,  dominion  and  power;  for  there  is  no  king  where 
will,  and  not  law,  bears  rule."'  ^  The  king  (in  another  place) 
can  do  nothing  on  ecuth,  being  the  minister  of  God,  but  what 
he  can  do  by  law ;  nor  is  what  is  said  (in  the  Pandects)  any 
objection,  that  whatever  the  prince  pleases  shall  be  law ;  be- 
cause by  the  words  that  follow  in  that  text  it  appears  to 
design  not  any  mere  will  of  the  prince,  but  that  which  is 
established  by  the  advice  of  his  councillors,  the  kin^  giving 
his  authority,  and  deliberation  being  had  upon  iL"*  This 
passage  is  undoubtedly  a  misrepresentation  of  the  famous  lex 
regia,  which  has  ever  been  interpreted  to  convey  the  unlimit- 
ed power  of  the  people  to  their  emperors.^  But  the  very 
circumstance  of  so  perverted  a  gloss  put  upon  this  text  is  a 
proof  that  no  other  doctrine  could  be  admitted  in  the  law  of 
England.  In  another  passage  Bracton  reckons  as  superior 
to  the  king,  ^  not  only  Grod  and  the  law,  by  which  he  is  made 
king,  but  his  court  of  earls  and  barons  ;  for  the  former  (com- 
ites)  are  so  styled  as  associates  of  the  king,  and  whoever 
has  an  associate  has  a  master;'  so  that,  if  the  king  were 
without  a  bridle,  that  is,  the  law,  they  ought  to  put  a  bridle 
upon  him."*    Several  other  passages  in  Bracton  might  be 

1  Th»  Earl  of  GIonoeRtorf  whoM  per-  copied  fkom  QUiitU*i  Introdaotloii  to  Idi 

•onal  qiuurrel  with  Montfort  had  otbt-  treattse. 

thrown  the  baronial  oUgarohy,  wrote  to  «  See  Selden  ad  Fletam,  p.  1046. 

the  king  in  1267,  at  prorlslones  Ozonte  *  This  meana,  I  tuppoee.  that  ha  iHm 

teneri  &ci%t  per  regnam  00001.  et  ut  pro-  acts  with  the  oonient  <^  otbera  muat  be 

ulflsa  slbl  apnd  BTeeham  de  noto  com-  in  aome  degree  reatralned  bj  them;  bat 

pleret.    Matt.  Pazia,  p.  8G0.  it  is  Ul  expressed. 

s  1. 1.  0.  a  •  L  11.  o.  IS. 

t  L  iii.  e.  9.    These  words  an  nearlj 


KitousH  CON8T.  LAW  COUltTS.  125 

produced  to  thu  same  import ;  but  these  are  sufficient  to  de- 
monstrate the  important  fact  that,  however  extensive  or  even 
indefinite  might  be  the  royal  prerogative  in  the  dajs  of  Henrj 
in.,  the  law  was  already  its  superior,  itself  but  niade  part  of 
th^  law,  and  was  incompetent  to  overthrow  it^  It  is  true 
that  in  this  very  reign  the  practice  of  dispensing  with  statutes - 
by  a  non-obstante  was  introduced,  in  imitation  of  the  papal 
dispensations.^  But  this  prerogative  could  only  be  exerted 
within  certain  limits,  and,  however  pernicious  it  may  be 
justly  thought,  was,  when  thus  understood  and  defined,  not, 
strictly  speaking,  incompatible  with  the  legislative  sovereign- 
ty of  parliament 

In  conformity  with  the  system  of  France  and  other  feudal 
countries,  there  was  one  standing  council,  which  The  King*g 
assisted  the  kings  of  England  in  the  collection  and  ^^^^* 
management  of  their  revenue,  the  administration  of  justice 
to  suitors,  and  the  despatch  of  all  public  business.  This  was 
styled  the  King's  Court,  and  held  in  his  palace,  or  wherever 
he  was  personally  present.  It  was  composed  of  the  great 
officers ;  the  chief  justiciary,'  the  chancellor,  the  constable, 

1  Allan  has  polotad  <mt  that  the  king  loeo  nostro  tarram  noatram  AngII»  at 

might  have  baen  aued  In  his  own  oourta,  pacem  regni  noatii  ;  and  all  peraooa  wen 

Uka  one  of  his  subjects,  until  the  reign  eujoinad  to  obey  him  tanquam  juslitiario 

of  Bdwanl  I.,  who  introduced  the  me-  nostro.    Rymer,  1. 1.  p.  Ittl.  Sometimes, 

thod  ot  suing  by  petition  of  right:  and  however,  the  king  issued  his  own  writ 

In  the  Year  Book  of  Edward  III.  one  de  ultra  mare.     The  first  time  when  the 

of  the  jttdgea  says  that  he  has  seen  a  dignity  of  this  offloe  was  impaired  was  at 

writ   beginning — PrtBcipt     Henry    regi  the  death  of  John,  when  the  Justiciary, 

AngUa.     Braeton,   however,   ezpreisry  Hubert  de  Buxgh,  being    besieged    In 

■saerts  Um  eontraiy,  as  Hr.  Allen  owns,  Dover    Castle,    those    who    proclaimed 

ao  that  we  may  reckon  this  rather  doubt-  Henry  III.  at  Olouceeter  constituted  the 

ftd.    Braoton  has  some  remarkable  words  earl  of  Pembroke  gorernor  of  the  king 

which  I  ha?e  omitted  to  quote:  after  ha  and  kingdom,  Hubert  still  retaining  his 

has  broadly  asserted  that  the  king  has  oflice.     This   Is   erroneously   stated  by 

no  superior  but  God,  and  that  no  remedy  Matthew  Paris,  who  has  misled  Spelman 

ean  be  had  by  law  against  him,  he  pro-  in  his  Oloaiary ;  but  the  truth  appears 

eceds :  NLd  rit  qui  dicat,  quod  unirer-  ikom  Hubert's  answer  to  the  articles  of 

iitaa   rsgni  at   baronagium  snum   hoc  chargeagainst  him,  andftomarecordia 

fiicera  debeant  et  poasint  in  curia  ipsius  Madox's  Hist,  of  Esch    o.  21,  note  A 

legis.     By  atria  we  must  here  under-  wherein  the  earl  of  Pembroke  is  named 

stand  parliament,  and  not  the  law-eourta.  rector  regis   et   regnl,  and  Hubert  do 

t  H.  Paris,  p.  701.  Buigh  Justiciary.     In   1241   the  arch 

I  The  thief  justiciaxy  was  the  greatest  bishop  of  York  was  appointed  to  the  ra- 

snl^t  in  Bngiand.    Besides  presiding  gency  during  Henry's  absence  in  Poltou, 

in  the  king's  court  and  in  the  Bzehequer,  without  the  title  of  Justiciary.    Rymer, 

be  was  originally,  by  virtue  of  his  oflice,  t.  i.  p.  410.    Still  the  oflice  was  wo  con- 

the  regent  of  the  kingdom  during  the  siderable  that  the  barons  who  met  in  the 

absence  of  the  soTereign,  which,  till  the  Oxford  parliament  of  1258  insisted  that 

loas  of  Normandy,  occurred  very   fre-  the  Justiciary  should  be  annually  choaen 

qoeoUy.      Writs,  at  such  times,  ran  In  with  their  approbation.    But  the  subee- 

niai   name,  and   were   tested    by    him.  quent  succenses  of  Henry  prevented  this 

Madox,  Hist,  of  Bxcheq.  p.  16.     His  ap-  being  established,  and  ISdward  I.  disoou- 

pNolntment  upoc  these   tsmporanr  occa-  tlnued  the  oflice  altogether. 
WIS  axpraaaad,  ad  costodiandam 


126  JUSTICES  OF  ASSIZE.    Chap.  VIH.  Pabt  ll 

marshal,  chamberlain,  steward,  and  treasurer,  with  any  others 
whom  the  king  might  appoint.  Of  this  great  court  there 
was,  as  it  seems,  from  the  beginning,  a  particular  branch,  in 
which  all  matters  relating  to  the  revenue  were  exclusively 
The  Court  transacted.  This,  though  composed  of  the  same 
of  fixcheq-  persons,  yet,  being  held  in  a  different  part  of  the 
palace,  and  for  different  business,  was  distinguished 
from  the  king's  couit  by  the  name  of  the  Exchequer ;  a  sepa- 
ration whioh  became  complete  when,  civil  pleas  were  decided 
and  judgments  recorded  in  this  second  oourL^ 

It  is  probable  that  in  the  age  next  after  the  Conquest  few 
causes  in  which  the  crown  had  no  interest  were  carried  before 
the  royal  tribunals ;  every  man  finding  a  readier  course  of 
justice  in  the  manor  or  county  to  which  he  belonged,*  But 
by  degrees  this  supreme  jurisdiction  became  more  familiar ; 
and,  as  it  seemed  less  liable  to  partiality  or  intimidation  than 
the  provincial  courts,  suitors  grew  willing  to  submit  to  its 
expensiveness  and  inconvenience.  It  was  obviously  the 
interest  of  the  king's  court  to  give  such  equity  and  steadi- 
ness to  its  decisions  as  might  encourage  this  disposition 
Nothing  could  be  moi^  advantageous  to  the  king's  authority, 
nor,  what  perhaps  was  more  immediately  regarded,  to  his 
revenue,  since  a  fine  was  always  paid  for  leave  to  plead  in 
his  court,  or  to  remove  thither  a  cause  commenced  below. 
But  because  few,  comparatively  speaking,  could  have  recourse 
to  so  distant  a  tribunal  as  that  of  the  king's  court,  and  per- 
haps also  on  account  of  the  attachment  which  the  English 
felt  to  their  ancient  right  of  trial  by  the  neighboring  Tree- 
inatitutfon  holders,  Henry  II.  established  itinerant  justices  to 
of  juntioMof  decide  civil  and  criminal  pleas  within  each  county.' 
""***'  This  excellent  institution  is  referred  by  some  to  the 

twenty-second  year  of  that  prince;    but   Madox  traces  it 
several  years  higher.^     We  have  owed  to  it  the  uniformity 

1  For  much  Information  about  tfie  Ttl  hnndredo,  Tel  hallmoto  socam  haben- 

Cnria  Regis,  and  especially  this  branch  tium.    Legee  Henr.  I.  e.  9. 

of  it,  the  student  of  oar  oonstitutional  >  Dialogus  de  Soaceario,  p.  88. 

history  should  hare  recourse  to  Uadox's  *  Hist,   of    Exchequer,  e.  Ui.     Lord 

History  of  the  Exchequer,  and   to  the  Lyttelton  thinks   that  this   institutioa 

Dialogus  de   Scaccario,  written   in  the  may  have  1>«en  adopted  in  imitation  of 

time  of  Henry  II.  by  lUchard  bishop  of  Louis  VI.,  who  half  a  century  before  had 

Ely,  though  commonly  ascribed  to  Uer-  introduced  a  similar  regulation  in  hii 

▼SM  of  Tilbury.     This  treatise  he  will  domains.     Hist,  of  Hcuxy  II.  Tol.  tt. 

And  sub(}olned  to  Madox *8  work.    [Notb  p.  206.    Justices  In  eyre,  or,  as  we  now 

XIII.  1  call  them,  of  assise,  were  sometimes  ocHn- 

•  Omnia  eausa  terminetur  oomitatu,  missioned  In   the  reign  of    Henry  I 


If KOWMi  COX8T.     COURT  OF  COMMON  PLEAS.  127 

of  our  common  law,  which  would  otherwise  have  been  split, 
like  that  of  France,  into  a  multitude  of  local  customs ;  and 
we  still  owe  to  it  the  assurance,  which  is  felt  by  the  poorest 
and  most  remote  inhabitant  of  £ngland,  that  his  right  is 
weighed  by  the  same  incorrupt  and  acute  understanding 
upon  which  the  decision  of  the  highest  questions  is  reposed. 
The  justices  of  assize  seem  originally  to  have  gone  their 
circuits  annually ;  and  as  part  of  their  duty  was  to  set  tallagcis 
upon  royal  towns,  and  superintend  the  collection  of  the  reve- 
nue, we  may  be  certain  that  there  could  be  no  long  intervaL 
This  annual  visitation  was  expressly  confirmed  by  the  twelfth 
section  of  Magna  Charta,*wluch  provides  also  that  no  assize 
of  novel  disseizin,  or  mort  d'ancestor,  should  be  taken  except 
in  the  shire  where  the  lands  in  controversy  lay.  Hence  this 
clause  stood  opposed  on  the  one  hand  to  the  encroachments 
of  the  king's  court,  which  might  otherwise,  by  drawing  pleas 
of  land  to  itself,  have  defeated  the  suitor's  right  to  a  jury 
from  the  vicinage ;  and  on  the  other,  to  those  of  the  feudal 
aristocracy,  who  hated  any  interference  of  the  crown  to  chas- 
tise their  violations  of  law,  or  control  their  own  jurisdiction. 
Accordingly,  while  the  confederacy  of  barons  against  Henry 
III.  was  in  its  full  power,  an  attempt  w^as  made  to  prevent 
the  regular  circuits  of  the  judges.^ 

Long  after  the  separation  of  the  exchequer  from  the  king's 
court,  another  branch  was  detached  for  the  decision  ,j,^^  ^^^ 
of  private  suits.    Thi.^  had  its  beginning,  in  Madox*s  of  Common 
opinion,  as  early  as  the  reign  of  Richard  I.*     But  ^^'**" 
it  was  completely  established  by  Magna  Charta.     "  Common 
Pleas,"  it  is  said  in  the  fourteenth  clause,  "  shall  not  follow 
our  court,  but  be  held  in  some  certain  place."     Thus  was 
formed  the  Court  of  Common  Bench  at  Westminster,  with 
full,  and,  strictly  speaking,  exclusive  jurisdiction  over  all  civil 
disputes,  where  neither  the  king's  interest,  nor  any  matter 

Hiirdy^fl   Introduction   to   Close   RoIIr.  of  the  bench  are  mentioned  MTeral  yeam 

They  do  not  appear  to  have  gone  their  hefo^v  Mngna  Charta.  But  Mndox  tbinki 

circmtd   regularly    before   22   lien.  II.  the  chief  justiciary  of  England  might 

(1176.)  preside  In  the  two  courbi,  as  well  a«  in 

1  Justieiarii  regin  Angliae.  qui  dicuntur  the  exchequer.    After  the  erection  of  the 

ItineriA.  miwi  Unrfordiam   pro  nuo  exe-  Common  Bench  the  style  of  the  nuperior 

quendo  officio  repelluntur,  allcgantibas  court  began  to  a\*er.    It  oeafted  by  de- 

hia  qui  regi  adverMbantur,  ipnoA  contr^  grees  to  be  called  the  king's  cotirt     Pleaf 

fbrmam  proTisionnm  Oxoniie  nuper  fac->  were  mid   to  bo  held   coram  rege,   or 

tarum  Teninae.    Chron.  Nic.  Trivet,  a.d.  coram  rege  ublcunque  fuerit.    And  thui 

1260.    I  fbrget  where  X  found  this  quo-  the  court  of  king's  bench  waft  formed 

teUon.  out  of  the  remains  oi  the  ancirn*  euria 

>  Utot  of  Excheqa«r,  o.  18.    Jostlcea  reidB. 


128  ORIGIN  OF  COMMON  LAW.    Chap.  VUL  Pam  H. 

savoring  of  a  criminal  nature,  was  concerned.  For  of  such 
disputes  neither  the  court  of  king's  bench,  nor  that  of  ex- 
chequer, can  take  cognizance,  except  by  means  of  a  legal 
fiction,  which,  in  the  one  case,  supposes  an  act  of  force,  and, 
in  the  other,  a  debt  to  the  crown. 

The  principal  officers  of  state,  who  had  originally  been 
effective  members  of  the  king's  court,  began  to  withdraw 
Orirfn  of  the  ^^°^  ^^  after  this  separation  into  three  courts  of 
Conunoa       justicc,  and  left  their  places  to  regular  lawyers 
^^  tliough  the  treasurer  and  chancellor  of  the  ex- 

chequer have  still  seats  on  the  equity  side  of  that  court,  a 
vestige  of  its  ancient  constitution.  It  would  indeed  have  been 
difficult  for  men  bred  in  camps  or  palaces  to  ftilfil  the  ordi- 
nary functions  of  judicature  under  such  a  system  of  law  aa 
had  grown  up  in  England.  The  rules  of  legal  decision, 
among  a  rude  people,  are  always  very  simple ;  not  serving 
much  to  guide,  far  less  to  control,  the  feelings  of  natural 
equity.  Such  were  those  which  prevailed  among  the  Anglo- 
Saxons;  requiring  no  subtler  intellect,  or  deeper  learning, 
than  the  earl  or  sheriff  at  the  head  of  his  county-court  might 
be  expected  to  possess.  But  a  great  change  was  wrought  in 
about  a  century  after  the  Conquest  Our  English  lawyers, 
prone  to  magnify  the  antiquity,  like  the  other  merits  of  their 
system,  are  apt  to  carry  up  the  date  of  the  common  law,  till, 
like  the  pedigree  of  an  illustrious  family,  it  loses  itself  in  the 
obscurity  of  ancient  time.  Even  Sir  ]VIatthew  Hale  does  not 
hesitate  to  say  that  its  origin  is  as  undiscoverable  as  that  of 
the  Nile.  But  though  some  features  of  the  common  law  may 
be  distinguishable  in  Saxon  times,  while  our  limited  knowl- 
edge prevents  us  from  assigning  many  of  its  peculiarities  to 
any  determinable  period,  yet  the  general  character  and  most 
essential  parts  of  the  system  were  of  much  later  growth. 
The  laws  of  the  Anglo-S^ixon  kings,  Madox  truly  observes, 
are  as  different  from  those  collected  by  Glanvil  as  the  laws 
of  two  different  nations.  ^  The  pecuniary  compositions  for 
crimes,  especially  for  homicide,  which  run  through  the  Anglo- 
Saxon  code  down  to  the  laws  ascribed  to  Henry  I.,^  are  not 
mentioned  by  Glanvil.  Death  seems  to  have  been  the  regu- 
lar punishment  of  murder,  as  well  as  robbery.  Though  the 
investigation  by  means  of  ordeal  was  not  disused  in  his  time,' 

1  0.70.  murder,  haTing  fidled  In  the  ordeal  of 

■  A  oitiaen  of  London,  inspeeted   of    cold  water,  wuliangiKi  by  order  of  ilomy 


BvousH  Ck>sm.      0SI6IN  OF  COimON  LAW.  129 

yet  trial  by  combat,  of  which  we  find  no  instance  before  the 
Conquest,  was  evidently  preferred.  Under  the  Saxon  gov- 
ernment, suits  appear  to  have  commenced,  even  before  the 
king,  by  verbal  or  written  complaint ;  at  least,  no  trace  re- 
mains of  the  original  writ,  the  foundation  of  our  civil  pro- 
cedure.^ The  descent  of*  lands  before  the  Conquest  wa3 
according  to  the  custom  of  gavelkind,  or  equal  partition 
among  the  children;'  in  the  age  of  Henry  I.  the  eldest  son 
took  the  principal  fief  to  his  own  share ;'  in  that  of  Glanvil 
he  inherited  all  the  lands  held  by  knight  service  ;  but  the  de 
scent  of  socage  lands  depended  on  the  particular  custom  of 
the  estate.  By  the  Saxon  laws,  upon  the  death  of  the  son 
without  issue,  the  father  inherited ;  *  by  our  common  law,  he 
is  absolutely,  and  in  every  case,  excluded.  Lands  were,  in 
general,  devisable  by  testament  before  the  Conquest ;  but  not 
in  the  time  of  Henry  H.,  except  by  particular  custom.  These 
are  sufficient  samples  of  the  differences  between  our  Saxon 
and  Norman  jurisprudence  ;  but  the  distinct  character  of  the 
two  will  strike  more  forcibly  every  one  who  peruses  succes- 
sively the  laws  published  by  Wilkins,  and  the  treatise  ascribed 
to  GlanviL  The  former  resemble  the  barbaric  codes  of  the 
continent,  and  the  capitularies  of  Charlemagne  and  his  family, 
minute  to  an  excess  in  apportioning  punishments,  but  sparing 
and  indefinite  in  treating  of  civil  rights ;  while  the  other, 
copious,  discriminating,  and  technical,  displays  the  character- 
istics, as  well  as  unfolds  the  principles,  of  English  law.  It  is 
difficult  to  assert  anything  decisively  as  to  the  period  between 
the  Conquest  and  the  reign  of  Henry  IL,  which  presents 
fewer  materials  for  legal  history  than  the  preceding  age ;  but 
the  treatise  denominated  the  Laws  of  Henry  L,  compiled  at 
the  soonest  about  the  end  of  Stephen's  reign,*  bears  so  much 
of  a  Saxon  character,  that  I  should  be  inclined  to  ascribe  our 
present  common  law  to  a  date,  so  far  as  it  is  capable  of  any 
date,  not  much  antecedent  to  the  publication  of  Glanvil.^    At 

n.,  thoagh  he  oAsred  600  msrkf  to  Bare  *  Legos  Henr.  I.  o.  70. 

hi!  life.    HoT0den,  p.  566.    It  appears  as  *  Ibid. 

if  the  ordeal  were  permitted  to  persons  *  TbeDecrsttimofGratlaQ  Is  quoted  In 

already  coDvicted  bj  the  Terdlct  of  a  jury,  this  treatise,  which  was  not  published  in 

If  they  escaped  In  this  purgation,  yet,  in  Italy  till  1151. 

cases  of  murder,  they  were  banished  the  '     *  Hadox,  Hist,  of  Bzch.  p.  122,  edit. 

naUa.    Wilkins,  Leges  Anglo-Saxon,  p.  1711.     Lord   Lyttelton,    toI.  U.  p.  267, 

no.    Ordeals  were  abolished  about  the  has  giren  reasons   for  supposing  that 

bsgltttting  of  Ilenry  1(1. 's  reign.  Olanvll   was   not   the   author   of   this 

>  Ulekea,  Dissert.  Epistol.  p.  8.  treatise,  but  some  clerk  under  his  dl- 

•  LsfM  OuUelml,  p.  225.  rection. 

VOL.  II.  —  M.  9 


130  CHARACTER  AND  DEFECTS    Chap.  VIlI.  Part  IL 

the  samo  time,  since  no  kind  of  evidence  attests  any  sodden 
and  radical  change  in  the  jurisprudence  of  England,  the 
question  must  be  considered  as  left  in  great  obscurity.  Per- 
haps it  might  be  reasonable  to  conjecture  that  the  treatise 
called  Leges  Henrici  Primi  contains  the  ancient  usages  still 
prevailing  in  the  inferior  jurisdictions,  and  that  of  Glanvil 
the  rules  established  by  the  Norman  lawyers  of  the  king's 
court,  which  would  of  course  acquire  a  general  recognition 
and  efficacy,  in  consequence  of  the  institution  of  justices 
holding  their  assizes  periodically  throughout  the  country. 
The  capacity  of  deciding  legal  controversies  was  now  only 
to  be  found  in  men  who  had  devoted  themselves  to 
and^fects  of  that  peculiar  study ;  and  a  race  of  such  men  arose, 
theEngiiah  whosc  eagcrness  and  even  enthusiasm  in  the  pro- 
fession of  the  law  were  stimulated  by  the  self-com- 
placency of  intellectual  dexterity  in  threading  its  intricate  and 
thorny  mazes.  The  Normans  are  noted  in  their  own  country 
for  a  shrewd  and  litigious  temper,  which  may  have  given  a 
character  to  our  courts  of  justice  in  early  times.  Something 
too  of  that  excessive  subtlety,  and  that  preference  of  techni- 
cal to  rational  principles,  which  runs  through  our  system,  may 
be  imputed  to  the  scholastic  philosophy,  which  was  in  vogue 
during  the  same  period,  and  is  marked  by  the  same  features. 
But  we  have  just  reason  to  boast  of  the  leading  causes  of 
these  defects ;  an  adherence  to  fixed  rules,  and  a  jealousy  of 
judicial  discretion,  which  have  in  no  country,  I  believe,  been 
carried  to  such  a  length.  Hence  precedents  of  adjudged 
cases,  becoming  authorities  for  the  future,  have  been  con- 
stantly noted,  and  form  indeed  almost  the  sole  ground  of 
argument  in  questions  of  mere  law.  But  these  authorities 
being  frequently  unreasonable  and  inconsistent,  partly  from 
the  infirmity  of  all  human  reason,  partly  from  the  imperfect 
manner  in  which  a  number  of  unwarranted  and  incorrect 
reporters  have  handed  them  down,  later  judges  grew  anxious 
to  elude  by  impalpable  distinctions  what  tliey  did  not  venture 
to  overturn.  In  some  instances  this  evasive  skill  has  been 
applied  to  acts  of  the  legislature.  Those  who  are  moderately 
conversant  with  the  history  of  our  law  will  easily  trace  other 
circumstances  that  have  cooperated  in  producing  that  techni- 
cal and  subtle  system  which  regulates  the  course  of  real 
property.  For  as  that  formed  almost  the  whole  of  our  an- 
cient jurisprudence,  it  is  there  that  we  must  seek  its  original 


Khoush  CoKflT.        OF  THE  ENGLISH  LAW.  131 

character.  But  much  of  the  same  spirit  pervades  every  part 
of  the  law.  No  tiibunals  of  a  civilized  people  ever  bonx)wed 
80  little,  even  of  illustration,  from  the  writings  of  philoso- 
phers, or  from  the  institutions  of  other  countries.  Hence  law 
has  been  studied,  in  general,  rather  as  an  ai*t  than  a  science, 
with  more  solicitude  to  know  its  rules  and  distinctions  than  to 
perceive  their  application  to  that  for  which  all  rules  of  law 
ought  to  have  been  established,  the  maintenance  of  public  and 
private  rights.  Nor  is  there  anj  reading  more  jejune  and 
unprofitable  to  a  philosophical  mind  than  that  of  our  ancient 
law-books.  Later  times  have  introduced  other  inconveniences, 
till  the  vast  extent  and  multiplicity  of  our  laws  have  become 
a  practical  evil  of  serious  importance,  and  an  evil  which,  be- 
tween the  timidity  of  the  legislature  on  the  one  hand,  and  the 
selfish  views  of  practitioners  on  the  other,  is  likely  to  reach, 
in  no  long  period,  an  intolerable  excess.  Deterred  by  an 
interested  clamor  against  innovation  from  abrogating  what  is 
useless,  simplifying  what  is  complex,  or  determining  what  is 
doubtful,  and  always  more  inclined  to  stave  off  an  immediate 
difficulty  by  some  patchwork  scheme  of  modifications  and 
suspensions  than  to  consult  for  posterity  in  the  comprehensive 
spirit  of  legal  philosophy,  we  accumulate  statute  upon  statute, 
and  precedent  upon  precedent,  till  no  industry  can  acquire, 
nor  any  intellect  digest,  the  mass  of  learning  that  grows  upon 
the  panting  student ;  and  our  jurisprudence  seems  not  unlikely 
to  be  simplified  in  the  worst  and  least  honorable  manner, 
a  tacit  agreement  of  ignorance  among  its  professors.  Much 
indeed  has  already  gone  into  desuetude  within  the  last  cen- 
tury, and  is  known  only  as  an  occult  science  by  a  small  num- 
ber of  adepts.  We  are  thus  gradually  approaching  the  crisis 
of  a  necessary  reformation,  when  our  laws,  like  those  of  Rome, 
must  be  cast  into  the  crucible.  It  would  be  a  disgrace  to  the 
nineteenth  century,  if  P^ngland  could  not  find  her  Tribonian.^ 

1  Whit«loeke,  just  after  ih«  RMtoi»>  to  InnoTation,  I  hsTB  need  of  tome  apol- 

tlon,  coQipl&iDfi  that ''  Now  the  Tolume  ogy  for  what  I  hare  Teoturod  to  say  in 

of  our  statutes  is  grown  or  swelled  to  a  the  text.    **  I  remember  the  opinion  of  a 

fnat   bigness.'*     The  Tolume !      What  wise  and  learned  statesman  and  lawyer 

would  be  have  said  to  the  monstrous  (the  chancellor  Oxenstiem),  that  multi- 

birth  of  a  volume  triennially,  filled  with  pUclty  of  written  laws  do  but  distract  the 

laws  professing  to  be  the  deliberate  work  Judges,  and  render  the  law  less  certain  ; 

of  the  legislature,  which  erery  subject  la  that  where  the  law  sets  due  and  clear 

■nppoeed  to  read,  remember,  and  under-  bounds  betwixt  the  prerogative  royal  and 

•tuid !    The  excellent  sense  of  the  follow-  the  rights  of  the  people,  and  gives  remedy 

Sng  SBoteneM  from  the  same  passage  may  in  private  causes,  there  needs  no  mors 

well  excuse  me  Ibr  quoting  them,  and,  laws  to  be  increased;  for  thereby   litl- 

yetfaapt,  in  this  age  of  bigoted  averseneas  gation  will  be  infireaned   likewise.     It 


132  HEREDITARY  RIGHT  OF     Chap.  Vm.  Pabt  H 

This  establishment  of  a  legal  system,  which  must  be  con- 
sidered as  complete  at  the  end  of  Henry  IIL's  reign,  when 
the  unwritten  usages  of  the  common  law  as  well  as  the  forma 
and  precedents  of  the  courts  were  digested  into  the  great 
work  of  Bracton,  might,  in  some  respects,  conduce  to  the 
security  of  public  freedom.  For,  however  highly  the  pre- 
rogative might  be  strained,  it  was  incorporated  with  the  law, 
and  treated  with  the  same  distinguished  and  argumentative 
subtlety  as  every  other  part  of  it  Whatever  things,  there- 
fore, it  was  asserted  that  the  king  might  do,  it  was  a  neces- 
sary implication  that  there  were  other  things  which  he  could 
not  do ;  else  it  were  vain  to  specify  the  Tbrmer.  It  is  not 
meant  to  press  this  too  far;  since  undoubtedly  the  bias  of 
lawyers  towards  the  prerogative  was  sometimes  too  discernible. 
But  the  sweeping  maxims  of  absolute  power,  which  servile 
judges  and  churchmen  taught  the  Tudor  and  Stuart  princes, 
seem  to  have  made  no  progress  under  the  Plantagenet  line. 

Whatever  may  be  thought  of  the  effect  which  the  study  of 
the  law  had  upon  the  rights  of  the  subject,  it  con- 
right  of  the  duced  materially  to  the  security  of  good  order  by 
Shed."**^  ascertaining  the  hereditary  succession  of  the  crown. 
Five  kings  out  of  seven  that  followed  William  the 
Conqueror  were  usurpers,  according  at  least  to  modem 
notions.  Of  these,  Stephen  alone  encountered  any  serious 
opposition  upon  that  ground ;  and  with  respect  to  him,  it  must 
be  remembered  that  all  the  barons,  himself  included,  had 
solemnly  sworn  to  maintain  the  succession  of  Matilda.  Henry 
II.  procured  a  parliamentary  settlement  of  the  crown  upon 
his  eldest  and  second  sons ;  a  strong  presumption  that  their 
hereditary  right  was  not  absolutely  secure.^  A  mixed  notion 
of  right  and  choice  in  fact  prevailed  as  to  the  succession  of 
every  European  monarchy.  The  coronation  oath  and  the 
furm  of  popular  consent  then  required  were  considered  as 
more  material,  at  least  to  perfect  a  title,  than  we  deem  them 
at  present.  They  gave  seizin,  as  it  were,  of  the  crown,  and, 
in  cases  of  disputed  pretensions,  had  a  sort  of  judicial  efficacy. 

wen  a  work  worthy  of  a  parlUment,  and  mattem,  to  be  reduced  into  certainty,  aC 

cannot  be  done  otherwlae,  to  caase  a  re-  of  one  subject  Into  one  statute,  that  per* 

Ttew  of  all  our  statutes,  to  repeiU  such  as  spicuity  and  clearness  mav  appear  in  ouf 

they  shall  Judge  inoonrenient  to  remain  written  laws,  which  at  this  day  few  stn- 

In  tome;  to  confirm  those  which  they  shall  dents  or  sages  can  flod  in  them."  White* 

think  fit  to  stond,  and  those  seTeml  stat-  lockers  Commentary  on  Parliamentaiy 

Qtes  which   are  confused,  some  rspug-  WriL  vol.  1.  p.  40B. 

Bant  to  others,  many  touching  the  same  ^  I^ttelton,  Tol.  U.  p.  14. 


foousR  Comr.     THE  CROWN  ESTABLISHED.  133 

The  Chronicle  of  Dunfitable  sajs,  concerning  Richard  I.,  that 
he  was  "elevated  to  the  throne  by  hereditay  right,  after  a 
Bolemn  election  by  the  clergy  and  people  :  *'  *  words  that  indi- 
cate the  current  principles  of  that  age.  It  is  to  be  observed, 
however,  that  Richard  took  upon  him  the  exercise  of  royal 
prerogatives  without  waiting  for  his  coronation.'  The  sue* 
cession  of  John  has  certainly  passed  in  modem  times  for  an 
usurpation.  I  do  not  find  that  it  was  considered  as  such  by 
his  own  contemporaries  on  this  side  of  the  Channel.  The 
question  of  inheritance  between  an  uncle  and  the  son  of  his 
deceased  elder  brother  was  yet  unsettled,  as  we  learn  from 
Glanvil,  even  in  private  succession.*  In  the  case  of  sovereign- 
ties, which  were  sometimes  contended  to  require  different 
rules  from  oixLinary  patrimonies,  it  was,  and  continued  long 
to  be,  the  most  uncertain  point  in  public  law.  John's  pre- 
tensions to  the  crown  might  therefore  be  such  as  the  English 
were  justified  in  admitting,  especially  as  his  reveraionary  title 
seems  to  have  been  acknowledged  in  the  reign  of  his  brother 
Richard.^  If  indeed  we  may  place  reliance  on  Matthew 
Paris,  archbishop  Hubert,  on  this  occasion,  declared  in  the 
most  explicit  terms  that  the  crown  was  elective,  giving  even 
to  the  blood  royal  no  other  preference  than  their  merit  might 
challenge.*  Carte  rejects  this  as  a  fiction  of  the  historian ; 
and  it  is  certainly  a  strain  far  beyond  the  constitution,  which, 
both  before  and  afler  the  Conquest,  had  invariably  limited 
the  throne  to  one  royal  stock,  though  not  strictly  to  its  nearest 
branch.  In  a  charter  of  the  first  year  of  his  reign,  John 
calls  himself  king,  **by  hereditary  right,  and  through  the 
consent  and  fieivor  of  the  church  and  people."  * 

It  is  deserving  of  remark,  that,  during  the  rebellions  against 
this  prince  and  his  son  Henry  III.,  not  a  syllable  was  breathed 
in  favor  of  Eleanor,  Arthur's  sister,  who,  if  the  present 
rules  of  succession  had  been  established,  was  the  undoubted 
heiress  of  his  right.  The  barons  chose  rather  to  call  in  the 
aid  of  Louis,  with  scarcely  a  shade  of  title,  though  with  much 
better  means  of  maintmning  himself.  One  should  think  that 
men  whose  fathers  had  been  in  the  field  for  Matilda  could 
make  no  difficulty  about  female  succession.     But  I  doubt 

1  Lyttelton,  vol.  li.  p.  42.   Hsreditexio  «  HoTeden,  p.  702. 

JUM  promoTendiu  in  n^nttm,  pott  eleri  ft  p.  166. 

•t  popnll  notonDem  etoetiooem.  *  Jax«  hnndituio,  et  medlMite  ten 

i  Qal.  Neubrinnaifl,  1.  It.  o.  1.  olerl  et  popali  oonienra  et  fcTon.    Qnr* 

<  QUiiTil,  L  TU.  e.  8.  don  on  Parliameata,  p.  180 


134  GENTRY  DESTITUTE  OF      Chap.  Vm.  Past  H 

vrhether,  notwithstanding  that  precedent,  the  crown  of  Eng- 
land was  universally  acknowledged  to  be  capable  of  descend- 
ing to  a  female  heir.  Great  averseness  had  been  shown  by 
the  nobilitv  of  Henry  I.  to  his  proposal  of  settling  the  king- 
dom on  his  daughter.^  And  from  a  remarkable  passage 
which  I  shall  produce  in  a  note,  it  appears  that  even  in  the 
reign  of  Edwanl  HI.  the  succession  was  supposed  to  be  con 
fined  to  the  male  line.^ 

At  length,  about  the  middle  of  the  thirteenth  century,  the 
lawyers  applied  to  the  crown  the  same  strict  principles  of 
descent  which  regulate  a  private  inheritance.  Edward  L 
was  proclaimed  immediately  upon  his  father's  death,  though 
absent  in  Sicily.  Something  however  of  the  old  principle 
may  be  traced  in  this  proclamation,  issued  in  his  name  by 
the  guardians  of  the  realm,  where  he  asserts  the  crown  of 
England  "  to  have  devolved  upon  him  by  hereditary  succes- 
sion and  the  will  of  his  nobles."  *  These  last  words  were 
omitted  in  the  proclamation  of  Edward  11. ;  ^  since  whose 
time  the  crown  has  been  absolutely  hereditary.  The  coronar 
tion  oath,  and  the  recognition  of  the  people  at  that  solemnity, 
are  formalities  which  convey  no  right  either  to  the  sovereign 
or  the  people,  though  they  may  testify  the  duties  of  each.* 

I  cannot  conclude  the  present  chapter  without  observing 
English  ^^^  ^^^^  prominent  and  characteristic  distinction 
gentry  des-  between  the  constitution  of  England  and  that  of 
exciuitrvB  every  other  country  in  Europe ;  I  mean  its  refusal 
priTiiegM.      gf  ^jiyj]  privileges  to  the  lower  nobility,  or  those 

I  Ljttelton,  TOl.  I.  p.  162.  fhongh  with  a  certain  modification  whkh 

s  This  li  intimated  by  the  treaty  made  gaye  a  pretext  of  title  to  himmlf. 

In  1889  for  a  marriage  between  the  eldest  *  Ad  noe  regni  gubemaculom   sao> 

son  of  Kdward  III.  and  the  duke  of  Bra-  cemlone  haereditarii,  ae  procerum  regnl 

bant^s  daughter.    Edward  therein  prom-  roluntate,  et  fidelitate  nobis  prsstltft  sit 

ises  that,  If  his  son  should  die  befbre  devolatum.    Brady  (History  of  England, 

him,  leaving  male  issue,  he  will  procure  vol.  11.  Appendix,  p.  1)  expounds  pro- 

the  consent  of  his  barons,  nobles,  and  cerum  Toluntate  to  moan  willingnem,  not 

cities  (that  is,  of  parliament ;  nobles  here  will ;  as  much  as  to  say,  they  acted  read- 

meaning  linights,  if  the  word  has  any  ily  and  without  command.    But  in  all 

distinct  sense),  for  such  Issue  to  inherit  probability  it  was  intended  to  save  tha 

the  Icingdom;  and  if  he  die  leering  a  usual  form  of  consent, 

daughter  only,  Edward  or  his  heir  shall  ^  Kymer,  t.  lit.  p.  1.      Walsingham, 

make  such  prorision  for  her  as  belongs  however,   asserts  that   Edward  II.  aa- 

to  the  daughter  of  a  king.    Rymer,  t.  t.  cended  the  throne  non  tarn  Jure  hsere- 

p.  114.    It  may  be  Inlbrred  fh>m  this  in-  ditario  quAm  unaniml  assensu  procerum 

■trument  that,  in  Edward's  intention,  if  etmagnatum.  p.  95.    Perhaps  we  should 

sot  by  the  constitution,  the  Salie  law  omit  the  word  notif  and  he  might  Intend 

was  to  regulate  the  succession  of  the  to  say  that  the  king  had  not  only  hif 

English  crown.    This  law.  it  must  be  re-  hereditary  title,  bat  the  free  consent  ot 

membered,  he  was  compelled  to  admit  In  his  barons. 

hit  olalm  on  the  kingdom  of  France,  *  [Notb  XIV.] 


tSxGLUB  roHBT.        EXCLUSIVE  PRIVILEGES.  135 

whom  we  denominate  the  gentry.  In.  France,  in  Spain,  in 
Germany,  wherever  in  short  we  look,  the  appellations  of 
nobleman  and  gentleman  have  been  strictly  synonymous. 
Those  entitled  to  bear  them  by  descent,  by  tenure  of  land,  by 
office  or  royal  creation,  have  formed  a  class  distinguished  by 
privileges  inherent  in  their  blood  from  oi*dinary  freemen. 
Marriage  with  noble  families,  or  the  purchase  of  military 
fiefs,  or  the  participation  of  many  civil  offices,  were,  more  or 
less,  interdicted  to  the  commons  of  France  and  the  empire. 
Of  these  restrictions,  nothing,  or  next  to  nothing,  was  ever 
known  in  En^^land.  The  law  has  never  taken  notice  of 
gentlemen.^  From  the  reign  of  Henry  III.  at  least,  the  legal 
equality  of  all  ranks  below  the  peerage  was,  to  every  essen- 
tial purpose,  as  complete  as  at  present.  Compare  two  writers 
nearly  contemporary,  Bracton  with  Beaumanoir,  and  mark 
how  the  customs  of  England  are  distinguishable  in  this  re- 
spect The  Frenchman  ranges  the  people  under  three 
divisions,  the  noble,  the  free,  and  the  servile ;  our  countryman 
has  no  generic  class,  but  freedom  and  villenage.^  No  re« 
ritraint  seems  ever  to  have  lain  upon  marriage ;  nor  have  the 
children  even  of  a  peer  been  ever  deemed  to  lose  any  privi- 
lege by  his  union  with  a  commoner.  The  purchase  of  lands 
held  by  knight-service  was  always  open  to  all  freemen.  A 
few  privileges  indeed  were  confined  to  those  who  had  received 
knighthood.'  But,  upon  the  whole,  there  was  a  virtual 
equality  of  rights  among  all  the  commoners  of  England. 
What  is  most  particular  is,  that  the  peerage  itself  imparts  no 
privilege  except  to  its  actual  possessor.  In  every  other 
country  the  descendants  of  nobles  cannot  but  themselves  be 
noble,  because  their  nobility  is  the  immediate  consequence  of 
their  birth.     But  though  we  con^monly  say  that  the  blood  of 

1  It  Is  hardly  worth  while,  «Ten  for  the  wardf  to  aooept  a  mean  alUanee,  or  to 
lake  of  ohriating  carllii,  to  notke  as  an  forfeit  Its  price,  that  this  provision  of  the 
exception  the  statute  of  23  H.  VI.  c.  14,  statute  was  made.  But  this  does  not 
prohibitinic  the  election  of  any  who  were  allect  the  proposition  I  bad  maintained 
not  bom  gentlemen  for  knights  of  the  as  to  the  Ugetl  equality  of  commoners, 
•hire.  Much  less  should  I  have  thought  any  more  than  a  report  of  a  Bfsster  in 
of  noticing,  if  it  had  not  been  suggested  Chancery  at  tiie  present  day.  that  a  pro- 
as an  objection,  the  proTl«lon  of  the  8tat<>  posed  marriage  for  a  ward  of  tne  court  wa« 
nte  of  Merton,  that  guardians  in  chivalry  unequal  to  what  her  station  in  society 
•hall  not  marry  their  wards  to  vUleins  appeared  to  claim,  would  InTalldate  the 
or  burgtases,    to    their  disparagement,  same  proposition. 

Wherever  the  distinctions  of  nnk  and  *  Beaumanoir,  o.  46.     BiMton,  L  L 

property  are  lelt  In  the  customs  of  society,  c.  6. 

such  marriages  will  be  deemed  unequal ;  >  See  for  these,  Seld«n*s  TItiaf  of  Honor 

and  it  was  to  obviate  the  tyranny  of  toL  ill.  p.  80G. 
foodal   sapexiors  who    compelled  their 


136  CAUSES  OF  EQUALITY    Chap.  vm.  Pabt  a 

a  peer  is  ennobled,  yet  this  expression  seems  hardly  accurate, 
and  fitter  for  heralds  than  lawyers;  since  in  truth  nothing 
confers  nobility  but  the  actual  descent  of  a  peerage.  The 
sons  of  peers,  as  we  well  know,  are  commoners,  and  totally 
destitute  of  any  legal  right  beyond  a  barren  precedence. 

There  is  no  part,  perhaps,  of  our  constitution  so  admirable 
as  this  equality  of  civil  rights ;  this  isonomia^  which  the  phi- 
losophers of  ancient  Greece  only  hoped  to  find  in  democrat- 
ical  government^  From  the  beginning  our  law  has  been  no 
respecter  of  persons.  It  screens  not  the  gentleman  of  ancient 
lineage  from  the  judgment  of  an  ordinary  jury,  nor  from 
ignominious  punishment  It  confers  not,  it  never  did  confer, 
those  unjust  immunities  from  public  burdens,  which  the  8upe« 
rior  orders  arrogated  to  themselves  upon  the  continent  Thus, 
while  the  privileges  of  our  peers,  as  hereditary  legislators  of 
a  free  people,  are  incomparably  more  valuable  and  dignified 
in  their  nature,  they  are  far  less  invidious  in  their  exercise 
than  those  of  any  other  nobility  in  Europe.  It  is,  I  am  firmly 
persuaded,  to  this  peculiarly  democratical  character  of  the 
English  monarchy,  that  we  are  indebted  for  its  long  perma- 
nence, its  regular  improvement,  and  its  present  vigor.  It  is 
a  singular,  a  providential  circumstance,  that,  in  an  age  when 
the  gradual  march  of  civilization  and  commerce  was  so  little 
foreseen,  our  ancestors,  deviating  from  the  usages  of  neigh- 
boring countries,  should,  as  if  deliberately,  have  guarded 
against  that  expansive  force  which,  in  bursting  through 
obstacles  improvidently  opposed,  has  scattered  havoc  over 
Europe. 

This  tendency  to  civil  equality  in  the  English  law  may,  I 
Gaiues  of  think,  be  ascribed  to  several  concurrent  causes.  In 
the  eqaiity  the  first  place  the  feudal  institutions  were  far  less 
men'in  military  in  England  than  upon  the  continent  From 

England.  the  time  of  Henr}'  II.  the  escuage,  or  pecuniary 
commutation  for  personal  service,  became  almost  universaL 
The  armies  of  our  kings  were  composed  of  hired  troops,  great 
part  of  whom  certainly  were  knights  and  gentlemen,  but 
who,  serving  for  pay,  and  not  by  virtue  of  their  birth  or 
tenure,  preserved  nothing  of  the  feudal  character.    It  was 


ilieufliion  <tf  fimns  of  government  which 


EJIOL14R  CossT.  AHOKG  FREEMEN.  187 

not,  however,  so  much  for  the  ends  of  national  as  of  priTate 
warfare,  that  the  relation  of  lord  and  vassal  was  contrived* 
The  right  which  every  baron  in  France  possessed  of  redress- 
ing his  own  wrongs  and  those  of  his  tenants  by  arms  rendered 
their  connection  strictly  military.  But  we  read  very  little  of 
private  wars  in  England.  Notwithstanding  some  passages  in 
Glanvil,  which  certainly  appear  to  admit  their  legality,  it  is 
not  easy  to  reconcile  this  with  the  general  tenor  of  our  laws.^ 
They  must  always  have  been  a  breach  of  the  king's  peace, 
which  our  Saxon  lawgivers  were  perpetually  striving  to  pre- 
serve,  and  which  the  Conqueror  and  his  sons  more  effectually 
maintuned.^  Nor  can  we  trace  many  instances  (some  we  per- 
haps may)  of  actual  hostilities  among  the  nobility  of  England 
afier  the  Conquest,  except  during  such  an  anarchy  as  the 
reign  of  Stephen  or  the  minority  of  Honry  III.  Acts  of 
outrage  and  spoliation  were  indeed  very  frequent  The 
statute  of  Marlebridge,  soon  after  the  baronial  wars  of  Henry 
UL,  speaks  of  the  disseizins  that  had  taken  place  during  the 
late  disturbances ;  *  and  thirty-five  verdicts  are  said  to  have 
been  given  at  one  court  of  assize  against  Foulkes  de  Breaut^ 
a  notorious  partisan,  who  commanded  some  foreign  mercena- 
ries at  the  beginning  of  the  same  reign  ;^  but  these  are  faint 
resemblances  of  that  wide-spreading  devastation  which  the 
nobles  of  France  and  Grermany  were  entitled  to  cany  among 
their  neighbors.  The  most  prominent  instance  perhaps  of 
what  may  be  deemed  a  private  war  arose  out  of  a  contention 
between  the  earls  of  Gloucester  and  Hereford,  in  the  reign 
of  Edward  L,  during  which  acts  of  extraordinary  violence 
were  perpetrated  ;  but,  far  from  its  having  passed  for  lawful, 
these  powerful  nobles  were  both  committed  to  prison,  and 
paid  heavy  fines.*  Thus  the  tenure  of  knight-service  was 
not  in  effect  much  more  peculiarly  connected  with  the  pro- 

1 1  have  modified  thli  punge  in  oon-  to  afford  an  inference  that  it  wai  an 
■equenee  of  the  Ju»t  animadverrion  of  a  anomaly.  In  the  royal  manor  of  Ar> 
periodical  critic. .  In  the  first  edition  I  ehenfeld  in  Herelbrdahlre,  if  one  Welsh- 
had  stated  too  ttroDgly  the  difierenoe  man  kills  another,  it  wm  a  custom  for 
which  I  still  belieTe  to  ha^  existed  be-  the  relations  of  the  slaSn  to  assemble  and 
twecn  the  oostoms  of  England  and  other  plunder  the  murdorer  and  his  Idndred, 
feudal  eonntriee  in  respect  of  private  and  bum  their  houses,  until  the  corpse 
vatfent.    [NoTt  XV.]  should  be  interred,  vk.oh  was  to  take 

*  The  penalties  Impoeed  on  breaches  nlace  by  noon  on  the  morrow  of  bin  ditath 

of  the  peace,  in  Wllklna^s  Anglo-Saxon  Of  this  plunder  the  kinff  had  a  third  part, 

taws,  are  too  numerous  to  be  particularly  and  the  rest  they  kept  for  thanseiTM. 

Inserted.     One  remarkable   passage  In  p.  179. 

Domeeday  appears,  by  mentioning  a  legal  *  Stat.  62  H.  IIL 

rastom  flf  prfrate  feuds  in  an  individual  *  Uatt.  Paris,  p.  271. 

r,  and  there  only  among  Welshmen ,  •  Rot.  Pari.  Td.  L  p.  70. 


138  CAUSES  OF  EQUALITY    Chap.  Vm.  Part  IL 

fession  of  arms  .than  that  of  .socage.  There  was  nothing  in 
the  former  condition  to  generate  that  high  self-estimation 
which  military  habits  inspire.  On  the  contrary,  the  burden- 
some incidents  of  tenure  in  chivalry  rendered  socage  the  more 
advantageous,  though  less  honorable  of  the  two. 

In  the  next  place,  we  must  ascribe  a  good  deal  of  efficacy 
to  the  old  Saxon  pnnciples  that  survived  the  conquest  of 
William  and  infused  themselves  into  our  common  law.  A 
respectable  class  of  free  socagers,  having,  in  general,  fnU 
rights  of  alienating  their  lands,  and  holding  them  probably  at 
a  small  certain  rent  from  the  lord  of  the  manor,  frequently 
occur  in  Domesday  Book.  Though,  as  I  have  alresidy  ob- 
served, these  were  derived  from  the  superior  and  more  fortu- 
nate Anglo-Saxon  ceorls,  they  were  perfectly  exempt  from  all 
marks  of  villenngeHboth  as  to  their  persons  and  estates.  Most 
have  derived  their  name  from  the  Saxon  socy  which  signifies  a 
franchise,  especially  one  of  jurisdiction,*  and  they  undoubtedly 
were  suitors  to  the  court-baron  of  the  lord,  to  whose  soc,  or 
right  of  justice,  they  belonged.  They  were  consequently 
judges  in  civil  causes,  determined  before  the  manorial  tribu- 
naL*    Such  privileges  set  them  greatly  above  the  roturiers  or 

i  Tt  nov  appears  strange  to  me  that  the  twelfth  eentury,  Jnst  befbre  the  great 

I  could  ever  have  given  the  pfpfcrence  though  silent  revolution  which  brought 

to  Bracton>  derivation  of  socage  from  in     the    Normau    Jurisprudence,  bear 

Moe  dt  ekarue.    The  word  Fokeman.  which  abundant  witness  to  the  territorial  courts, 

occurs  so  often  in  Domesday,  lis  con-  collateral  to  and  independent  of  those  of 

tinually  coupled  with  soca^  a  franchise  the  sheriff.    Other  proofs  are  easily  far 

or  right  of  jurisdiction  belonging  to  the  nished  for  a  later  period.    Vide  Chroa 

lord,  whose  tenant  or  rather  suitor,  the  Jocelvn  de  Brakelonde,  et  alia, 
■okeman  is  described  to  be.    JSoe  is  an       It  Is  nevertheless  true  that  territorial 

Idle  and  improbable  etymology ;    espe-  Jurisdiction  wss  never  so  extensive  as  in 

dally  as  at  the  time  when  sokeman  was  governments   of  a    more   arlitoeratical 

most  in  use  there  waa  hardly  a  word  of  character,  either  in  criminal  or  civil  cases 

a  French  root  in  the  language.     Soc  is  1.  In  the  laws  ascribed  to  Henry  I.  it  is 

plainly  derived  from  seco^  and  therefore  said  that  all  great  offences  could  only  be 

cannot  pass  for  a  Teutonic  word.  tried  in  the  king's  court,  or  by  his  com- 

I  once  thought  the  etymology  of  Brae-  mission,  c.  10.  Olanvil  difitinguishes  the 
ton  and  Lyttclton  curiously  illustrated  criminal  pleaa,  which  could  only  be  deter- 
by  a  passage  in  Blomefleld's  Hist,  of  mined  before  the  king^sjudgeR,  from  those 
Norfolk,  vol.  ill.  p.  688  (folio).  In  the  which  belong  to  the  sheriff.  Treason, 
manor  of  Oawston  a  man  with  a  braxen  murder,  robbery,  and  rape  were  of  the 
hand  holding  a  ploughshare  was  carried  former  class  ;  theft  of  the  latter.  I.  xiv. 
before  the  steward  as  a  sign  that  it  was  The  criminal  juriiidiction  of  the  sheriff 
held  by  socage  of  the  duchy  of  Lan-  is  entirely  taken  away  by  Magna  Charta. 
caster.  e.  17.    Sir  E.  Coke  says  the  territorial 

s  The  feudal  courts,  if  under  that  name  fh^nchiscs  of  inf  ingthief  and  outfiingthief 

we  include  those  of  landholders  having  *^  had  some  continuance  nfterwardH,  but 

grants  of  soo.  sac,  infangthef,  fee.  from  either  by  this  act,  or  per  dosuetudinem 

the  crown,  had  originally  a  Jurisdiction  for  inconvenience,  thrns  franchises  within 

exclusive  of  the  county  and  hundred,  manors  are  antiquated  and  gone.*'  2  Inst. 

The  Laws  or  Henry  I.,  a  treatbe  of  gjvuX  p.  81.  The  statute  hardly  seems  to  reach 

authority  as  a  contemporary  exporition  them ;    and    they   were    certainly  both 

of  the  law  of  Ki^ksd  in  the  middle  of  claimed  and   exercised  as  lata  as    tht 


EiroLigH  Const.  AMONG  FREEMEN.  139 

censiers  of  France.  They  were  all  Englishmen,  and  their 
tenure  strictly  English ;  which  seems  to  have  given  it  cn^dit 
in  the  eyes  of  our  lawyers,  when  the  name  of  Englishman 
was  affected  even  by  tliose  of  Norman  descent,  and  ihe  laws 
of  Edward  the  Confessor  became  the  universal  demand.  Cer- 
tainly Glanvil,  and  still  more  Bracton,  treat  the  tenure  in  free 
socage  with  great  respect  And  we  have  reason  to  think  that 
this  class  of  freeholders  was  very  numerous  even  before  the 
reign  of  Edward  I. 

But,  lastly,  the  change  which  took  place  in  the  constitutloii 
of  parliament  consummated  the  degradation,  if  we  must  use 
the  word,  of  the  lower  nobility :  I  mean,  not  so  much  their 
attendance  by  representation  instead  of  personal  summons,  as 
their  election  by  the  whole  body  of  freeholders,  and  their 
separation,  along  with  citizens  and  burgesses,  from  the  house 
of  peers.  These  changes  will  fall  under  consideration  in  the 
following  chapter. 

reign  of  Edw&rd  I.  Bloinefleld  men-  king  reAiaed.  Stat.  Merton,  e.  11.  Bui 
tiom  two  instances,  both  in  12S6,  where  seTeiul  lonln  enjoyed  thin  as  a  partirnla.* 
executions  for  felony  took  place  by  the  franchise;  which  is  saved  by  the  statute 
•entence  of  a  coart-baron.  In  these  6  U.  IV.  e.  10,  directing  Justices  of  th« 
rsMs  the  lord's  privilege  was  called  in  peace  to  imprison  no  man,  except  in  the 
question  at  the  assises,  by  which  means  oommon  gaol.  2.  The  civil  Jurisdiction 
we  karn  the  transaction  ;  it  Is  very  prob-  of  the  court-baron  was  rendered  insigDlfi- 
able  that  similar  executions  occurred  in  cant,  not  only  by  its  limitation  in  per- 
manon  whfre  the  JuriMiction  was  not  somil  suits  to  debts  or  damages  not  ex- 
disputed.  Illst.  of  Norfolk,  vol.  i.  p.  818 ;  ceeding  forty  shillings,  but  by  the  writs 
vol.  iii.  p.  60.  Felonies  are  now  cog-  of  toU  and  pone^  wh^h  at  once  removed 
nixable  in  the  greater  part  of  boroughs  ;  a  suit  for  lands,  in  any  state  of  its  prog- 
though  it  is  usual,  except  in  the  most  ress  before  Judgment,  into  the  county 
considerable  places,  to  ivmlt  such  as  are  court  or  that  of  the  king.  The  statute 
not  within  benefit  of  clergy  to  the  Jus-  of  Marlebridge  took  away  all  appellant 
ttees  of  gaol  delivery  on  their  circuit.  Jurisdiction  of  the  superior  lord,  for  false 
This  Jurisdiction,  however,  is  given,  or  Judgment  in  the  manorial  court  of  his 
presumed  to  be  given,  by  special  charter,  tenant,  and  thus  aimed  another  blow  at 
and  perfectly  distinct  from  that  which  the  feudal  eonnection.  £2  H.  III.  c.  19. 
was  fieudal  and  territorial.  Of  the  latter  8.  The  lords  of  the  conn  ties  palatine  of 
some  vestiges  appear  to  remain  in  par*  Chester  and  Durham,  and  the  Royal 
ticnlar  liberties,  as  for  example  the  coke  fhinchise  of  Ely,  had  not  only  a  capital 
of  Peterborough  :  but  most,  if  not  all,  of  Jurisdiction  in  criminal  cases,  but  an 
these  local  fVanchlses  have  &llen,  by  right  exclusive  cognisance  of  civil  suits ;  the 
or  custom,  into  the  hands  of  Justices  of  former  still  is  retained  by  the  bishops  of 
the  peace.  A  territorial  privilege  some-  Durham  and  Ely,  though  much  shorn  of 
what  analogous  to  criminal  Jurisdiction,  its  ancient  extent  by  an  act  of  Ilenry 
but  considerably  more  oppressive,  was  \  Til.  (27  II.  VIII.  c.  24),  and  adminls 
that  of  privatenols.  At  the  parliament  tered  by  the  king*s  Justices  of  assize ;  the 
of  HertOD,  128i ,  the  lords  requested  to  bishops  or  their  deputiNW  being  put  onl) 
haie  thdr  own  prison  for  trespasses  on  the  footing  of  ordinary  Jusoom  of  t2tf 
•pin  thair  paxlu  and  ponds,  which  the  peace.    Id.  s.  20 


140  THE  BRETWALDAS.  Nom  to 


NOTES  TO  CHAPTER  VIIL 

(PaBTS  I.  AND   II.) 


Note  L    Page  64. 

TbESE  seven  princes  enumerated  hj  Bede  have  been  calleci 
Bretwaldas,  and  thej  have,  bj  late  historians,  been  advanced 
to  higher  importance  and  to  a  different  kind  of  power  thaD, 
as  it  appears  to  me,  there  is  any  sufficient  ground  to  bestow 
on  them.  But  as  I  have  gone  more  fully  into  this  subject  in 
a  paper  published  in  the  d2d  volume  of  the  '  Archieologia,* 
I  shall  content  myself  with  giving  the  most  material  parts  of 
what  will  there  be  found. 

Bede  is  the  original  witness  for  the  seven  monarchs  who 
before  his  time  had  enjoyed  a  preponderance  over  the  Anglo- 
Saxons  south  of  the  Humber: — ''Qui  cunctis  australibos 
gentis  Anglorum  provinciis,  quas  Humbrse  fluvio  et  oontigaia 
ei  terminis  sequestrantur  a  Borealibos,  imper&runt.''  *  (Hist. 
RccL  lib.  ii.  c  5.)  The  four  first-named  had  no  authority 
over  Northumbria ;  but  the  last  three  being  sovereigns  of 
that  kingdom,  their  sway  would  include  the  whole  of  England. 

The  Saxon  Chronicle,  under  the  reign  of  Egbert,  says 
that  he  was  the  eighth  who  had  a  dominion  over  Britain; 
using  the  remarkable  word  Bretwalda,  which  is  found  nowhere 
else.  This,  by  its  root  vxddan^  a  Saxon  verb,  to  rule  (whence 
our  word  widd)^  implies  a  ruler  of  Britain  or  the  Britons. 
The  Chronicle  then  copies  the  enumeration  of  the  other  seven 
in  Bede,  with  a  little  abridgment.  The  kings  mentioned  by 
Bede  are  JBSAM  or  Ella,  founder  of  the  kingdom  of  the  South- 
Saxons,  about  477 ;  Ceaulin,  of  Wessex,  afler  the  interval 
of  nearly  a  century ;  Ethelbert,  of  Kent,  the  first  Christian 
king ;  Bedwald,  of  East  Anglia;  after  him  three  Northum- 
brian kings  in  succession,  Edwin,  Oswald,  Oswin.  We  havOy 
therefore,  sufficient  testimony  that  before  the  middle  of  the 


OHAP^Vm.  THE  BEETWALDA8.  141 

seventb  cenhiry  four  kings,  from  four  Anglo-Saxon  kingdomsi 
had,  at  interyals  of  time,  become  superior  to  the  rest;  except- 
ing, however,  the  Northumbrians,  whom  Bede  distinguishes, 
and  whose  subjection  to  a  southern  prince  does  not  appear  at 
all  probable.  None,  therefore,  of  these  could  well  have  been 
caUed  Bretwalda,  or  ruler  of  the  Britons,  while  not  even  his 
own  countrymen  were  wholly  under  his  sway. 

We  now  come  to  three  Northumbrian  kings,  Edwin,  08« 
wald,  and  Oswin,  who  ruled,  in  Bede's  language,  with  greater 
power  than  the  preceding,  over  all  the  inhabitants  of  Britain, 
both  English  and  British,  with  the  sole  exception  of  the  men 
of  KenL  This  he  reports  in  another  place  with  respect  to 
£dwin,  the  first  Northumbrian  convert  to  Christianity; 
whose  worldly  power,  he  says,  increased  so  much  that,  what 
DO  English  sovereign  had  done  before,  he  extended  his  do- 
minion to  the  furthest  bounds  of  Britain,  whether  inhabited 
by  English  or  by  Britons.  (Hist  Eccl.  lib.  ii.  c  9.)  Dr. 
langard  has  pointed  out  a  remarkable  confirmation  of  this 
testimony  of  Bede  in  a. Life  of  St.  Columba,  published  by 
the  BoUandists.  He  names  Cuminius,  a  contemporary  writer, 
as  the  author  of  this  Life ;  but  I  find  that  these  writers  give 
several  reasons  for  doubting  whether  it  be  his.  The  words 
are  as  follow :  —  ^  Oswaldum  regem,  in  procinctu  belli  castra 
metatum,  et  in  papilione  supra  pulvillum  dormientem  allocu- 
tus  est,  et  ad  bellum  procedere  jussit.  Processit  et  secuta 
est  victoria ;  reversusque  postea  totius  Britannis  imperator 
mxiinatus  a  Deo,  et  tota  incredula  gens  baptizata  est."  (Acta 
Sanctorum,  Jun.  23.)  This  passage,  on  account  of  the  un- 
certainty of  the  author^s  age,  might  not  appear  sufiicient. 
But.  this  anonymous  Life  of  Columba  is  chiefly  taken  from 
that  by  Adanman,  written  about  700 ;  and  in  that  Life  we 
find  the  important  expression  about  Oswald  —  '^totius  Britan- 
nisB  imperator  ordinatus  a  Deo."  We  have,  therefore,  here 
probably  a  distinct  recognition  of  the  Saxon  word  Bretwalda ; 
for  what  else  could  answer  to  emperor  of  Britain  ?  And,  as 
far  as  I  know,  it  is  the  only  one  that  exists.  It  seems  more 
likely  that  Adamnan  refers  to  a  distinct  title  bestowed  on 
Oswald  by  his  subjects,  than  that  he  means  to  assert  as  a  fact 
that  he  truly  ruled  over  all  Britain.  This  is  not  very  credi- 
ble, notwithstanding  the  language  of  Bede,  who  loves  to 
ampliiy  the  power  of  favorite  monarchs.  For  though  it 
may  be  admitted  that  these  Northumbrian  kings  ex^joyed  al 


142  THE  BKETWALDAS.  Nonti  10 

times  a  preponderance  over  the  other  Anglo-Saxon  princi- 
palities, we  know  that  both  Edwin  and  Oswald  lost  their  lives 
in  great  defeats  by  Penda  of  Mercia.  Nor  were  the  Stralh- 
cluyd  Britons  in  any  permanent  subjection.  The  name  of 
Bretwalda,  as  applied  to  these  three  kings,  though  not  so 
absurd  as  to  make  it  incredible  that  thej  assumed  it,  asserts 
an  untruth. 

It  is,  liowever,  at  all  events  plain  from  history  that  they 
obtained  their  superiority  by  force ;  and  we  may  probably 
believe  the  same  of  the  four  earlier  kings  enumerated  by 
Bede.  An  elective  dignity,  such  as  is  now  sometimes  sup- 
posed, cannot  be  presumed  in  the  absence  of  every  semblance 
of  evidence,  and  against  manifest  probability.  What  appear- 
ance do  we  find  of  a  federal  union  among  the  kites  and 
crows,  as  Milton  calls  them,  of  the  Heptarchy  ?  What  but 
the  law  of  the  strongest  could  have  kept  these  rapacious  and 
restless  warriors  from  tearing  the  vitals  of  their  common 
country  ?  The  influence  of  Christianity  in  effecting  a  com- 
parative civilization,  and  producing  a  sense  of  political  as 
well  as  religious  unity,  had  not  yet  been  felt 

Mercia  took  the  place  of  Northumberland  as  the  leading 
kingdom  of  the  Heptarchy  in  the  eighth  century.  Even 
before  Bede  brought  his  Ecclesiastical  History  to  a  close,  in 
731,  Ethelbald  of  Mercia  had  become  paramount  over  the 
southern  kingdoms ;  certainly  more  so  than  any  of  the  first 
four  who  are  called  by  the  Saxon  Chronicler  Bretwaldas. 
^  Et  hse  omnes  provincifld  cseteneque  australes  ad  confinium 
usque  HymbrsB  fiuminis  cum  suis  quseque  regibus,  Merciorum 
regi  Ethelbaldo  subjectie  sunt.**  (Hist  Eccl.  v.  23.)  In  a 
charter  of  Ethelbald  he  styles  himself — ^non  solum  Mcrcen- 
sium  sed  et  universarum  provinciarum  qusa  communi  vocab- 
ulo  dicuntur  Suthangli  divina  largiente  gratia  rex."  (Codex 
Ang.-Sax.  Diplom.  i.  96;  vide  etiam  100,  107.)  Offa«  his 
successor,  retained  great  part  of  this  ascendency,  and  in  his 
charters  sometimes  styles  himself  ^rex  Anglorum,"  some- 
times **  rex  Merciorum  simulque  aliarum  circumquaque  na» 
tionum.*'  (lb.  162,  166,  167,  et  alibi,)  It  is  impossible 
to  define  the  subordination  of  the  southern  kingdoms,  but  we 
cannot  reasonably  imagine  it  to  have  been  less  than  they  paid 
in  the  sixth  century  to  Ceaulin  and  Ethclbert  Yet  to  these 
potent  sovereigns  the  Saxon  Chronicle  does  not  give  the 
name  BretwaldiE^  nor  a  place  in  the  list  of  British  rulers.    Jt 


CoAP.Yin.  THE  BBETWALDAS.  143 

copies  Bede  in  this  passage  semlelj,  without  rtgard  to  events 
which  had  occurred  since  the  termination  of  his  history. 

I  am,  however,  inclined  to  believe,  combining  the  passage 
Adamnan  with  this  less  explicitly  worded  of  the  Saxon 
Chronicle,  that  the  three  Northumbrian  kings,  having  been 
victorious  in  war  and  paramount  over  the  minor  kingdoms, 
were  really  designated,  at  least  among  their  own  subjects,  by 
the  name  Bretwalda,  or  ruler  of  Britain,  and  totius  Britan- 
niaB  imperator.  The  assumption  of  so  pompous  a  title  is 
characteristic  of  the  vaunting  tone  which  continued  to  in- 
crease down  to  the  Conquest.  We  may,  therefore,  admit  as 
probable  that  Oswald  of  Northumbria  in  the  seventh  century, 
as  well  as  his  father  Edwin  and  his  son  Oswin,  took  the  ap- 
pellation of  Bretwalda  to  indicate  the  supremacy  they  had 
obtained,  not  only  over  Mercia  and  the  other  kingdoms  of 
their  countrymen,  but,  by  dint  of  successful  invasions,  over 
tlie  Strathcluyd  Britons  and  the  Scots  beyond  the  Forth.  I 
still  entertain  the  greatest  doubts,  to  say  no  more,  whether 
this  title  was  ever  applied  to  any  but  these  Northumbrian 
kings.  It  would  have  been  manifestly  ridiculous,  too  ridicu- 
lous, one  would  think,  even  for  Anglo-Saxon  grandiloquence, 
to  confer  it  on  the  first  four  in  Bede's  list ;  and  if  it  expressed 
an  acknowledged  supremacy  over  the  whole  nation,  why  was 
it  never  assumed  in  the  eighth  century  ? 

We  do  not  derive  much  additional  information  from  later 
historians.  Florence  of  Worcester,  who  usually  copies  the 
Saxon  Chronicle,  merely  in  this  instance  transcribes  the  text 
of  Bede  with  more  exactness  than  that  had  done ;  he  neither 
repeats  jior  translates  the  word  Bretwalda.  Henry  of  Hunt- 
ingdon, afler  repeating  the  passage  in  Bede,  adds  Fgbert  to 
the  seven  kings  therein  mentioned,  calling  him  ^  rex  et  mon- 
archa  totius  Britannise,'*  doubtless  as  a  translation  of  the 
word  Bretwalda  in  the  Saxon  Chronicle;  subjoining  the 
names  of  Alfred  and  Edgar  as  ninth  and  tenth  in  the  list. 
Egbert,  he  says,  was  eighth  of  ten  kings  remarkble  for  their 
bravery  and  power  (fortissimorum)  who  have  reigned  in 
England.  It  is  strange  that  Edward  the  Eld^,  Adielstan, 
and  Edred  are  passed  over. 

Rapin  was  the  first  who  broached  the  theory  of  an  elective 
Bretwalda,  possessing  a  sort  of  monarchical  supremacy  in 
the  constitution  of  the  Heptarchy;  something  like,  as  he 
says,  the  dignity  of  stadtholder  of  the  Netherlands.    It  was 


144  SAXON  KINGS  OF  ALL  ENGLAND.         Norn  to 

taken  up  in  later  times  by  Turner,  Lingard,  Palgrave,  and 
Lappenberg.  But  for  this  there  is  certainly  no  evidence 
whatever ;  nor  do  I  perceive  in  it  anything  but  the  very  re- 
verse of  probability,  especially  in  the  earlier  instances, 
^th  what  we  read  in  Bede  we  may  be  content,  confirmed  as 
ynth  respect  to  a  Northumbrian  sovereign  it  appears  to  be 
by  the  Life  of  Columba ;  and  the  plain  history  will  be  no 
more  than  this  —  that  four  princes  from  among  the  southern 
Anglo-Saxon  kingdoms,  at  different  times  obtained,  probably 
by  force,  a  superiority  over  the  rest ;  that  ailerwaids  three 
Northumbrian  kings  united  a  similar  supremacy  with  the 
government  of  their  own  dominions ;  and  that,  having  been 
successful  in  reducing  the  Britons  of  the  north  and  also  the 
Scots  into  subjection,  they  assumed  the  title  of  Bretwalda,  or 
ruler  of  Britain.  This  title  was  not  taken  by  any  later 
kings,  though  some  in  the  eighth  century  were  very  powerful 
in  England ;  nor  did  it  attract  much  attention,  since  we  find 
the  word  only  once  employed  by  an  historian,  and  never  in  a 
charter.  The  consequence  I  should  draw  is,  that  too  great 
prominence  has  been  given  to  the  appellation,  and  undue 
inferences  sometimes  derived  from  it,  by  the  eminent  writers 
above  mentioned. 

Note  n.    Page  66. 

The  reduction  of  all  England  under  a  single  sovereign 
was  accomplished  by  Edward  the  Elder,  who  may,  therefore, 
be  reckoned  the  founder  of  our  monarchy  more  justly  than 
Egbert.  The  ^ve  Danish  towns,  as  they  were  called,  Lei- 
cester, Lincoln,  Stamford,  Derby,  and  Nottingham,  had  been 
brought  under  the  obedience  of  hjs  gallant  sister  ^thelfieda, 
to  whom  Alfred  had  intrusted  the  viceroyalty  of  Mercia. 
Edward  himself  subdued  tlie  Danes  of  East  Anglia  and 
Northumberland.  In  922  <"  the  kings  of  the  North  Welsh 
sought  him  to  be  their  lord."  And  in  924  ^<  chose  him  for 
fiither  and  lord,  the  king  of  the  Scots  and  the  whole  nation 
of  the  Scots,  and  Regnald,  and  the  son  of  Eadulf,  and  all 
those  who  dwell  in  NorUiumberland,  as  well  English  as 
Danes  and  Northmen  and  others,  and  also  the  king  of  the 
Strathcluyd  Britons,  and  all  the  Strathcluyd  Britons."  (Sax. 
Chronicle.) 

Edward  died  next  year ;  of  his  son  ^thelstan  it  is  said 


Chip.  Vm.      SAXON  KINGS  OF  ALL  ENGLAND.  145 

that  **  he  ruled  all  the  kings  who  were  in  this  island ;  firsti 
Howel  king  of  West  Welsh,  and  Constantine  king  of  the 
Soots,  and  Uwen  king  of  the  Gwentian  (Silurian)  people, 
and  Ealdrad  son  of  Ealdalf  of  Bamborough,  and  thej 
confirmed  the  peace  by  pledge  and  by  oaths  at  the  place 
which  is  called  Eamot,  on  the  fourth  of  the  Ides  of  July ; 
and  they  renounced  all  idolatry,  and  after  that  submitted  to 
him  in  peace."     (Id.  a.d.  926.) 

From  this  time  a  striking  change  is  remarkable  in  the 
style  of  our  kings*  Edward,  of  whom  we  have  no  extan 
charters  after  these  great  submissions  of  the  native  princes 
calls  himself  only  Angul-Saxonum  rex.  But  in  those  of 
A.thelstan,  such  as  are  reputed  genuine  (for  the  tone  is  still 
more  pompous  in  some  marked  by  Mr.  Kemble  with  an 
asterisk),  we  meet,  as  early  as  927,  with  **  totius  Britannis 
monarchus,  rex,  rector,  or  basileus ; "  **  totius  Britanniae  solio 
sublimatus;"  and  other  phrases  of  inmlar  sovereignty. 
(Codex  Diplom.  vol  ii.  passim;  vol.  ▼.  198.)  What  has 
been  attributed  to  the  imaginary  Bretwaldas,  belonged  truly 
to  the  kings  of  the  tenth  century.  And  the  grandiloquence 
of  their  titles  is  sometimes  almost  ridiculous.  They  affected 
particularly  that  of  Basileus  as  something  more  imperial 
than  king,  and  less  easily  understood.  Edwy  and  Edgar  are' 
remarkable  for  this  pomp,  which  shows  itself  also  in  the 
spurious  charters  of  older  kings.  But  Edmund  and  Edred 
with  more  truth  and  simplicity  had  generally  denominated 
themselves  ^rex  Angl6rum,  cseterorumque  in  circuitu  per* 
sistentium  gubemator  et  rector."  (Codex  Diplom.  vol.  ii. 
pauim,)  An  expression  which  was  retained  sometimes  by 
Edgar.  And  though  these  exceedingly  pompous  phrases 
seem  to  have  become  less  frequent  in  the  next  century,  we 
find  ^  totius  Albionis  rex,"  and  equivalent  terms,  in  sdl  the 
charters  of  Edward  the  Confessor.^ 

But  looking  from  these  charters,  where  our  kings  asserted 
what  they  pleased,  to  the  actual  truth,  it  may  be  inquired 
whether  Wales  and  Scotland  were  really  subject,  and  in  what 
degree,  to  the  self-styled  Basileus  at  Winchester.  This  is  a 
debatable  land,  which,  as  merely  historical  antiquities  are  far 

>  **Ai  »  noMml  nato  it  tomj  1m  ob-  from   tb*  lattw  half  of  that    eratmy 

■iiiMl  that Mftnv  the  tenth  oentozy  the  pedantry  and    abenrditv    Btragacie    tat 

proem   k  oompMmtiTely  dmple :    that  the  mastexy.'*     Kembto'i  Introdno 

•boat  that  time  the  iollaence  of  toe  By-  to  tol.  U.  p.  z. 

atliM  eoojt  befaa  to  be  Mt }  and  that 

▼OIn  U.'^M.  10 


146  EOBLS  AND  GEOBLS.  No»  «o 

from  being  the  object  of  this  work,  I  shall  leave  to  national 
prejudice  or  philosophical  impartial! tj.  Edgar,  it  may  be 
mentioned,  in  a  celebrated  charter,  dated  in  964,  asserts  his 
conquest  of  Dublin  and  great  part  of  Ireland:  —  '^Mihi 
autem  concessit  propitia  divinitas  cum  Anglorum  imperio 
omnia  regna  insularum  oceani  cum  suis  ferocissimis  regibus 
usque  Norwegiam,  maximamque  partem  Hibemias  cum  sul^ 
nobilissimi  civitate  Dublinia  Anglorum  regno  subjugare; 
quos  etiam  omnes  meis  imperils  colla  subdere,  Dei  favente 
gratia,  coegi."  (Codex  Dlplom.  il.  404.)  No  historian 
.mentions  any  conquest  or  even  expedition  of  this  kind.  Sir 
Francis  Palgrave  (il.  258)  thinks  the  charter  "  does  not 
contain  anj  expression  which  can  give  rise  to  suspicion ;  and 
its  tenor  is  entirely  consistent  with  history:"  meaning,  I 
presume,  that  the  silence  of  history  is  no  contradiction.  Mr, 
Kemble,  however,  marks  it  with  an  asterisk.  I  will  mention 
here  that  an  excellent  sunmiary  of  Anglo-Saxon  history, 
from  the  earliest  times  to  the  Conquest,  has  been  drawn  up 
by  Sir  F.  Palgrave,  in  the  second  volume  of  the  Rise  and 
Progress  of  the  English  Commonwealth. 

Note  IIL    Page  70. 

The  proper  division  of  freemen  was  into  eorls  and  ceork : 
ge  eorle  —  ge  ceorle ;  ge  eorlische  —  ge  ceorlische ;  occur  in 
several  Anglo-Saxon  texts.  The  division  corresponds  to  the 
phrase  "  gentle  and  simple"  of  later  times.  Palgrave  (p.  11) 
agrees  with  this.  Yet  in  another  place  (vol.  11.  p.  352)  he 
says,  ^  It  certainly  designated  a  person  of  noble  race.  This 
is  the  form  in  which  it  is  employed  in  the  laws  of  EthelberL 
The  earl  and  the  churl  are  put  in  opposition  to  each  other  as 
the  two  extremes  of  society."  I  cannot  assent  to  this ;  the 
second  thoughts  of  my  learned  friend  I  like  less  than  the 
first.  It  seems  like  saying  men  and  women  are  the  extremes 
of  humanity,  or  odd  and  even  of  number.  What  was  in  the 
middle?^  Mr.  Kemble,  in  his  Glossary  to  Beowulf,  explains 
eorl  by  vir  fortis,  pugil  vir  /  and  proceeds  thus :  — "  £orl 
is  not  a  title,  as  with  us,  any  more  than  beom    •    .    •     We 

1  An  earUer  ▼riter  has  &llen  Into  the  the  lotrest  deaerfption  of  fineemen,  to 

lame  mtetake,  which  shonld  be  oorrected.  eorle,  as  the  highest  of   tlie  nobtUty'^ 

an  the  euttiToeal  meaoiaK  of  the  word  Heywood  "  On  Banks  vaong  the  An^ 

aori    migbt   eanily  deceive  the  reader.  Saxona,'*  p.  27S. 
^  Oeorla.  or  cyrlLw  men,  are  oppo»«d,  ■« 


CBAF.Tm.  EOBLS  AND  CEOHLS.  147 

may  safely  look  upon  the  origin  of  earl,  as  a  title  of  rank,  to 
be  the  same  as  that  of  the  camites,  who,  according  to  Tacitus, 
especially  attached  themselves  to  any  distinguished  chief. 
That  these  Jideles  became  under  a  warlike  prince  something 
more  important  than  the  early  constitution  of  our  tribes  con- 
templated, is  natural,  and  is  moreover  proved  by  history,  and  , 
they  laid  the  foundations  of  that  system  which  recognizes  the 
king  as  the  fountain  of  honor.  In  the  later  Anglo-Saxon 
constitution,  ealdorman  was  a  prince,  a  governor  of  a  coun- 
try or  small  kingdom,  nUhregulus;  he  was  a  constitutional 
officer ;  the  earl  was  not  an  officer  at  all,  though  aflerwarda 
the  government  of  counties  came  to  be  intrusted  to  him ;  at 
first,  if  he  had  a  beneficium  or  feud  at  all,  it  was  a  horse,  or 
rings,  or  arms ;  afterwards  lands.  This  appears  constantly 
in  Beowulf,  and  requires  no  further  remark."  A  speech 
indeed  ascribed  to  Withred  king  of  Kent,  in  696,  by  the 
Saxon  Chronicle,  would  prove  earls  to  have  been  superior  to 
aldermen  in  that  early  age.  But  the  forgery  seems  too 
gross  to  impose  on  any  one.  Ceorl,  in  Beowulf,  is  a  man, 
vir ;  it  is  sometimes  a  husband ;  a  woman  is  said  cearlictny 
I.  e.  viro  se  adjungere. 

Dr.  Lingard  has  clearly  apprehended,  and  that  long  before 
Mr.  Kemble*s  publication,  the  disiributive  character  of  the 
words  eorl  and  ceorl.  ^  Among  the  Anglo-Saxons  the  free 
population  was  divided  into  the  eorl  and  ceorl,  the  man  of 
noble  and  ignoble  descent;"  and  he  well  observes  that  <^by 
not  attending  to  this  meaning  of  the  word  eorl,  and  rendering 
it  earl,  or  rather  cames^  the  translators  of  the  Saxon  laws 
have  made  several  passages  unintelligible."  (Hist  of  Eng- 
land, i.  468.)  Mr.  Thorpe  has  not,  as  I  conceive,  explain^ 
the  word  as  accurately  or  perspicuously  as  Mr.  Kemble.  He 
says,  in  his  Glossary  to  Ancient  English  Laws,  —  '*Eorl, 
comes,  satelles  principis.  This  is  the  prose  definition  of  the 
word ;  in  Anglo-Saxon  and  Old  Saxon  poetry  it  signifies  man, 
though  generally  applied  to  one  of  consideration  on  account 
of  his  rank  or  valor.  Its  etymon  is  unknown,  one  deriving 
it  from  Old  Norse,  ar^  minister,  satelles  ;  another  from  jara^ 
pnclium.  (See  B.  Hald.  voc.  Jarl,  and  the  Gloss,  to  Soemnnd, 
by  Edda,  t  i.  p.  597.)  This  title,  which  seems  introduced  by 
the  Jutes  of  Kent,  occurs  frequently  in  the  laws  of  the  kings 
of  that  district,  the  first  mention  of  it  being  in  Ethelbert,  13. 
Its  more  fi^eneral  use  among  us  dates  firom  Uie  later  Scandina- 


148  EORLS  AND  CEOBLS.         Norn  to 

▼ian  invasions ;  and  though  originallj  only  a  title  of  honor,  it 
became  in  later  times  one  of  office,  nearly  supplanting  the  older 
and  more  Saxon  one  of  ealdorman."  The  editor  does  not  here 
particularly  advert  to  the  use  of  the  word  in  opposition  to  ceorL 
That  a  word  merely  expressing  man  may  become  appropriate 
to  men  of  dignity  appears  from  bar  and  baro  ;  and  something 
analogous  is  seen  in  the  Latin  vir.  Lappenberg  (voL  iL  p. 
13)  says, — ''The  title  of  eorl  occurs  in  early  times  among 
the  laws  of  the  Kentish  kings,  but  became  more  general  only 
in  the  Danish  times,  and  is  probably  of  old  Jutish  origin.** 
This  is  a  confusion  of  words :  in  the  laws  of  the  Kentish 
kings,  eorl  means  only  ingenum^  or,  if  we  please,  nobiUs  ;  in 
the  Danish  times  it  was  comes,  as  has  just  been  pointed  out 

Such  was  the  eorl,  and  such  the  ceorl,  of  our  forefathers 
— one  a  gentleman,  the  other  a  yeoman,  but  both  freemen. 
We  are  liable  to  be  misled  by  the  new  meaning  which  from 
the  tenth  century  was  attached  to  the  former  word,  aa  well  as 
by  the  inveterate  prejudice  that  nobility  of  birth  must  carry 
with  it  something  of  privilege  above  the  most  perfect  freedom. 
But  we  do  not  appreciate  highly  enough  the  value  of  the 
latter  in  a  semi-barbarous  society.  The  eorlcundman  wa& 
generally,  though  not  necessarily,  a  freeholder;  he  might, 
unless  restrained  by  special  tenure,  depart  from  or  alienate 
his  land ;  he  was,  if  a  freeholder,  a  judge  in  the  county  court : 
he  might  marry,  or  become  a  priest,  at  his  discretion ;  his  oath 
weighed  heavily  in  compurgation;  above  all,  his  life  was 
valued  at  a  high  composition ;  we  add,  of  course,  the  general 
respect  which  attaches  itself  to  the  birth  and  position  of  a 
gentleman.  Two  classes  indeed  there  were,  both  *'  eorlcund,** 
or  of  gentle  birth,  and  so  called  in  opposition  to  ceorls,  but  in 
a  relative  subordination.  Sir  F.  Palgrave  has  pointed  out 
the  distinction  in  a  passage  which  I  shall  extract: — 

"  The  whole  scheme  of  the  Anglo-Saxon  law  is  founded 
upon  the  presumption  that  every  freeman,  not  being  a 
'  hlaford,'  was  attached  to  a  superior,  to  whom  he  was  bound 
by  fealty,  and  from  whom  he  could  claim  a  legal  protection 
or  warranty,  when  accused  of  any  transgression  or  crime.  If, 
therefore,  the  '  eorlcund '  individual  did  not  possess  the  real 
property  which,  either  from  its  tenure  or  its  extent,  was  such 
as  to  constitute  a  lordship,  he  was  then  ranked  in  the  veiy 
numerous  class  whose  members,  in  Wessex  and  its  dependent 
states,  were  originally  known  by  the  name  of  ^  sithcundmen, 


Giup.yin.  fiOSLS  AND  CEOBLS.  *   149 

an  appelladoD  which  we  may  paraphrase  by  the  heraldic  ex* 
pression,  ^  gentle  by  birth  and  blood.'  ^  This  term  of  sithcund* 
man,  however,  was  only  in  use  in  the  earlier  periods.  After 
the  reign  of  Alfred  it  is  lost ;  and  the  most  comprehensive 
and  significant  denomination  given  to  this  class  is  that  of  ^  six- 
hcendmen,'  indicating  their  position  between  the  highest  and 
lowest  law-worthy  classes  of  society.  Other  designations  were 
derived  from  their  services  and  tenures.  Badechnights,  and 
lesser  thanes,  seem  to  be  included  in  this  rank,  and  to  which, 
in  many  instances,  the  general  name  of  sokemen  was  applied. 
But,  however  designated,  the  sithcundman,  or  sixhoendman, 
I4)pears  in  every  instance  in  the  same  relative  position  in  the 
community — classed  amongst  the  nobility,  whenever  the  eorl 
and  the  ceorl  are  placed  in  direct  opposition  to  each  other ; 
always  considered  below  the  territorial  aristocracy,  and  yet 
distinguished  from  the  villainage  by  the  important  right  of 
selecting  his  hlafbrd  at  his  will  and  pleasure.  By  common 
right  the  '  sixhoendman '  was  not  to  be  annexed  to  the  glebe. 
To  use  the  expressions  employed  by  the  compilers  of  Domes- 
day, he  could  '  eo  with  his  land  wheresoever  he  chose,'  or, 
le/ving  his  landfhe  might '  commend '  himself  to  unj  htoford 
who  would  accept  of  his  fealty."     (Vol.  i.  p.  14.)* 

It  may  be  pointed  out,  howeyer,  which  Sir  F.  P.  has  here 
forgotten  to  observe,  that  the  distinction  of  weregild  between 
the  twelfhynd  and  syxhynd  was  abolished  by  a  treaty  between 
Alfred  and  Guthrum.  (Thorpe's  Ancient  Laws,  p.  66.) 
This  indeed  affects  only  the  reciprocity  of  law  between  £ng- 
Hsh  and  Danes.  Yet  it  is  certain  that  from  that  time  we 
rarely  find  mention  of  the  intermediate  rank  between  the 
twelfhynd,  or  superior  thane,  and  the  twyhynd  or  ceorl.  The 
sithcundman,  it  would  seem,  was  from  henceforth  rated  at  the 
same  composition  as  his  lord ;  yet  there  is  one  apparent  ex- 
ception (I  have  not  observed  any  other)  in  the  laws  of  Henry 
L  It  is  said  here  (C.  76), — ^  Liberi  alii  twyhyndi,  alii  syx- 
hyndi,  alii  twelfhyndi.  Twyhyndus  homo  dicitur,  cujus  wera 
est  22  solidorum,  qui  fadunt  4  libras.  Twelf  hyndus  est  homo 
plene  nobilis,  id  est,  thainus,  cujus  wera  est  1200  solidorum^ 

1  T«  not  the  word  atthetrndman  prop-  putabto  onoagh  to  wnrant  fo  general  a 

erty  deeeriptiTe  of  his  dependence  on  a  propoeition.   The  conditions  of  tenure  In 

lori.  from  the  Saxon  Terb   tithian,  to  the  elerenth  oentnry.  whatever  ther  maj 

tillow  ?  once  have  been,  had  beoome  exoeedingly 

*  ThJa  right   of   choosing  a   lord  at  TariooA. 
pimaie,  to  little  liradal,  seems  not  indie- 


150  BORLS  Am>  CEORLS.  Vom  to 

qui  faciunt  libras  25."  It  is  remarkable  tliat,  though  the 
syxhyndman  is  named  at  fir^t,  nothing  more  is  said  of  him, 
and  the  twelf hjndman  is  defined  to  be  a  thane.  It  appears 
from  several  passages  that  the  laws  recorded  in  this  treatise 
are  chiefly  those  of  the  West  Saxons,  which  differed  in  some 
respects  from  those  of  Mercia,  Kent,  and  the  Danish  counties. 
With  regard  to  the  word  sithcuud,  it  does  occur  once  or  twice 
in  the  laws  of  Edward  the  Elder.  It  might  be  supposed  that 
the  Danes  had  retained  the  principle  of  equality  among  all 
of  gentle  birth,  common,  as  we  read  in  Grimm,  to  the  nortliem 
nations,  which  the  distinction  brought  in  by  the  kings  of  Kent 
between  two  classes  of  eorls  or  thanes  seemed  to  contravene. 
We  shall  have  occasion,  however,  to  quote  a  passage  from  the 
laws  of  Canute,  which  indicates  a  similar  distinction  of  rank 
among  the  Danes  themselves,  whatever  might  be  the  rule  as 
to  composition  for  life. 

The  influence  of  Danish  connections  produced  another 
great  change  in  the  nomenclature  of  ranks.  JSorl  lost  its 
general  sense  of  good  birth  and  became  an  official  title,  for 
the  most  part  equivalent  to  alderman,  the  governor  of  a 
shire  or  district.  It  is  used  in  this  sense,  for  the  first  time, 
in  the  laws  of  Edward  the  Elder.  Yet  it  had  not  wholly 
lost  its  primary  meaning,  since  we  find  earlish  and  ceorHsh 
opposed,  as  distributive  appellations,  in  one  of  Athelstan* 
(Id.  p.  96.)  It  is  said  in  a  sort  of  compilation,  entitled, 
"  On  Oaths,  Wercgilds,  and  Ranks,"  subjoined  to  the  laws 
of  Edward  the  Elder,  but  bearing  no  date,  that  '^  It  was 
whilom  in  the  laws  of  the  English  .  •  .  •  that,  if  a  thane 
thrived  so  that  he  became  an  eorl,  then  was  he  henceforth  of 
eorl-right  worthy."  (Ancient  La^v8,  p.  81.*)  But  this 
passage  is  wanting  in  one  manuscript,  though  not  in  the 
oldest,  and  we  find,  just  before  it,  the  old  distributive  opposi- 
tion of  eorl  and  ceorl.  It  is  certainly  a  remarkable  excep- 
tion to  the  common  use  of  the  word  eorl  in  any  age,  and  has 
led  Mr.  Thorpe  to  suppose  that  the  rank  of  earl  could  be 
obtained  by  landed  wealth.  The  learned  editor  thinks  that 
*'  these  pieces  cannot  have  had  a  later  origin  than  the  period 
in  which  they  here  stand.  Some  of  them  are  probably  much 
earlier"  (p.  76).     But  the  mention  of  the  "'  Danish  law,"  in 

1  Th«  ntnvnctm  are  to  the  folio  edition  Commission.  I  fear  this  may  cause  tome 
of  ^  Ancient  Lam  and  Institutes  of  ISng-  trouble  to  those  who  possess  the  oetaTO 
land,^  1840,  as  published  by  thvReoord    edition,  which  is  much  more  oommoa. 


CH4P.Vm.  EORLS  AND  CEORLS.  151 

p.  79,  seems  much  against  an  earlier  date ;  and  this  is  so 
mentioned  as  to  make  us  think  that  the  Danes  were  then  in 
subjection.  In  the  time  of  Edgar  eorl  had  fullj  acquired  its 
secondary  meaning;  in  its  original  sense  it  seems  to  liave 
been  replaced  by  thane.  Certain  it  is  that  we  find  thane 
opposed  to  ceorl  in  the  later  period  of  Anglo-Saxon  monu- 
ments, as  eorl  is  in  the  earlier  —  as  if  the  law  knew  no  other 
broad  line  of  demarcation  among  laymen,  saving  always  the 
official  dignities  and'  the  royal  family.^  And  the  distinction 
between  the  greater  and  the  lesser  thanes  was  not  lost, 
though  they  were  pat  on  a  level  as  to  composition.  Thus,  in 
the  Forest  Laws  of  Canute :  —  "  Sint  jam  deinceps  quattuor 
ex  liberalioribus  hominibus  qui  habent  salvas  suas  consue- 
tudines,  quos  Angli  thegnes  appellant,  in  qualibet  regni  mei 
provincia  constituti.  Sint  sub  quolibet  eorum  quattuor  ex 
mediocribus  hominibus,  quos  Angli  lesthegenes  nuncupant, 
Dani  vero  yoongmen  vocant,  locati."  (Ancient  Laws,  p. 
188.)  Meantime  the  composition  for  an  earl,  whether  we 
confine  that  word  to  office  or  suppose  that  it  extended  to  the 
wealthiest  landholders,  was  far  higher  in  the  later  period 
than  that  for  a  thane,  as  was  also  his  heriot  when  that  came 
into  use.  The  heriot  of  the  king's  thane  was  above  that  of 
what  was  called  a  medial  thane,  or  mesne  vassal,  the  sith« 
cundman,  or  syxhynder,  as  I  apprehend,  of  an  earlier  style. 
In  the  laws  of  the  continental  Saxons  we  find  the  rank 
corresponding  to  the  eorlcunde  of  our  own  country,  denomi- 
nated edelingi  or  noble,  as  opposed  to  the  frilingi  or  ordinary 
freemen.  This  appellation  was  not  lost  in  England,  and 
was  perhaps  sometimes  applied  to  nobles;  but  we  find  it 
generally  reserved  for  the  royal  family.*  Ethel  or  noble, 
sometimes  contracted,  forms,  as  is  well  known,  the  peculiar 
prefix  to  the  names  of  our  Anglo-Saxon  royal  house.  And 
the  word  cUheltng  was  used,  not  as  in  Germany  for  a  noble, 
but  a  prince ;  and  his  composition  was  not  only  above  that 
of  a  thane,  but  of  an  alderman.  He  ranked  as  an  arch- 
bbhop  in  this  respect,  the  alderman  as  a  bishop.     (Leges 

1  **That  the  thane,  at  least  originally,  being  1200  shillings.    That  this  dignitr 

ms  a  mlUtaxy  follower,  a  holder  hj  mill-  ceased  from  being  excIaxWelj  of  a  mlli- 

tarj  serrtce,  neenis  certain ;   though  in  tary  character  is  eridrat  from  numeroua 

later  times  the  rank  reems  to  have  been  passage*  In  the  laws,  where  thanes  art 

enjoyed  bj  all  great  landholders,  as  the  mentioned  in  a  judicial  capacity,  and  tm 

Mtnral  conconaltant  of  poaiesidon  to  a  cItII    officers."      Thorpe's    Glosnry  lo 

esrtaln  ralue.    By  Mercian  law,  he  ap-  Ancient  Laws.  too.  Thegea. 

yaacs  li  a  'tweUhynde '  man,  bis  *  war '  *  Thorpe's  Glonary. 


152  EOBLS  AND  C£ORLS.  Norn  t 

Ethelredi,  p.  141.)  It  is  pecessarj  to  mention  this,  lest,  in 
speaking  of  the  words  earl  and  ceorl  as  originally  distributive, 
I  should  seem  to  have  forgotten  the  distinctive  superiority  of 
the  royal  family.  But  whether  this  had  always  been  the 
case  I  am  not  prepared  to  determine.  The  aim  of  the  later 
kings,  I  mean  after  Alfred,  was  to  carry  the  monarchical 
principle  as  high  as  the  temper  of  the  nation  would  permit 
Hence  they  prefer  to  the  name  of  king,  which  was  associated 
in  all  the  Germanic  nations  with  a  limited  power,  the  more 
indefinite  appellations  of  imperator  and  basileus.  And  the 
latter  of  these  they  borrowed  from  the  Byzantine  court, 
liking  it  rather  better  than  the  other,  not  merely  out  of  the 
pompous  affectation  characteristic  of  their  style  in  that  pe- 
riod, but  because,  being  less  intelligible,  it  served  to  strike 
more  awe,  and  also  probably  because  the  title  of  western 
emperor  seemed  to  be  already  appropriated  in  Germany.  It 
was  natural  that  they  would  endeavor  to  enhance  the  supe« 
riority  of  all  athelings  above  the  surrounding  nobility. 

A  learned  German  writer,  who  distributes  freemen  into 
but  two  classes,  considers  the  ceorl  of  the  Anglo-Saxon  laws 
as  corresponding  to  the  ingenuusy  and  the  thrall  or  esne^  that 
is,  slave,  to  the  lidus  of  the  continent.  *^  AdeUngus  und 
liherj  noinUs  und  ingenuits,  edeUngus  und  JriHngtts,  jarl  und 
karly  stehen  hier  immer  als  Stand  der  freien  dem  der  unfreien, 
dem  servus,  littLs,  lazziu,  thrall  entgegen."  (Grimm,  Deutsche 
Bechts-Alterthiimer,  Gottingen,  1828,  p.  226  et  aUbi.)  Oeorl^ 
however,  he  owns  to  liave  ^  etwas  befremdendes,"  something 
peculiar.  '^  Der  Sinn  ist  bald  mas^  bald  Uber;  allein  colonus^ 
rtLsHcus,  ignobilis  ;  die  Mitte  zwischen  nohilis  und  servus,*' 

It  does  not  appear  from  the  continental  laws  that  the  litus^ 
or  Hdus,  was  strictly  a  slave,  but  rather  a  cultivator  of  the 
earth  for  a  master,  something  like  the  Roman  colonus,  though 
of  inferior  estimation.^    No  slave  had  a  composition  due  to 

1  Mr.  Sponoe  ramarkB  (Bqultable  Ja-  Bazoa  oeorls,"  quoting  T&eitns,  e.  21. 

lifldiotioQ,  p.  61) — "  In  the  condition  of  Bat  did  the  Gernuuu  at  that  time  adapt 

the  eeorlswe  ohaerve  one  of  the  many  their  Institutions  to  those  (rf  the  Romaos  * 

■triklag  examples  of  the  adaptation  of  Do  we  not  rather  see  here  an  iUostratioa 

the  German  to  the  Roman  institutions  —  of  what  appears  to  me  the  true  theory, 

the    ceorls  and   servile  eultlTators   or  that  similarity  of  laws  and  customs  may 

adtcriptitii  in  England,  as  well  as  in  the  often  be  traced  to  natural  causes  in  the 

eontlneatal  states,  exactly  corresponded  state  of  society  rather  than  to  imitation  ? 

with  the  eoloni  and  xnqutUni  of  the  Ro-  My  notion  is,  that  ttie  Germans,  through 

man  proTinoes."     Yet  he  immediately  principles  of  common  sympathy  among 

cul^ins  —  '*  The  condition  of  the  rural  the  same  tribe,  the   Bomaos,  tluougli 

■laTSfl'  of  the  (Germans  nearly  resembled  memory  of  republican  institutions  ear* 

that  of  the  Boman  coUnu  and  Anglo*  ried  on  into  the  empire,  repudiated  tlM 


CiiAP.VIIl  EOBLS  AND  CEORLS.  153 

bis  kindred  by  law ;  the  price  of  his  life  was  paid  to  bis  lord. 
Bj  some  of  the  barbaric  laws,  one  third  of  the  composition 
for  a  Hdiis  went  to  the  kindred ;  the  remainder  was  the  lord's 
share.  Thb  indicates  something  above  the  Anglo-Saxon 
theow  or  slave,  and  yet  considerably  below  the  ceorl.  The 
word,  indeed,  has  been  puzzling  to  continental  antiquaries 
and  if,  in  deference  to  the  authorities  of  Grothofied  and 
Grimm,  we  find  the  Udi  in  the  barbaric  kBtt  of  the  Roman 
empire,  we  cannot  think  these  at  least  to  have  been  slaves, 
though  they  may  have  become  colonu  But  I  am  not  quite 
convinced  of  the  identity  resting  on  a  slight  resemblance  of 
Dame. 

The  oeorl,  or  viHanuSy  as  we  find  him  afterwards  called  in 
Domesday,  was  not  generally  an  independent  freeholder; 
but  his  condition  was  not  always  alike.  He  might  acquire 
land,  and  if  he  did  this  to  the  extent  of  five  hydes,  he  be- 
came a  thane. ^  He  required  no  enfranchisement  for  this; 
his  own  industry  might  make  him  a  gentleman.  This  was 
not  the  case,  at  least  not  so  easily,  in  France.  It  appears  by 
the  will  of  Alfred,  published  in  1788,  that  certain  ceorls 
might  choose  their  own  lord ;  and  the  text  of  his  law  above 
quoted  furnishes  some  ground  for  supposing  that  he  extended 
the  privilege  to  alL  The  editor  of  his  will  says  —  "All 
ceorls  by  the  Saxon  constitution  might  choose  such  man  for 
their  landlord  as  they  would"  (p.  26).  But  even  though 
we  should  think  that  so  high  a  privilege  was  conferred  by 
Alfred  on  the  whole  dass,  it  is  almost  certain  that  they  did 
not  continue  to  enjoy  it 

ptnoBftl  wnritads  of  dtbrai,  while  fh^  tmy  re^lftr  stotate,  but  In  a  Und  of 

BMintained    ywcj   itrict   obligations    of  brief  gummary  of  law,  printed  by  Wil- 

pr«dial  tenare;  and  thus  the  eoloniot  kins  and  Thorpe.    But  i  think  that  Sir 

the  lower  empire  on  the  one  hand,  the  Francis  PalgraTe  treats  this  too  slightly 

Utti  and  ceorls  on  the  other,  were  oeither  when  he  calls  it  a  "  traditionary  notice  oi 

aiimlately  free  nor  merely  slaves.  an  unknown  writer,  who  says,  *  Whilom 

**  In  the  Lex  Frisiorum,"  aays  Sir  F.  it  was  the  Uw  of  England ;  *  leaTing  it 

PalgraTe,  in  one  of  his  excellent  oontrl"  doubtful  whether  it  were  so  still,  or  had 

lindons  to  the  Bdinbaigh  Reriew  (xxzii.  been  at  any  definite  time.*'  (Kdinb.  Rct. 

16;,  we  find  the  usual  distinctions  of  zxxiv.  268.)    Though  this  phrase  is  onoe 

nobiliSj  Hber^  and  litwt.    The  rank  of  the  used,  it  is  said  also  expressly  :  —  "  If  a 

Teotonie  Htui  has  been  much  discussed ;  ceorl  be  enriched  to  that  d^ree  that  he 

be  appears  to  liaTe  been  a  Tillein,  owing  haye  five  hydes  of  land,  and  anyone  slay 

many  serrieee  to  his  lord,  but  above  the  him,  let  him  be  paid  for  with  2000  thrym- 

class  of  slaves."    The  word  villein,  it  sas."    Thorpe,  p.  79.    This,  a  few  sen- 

ahonld    be    remembered,   bore    several  tences  before,  is  named  as  the  composi- 

leases  :  (he  UtuM   was  below  a  Saxon  tion  for  a  thane  In  the  Danelage.    And, 

eeorl,  bat  he  was  also  above  the  villein  indeed,  though  no  Idng^s  name  appears, 

of  Biaeton  and  Uttieton.  I  have  little  doubt  that  these  are  real 

I  Thia  is  noi  in  the  laws  of  Athelstan,  statutes,   collected   probably    bv  some 

Ip  which  I  iiave  rellBrred  in  p.  868,  nor  in  one  who  has  inserted  a  little  of  his  own. 


154  EORLS  Am)  CEORLS.  Kom  to 

In  the  Anglo-Saxon  charters  the  Latin  words  for  the  cal- 
tivators  are  "manentes"  or  "casati."  Their  number  is 
generally  mentioned ;  and  sometimes  it  is  the  sole  description 
of  land,  except  its  title.  The  French  word  manant  is  evi- 
dently derived  from  manentes.  There  seems  more  difficulty 
about  casati,  which  is  sometimes  used  for  persons  in  a  state 
of  servitude,  sometimes  even  for  vassals  (Du  Cange).  In 
our  charters  it  does  not  bear  the  latter  meaning.  (See  Co- 
dex Diplomaticus,  passim.  Spence  on  Equitable  Jurisdic- 
tion, p.  50.) 

But  when  we  turn  over  the  pages  of  Domesday  Book,  a 
record  of  the  state  of  Anglo-Saxon  orders  of  society  under 
Edward  the  Confessor,  we  find  another  kind  of  difficulty.  New 
denominations  spring  up,  evidently  distinguishable,  yet  such 
as  no  information  communicated  either  in  that  survey  or  in 
any  other  document  enables  us  definitively  and  certainly  to 
distinguish.  Notliing  runs  more  uniformly  through  the  legal 
documents  antecedent  to  the  Conquest  than  the  broad  di- 
vision of  freemen  into  eorls,  afterwards  called  thanes,  and 
oeorls.  In  Domesday,  which  enumerates,  as  I  need  hardly 
say,  the  inhabitants  of  every  manor,  specifying  their  ranks, 
not  only  at  the  epoch  of  the  survey  itself,  about  1085,  but  aa 
they  were  in  the  time  of  king  Edward,  we  find  abundant 
mention  of  the  thanes,  generally  indeed,  but  not  always  in 
reference  to  the  last-named  period.  But  the  word  ceorl  never 
occurs.  This  is  immaterial,  for  by  the  name  viUani  we  have 
upwai'dsof  108,000.  And  this  word  is  frequently  used  in  the 
first  Anglo-Norman  reigns  as  the  equivalent  of  ceorl.  No 
one  ought  to  doubt  that  they  expressed  the  same  persons. 
But  we  find  also  a  very  numerous  class,  above  82,000,  styled 
hordarii  ;  a  word  unknown,  I  apprehend,  to  any  other  public 
document,  certainly  not  used  in  the  laws  anterior  to  the  Con 
quest.  They  must,  however,  have  been  also  ceorls,  distin- 
guished by  some  legal  difierence,  some  peculiarity  of  service 
or  tenure,  well  understood  at  the  time.  A  small  number  are 
denominated  coscetz,  or  cosceti ;  a  word  which  does  in  fact  ap- 
pear in  one  Anglo-Saxon  document.  There  are  also  seveitd 
minor  denominations  in  Domesday,  all  of  which,  as  they  do 
not  denote  slaves,  and  certainly  not  thanes,  must  have  been 
varieties  of  the  ceorl  kind.  The  most  frequent  of  these  aji- 
pellations  is  "  cotarii." 

But,  besides  these  peasants,  there   are   two  appellations 


Ltuy.  Yni.  EORLS  AND  CEOttLS.  155 

which  it  is  less  easy,  though  it  would  be  more  important,  to 
detine.  Tliose  are  the  h'bert  homines  and  the  soctnanni.  Of 
the  former  Sir  Henry  Pallia,  to  wlio^^e  indefsitigable  diligence 
we  owe  the  only  real  analysis  of  Domesday  Book  that  has 
been  given,  has  counted  up  about  1 2,300  ;  of  the  latter,  about 
23,000  ;  forming  together  about  one  eighth  of  the  whole  pop- 
ulation, that  is,  of  male  adults.  This,  it  must  be  understood, 
was  at  the  time  of  the  survey  ;  but  there  is  no  appearance,  as 
far  as  I  have  observed,  that  any  material  difference  in  the 
proportion  of  these  respective  classes,  or  of  those  below  thorn, 
had  taken  place.  The  confiscation  fell  on  the  principal  ten- 
ants. It  is  remarkable  that  in  Norfolk  alone  we  have  4487 
liberi  homines  and  4588  socmen  —  the  whole  enumerated  pop- 
ulation being  27,087.  But  in  Suffolk,  out  of  a  population  of 
20,491,  we  find  7470  liberi  homines^  with  lOGO  socmen.  Thus 
these  two  counties  contained  almost  all  the  liberi  homines  of 
the  kingdom.  In  Lincolnshire,  on  the  other  hand,  where 
11,504  ai*e  returned  as  socmen,  the  word  liber  homo  does  not 
occur.  These  Lincolnshire  socmen  are  not,  as  usual  in  other 
counties,  mentioned  among  occupiers  of  the  demesne  lands, 
but  mingled  with  the  villeins  and  bordars;  sometimes  not 
standing  first  in  the  enumeration,  so  as  to  show  that,  in  one 
country,  they  were  both  a  more  numerous  and  more  subor- 
dinate class  than  in  the  rest  of  the  realm.^ 

The  concise  distinction  between  what  we  should  call  free- 
hold and  copyhold  is  made  by  the  forms  of  entering  each 
manor  throughout  Domesday  Book.  Liberi  homines  inva- 
riably, and  socmen  I  believe,  except  in  Lincolnshire,  occupied 
the  one,  villani  and  bordarii  the  other.  Hence  liberum 
Unementum  and  viUenagium.  What  then,  in  Anglo-Saxon 
language,  was  the  kind  of  the  two  former  classes?  They 
belong,  it  will  be  observed,  almost  wholly  to  the  Danish  coun- 
ties; not  one  of  either  denomination  appears  in  Wessex,  as 
will  be  seen  by  reference  to  Sir  H.  Ellis's  abstract.  Were 
they  thanes  or  ceorls,  or  a  class  distinct  from  both  ?  What 
was  their  were  ?  We  cannot  think  that  a  poor  cultivator  of 
a  few  acres,  though  of  his  own  land,  was  estimated  at  1200 

1  ScMoneii  an  returned  In  not  %  ftw  fi>r  the  eonntiea  in  which  we  find  socmen 

lastaooeaaiiiQb-tenaottofwholeniiiQon,  so  mueh  elevated  had  not  bvlooged  to 

bat  only  in  Cambridgeehire  and  some  the  same  Anglo-Saxon  kinfcdom  ;  somo 

.Ddghboring   eonnties.     BUls^a    Introd.  were  lkst*AngUaUf  some  Uerrian,  soma 

to  Domesday,  ii.  889.    But  this  could,  probably,  as  Uertlbrdshiie,  of  dUMr  Um 

It  seems,  have  only  originated  in  the  Kent  or  Wessex  law. 
pluaMotogy  of  diAirent  oommissionars; 


156  EORLS  AND  CEOBLS.  Notbs  to 

shillings,  like  a  royal  thane.  The  interme  liate  composition 
of  the  sixhyndman  would  be  a  convenient  guess ;  but  unfor- 
tunately this  seems  not  to  have  existed  in  the  Danelage.  We 
gain  no  great  light  from  the  laws  of  Edward  .  the  Confessor, 
which  fix  the  manbote^  or  fine,  to  the  lord  for  a  man  slain, 
regulated  according  to  the  were  due  to  his  children.  Man- 
bote, in  Danelage,  ^  de  viUano  et  de  sokemanno  12  oras ;  de 
liberis  hominibus,  tres  marcas "  (c.  12).  Thus,  in  the  Da- 
nish counties,  of  which  Lincolnshire  was  one,  the  socman 
was  estimated  like  a  viUanuSy  and  much  lower  than  a  Uber 
homo.  The  ora  is  said  to  have  been  one  eighth  of  a  mark, 
consequently  the  Uber  honuie  manbote  was  double  that  of 
the  villein  or  socman.  If  this  bore  a  fixed  ratio  to  the 
wercy  we  have  a  new  and  unheard-of  rank  who  might 
be  called  fourhyndmen.  But  such  a  distinction  is  never  met 
with.  It  would  not  in  itself  be  improbable  that  the  Uheri 
homines  who  occupied  freehold  lands,  and  owed  no  pnedial 
service,  should  be  raised  in  the  composition  for  their  lives 
above  common  ceorls.  But  in  these  inquiries  new  difficulties 
are  always  springing  forth. 

We  must  upon  the  whole,  I  conceive,  take  the  socmen  for 
twyhyndi,  for  ceorls  more  fortunate  than  the  rest,  who  had 
acquired  some  freehold  land,  or  to  whose  ancestors  possibly  it 
had  been  allotted  in  the  original  settlement  It  indicates  a 
remarkable  variety  in  the  condition  of  these  East-Anglian 
counties,  Norfolk  and  Suffolk,  and  a  more  diffused  freedom 
in  their  inhabitants.  The  population,  it  must  strike  us,  was 
greatly  higher,  relatively  to  their  size,  than  in  any  other  part 
of  England ;  and  the  multitude  of  small  manors  and  of  piuish 
churches,  which  still  continue,  bespeaks  this  progress.  The 
socmen,  as  well  as  the  Uheri  homines,  in  whose  condition 
there  may  have  been  little  difference,  except  in  Lincolnshire, 
where  we  have  seen  that,  for  whatever  cause,  those  denomi- 
nated socmen  were  little,  if  at  all,  better  than  the  viUant^ 
were  all  commended  ;  they  had  all  some  lord,  though  bearing 
to  him  a  relation  neither  of  fief  nor  of  villenage ;  they  could  in 
general,  though  with  some  exceptions,  alienate  their  lands  at 
pleasure ;  it  has  been  thought  that  they  might  pay  some  small 
rent  in  acknowledgment  of  commendation ;  but  the  one  class 
undoubtedly,  and  probably  the  other,  were  freeholders  in 
every  legal  sense  of  the  word,  holding  by  that  ancient  and 
respecable  tenure,  free  and  common  socage,  or  in  a  maa« 


Chap.  VUl  EORLS  AND  CEORLS.  157 

ner  at  least  analogous  to  it.  Though  socmen  are  chieflj 
mentioned  in  the  Danelage,  other  obscure  denominations  of 
occupiers  occur  in  Wessex  and  Mercia,  which  seem  to  have 
denoted  a  similar  class.  But  the  style  of  Domesday  is  so 
concise,  and  so  far  from  uniform,  that  we  are  very  liable  to 
be  deceived  in  our  conjectural  inferences  from  it 

It  may  be  remarked  here  that  many  of  our  modem  writers 
draw  too  unfavorable  a  picture  of  the  condition  of  the  Anglo- 
Saxon  jeorl.  Few  indeed  fall  into  the  capital  mistake  of 
Mr.  Sharon  Turner,  by  speaking  of  him  as  legally  in  servi- 
tude, like  the  villein  of  Bracton's  age.  But  we  oilen  find  a 
tendency  to  consider  him  as  in  a  very  uncomfortable  condi- 
tion, little  caring  ^  to  what  lion's  paw  be  might  fall,"  as  Bo- 
lingbroke  said  in  1745,  and  treated  by  his  lord  as  a  miserable 
dependant  Half  a  century  since,  in  the  days  of  Sir  William 
Jones,  Granville  Sharp,  and  Major  Cartwright,  the  Anglo- 
Saxon  constitution  was  built  on  universal  suffrage;  every 
man  in  his  tything  a  partaker  of  sovereignty,  and  sending 
from  his  rood  of  land  an  annual  representative  to  the  wite- 
nagemot.  Such  a  theory  could  not  stand  the  first  glimmerings 
of  historical  knowledge  in  a  mind  tolerably  sound.  But  while 
we  absolutely  deny  political  privileges  of  this  kind  to  the 
ceorl,  we  need  not  assert  his  life  to  have  been  miserable* 
He  had  very  definite  legal  rights,  and  acknowledged  capac- 
ities of  acquiring  more ;  that  he  was  sometimes  exposed  to 
oppression  is  probable  enough ;  but,  in  reality,  the  records  of 
all  kinds  that  have  descended  to  us  do  not  speak  in  such 
strong  language  of  this  as  we  may  read  in  those  of  the  conti- 
nent. We  have  no  insurrection  of  the  ceorls,  no  outrages  by 
themselves,  no  atrocious  punishment  by  their  masters,  as  in 
Normandy.  Perhaps  we  are  a  little  too  much  struck  by 
their  obligation  to  reside  on  the  lands  which  they  cultivated  y 
the  term  cucripttis  gleba  denotes,  in  our  apprehension,  an 
ignoble  servitude.  It  is,  of  course,  inconsistent  with  our  mod- 
em equaUty  of  rights ;  but  we  are  to  remember  that  he  who 
deserted  his  land,  and  consequently  his  lord^  did  so  in  order 
to  become  a  thief.  Ula/ordles  men,  of  whom  we  read  so 
much,  were  invariably  of  this  character.  What  else,  indeed^ 
could  he  become  ?  Children  have  an  idle  play,  to  count  but- 
tons, and  say,  —  Gentleman,  apothecary,  ploughman,  tliief. 
Now  this,  if  we  consider  the  second  as  representative  of  bur- 
gesses in  towns,  is  actuaUy  a  distributive  enumeration,  setting 


158  BRITISH  NATIVES  OF  ENGLAND.  Notbs  to 

aside  the  clergy  of  the  Anglo-Saxon  population ;  a  thane,  a 
burgess,  a  ceorl,  a  hlafordles  man;  that  is,  a  man  without 
land,  lord,  or  law,  who  lived  upon  what  he  could  take.  For 
the  sake  of  protecting  the  honest  ceorl  from  such  men,  as  well 
as  of  protecting  the  lord  in  what,  if  property  be  regarded  at 
all,  must  be  protected,  his  rights  to  services  legally  due,  it  was 
necessary  to  restrain  the  cultivator  from  quitting  his  land. 
Exceptions  to  this  might  occur,  as  we  find  among  the  Uberi 
homines  and  others  in  Domesday ;  but  it  was  the  general  rule. 
We  might  also  ask  whether  a  lessee  for  years  at  present  is 
not  in  one  sense  ascnptus  glehcB  f  It  is  true  that  he  may  go 
wherever  he  will,  and,  if  he  continue  to  pay  his  rent  and  per- 
form his  covenants,  no  more  can  be  said.  But  if  he  does 
not  this,  the  law  will  follow  his  person,  and,  though  it  can- 
not force  him  to  return,  will  make  it  by  no  means  his  inter- 
est to  desert  the  premises.  Such  remedies  as  the  law  now 
furnishes  were  not  in  the  power  of  the  Saxon  landlord ;  but 
all  that  any  lord  could  desire  was  to  have  the  services  per- 
formed, or  to  receive  a  compensation  for  them. 

Note  IV.    Page  71. 

Those  who  treat  this  opinion  as  chimerical,  and  seem 
*to  suppose  that  a  very  large  portion  of  the  people  of  Eng- 
land, during  the  Anglo-Saxon  period,  must  have  been  of 
British  descent,  do  not,  I  think,  sufficiently  consider  —  first, 
the  exterminating  character  of  barbarous  warfare,  not  here 
confined,  as  in  Gaul,  to  a  single  and  easy  conquest,  but  pro- 
tracted for  two  centuries  with  the  most  obstinate  resistance  of 
tlie  natives ;  secondly,  the  facilities  which  the  possessions  of 
the  Welsh  and  Cumbrian  Britons  gave  to  their  countrymen 
for  retreat;  and  thirdly,  the  natural  increase  of  population 
among  the  Saxons,  especially  when  settled  in  a  countiy 
already  reduced  into  a  state  of  culture.  Nor  can  the  succes- 
sive migrations  from  Germany  and  Norway  be  shown  to  have 
been. insignificant.  Nothing  can  be  scantier  than  our  histori- 
cal materials  for  the  fifth  and  sixth  centuries.  We  cannot 
ilso  but  observe  that  the  silence  of  the  Anglo-Saxon  records,  at  * 
A  later  time,  as  to  Welsh  inhabitants,  except  in  a  few  passages, 
affords  a  presumption  that  they  were  not  very  considerable. 
Yet  these  passages,  three  or  four  in  number  (I  do  not  include 
those  which  obviously  relate  to  the  independent  Welih,  whether 


Chaf.  Vra.       BRITISH  NATIVES  OF  ENGLAND.  169 

Cambrian  or  Cumbrian),  repel  the  hypothesis  that  thej  maj 
have  been  wholly  overlooked  and  confounded  ^vith  the  ceorla. 
Their  composition  was  less  than  that  of  the  ceorl  in  Wessex 
and  North umbria;  would  not  this  have  been  mentioned  in 
Kent  if  they  had  been  found  there  ? 

It  is  by  no  means  unimportant  in  this  question  that  we  find 
no  mention  of  bishops  or  churches  remaining  in  the  parts  of 
England  occupied  by  the  Saxons  before  their  conversion.  If 
a  large  part  of  the  population  was  Britisli,  though  in  sub- 
jection, what  religion  (fid  they  profess?  If  it  is  said  that 
the  worshippers  of  Thor  persecuted  the  Christian  priesthood, 
why  have  we  no  records  of  it  in  hagiology?  Is  it  con- 
ceivable that  all  ahke,  priests  and  people,  of  that  ancient 
church,  pusillanimously  relinquished  their  faith  ?  Sir  F.  Pal- 
grave  indeed  meets  this  difficulty  by  supposing  that  the  doc- 
trines of  Clnistianity  were  never  cordially  embraced  by  the 
British  tribes,  nor  had  become  the  national  religion.  (Engl. 
Coomion wealth,  i.  154.)  Perhaps  this  was  in  some  measure 
the  case,  though  it  must  be  received  with  much  limitation : 
for  the  retention  of  heathen  superstitions  was  not  incompati- 
ble in  that  age  with  a  coixlial  faith ;  but  it  will  not  account 
for  the  discvppearance  of  the  original  clergy  in  the  English 
kingdoms.  Their  persecution,  which  I  do  not  deny,  though 
we  have  no  evidence  of  it,  would  be  part  of  the  exterminat- 
ing system;  they  fled  before  it  into  the  safe  quarters  of 
Wales.  And  to  obtain  the  free  exercise  of  their  religion  was 
probably  an  additional  motive  with  the  nation  to  seek  liberty 
where  it  was  to  be  found. 

It  must  have  stmck  every  one  who  has  looked  into  Domes- 
day Book  that  we  find  for  the  most  part  the  same  manors, 
tlie  same  parishes,  and  known  by  the  same  names,  as  in  the 
present  age.  England  had  been  as  completely  appropriated 
by  Anglo-Saxon  thanes  as  it  was  by  the  Normans  who  sup- 
planted them.  This,  indeed,  only  carries  ni  back  to  the 
eleventh  century.  But  in  all  charters  with  which  the  excel- 
lent Codex  Diplomaticus  supplies  us  we  find  the  boundaries 
assigned ;  and  these,  if  they  do  not  establish  the  identity  of 
manors  as  well  as  Domesday  Book,  give  us  at  least  a  great 
number  of  local  names,  which  subsist^  of  course  with  the 
usual  changes  of  language,  to  this  day.  If  British  names 
of  places  occur,  it  is  rarely,  and  in  the  border  counties,  or  in 
CaniwalL     No  one  travelling  through  England  would  dis- 


160  BKITISH  NATIVES  OF  ENGLAND.  Not«»  t* 

cover  that  any  people  had  ever  inhabited  it  before  the  Saxons, 
save  so  far  as  die  mighty  Rome  has  left  traces  of  her  empire 
in  some  enduring  walls,  and  a  few  names  that  betray  the  colo- 
nial city,  the  Londinium,  the  Gamalodunum,  the  Lindum. 
And  these  names  show  that  the  Saxons  did  not  systematically 
innovate,  but  oflen  left  the  appellations  of  places  where  they 
found  them  given.  Their  own  favorite  terminations  were  ton 
and  by;  both  words  denoting  a  village  or  township,  like  ville 
in  French.*  In  each  of  these  there  gradually  rose  a  church 
and  the  ecclesiastical  division  for  the  most  part  corresponds 
to  the  civil ;  though  to  this,  as  is  well  known,  there  are  fre- 
quent exceptions.  The  central  point  of  every  township  or 
manor  was  its  lord,  the  thane  to  whose  court  the  socagers  and 
ceorls  did  service ;  we  may  believe  this  to  have  been  so  from 
the  days  of  the  Heptarchy,  as  it  was  in  those  of  the  Confessor. 
The  servt  enumerated  in  Domesday  Book  are  above  25,000, 
or  nearly  one  eleventh  part  of  the  whole.  These  seem  gen- 
erally to  have  been  domestic  slaves,  and  partly  employed  in 
tending  the  lord's  cattle  or  swine,  as  Gurth,  whoni  we  all  re- 
member, the  ^o(  it^op^Q  of  the  thane  Cedric,  in  Ivanhoe* 
They  are  never  mentioned  as  occupiers  of  land,  and  have 
nothing  to  do  with  the  villeins  of  later  times.  A  genuine 
Saxon,  as  I  have  said,  could  only  become  a  slave  by  his  own 
or  his  forefather's  default,  in  not  paying  a  weregild,  or  some 
legal  offence;  and  of  these  there  might  have  been  many* 
The  few  slaves  whose  names  Mr.  Turner  has  collected  from 
Hickes  and  other  authorities  appear  to  be  all  Anglo-Saxon, 
(Hist,  of  Anglo-Saxons,  vol.  iii.  p.  92.)  Several  others  are 
mentioned  in  charters  quoted  by  Mr.  Wright  in  the  30th  vol- 
ume of  the  ^  ArcluBologia,"  p.  220.  But  the  higher  proportion 
which  $ervi  bore  to  viUani  and  bardarii,  that  is,  free  ceorls,  in 
the  western  counties,  those  in  Gloucestershire  being  almost 
one  third,  may  naturally  induce  us  to  suspect  that  many  were 

1  The  word  tun  denotes  oiiKinAlly  any  this  word,  while  upon  the 'continent  of 

encloeare.    **  Bnt  its  more  usuMf  though  Europe  it  Is  nerer  used  Ibr  sueh  »  pur* 

rsstiicted  sense,  is  that  of  a  dwelling,  a  pose.    In  the  first  two  Tolumes  of  th« 

homestead,  the  house  and  inland ;  all,  in  Oodez  Diplomatlcns,  Dr.  Lee  computet 

short,  that  is  surrounded  and  bounded  by  the  proportion  of  local    namee    com- 

a  hedge  or  fence.    It  is  thus  capable  of  pounded  with  tun  at  one  eighth  of  Uia 

being  used  to  express  what  we  mean  by  whole  number  ,*  a  ratio  which  unavoid- 

the  word  <oim,  vis.,  a  large  collection  of  ably  leads  us  to  the  conclusion,  that  ea- 

dwellings ;  or,  like  the  Scottish  town,  closures  were  as  much  (kTored  by  the 

even  a  wUtary  Ikrm-house.    It  is  very  Anrio-Sazons  as  they  were  aToided  br 

remarkable  that  the  largest  proportion  their  German  brethren  beyond  the  sea." 

4  the  names  of  places  among  the  Anglo-  Preftce  to  Kemble's  Codex  Diplom.  toL 

axons  should  have  been  formed  with  Iii.  p.  xxxix. 


CHAp.Vin.  THE  WITENAGEMOT.  161 

of  British  ori^n ;  and  these  might  be  sometimes  m  prsedial 
servitude*  All  inference,  however,  from  the  sentence  in 
Domesday,  as  to  the  particular  state  of  the  enumerated 
inhabitants,  must  be  conjecturallj  proposed. 

Note  V.    Page  73. 

The  constituent  parts  of  the  witenagemot  cannot  be  cer 
tainlj  determined,  though  few  parts  of  the  Anglo-Saxon 
polity  are  more  important.  A  modem  writer  espouses  the 
more  popular  theory.  "  There  is  no  reason  extant  for  doubt- 
ing that  every  thane  had  the  right  of  appearing  and  voting 
in  the  witenagemot,  not  only  of  his  shire,  but  of  the  whole 
kingdom,  without  however  being  bound  to  personal  attend- 
ance, the  absent  being  considered  as  tacitly  assenting  to  the 
resolutions  of  those  present''  (Lappenberg,  Hist,  of  Eng- 
land, vol.  ii.  p.  317.)  Palgrave  on  the  other  hand,  adheres 
to  the  testimony  of  the  Historia  Eliensis,  that  forty  hydes  of 
land  were  a  necessary  qualification ;  which  of  course  would 
have  excluded  all  but  very  wealthy  thanes.  He  observes, 
and  I  believe  with  much  justice,  that  ^  proceres  terrse  "  is  a 
common  designation  of  those  who  composed  a  curia  regit 
synonymous,  as  he  conceives,  with  the  witenagemot.  Mr. 
Thorpe  ingeniously  conjectures  that  ^  inter  proceres  terrss 
enumerari"  was  to  have  the  rank  of  an  earl;  on  the  ground 
that  five  hydes  of  land  was  a  qualification  for  a  common 
thane,  whose  heriot,  by  the  laws  of  Canute,  was  to  that  of  an 
earl  as  one  to  eight.  (Ancient  Laws  of  Anglo-Saxons,  p.  81.) 
Mr.  Spence  supposes  the  rank  annexed  to  forty  hydes  to  have 
been  that  of  king's  thane.  (Inquiry  into  Laws  of  Europe, 
p.  311.)  But  they  were  too  numerous  for  so  high  a  qualifi- 
cation. 

Mr.  Thorpe  explains  the  word  witenagemot  thus :  —  ^  The 
sapreme  council  of  the  nation,  or  meeting  of  the  witan, 
This  assembly  was  summoned  by  the  king ;  and  its  members, 
besides  the  archbishop  or  archbishops,  were  the  bishops, 
aldermen,  duces,  eorls,  thanes,  abbots,  priests,  and  even 
deacons.  In  this  assembly,  laws,  both  secular  and  ecclesias- 
tical,  were  promulgated  and  repealed ;  and  charters  of  grants 
made  by  the  king  confirmed  and  ratified.  Whether  this 
assembly  met  by  royal  summons,  or  by  usage  at  stated 
periods,  is  a  point  of  doubt"     (Glossary  to  Ancient  Laws.) 

▼OI«.  II.  —  M.  11 


162  .    THE  WITENAGEMOT.  ^otbb  to 

This  is  not  remarkablj  explicit :  aldermen  are  distinguished 
from  earls,  and  diices,  an  equivocal  word,  from  both  ;^  and 
the  important  difficulty  is  slurred  over  by  a  general  descrip- 
tion, thanes.     But  what  thanes  ?  remains  to  be  inquired. 

The  charters  of  all  Anglo-Saxon  sovereigns  are  attested, 
not  only  by  bishops  and  abbots,  but  by  laymen,  described,  if 
by  any  Saxon  appellation,  as  aldermen,  or  as  thanes.  Their 
number  is  not  very  considerable ;  and  some  appear  hence  to 
have  inferred  that  only  the  superior  or  royal  thanes  were 
present  in  the  witenagemot  But,  as  the  signatures  of  tlie 
whole  body  could  not  be  required  to  attest  a  charter,  this  is 
far  too  precarious  an  inference.  Few,  however,  probably, 
are  found  to  believe  that  the  lower  thanes  flocked  to  the 
national  council,  whatever  their  rights  may  have  been ;  and 
if  we  have  no  sufficient  proof  that  any  such  privileges  had 
been  recognized  in  law  or  exercised  in  fact,  if  we  are  rather 
led  to  consider  the  sithcundman,  or  slxhynder,  as  dependent 
merely  on  his  lord,  in  something  very  analogous  to  a  feudal 
relation,  we  may  reasonably  doubt  the  strong  position  which 
Lappenberg,  though  following  so  many  of  our  own  antiqua- 
ries, has  laid  down.  Probably  the  traditions  of  the  Teutonic 
democracy  led  to  the  insertion  of  the  assent  of  the  people  in 
some  of  the  Anglo-Saxon  laws.  But  it  is  done  in  such  a 
manner  as  to  produce  a  suspicion  that  no  substantial  share  in 
legislation  had  been  reserved  to  them.  Thus,  in  the  pre- 
amble of  the  laws  of  Withrood,  about  696,  we  read.  "  The 
great  men  decreed,  with  the  suffrages  of  all,  these  dooms." 
Ina's  laws  are  enacted  ^  with  all  my  ealdormen,  and  the  most 
distinguished  witan  of  my  people.'*  Alfred  has  consulted 
his  ^*  witan."  And  this  is  the  uniform  word  in  all  later  laws 
in  Anglo-Saxon.  Canute's,  in  Latin,  run  —  '*  Cum  consilio 
primariorum  meorum."  We  have  not  a  hint  of  any  numer- 
ous or  popular  body  in  the  Anglo-Saxon  code. 

Sir  F.  Palgi-ave  (i.  637)  supposes  that  the  laws  enacted  in 
the  witenagemot  were  not  valid  till  accepted  by  the  legisla- 

1  Dur  appears  to  be  fometlmM  usod  the  Anglo-Saxons,  ma^  m   it   implies. 

In  the  flubscriptinn  of  charters  for  thane^  gi^en  orifrlnally  to  the  loader  of  an  army ; 

more  ooinmotily  for  aldemmn.    Thane  but  in  the  latter  da}**  of  the  monarchy  It 

is  Kenerally,  in  lAtin,  mmistn.    Codex  seems  to  haye  become  hereditary  in  the 

Diplomat,  passim.    Some  hare  supposed  fiimilles  of  thoM  on  whom  the  govern- 

dux  to  signify,  at  least  occasionally,  a  ment  of  the  prorinces  fbrmed  out  of  tiM 

peculiar  digtiity,  called,  iu  Anglo-Saxon,  kingdoms  of  the    Heptarchy  were  be- 

Heretoch  (heraog,    Oenn.).    This   word  stowed,  and  was  sometimes  used  synony 

frequently  occurs  in  the   later  period,  mously  with    those  of  ealdorman   and 

Mr.  Thorpe  sayR.  —  '*  This  title,  among  eorl.'*    Oloasary,  too.  Haretoga. 


CHAF.Vm.  THE  WITENAGEMOT.  163 

lures  of  the  different  kingdoms.  This  seems  a  paradox, 
though  supported  with  his  usual  learning  and  ingenuity.  He 
admits  that  Edgar  "  speaks  in  the  tone  of  prerogative,  and 
directs  his  statutes  to  be  observed  and  transmitted  by  writ  to 
the  aldermen  of  the  other  subordinate  states."  (p.  638.) 
But  I  must  say  that  this  is  not  very  exact  The  words  in 
Thorpe's  translation  are,  —  "And  let  many  writings  be 
written  concerning  these  things,  and  sent  both  to  JBlfere, 
alderman,  and  to  JBthelwine,  alderman,  and  let  them  [send] 
in  every  direction,  that  this  ordinance  be  known  to  the  poor 
and  rich."  (p.  118.)  "And  yet,"  Sir  F.  P.  proceeds,  "in 
defiance  of  this  positive  injunction,  the  laws  of  Edgar  were 
not  accepted  in  Mercia  till  the  reign  of  Canute  the  Dane." 
For  this,  however,  he  cites  no  authority,  and  I  do  not  find  it 
in  the  Anglo-Saxon  laws.  Edgar  says,  —  "  And  I  will  that 
secular  rights  stand  among  the  Danes  with  as  good  laws  as 
they  best  may  choose.  But  with  the  English,  let  that  stand 
which  I  and  my  witan  have  added  to  the  dooms  of  my  fore- 
fathers, for  the  behoof  of  all  the  people.  Let  this  ordinance, 
nevertheless,  be  common  to  all  the  people,  whether  English, 
Danes,  or  Britons,  on  every  side  of  my  dominion."  (Thorpe's 
Ancient  Laws,  p.  116.)  But  what  does  this  prove  as  to 
Mercia  f  The  inference  is,  that  Edgar,  when  he  thought 
any  particular  statute  necessary  for  the  public  weal,  enforced 
it  on  all  his  subjects,  but  did  not  generally  meddle  with  the 
Danish  usages. 

"The  laws  of  the  glorious  Athelstan  had  no  effect  in 
Kent,  the  dependent  appanage  of  his  crown,  until  sanctioned 
by  the  witan  of  the  shire."  It  is  certainly  true  that  we  find 
a  letter  addressed  to  the  king  in  the  name  of  "  episcopi  tui 
de  Kancia,  et  omnes  Cantescyre  thaini,  comites  et  villani," 
thanking  him  "  quod  nobis  de  pace  nostra  prsecipere  voluisti 
et  de  oommodo  nostro  quserere  et  consulere,  quia  magnum 
inde  nobis  est  opus  divitibus  et  pauperibus."  But  the  whole 
tenoi  of  this  letter,  which  relates  to  the  laws  enacted  at  the 
witenagemot,  or  "grand  synod"  of  Greatanlea  (supposed 
near  Andover),  though  it  expresses  approbation  of  those 
laws,  and  repeats  some  of  them  with  slight  variations,  does 
not,  in  my  judgment,  amount  to  a  distinct  enactment  of 
them  ;  and  the  final  words  are  not  very  legislative.  "  Pre- 
camur,  Domine,  misericordiam  tuam,  si  in  hoc  scripto  alteru- 
trum   est  vel  nimis   vel    minus,   ut  hoc  emendiui    jubeas 


164  THE  WITENAGEMOr.  Notw  to 

secundum  velle  tuum.  £t  nos  devote  parati  sumus  ad  omnia 
quad  nobis  praecipere  veils  qusB  unquam  aliquatenus  implere 
valeamus."  (p.  91.) 

It  is,  moreover,  an  objection  to  considering  this  as  a  formal 
enactment  by  the  witan  of  the  shire,  that  it  runs  in  the 
names  of  ^  thaini,  comites  et  villani."  Can  it  be  maintained 
that  the  ceorls  ever  formed  an  integrant  element  of  the 
legislature  in  the  kingdom  of  Kent?  It  maj  be  alleged 
that  their  name  was  inserted,  though  thej  had  not  been 
formally  consenting  parties,  as  we  find  in  some  parliamentary 
grants  of  money  much  later.  But  this  would  be  an  arbitrary 
conjecture,  and  the  terms  ^omnes  thaini,"  &c.,  are  very 
large.  By  comites  we  are  to  understand,  not  earls,  who  in 
thiit  age  would  not  have  been  spoken  of  distinctly  from 
thanes,  at  least  in  the  plural  number,  nor  postponed  to  them, 
but  thanes  of  the  second  order,  sithcundmen,  sizhyndcr. 
Alfred  translates  '^  comes "  by  '^  gesith,"  and  the  meaning 
is  nearly  the  same. 

In  the  next  year  we  have  a  very  peremptory  declaration 
of  the  exclusive  rights  of  the  king  and  his  witan.  "  Athel- 
Stan,  king,  makes  known  that  I  have  learned  that  our  '  frith ' 
(peace)  is  worse  kept  than  is  pleasing  to  me,  or  as  at  Great- 
anlea  was  ordained,  and  my  witan  say  that  I  have  too  long 
borne  with  it.  Now,  I  have  decreed,  with  the  witan  who 
were  with  me  at  Exeter  at  midwinter,  that  they  [the  frith- 
breakers]  shall  all  be  ready,  themselves  and  with  wives  and 
property,  and  with  all  things,  to  go  whither  I  will  (unless 
from  thenceforth  they  shall  desis^,  on  this  condition,  that 
they  never  come  again  to  the  country.  And  if  they  shall 
ever  again  be  found  in  the  country,  that  they  be  as  guilty  an 
he  who  may  be  taken  with  stolen  goods  (luuidhabbende)." 

Sir  Francis  Palgrave,  a  strenuous  advocate  for  the  antiq- 
uity of  municipal  privileges,  contends  for  aldermen,  elected 
by  the  people  in  boroughs,  sitting  and  assenting  among  the 
king's  witan.  (Edinb.  Rev.  xxvi.  26.)  ^  Their  seats  in  the 
witenagemot  were  connected  as  inseparably  with  their  office 
as  their  duties  in  the  folkmote.  Nor  is  there  any  reason  for 
denying  to  the  aldermen  of  the  boroughs  the  rights  and  rank 
possessed  by  the  aldermen  of  the  hundreds ;  and  they,  in  all 
cases,  were  equally  elected  by  the  commons."  The  passage 
is  worthy  of  consideration,  like  everything  which  comes  from 
this  ingenious  and  deeply  read  author.     But  we  must  be 


tRAP.ynL  THE  HUin>R£D.  165 

staggered  hj  the  absence  of  all  proof,  and  particularly  bj 
the  fact  that  we  do  not  find  aldermen  of  towns,  so  described, 
among  the  witnesses  of  any  royal  charter.  Yet  it  is  possible 
that  such  a  privilege  was  confined  to  the  superior  thanes, 
which  weakens  the  inference.  We  cannot  pretend,  T  think, 
to  deny,  in  so  obscure  an  inquiry,  that  some  eminent  inhabi- 
tants (I  would  here  avoid  the  ambiguous  word  citizens)  of 
London,  or  even  other  cities,  might  occasionally  be  present 
in  the  witenagemot.  But  were  not  these,  as  we  may  confi- 
dently assume,  of  the  rank  of  thane  ?  The  position  in  my 
text  is,  that  ceorls  or  inferior  freemen  had  no  share  in  the 
deliberations  of  that  assembly.  Nor  would  these  aldermen, 
if  actually  present,  have  been  chosen  by  the  court-leet  for 
that  special  purpose,  but  as  regular  magistrates.  ^  Of  this 
great  council,**  Sir  F.  P.  says  in  another  place  (Edinb.  Rev. 
xxxiv.  336),  **  as  constituted  anterior  to  the  Conquest,  we 
know  little  more  than  the  name."  The  greater  room,  cohse-^ 
quently,  for  hypothesis.  In  a  lat^r  work,  as  has  been  seen 
above,  Sir  F.  P.  adopts  the  notion  that  forty  hydes  of  land 
were  the  necessary  qualification  for  a  seat  in  the  witenage- 
mot This  is  almost  inevitably  inconsistent  with  the  presence, 
as  by  right,  of  aldermen  elected  by  boroughs.  We  must 
conclude,  therefore,  that  he  has  abandoned  that  hypothesis. 
Neither  of  the  two  is  satis&ctory  to  my  judgment. 

Note  VL    Page  75. 

The  hundred-court,  and  indeed  the  hundred  itself^  do  not 
appear  in  our  Anglo-Saxon  code  before  the  reign  of  Edgar, 
whose  regulations  concerning  the  former  are  rather  nilL 
But  we  should  be  too  hasty  in  concluding  that  it  was  then 
first  established.  Nothing  in  the  language  of  those  laws  im- 
plies it.  A  theory  has  been  developed  in  a  very  brilliant  and 
learned  article  of  the  Edinburgh  Review  for  1822  (xxxvi. 
287),  justly  ascribed  to  Sir  F.  Palgrave,  which  deduces  the 
hundred  from  the  harad  of  the  Scandinavian  kingdoms,  the 
integral  unit  of  the  Scandinavian  commonwealths.  *'The 
Crothic  commonwealth  is  not  an  unit  of  which  the  smaller  bod- 
ies politic  are  fractions.  They  are  the  units,  and  the  codi- 
monwealth  is  the  multiple.  Every  Grothic  monarchy  is  in 
the  nature  of  a  confederation.  It  is  composed  of  towns,  town- 
ilijp%  shires,  bailiwicks,  burghs,  earldoms,  dukedoms,  all  in  a 


166  THE  HUNDRED.  Nom  ti» 

certain  de^^e  strangers  to  each  other,  and  separated  in  juris- 
diction.    Their  magistrates,  therefore,  in  theory  at  least,  ought 

not  to  emanate  from  the  sovereign The  strength 

of  the  state  ascends  from  region  to  region.  The  represent- 
ative form  of  government,  adopted  by  no  nation  but  the  Gothic 
tribes,  and  originally  common  to  them  all,  necessarily  resulted 
from  this  federative  system,  in  which  the  sovereign  was  com- 
pelled to  treat  the  component  members  as  possessing  a  several 
authority." 

The  hundred  was  as  much,  according  to  Palgrave,  the  or- 
ganic germ  of  the  Anglo-Saxon  commonwealth,  as  the  hserad 
was  of  the  Scandinavian..  Thus,  the  leet,  held  every  month, 
and  composed  of  the  tythingmen  or  head-boroughs,  represent 
ing  the  inhabitants,  were  both  the  inquest  and  the  jury,  pos 
sessing  jurisdiction,  as  he  conceives,  in  all  cases  civil,  criminal, 
and  ecclesiastical,  though  this  was  restrained  afler  the  Con- 
quest. William  forbade  the  bishop  or  archdeacon  to  sit  there ; 
and  by  the  17th  section  of  Magna  Charta  no  pleas  of  the 
crown  could  be  held  before  the  sheriff,  the  constable,  the  coro- 
ner, or  other  bailiff  (inferior  otiicer)  of  the  crown.  This  was 
intended  to  secure  for  the  prisoner,  on  charges  of  felony,  a 
trial  before  the  king's  justices  on  their  circuits ;  and,  from 
this  time,  if  not  earlier,  the  hundred-court  was  reduced  to  in- 
significance. That,  indeed,  of  the  county,  retaining  its  civil 
jurisdiction,  as  it  still  does  in  name,  continued  longer  in  force. 
In  the  reign  of  Henry  I.,  or  when  the  customal  (as  Sir  F. 
Palgrave  denominates  what  are  usually  called  his  laws)  wap 
compiled  (which  in  fact  was  a  very  little  later),  all  of  the 
highest  rank  were  bound  to  attend  at  it  And  though  the 
extended  jurisdiction  of  the  curia  regis  soon  cramped  its 
energy,  we  are  justified  in  saying  that  the  proceedings  before 
the  justices  of  assize  were  nearly  the  same  in  effect  as  those 
before  the  shiremote.  The  same  suitors  were  called  to  attend, 
and  the  same  duties  were  performed  by  them,  though  under 
different  presidents.  The  grand  jury, '  it  may  be  remarked, 
still  corresponds,  in  a  considerable  degree,  to  the  higher  class 
of  landholders  bound  to  attendance  in  the  county-court  of  the 
Saxon  and  Norman  periods. 

I  must  request  the  reader  to  turn,  if  he  is  not  already  ac- 
quainted with  it,  to  this  original  disquisition  in  the  Edinburgh 
Review.  The  analogies  between  the  Scandinavian  and 
Anglo-Saxon  institutions  are  too  striking  to  be  disregarded^ 


jKAP.Vm.         ANGLO-SAXON  JURISDICTION.  167 

though  some  conclusions  may  have  been  drawn  from  them  to 
which  we  cannot  thoroughly  agree.  If  it  is  alleged  that  we 
do  not  find  in  the  ancient  customs  of  Germany  that  peculiar 
scale  of  society  which  ascends  from  the  hundred,  as  a  monad 
of  self-government,  to  the  collective  unity  of  a  royal  common- 
wealth, it  may  be  replied  that  we  trace  the  essential  principle 
in  the  pcLgiis,  or  gau,  of  Tacitus,  though  perhaps  there  might 
be  nothing  numerical  in  that  territorial  direction ;  that  we 
have,  in  fact,  the  centenary  distribution  under  peculiar  magis- 
trates in  the  old  continental  laws  and  other  documents ;  and 
that  a  large  proportion  of  the  inhabitants  of  England,  ulti- 
mately coalescing  with  the  rest,  so  far  at  least  as  to  acknowl- 
edge a  common  sovereign,  came  from  the  very  birthplace  of 
Scandinavian  institutions.  In  the  Danelage  we  might  expect 
more  traces  of  a  northern  policy  than  in  the  south  and  west ; 
and  perhaps  they  may  be  found.^  Yet  we  are  not  to  disre- 
gard the  effect  of  countervailing  agencies,  or  the  evidence  of 
our  own  records,  which  attest,  as  I  must  think,  a  far  greater 
unity  of  power,  and  a  more  paramount  authority  in  the  crown, 
throughout  the  period  which  we  denominate  Anglo-Saxon, 
than,  according  to  the  scheme  of  a  Scandinavian  common- 
wealth sketched  in  the  Edinburgh  Review,  could  be  attributed 
to  that  very  ancient  and  rude  state  of  society.  And  there  is 
a  question  that  might  naturally  be  asked,  how  it  happens  that, 
if  the  division  by  hundreds  and  the  court  of  the  hundred  were 
parts  so  essential  of  the  Anglo-Saxon  commonwealth  that  all 
its  unity  is  derived  from  them,  we  do  not  find  any  mention  of 
either  in  the  numerous  laws  and  other  documents  which  re- 
main before  the  reign  of  Edgar  in  the  middle  of  the  tenth 
century.  But  I  am  far  from  supposing  that  hundreds  did  not 
exist  in  a  much  earlier  period. 

Note  VH.    Page  78. 

^The  judicial  functions  of  the  Anglo-Saxon  monarclis 
wens  of  a  twofold  nature ;  the  ordinary  authority  which  the 
king  exercised,  like  the  inferior  territorial  judges,  differing, 
perhaps,  in  degree,  though  the  same  in  kind ;  and  the  pre- 
rogative supremacy,  pervading  all  the  tribunals  of  the  people, 
wid  which  was  to  be  called  into  action  when  they  were  un- 

Vide  IiesM  Ethelredi. 


168  JURISDICTION  OF  Notes  to 

able  or  unwilling  to  afford  redress.  The  jurisdiction  which 
he  exercised  over  his  own  thanes  was  similar  to  the  authority 
of  any  other  hlaford ;  it  resulted  from  the  peculiar  and  im* 
mediate  relation  of  the  vassal  to  the  superior.  Offences  com- 
mitted in  the  fjrd  or  armj  were  punished  by  the  king,  in  his 
capacity  of  military  commander  of  the  people.  He  could  con- 
demn the  criminal,  and  decree  the  forfeiture  of  his  proper* 
ty,  without  the  intervention  of  any  other  judge  or  tribunal. 
Furthermore,  the  rights  which  the  king  had  over  all  men, 
though  slightly  differing  in  "  Danelage  "  from  the  prerogative 
which  he  possessed  in  Wessex  and  Mercia,  allowed  him  to 
take  cognizance  of  almost  every  offence  accompanied  by  vio* 
lence  and  rapine  ;  and  amongst  these  "  pleas  of  the  crown  ** 
we  find  the  terms,  so  familiar  to  the  Scottish  lawyer  and  anti- 
quary, of  "  hamsoken  **  and  "  fiemen  firth,"  or  the  crimes  of 
invading  the  peaceful  dwelling,  and  harboring  the  outlawed 
fugitive.  (Rise  and  Progress  of  Engl.  Commonwealth,  voL 
L  p.  282.) 

C^dgar  was  renowned  for  his  strict  execution  of  justice. 
'*  Twice  in  every  year,  in  the  winter  and  in  the  spring,  he 
made  the  circuit  of  his  dominions,  protecting  the  lowly,  rigidly 
examining  the  judgments  of  the  powerful  in  each  province, 
and  avBnging  all  violations  of  the  law."  (Id.  p.  286.)  He 
infers  from  some  expressions  in  the  history  of  Ramsey  (Grale, 
iiL  441) — "cum  more  assueto  rex  Cnuto  regni  fines  pera- 
graret"  —  that  these  judicial  eyres  continued  to  be  held.  It 
is  not  at  all  improbable  Uiat  such  a  king  as  Canute  would  re- 
vive the  practice  of  Edgar ;  but  it  was  usual  in  all  the  Teu- 
tonic nations  for  the  king,  once  afler  his  accession,  to  make 
the  circuit  of  his  realm.  Proofs  of  this  are  given  by  Grimm, 
p.  237. 

In  this  royal  court  the  sovereign  was  at  least  assisted  by 
his  '^  witan,"  both  ecclesiastic  and  secular.  Their  consent 
was  probably  indispensable ;  but  the  monarchical  element  of 
Anglo-Saxon  polity  had  become  so  vigorous  in  the  tenth 
and  eleventh  .centuries,  that  we  can  hardly  apply  the  old  Teu- 
tonic principle  expressed  by  Grimm.  "•  All  judicial  power 
was  exercised  by  the  assembly  of  freemen,  under  the  presidence 
of  an  elective  or  hereditary  superior."  (Deutsche  Rechts- 
Alterth.  p.  749.)  This  was  the  case  in  the  county-court,  and 
p<!rhaps  had  once  been  so  in  the  court  of  the  king. 

The  analogies  of  the  Anglo-Saxon  monarchy  to  that  of 


Chat.  Vm.  ANGLO-SAXON  KINGS.  169 

France  during  the  same  period,  though  not  uniformlj  to  he 
traced,  are  very  striking.  The  regular  jurisdiction  over  the 
king's  domanial  tenants,  that  over  the  vassals  of  the  crown, 
that  which  was  exercised  on  denial  of  justice  hy  the  lower 
tribunals,  meet  us  in  the  two  first  dynasties  of  France,  and  in 
the  early  reigns  of  the  third.  But  they  were  checked  in  that 
country  by  the  feudal  privileges,  or  assumptions  of  privilege, 
which  rendered  many  kings  of  these  three  races  almost  im- 
potent to  maintain  any  authority.  Edgar  and  Canute,  or  even 
less  active  princes,  had  never  to  contend  with  the  feudal  aris* 
tocracy.  They  legislated  for  the  realm;  tliey  wielded  its 
entire  force ;  they  maintained,  not  always  thoroughly,  but  in 
right  and  endeavor  they  failed  not  to  maintain,  the  public 
peace.  The  scheme  of  the  Anglo-Saxon  commonwealth  was 
better  than  the  feudal;  it  preserved  more  of  the  Teutonic 
character,  it  gave  more  to  the  common  freeman  as  well  as  to 
the  king.  The  love  of  Utopian  romance,  and  the  bias  in 
favor  of  a  democratic  origin  for  our  constitution,  have  led  many 
to  overstate  the  freedom  of  the  Saxon  commonwealth ;  or 
rather,  perhaps,  to  look  less  for  that  freedom  where  it  is  really 
best  to  be  found,  in  the  administration  of  justice,  than  in  rep- 
resentative councils,  which  authentic  records  do  not  confirm. 
But  in  comparison  to  France  or  Italy,  perhaps  to  Germany, 
with  the  exception  of  a  few  districts  which  had  preserved 
their  original  customs,  we  may  reckon  the  Anglo-Saxon 
polity,  at  the  time  when  we  know  most  of  it,  from  Alfred  to 
the  Conquest,  rude  and  defective  as  it  must  certainly  appear 
when  tried  by  the  standard  of  modem  ages,  not  quite  unwor- 
thy of  those  affectionate  recollections  which  long  continued  to 
attach  themselves  to  its  name. 

The  most  important  part,  perhaps,  of  the  jurisdiction  exer- 
cised by  the  Anglo-Saxon  kings,  as  by  those  of  France,  was 
ob  defectum  justiltcs^  where  redress  could  not  be  obtained  from 
an  inferior  tribunal,  a  case  of  not  unusual  occurrence  in  those 
ages.  It  forms,  as  has  been  shown  in  the  second  chapter,  a 
conspicuous  feature  in  that  feudal  jurisprudence  which  we 
trace  in  the  establishments  of  St.  Louis,  and  in  Beaumanoir. 
Nothing  could  have  a  more  decided  tendency  to  create  and 
strengthen  a  spirit  of  loyalty  towards  the  crown,  a  trust  in  its 
iK)wer  and  paternal  goodness.  "  The  sources  of  ordinary  ju- 
nsdiction,"  says  Sir  F.  Palgrave,  "  however  extensive,  were 
lees  important  than  the  powers  assigned  to  the  king  as  the 


170  JURISDICTION  OF  Nona  to 

lord  and  leader  of  his  people ;  and  by  which  he  remedied  the 
defects  of  the  legislation  of  the  stiite,  speaking  when  the  law 
was  silent,  and  adding  new  vigor  to  its  administration.  It 
was  to  the  royal  authority  that  the  suitor  had  recourse  when 
he  could  not  obtain  ^  right  at  home/  though  tliis  appeal  was 
not  to  be  had  until  he  had  thrice  '  demanded  right '  in  the 
hundred.  If  the  letter  of  the  law  was  grievous  or  burden- 
some, the  alleviation  was  to  be  sought  only  from  the  king.' 
All  these  doctrines  are  to  be  discerned  in  the  practice  of  the 
subsequent  ages  ;  in  this  place  it  is  only  necessary  to  remark 
that  the  principle  of  law  which  denied  the  king's  help  in  civil 
suits,  until  an  endeavor  had  first  been  made  to  obtain  redress 
in  the  inferior  courts,  became  the  leading  allegation  in  the 
*  Writ  of  Right  Close  ; '  this  prerogative  process  being  found- 
ed upon  the  default  of  the  lord's  court,  and  issued  lest  the 
king  should  hear  any  more  complaints  of  want  of  justice. 
And  the  alleviation  of  *  the  heavy  law '  is  the  primary  source 
of  the  authority  delegated  by  the  king  to  his  council,  and  af- 
terwards assumed  by  his  chancery  and  chancellor,  and  from 
whence  our  courts  of  equity  are  derived. "  (Rise  and  Pro^ 
ress  of  English  Commonwealth,  vol.  i.  p.  203.)  I  hesitate 
about  this  last  position ;  the  ^^  heavy  law  "  seems  to  have  been 
the  legal  fine  or  penalty  for  an  offence.  (Leges  Edgar.  tM 
iuprd,) 

That  there  was  a  select  council  of  the  Anglo-Saxon  kings, 
distinct  from  the  witenagemot,  and  in  constant  attendance 
upon  them,  notwithstanding  the  opinion  of  Madox  and  of 
Allen  (Edinb.  Rev.  xxxv.  8),  appears  to  be  indubitable. 
*^  From  the  numerous  charters  granted  by  the  kings  to  the 
church,  and  to  their  vassals,  which  are  dated  from  the  dififer- 
ent  royal  vills  or  manors  wherein  they  resided  in  their  prog- 
resses through  their  dominions,  it  would  appear  that  there 
were  always  a  certain  number  of  the  optimates  in  attendance 
on  the  king,  or  ready  to  obey  his  summons,  to  act  as  his 
council  when  circumstances  required  it.  This  may  have  been 
what  afterwards  appears  as  the  select  council."  (Spence's 
Equitable  Jurisdict.  p.  72.)  The  charters  published  by  Mr. 
Kembler  in  the  Codex  Ang.-Sax.  Diplomaticus  are  attested 
by  those  whom  we  may  suppose  to  have  been  the  members 
of  this  council,  with  the  exception  of  some,  which,  by  the 

t  Sdffw  n.  2 ;  Canute  11. 16;  Sthalnd,  17. 


CHAP.Vm.  ANGLO-SAXON  KINGS.  171 

number  of  witnesses  and  the  importance  of  the  matter,  were 
probably  granted  in  the  witenagemot 

The  jurisdiction  of  the  king  is  illustrated  bj  the  laws  of 
Edgar.  ^  Now  this  is  the  secular  drdinance  which  I  will  that 
it  be  held.  This  then  is  just  what  I  will ;  that  every  man  be 
worthy  of  folk-right,  as  well  poor  as  rich ;  and  that  righteous 
dooms  be  judged  to  him  ;  and  let  there  be  that  remission  in 
the  ^  hot '  as  may  be  becoming  before  God  and  tolerable  before 
the  world.  And  let  no  man  apply  to  the  king  in  any  suit, 
unless  he  at  home  may  not  be  worthy  of  law,  or  cannot  ob> 
tain  law.  If  the  law  be  too  heavy,  let  him  seek  a  mitigation 
of  it  from  the  king ;  and  for  any  hotworthy  crime  let  no  man 
forfeit  more  than  his  '  wer.' "  (Thorpe's  Ancient  Laws,  p. 
112.)  Bot  is  explained  in  the  glossary,  ^amends,  atone- 
ment, compensation,  indemnification." 

This  law  seems  not  to  include  appeals  of  false  judgment, 
in  the  feudal  phrase.  But  they  naturally  come  within  the  spir- 
it of  the  provision  ;  and  ^  injustum  judicium  "  is  named  in  Le- 
ges Henr.  Primi,  c.  10,  among  the  exclusive  pleas  of  the 
crown.  It  does  not  seem  clear  to  me,  as  Palgrave  assumes, 
that  the  disputes  of  royal  thanes  with  each  other  came  be- 
fore the  king's  court.  Is  there  any  ground  for  supposing 
that  they  were  exempt  from  the  jurisdiction  of  the  county- 
court  ?  Doubtless,  when  powerful  men  were  at  enmity,  no 
petty  court  could  effectively  determine  their  quarrel,  or  pre- 
vent them  finom  having  recourse  to  arms;  such  suits  would 
&11  naturally  into  the  king's  own  hands.  But  the  jurisdic- 
tion might  not  be  exclusively  his ;  nor  would  it  extend,  as  of 
course,  to  every  royal  thane ;  some  of  whom  might  be  amenap 
ble,  without  much  difficulty,  to  the  local  courts.  It  is  said  in 
the  seventh  chapter  of  the  laws  of  Henry  I.,  which  are  An- 
glo-Saxon in  substance,  concerning  the  business  to  be  trans- 
acted in  the  county-court,  where  bishops,  earls,  and  others,  as 
well  as  ^  barons  and  vavassors,"  that  is,  king's  thanes  and  in- 
ferior thanes  in  the  older  language  of  the  law,  were  bound  to 
be  present,  —  '*  Agantur  itaque  prime  debita  vere  Christiani- 
tatis  jure ;  secundo  regis  placita ;  postremo  causss  singulorum 
digiiis  satisfactionibus  expleantur."  The  notion  that  the 
king's  thanes  resorted  to  his  court,  as  to  that  of  their  lord  or 
conunon  superior,  is  merely  grounded  on  feudal  principles  ; 
bat  the  great  constitutional  theory  of  jurisdiction  in  Anglo- 


172  TRIAL  BY  JURY.  Norm  to 

Saxon  times,  as  Sir  F.  Palgrave  is  well  awai^,  was  not  feu* 
dal,  but  primitive  Teutonic 

"  The  witenagemot,'*  says  Allen,  **  was  not  only  the  king's 
legislative  assembly,  but  his  supreme  court  of  judicature." 
(Edinb.  Rev.  xxxv.  9 ;  referring  for  proofs  to  Turner's  Histo- 
ry of  the  Anglo-Saxons.)  Nothing  can  be  less  questionable 
than  that  civil  as  well  as  criminal  jurisdiction  fell  within  the 
province  of  this  assembly.  But  this  does  not  prove  that  there 
was  not  also  a  less  numerous  body,  constantly  accessible,  fol- 
lowing the  king's  person,  and  though  not,  perhaps,  always 
competent  in  practice  to  determine  the  quarrels  of  the  most 
powerful,  ready  to  dispose  of  the  complaints  which  might  come 
before  it  from  the  hundred  or  county  courts  for  delay  of  jus- 
tice or  manifest  wrong.  Sir  F.  Palgrave's  arguments  for  the 
existence  of  such  a  tribunal  before  the  Conquest,  founded  on 
the  general  spirit  and  analogy  of  the  monarchy,  are  of  the 
greatest  weight  But  Mr.  Allen  had  acquired  too  much  a 
habit  of  looking  at  the  popular  side  of  the  constitution,  and, 
catching  at  every  passage  which  proved  our  early  kings  to 
have  been  limited  in  their  prerogative,  did  not  quite  attend 
enough  to  the  opposite  scale. 

Note  VIIL    Page  81. 

Though  the  following  note  relates  to  a  period  subsequent 
to  the  Conquest,  yet,  as  no  better  opportunity  will  occur  for 
following  up  the  very  interesting  inquiry  into  the  origin  and 
progress  of  trial  by  jury,  I  shall  place  here  what  appears  most 
worthy  of  the  reader^s  attention.  And,  before  we  proceed,  let 
me  observe  that  the  twelve  thanes,  mentioned  in  the  law  of 
Ethelred,  quoted  in  the  text  (p.  270),  appear  to  have  been 
clearly  analogous  to  our  grand  juries.  Their  duties  were  to 
present  offenders ;  they  corresponded  to  the  scabini  or  ^hevins 
of  the  foreign  laws.  Palgrave  has,  with  his  usual  clearness, 
distinguish^  both  compurgators,  such  as  were  previously 
mentioned  in  the  text,  and  these  thanes  firom  real  jurors. 
^  Trial  by  compurgators  offers  many  resemblances  to  a  jury ; 
for  the  dubious  suspicion  that  fell  upon  the  culprit  might 
often  be  decided  by  their  knowledge  of  his  general  conduct 
and  conversation,  or  of  some  fact  or  circumstance  which  con- 
vinced them  of    his  innocence.     The  thanes  or  ^chevina 


Chap.  VIII.  TRIAL  BY  JURY.  178 

may  equally  be  confounded  with  a  jury ;  since  the  floating, 
customary,  unwritten  law  of  the  country  was  a  fact  to  be 
ascertained  from  their  belief  and  knowledge,  and,  unlike  the 
suitors,  they  were  sworn  to  the  due  discharge  of  their  duty. 
Still,  each  class  will  be  found  to  have  some  peculiar  distinc- 
tion. Virtually  elected  by  the  community,  the  echevins  con-> 
stituted  a  permanent  magistracy,  and  their  duty  extended 
beyond  the  mere  dedsion  of  a  contested  question ;  but  the 
jurors,  when  they  were  traversers,  or  triers  of  the  issue,  were 
elected  by  the  king's  otficers,  and  impanelled  for  that  time 
and  turn.  The  juror  deposed  to  facts,  the  compurgator 
pledged  his  faith."     (EngUsh  Commonw.  i.  248). 

In  the  Anglo-Saxon  laws  we  find  no  trace  of  the  trial  of 
offences  by  the  judgment,  properly  so  called,  of  peers,  though 
civil  suits  were  determined  in  the  county  court  The  party 
accused  by  the  twelve  thanes,  on  their  presentment,  or  per- 
haps by  a  single  person,  was  to  sustain  his  oath  of  innocence 
by  that  of  compurgators  or  by  some  mode  of  ordeal.  It  has 
been  generally  doubted  whether  trial  by  combat  were  known 
before  the  Conquest ;  and  distinct  proofs  of  it  seem  to  be 
wanting.  Palgrave,  however,  thinks  it  rather  probable  that, 
in  questions  affecting  rights  in  land,  it  may  sometimes  have 
been  resorted  to  (p.  224).  But  let  us  now  come  to  trial  by 
jury,  both  in  civil  and  criminal  proceedings,  as  it  slowly  grew 
up  in  the  Norman  and  later  periods,  erasing  from  our  minds 
aU  prejudices  about  its  English  original,  except  in  the  form 
already  mentioned  of  the  grand  inquest  for  presentment  of 
offenders,  and  in  that  which  the  passage  quoted  in  the  text 
from  the  History  of  Ramsey  furnishes  —  the  reference  of  a 
suit  already  conunenced,  by  consent  of  both  parties,  to  a  select 
number  of  sworn  arbitrators.  It  is  to  be  observed  that  the 
thirty-six  thanes  were  to  be  upon  oath,  and  consequently  came 
very  near  to  a  jury. 

The  period  between  the  Conquest  and  the  reign  of  Henry 
n.  is  one  in  which  the  two  nations,  not  yet  blended  by  the 
effects  of  intermarriage,  and  retaining  the  pride  of  superiority 
on  the  one  hand,  the  jealousy  of  a  depressed  but  not  van- 
quished spirit  on  the  other,  did  not  altogether  fall  into  a 
common  law.  Thus  we  find  in  a  law  of  the  Conqueror,  that, 
while  the  Englishman  accused  of  a  crime  by  a  Norman  had 
the  choice  of  trial  by  combat  or  by  ordeal,  the  Norman  must 
meet  the  former  if  his  English  accuser  thought  fit  to  encounter 


174  TRIAL  BY  JURY.  Noths  to 

him ;  but  if  he  dared  not,  as  the  insolence  of  the  victor  seeme 
to  presume,  it  was  sufficient  for  the  foreigner,  to  purge  himself 
by  the  oaths  of  his  friends,  according  to  the  custom  of  Nor- 
mandy.    (Thorpe,  p.  210.) 

We  have  next,  in  the  Leges  Henrici  Primi,  a  treatise  com- 
piled, as  I  have  mentioned,  under  Stephen,  and  not  intended 
to  pass  for  legislative,^  numerous  statements  as  to  the  usual 
course  of  procedure,  especially  on  criminal  charges.  These 
are  very  cai-elessly  put  together,  very  concise,  very  obscure, 
and  in  several  places  very  corrupt.  It  may  be  suspected,  and 
cannot  be  disproved,  that  in  some  instances  the  compiler  has 
oopied  old  statutes  of  the  Anglo-Saxon  period,  or  recorded 
old  customs  which  had  already  become  obsolete.  But  be  this 
as  it  may,  the  Leges  Henrici  Primi  still  are  an  important 
document  for  that  obscure  century  which  followed  the  Norman 
invasion.  In  this  treatise  we  find  no  allusion  to  juries ;  the 
trial  was  either  before  the  court  of  the  hundred  or  that  of  the 
territorial  judge,  assisted  by  his  free  vassals.  But  we  do  find 
the  great  original  principle,  trial  by  peers,  and,  as  it  is  called, 
per  pats;  that  is,  in  the  presence  of  the  country,  opposed  to  a 
distant  and  unknown  jurisdiction  —  a  principle  truly  derived 
from  Saxon,  though  consonant  also  to  Norman  law,  dear  to 
both  nations,  and  guaranteed  to  both,  as  it  was  claimed  by 
both,  in  the  29th  section  of  Magna  Cliarta.  "  Unusquisque 
per  pares  suos  judicandus  est,  et  ejusdem  provinciae ;  peregrina 
autem  judicia  modis  omnibus  submovemus.*'  (Leges  H.  L 
c  31.)  It  may  be  mentioned  by  the  way  that  thes^  last  words 
are  taken  from  a  capitulary  of  Ludovicus  Pius,  and  that  the 
compiler  has  been  so  careless  as  to  leave  the  verb  in  the  first 
person.  Such  an  inaccuracy  might  mislead  a  reader  into  the 
supposition  that  he  had  before  him  a  real  law  of  Henry  I. 

It  is  obvious  that,  as  the  court  had  no  function  but  to  see 
that  the  formalities  of  the  combat,  the  ordeal,  of  the  compur- 
gation were  duly  regarded,  and  to  observe  whether  the  party 
succeeded  or  succumbed,  no  oath  from  them,  nor  any  reduction 
of  their  numbers,  could  be  required.  But  the  law  of  Nor- 
mandy had  already  established  the  inquest  by  sworn  recogni- 

>  le  may  be  here  obwrved,  that,  In  to  %he  dty  of  London.    K  iIoiQar  in- 

•11  probability,  the  title.  Ijh^im  Henrici  advertence  has  eaaMid   the  weli-known 

Primi.  has  been  oontinuod  to  the  whole  book,  commonly  ascribed  to  Thoman  i 

book  from  tlie  flritt  two  chapters,  which  Kenipi^.  to    be   called    *  De    Imication« 

do    really    contain   laws   of   Uenry  I.,  Ohrititi/  which  is  merely  the  title  of  Uia 

Hmely,  hia  geoeral  charter,  aad  that  first  chapter. 


Chaf.  Vni.  TRIAL  BY  JURY.  175 

tors,  twelve  or  twenty-four  in  number,  who  were  supposed  to 
be  well  acquainted  with  the  facts ;  and  this  in  civil  as  well  as 
criminal  proceedings.  We  have  seen  an  instance  of  it,  not 
long  before  the  Conquest,  among  ourselves,  in  the  history  of 
the  monk  of  Ramsey.  It  was  in  the  development  of  this 
amelioration  in  civil  justice  that  we  find  instances  during  this 
period  (Sir  F.  Palgrave  has  mentioned  several)  where  a  small 
number  have  been  chosen  from  the  county  court  and  sworn  to 
declare  the  truth,  when  the  judge  might  suspect  the  partiality 
or  ignorance  of  the  entire  body.  Thus  in  suits  for  the  recov- 
ery of  property  the  public  mind  was  gradually  accustomed  to 
see  the  jurisdiction  of  the  freeholders  in  their  court  transferred 
to  a  more  select  number  of  sworn  and  well-informed  men. 
But  this  was  not  yet  a  matter  of  right,  nor  even  probably  of 
very  common  usage.  It  was  in  this  state  of  things  that 
Henry  II.  brought  in  the  assize  of  novel  disseizin. 

This  gave  an  alternative  to  the  tenant  on  a  suit  for  the  re- 
covery of  land,  if  he  chose  not  to  ri.sk  the  combat,  of  putting 
himself  on  the  assize ;  that  is,  of  being  tried  by  four  knights 
summoned  by  the  sheriff  and  twelve  more  selected  by  them, 
forming  the  sixteen  sworn  recognitors,  as  they  were  called,  by 
whose  verdict  the  cause  was  determined.  '*  Est  autem  magna 
assisa,"  says  Glanvil  (lib?  ii.  c  7),  ^  regale  quoddam  bene- 
ficium,  dementia  principis  de  consilio  procerum  populis 
indultum,  quo  vitse  hominum  et  status  integritati  tam  salu- 
briter  consulitur,  ut  in  jure  quod  quis  in  libero  soli  tenemento 
possidet  retinendo  duelli  casum  declinare  possint  homines 
ambiguum.  Ac  per  hoc  contingit  insperatse  et  prematuras 
mortis  ultimum  evadere  supplicium,  vel  saltem  perennis  in- 
famise opprobrium,  illius  infesti  et  inverecundi  verbi  quod  in 
ore  victi  turpiter  sonat  consecutivum.^  £x  aequitate  autem 
maxima  prodita  est  legiUis  ista  institutio.  Jus  enim  quod  post 
multiis  et  longas  dilationes  vix  evincitur  per  duellum,  per 
bcneficium  istius  constitutionis  commodius  ct  accelei*atius  ex- 
|)editur."  The  whole  proceedings  on  an  asc^ize  of  novel 
disseizin,  which  was  always  held  in  the  king's  court  or  that  of 
die  justices  itinerant,  and  not  before  the  county  or  hundred, 
whose  jurisdiction  began  in  consequence  rapidly  to  decline, 
arc  explained  at  some  length  by  this  ancient  author,  the  chief 
justiciary  of  Henry  II. 

1  Tbte  •'nB  tin  wcxxl  craven^  or  begging  for  lilb,  which  wiu  thoaght  the  ntmoBt 


176  TRIAL  BY  JURY.  Notes  to 

Changes  not  less  important  were  effected  in  criminal  pro- 
cesses during  the  second  part  of  the  Norman  period,  which 
we  consider  as  tenninating  with  the  accession  of  Edward  L 
Henry  II.  abolished  the  ancient  privilege  of  compurgation  by 
the  oaths  of  friends,  the  manifest  fountain  of  unblushing  per- 
jury; though  it  long' afterwards  was  preserved  in  London 
and  in  boroughs  by  some  exemption  which  does  not  appear 
Tliis,  however,  left  the  favorite,  or  at  least  the  ancient  and 
English,  mode  of  defence  by  chewing  consecrated  bread 
handling  hot  iron,  and  other  tricks  called  ordeals.  But  near 
the  beginning  of  Henry  IIL*s  reign  the  church,  grown  wiser 
and  more  fond  of  her  system  of  laws,  abolished  all  kinds  of 
ordeal  in  the  fourth  Lateran  council.  The  combat  remained ; 
but  it  was  not  applicable  unless  an  injured  prosecutor  or  ap- 
pellant came  forward  to  demand  it.  In  cases  where  a  party 
was  only  charged  on  vehement  suspicion  of  a  crime,  it  was 
necessary  to  find  a  substitute  for  the  forbidden  superstition. 
He  might  be  compelled,  by  a  statute  of  Henry  II.,  to  abjure 
the  reahn.  A  writ  of  3  Henry  HI.  directs  that  those  against 
whom  the  suspicions  were  very  strong  should  be  kept  in  safe 
custody.  But  this  was  absolutely  incompatible  with  English 
liberty  and  with  Magna  Charta.  "  No  further  enactment," 
says  Sir  F.  Palgrave,  '^  was  mad^ ;  and  the  usages  whicii 
already  prevailed  led  to  a  genei'al  adoption  of  the  proceeding 
which  had  hitherto  existed  as  a  privilege  or  as  a  favor — that 
is  to  say,  of  proving  or  disproving  the  testimony  of  the  first 
set  of  inquest-men  by  the  testimony  of  a  second  array — and 
the  individual  accused  by  the  appeal,  or  presented  by  the  gen-* 
eral  opinion  of  the  hundred,  was  allowed  to  defend  himself 
by  the  particular  testimony  of  the  hundred  to  which  he  be- 
longed. For  this  purpose  another  inquest  was  impanelled, 
sometimes  composed  of  twelve  persons  named  from  the  '  visne* 
and  three  from  each  of  the  adjoining  townships ;  and  some- 
times the  very  same  jurymen  who  had  presented  the  ofience 
might,  if  the  culprit  thought  fit,  be  examined  a  second  time, 
as  the  witnesses  or  inquest  of  the  |K>ints  in  issue.  But  it  seems 
worthy  of  remark  that  *  trial  by  inquest*  in  criminal  cases 
never  seems  to  have  been  introduced  except  into  those  courts 
which  acted  by  the  king's  writ  or  commission.  The  present- 
ment or  declaration  of  those  officers  which  fell  within  the 
cognizance  of  the  hundred  jury  or  the  leet  jury,  the  repre- 
sentatives of  the  ancient  ^chevins,  was  final  and  conclusive ; 


CitAF.  WUL  TRIAL  BY  JURY.  177 

no  traverse,  or  trial  by  a  second  jury,  in  the  nature  of  a  pettj 
jury,  being  allowed."  (p.  2  69 .J 

Thus  trial  by  a  petty  jury  upon  criminal  charges  came  in ; 
it  is  of  the  reign  of  Henry  III.,  and  not  earlier.  And  it  is 
to  be  remarked,  as  a  confirmation  of  this  view,  that  no  one 
was  compellable  to  plead ;  that  is,  the  inquest  was  to  be  of 
his  own  choice.  But  if  he  declined  to  endure  it  he  was  re- 
manded to  prison,  and  treated  with  a  severity  which  the 
statute  of  Westminster  1,  in  the  third  year  of  Edward  L, 
calls  peine  forte  et  dure ;  extended  afterwards,  by  a  crue 
interpretatioo,  to  that  atrocious  punishment  on  those  who  re 
fused  to  stand  a  trial,  commonly  in  order  to  preserve  their 
lands  from  forfeiture,  which  was  not  taken  away  by  law  till 
the  last  century. 

Thus  was  trial  by  jury  established,  both  in  real  actions  or 
suits  affecting  property  in  land  and  in  criminal  procedure, 
tiie  former  preceding  by  a  little  the  latter.  But  a  new  ques- 
tion arises  as  to  the  province  of  these  early  juries ;  and  the 
view  lately  taken  is  very' different  from  that  which  has  been 
commonly  received. 

The  writer  whom  we  have  so  oflen  had  occasion  to  quote 
has  presented  trial  by  jury  in  what  may  be  called  an  altogether 
new  light ;  for  though  Reeves,  in  his  **  History  of  the  English 
Law,"  almost  tiunslating  Glanvil  and  Bracton,  could  not  help 
leading  an  attentive  reader  to  something  like  the  same  result, 
I  am  not  aware  that  anything  approaching  to  the  generality 
and  fulness  of  Sir  Francis  Palgrave*s  statements  can  be  found 
in  any  earlier  work  than  his  ovm. 

**  Trial  by  jury,  according  to  the  old  English  law,  was  a 
proceeding  essentially  different  from  the  modem  tribunal,  still 
bearing  the  same  name,  by  which  it  has  been  replaced :  and 
whatever  merits  belonged  to  the  original  mode  of  judicial 
investigation — and  they  were  great  and  unquestionable, 
though  accompanied  by  many  imperfections  —  such  benefits 
are  not  to  be  exactly  identified  with  the  advantages  now  re- 
sulting from  the  great  bulwark  of  English  liberty.  Jurymen 
in  the  present  day  are  triers  of  the  issue :  they  are  individu 
als  who  found  their  opinion  upon  the  evidence,  whether  ora 
or  written,  adduced  before  them ;  and  the  verdict  delivered 
by  them  is  their  declaration  of  the  judgment  which  they  have 
formed.  But  the  ancient  jurymen  were  not  impanelled  to 
examine  into  the  credibility  of  the  evidence :  the  question 

TOL.  II.  —  M.  12 


178  TRIAL  BY  JURY.  Notes  lo 

was  not  discussed  and  argued  before  them :  thej,  the  jury- 
men, were  the  witnesses  themselves,  and  the  verdict  was  sub- 
stantially the  examination  of  these  witnesses,  who  of  their 
own  knowledge,  and  without  the  aid  of  other  testimony, 
afforded  their  evidence  respecting  the  facts  in  question  to  the 
best  of  their  belief.  In  its  primitive  form  a  trial  by  jury 
was  therefore  only  a  trial  by  witnesses ;  and  jurymen  were 
distinguished  from  any  other  witnesses  only  by  customs  which 
imposed  upon  them  the  obligation  of  an  oath  and  regulated 
their  number,  and  which  prescribed  their  rank  and  defined 
the  territorial  qualifications  from  whence  they  obtained  their 
degree  and  influence  in  society. 

'*  I  find  it  necessary  to  introduce  this  description  of  the 
ancient  *  Trial  by  Jury,'  because,  unless  the  real  functions 
of  the  original  jurymen  be  distinctly  presented  to  the  reader, 
his  familiar  knowledge  of  the  existing  course  of  jurispru- 
dence will  lead  to  the  most  erroneous  conclusions.  Many  of 
those  who  have  descanted  upon  the  excellence  of  our  vener- 
ated national  franchise  seem  to  have  supposed  that  it  has 
descended  to  us  unchanged  from  the  days  of  Alfred ;  and  the 
patriot  who  claims  the  jury  as  the  *  judgment  by  his  peers* 
secured  by  Magna  Charta  can  never  have  suspected  how 
distinctly  the  trial  is  resolved  into  a  mere  examination  of 
witnesses."     (Palgrave,  i.  243.) 

This  theory  is  sustained  by  a  great  display  of  erudition, 
which  fully  establishes  that  tlie  jurors  had  such  a  knowledge, 
however  acquired,  of  the  facts  as  enabled  them  to  render  a 
verdict  without  hearing  any  other  testimony  in  open  court 
than  that  of  the  parties  tliemselves,  fortilied,  if  it  might  be, 
by  written  documents  adduced.  Hence  the  knights  of  the 
grand  assize  are  called  recognitors,  a  name  often  given  to 
others  sworn  on  an  inquest.  In  the  Grand  Coustumier  of 
Normandy,  from  which  our  writ  of  right  was  derived,  it  ia 
said  that  those  are  to  be  sworn  "  who  were  born  in  tlie  neigh- 
borhood, and  who  have  long  dwelt  there;  and  such  ought 
they  to  be,  that  it  may  be  believed  they  know  the  truth  of 
the  case,  and  that  they  will  speak  the  truth  when  they  shall 
be  asked."  This  was  the  rule  in  our  own  gi-and  assize.  The 
knights  who  appeared  in  it  ought  to  be  acquainted  with  the 
truth,  and  if  any  were  not  so  tliey  were  to  be  rejected  and 
others  chosen,  until  twelve  were  unanimous  witnesses.  Glan- 
vil  (lib.  ii.)  furnishes  sufiicient  proof,  if  we  may  depend  on 


OuAP.yni.  TRIAL  BY  JURY.  179 

the  language  of  the  writs  which  he  there  inserts.  It  is  to  be 
remembered  that  the  transactions  upon  which  an  assize  of 
modem  disseizin  or  writ  of  right  would  turn  might  frequently 
have  been  notorious.  In  the  eloquent  language  of  Sir  F. 
Palgrave,  "  the  forms,  the  festivities,  and  the  ceremonies  ac- 
companying the  hours  of  joy  and  the  days  of  sorrow  which 
form  the  distinguishing  epochs  in  the  brief  chronicle  of  do- 
mestic life,  impressed  them  upon  the  memory  of  the  people 
at  large.  The  parchment  might  be  recommended  by  custom, 
but  it  was  not  required  by  law;  and  they  had  no  registers  to 
consult*  no  books  to  open.  By  the  declaration  of  the  hus- 
band at  the  church  door,  the  wife  was  endowed  in  the  pres- 
ence of  the  assembled  relations,  and  before  all  the  merry 
attendants  of  the  bridal  train.  The  birth  of  the  h^ir  was 
recollected  by  the  retainers  who  had  participated  in  the  cheer 
of  the  baronial  hall;  and  the  death  of  the  ancestor  was 
proved  by  the  friends  who  had  heard  the  waitings  of  the 
widow,  or  who  had  followed  the  corpse  to  the  grave.  Hence 
trial  by  jury  was  an  appeal  to  the  knowledge  of  the  country ; 
and  the  sheriff,  in  naming  his  panel,  performed  his  duty  by 
summoning  those  individuals  from  amongst  the  inhabitants  of 
the  country  who  were  best  acquainted  with  the  points  at 
issue.  If  fi*om  peculiar  circumstances  the  witnesses  of  a 
fact  were  previously  marked  out  and  known,  then  they  were 
particularly  required  to  testify.  Thus,  when  a  charter  was 
pleaded,  the  witnesses  named  in  the  attesting  clause  of  the 
instrument  and  who  had  been  present  in  the  folkmoot,  the 
shire,  or  the  manor  court  when  the  seal  was  affixed  by  the 
donor,  were  included  in  the  panel ;  and  when  a  grant  had 
been  made  by  parol  the  witnesses  were  sought  out  by  the 
sheriff  and  returned  upon  the  jury."     (Palgrave,  p.  248.) 

Several  instances  of  recognition  —  that  is,  of  jurors  finding 
facts  on  their  own  knowledge  — :  occur  in  the  very  curious 
chronicle  of  Jocelyn  de  Brakelonde,  published  by  the  Cam- 
den Society,  long  afler  the  *'  Rise  and  Progress  of  the  Com- 
monwealth." One  is  on  a  question  whether  certain  land  was 
liberuni  feudum  ecclesise  an  non.  ^'  Cumque  inde  summonita 
fuit  recognitio  12  militum  in  curia  regis  facienda,  facta  est 
in  curia  abbatis  apud  Herlavum  per  licentiam  Ranulfi  de 
Glan villa,  et  juraverunt  recognitores  se  nunquam  scivisse 
illam  terram  fuisse  separatam  ab  ecclesia."  (p.  45.)  Another 
18  still  more  illustrative  of  the  personal  knowledge  of  the 


180  TRIAL  BY  JURY.  Notes  to 

jury  overruling  written  evidence.  A  recognition  was  taken 
as  to  the  right  of  the  abbey  over  three  manors.  ^  Carta 
nostra  lecta  in  publico  nullam  vim  habuit,  quia  tota  curia  erat 
contra  nos.  Juramento  facto,  dixerunt  miiites  se  nescire  de 
cartis  nostris,  nee  de  privatis  conventionibus;  sed  se  credere 
dixerunt,  quod  Adam  et  pater  ejus  et  avus  a  centum  annis 
retro  tenuerunt  maneria  in  feudum  firmum,  unusquisque  post 
alium,  diebus  quibus  fuerunt  vivi  et  mortui,  et  sic  disseisiati 
sumus  per  judicum  terrae.*'     (p.  91.) 

This  "judgment  of  the  land"  is,  upon  Jocelyn's  testimony, 
rather  suspicious ;  since  they  seem  to  have  set  common  fame 
against  a  written  deed.  But  we  see  by  it  that,  although 
parol  testimony  might  not  be  generally  admissible,  the  parties 
had  a  right  to  produce  documentary  evidence  in  support  of 
their  title. 

It  appears  at  first  to  be  an  obvious  difficulty  in  the  way  of 
this  general  resolution  of  jurors  into  witnesses,  or  of  wit- 
nesses into  jurors,  that  many  issues,  both  civil  and  criminal, 
required  the  production  of  rather  more  recondite  evidence 
than  common  notoriety.  The  known  events  of  family  history, 
which  a  whole  neighborhood  could  attest,  seem  not  very 
likely  to  have  created  litigation.  But  even  in  those  ages  of 
simplicity  facts  might  be  alleged,  the  very  groundwork  of  a 
claim  to  succession,  as  to  which  no  assize  of  knights  could 
speak  from  personal  knowledge.  This,  it  is  said,  was  obvi- 
ated by  swearing  the  witnesses  upon  the  panel,  so  that  those 
who  had  a  resil  knowledge  of  the  facts  in  question  might 
instruct  their  fellow-jurors.  Such,  doubtless,  was  the  usual 
course ;  but  difficulties  would  often  stand  in  the  way.  Glanvil 
meets  the  question,  Wliat  is  to  be  done  if  no  knights  are 
acquainted  with  the  matter  in  dispute  ?  by  determining  that 
persons  of  lower  degree  may  be  sworn.  But  what  if  women 
or  villeins  were  the  witnesses  ?  What,  again,  if  the  course 
of  inquiry  should  render  fresh  testimony  needful  ?  It  must 
appear,  according  to  all  our  notions  of  judicial  evidence,  that' 
these  difficulties  must  not  only  have  led  to  the  distinction  of 
jurors  from  witnesses,  but  that  no  great  length  of  time  could 
have  elapsed  before  the  necessity  of  nuiking  it  was  perceived. 
Yet  our  notions  of  judicial  evidence  are  not  very  applicable 
to  the  thirteenth  century.  The  records  preserved  give  us 
reason  to  believe  that  common  fame  had  great  influence  upon 
these  early  inquests.    In  criminal  inquiries  especially  the  pre- 


Chap.  VIH.  TRIAL  BY  JUBT.  181 

vious  fame  of  the  accused  seems  to  have  generally  determln* 
ed  the  verdict.  He  was  not  allowed  to  sustain  his  innocence 
by  witnesses  —  a  barbarous  absurdity,  as  it  seems,  which  was 
gradually  removed  by  indulgence  alone ;  but  his  witnesses 
were  not  sworn  till  the  reign  of  Mary.  If,  however,  the 
prosecutor  or  appellant,  as  he  was  formerly  styled,  was  under 
an  equal  disability,  the  inequality  will  vanish,  though  the  ab- 
surdity-will remain.  The  prisoner  had  originally  no  defence, 
unless  he  could  succeed  in  showing, the  weakness  of  the  ap- 
pellant's testimony,  but  by  submitting  to  the  ordeal  or  combat, 
or  by  the  compurgation  of  his  neighbors.  The  jurors,  when 
they  acquitted  him,  stood  exactly  in  the  light  of  these ;  it  was 
a  more  refined  and  impartial  compurgation,  resting  on  their 
confidence  in  his  former  behavior.  Thus  let  us  take  a  record 
quoted  by  Palgrave,  vol.  ii.  p.  184 : — **  JRobertus  filius  Robertx 
de  Ferrarits  appellat  Ranvlfum  de  FatteswarUie  quod  ipse 
venit  in  gardinum  suum,  in  pace  domini  Regis,  et  nequiter 
assultavit  Rogeram  hominem  suum,  et  eum  verberavit  et 
vulneravit,  ita  quod  de  viti  ejus  desperabatur ;  et  ei  robavit 
unum  pallium  et  gladium  et  arcum  et  sagittas ;  et  idem  R<h 
gerus  ofiert  hoc  probare  per  corpus  suum,  prout  curia  oon- 
sideraverit ;  et  Ranidphtts  venit  et  defendit  totum  de  verbo 
in  verbum,  et  ofiert  domino  Regi  unam  marcam  argent!  pro 
habenda  inquisitione  per  legales  milites,  utrum  culpabilis  sit 
inde,  necne ;  et  prseterea  dicit  quod  iste  Rogenu  nunquam 
ante  appellavit  eum,  et  petit  ut  hoc  ei  allocetur,  —  oblatio  re- 
cipitur.  —  Juratores  dicunt  quod  revera  contencio  fuit  inter 
gardinarium  prtedicti  RoherH,  Osmund  nomine,  et  quosdam 
garciones,  sed  Rantdfus  non  fuit  ibi,  nee  malecredunt  eum, 
de  aliqua  roberia,  vel  de  aliquo  malo,  facto  eidem." 

We  have  here  a  trial  by  jury  in  its  very  beginning,  for  the 
payment  of  one  mark  by  the  accused  in  order  to  have  an  in- 
quest instead  of  the  combat  shows  that  it  was  not  become  a 
matter  of  right  We  may  observe  that,  though  Robert  was 
the  prosecutor,  his  servant  Roger,  being  the  aggrieved  party, 
and  capable  of  becoming  a  witness,  was  put  forward  as  the 
appellant,  ready  to  prove  the  case  by  combat.  The  verdict 
seems  to  imply  that  the  jury  had  no  bad  opinion  of  Ranulf 
the  appellee. 

The^  fourteenth  book  of  Glanvil  contains  a  brief  account 
of  the  forms  of  criminal  process  in  hi<a  age ;  and  here  it  ap- 
pears that  a  woman  could  only  be  a  witness,  or  rather  an 


182  TRIAL  BY  JURY.  Notw  to 

appellant,  where  her  husband  had  been  murdered  or  her 
person  assaulted.  The  words  are  worth  considering :.  ^  Duo 
sunt  genera  homicidiorum ;  unum  est,  quod  dicitur  murdrum, 
quod  nullo  vidente,  nullo  sdente,  clam  perpetratur,  pnster 
solum  interfectorem  et  ejus  complices;  ita  quod  mox  non 
assequatur  clamor  popularis  juxta  assisam  super  hoc  proditam. 
In  hujusmodi  autem  accusatione  non  admittitur  aliquis,  nisi 
fuerit  de  consanguinitate  ipsius  defuncti.  Est  et  aliud  homi- 
cidium  quod  constat  in  general!  vocabulo,  et  dicitur  simplex 
homicidium.  In  hoc  etiam  placito  non  admittitur  aliquis 
accusator  ad  probationem,  nisi  fuerit  mortuo  consanguinitate 
conjunctus,  vel  homagio  vel  dominio,  ita  ut  de  morte  loqua" 
tur,  ut  sub  visus  sui  iestimonio.  Prseterea  sciendum  quod 
in  hoc  placito  mulier  auditur  accusans  aliquem  de  morte  viri 
sui,  SI  de  vtsu  loquatur  (I.  xiv.  c  3).  Tenetur  autem  mulier 
quaB  proponit  se  k  viro  oppressam  in  pace  domini  regis,  mox 
dum  recens  fuerit  maleficium  vicinam  villam  adire,  et  ibi 
injuriam  sibi  illatam  probis  hominibus  ostendere,  et  sanguinem, 
si  quis  fuerit  effusus,  et  vestium  scissiones;  dehinc  autem 
apud  praepositum  hundredi  idem  facit  Postea  quoque  in 
pleno'comitatu  id  publice  proponat  Auditur  itaque  mulier 
in  tali  casu  aliquem  accusans,  sicut  et  de  alia  qualibet  injurii 
corpori  suo  illatam  solet  audiri."    (c  6.) 

Thus  it  appears  that  on  charges  of  secret  murder  the 
kindred  of  the  deceased,  but  no  others,  might  be  heard  in 
court  as  witneSvses  to  common  suspicion,  since  they  could  be 
no  more.  I  add  the  epithet  secret ;  but  it  was  at  that  time 
implied  in  the  word  murdrtitn.  But  in  every  case  of  open 
homicide  the  appellant,  be  it  the  wife  or  one  of  his  kindred, 
his  lord  or  vassal,  must  have  been  actually  present  Otlier 
witnesses  probably,  if  such  there  were,  would  be  placed  on 
the  panel.  The  woman  was  only  a  prosecutrix;  and,  in  the 
other  sex,  there  is  no  doubt  that  the  prosecutor's  testimony 
was  heard. 

In  claims  of  debt  it  was  in  the  power  of  the  defendant  to 
wage  his  law ;  that  is,  to  deny  on  oath  the  justice  of  the  de- 
mand. This  he  was  to  sustain  by  the  oaths  of  twelve  com* 
purgators,  who  declared  their  belief  that  he  swore  the  truth ; 
and  if  he  declined  to  do  this,  it  seems  that  he  had  no  defence* 
But  in  the  writ  of  right,  or  other  process  affecting  real  estate, 
the  wager  of  law  was  never  allowed ;  and  even  in  actions  of 
debt  the  defendant  was  not  put  to  thia  issue  until  witnesses 


Chap.  Yin.  TRIAL  BY  JURY  183 

for  the  plaintifr  had  been  produced,  ^  sine  testibus  fidelibus  ad 
hoc  inductis."  This,  however,  was  not  in  presence  of  a  jury, 
but  of  the  bailiff  or  judge  (Magna  Charta,  c.  28),  and  there- 
fore does  not  immediately  bear  on  the  present  subject 

In  litigation  before  the  king^s  justices,  in  the  curia 
regis,  it  must  have  been  always  necessary  to  produce  wit- 
nesses; though,  if  their  testimony  were  disputed,  it  was 
necessary  to  recur  to  a  jury  in  the  county,  unless  the  cause 
were  of  a  nature  to  be  determined  by  duel.  A  passage  in 
Glanvil  will  illustrate  this.  A  claim  of  villenage,  when  lib- 
erty was  pleaded,  could  not  be  heard  in  the  county  court,  but 
before  the  king's  justices  in  his  court.  "Utroque  autem 
pnesente.in  curia  hoc  modo  dlrationabitur  libertas  in  curii, 
siquidem  producit  is  qui  libertatem  petit,  plures  de  proximis 
et  consanguineis  de  eodem  stipite  unde  ipse  exierit  exeuntes, 
per  quorum  libertates,  si  fuerint  in  curia  recognibe  et  probatad, 
liberabitur  k  jugo  servitutis  is  qui  ad  libertatem  proclamatur 
Si  vero  contra  dicatur  status  .libertatiseorundem  productorum 
yel  de  eodem  dubitatur,  ad  vicinetum  erit  recurrendum ;  ita 
quod  per  ejus  veredictum  sciatur  utrum  illi  liberi  homines  an 
non,  et  secundum  dictum  vicineti  judicabitur."  (1.  ii.  c  4.) 
The  plea  of  villenage  was  never  tried  by  combat. 

It  is  the  opinion  of  Lord  Coke  that  a  single  accuser  was 
not  sufficient  at  common  law  to  convict  any  one  of  high  trea- 
son ;  in  default  of  a  second  witness  ^  it  shall  be  tried  before 
the  constable  or  marshal  by  combat,  as  by  many  records  ap- 
peareth."  (3  Inst  26.)  But  however  this  might  be,  it  is 
evident  that  as  soon  as  the  trial  of  peers  of  the  realm  for 
treason  or  felony  in  the  court  of  the  high  steward  became 
established,  the  practice  of  swearing  witnesses  on  the  panel 
must  have  been  relinquished  in  such  cases.  "  That  two  wit- 
nesses be  required  appeareth  by  our  books,  and  I  remember 
no  authority  in  our  books  to  the  contrary.  And  this  seemeth 
to  be  the  more  clear  in  the  trial  by  the  peers  or  nobles  of  the 
realm  because  they  come  not  de  aliquo  vicineto,  whereby 
they  might  take  notice  of  the  fact  in  respect  of  vicinity,  as 
other  jurors  may  do."  (Ibid.)  But  the  court  of  the  high 
steward  seems  to  be  no  older  than  the  reign  of  Henry  IV., 
at  which  time  the  examination  of  witnesses  before  common 
juries  was  nearly,  or  completely,  established  in  its  modern 
form ;  and  the  only  earlier  case  we  have,  if  I  remember  right, 
of  the  conviction  of  a  peer  in  parliament  —  that  of  Mortimer 


184  TRIAL  BY  JURY.  Notm  iq 

in  the  4th  of  Edward  III.  —  was  expressly  grounded  on  iho 
notoriousness  of  the  facts  (Rot.  l^arL  ii.  53).  It  does  not 
appear,  therefore,  indisputable  by  precedent  that  any  wit- 
nesses were  heard,  save  the  appellant,  on  trial  of  peers  of  the 
realm  in  the  twelfth  or  thirteenth  century,  though  it  is  by  no 
means  improbable  that  such  would  have  been  the  practice. 

Notwithstanding  such  exceptions,  however,  sufficient  proofs 
remain  that  the  jury  themselves,  especially  in  civil  cases,  long 
retained  their  character  of  witnesses  to  the  fact.  If  the  re- 
cognitors, whose  name  bespeaks  their  office,  were  not  all  so 
well  acquainted  with  the  matters  in  controversy  as  to  believe 
themselves  competent  to  render  a  verdict,  it  was  the  practice 
to  affbrce  the  jury,  as  it  was  called,  by  rejecting  these  and 
filling  their  places  with  more  sufficient  witnesses,  until  twelve 
were  found  who  agreed  in  the  same  verdict*  (Glanvil,  L  ii. 
c.  17.)  Not  that  unanimity  was  demanded,  for  this  did  not 
become  the  rule  till  about  the  reign  of  Edward  III.;  but 
twelve,  as  now  on  a  grand  jury,  must  concur.'  And  though 
this  profusion  of  witnesses  seems  strange  to  us,  yet  what  they 
attested  (in  the  age  at  least  of  Glanvil  and  for  some  time  after- 
wards) was  not,  as  at  present,  the  report  of  their  senses  to 
the  fact  in  issue,  but  all  which  they  had  heard  and  believed 
to  be  true;  above  all,  their  judgment  as  to  the  respective 
credibility  of  the  demandant  and  tenant,  heard  in  that  age 
personally,  or  the  appellant  and  appellee  in  a  prosecution. 

Bracton  speaks  of  affi:>rcing  a  panel  by  the  addition  of 
better-informed  jurors  to  the  rest,  as  fit  for  the  court  to  order, 
^  de  consilio  curiae  afibrtietur  assisa  ita  quod  apponantur  alii 
juxta  numerum  majoris  partis  quse  dissenserit,  vel  saltern 
quatuor  vel  sex,  et  adjungantur  aliis.**  The  method  of  re- 
jection used  in  Glanvil's  time  seems  to  have  been  altered. 
But  in  the  time  of  Britton,  soon  afterwards,  this  afforcement 
it  appears  could  only  be  made  with  the  consent  of  the  par- 
ties ;  though  if,  as  his  language  seems  to  imply,  the  verdict 
was  to  go  against  the  party  refusing  to  have  the  jury 
afibrced,  no  one  would  be  likely  to  do  so.     Perhaps  he  means 


1  By  the  Jary,  the  reader  ^11  remem-  Year-Books,  digeited  into  Bmtw'i  Hto- 

ber  that,  in  OlanTiPa  time,  is  meant  the  tory  of  the  Law. 

recognitors,  on  an  assise  of  novel  dis-  >  In  20  E.  III.  Chief  Jnstioe  Thorpe  ■ 

seizin,  or  mort  d'ancestor.     For  these  said  to  have  been  reproTod  lor  fcakioy 

real  actions,  noir  abolished,  he  may  con-  a  verdict  flrom  eleven  Joron.    Lav  R» 

suit  a  good  chapter  on  them  in  Black-  view,  No.  iv.  p.  888. 
•tone,  nnlees  he  prefer  Bracton  and  the 


Chaf.  Vni.  TRIAL  BY  JURY.  185 

that  this  refasal  would  create  a  prejudice  in  the  minds  of  the 
jury  ahnost  certain  to  produce  such  a  veixlict 

"It  may  be  doubtful,"  says  Mr.  Starkie,  "whether  the 
doctrine  of  affbrcement  was  applied  to  criminal  cases.  The 
account  given  by  Bracton  as  to  the  trial  by  the  country  on  a 
criminal  charge  is  very  obscure.  It  was  to  be  by  twelve 
jurors,  consisting  of  milites  or  liberi  et  legales  homines  of 
the  hundred  and  four  villatie."^  But  it  is  conjectured  that 
the  text  is  somewhat  corrupt,  and  that  four  inhabitants  of  the 
vill  were  to  be  added  to  the  twelve  jurors.  In  some  -^ximi- 
nal  cases  it  appears  from  Bracton  that  trial  by  combat  co*ild 
not  be  dispensed  with,  because  the  nature  of  the  charge  did 
Dot  admit  of  positive  witnesses.  "  Oportet  quod  defendat  se 
per  corpus  3uum  quia  patria  nihil  scire  potest  de  facto,  nisi 
per  pnesumtionem  et  per  auditum,  vel  per  mandatum  [?] 
quod  quidem  non  sufficit  ad  probationem  pro  appellando  nee 
pro  appellato  ad  liberationem."  This  indicates,  on  the  one 
hand,  an  advance  in  the  appreciation  of  evidence  since  the 
twelfth  century ;  common  fame  and  mere  hearsay  were  not 
held  sufficient  to  support  a  charge.  But  on  the  other  hand, 
instead  of  presuming  the  innocence  of  a  party  against  whom 
no  positive  testimony  could  be  alleged,  he  was  preposterously 
called  upon  to  prove  it  by  combat,  if  the  appellant  was  con- 
vinced enough  of  his  guilt  to  demand  that  precarious  decis- 
ion. It  appears  clear  from  some  passages  in  Bracton  that 
in  criminal  cases  other  witnesses  might  occasionally  be  heard 
than  the  parties  themselves.  Thus,  if  a  man  were  charged 
with  stealing  a  horse,  he  says  that  either  the  prosecutor  or 
the  accused  might  show  that  it  was  his  own,  bred  in  his 
iBtable,  known  by  certain  marks,  which  could  hardly  be  but 
by  calling  witnesses.  It  is  not  improbable  that  witnesses 
were  heard  distinct  from  the  jury  in  criminal  cases  before 
the  separation  had  been  adopted  in  real  actions. 

At  a  later  time  witnesses  are  directed  to  be  joined  to  the 
inquest,  but  no  longer  as  parts  of  it  "  We  find  in  the  23i*d 
of  Edward  III."  (I  quote  at  present  the  words  of  Mr. 
Spence,  Equitable  Jurisdiction,  p.  129)  "  the  witnesses,  in- 
stead of  being  summoned  as  constituent  members,  were 
adjomed  to  the  recognitors  or  jury  in  assizes  to  afibrd  to  the 


1  The  bJstory  of  trial  b;  Jnrjr  has  b«6Q    which,  though  anonymona,  I  Tentnre  ta 

paper. 


f«7  ablj  elaeidatod  by  ur.  Starkie,  in    quote  by  his  name.    I  have  been  aaalBted 
Hm  imrth  number  of  thi>  Law  Beviow,    In  the  text  by  this ; 


186  TRIAL  BY  JURY.  Notes  tw 

jury  the  benefit  of  their  testimony,  but  without  having  any 
voice  in  the  verdict.  This  is  the  first  indication  we  have  of 
the  jury  deciding  on  evidence  formally  produced,  and  it  is 
the  connecting  link  between  the  ancient  and  modem  jury."  - 
But  it  will  be  remembered  —  what  Mr.  Spence  certainly  did 
not  mean  to  doubt  —  that  the  evidence  of  the  demandant  in 
an  assize  or  writ  of  right,  and  of  the  prosecutor  or  appellant 
in  a  criminal  case,  had  always  been  given  in  open  court ;  and 
the  tenant  or  appellee  had  the  same  right,  but  the  latter 
probably  was  not  sworn.  Nor  is  it  clear  that  the  court 
would  refuse  other  testimony  if  it  were  offered  during  the 
course  of  a  trial.  The  sentence  just  quoted,  however,  ap- 
pears to  be  substantially  true,  except  that  the  words  "  for- 
mally produced"  imply  something  more  like  the  modem 
practice  than  the  facts  mentioned  warrant.  The  evidence  in 
the  case  reported  in  23  Ass.  11  was  produced  to  none  but 
the  jury. 

Mr.  Starkie  has  justly  observed  that  "  the  transition  was 
now  almost  imperceptible  to  the  complete  separation  of  the 
witnesses  from  the  inquest  And  this  step  was  taken  at 
some  time  before  the  11th  of  Henry  IV.  ;*  namely,  that  all 
the  witnesses  were  to  give  their  testimony  at  the  bar  of  the 
court,  so  that  the  judges  might  exclude  those  incompetent  by 
law,  and  direct  the  jury  as  to  the  weight  due  to  the  resL** 
"  This  effected  a  change  in  the  modes  of  trying  civil  cases ; 
the  importance  of  which  can  hardly  be  too  highly  estimated. 
Jurors,  from  being,  as  it  were,  mere  recipients  and  deposita- 
ries of  knowledge,  exercised  the  more  intellectual  faculty  of 
forming  conclusions  from  testimony — a  duty  not  only  of  high 
importance  with  a  view  to  truth  and  justice,  but  also  collat- 
erally in  encouraging  habits  of  reflection  and  reasoning 
(aided  by  the  instructions  of  the  judges),  which  must  have 
had  a  great  and  most  beneficial  effect  in  promoting  civiliza- 

1  The  reference  w  to  the  Tear-Book,  23  In  the  next  year  (12  H.  TV.  7)  wltnetmet 

A«R.  11.    It  vrtM  adjud^t^d  that  the  wit-  are  directed  to  be  joined  to  the  inqueet 

oe»'*e»  rould  not  be  rhallcngcd  like  jurors ;  (as  in  28  Ass.  11) :  and  one  of  the  judges 

"  car  ils  dciivent  ricn  temoi^er  fora  ceo  is  reported  to  hare  said  this  had  often 

quMls  Terrontet  oiront.     Kt  l'assi.<w  ftit  been  done;  yet  we  might  infer  that  the 

pris,  et  los  temoins  ajoints  aenx."    This  practice  was   not  so  general  as  to   past 

has  no  appearance  of  the  introduction  of  without  comment.    This  looks  as  If  the 

a  new  custom.     Above  fifty  years  had  separation  of  the  witnesses,  by  their  ex- 

ela|>8ed  since  Bracton  wrote,  so  tliat  the  ainination  in  open  court,  were  not  qnit« 

change  might  have  eanily  crept  in.  of  so  early  a  date  as  Mr.  Starkie  and  Mr. 

«  The   Year-Book   of    11   H.   TV.,  to  Spence    suppose.      But.    perhaps,   both 

which  a  reforeDcc  tt«<>ms  here  to  be  made,  modes  of  procedure  migat  be  conouneol 

aot  been  consulted  by  me.     But  finr  a  certain  tima. 


Chap.VHL  trial  BT  JURY.  187 

don.  The  exercise  of  the  control  last  adverted  to  on  the 
part  of  the  judges  was  the  foundation  of  that  system  of 
rules  in  regard  to  evidence  which  has  since  constituted  so 
large  and  important  a  branch  of  the  law  of  England." 
(Spence,  p.  129.) 

The  obscurity  that  hangs  over  the  origin  of  our  modem 
course  of  procedure  before  juries  is  far  from  being  wholly 
removed.  We  are  reduced  to  conjectural  inferences  from 
brief  passages  in  early  law-books,  written  for  contemporaries, 
but  which  leave  a  considerable  uncertainty,  as  the  readers 
of  this  note  will  be  too  apt  to  discover.  If  we  say  that  our 
actual  trial  by  jury  was  established  not  far  from  the  begin* 
ning  of  the  fifleendi  century,  we  shall  perhaps  approach  as 
nearly  as  the  diligence  of  late  inquirers  has  enabled  us  to 
proceed.  But  in  the  time  of  Fortescue,  whose  treatise  De 
liSiudibus  Legum  Anglise  was  written  soon  after  1450,  we 
have  the  clearest  proof  that  the  mode  of  procedure  before 
juries  by  vivd  voce  evidence  was  the  same  as  at  present.  It 
may  be  presimied  that  the  function  of  the  advocate  and  of 
the  judge  to  examine  witnesses,  and  to  comment  on  their 
testimony,  had  begun  at  this  time.  The  passage  in  Fortescue 
is  so  full  and  perspicuous  that  it  deserves  to  be  extracted. 

^  Twelve  good  and  true  men  being  sworn  as  in  the  manner 
above  related,  legally  qualified  —  that  is,  having,  over  and 
besides  their  movable  possessions,  in  land  sufficient  (as  was 
said)  wherewith  to  maintain  their  rank  and  station  —  neither 
suspected  by  nor  at  variance  with  either  of  the  parties ;  all 
of  the  neighborhood ;  there  shall  be  read  to  them  in  English 
by  the  court  the  record  and  nature  of  the  plea  at  length 
which  is  depending  between  the  parties ;  and  the  issue  there- 
apon  shall  be  plainly  laid  before  them,  concerning  the  truth 
of  which  those  who  are  so  sworn  are  to  certify  the  court : 
which  done,  each  of  the  parties,  by  themselves  or  their 
counsel,  in  presence  of  the  court,  shall  declare  and  lay  open 
to  the  jury  all  and  singular  the  matters  and  evidences 
whereby  they  think  they  may  be  able  to  inform  the  court 
concerning  the  truth  of  the  point  in  question ;  after  which 
each  of  the  parties  has  a  liberty  to  produce  before  the  court 
all  such  witnesses  as  they  please,  or  can  get  to  appear  on 
their  behalf,  who,  being  chaiged  upon  their  oaths,  shall  give 
in  evidence  all  that  they  know  touching  the  truth  of  the  fact 
concerning  which  the  parties  are  at  issue.     And  if  necessity 


188  TRIAL  BY  JURY.  Norm  to 

60  require,  the  witnesses  may  be  heard  and  examined  apart, 
till  they  shall  have  deposed  all  that  thej  have  to  give  in 
evidence,  so  that  what  the  one  has  declared  shall  not  inform 
or  induce  another  witness  of  the  same  side  to  give  his 
evidence  in  the  same  words,  or  to  the  very  same  effect.  The 
whole  of  the  evidence  being  gone  through,  the  jurors  shall 
confer  together  at  their  pleasure,  as  they  shall  think  most 
convenient,  upon  the  truth  of  the  issue  before  them,  with  as 
much  deliberation  and  leisure  as  they  can  well  desire ;  being 
all  the  while  in  the  keeping  of  an  officer  of  the  court,  in  a 
place  assigned  them  for  that  purpose,  lest  any  one  should 
attempt  by  indirect  methods  to  influence  them  as  to  their 
opinion,  which  they  are  to  give  in  to  the  court  Lastly,  they 
are  to  return  into  court  and  certify  the  justices  upon  the 
truth  of  the  issue  so  joined  in  the  presence  of  the  parties 
(if  they  please  to  be  present),  particularly  the  person  who  is 
plaintiff  in  the  cause :  what  the  jurors  shall  so  certify,  m  the 
laws  of  England,  is  called  the  verdict"     (c  26.) 

Mr.  Amos  indeed  has  observed,  in  his  edition  of  Fortescue 
(p.  93),  ^  The  essential  alteration  which  has  since  taken  place 
in  the  character  of  the  jury  does  not  appear  to  have  been 
thoroughly  effected  till  the  time  of  Edward  YI.  and  Mary. 
Jurors  are  oflen  called  testes."  But  though  this  appellation 
might  be  retained  from  the  usage  of  older  times,  I  do  not  see 
what  was  lefl  to  effect  in  the  essential  character  of  a  jury, 
when  it  had  reached  the  stage  of  hearing  the  witnesses  and 
counsel  of  the  parties  in  open  court 

The  result  of  this  investigation,  suggested  perhaps  by 
Reeves,  but  followed  up  by  Sir  Francis  Palgrave  for  the 
earlier,  and  by  Mr.  Starkie  for  the  later  period,  is  to  sweep 
away  from  the  ancient  constitution  of  England  what  has  al- 
ways been  accounted  both  the  pledge  of  its  freedom  and  the 
distinctive  type  of  its  organization,  trial  by  jury,  in  the  mod* 
em  sense  of  the  word,  and  liccording  to  modem  functions. 
For  though  the  passage  just  quoted  from  Fortescue  is  conclu- 
sive as  to  his  times,  these  were  but  the  times  of  the  Lancas- 
trian kings ;  and  we  have  been  wont  to  talk  of  Alfred,  or  at 
least  of  the  Anglo-Saxon  age,  when  the  verdict  of  twelve 
swom  men  was  the  theme  of  our  praise.  We  have  seen  that, 
during  this  age,  neither  in  ciNil  nor  in  criminal  proceedings, 
it  is  possible  to  trace  this  safeguard  for  judicial  purity.  Even 
when  juries  may  be  said  to  have  existed  in  name,  the  institu* 


] 


Cbap.  Vm.  TRIAL  BY  JURY.  189 

tion  denoted  but  a  small  share  of  political  wisdom,  or  at  least 
provided  but  indifferentlj  for  impartial  justice.  The  mode 
of  trial  by  witnesses  returned  on  the  panel,  hearing  no  evi- 
dence beyond  their  own  in  open  court,  unassisted  by  the  sifi« 
ing  acuteness  of  lawyers,  laid  open  a  broad  inlet  for  credulity 
and  prejudice,  for  injustice  and  corruption.  Perjury  was  the 
dominant  crime  of  the  middle  ages  ;  encouraged  by  the  pre- 
posterous rules  of  compurgation,  and  by  the  multiplicity  of 
oaths  in  the  ecclesiastical  law.  It  was  the  frequency  of  this 
offence,  and  the  inxpunity  which  the  established  procedure 
gave  to  that  of  jurors,  that  produced  the  remedy  by  writ  of 
attaint ;  but  one  which  was  liable  to  the  same  danger ;  since 
jury  on  an  attaint  must,  in  the  early  period  of  that  process, 
have  judged  on  common  fame  or  on  their  own  testimony,  like 
those  whose  verdict  they  were  called  to  revise^  and  where 
hearsay  and  tradition  passed  for  evidence,  it  must,  acconling 
to  our  stricter  notions  of  penal  law,  have  been  very  difficult 
to  obtain  an  equitable  conviction  of  the  first  panel  on  the 
ground  of  perjury. 

The  Chronicle,  already  quoted,  by  Jocelyn  de  Brakelonde, 
affords  an  instance,  among  multitudes,  probably,  that  are  un- 
recorded, where  a  jury  flagrantly  violated  their  duty.  Five 
recognitors  in  a  writ  of  assize  came  to  Samson  abbot  of  St 
Edmund's  Bury,  the  Chronicler^s  hero,  the  right  of  presenta- 
tion to  a  church  being  the  question,  in  order  to  learn  from 
him  what  they  should  swear,  meaning  to  receive  money.  He 
promised  them  nothing,  but  bade  them  swear  according  to 
their  consciences.  They  went  away  in  wrath,  and  found  a 
▼erdict  against  the  abbey.^     (p.  44.) 

II   VMj  sefc  down  hen  one  or  two  pronoaooed  sentence  of  exoommcmleation 

other  pftMBgM  ftora  the  same  Chronicle^  mgalnst  the  oflienden. 

UlustntSng  the  modee  of  trial  In  that  The  comhat  was   not  an  authorised 

aice.    Samson  olfcred   that   a   rijrht  of  mode   of  trial    within   boroughs;   they 

adrowson  should  be  determined  by  the  prewrred^  the  old  Saxon  compurgation. 

eUimant's  oath,  a  method  reoognlKd  In*  And  this  may  be  an  additional  pniof  of 

some  eases  by  the  cirll  and  canon  law,  the  antlautty  of  their  pririleges.    A  free 

but  only,  I  concelref  In  fkror  of  the  de-  tenant  of  the  etUraritu  of  the  abbey,  cui 

Ibndant.     Cumque  miles  llle  renuisset  potAs  et  eecas  cura  (Du  Oange),  being 

Jurare,  dllatnm  est  Juramentnm  per  con-  charged  with  robbery,  and  vanquMhed  In 

sensom  ntriunque  partis  sexdeeim  legal!-  the  combat,  was  hangiad.    The  burgeraes 

bos  behnndnido,  qui  Jurarernnt  hoe  esse  of  Bury  said  that,  if  he  had  been  rfsident 

Jus  abbatis.    p.  44.    The  proceeding  by  within  the  borough,  It  would  not  hare 

Jurors  was  sometimes  applied  even  when  eome  to  battle,  but  he  would  have  purged 

the  sentence  belonged  to  the  eccleslastlral  himself  by  the  oaths  of  his  neighbors, 

jurisdiction.     A  riot,  with   bloodshed,  stent  libertas  est  oornm  qui  manent  In- 

barlog    oo^nrred,  the   abbot,   acceptis  fra  burgom.    p.  74.    It  is  hard  to  pro« 

Jnramentls  a  sexdeeim  I^alibus  hominl-  nouoee  by  which  procedure  the  greatef 

•t  aodida  eorom  attestattonlbus,  number  of  guilty  penoiisescapeX 


1 


190  TRUL  BY  JURY.  Notes  to 

Yet  in  its  rudest  and  most  imperfect  form,  the  trial  by  a 
sworn  inquest  was  far  superior  to  the  impious  superstition  of 
ordeals,  the  hardly  less  preposterous  and  unequal  duel,  the 
unjust  deference  to  power  in  compurgation,  when  the  oath  of 
one  thane  counterbalanced  those  of  six  ceorls,  and  even  to  the 
free-spirited  but  tumultuary  and  unenlightened  decisions  of 
the  hundred  or  the  county.  It  may,  indeed,  be  thought  by 
the  speculative  philosopher,  or  the  practical  lawyer,  that  in 
those  early  stages  which  we  have  just  been  surveying,  from 
the  introduction  of  trial  by  jury  under  Henry  11.  to  tlie  at- 
tainment of  its  actual  perfection  in  the  first  part  of  the  fifteenth 
century,  there  was  little  to  warrant  our  admiration.  Still  let 
us  ever  remember  that  we  judge  of  past  ages  by  an  errone- 
ous standard  when  we  wonder  at  their  prejudices,  much  more 
when  we  forget  our  own.  We  have  but  to  place  ourselves, 
for  a  few  minutes,  in  imagination  among  the  English  of  the 
twelfth  and  thirteenth  centuries,  and  we  may  better  un- 
derstand why  they  cherished  and  panted  for  the  judicium 
parium,  the  trial  by  their  peers,  or,  as  it  is  emphatically 
styled,  by  the  country.  It  stood  in  opposition  to  foreign  law- 
yers and  foreign  law ;  to  the  chicane  and  subtlety,  the  dilatory 
and  expensive  though  accurate  technicalities,  of  Normandy, 
to  tribunals  where  their  good  name  could  not  stand  them  in 
stead,  nor  the  tradition  of  their  neighbors,  support  their  claim. 
For  the  sake  of  these,  for  the  maintenance  of  the  laws  of  Ed- 
ward the  Confessor,  as  in  pious  reverence  they  termed  every 
Anglo-Saxon  usage,  they  were  willing  to  encounter  the  noisy 
rudeness  of  the  county-court,  and  the  sway  of  a  potent  adver- 
sary. 

Henry  IL,  a  prince  not  perhaps  himself  wise,  but  served 
by  wise  counsellors,  blended  the  two  schemes  of  jurisprudence, 
as  far  as  the  times  would  permit,  by  the  assize  of  novel  dis* 
seizin,  and  the  circuits  of  his  justices  in  eyre.  From  this  age 
justly  date  our  form  of  civil  procedure;  the  trial  by  a  jury 
(u:^ing  always  that  word  in  a  less  strict  sense  than  it  bears 
with  us)  replaced  that  by  the  body  of  hundredors  ;  the  stream 
of  justice  purified  itself  in  successive  generations  through  the 
acuteness,  learning,  and  integrity  of  that  remarkable  series  of 
men  whose  memory  lives  chiefly  among  lawyers,  I  mean  the 
judges  under  the  house  of  Plantagenet ;  and  thus,  while  the 
common  law  borrowed  from  Normandy  too  much,  perhaps,  of 
its  subtlety  in  distinctiou,  and  became  as  scientific  as  that  of 


CHAP.Vm.  FOLCLAND  AND  BOCLAND.  191 

Rome,  it  maintained,  without  encroachment.,  the  grund  prin« 
ciple  of  the  Saxon  polity,  the  trial  of  facts  by  the  country. 
From  this  principle  (except  as  to  that  preposterous  relic  of 
barbarism,  the  requirement  of  unanimity)  may  we  never 
swerve  —  may  we  never  be  compelled,  in  wish,  to  swerve  — 
by  a  contempt  of  their  oaths  in  jurors,  and  a  disregard  of  the 
just  limits  of  their  trust  I 

Note  IX.    Page  86. 

The  nature  of  both  tenures  has  been  perspicuously  illus- 
trated by  Mr.  Allen,  in  his  Inquiry  into  the  Rise  and  Growth 
of  the  Royal  Prerogative,  from  which  I  shall  make  a  long 
extract. 

**  The  distribution  of  landed  property  in  England  by  the 
Anglo-Saxons  appears  to  have  been  regulated  on  the  same 
principles  that  directed  their  brethren  on  the  continent.  Part 
of  the  lands  they  acquired  was  converted  into  estates  of  in- 
heritance for  individuals ;  part  remained  the  property  of  the 
public,  and  was  left  to  the  disposal  of  the  state.  The  former 
was  called  hocland ;  the  latter  I  apprehend  to  have  been  that 
description  of  landed  property  which  was  known  by  the 
name  oi  folcland, 

•*  Folcland,  as  the  word  imports,  was  the  land  of  the  folk  or 
people.  It  was  the  property  of  the  community.  It  might  be 
occupied  in  common,  or  |)ossessed  in  severalty ;  and,  in  the 
latter  ca^e,  it  was  probably  parcelled  out  to  individuals  in  the 
folcgemot,  or  court  of  the  district,  and  the  grant  attested  by 
the  freemen  who  were  then  present.  But,  while  it  continued 
to  be  folcland,  it  could  not  be  alienated  in  perpetuity  ;  and, 
therefore,  on  the  expinition  of  the  term  for  which  it  had  been 
granted,  it  reverted  to  the  community,  and  was  again  distrib- 
uted by  tlie  same  authority.* 

**  Bocland  was  held  by  book  or  charter.  It  was  land  that 
had  been  severed  by  an  act  of  government  from  the  folcland, 
and  converted  into  an  estate  of  perpetual  inheritance.  It 
might  belong  to  the  church,  to  the  king,  or  to  a  subject.  It 
might  be  alienable  and  devisable  at  the  will  of  the  proprie- 

1  Spelmftn  deiiCTibes  folcland  m  term  dapltci   titnlo   pomidebant:  Tel   Kriptl 

popaLuiHf  qoA  J  if  re  communi  poit&idetar  auctoritate,  quod  bocland  Tocabant  —  vel 

—  sine   neripto.     GIom.   Folcland.     In  populi  testtimouio,  quod  folcland  dixeze. 

■aoiher  place  he  dUtinj^ubhes  it  accu-  lb.  Bocland 
mteljr  flrom  bocland    •  l^rjedla  Saxones 


192  FOLCLAND  AND  BOCLAND.  Notes  to 

tor.  It  might  be  limited  in  its  descent  without  any  power  of 
alienation  in  the  possessor.  It  was  often  granted  for  a  single 
life,  or  for  more  lives  than  one,  with  remainder  in  perpetuity 
to  the  church.  It  was  forfeited  for  various  deUnquendes  to 
the  state. 

"Estates  in  perpetuity  were  usually  created  by  charter 
ailer  the  introduction  of  writing,  and,  on  that  account,  boc- 
land  and  land  of  inheritance  are  oflen  used  as  synonymous 
expressions.  But  at  an  earlier  period  they  were  conferred 
by  the  delivery  of  a  staff,  a  spear,  an  arrow,  a  drinking-horn, 
the  branch  of  a  tree,  or  a  piece  of  turf;  and  when  the  dona- 
tion was  in  favor  of  the  church,  these  symbolical  representa- 
tions of  the  grant  were  deposited  with  solemnity  on  the  altar ; 
nor  was  this  practice  entirely  laid  aside  after  the  introduction 
of  title-deeds.  There  are  instances  of  it  as  late,  as  the  time 
of  the  Conqueror.  It  is  not,  therefore,  quite  correct  to  say 
that  all  the  lands  of  the  Anglo-Saxons  were  either  folcland 
or  bocland.  When  land  was  granted  in  perpetuity  it  ceased 
to  be  folcland;  but  it  could  not  with  propriety  be  termed 
bocland,  unless  it  was  conveyed  by  a  written  instrument 

"Folcland  was  subject  to  many  burdens  and  exactions 
from  which  bocland  was  exempt  The  possessors  of  folcland 
were  bound  to  assist  in  the  reparation  of  royal  vills  and  in 
other  public  works.  They  were  liable  to  have  travellers  and 
others  quartered  on  them  for  subsistence.  They  were  re- 
quired to  give  hospitality  to  kings  and  great  men  in  their 
progresses  through  the  country,  to  furnish  them  with  carriages 
and  relays  of  horses,  and  to  extend  the  same  assistance  to 
their  messengers,  followers,  and  servants,  and  even  to  the 
persons  who  had  charge  of  their  hawks,  horses,  and  hounds. 
Such  at  least  are  the  burdens  from  which  lands  are  liberated 
when  converted  by  charter  into  bocland. 

"  Bocland  was  liable  to  none  of  these  exactions.  It  was 
released  from  all  services  to  the  public,  with  the  exception  of 
contributing  to  military  expeditions,  and  to  the  reparation  of 
castles  and  bridges.  These  duties  or  services  were  comprised 
in  the  phrase  of  trinoda  necessitas,  which  were  said  to  be  in- 
cumbent on  all  persons,  so  that  none  could  be  excused  from 
them.  The  church  indeed  contrived,  in  some  cases,  to  obtain 
an  exemption  from  them ;  but  in  general  its  lands,  like  those 
of  others,  were  subject  to  them.  Some  of  the  charters  grant- 
ing, to  the  possessions  of  the  church  an  exemption  from  all 


CHAP.Vm.  FOLCLAND  AND  BOCLAND.  193 

Bervices  whatsoever  were  genuine ;  but  the  greater  part  are 
forgeries."  —  (p.  142.) 

Bocland,  we  perceive  by  this  extract,  was  not  neoessarily 
alodial,  in  the  sense  of  absolute  propriety.  It  might  be 
granted  ibr  lives,  as  was  oflen  the  case ;  and  then  it  seems  to 
have  been  called  lan4and  (pnestita),  lent  or  leased.  (Pal- 
grave,  ii.  861.)  Such  land,  however,  was  not  feudal,  as  I 
conceive,  if  we  use  that  word  in  its  legitimate  European, 
sense ;  though  lehn  is  the  only  Grerman  word  for  a  fief.  Mr. 
Allen  has  found  no  ti*aces  of  this  use  of  the  word  among  the 
Anglo-Saxons.  (Appendix,  p.  57.)  Sir  F.  Palgrave  agrees 
in  general  with  Mr.  Allen.* 

We  find  another  great  living  authority  on  Anglo-Saxon 
and  Teutonic  law  concurring  in  the  same  luminous  solution 
of  this  long-disputed  problem.  "  The  natural  origin  of  folc- 
land  is  the  superabundance  of  good  land  above  what  was  at 
once  appropriated  by  the  tribes,  families,  or  gentes  (maegburg, 
gelondan),  who  first  settled  in  a  waste  or  conquered  land ; 
but  its  existence  enters  into  and  modifies  the  system  of  law, 
and  on  it  depends  the  definition  of  the  march  and  the  gau 
with  their  boundaries.  Over  the  folcland  at  first  the  king 
alone  had  no  control ;  it  must  have  been  apportioned  by  the 
nation  in  its  solemn  meeting ;  earlier,  by  the  shire  or  other 
collection  of  freemen.  In  Beowulf,  the  king  determines  to 
build  a  palace,  and  distribute  in  it  to  his  comites  such  gold, 
silver,  arms,  and  other  valuables  as  Grod  had  given  him,  save 
the  folcsceare  and  the  h ves  of  men  — '  butan  folcsceare  and 
feorum  gumena'  —  which  he  had  no  authority  to  dispose  of. 
This  relative  position  of  folcland  to  bocland  is  not  confined 
to  the  Anglo-Saxon  institutions.  The  Frisians,  a  race  from 
whom  we  took  more  than  has  generally  been  recognized,  had 
the  same  distinction.  At  the  same  time  I  difier  from  Grimm, 
who  seems  to  consider  folcland  as  the  pure  alod,  bocland  as 
the  fief.  '  Folcland  im  Gregensatz  zu  beneficium.  Leges  £dv. 
II. ;  das  ist,  reine  alod,  ira  Gegensatz  zu  beneficium,  Lehen. 
Vgl.  das  Friesische  caplond  und  bocland.  As.  p.  15.'  (D 
R.  A  p.  463.)  I  think  the  reverse  is  the  case ;  and  indeed 
we  have  one  instance  where  a  king  exchanged  a  certain  por- 


>  TIm  law  of  reft]  property,  or  boclftnd,  the  best  ancient  preeedenti,  and  Ii  of 

b  the  Anglo-Saxon  period,  Ui  given  in  a  course  studied,  to  the  disregard,  where 

few  |>ages,  equally  succinct  and   Inmt-  necemary,  of  more  defectlTe  authoritiee| 

■o«e«  Vj  Mr.  Spenee.    Equit.  JurisU.  p.  by  those  who  regard  this  portion  of  legu 

SMB.  The  Codex  Diplomaticus  furnishes  history 

VOL.  II. —  M.  18 


194  EIGHT  OF  LEGISLATION.  Notes  io 

tion  of  folcland  for  an  equal  portion  of  bocland  with  one  of 
his  comites.  He  then  gave  the  exchanged  folcland  all  the 
privileges  of  bocland,  and  proceeded  to  make'  the  bocland  he 
had  received  in  exchange /o/c/and.**  (Kemble's  Codex  Dip- 
lomaticus,  i.  p.  104.) 

It  is  of  importance  to  mention  that  Mr.  K.,  when  he  wrote 
this  passage,  had  not  seen  Mr.  Allen's  work ;  so  that  the  in- 
dependent concurrence  of  two  such  antiquaries  in  the  same 
theory  lends  it  very  great  support  In  the  second  volume  of 
the  Codex  Diplomaticus  the  editor  adduces  fresh  evidence  aa 
to  the  nature  of  folcland,  "  the  terra  JUcalis,  or  public  land 
grantable  by  the  king  or  his  council,  as  the  representatives  of 
the  nation."  (p.  9.)  Mr.  Thorpe,  in  the  glossary  to  his  edition 
of  "Ancient  Laws*'  (v.  Folcland),  quotes  part  of  the  same 
extract  from  Allen  which  I  have  given,  and,  making  no  re- 
mark, must  be  understood  to  concur  in  it.  Thus  we  may 
consider  this  interpretation  in  possession  of  the  field.^ 

The  word  folcland  fell  by  degrees  into  disuse,  and  gave 
place  to  the  term  terra  regis,  or  crown-land.  (Allen,  p.  160.) 
This  indicates  the  growth  of  a  monarchical  theory  which 
reached  its  climax,  in  this  application  of  it,  afler  the  Con- 
quest, when  the  entire  land  of  England  was  supposed  to  have 
been  the  demesne  land  of  the  king,  held  under  him  by  a 
feudal  tenure. 

Note  X.     Page  113. 

"  Amongst  the  prerogatives  of  the  crown,  the  Conqueror 
and  many  of  his  successors  appear  to  have  assumed  the  power 
of  making  laws  to  a  certain  extent,  without  the  authority  of 
their  greater  council,  especially  when  operating  only  in  re- 
straint of  the  king's  prerogative,  for  the  benefit  of  his  sub- 
jects, or  explaining,  amending,  or  adding  to  tlie  existing  law 
of  the  land,  as  administered  between  subject  and  subject; 
and  this  prerogative  was  commonly  exercised  w^ith  the  advice 
of  the  king's  ordinary  or  select  council,  though  frequently  the 
edict  was  expressed  in  the  king's  name  alone.  But  as  far  as 
can  be  judged  from  existing  documents  or  from  history,  it 
was  generally  conceived  that  beyond  these  limits  the  consent 

1  It  seemB  to  be  a  neceMary  inference  exception  of  the  term  regiR,  if  tbat  wex« 

fttim  the   evidence  of  Domeoday  Book  truly  the  repre«entatiTe  of  ancient  t>lo> 

that  all  Kngland  had  been  converted  into  land,  as  Allen  aupposes 
boeUad  before  the  Conquest,  with  the 


*lHAP.Vffl.  RIGHT  OF  LEGISLATION.  195 

of  a  larger  assembly,  of  that  which  was  deemed  the  *  Com- 
mane  concilium  regni/  was  in  strictness  necessary ;  though 
Bometimes  the  monarch  on  the  throne  ventured  to  stretch  his 
prerogative  further,  even  to  the  imposition  of  taxes  to  answer 
his  necessities,  without  the  common  consent ;  and  the  great 
struggles  between  the  kings  of  England  and  their  people 
have  generally  been  produced  by  such  stretches  of  the  royal 
prerogative,  till  at  length  it  has  been  established  that  no 
legislative  act  can  be  done  without  the  concurrence  of  that 
assembly,  now  emphatically  called  the  king's  parliament" 
(Report  of  Lords'  Committee  on  the  Dignity  of  a  Peer,  p. 
22,  edit.  1819.) 

"  It  appears,"  says  the  committee  afterwards,  "  fiom  all  the 
charters  taken  together,  that  during  the  reigns  of  William 
Rufus,  his  brother  Henry,  and  Stephen,  many  things  had 
been  done  contrary  to  law ;  but  that  there  did  exist  some 
legal  constitution  of  government,  of  which  a  legislative  coun- 
cil (for  some  purposes  at  least)  formed  a  part ;  and  particu- 
larly that  all  impositions  and  exactions  by  the  mere  authority 
of  the  crown,  not  warranted  by  the  existing  law,  were  rep- 
robated as  infringements  of  the  just  rights  of  the  subjects  of 
the  realm,  though  the  existing  law  left  a  large  portion  of  the 
king's  subjects  liable  to  tallage  imposed  at  the  will  of  the 
crown ;  and  the  tenants  of  the  mesne  lords  were  in  many 
cases  exposed  to  similar  exaction."  (p.  42.) 

These  passages  appeared  to  Mr.  Allen  so  inadequate  a 
representation  of  the  Anglo-Norman  constitution,  that  he 
commented  upon  the  ignorance  of  the  committee  w^ith  no 
slight  severity  in  the  Edinburgh  Review.  The  principal 
charges  against  the  Report  in  this  respect  are,  that  the  com- 
mittee have  confounded  the  ordinary  or  select  council  of  the 
king  with  the  commune  concilium^  and  supposed  that  the 
former  alone  was  intended  by  historians,  as  the  advisers  of 
the  crown  in  its  prerogative  of  altering  the  law  of  the  land, 
when,  in  fact,  the  great  council  of  the  national  aristocracy  is 
clearly  pointed  out ;  and  that  they  have  disregarded  a  great 
deal  of  historical  testimony  to  the  political  importance  of  the 
latter.  It  appears  to  be  clearly  shown,  from  the  Saxon  Chron- 
icle and  other  writers,  that  assemblies  of  bishops  and  nobles, 
sometimes  very  large,  were  held  by  custom,  "  de  more,"  three 
times  in  the  year,  by  William  the  Conqueror  and  by  both  hia 
sons;   that  they  were,   however,  gradually  intermitted  by 


196  RIGHT  OF  LEGISLATION.  Ncyria  vt 

Henry  I.,  and  ceased  early  in  tiie  reign  of  Stephen.  In  these 
councils,  which  were  legislative  so  far  as  new  statutes  were 
ever  required,  a  matter  of  somewhat  rare  occurrence,  bat 
more  frequently  rendering  their  advice  on  measures  to  be 
adopted,  or  their  judgment  in  criminal  charges  against  men 
of  high  rank,  and  even  in  civil  litigation,  we  have,  at  least  in 
theory,  the  acknowledged  limitations  of  royal  authority.  I 
refer  the  reader  to  this  article  in  the  £<{inburgh  Review  (voL 
XXXV.),  to  which  we  must  generally  assent;  observing,  how- 
ever, that  the  committee,  though  in  all  probability  mistaken  in 
ascribing  proceedings  of  the  Norman  sovereigns  to  the  advice 
of  a  select  council,  which  really  emanated  from  one  much 
larger,  did  not  call  in  question,  but  positively  assert,  the  con- 
stitutional necessity  of  the  latter  for  general  taxation,  and 
perhaps  for  legislative  enactments  of  an  important  kind* 
And,  when  we  consider  the  improbability  that  '^  all  the  great 
men  over  all  England,  archbishops  and  bishops,  abbots  and 
earls,  thanes  and  knights,"  as  the  Saxon  chronicler  pretends, 
could  have  been  regularly  present  thrice  a  year,. at  Winches- 
ter, Westminster,  and  Gloucester,  when  William,  as  he  informs 
us,  "  wore  his  crown,"  we  may  well  suspect  that,  in  the  ordi- 
nary exercise  of  his  prerogative,  and  even  in  such  provisions 
as  might  appear  to  him  necessary,  he  did  not  wait  for  a  very 
full  assembly  of  his  tenants  in  chief.  The  main  question  is, 
whether  this  council  of  advice  and  assent  was  altogether  of 
his  own  nomination,  and  this  we  may  confidently  deny. 

The  custom  of  the  Anglo-Saxon  kings  had  been  to  hold 
meetings  of  their  witan  very  frequently,  at  least  in  the  rega« 
lar  course  of  their  government  And  this  was  also  the  rule 
in  the  grand  fiefs  of  France.  The  pomp  of  their  court,  the 
maintenance  of  loyal  respect,  the  power  of  keeping  a  vigilant 
eye  over  the  behavior  of  the  chief  men,  were  sufficient  mo- 
tives for  the  Noi*man  kings  to  preserve  this  custom ;  and  the 
nobility  of  course  saw  in  it  the  security  of  their  privileges  as 
well  as  the  exhibition  of  their  importance.  Hence  we  find 
that  William  and  his  sons  held  their  coui*ts  de  more,  as  a  reg 
ular  usage,  three  times  a  year,  and  generally  at  the  great 
festivals,  and  in  different  parts  of  the  kingdom.  Instances 
are  collected  by  the  Edinburgh  Reviewer  (vol.  xxxv.  p.  5). 
And  here  the  public  business  was  transacted ;  though,  if  these 
meetings  were  so  frequent,  it  is  probable  that  for  the  most 
part  they  passed  off  in  a  banquet  or  a  tournament. 


Chap.  VHI.  BIGHT  OF  LEGISLATION.  197 

The  Lords'  Committee,  in  notes  on  the  Second  Report,  when 
reprinted  in  1829,  do  not  acquiesce  in  the  positions  of  their 
hardj  critic,  to  whom,  without  direct  mention,  thej  manifestly 
allude.  ^From  the  relations  of  annalists  and  historians,** 
they  observe,  "  it  has  been  inferred  that  during  the  reign  of 
the  Conqueror,  and  during  a  long  course  of  time  from  the 
Conquest,  the  archbishops,  bishops,  abbots  and  priors,  earls 
and  barons  of  the  realm  were  regularly  convened  three  times 
in  every  year,  at  three  different  and  distinct  places  in  the 
kingdom,  to  a  general  council  of  the  realm.  Considering  the 
state  of  the  country,  and  the  habits  and  dispositions  of  the 
people,  this  seems  highly  improbable ;  especially  if  the  word 
barones,  or  the  words  proceres  or  magnates,  often  used  by 
writers  in  describing  such  assemblies,  were  intended  to  include 
all  the  persons  holding  immediately  of  the  crown,  who,  accord* 
ing  to  the  charter  of  John,  were  required  to  be  summoned  to 
constitute  the  great  council  of  the  realm,  for  the  purpose  of 
granting  aids  to  the  crown."  (p.  449.)  But  it  is  not  necessary 
to  suppose  this ;  those  might  have  attended  who  lived  near,  or 
who  were  specially  summoned.  The  committee  argue  on  the 
supposition  that  all  tenants  in  chief  must  have  attended  thrice 
a  year,  which  no  one  probably  ever  asserted.  But  that 
WUliam  and  his  sons  did  hold  public  meetings,  de  nwroy 
at  three  several  places  in  every  year,  or  at  least  very  fre- 
quently, cannot  be  controverted  without  den3ring  what  re- 
spected historical  testimonies  affirm;  and  the  language  of 
these  early  writers  intimates  that  they  were  numerously 
attended.  Aids  were  not  regularly  granted,  and  laws  much 
more  rarely  enacted  in  them ;  but  they  might  still  be  a  na- 
tional council.  But  the  constituent  parts  of  such  councils  will 
be  discussed  in  a  subsequent  note. 

It  is  to  be  here  remarked  that,  with  the  exception  of  the 
charters  granted  by  William,  Henry,  and  Stephen,  which  are 
in  general  rather  like  confirmations  of  existing  privileges  than 
novel  enactments,  though  some  clauses  appear  to  be  of  the 
latter  kind,  little  authentic  evidence  can  be  found  of  any  leg- 
islative proceedings  from  the  Conquest  to  the  reign  of  Henry 
II.  The  laws  of  the  Conqueror,  which  we  find  in  Ingulfus, 
do  not  come  within  this  category ;  they  are  a  confirmation  of 
English  usages,  granted  by  William  to  his  subjects.  ^^  Cez 
sunt  les  leis  et  les  custumes  que  li  reis  William  grantad  el 
pople  de  Engleterre  apres  le  conquest  de  la  terre.    Icelea 


198  KIGHT  OK  LEGISLATION.  Notes  to 

mesmes  que  li  reis  Edward  sun  cusin  tint  devant  luL**  Theae, 
published  by  Gale  (Script.  Rer.  Anglic  vol.  i.),  and  more 
accurately  than  before  from  the  Holkham  manuscript  by  Sir 
Francis  Palgrave,  have  sometimes  passed  for-  genuine.  The 
real  original,  however,  is  tlie  Latin  text,  first  published  by 
him  with  the  French.  (Eng.  Commonw.  vol.  ii.  p.  89.)  The 
French  translation  he  refers  to  the  early  part  of  the  reign  of 
Henry  III.  At  the  time  when  Ingulfus  is  supposed  to  have 
lived,  soon  after  the  Conquest,  no  laws,  as  Sir  F.  Palgrave 
justly  observes,  were  written  in  French,  and  he  might  have 
added  that  w^e  cannot  produce  any  other  specimen  of  the  lan- 
guage which  is  certainly  of  that  age.  (See  Quarterly  Review, 
xxxiv.  260.)  It  is  said  in  the  charter  of  Henry  I.  that  the 
laws  of  Edward  were  renewed  by  William  with  the  same 
emendation. 

But  the  changes  introduced  by  William  in  the  tenure  of 
land  were  so  momentous  that  the  most  cautious  inquirers 
have  been  induced  to  presume  some  degree  of  common  con- 
sent by  those  whom  they  so  much  affected.  "  There  seems 
to  be  evidence  to  show  that  the  great  change  in  the  tenure 
of  land,  and  particularly  the  very  extensive  introduction  of 
tenure  by  knight-service,  was  made  by  the  consent  of  those 
principally  interested  in  the  land  charged  with  the  burdens 
of  that  tenure ;  and  that  the  general  changes  made  in  the 
Saxon  laws  by  the  Conqueror,  forming  of  the  two  one  people, 
was  also  effected  by  common  consent ;  namely,  in  the  language 
of  the  charter  of  William  with  respect  to  the  tenures,  *  per 
commune  concilium  tocius  regni,'  and  with  respect  to  both, 
as  expressed  in  the  charter  of  his  son  Henry,  *  concilio  ba- 
ronum;*  though  it  is  far  from  clear  who  were  the  persons 
intended  to  be  so  described."  (Report  of  Lords'  Committee, 
p.  50.) 

The  separation  of  the  civil  and  ecclesiastical  jurisdictions 
was  another  great  innovation  in  the  reign  of  the  Conqueror. 
This  the  Lords'  Committee  incline  to  refer  to  his  sole  author- 
ity. But  Allen  has  shown  by  a  writ  of  William  addressed 
to  the  bishop  of  Lincoln  that  it  was  done  "  communi  concilio^ 
et  concilio  archiepiscoporum  meorum,  et  caiterorum  episcopo- 
rum  et  abbatum,  et  omnium  principum  regni  raei."  (Edinb. 
Rev.  p.  15.)  And  the  Domesday  survey  was  determined 
upon,  afler  a  consultation  of  William  with  his  great  council 
at  Gloucester,  in  1084.     This  would  of  course  be  reckoned  a 


Chap.  Ten.  CHARTER  OF  WILLIAM  L  199 

legislative  measure  in  the  present  day ;  but  it  might  not  pass 
for  more  than  a  temporary  ordinance.  The  only  laws  under 
Henry  I.,  except  his  charter,  of  which  any  account  remains 
in  history  (there  are  none  on  record),  fall  under  the  same 
description. 

The  Constitutions  of  Clarendon,  in  1164,  are  certainly  a 
regular  statute ;  whoever  might  be  the  consenting  parties,  a 
subject  to  be  presently  discussed,  these  famous  provisions  were 
enacted  in  the  gre^it  council  of  the  nation.  This  is  equally 
true  of  the  Assizes  of  Northampton,  in  1178.  But  the  eai^ 
liest  Anglo-Norman  law  which  is  extant  in  a  regular  form  is 
the  assize  made  at  Clarendon  for  the  preservation  of  the 
peace,  probably  between  1165  and  1176.  This  remarkable 
statute,  "  quam  dominus  rex  Henricus,  consilio  archiepiscopo- 
rum  et  episcoporum  et  abbatum,  cseterorumque  baronum 
suorum  constituit,"  was  first  published  by  Sir  F.  Palgrave 
from  a  manuscript  in  the  British  Museum.  (Engl.  Common w. 
i.  257;  ii.  168.)  In  other  instances  the  royal  prerogative 
may  perhaps  have  been  held  sufficient  for  innovations  which, 
after  the  constitution  became  settled,  would  have  required  the 
sanction  of  the  whole  legislature.  No  act  of  parliament  is 
known  to  have  been  made  under  Richard  I. ;  but  an  ordi- 
nance, setting  the  assize  of  bread,  in  the  fiflh  of  John,  is 
recited  to  be  established  "  communi  concilio  baronum  nostro- 
rum."  Whether  these  words  afford  sufficient  ground  for 
believing  that  the  assize  was  set  in  a  full  council  of  the  realm, 
may  possibly  be  doubtful.  The  committee  incline  to  the 
affirmative,  and  remark  that  a  general  proclamation  to  the 
same  effect  is  mentioned  in  history,  but  merely  as  proceeding 
from  the  king,  so  that  '*  the  omission  of  the  words  '  communi 
concilio  baronum '  in  the  proclamation  mentioned  by  the  his- 
torian, though  appearing  in  the  ordinance,  tends  also  to  show 
that,  though  similar  words  may  not  be  found  in  other  similar 
documents,  the  absence  of  those  words  ought  not  to  lead  to  a 
certain  conclusion  that  the  act  done  had  not  the  authority  of 
the  ssmie  common  counciL"     (p.  84.; 

Note  XL    Page  113. 

This  charter  has  been  introduced  mto  the  new  edition  of 
Bymer's  Foedera,  and  heads  that  collection.  The  Committee 
of  the  Lords'  on  the  Dignity  of  a  Peer,  in  their  Second  Se- 


200  liAGNA  CHABTA  OF  Notbs  to 

port,  have  the  following  observations:  —  "The  printed  copy 
is  taken  from  the  Red  Book  of  the  Exchequer,  a  document 
which  has  long  been  admitted  in  the  Court  of  Exchequer  as 
evidence  of  authority  for  certain  purposes ;  but  no  trace  has 
been  hitherto  found  of  the  original  charter  of  William,  though 
the  insertion  of  a  copy  in  a  book  in  the  custody  of  the  king's 
Exchequer,  resorted  to  by  the  judges  of  that  court  for  other 
purposes^  seems  to  afford  reasonable  ground  for  supposing  that 
such  a  charter  was  issued,  and  that  the  copy  so  preserved  is 
probably  correct,  or  nearly  correct.  The  copy  in  the  Bed 
Book  is  without  date,  and  no  circumstance  tending  to  show  its 
true  date  has  occurred  to  the  committee ;  but  it  may  be  col- 
lected from  its  contents  that  it  was  probably  issued  in  the 
latter  part  of  that  king's  reign  ;  about  which  time  it  appears 
from  history  that  he  confirmed  to  his  subjects  in  England  the 
ancient  Saxon  laws,  with  alterations.**  (p.  28.) 

I  once  thought,  and  have  said,  that  this  charter  seems  to 
comprehend  merely  the  feudal  tenants  of  the  crown.  This 
may  be  true  of  one  clause ;  but  it  is  impossible  to  construe 
"  omnes  liberi  homines  totius  monarchic  "  in  so  contracted  a 
sense.  The  committee  indeed  observe  that  many  of  the  king's 
tenants  were  long  after  subject  to  tallage.  But  I  do  not  sup- 
pose these  to  have  been  included  in  *'  liberi  homines."  The 
charter  involves  a  promise  of  the  crown  to  abstain  from  ex- 
actions frequent  in  the  Conqueror's  reign,  and  falling  on  mesne 
tenants  and  others  not  liable  to  arbitrary  taxation. 

This  charter  contains  a  clause — ^^  Hoc  quoque  prsecipimus 
ut  omnes  habeant  et  teneant  legem  Edwardi  Regis  in  omnibus 
rebus  adjunctis  hisquss  constituimus  ad  ultilitatem  Anglorum.** 
And  as  there  is  apparent  reference  to  these  words  in  the 
charter  of  Henry  I. —  **  Legem  Edwardi  Regis  vobis  reddo 
cum  illis  emeudationibus  quibus  pater  mens  eam  emendavit 
consilio  baronum  suorum" — the  committee  are  sufficiently 
moderate  in  calling  this  ^  a  clause,  tending  to  give  in  same  di* 
gree  authenticity  to  the  copy  of  the  charter  of  William  the 
Conqueror  inserted  in  the  Red  Book  of  the  Exchequer."  (p. 
89.)  This  charter  seems  to  be  fully  established :  it  deserves 
to  be  accounted  the  first  remedial  concession  by  the  crown ; 
for  it  indicates,  especially  taken  in  connection  with  public 
history,  an  arbitrary  exercise  of  royal  power  which  neither  the 
new  nor  the  old  subjects  of  the  English  monarchy  reckoned 
lawfiiL     It  is  also  the  eai-liest  recognition  of  the  Anglo-Saxon 


Chap.  Vm.  WILLIAM  THE  CONQUEROR.  201 

laws,  such  as  they  subsisted  under  the  Confessor,  and  a  proof 
both  that  the  English  were  now  endeavoring  to  raise  their  heads 
from  servitude,  and  that  the  Normans  had  discovered  some 
immunities  from  taxation,  or  some  securities  from  absolute 
power,  among  the  conquered  people,  in  which  they  desired  to 
participate.  It  is  deserving  of  remark  that  the  distinction  of 
personal  law,  which,  indeed,  had  almost  expired  on  the  conti- 
nent, was  never  -observed  in  England ;  at  least,  we  have  no 
evidence  of  it,  and  the  contrary  is  almost  demonstrable.  The 
conquerors  fell  at  once  into  the  laws  of  the  conquered,  and 
this  continued  for  more  than  a  century. 

The  charter  of  William,  like  many  others,  was  more  ample 
than  effectual.  ^  The  committee  have  found  no  document  to 
show,  nor  does  it  appear  probable  from  any  relation  in  his- 
tory that  William  ever  obtained  any  general  aid  from  his  sub- 
jects by  grant  of  a  legislative  assembly ;  though  according  to 
history,  even  after  the  charter  before  mentioned,  he  extorted 
great  sums  from  individuals  by  various  means  and  under 
various  pretences.  Towards  the  close  of  his  reign,  when  he 
had  exacted,  as  stated  by  the  editor  of  the  first  part  of  the 
Annals  called  the  Annals  of  Waverley,  the  oath  of  fealty  fix)m 
the  principal  landholders  of  every  description,  the  same  his^ 
torian  adds  that  William  passed  into  Normandy, '  adquisitis 
magnis  thesauris  ab  hominibus  suis,  super  quos  aliquam  cau- 
8am  in  venire  poterat,  sive  juste  sive  inique '  (words  which 
import  exaction  and  not  grant),  and  he  died  the  year  following 
in  Normandy."     (p.  35.) 

The  deeply  learned  reviewer  of  this  Report  has  shown  that 
the  Annals  of  Waverley  are  of  very  little  authority,  and 
merely  in  this  part  a  translation  from  the  Saxon  Chronicle. 
But  the  translation  of  the  passage  quoted  by  the  committee  ia 
correct;  and  it  was  perhaps  rather  hypercritical  to  cavil  at 
their  phrase  that  William  obtained  this  money  *^  by  exaction 
and  not  by  grant.**  They  never  meant  that  he  imposed  a 
general  tax.  That  it  was  not  by  grant  is  all  that  their  pur- 
pose requii'ed;  the  passage  which  they  quote  shows  that  it 
was  under  some  pretext,  and  often  an  unjust  one,  which  is  not 
very  unlike  exaction.  . 

It  is  highly  probable  that,  in  promising  this  immunity  from 
anjust  exactions,  William  did  not  intend  to  abolish  the  ancient 
tax  of  Danegelt,  or  to  demand  the  consent  of  his  great  coun- 
cil when  it  was  thought  necessary  to  impose  it    We  read  in 


202  DURATION  OF  DISTINCTION  Norm  10 

the  Saxon  Chronicle  that  the  king  in  1083  exacted  a  heavy 
tribute  all  over  England,  that  is,  seventj-two  pence  for  each 
hyde.  This  looks  like  a  Danegelt.  The  rumor  of  invasion 
from  Denmai'k  is  set  down  by  the  chronicler  under  the  year 
1085 ;  but  probably  William  had  reason  to  be  prepared.  He 
may  have  had  the  consent  of  his  great  council  in  this  instance. 
But  as  the  tax  had  formerly  been  perpetual,  so  that  it  was  a 
relaxation  in  favor  of  the  subject  to  reserve  it  for  an  emer- 
gency, we  may  think  it  more  likely  that  this  imposition  was 
within  his  prerogative ;  that  he,  in  other  words,  was  sole  judge 
of  the  danger  that  required  it.  It  was,  however,  in  truth,  a 
heavy  tribute,  being  six  shillings  for  every  hyde,  in  many 
cases,  as  we  see  by  Domesday,  no  small  proportion  of  the 
annual  value,  and  would  have  been  a  grievous  burden  as  an 
annual  payment. 

Note  XII.     Page  115. 

This  passage  in  a  contemporary  writer,  being  so  uneqnivc/- 
cal  as  it  is,  ought  to  have  much  weight  in  the  question  which 
an  eminent  foreigner  has  lately  raised  as  to  the  duration  of 
the  distinction  between  the  Norman  and  English  races.  It  is 
the  favorite  theory  of  M.  Thierry,  pushed  to  an  extreme 
length  both  as  to  his  own  country  and  ours,  that  the  conquer- 
ing nation,  Franks  in  one  case,  Normans  in  the  other,  remained 
down  to  a  late  period  —  a  period  indeed  to  which  he  assigns 
no  conclusion — unmingled,  or  at  least  undistinguishable,  con- 
stituting a  double  people  of  sovereigns  and  subjects,  becoming 
a  noble  order  in  the  state,  haughty,  oppressive,  powerful,  or, 
what  is  in  one  word  most  odious  to  a  French  ear  in  the  nine- 
teenth century,  aristocratic. 

It  may  be  worthy  of  consideration,  since  the  authority  of 
this  writer  is  not  to  be  disregarded,  whether  the  Norman 
blood  were  really  blended  with  the  native  quite  so  soon  as  the 
reign  of  Henry  II. ;  that  is,  whether  intermarriages  in  the 
superior  classes  of  society  had  become  so  frequent  as  to  efface 
the  distinction.  M.  Thierry  produces  a  few  passages  which 
seem  to  intimate  its  continuance.  But  these  are  too  loosely 
worded  to  warrant  much  regard ;  and  he  admits  that  after  the 
reign  of  Henry  I.  we  have  no  proof  of  any  hostile  spirit  on  thb 
part  of  the  English  towards  the  new  dynasty ;  and  that  some 
e£forts  were  made  to  conciliate  them  by  representing  Henrj 


Craf.  Vm.      BETWEEN  SAXON  AND  NORMAN.    .  203 

EL  as  the  descendant  of  the  Saxon  line.  (VoL  ii.  p.  374.) 
This,  in  fact,  was  true ;  and  it  was  still  more  important  that 
the  name  of  English  was  studiously  assumed  by  our  kings 
(ignorant  though  they  might  be,  in  M.  Thierry's  phrase,  what 
was  the  vernacular  word  for  that  dignity),  and  that  the  Anglo- 
Normans  are  seldom,  if  ever,  mentioned  by  that  separate 
designation.  England  was  their  dwelling-place,  English  theif 
name,  the  English  law  their  inheritance;  if  this  was  not 
wholly  the  case  before  the  separation  of  the  mother  country 
under  John,  and  yet  we  do  not  perceive  much  limitation  nee 
essary,  it  can  admit  of  no  question  afterwards. 

It  is,  nevertheless,  manifest  that  the  descendants  of 
William's  tenants  in  capite,  and  of  othera  who  seized  on  so 
large  a  portion  of  our  fair  country  from  the  Channel  to  the 
Tweed,  formed  the  chief  part  of  that  aristocracy  which 
secured  the  liberties  of  the  Anglo-Saxon  race,  as  well  as 
their  own,  at  Runnymede ;  and  which,  sometimes  as  peers  oi 
the  realm,  sometimes  as  well-bom  commoners,  placed  suc- 
cessive barriers  against  the  exorbitances  of  power,  and  pre- 
pared the  way  for  that  expanded  scheme  of  government 
which  we  call  the  English  constitution.  The  names  in  Dug- 
dale's  Baronage  and  in  his  Summonitiones  ad  Parliamentum 
speak  for  themselves ;  in  all  the  earlier  periods,  and  perhaps 
almost  through  the  Plantagenet  dynasty,  we  find  a  great  pre- 
ponderance of  such  as  indicate  a  French  source.  New  fami- 
lies sprung  up  by  degrees,  and  are  now  sometimes  among  our 
chief  nobility  ;  but  in  general,  if  we  find  any  at  this  day  who 
have  tolerable  preten:;ions  to  deduce  their  lineage  from  the 
Conquest,  they  are  of  Norman  descent ;  the  very  few  Saxon 
families  that  may  remain  with  an  authentic  pedigree  in  the 
male  line  are  seldom  found  in  the  wealthier  class  of  gentry. 
This  is  of  course  to  be  taken  with  deference  to  the  genealo- 
gists. And  on  this  account  I  must  confess  that  M.  Thierry's 
opinion  of  a  long-continued  distinction  of  races  has  more 
semblance  of  truth  as  to  this  kingdom  than  can  be  pretended 
as  to  France,  without  a  blind  sacrifice  of  undeniable  facts  at 
the  altar  of  plebeian  malignity.  In  the  celebrated  Lettres 
sur  I'Histoire  de  France,  published  about  1820,  there  seems 
to  be  no  other  aim  than  to  excite  a  factious  animosity  against 
the  ancient  nobility  of  France,  on  the  preposterous  hypoth- 
esis that  they  are  descended  from  the  followers  of  Clovis 
that  Frank  and  Gaul  have  never  been  truly  intermingled 


204  THE  CURIA  REGIS.  JSotes  to 

and  that  a  conquering  race  was,  even  in  this  age,  attempting 
to  rivet  its  yoke  on  a  people  who  disdained  it  This  strange 
theory,  or  something  like  it,  had  been  announced  in  a  very 
different  spirit  by  Boulainvilliers  in  the  last  century.  But 
of  what  family  in  France,  unless  possibly  in  the  eastern  part, 
can  it  be  determined  with  confidence  whether  the  founder 
were  Frank  or  Gallo-Roman  ?  Is  it  not  a  moral  certainty 
that  many  of  the  most  ancient,  especially  in  the  south,  must 
have  been  of  the  latter  origin  ?  It  would  be  highly  wrong 
to  revive  such  obsolete  distinctions  in  order  to  keep  up  social 
hatreds  were  they  founded  in  truth ;  but  what  shall  we  say 
if  they  are  purely  chimerical  ? 

Note  XHI.    Page  126. 

It  appears  to  have  been  the  opinion  of  Madox,  and  proba- 
bly has  been  taken  for  granted  by  most  other  antiquaries, 
that  this  court,  denominated  Aula  or  Ourta  Regis,  adminis- 
tered justice  when  called  upon,  as  well  as  advised  the  crown 
in  public  affairs,  during  the  first  four  Norman  reigns  as  much 
as  afterwards.  Allen,  however,  maintained  (Edinb.  Rev. 
jjcvi.  p.  364)  that  ^  the  administration  of  justice  in  the  last 
rssort  belonged  originally  to  the  great  council.  It  was  the 
king's  baronial  court,  and  his  tenants  in  chief  were  the  suitors 
and  judges."  Their  unwillingness  and  inability  to  deal  with 
intricate  questions  of  law,  which,  after  the  simpler  rules  of 
Anglo-Saxon  jurisprudence  were  superseded  by  the  subtle- 
ties of  Normandy,  became  continually  more  troublesome,  led 
to  the  separation  of  an  inferior  council  from  that  of  the 
legislature,  to  both  which  the  name  Ckiria  Regis  is  for  some 
time  indifferently  applied  by  historians.  This  was  done  by 
Henry  II.,  as  Allen  conjectures,  at  the  great  council  of 
Clarendon  in  1164. 

The  Lords'  Committee  took  another  view,  and  one,  it  must 
be  confessed,  more  consonant  to  the  prevailing  opinion. 
^The  ordinary  council  of  the  king,  properly  denominated 
by  the  word  '  concilium '  simply,  seems  always  to  have  con- 
sisted of  persons  selected  by  him  for  that  purpose ;  and  these 
persons  in  later  times,  if  not  always,  took  an  oath  of  office, 
and  were  assisted  by  the  king's  justiciaries  or  judges,  who 
seem  to  have  been  considered  as  members  of  this  council ; 
and  the  chief  justiciar,  the  treasurer  and  chancellor,  and  soma 


CflAP.yiU.  THE  CURIA  BEGIS.  205 

Other  great  officers  of  the  crown,  who  might  he  styled  the 
king's  confidential  ministers,  seem  also  to  have  been  always 
members  of  this  select  council ;  the  chief  justiciar,  from  the 
high  rank  attributed  to  his  office,  generally  acting  as  presi- 
dent. This  select  council  was  not  only  the  king's  ordinarf 
council  of  state,  but  formed  the  supreme  court  of  justice, 
denominated  Curia  Regi$,  which  commonly  assembled  three 
times  in  every  year,  wherever  the  king  held  his  court,  at  the 
three  great  feasts  of  Easter,  Whitsuntide,  and  Christmas,  and 
sometimes  also  at  Michaelmas.  Its  constant  and  important 
duty  at  those  times  was  the  administration  of  justice." 
(p.  20.) 

It  has  been  seen  in  a  former  note  that  the  meetings  da  more. 
thn>e  times  in  the  year,  are  supposed  by  Mr.  Allen  to  have 
been  of  the  great  council,  composed  of  the  baronial  aristoc- 
racy. The  positions,  therefore,  of  the  Lords'  committee  were 
of  course  disputed  in  his  celebrated  review  of  their  Report. 
^  So  for  is  it,"  he  says,  ^  from  being  true  that  the  term  Curia 
Regis,  in  the  time  of  the  Conqueror  and  his  immediate  suc- 
cessors, meant  the  king's  high  court  of  justice,  as  distinguish- 
ed from  the  legislature,  that  it  is  doubtful  whether  such  a 
court  then  existed."  (Ed.  Rev.  xxxv.  6.)  This  is  express- 
ed with  more  hesitation  than  in  the  earlier  article,  and  in  a 
subsequent  passage  we  read  that  ^  the  high  court  of  justice, 
to  which  the  committee  would  restrict  the  appellation  of  Curia 
Regis,  and  of  which  such  frequent  mention  is  made  under 
that  name  in  our  early  records  and  couits  of  law,  was  con- 
firmed and  fully  established  by  Henry  11.,  if  not  originally 
instituted  by  that  prince."     (p.  8.) 

The  argument  of  Mr.  Allen  rests  very  much  on  the  judi- 
cial functions  of  the  witenagemot,  which  he  would  consider  as 
maintained  in  its  substantial  character  by  the  great  councils 
or  parliaments  of  the  Norman  dynasty.  In  this  we  may 
justly  concur ;  but  we  have  already  seen  how  far  he  is  from 
having  a  right  to  assume  that  the  Anglo-Saxon  kings,  though 
they  might  administer  justice  in  the  full  meetings  called 
witenagemots,  were  restrained  fix>m  its  exercise  before  a 
smaller  body  more  permanently  attached  to  their  residence. 
It  is  certain  that  there  was  an  appeal  to  the  king's  court  for 
denial  of  justice  in  that  of  the  lord  having  territorial  jurisdic* 
tion,  and,  as  the  words  and  the  reason  imply,  from  that  of 
the. sheriff.     (Leg.  Hen.  I.  c.  58.)    This  was  also  the  law 


206  THE  CURIA  REGIS.  Motbi  to 

before  the  Conquest.  But  the  plaintiff  incurred  a  fine  if 
he  brought  his  cause  in  the  first  instance  before  the  king. 
(Thorpe's  Ancient  Laws,  p.  85 ;  and  see  Edinb.  Rev.  xxxv. 
10.)  It  hardly  appears  evident  that  these  cases,  rare  proba- 
bly and  not  generally  interesting,  might  not  be  determined 
ostensibly,  as  they  would  on  any  hypothesis  be  in  reality,  by 
the  chancellor,  the  high  justiciar,  and  other  great  officers  of 
the  crown,  during  the  intervals  of  the  national  council ;  and 
this  is  confirmed  by  the  analogy  of  the  royal  courts  in  France, 
which  were  certainly  not  constituted  on  a  very  broad  basis. 
The  feudal  court  of  a  single  barony  might  contain  all  the  vas- 
sals ;  but  the  inconvenience  would  have  become  too  great  if  the 
principle  had  been  extended  to  all  the  tenants  in  chief  of  the 
realm.  This  relates  to  the  first  four  reigns,  for  which  we  are 
reduced  to  these  grounds  of  probable  and  analogical  reaaoningi 
since  no  proof  of  the  distinct  existence  of  a  judicial  court 
seems  to  be  producible. 

In  the  reign  of  Henry  U.  a  court  of  justice  is  manifestly 
distinguishable  both  from  the  select  and  from  the  greater 
council.  ^  In  the  Curia  Regis  were  discussed  and  tried  all 
pleas  immediately  concerning  the  king  and  the  realm ;  and 
suitors  were  allowed,  on  payinent  of  fines,  to  reirfbve  their 
plaints  from  inferior  jurisdictions  of  Anglo-Saxon  creation 
into  this  court,  by  which  a  variety  of  business  was  wrested 
from  the  ignorance  and  partiality  of  lower  tribunals,  to  be 
more  confidently  submitted  to  the  decision  of  judges  of  high 
reputation.  Some  plaints  were  also  removed  into  the  Curia 
Regis  by  the  express  order  of  the  king,  others  by  the  justices, 
then  itinerant,  who  not  unfrequently  felt  themselves  incom- 
petent to  decide  upon  'difficult  points  of  law.  Matters  of  a 
fiscal  nature,  together  with  the  business  performed  by  the 
Chancery,  were  also  transacted  in  the  Curia  Regis.  Such  a 
quantity  of  miscellaneous  business  was  at  length  found  to  be 
so  perplexing  and  impracticable,  not  only  to  the  officers  of 
the  Curia  Regis,  but  also  to  the  suitors  themselves,  that  it 
became  absolutely  necessary  to  devise  a  remedy  for  the  in- 
creasing evil.  A  division  of  that  court  into  distinct  depart- 
ments was  the  consequence ;  and  thenceforth  pleas  touching 
tlie  crown,  together  with  common  pleas  of  a  civil  and  crim- 
inal nature,  were  continued  to  the  Curia  Regis;  plaints  of  a 
fiscal  kind  were  transferred  to  the  Exchequer ;  and  for  the 
Court  of  Chancery  were  reserved  all  matters  unappropriated 


Cbat.  nil.  THE  CUBIA  REGIS.  207 

to  the  Oilier  courts."     (Hard/s  Litrodaction  to  Close  Bolls 
p.  23.) 

Mr.  Hardy  quotes  a  passage  from  Benedict  Abbas,  a 
contemporary  historian,  which  illustrates  very  remarkably 
the  development  of  our  judicial  polity.  Henry  II.,  in  1176, 
reduced  the  justices  in  the  Curia  Begis  from  eighteen  to 
five ;  and  ordered  that  they  should  hear  and  determine  all 
writs  of  tlie  kingdom  —  not  leaving  the  king's  court,  but 
remaining  there  for  that  purpose;  so  that,  if  any  question 
should  arise  which  they  could  not  settle,  it  should  be  referred 
to  the  king  himself,  and  be  decided  as  it  might  please  him 
and  the  wisest  men  of  the  realm.  And  this  reduction  of  the 
justices  from  eighteen  to  five  is  said  to  have  been  made  per 
eansiltum  sapienHum  regni  mi ;  which  may,  perhaps,  be 
understood  of  parliament.  But  we  have  here  a  distinct 
mention  of  the  Curia  Begis,  as  a  standing  council  of  the 
king,  neither  to  be  confounded  with  the  great  council  or  par- 
liament, nor  with  the  select  body  of  judges,  which  was  now 
created  as  an  inferior,  though  most  important  tribunal.  From 
this  time,  and  probably  from  none  earlier,  we  may  date  the 
commencement  of  the  Court  of  King's  Bench,  which  very 
soon  acquired,  at  first  indifferently  with  the  council,  and  then 
exclusively,  the  appellation  of  Curia  Begis. 

The  rolls  of  the  Curia  Begis,  or  Court  of  King's  Bench, 
begin  in  the  sixth  year  of  Bichard  I.  They  are  regularly 
extant  from  that  time ;  but  the  usage  of  preserving  a  regular 
written  record  of  judicial  proceedings  was  certainly  practised 
in  England  during  the  preceding  reign.  The  roll  of  Michael- 
mas Term,  in  9  John,  contains  a  short  transcript  of  certain 
pleadings  in  7  Hen.  IL,  ^  proving  that  the  mode  of  enrol- 
ment was  then  entirely  settled."  (Palgrave's  Introduction  to 
Rot  Cur.  Begis,  p.  2.)  This  authentic  precedent  (in  1161), 
though  not  itself  extant,  must  lead  us  to  carry  back  the 
judicial  character  of  the  Curia  Begis,  and  that  in  a  perfectly 
regular  form,  at  least  to  an  early  part  of  the  reign  of  Henry 
11. ;  and  this  is  more  probable  than  the  date  conjectured  by 
Allen,  the  assembly  at  Clarendon  in  1164.^  But  in  fact  the 
interruption  of  the  regular  assemblies  of  the  great  council, 
thrice  a  year,  which  he  admits  to  date  fi*om  the  reign  of 

1  This  difootvry  hu  led  SirF.  FalgraTv  GlftOTil  fA'Ang  vm  no  reason  to  pfMonia 

to  eorreet  hU  fbiner  opinion,  that  the  any  written  records  in  his  tfane    SogUsh 

loUs  of  Cnria  Begis  under  Richard  I.  Commonw.  toI.  IL  p.  1. 
wr  piuoabij  the  Urat  ttiat  ever  existed. 


208  THE  CUBIA  BEGIS.  Norn  10 

Stephen,  would  necessitate,  even  on  his  hypothesis,  the  insti- 
tution of  a  separate  court  or  council,  lest  justice  should  be 
denied  or  delayed.  I  do  not  mean  that  in  the  seventh  year 
of  Henry  II.  there  was  a  Court  of  King's  Bench,  distinct 
from  the  select  council,  which  we  have  not  any  grounds  for 
affirming,  and  the  date  of  which  I,  on  the  authority  of  Bene- 
dict Abbas,  have  inclined  to  place  several  years  lower,  but 
that  suits  were  brought  before  the  king's  judges  by  regular 
process,  and  recorded  by  regular  enrolment. 

These  rolls  of  the  Ouria  Regis,  or  the  King's  Court,  held 
before  liis  justices  or  justiciars,  are  the  earliest  consecutive 
judicial  records  in  existence.  The  Olim  Registers  of  the 
Parliament  of  Paris,  next  to  our  own  in  antiquity,  begin  in 
1254.*  (Palgrave's  Introduction,  p.  1.)  Every  reader,  he 
observes,  will  be  struck  by  the  great  quantity  of  business 
transacted  before  the  justiciars.  ^^And  when  we  recollect 
tlie  heavy  expenses  which,  even  at  this  period,  were  attend- 
ant upon  legal  proceedings,  and  the  difficulties  of  communi- 
cation between  the  remote  parts  of  the  kingdom  and  tlie 
central  tribunal,  it  must  appear  evident  that  so  many  cases 
would  not  have  been  prosecuted  in  the  king's  court  had  not 
gome  very  decided  advantage  been  derived  from  this  source." 
(p.  6.)  The  issues  of  fact,  however,  were  remitted  to  be 
tried  by  a  jury  of  the  vicinage ;  so  that,  possibly,  the  ex- 
pense might  not  be  quite  so  considei*able  as  is  here  suggested. 
And  the  jurisdiction  of  the  county  and  hundred  courts  was 
60  limited  in  real  actions,  or  those  affecting  land,  by  the 
assizes  of  novel  disseizin  and  mort  d'ancestor,  that  there  was 
no  alternative  but  to  sue  before  the  courts  at  Westminster. 

It  would  be  travelling  beyond  the  limits  of  my  design  to 
dwell  longer  on  these  legal  antiquities.  The  reader  will 
keep  in  mind  the  threefold  meaning  of  Curia  Regis:  the 
common  council  of  the  realm,  already  mentioned  in  a  former 
note,  and  to  be  discussed  again ;  the  select  council  for  judi- 
cial as  well  as  administrative  purposes ;  and  the  Court  of 
King's  Bench,  separated  from  the  last  in  the  reign  of  Henry 
II.,  and  soon  aflerwards  acquiring,  exclusively,  the  denomi- 
nation Curia  Regis. 

In  treating  the  judges  of  the  Court  of  Exchequer  as 
officers  of  the  crown,  rather  than  nobles,  I  have  followed  the 

1  Tli«gr  an  puUIalMd  In  fh*  DoonoMni  ToMltg,  1S89,  by  M.  Bragnot. 


CHAF.Yin.  SUCCESSION  TO  THE  CROWN.  209 

asual  opinion.  But  Allen  contends  that  tbej  were  ^  barons 
selected  from  the  common  council  of  the  realm  on  account 
of  their  rank  or  reputed  qualifications  for  the  office."  They 
met  in  the  palace ;  and  their  court  was  called  Curia  Regis, 
with  the  addition  ^  ad  scaccarium."  Hence  Fleta  observes 
that,  afler  the  Court  of  Exchequer  was  filled  with  mere 
lawyers,  they  were  styled  barons,  because  formerly  real 
barons  had  been  the  judges;  '^justiciarios  ibidem  commo- 
rantes  barones  esse  dicimus,  eo  quod  suis  locis  barones  sedere 
Bolebant."  (Edinb.  Rev.  xxxv.  11.)  This  is  certainly  an 
important  remark.  But  in  practice  it  is  to  be  presumed  that 
the  king  selected  such  barons  (a  numerous  body,  we  should 
remember)  as  were  likely  to  look  well  after  the  rights  of  the 
crown.  The  Court  of  Exchequer  is  distinctly  traced  to  the 
reign  of  Henry  I. 

Note  XIV.    Page  134. 

The  theory  of  succession  to  the  crown  in  the  Norman 
period  intimated  in  the  text  has  now  been  extensively  re- 
ceived. "  It  does  not  appear,'*  says  Mr.  Hardy,  "  that  any 
of  the  early  English  monarchs  exercised  any  act  of  sovereign 
power,  or  disposed  of  public  affairs,  till  after  their  election 
and  coronation.  .  •  •  These  few  examples  appear  to  be 
undeniable  proofs  that  the  fundamental  laws  and  institutions 
of  this  kingdom,  based  on  the  Anglo-Saxon  custom,  were  at 
that  time  agamst  an  hereditary  succession  unless  by  common 
consent  of  the  realm."  (Introduction  to  Close  Rolls,  p.  85.) 
It  will  be  seen  that  this  abstinence  from  all  exercise  of  power 
cannot  be  asserted  without  limitation. 

The  early  kings  always  date  their  reign  from  their  coro- 
nation, and  not  from  the  decease  of  their  predecessor,  as  is 
shown  by  Sir  Harris  Nicolas  in  his  Chronology  of  History 
(p.  272).  It  had  been  with  less  elaborate  research  pointed 
out  by  Mr.  Allen  in  his  Inquiry  into  the  Royal  Prerogative. 
The  former  has  even  shown  that  an  exception  which  Mr. 
Allen  had  made  in  respect  of  Richard  L,  of  whom  he  sup- 
poses public  acts  to  exist,  dated  in  the  first  year  of  his  reign, 
but  before  his  coronation,  ought  not  to  have  been  made ; 
having  no  authority  but  a  blunder  made  by  the  editors  of 
Bymer^s  Fc&dera  in  antedating  by  one  month  the  decease 
of  Henry  IL,  and  following  up  that  mistake  by  the  usual 

VOL  II.-— X.  14 


210  SUCCESSION  TO  THE  CROWN.  NoiBi  lo 

Bssnmptioii  that  the  successor's  reigi^  commenced  immedi- 
ately, in  placing  some  instruments  bearing  date  in  the  first 
jear  of  Richard  just  twelve  months  too  early.  This  dis- 
covery has  been  confirmed  by  Mr.  W.  Hardy  in  the  27th 
volume  of  the  Archaeologia  (p.  109),  by  means  of  a  charter 
in  the  archives  of  the  duchy  of  Lancaster,  where  Richard, 
before  his  coronation,  confirms  the  right  of  Gerald  de  Cam- 
ville  and  his  wife  Nichola  to  the  inheritance  of  the  said 
Nichola  in  England  and  Normandy,  with  an  additional  grant 
of  lands.  In  this  he  only  calls  himself  ^  Ricardus  Dei 
gratiA  dominus  Angliae."  It  has  been  observed,  as  another 
slighter  circumstance,  that  he  uses  the  form  ego  and  meu» 
instead  of  nos  and  nosier. 

Whatever,  therefore,  may  have  been  the  case  in  earlier 
reigns,  all  the  kings,  indeed,  except  Henry  U.,  having  come 
in  by  a  doubtful  title,  we  perceive  that,  as  has  been  before 
said  in  the  text  on  the  authority  of  an  historian,  Richard  L 
acted  in  some  respects  as  king  before  the  title  was  constitu- 
tionally his  by  his  coronation.  It  is  now  known  that  John's 
reign  began  with  his  coronation,  and  that  this  is  the  date 
from  which  his  charters,  like  those  of  his  predecessors,  are 
reckoned.  But  he  seems  to  have  acted  as  king  before. 
(Palgrave's  Introduction  to  Rot  Cur.  Regis,  vol.  i.  p.  91 ; 
and  further  proof  is  adduced  in  the  Introduction  to  the 
second  volume.)  Palgrave  thinks  the  reign  virtually  began 
with,  the  proclamation  of  the  king's  peace,  which  was  at  some 
short  interval  after  the  demise  of  the  predecessor.  He  is 
positive  indeed  that  the  Anglo-Saxon  kings  had  no  right 
before  their  acceptance  by  the  people  at  their  coronation. 
But,  ''  afler  the  Conquest,"  he  proceeds,  '^  it  is  probable,  for 
we  can  only  speak  doubtingly  and  hypothetically,  that  the 
heir  obtained  the  royal  authority,  at  least  for  the  purposes  of 
administering  the  law,  from  the  day  that  his  peace  was 
proclaimed.  He  was  obeyed  as  chief  magistrate  so  soon  as 
he  was  admitted  to  the  high  office  of  protector  of  the  public 
tranquillity.  But  he  was  not  honored  as  the  king  until  the 
sacred  oil  had  been  poured  upon  him,  and  the  crown  set 
upon  his  head,  and  the  sceptre  grasped  in  his  hand."  (In- 
troduct  to  Rot.  Cur.  Reg.  p.  92.) 

This  hypothesis,  extremely  probable  in  all  cases  where  no 
opposition  was  contemplated,  is  not  entirely  that  of  Allen, 
Hardy,  and  Nicolas ;  and  it  seems  to  imply  an  admitted  right. 


Chap.  Vra.  PRIVATE  WARFARE.  211 

whicb  indeed  cannot  be  disputed  in  the  case  of  Henry  U^ 
who  succeeded  bj  virtue  of  a  treaty  assented  to  by  the  baro- 
nage, nor  is  it  likely  to  have  been  in  the  least  doubtful  when 
Richard  I.  and  Henry  UI.  came  to  the  throne.  It  is  impor- 
tant, however,  for  the  unlearned  reader  to  be  informed  that  he 
has  been  deceived  by  the  almanacs  and  even  the  historians, 
who  lay  it  down  that  a  king's  reign  has  always  begun  from 
the  death  of  his  predecessor :  and  yet,  that,  although  he  bore 
not  the  royal  name  before  his  coronation,  the  interval  of  a  va- 
cant throne  was  virtually  but  of  a  few  days ;  the  successor 
taking  on  himself  the  administration  without  the  royal  title, 
by  causing  public  peace  to  be  proclaimed. 

The  original  principle  of  the  necessity  of  consent  to  a  king's 
succession  was  in  some  measure  preserved,  even  at  the  death 
of  Henry  UI.  in  1272,  when  fifly-six  years  of  a  single  reign 
might  have  extinguished  almost  all  personal  recollections  of 
precedent.  ^  On  the  day  of  the  king's  burial  the  barons  swore 
fealty  to  Edward  I.,  then  absent  from  the  realm,  and  from 
this  his  reign  is  dated."  Four  days  having  elapsed  between 
the  death  of  Henry  and  the  recognition  of  Edward  as  king, 
the  accession  of  the  latter  was  dated,  not  from  his  father's 
death,  but  from  his  own  recognition.  Henry  died  on  the  1 6th 
of  November,  and  his  son  was  not  acknowledged  king  till  the 
20th.  (Allen's  Inquiry,  p.  44,  quoting  Palgrave's  Parlia- 
mentary Writs.)  Thus  this  recognition  by  the  oath  of  fealty 
came  in  and  was  in  the  place  of  the  coronation,  though  with 
the  importapt  difference  that  there  was  no  reciprocity. 

Note  XV.    Page  137. 

Mr.  Allen  has  differed  from  me  on  the  lawfulness  of  private 
war,  quoting  another  passage  from  Glanvil  and  one  from 
Bracton  (Edinb.  Rev.  xxx.  168)  ;  and  I  modified  the  passage 
afier  the  first  edition  in  consequence  of  his  remarks.  But  I 
adhere  to  the  substance  of  what  I  have  said.  It  appears,  in- 
deed, that  the  king's  peace  was  originally  a  personal  security, 
granted  by  charter  under  his  hand  and  seal,  which  could  not 
be  violated  without  incurring  a  penalty.  Proofs  of  this  are 
found  in  Domesday,  and  it  was  a  Saxon  usage  derived  from 
the  old  Teutonic  mundeburde,  William  I.,  if  we  are  to  believe 
what  is  written,  maintained  the  peace  throughout  the  reahn. 
But  the  general  proclamation  of  the  king's  peace  at  his  acces- 


212  PRIVATE  WARFARE.     Notes  to  Chap  YUL 

Bion,  which  hecame  the  regular  law,  may  have  been  intro- 
duced by  Henry  U.  Palgi^ve,  to  whom  I  am  indebted,  states 
his  clearly  enough.  '^  Peace  is  stated  in  Domesday  to  have 
been  given  by  the  king's  seal,  that  is,  by  a  writ  under  seaL 
This  practice,  which  is  not  noticed  in  the  Anglo-Saxon  laws, 
continued  in  the  protections  granted  at  a  mudi  later  period , 
though  after  the  general  law  of  the  king^s  peace  was  estab 
lished  such  a  charter  had  ceased  to  afford  any  special  privilege 
All  the  immunities  arising  from  residence  within  the  verge  oi 
ambit  of  the  king's  presence  —  from  the  truces,  as  they  are 
termed  in  the  continental  laws,  which  recurred  at  the  stated 
times  and  seasons  —  and  also  from  the  '  handselled '  protection 
of  the  king,  were  then  absorbed  in  the  general  declaration  of 
the  peace  upon  the  accession  of  the  new  monarch.  This 
custom  was  probably  introduced  by  Henry  H.  It  is  inconsist- 
ent with  the  laws  of  Henry  I. ;  which,  whether  an  authorized 
collection  or  not,  exhibit  the  jurisprudence  of  that  period,  but 
it  is  wholly  accordant  with  the  subsequent  tenor  of  the  pro- 
ceedings of  the  Curia  Regis."  (English  Commonwealth,  voL  I 
ii.  p.  105.) 

A  few  words  in  Glanvil  (those  in  Bracton  are  more  am- 
biguous);  which  may  have  been  written  before  the  king's 
peace  was  become  a  matter  of  permanent  law,  or  may  rather 
refer  to  Normandy  than  England,  ought  not,  in  my  opinion,  to 
be  set  against  so  clear  a  declaration.  The  right  of  private 
war  in  the  time  of  Henry  U.  was  giving  way  in  France ;  and 
we  should  always  remember  that  the  Anglo-Norman  govern- 
ment was  one  of  high  prerogative.  The  paucity  of  historical 
evidence  or  that  for  records  for  private  war,  as  an  usual  prao 
tice«  is  certainly  not  to  be  overlooked.  • 


t 


ACCESSION  OF  EDWABD  L  218 


CHAPTER  VIIL 


PART  III. 

THE   ENGLISH   CONSTITUTION. 

IMgn  of  Edward  1.  — CoDflmiado  Chartamm  —  Censtltation  of  ParHament^ttit 
PrelatM  —  the  Temporal  Peers  —  Tenure  bj  Barony  — Its  Changes  —  Difllcalty 
of  the  Sal^t — Origin  of  Representation  of  the  Commons  —  Knights  of  Shires  — 
their  Existence  doubtfully  traced  through  the  Reign  of  Henry  III.  —  Qnestlon 
whether  Representation  was  confined  to  Tenants  In  caplte  discussed— State  of 
English  Towns  at  the  Conquest  and  afterwards  —  their  I>rogress  —  Representa- 
tives  from  them  summoned  to  Parliament  by  Earl  of  Leicester  —  ImprobablU^ 
of  an  earlier  Orl^n — Cases  of  St.  Albans  and  Barnstaple  considered  —  Parlia 
^ents  under  Edward  I.  —  Separation  of  Knights  and  Burgesses  f^m  the  Peers  — 
Edward  II.  —  gradual  Progress  of  the  Authority  of  Parliament  traced  through 
the  Reigns  of  Edward  III.  and  his  Successors  down  to  Henry  IV.  —  PriTilege  of 
Parliament  —  the  early  Instances  of  It  noticed  —  Nature  of  Borough  Representa- 
tion— Rights  of  Election— other  Particulars  relatire  to  Election  —  House  of 
Lords  —  Baronies  by  Tenure  — by  Writ— Nature  of  the  Utter  discussed  — 
Creation  of  Peers  by  Act  of  Parliament  and  by  Patent—  Summons  of  Clergy  to 
Parliament  — King's  Ordinary  Council— Its  Judicial  and  other  Power  —  Charao* 
ter  of  the  Plantagenet  Government  —  Prerogative  —  Its  Excesses  —  erroneouf 
Views  corrected  —  Testimony  of  Sir  John  Fortesone  to  the  Freedom  of  the  Con- 
stitution— Causes  of  the  superior  Liberty  of  England  considered — State  of 
Society  In  England  — Want  of  Police— Vulenage— Its  gradual  Extinction  — 
latter  Tears  of  Henry  VI.  —  Regencies  —  Instances  of  them  enumerated— 
Pretensions  of  the  House  of  Tork,  and  War  of  the  Roses  — Edward  IV.  —Con- 
clusion. 

Though  the  andisputed  accession  of  a  prince  like  Edward 
I.  to  the  throne  of  his  father  does  not  seem  so  con-  Aoeession  of 
▼enient  a  resting-place  in  history  as  one  of  those  ^^~^  ^' 
revolutions  which  interrupt  the  natural  chain  of  events,  yet 
the  changes  wrought  during  his  reign  make  it  properly  an 
epoch  in  the  progress  of  these  inquiries.  And,  indeed,  as  ours 
is  emphatically  styled  a  government  by  king,  lords,  and  com- 
mons, we  cannot,  perhaps,  in  strictness  carry  it  forther  back 
than  the  admission  of  the  latter  into  parliament ;  so  that  if 
the  constant  representation  of  the  commons  is  to  be  referred 


214  CONFIRMATION  OF      Chap.  VUl.  Pact  M. 

to  the  age  of  Edward  L,  it  will  be  nearer  the  tmth  to  date 
the  English  constitution  from  that  than  from  anj  earlier  era* 
The  various  statutes  affecting  the  law  of  property  and 
administration  of  justice  which  have  caused  Edward  I.  to  be 
named,  rather  hyperbolicaily,  the  English  Justinian,  bear  no 
immediate  relation  to  our  present  inquiries.  In  a  constitu- 
Oonflrma-  tional  point  of  view  the  principal  object  is  tliat 
tion  of  tba  Statute  entitled  the  Confirmation  of  the  Charters^ 
*'*'**^  which  was  very  reluctantly  conceded  by  the  king 
in  the  25th  year  of  his  reign.  I  do  not  know  that  England 
has  ever  produced  any  patriots  to  whose  memory  she  owes 
more  gratitude  than  Humphrey  Bohun,  earl  of  Hereford  and 
Essex,  and  Roger  Bigod,  earl  of  Norfolk.  In  the  Great 
Charter  the  base  spirit  and  deserted  condition  of  John  take 
off  something  fix)m  the  glory  of  the  triumph,  though  they 
enhance  the  moderation  of  those  who  pressed  no  further  upon 
an  abject  tyrant.  But  to  withstand  the  measures  of  Edward, 
a  prince  unequalled  by  any  who  had  reigned  in  England  since 
the  Conqueror,  for  prudence,  valor,  and  success,  required  a  far 
more  intrepid  patriotism.  Their  provocations,  if  less  outrage- 
ous than  those  received  from  John,  were  such  as  evidently 
manifested  a  disposition  in  Edward  to  reign  witliout  any  con- 
trol ;  a  constant  refusal  to  confirm  the  charters,  which  in  that 
age  were  hardly  deemed  to  bind  the  king  without  his  actual 
consent ;  heavy  impositions,  especially  one  on  the  export  of 
wool,  and  other  unwarrantable  demands.  \  He  had  acted  with 
Buch  unmeasured  violence  towards  the  clergy,  on  aceounf  of 
their  refusal  of  further  subsidies,  that,  although  the  ill-judged 
policy  of  that  class  kept  their  interests  too  distinct  from  those 
of  the  people,  it  was  natural  for  all  to  be  alarmed  at  the  prec- 
edent of  despotism.^  These  encroachments  made  resistance 
justifiable,  and  the  circumstances  of  Edward  made  it  prudent* 
His  ambition,  luckily  for  the  people,  had  involved  him  in  for- 
eign warfare,  from  which  he  could  not  recede  without  disap- 
pointment and  dishonor.  Thus  was  wrested  from  him  that 
liunoud  titatute,  inadequately  denominated  the  ConiirmatioD 

1  The  ftillest  aeoount  m  po8«iM  of  Carte,  but  extremely  well  told  by  IIoiii** 

chene  douieittie  tranmrtions  from  1294  to  the  first  writer  who  had  the  merit  of  ex- 

1298  l8  in  Walter  Ueminffford,  one  of  the  posing  the  character  of  Edward  I.    Sec 

historians  edited  by  Hearne,  p.  52-168.  too  Knygh ton  in  Twyiiden'i  Decern  Soiip- 

They   ba?e    been    Ylleiy    perverted   by  tores,  col.  2492. 


Fj«gli8H  CoNBT.  THE  CHARTERS.  215 

oi'  the  Ciiartei-s,  because  it  added  another  pillar  to  our  con- 
stitution,  not  less  important  than  the  Great  Charter  itself.' 

It  was  enacted  by  the  25  Edw.  I.  that  the  charter  of  liber- 
ties, and  that  of  the  forest,  besides  being  explicitly  confirmed,' 
should  be  sent  to  all  sheriffs,  justices  in  eyre,  and  other  mag- 
istrates throughout  the  realm,  in  order  to  their  publication 
before  the  people ;  that  copies  of  them  should  be  kept  in 
cathedral  churches,  and  publicly  read  twice  in  the  year,  ac- 
companied by  a  solemn  sentence  of  excommunication  against 
all  who  should  infringe  them ;  that  any  judgment  given  con- 
trary to  these  charters  should  be  invalid,  and  holden  for  nought. 
This  authentic  promulgation,  those  awful  sanctions  of  the 
Great  Charter,  would  alone  render  the  statute  of  which  we 
are  speaking  illustrious.  But  it  went  a  great  deal  further. 
Hitherto  the  king's  prerogative  of  levying  money  by  name  of 
tallage  or  prize  from  his  towns  and  tenants  in  demesne  had 
passed  unquestioned.  Some  impositions,  that  especially  on 
the  export  of  wool,  affected  all  his  subjects.  It  was  now  the 
moment  to  enfranchise  the  people,  and  give  that  security  to 
private  property  which  IVIagna  Charta  had  given  to  personal 
liberty.  By  the  5th  and  6th  sections  of  this  statute  ^the  aids, 
tasks,  and  prizes,"  before  taken  are  renounced  as  precedents ; 
and  the  king  *'  grants  for  him  and  his  heirs,  as  well  to  arch- 
bishops, bishops,  abbots,  priors,  and  other  folk  of  holy  church, 
as  also  to  earls,  barons,  and  to  all  commonalty  of  the  land, 
that  for  no  business  from  henceforth  we  shall  take  such  man- 
ner of  aids,  tasks,  nor  prizes,  but  by  the  common  assent  of  the 
realm,  and  for  the  common  profit  thereof,  saving  the  ancient 
aids  and  prizes  due  and  accustomed."  The  toll  upon  wool, 
6o  far  as  levied  by  the  king's  mere  prerogative,  is  expressly 
released  by  the  seventh  section.* 

1  WaMngfaain,  in  Cftmden't  Seriptont  *  The  snppoMd  ttatnte,  De  Tallagto 

Ber.  Anglicarum,  p.  71-78.  hod  concedendo,  la  considered  by  Black- 

*  Edward  wonld  not  confirm  the  char-  stone  (Introduction  to  Chartera,  p.  67) 

leis,  notwithstanding  his  {>romise,  with*  as  merely  an  abstract  of  the  Conflrmatlo 

out  the  words,  salTo  jure  coronse  nostras ;  Cbartarum.    By  that  entitled   Articuli 

en   which    the   two  earls  retired   from  tnper  Chartas,  28  Edw.  I.,  a  court  wae 

eourt.     When  the  eonflrmation  was  read  erected  in  erery  county,  of  three  knighti 

to  the  people  at  St.  PanPs,  says  Heming-  or  others,  to  be  elected  by  the  commonf 

fbnl,  they  blesmd  the  king  on  seeing  the  of  the  shire,  whose  sole  proYince  was  to 

eharters  with  the  great  seal  affixed ;  but  determine  offences  against  the  two  eha^- 

vben  they  heard  the  captious  conclusion,  tors,  with  the  power  of  punishing  by  fine 

tbey  cuned  him  instead.    At  the  next  and  imprisonment ;  but  not  to  extend  t/ 

meeting  of  parliament,  the  king  agreed  any  case  wherein  a  remedy  by  writ  wmj 

to  cadi  Uieee  insidious  words,  p.  16S.  already  provided.   The  Conflimatio  Cbaar- 


216     CONSTITUTION  OF  PAELIAMENT.    Chap.  Vm.  Part  m 

We  oome  now  to  a  part  of  our  subject  exceedingly  impor- 
tant, but  more  intricate  and  controverted  than  any 
tion  of  '  other,  the  constitution  of  parliament.  I  have  taken 
parliament.  ^^  noticc  of  this  In  the  last  section,  in  order  to 
present  uninterruptedly  to  the  reader  the  gi*adual  progress  of 
our  legislature  down  to  its  complete  establishment  under  tlio 
Edwards.  No  excuse  need  be  made  for  the  dry  and  critical 
disquisition  of  the  following  pages ;  but  among  such  obscure 
inquiries  I  cannot  feel  myself  as  secure  from  error  as  I  cer- 
tainly do  from  partiality. 

One  constituent  branch  of  the  great  councils  held  by 
The  spiritual  William  the  Conqueror  and  all  his  successors  waa 
P*«"-  composed  of  the  bishops  and  the  heads  of  religious 

houses  holding  their  temporalities  immediately  of  the  crown. 
It  has  been  frequently  maintained  that  these  spiritual  lords 
eat  in  parliament  only  by  virtue  of  their  baronial  tenure. 
And  certainly  they  did  all  hold  baronies,  which,  according  to 
the  analogy  of  lay  peerages,  were  sufficient  to  give  them  such 
a  share  in  the  legislature.  Nevertlieless,  I  think  that  this  is 
rather  too  contracted  a  view  of  the  rights  of  the  English  hie- 
rarchy, and,  indeed,  by  implication,  of  the  peerage.  For  a 
great  council  of  advice  and  assent  in  matters  of  legislation  or 
national  importance  was  essential  to  all  the  northern  govern- 
ments. And  all  of  them,  except,  perhaps,  the  Lombards, 
invited  the  superior  ecclesiastics  to  their  councils ;  not  upon 
any  feudal  notions,  which  at  that  time  had  hardly  b^un  to 
prevail,  but  chiefly  as  representatives  of  the  church  and  of 
religion  itself;  next,  as  more  learned  and  enlightened  counsel- 
lors than  the  lay  nobility ;  and  in  some  degree,  no  doubt,  as 
rich  proprietors  of  land.  It  will  be  remembered  also  that 
ecclesiastical  and  temporal  affairs  were  originally  decided  in 
tlie  same  assemblies,  both  upon  the  continent  and  in  England. 

tarnm  is  properly  denominated  a  statute,  oedendo  "  altogether,  bnt  mj  that,  **lf 

and  al\Tayii   printed  as  Kuch ;    but   in  the  luanuncript  containing  It  (in  Oorpug 

fbnn,  like  Mngna  Charta,  It  \*  a  charter,  Chri^tl    Culle9»,  Cambridge)    is   a  tra« 

or  letters  patent,  proceeding  from  the  copy  of  a  atatute,  it  ifl  undoubtedly  ft 

crown,  without  evien  reciting  the  consent  copy  of  a  statute  of  the  25tli,  and  not 

of   the  realm.    And   its   ^'  teste "  is  at  of  a  statute  of  the  Slth  of  Edward  I.'* 

Ghent,  2  Nov.  1297 ;  Kdward  having  en-  p.  2S0.    It  seems  to  me  on  comparing  th« 

Ked,  conjointly  with    the   count   of  two,  that  the  supposed  statute  de  tallaglo 

nders,  in  a  war  with  Philip  the  Fair,  is  but  an  Imperfect  transcript  of    the 

But  a  parliament  had  been  held  at  Lon-  king's  charter  at  Ohent.    But  at  least,  Aa 

don,  when  the  barons  insisted  on  these  one  exists  In  an  authentic  form,  and  the 

concessions.    The  circumstances  are  not  other  is  only  found  in  an  unauthorised 

wholly  unlike  those  of  Magna  Charta.  copy,  there  can  bo  no  question  wlxieh 

The  Lords^  Committee  do  not  seem  to  ought  to  be  quoted, 
ndect  the  statute  ''  de  taliagio  non  con- 


tooLisH  Const.         THE  SPIRITUAL  PEERS.  217 

The  Norman  Conquest,  which  destroyed  the  Anglo-Saxon 
nobility,  and  substituted  a  new  race  in  their  stead,  could  not 
affect  the  immortality  of  church  possessions.  The  bishops  of 
Williiun's  age  were  entitled  to  sit  in  his  councils  by  tlie  gen 
^ral  custom  of  £urope,  and  by  the  common  law  of  England* 
which  the  Conquest  did  not  overturn.*  Some  smaller  argi'^ 
ments  might  be  urged  against  the  supposition  that  their  legis^ 
lative  rights  are  merely  baronial ;  such  as  that  the  guaixlian 
of  the  spiritualities  was  commonly  summoned  to  parliament 
during  the  vacancy  of  a  bishopric,  and  that  the  five  sees 
created  by  Henry  VIII.  have  no  baronies  annexed  to  them  ;* 
but  the  former  reasoning  appears  less  technical  and  confined.* 

Next  to  these  spiritual  lords  are  the  earls  and  barons,  or 
lay  peerage  of  England.  The  former  dignity  was,  perhaps, 
not  so  merely  official  as  in  the  Saxon  times,  although  the  earl 
was  entitled  to  the  tliird  penny  of  all  emoluments  arising 
from  the  administration  of  justice  in  the  county  courts,  and 
might,  perhaps,  command  the  militia  of  his  county,  when  it 
was  called  forth.*  Every  earl  was  als^o  a  baron,  and  held  an 
honor  or  barony  of  the  crown,  for  which  he  paid  a  higher 
relief  than  an  ordinary  baron,  probably  on  account  of  the 
profits  of  his  earldom.  I  will  not  pretend  to  say  whether 
titular  earldoms,  absolutely  distinct  from  the  lieutemmcy  of  a 
county,  were  as  ancient  as  the  Conquest,  which  Madox  seems 
to  tiiink,  or  were  considered  as  irregular  so  late  as  Henry 
IL,  according  to  Lord  Lyttelton.  In  Dugdale's  Baronage  I 
find  none  of  this  description  in  the  first  Norman  reigns ;  for 
even  that  of  Ckure  was  connected  with  the  local  earldom  of 
Hertford. 

It  is  univeraally  agreed  that  the  only  baronies  known  for 

1  Hody  (TreftttM  on  ConToeatioos,  p.  be  goremon  of  their  eottntles  nnder 
]26)et«teft  the  matter  thus:  Id  the  Saxon  Ilenry  II.  Stephen  created  a  few  titular 
ttiues  alt  bbhope  and  abbots  sat  and  rot-  earls,  with  grants  of  crown  lands  to  sup- 
ad  in  the  state  councils,  or  parliament,  port  them  ;  but  his  surcemior  resumed 
M  toch,  and  not  on  account  of  their  ten-  the  frrants,  and  depriTed  them  of  their 
VTBB.    After  the  Conquest  the  abbots  sat  earldunis. 

there  not  as  such,  but  by  virtue  of  their  In  Hymer^s  Foedera,  toI.  I.  p.  8,  we 

tenures,  as  barons;  and  the  bishops  sat  And  a  grant  of  Matilda,  creating  Mlloef 

In  a  doublia  capacity,  as  bishops,  and  aa  Gloucester  earl  of  Uerefbrd,  with    tba 

barona.  moat  and  castle  of  that  city  in  fee  to  him 

*  Llody,  p.  128.  and  his  heirs,  the  third  penny  of  the 
>  (NoTB  1.1  rent  of  the  city,  and  of  the  pleas  in  the 

*  Madoz,  Baronia  Angllea,  p.  188.  county,  three  maoors  and  a  forvst,  and 
IXalogus  de  Scaccario,  1.  i.  c.  1 1 .  Lvt-  the  senrioe  of  thrpe  tenants  in  chief,  with 
teltoa's  Uenry  II.  toL  U.  p.  217.  The  all  their  fleb  ;  to  be  held  with  all  privi^ 
last  of  these  wxiten  suppot^M,  contrary  leges  and  liberties  as  fiilly  as  ever  an} 
la  Saldaa,  thai  the  earls  continued  to  earl  in  England  bad  poneased  tlMm. 


218  QUESTION  AS  TO  THE      Chap.  VHl.  I'aitt  III 

oiMirfion  *^^  centuries  after  the  Conquest  were  incident  to 
to  the  **  the  tenure  of  land  held  immediatelj  from  the 
gjjj^'-  crown.  There  are,  however,  material  difficulties 
in  the  way  of  rightly  understanding  their  nature 
which  ought  not  to  be  passed  over,  because  the  consideration 
of  baronial  tenures  will  best  develop  the  formation  of  our 
parliamentary  system.  Two  of  our  most  eminent  legal  anti- 
quaries, Selden  and  Madox,  have  entertained  different  opin« 
ions  as  to  the  cliaracteristics  and  attributes  of  this  tenure. 

According  to  the  first,  every  tenant  in  chief  by  knight- 
Thoorj  of  service  was  an  honorary  or  parliamentary  baron 
Beiden;  lyy  yeason  of  his  tenure.     AH  these  were  sum- 

moned to  the  king's  councils,  and  were  peers  of  his  courL 
Tlieir  baronies,  or  honors,  as  they  were  frequently  called, 
consisted  of  a  number  of  knight's  fees ;  that  is,  of  estates, 
from  each  of  which  the  feudal  service  of  a  knight  was  due ; 
not  fixed  to  tliii*teen  fees  and  a  third,  as  has  been  erroneously 
conceived,  but  varying  according  to  the  extent  of  the  barony 
and  the  reservation  of  service  at  the  time  of  its  creation. 
Were  they  more  or  fewer,  however,  their  owner  was  equally 
a  baron,  and  summoned  to  serve  the  king  in  parliament  with 
his  advice  and  judgment,  as  appears  by  many  records  and 
passages  in  history. 

But  about  the  latter  end  of  John's  reign,  some  only  of  the 
most  eminent  tenants  in  chief  were  summoned  by  particular 
writs ;  the  rest  by  one  general  summons  through  the  sheriffs 
of  their  several  counties.  This  is  declared  in  the  Gi'eat 
Charter  of  that  prince,  wherein  he  promises  that,  whenever 
an  aid  or  scutage  £hall  be  required,  &clemus  summoneri 
archiepiscopos,  episcopos,  abbates,  comites  et  majores  barones 
rcgni  sigillutim  per  literas  nostras.  £t  prseterea  faciemus 
Bummoneri  in  generali  per  vicecomites  et  ballivos  nostros 
omnes  alios  qui  in  capite  tenent  de  nobis.  Thus  the  barons 
are  distinguished  from  other  tenants  in  chief,  as  if  the  former 
name  were  only  applicable  to  a  particular  number  of  the 
king's  immediate  vassals.  But  it  is  reasonable  to  think  that, 
before  this  charter  was  made,  it  had  been  settled  by  tlie  law 
of  some  other  parliament,  how  these  greater  btirons  should 
be  distinguished  from  the  lesser  tenants  in  chief;  else  what 
certainty  could  there  be  in  an  expression  so  general  and  in- 
definite ?  And  this  is  likely  to  have  proceeded  from  the 
pride  with  which  the  ancient  and  wealthy  barons  of  the  realm 


EnoLUR  C0H8T.         NATURE  OF  BARONIES.  219 

would  regard  those  newly  created  bj  grants  of  escheated 
honors,  or  those  decayed  in  estate,  who  yet  were  bj  their 
tenures  on  an  equality  with  themselves.  They  procured 
therefore  two  innovations  in  their  condition ;  first  that  these 
inferior  barons  should  be  summoned  generally  by  the  sheriff, 
instead  of  receiving  their  particular  writs,  which  made  an 
honorary  distinction  ;  and  next,  that  they  should  pay  relief^ 
not,  as  for  an  entire  barony,  one  hundred  marks ;  but  at  the 
rate  of  five  pounds  for  each  knight's  fee  which  they  held  of 
the  crown.  This  changed  their  tenure  to  one  by  mere  knight- 
service,  and  their  denomination  to  tenants  in  chief.  It  was 
not  difficult,  afterwards,  for  the  greater  barons  to  exclude 
any  from  coming  to  parliament  as  such  without  partio- 
nlar  writs  directed  to  them,  for  which  purpose  some  law 
was  probably  enacted  in  the  reign  of  Henry  II L  If  indeed 
we  could  place  reliance  on  a  nameless  author  whom  Camden 
has  quoted,  this  limitation  of  the  peerage  to  such  as  were 
expressly  summoned  depended  upon  a  statute  made  soon  afler 
the  battle  of  Evesham.  But  no  one  has  ever  been  able  to 
discover  Camden's  authority,  and  the  change  was,  probably, 
of  a  much  earlier  date.^ 

Such  is  the  theory  of  Selden,  which,  if  it  rested  less  upon 
conjectural  alterations  in  the  law,  would  undoubt- 
edly  solve  some  material  difficulties  that  occur  in  ^ 

the  opposite  view  of  the  subject.  According  to  Madox,  ten- 
ure by  knightrservice  in  chief  was  always  distinct  ^^^  ^^^^^ 
from  that  by  barony.  It  is  not  easy,  however,  to  vations 
point  out  the  characteristic  differences  of  the  two ;  ^°  ^^^ 
nor  has  that  eminent  antiquary,  in  his  large  work,  the  6a- 
ronia  Anglica,  laid  down  any  definition,  or  attempted  to  ex- 
plain the  real  nature  of  a  barony.  The  distinction  could  not 
consist  in  the  number  of  knight's  fees ;  for  the  barony  of 
II wayton  consisted  of  only  three ;  while  John  de  Baliol  held 
thirty  fees  by  mere  knight-service.'  Nor  does  it  seem  to 
have  consisted  in  the  privilege  or  service  of  attending  par- 
liament, since  all  tenants  in  chief  were  usually  summoned* 
But  whatever  may  have  been  the  line  between  these  modes 
of  tenure,  there  seems  complete  proof  of  their  separation 
long  before  the  r^ign  of  John.  Tenants  in  chief  are  enu* 
merated  distinctly  from  earls  and  barons  in  the  charter  of  * 

«  ftldMi'a  Woikih  Tol.  iU.  p.  71S-748.       ■  I^ttelton'i  JUaxj  IL  foL  B.  9. 


220  NATURE  OF  BARONIES.    Chap.  VHI.  Part  IIL 

Henry  I.  Knights,  as  well  as  barons,  are  named  as  present 
in  the  parliament  of  Northampton  in  1 1 65,  in  that  held  at 
the  same  town  in  1176,  and  upon  other  occasions.^  St* vera] 
persons  appear  in  the  Liber  Niger  Scaccarii,  a  roll  of  military 
tenants  made  in  the  age  of  Henry  II.,  who  held  single  knight's 
fees  of  the  crown.  It  is,  however,  highly  probable,  that,  in  a 
lax  sense  of  the  word,  these  knights  may  sometimes  have 
been  termed  barons.  The  author  of  the  Dialogus  de  Scac- 
cario  speaks  of  those  holding  greater  or  lesser  baronies,  in- 
cluding, as  appears  by  the  context,  all  tenants  in  chief.'  The 
former  of  these  seem  to  be  the  majores  barones  of  King 
John's  Charter.  And  the  secundae  dignitatis  barones,  said 
by  a  contemporary  historian  to  have  been  present  in  the  par- 
liament of  Northampton,  were  in  all  probability  no  other 
than  the  knightly  tenants  of  the  crown.'  For  the  word  barO| 
originally  meaning  only  a  man,  was  of  very  large  signifi- 
cance, and  is  not  unfrequently  applied  to  common  freeholders, 
as  in  the  phi*ase  of  court-baron.  It  was  used  too  for  the 
magistrates  or  chief  men  of  cities,  as  it  is  still  for  the  judges 
of  the  exchequer,  and  the  representatives  of  the  Cinque 
Ports.* 

The  passage  however  before  cited  from  the  Great  Charter 
of  John  affords  one  spot  of  firm  footing  in  the  course  of  our 
progress.  Then,  at  least,  it  is  evident  that  all  tenants  in  chief 
were  entitled  to  their  summons  ;  the  greater  barons  by  par- 
ticular writs,  the  rest  through  one  directed  to  their  sherifil 
The  epoch  when  all,  who,  though  tenants  in  chief,  had  not 
been  actually  summoned,  were  deprived  of  their  right  of  at- 
tendance in  parliament,  is  again  involved  in  uncertainty  and 
conjecture.  The  unknown  writer  quoted  by  Camden  seems 
not  sufiicient  authority  to  establish  his  assertion,  that  they 
were  excluded  by  a  statute  made  after  the  battle  of  Evesham. 
The  principle  was  most  hkely  acknowledged  at  an  earlier 
time.  Simon  de  Montfort  summoned  only  twenty-three  tem- 
poral peers  to  his  famous  parliament    In  the  year  1255  the 

1  Ho<|y  on  ConToeatloiis,  p.  222,  284.  {Hirllament  at  that  tlm*.    Bat  Hum*. 

*  Lib.  il.  e.  9.  amuiiiing  at  odc«  the  truth  of  their  la* 

*  IloJy  aud  I^ord  Lyttelton  maintain  terpreUtlon  In  thl«  Iniitanre,  and  the 
them  *'  baroiii  of  the  Mcond  rank"  to  falftehood  of  their  Myatem,  tivBtt  it  aa  a 
haTe  been  the  aub-Taaaals  of  the  crown  ;  deviation  fh)ni  the  efftubliHhcd  rule.  an4 
ti'nanta  of  the  fcreat  barona  to  whom  the  a  proof  of  the  unaettied  atate  of  the  ood> 
name  waa  aoQietiuiea  ioipropvrlv  applied,  atltution. 

Thia  waa  Tory  consitftcut  with  their  opin-       *  [Nori  11.] 
km*  that  feba  sommooi  were  a  i»art  of 


\ 


EiiGLUR  C0JI8T.  TENANTS  IN  CHIEF.  221 

barons  complained  that  many  of  their  number  had  not  reeeiy^ 
ed  their  writs  according  to  the  tenor  of  the  charter,  and  re- 
fused to  grant  an  aid  to  the  king  till  they  were  issued.^  But 
it  would  have  been  easy  to  disappoint  this  mode  of  packing  a 
parliament,  if  an  unsummoned  baron  could  have  sat  by  mere 
right  of  his  tenure.  The  opinion  of  Selden,  that  a  law  of  ex- 
clusion was  enacted  towards  the  beginning  of  Henry's  reign 
is  not  liable  to  so  much  objection.  But  perhaps  it  is  umie- 
cessary  to  frame  an  hypothesis  of  this  nature.  Writs  of 
summons  seem  to  have  been  older  than  the  time  of  John ;  ^ 
and  when  tliis  had  become  the  customary  and  regular  prelim- 
inary of  a  baron's  coming  to  parliament,  it  was  a  natural  tran- 
sition to  look  upon  it  as  an  indispensable  condition ;  in  times 
when  the  prerogative  was  high,  the  law  unsettled,  and  the 
service  in  parliament  deemed  by  many  still  more  burden- 
some than  honorable.  Some  omissions  in  summoning  the 
Ling's  tenants  to  former  parliaments  may  perhaps  have  pro- 
duced the  above-mentioned  provision  of  the  Great  Charter, 
which  had  a  relation  to  the  imposition  of  taxes  wherein  it  was 
deemed  essential  to  obtain  a  more  universal  consent  than  was 
required  in  councils  held  for  state,  or  even  for  advice.* 

It  is  not  easy  to  determine  how  long  the  inferior  tenants  in 
diief  continued  to  sit  personally  in  parliament*    In  whether 
the  charters  of  Henry  III.,  the  clause  which  we  JT^jJJ"*"*" 
Lave  been   considering  is  omitted :  and   I  think  attended 
ti.ei«  is  no  express  pr^f  lemaining  that  t|>e  shei^  'Tnl'T" 
iff'  was  ever  directed  to  summon  the  king's  military  ii««»<*y  ill. 
tenants  within  his  county,  in  the  manner  which  the  charter  of 
John  required.     It  appears  however  that  they  were  in  fact 
members  of  parliament  on  many  occasions  during  Henry's 
reign,  which  shows  that  they  were  summoned  either  by  par- 
ticular writs  or  through  the  sheriff;  and  the  latter  is  the  more 
plausible  conjecture.     There  is  indeed  gi*eat  obscurity  as  to 
the  constitution  of  parliament  in  this  reign ;  and  the  passages 
which  I  am  about  to  produce  may  lead  some  to  conceive  that 


1  M.  Paris,  p.  785.    The  baroni  eren  out  a  partienlar  •amnions.    Carte,  Td. 

leU  the  king  that  this  was  nontrary  to  li.    p.  248. 

kis  charter,  In  which  DeTrrthelem  the  *  upon  the  subject  of  tenure  by  bai^ 

danse  to  that  effect,  contained  in  his  ony.  besides  the  writerM  already  q'aoti«d. 

fcttM*r*s  charter,  had  been  omitted.  see  West's  Inquiry  into  the  Method  of 

*  Henry  H..  in  1176,  forbade  any  of  creating  Peers,  and  Cartels  History  of 

ttiooe  who  haa  been  concerned  in  the  England,  toI.  U  p.  2i7. 
lala  rabeUkm  to  oome  to  hli  coort  with- 


222  OBIGm  AND  PROGBESS  OF    Chap.  VHI.  Pabf  OL 

the  freeholders  were  represented  even  fi:x>in  its  beginning. 
I  rather  incline  to  a  different  opinion. 

In  the  Magna  Charta  of  1  Henry  III.  it  is  said :  Pro  h&o 

donatione  et  concessione archiepiscopi,  episcopi,  com- 

ites,  barones,  milites,  et  liber^  tenentes,  et  onines  de  regno 
nostro,  dederunt  nobis  quintam  decimam  partem  omnium  bo- 
norum  suorum  mobiliUm.^  So  in  a  record  of  19  Henry  III. : 
Comites,  et  barones,  et  omnes  alii  de  toto  regno  nostro  An- 
gliae,  spontanea  voluntate  sua  concesserunt  nobis  efficax  aux- 
ilium.*  The  largeness  of  these  words  is,  however,  controlled 
by  a  subsequent  passage,  which  declares  the  tax  to  be  im- 
posed ad  mandatum  omnium  oomitum  et  baronum  et  omnium 
aliorum  qui  de  nobis  tenent  in  capite.  And  it  seems  to  have 
been  a  general  practice  to  assume  the  common  consent  of  all 
ranks  to  that  which  had  actually  been  agreed  by  the  higher. 
In  a  similar  writ,  21  Henry  lU.,  the  ranks  of  men  are  enu- 
merated specifically  ;  archiepiscopi,  episcopi,  abbates,  priores, 
et  clerici  terras  habentes  quse  ad  ecclesias  suas  non  pertinent, 
comites,  barones,  milites,  et  liberi  homines,  pro  se  et  suis  vil- 
lanis,  nobis  concesserunt  in  auxilium  tncesimam  partem  om- 
nium mobilium.  *  In  the  close  roll  of  the  same  year,  we 
have  a  writ  directed  to  the  archbishops,  bishops,  abbots,  priors, 
earls,  barons,  knights,  and  freeholders  (liberi  homines)  of 
Ireland,  in  which  an  aid  is  desired  of  them,  and  it  is  urged 
that  one  had  been  granted  by  his  fideles  Anglise.  ^ 

But  this  attendance  in  parliament  of  inferior  tenants  in 
chief,  some  of  them  too  poor  to  have  received  knighthood, 
grew  insupportably  vexatious  to  themselves,  and  was  not 
well  liked  by  the  king.  He  knew  them  to  be  dependent  up- 
on the  barons,  and  dreaded  the  confluence  of  a  multitude,  who 
assumed  the  privilege  of  coming  in  arms  to  the  appointed 
place.  So  inconvenient  and  mischievous  a  scheme  could  not 
long  subsist  among  an  advancing  people,  and  fortunately  the 
true  remedy  was  discovered  with  little  diiBculty. 

The  principle  of  representation,  in  its  widest  sense,  can 
Origia  and  hardly  be  unknown  to  any  government  not  purely 
P"*g^  ^  democratical.  In  almost  every  country  the  sense 
vtj  repra-      of  the  whole  is  understood  to  be  spoken  by  a  part, 

^^'^^      and  the  decisions  of  a  part  are  binding  upon  the 


■en 


1  Hodr  on  GonTooattoDf ,  p.  298.  *  Bndy^s  Htefeoty  of  *^«'*'»,  vol.  I 

•  Bnulj,  Introdaotkm  to  History  of    Appendix,  p.  182. 
BBglud.    Appendix,  p.  48.  «  Bndj^i  Introdnetioa,  p.  M 


EHGLun  CoaiST.    PA.RT.TAMKNTABY  BEPRESENTATION.        223 

whole.  Among  our  ancestors  the  lord  stood  in  the  place  of 
his  vassals,  and,  still  more  unquestionably,  the  abbot  in  that 
of  his  monks.  The  system  indeed  of  ecclesiastical  councils, 
considered  as  organs  of  the  church,  rested  upon  the  principle 
of  a  virtual  or  an  express  representation,  and  had  a  tendency 
to  render  its  application  to  national  assemblies  more  familiar. 
The  Afst  instance  of  actual  representation  which  occurs  in  our 
history  is  only  four  years  after  the  Conquest ;  when  William, 
if  we  may  rely  on  Hoveden,  caused  twelve  persons  skilled  in 
the  customs  of  England  to  be  chosen  from  each  county,  who 
were  sworn  to  inform  him  rightly  of  their  laws ;  and  these, 
80  ascertained,  were  ratified  by  the  consent  of  the  gi'eat  coun- 
cil. This,  Sir  Matthew  Hale  asserts  to  be  *'  as  sufRcient  and 
effectual  a  parliament  as  ever  was  held  in  England."  ^  But 
there  is  no  appearance  that  tliese  twelve  deputies  of  each 
county  were  invested  with  any  higher  authority  than  that  of 
declaring  their  ancient  usages.  No  stress  can  be  laid  at  least 
on  this  insulated  and  anomalous  assembly,  the  existence  of 
which  is  only  learned  from  an  historian  of  a  century  later.' 

We  find  nothing  that  can  arrest  our  attention,  in  searching 
out  the  origin  of  county  representation,  till  we  come  to  a  writ 
in  the  fifteenth  year  of  John,  directed  to  all  the  sheriffs  in 
the  following  terms :  Rex  Vicecomiti  N.,  salutem.  Pnecipi- 
mus  tibi  quod  onmes  milites  ballivse  tuae  qui  summoniti  fue- 
runt  esse  apud  Oxonian  ad  Nos  a  die  Omnium  Sanctorum  in 

1  H1>t.  of  Common  Law,  rot.  I.  p.  202.  ooanty !   Nor  1b  it  pcrfectlj  manifest  that 

*  This  assembly  is  mentioned  in  the  they   were  chosen  by  the  people;    the 

prasmble,  and  afterwards,  of  the  spurious  word  summoneri  fecit  is  first  used  ;  and 

Uws  of  Jidward  the  Conreasor;   and  I  afterwards,  electis  de  (not  in)  singulis 

have  been  acensed  of  passing  it  over  too  totias  patrisB  comitatibus.     This  might 

■Ughtly.     The  fiict  certidnly  does  not  be  construed  of  the  Icing's  selection;  but 


it  on  the  authority  of  Qoreden.  who  perhaps  the  common  interpretation  is 
transcribes  these  laws  verbatim ;  and  they  rather  the  better. 
are  In  sulwtance  an  ancient  document.  William,  the  compiler  Informs  ns,  haT- 
There  seems  to  me  somewhat  rather  ing  heard  some  of  the  DanUh  laws,  was 
•Qspicious  in  this  assembly  of  delegates ;  disposed  to  confirm  them  in  preference 
H  looks  like  a  pious  flraud  to  maintidn  to  those  of  England ;  but  yielded  to  the 
the  old  Saxon  jurispradenoe,  which  was  supplication  of  the  delegates,  omnes  com- 
■iTing  way.  But  even  if  we  admit  the  patriotss,  qui  leges  narraverant,  that  he 
»et  as  here  told,  I  still  adhere  to  the  wonld  permit  them  to  retain  the  customs 
aasertlon  that  there  is  no  appearance  that  of  their  ancestors,  imploring  him  by  the 
these  twelve  deputies  of  each  connty  soul  of  King  Edward,  cujus  erant  ieges« 
were  invested  wHh  any  higher  authority  nee  aliorum  exterornm.  The  king  at 
than  that  of  declaring  their  ancient  length  gave  way,  by  the  advice  and  re- 
usages.  Any  supposition  of  a  real  legis-  quest  of  his  barons,  eonsilio  et  precata 
fa&tive  parliament  would  be  inconsistent  baronum.  These  of  course  were  Nor> 
with  all  that  we  know  of  the  state  of  £ng>  mans ;  but  what  inference  can  be  drawn 
land  under  the  Conqueror.  And  what  In  &Tor  of  parliamentary  representation 
■a  anomaly,  upon  every  eonstitntional  in  Angland  fkom  the  behavior  of  the 
principle,  i^lo-SasoQ  or  Noiman,  would  rest  ?  They  were  supplieants,  not  iegii 
W  a  parliament  of  twelve  from   each  laton.  • 


224  ORIGIN  AND  PROGRESS  OF    Chap.  YUL  Part  fll. 

qaindecim  dies  venire  facias  cum  armis  suis :  corpora  vero  ba- 
ron um  sine  armis  singulariter,  et  quatuor  discretos  milites  de 
comitatu  tuo,  illuc  venire  facias  ad  eundem  terminum,  ad  lo- 
quendum  nobiscum  de  negotiis  re^ni  nostri.  For  the  explana- 
tion of  this  obscure  writ  I  must  refer  to  what  Prynne  )ias  said ;  ^ 
but  it  remains  problemiitical  whether  these  four  knights  (the 
only  clause  which  concerns  our  purpose)  were  to  be  elected  by 
the  county  or  returned  in  the  nature  of  a  jury,  at  the  disci*6> 
tion  of  the  sheriff.  Since  there  is  no  sufficient  proof  whereon 
to  decide,  we  can  only  say  with  hesitation,  that  there  may  have 
been  an  instance  of  county  representation  in  the  fifteenth 
year  of  John. 

We  may  next  advert  to  a  practice,  of  which  there  is  very 
olear  proof  in  the  reign  of  Henry  III.  Subsidies  granted  in 
parliament  were  assessed,  not  as  in  former  times  by  the  jus- 
tices upon  their  circuits,  but  by  knights  freely  chosen  in  the 
county  courL  This  appears  by  two  writs,  one  of  the  fourth 
and  one  of  the  ninth  year  of  Henry  lU.^  At  a  subsequent 
period,  by  a  provision  of  the  Oxford  parliament  in  1258, 
every  county  elected  four  knights  to  inquire  into  grievances, 
and  deliver  their  inquisition  into  parliament.' 

The  next  writ  now  extant,  that  wears  the  appearance  ol 
parliamentary  representation,  is  in  the  tliirty-eighth  of  Henry 
III.     This,  after  i^eciting  that  the  earls,  barons,  and  other 

1  2  Prynne^s  Reginter,  p.  16.  leogaed  against  him ;  and  the  mmsura 

*  Bnidy^B  Introduction,  Appendix,  pp.  ml^rht  lead  to  conciliate  the  minds  of 

1  and  44.      **  The  language  of  these  thoM  who  would  otherwise  have  bad  no 

writs  implies  a  distinction  between  such  voice  in  the  legislative  assembly."    Re> 

as  were  styled  barons,  apparently  Indud-  port  of  I/ords'  Committee,  p.  61. 

ing  the  earls  and  the  four  Icuights  who  This  would  be  a  remarkable  fiust,  and 

were  to  come  from  the  WTeml  counties  the  motive  \s  by  no  means  improbable, 

ad  loquendum,  and  who  were  also  dts-  being  perhaps  that  which  led  to  the  larze 

tinf  uished  from  the  knights  summoned  providions   for    summoning    tenants  fa 

to  attend  with  arms,  in  performance,  it  chief,  contnlncd  in  the  charter  of  John, 

should  seem,  of  the  military  service  due  and  afterwards  passed  over.     But  this 

by  their  respective   tenures;    and    the  parley  of   the  four  knights  from  each 

writs,  therefore,  apparently  distinguished  county,  for  they  are  only  summoned  ad 

certain  tenants  in  chief  by  knight-service  loquendum,  may  not  amount  to  bestow- 

firom  barons,  if  the  knights  so  summoned  ing  on  them  any  loginiative  power.    It  is 

to  attend  with  arms  were  required  to  at-  nevertheless  to  be  remembered  that  the 

tend  by  reason  of  their  respective  ten-  word  parliament  meant,  by  ita  etymology, 

nres  in  chief  of  the  king.    How  the  four  nothing  more ;  and  the  words,  ad  loquen- 

kuights  of  each  county  who  were  thus  dum,  may  have  been  used  ill  reference  to 

■unimoned  to  confer  with  the  k^ug  were  that.     It  is  probable  that  these  writs 

to  be  chosen,  whether  by  the  county,  or  were  not  obeyed  ;  we  liave  no  evidence 

according  to  the  mere  will  of  the  sheriff,  that  they  were,  and  it  was  a  sotson  of 

loes  not  appear;  but  it  seems  most  prob-  great  confunion,   very  little  before  the 

able  that  they  were  intended  by  the  king  granting  of  the  charter  of  Henry  III. 

as  lepresentatives  of  the  freeholders  of  s  Brady's  Ilist.  of  Englandi  vol.  i.  Ap- 

eaiJi  county,  and  to  balance  the  power  pendix,  p.  227. 
of  VtiM  hostile  noblns,  who  wen   Uwn 


ExGLUH  Ck>2i8T.    PABLIAMENTART  REPRESENTATION.        225 

great  men  (cseteri  magnates)  were  to  meet  at  London  three 
weeks  after  Easter,  with  horses  and  arms,  for  the  purpose  of 
sailing  into  Gascony,  requires  the  sheriff  to  compel  all  within 
his  jurisdiction,  who  hold  twenty  pounds  a  year  of  the  king 
in  chief,  or  of  those  in  ward  of  the  king,  to  appear  at  the 
same  time  and  place.  And  that  besides  those  mentioned  he 
shall  cause  to  come  before  the  king's  council  at  Westminster, 
on  the  fifteenth  day  after  Easter,  two  good  and  discreet  * 
knights  of  his  county,  whom  the  men  of  the  county  shall  have 
chosen  for  this  purpose,  in  the  stead  of  all  and  each  of  them, 
to  consider,  along  with  the  knights  of  other  counties,  what  aid 
they  will  grant  the  king  in  such  an  emergency.*  In  the 
principle  of  election,  and  in  the  object  of  the  assembly,  which 
was  to  grant  money,  this  certainly  resembles  a  summons  to 
parliament.  There  are  indeed  anomalies  sufficiently  remark- 
able upon  the  face  of  the  writ  which  distinguish  this  meeting 
from  a  regular  parliament  But  when  the  scheme  of  obtain- 
ing  money  from  the  commons  of  shires  through  the  consent 
of  their  representatives  had  once  been  entertained,  it  was 
easily  applicable  to  more  formal  councils  of  the  nation.^ 

A  few  years  later  there  appears  another  writ  analogous  to 
a  summons.  During  the  contest  between  Henry  III.  and  the 
confederate  barons  in  1261,  they  presumed  to  call  a  sort  of 
parliament,  summoning  three  knights  out  of  every  county, 
secum  tractaturos  super  communibus  negotiis  regni.  This  we 
learn  only  by  an  opposite  writ  issued  by  the  king,  directing 
the  sheriif  to  enjoin  these  knights  who  had  been  convened  by 
the  earls  of  Leicester  and  Gloucester  to  their  meeting  at  St. 
Alban's,  that  they  should  repair  instead  to  the  king  at  Wind- 
sor, and  to  no  other  place,  nobiscum  super  praemissis  collo- 
quium habituros.*  It  is  not  absolutely  certain  that  these 
knights  were  elected  by  their  respective  counties.  But  even 
if  they  were  so,  this  assembly  has  much  less  the  appearance 
of  a  parliament,  than  that  in  the  thirty-eighth  of  Henry  III. 

At  length,  in  the  year  1265,  the  forty-ninth  of  Henry  III., 

1  S  "Prymxtj  p.  28.  reeord  now  extant,  of  an  attempt  to  snb 

*  "  Thifl  writ  tends  strongly  to  show    stitute  representatlTes  elected  by  bodleP 
ih«it  there  then  existed  no  law  by  which    of  men  Ibr  the  attendance  of  the  indi> 


a  Tepre««ntiition   either   of  the   king's  Tidual  so  to  be  represented,  personolly 

tenants  in  cspito  or  of  others,  fbr  the  or  by  their  sereral  procunitors,  in  an 

purpose  of  conscituting  a  legislatire  as-  assembly  cooTened  for  the  purpose  of  oIk 

•embly,  or  for  graoting  an  ud,  was  sp«-  taioing  an  aid."    Report,  p.  96. 

aially  prorlded  ;  and  it  seems  to  hare  *  2  Prynne,  p.  27. 
keen  the  first  instance  appearing  on  any 

roL.  11.^11.  16 


226  ORIGIN  AND  PROGRESS  OF   Chap.  VHI.  Paiit  HL 

while  he  was  a  captive  in  the  hands  of  Simon  de  Montfort, 
writs  were  issued  in  his  name  to  all  the  sheriffs,  directing 
them  to  return  two  knights  for  the  body  of  their  county,  with 
two  citizens  or  burgesses  for  every  city  and  borough  contained 
within  it.  This  therefore  is  the  epoch  at  which  the  represen- 
tation of  the  commons  becomes  indisputably  manifest ;  even 
should  we  reject  altogether  the  more  equivocal  instances  of  it 
which  have  just  been  enumerated. 

If  indeed  the  knights  were  still  elected  by  none  but  the 
Whether  the  king's  military  tenants,  if  the  mode  of  representar 
liSSfb''"'  *^^"  ^^^  merely  adopted  to  spare  them  the  incon- 
freehoiden  venieuce  of  personal  attendance,  the  immediate 
In  general,  innovation  in  our  polity  was  not  very  extensive* 
This  is  an  interesting,  but  very  obscure,  topic  of  inquiry. 
Spelman  and  Brady,  with  other  writers,  have  restrained  the 
original  right  of  election  to  tenants  in  chief,  among  whom,  in 
process  of  time,  those  holding  under  mesne  lords,  not  being 
readily  distinguishable  in  the  hurry  of  an  election,  contrived  to 
slide  in,  till  at  length  their  encroachments  were  rendered  legit- 
imate by  the  statute  7  Hen.  IV.  c.  15,  which  put  all  suitors 
to  the  county  court  on  an  equal  footing  as  to  the  elective 
franchise.  The  argument  on  this  side  might  be  plausibly 
urged  with  the  following  reasoning. 

The  spirit  of  a  feudal  monarchy,  which  compelled  every 
lord  to  act  by  the  advice  and  assent  of  his  immediate  vassals, 
established  no  relation  between  him  and  those  who  held  noth- 
ing at  his  hands.  They  were  included,  so  far  as  he  was 
concerned,  in  their  superiors ;  and  the  feudal  incidents  were 
due  to  him  from  the  whole  of  his  vassal's  fief,  wliatever  ten- 
ants might  possess  it  by  sub-infeudation.  In  England  the 
tenants  in  chief  alone  were  called  to  the  great  councils  before 
representation  was  thought  of,  as  is  evident  both  by  the  charter 
of  John,  and  by  the  language  of  many  records ;  nor  were  any 
others  concerned  in  levying  aids  or  escuages,  which  were 
only  due  by  virtue  of  their  tenure.  These  military  tenants 
were  become,  in  the  reign  of  Henry  III.,  far  more  numerous 
than  they  had  been  under  the  Conqueror.  If  we  include 
those  who  held  of  the  king  ut  de  honore,  that  is,  the  tenants 
of  baronies  escheated  or  in  ward,  who  may  probably  have 
enjoyed  the  same  privileges,  being  subject  in  genera]  to  the 
same  burdens,  their  number  will  be  greatly  augmented,  and 
form  no  inconsiderable  portion  of  the  freeholders  of  the  king* 


JbroLisR  CoxsT.     PAHLIAMENTART  REPRESENTATION^.       227 

dom«     After  the  statute  commonlj  called  Quia  emptores  in 
the  eighteenth  of  Edward  I.  they  were  likely  to  increase  much 
more,  as  every  licensed  alienation  of  any  portion  of  a  fief  by 
a  tenant  in  chief  would  create  a  new  freehold  immediately 
depending  upon  the  crown.     Many  of  these  tenants  in  capite 
held  very  small  fractions  of  knight's  fees,  and  were  conse- 
quently not  called  upon  to  receive  knighthood.    They  were 
plain  freeholders  holding  in  chief,  and  the  liberi  homines  or 
libere  tenentes  of  those  writs  which  liave  been  already  quoted. 
The  common  form  indeed  of  writs  to  the  sheriff  directs  the 
knights  to  be  chosen  de  communitate  comitatus.      But  the 
word  communitas,  as  in  boroughs,  denotes  only  the  superior 
part :  it  is  not  unusual  to  find  mention  in  records  of  commu- 
nitas populi  or  omnes  de  regno,  where  none  are  intended  but 
the  barons,  or  at  most  the  tenants  in  chief.     If  we  look  atten- 
tively at  the  earliest  instance  of  summoning  .knights  of  shires 
to  parliament,  that  in  38  Henry  III.,  which  has  been  noticed 
above,  it  will  appear  that  they  could  only  have  been  chosen 
by  military  tenants  in  chief.     The  object  of  calling  this  par- 
liament, if  parliament  it  were,  was  to  obtcun  an  aid  from  the 
military  tenants,  who,  holding  less  than  a  knight's  fee,  were 
not  required  to  do  personal  service.     None  then,  surely,  but 
the  tenants  in  chief  could  be  electors  upon  this  occasion,  which 
merely  respected  their  feudal  duties.     Again,  to  come  much 
lower  down,  we  find  a  series  of  petitions  in  the  reigns  of 
Edward  III.  and  Richard  II.,  which  seem  to  lead  us  to  a  con- 
clusion that  only  tenants  in  chief  were  represented  by  the 
knights  of  shires.    The  writ  for  wages  directed  the  sheriff  to 
levy  them  on  the  commons  of  the  county,  both  within  fran- 
chises and  without  (tam  intra  libertates  quam  extra).     But 
the  tenants  of  lords  holding  by  barony  endeavored  to  exempt 
themselves  from  this  burden,  in  wliich  they  seem  to  have 
been  countenanced  by  the  king.    This  led  to  frequent  remon- 
strances from  the  commons,  who  finally  procured  a  statute, 
that  all  lands  which  had  been  accustomed  to  contribute  towards 
the  wages  of  members  should  continue  to  do  so,  even  though 
they  should  be  purchased  by  a  lord.^    But,  if  these  mesne 
tenants  had  possessed  equal  rights  of  voting  with  tenants  in 
chief,  it  is  impossible  to  conceive  that  they  would  have  thought 
of  claiming  so  unreasonable  an  exemption.    Yet,  as  it  would 

1  IS  Ble.  n.  e.  12.    Pryiu»*s  4th  Bcglstw. 


228  ORIGIN  AND  PROGRESS  OF    Chap.  VTO.  Part  HL 

appear  harsh  to  make  anj  distinction  between  the  rights  of 
those  who  sustained  an  equal  burden,  we  may  perceive  how 
the  freeholders  holding  of  mesne  lords  might  on  that  account 
obtain  after  the  statute  a  participation  in  the  privilege  of  ten- 
ants in  chief.  And  without  supposing  any  partiality  or  con- 
nivance, it  is  easy  to  comprehend  that,  wliile  the  nature  of 
tenures  and  services  was  so  obscure  as  to  give  rise  to  con- 
tinual disputes,  of  which  the  ancient  records  of  the  King's 
Bench  are  full,  no  sheriff  could  be  very  accurate  in  rejecting 
the  votes  of  common  freeholders  repairing  to  the  county  court, 
and  undistinguishable,  as  must  be  allowed,  from  tenants  in 
capite  upon  other  occasions,  such  as  serving  on  juries,  or 
voting  on  the  election  of  coroners.  To  all  this  it  yields  some 
corroboration,  that  a  neighboring  though  long  hostile  king- 
dom, who  borrowed  much  of  her  law  from  our  own,  has  never 
admitted  any  freeholders,  except  tenants  in  chief  of  the 
crown,  to  a  suffrage  in  county  elections.  These  attended  the 
parliament  of  Scotland  in  person  till  1428,  when  a  law  of 
James  I.  permitted  them  to  send  representatives.^ 

Such  is,  I  think,  a  fair  statement  of  the  arguments  that 
might  be  alleged  by  those  who  would  restrain  the  right  of 
election  to  tenants  of  the  crown.  It  may  be  urged  on  the 
other  side  that  the  genius  of  the  feudal  system  was  never 
completely  displayed  in  England ;  much  less  can  we  make 
use  of  that  policy  to  explain  institutions  that  prevailed  under 
Edward  I.  Instead  of  aids  and  scutages  levied  upon  the 
king's  military  tenants,  the  crown  found  ample  resources  in 
subsidies  upon  movables,  from  which  no  class  of  men  was 
exempted.  But  the  statute  that  abolished  all  unparliament- 
ary taxation  led,  at  least  in  theoretical  principle,  to  extend  the 
elective  franchise  to  as  large  a  mass  of  the  people  as  could 
conveniently  exercise  it  It  was  even  in  the  mouth  of  our 
kings  that  what  concerned  all  should  be  approved  by  all.  Nor 
is  tlie  language  of  all  extant  wnts  less  adveree  to  the  supposi- 
tion that  the  right  of  suffrage  in  county  elections  was  limited 
to  tenants  in  chief.  It  seems  extraordinary  that  such  a  re- 
striction, if  it  existed,  should  never  be  deducible  from  these 
instruments;  that  their  terms  should  invariably  be  large 
enough  to  comprise  all  freeholders.  Yet  no  more  is  ever  re- 
quired of  the  sheriff  than  to  return  two  knights  chosen  by  the 

1  Pinkerton't  Hist,  of  SooUand,  itL  L  p.  120, 8S7.    Bat  tlilt  law  mw  not  ngn- 
lailj  actgd  upon  tiU  1687.    p.W. 


EvGUSH  CoNgT.    PARLIAMENTARY  REPRESENTATION.        229 

body  of  the  county.  For  they  are  not  only  said  to  be  re- 
turned pro  communitate,  but  *'  per  communitatem,"  and  ''  de 
assensu  totius  communitatis."  Nor  is  it  satisfactory  to  allege, 
without  any  proof,  that  this  word  should  be  restricted  to  the 
tenants  in  chief,  contrary  to  what  must  appear  to  be  its  ob- 
vious meaning.*  Certainly,  if  these  tenants  of  the  crown  had 
found  inferior  freeholds  usurping  a  right  of  suffrage,  we  might 
expect  to  find  it  the  subject  of  some  legislative  provision,  or 
at  least  of  some  petition  and  complaint.  And,  on  the  other 
band,  it  would  have  been  considered  as  unreasonable  to  levy 
the  wages  due  to  knights  of  the  shire  for  their  service  in  par* 
liament  on  those  who  had  no  share  in  their  election.  But  it 
appears  by  writs  at  the  very  beginning  of  Edward  II.*8  reign, 
that  wages  were  levied  "  de  communitate  comitatus.'  "  It  will 
scarcely  be  contended  that  no  one  was  to  contribute  under 
this  writ  but  tenants  in  chief;  and  yet  the  word  communitas 
can  hardly  be  applied  to  different  persons,  when  it  occurs  in 
the  same  instrument  and  upon  the  same  matter.  The  series 
of  petitions  above  mentioned  relative  to  the  payment  of  wages 
rather  tends  to  support  a  conclusion  that  all  mesne  tenants 
bad  the  right  of  suffrage,  if  they  thought  fit  to  exercise  it, 
since  it  was  earnestly  contended  that  they  were  liable  to  con- 
tribute  towards  that  expense.  Nor  does  there  appear  any 
reason  to  doubt  that  all  freeholders,  except  those  within  par- 
ticular franchises,  were  suitors  to  the  county  court — an  insti- 
tution of  no  feudal  nature,  and  in  which  elections  were  to  be 
made  by  those  present.  As  to  the  meeting  to  which  knights 
of  shires  were  summoned  in  38  Henry  III.,  it  ought  not  to  be 
reckoned  a  parliament,  but  rather  one  of  those  anomalous 
conventions  which  sometimes  occurred  in  the  unfixed  state  of 
government.  It  is  at  least  the  earliest  known  instance  of 
representation,  and  leads  us  to  no  conclusion  in  respect  of  later 
times,  when  the  conunons  had  become  an  essential  part  of  the 

1  What    can  one    who  adopts    thif  nonxm  snomm  mobillnm  nobis  oonoesse- 

oplnion  of  Dr.  Brady  say  to  the  follow,  rant.    Pat.  Bot.    1  B  II.  In  Rot.  Pari. 

Ins  record  ?     Rex  millUbus,  liberis  ho-  Tol.  i.  p.  442.    See  also  p.  241  and  p.  269. 

mlidbns,  et  toti  communiteui  comitatos  If  the  word  communitas  is  here  used  in 

Wygorniie  tarn   intra   libertates   quam  any  precise  sense,  which,  when  possible, 

extra,  salutem.    Cum  oomites,  barones,  we  are  to  suppose  In  construing  a  legal 

milikeSf  liberi  homines,  et  communita-  instrument,  it  must  designate,  not  the 

tes  comitatuum  regni  noetri  Ticesimam  tenants  in  chief,  but  the  Infenor  class, 

omnium    bouorum    suorum   mobilium,  who,  though  neither  freeholderx  nor  free 

^TBsque  et  burgenses  et  communltates  burgesses,  were  yet  contributable  to  the 

omnium  cifitatum  et  burgorum  ejusdem  subsidy  on  their  gnodi>. 
iwni,  necnon  tenentes  de  andquis  do-       «  Madox,  Vinna  Borgi,  p.  09  and  p.  108 

Wuicis  ooron»  nostras  qulndecimam  bo-  note  Z* 


280  PROGRESS  OF  TOWNS.    Chap.  VIIL  Part  JH 

l^slature,  and  their  consent  wna  required  to  all  public 
burdens. 

This  question,  upon  the  whole,  is  certainly  not  free  fi^om 
considerable  difficulty.  The  legal  antiquaries  are  divided. 
Prynne  does  not  seem  to  have  doubted  but  that  the  knights 
were  "elected  in  the  full  county,  by  and  for  the  whole 
county,"  without  respect  to  the  tenure  of  the  freeholders.^ 
But  Brady  and  Carte  are  of  a  different  opinion.^  Yet  their 
disposition  to  narrow  the  basis  of  the  constitution  is  so  strong, 
that  it  creates  a  sort  of  prejudice  against  their  authority. 
And  if  I  might  offer  an  opinion  on  so  obscure  a  subject,  I 
should  be  much  inclined  to  believe  that,  even  from  the  reign 
of  Henry  III.,  the  election  of  knights  by  all  freeholders  in  the 
county  court,  without  regard  to  tenure,  was  little,  if  at  all, 
different  from  what  it  is  at  present' 

The  progress  of  towns  in  several  continental  countries, 
ProgNMof  from  a  condition  bordering  upon  servitude  to 
lownB.  wealth  and  liberty,  has  more  than  once  attracted 

our  attention  in  other  parts  of  the  present  work.  Their 
growth  in  England,  both  from  general  causes  and  imitative 
policy,  was  very  similar  and  nearly  coincident  Under  the 
Anglo-Saxon  line  of  sovereigns  we  scarcely  can  discover  in 
our  scanty  records  the  condition  of  their  inhabitants,  except 
retrospectively  from  the  great  survey  of  Domesday  Book, 
Vhich  displays  the  state  of  England  under  Edward  the  Con- 
fessor. Some  attention  to  commerce  had  been  shown  by 
Alfred  and  Athelstan ;  and  a  merchant  who  had  made  three 
voyages  beyond  sea  was  raised  by  law  of  the  latter  monarch 
to  the  dignity  of  a  Thane/  This  privilege  was  not  perhaps 
oflen  claimed;  but  the  burgesses  of  towns  were  already  a 
distinct  class  from  the  ceorls  or  rustics,  and,  though  hardly 
free  according  to  our  estimation,  seem  to  have  laid  the  foun- 
dation of  more  extensive  immunities.  It  is  probable,  at  least, 
that  the  English  towns  had  made  full  as  great  advances 
towards  emancipation  as  those  of  France.  At  the  Conquest 
we  find  the  burgesses  or  inhabitants  of  towns  living  under  the 
superiority  or  protection  of  the  king,  or  of  some  other  lord, 
to  whom  they  paid  annual  rents,  and  determinate  dues  or 
customs.     Sometimes  they  belonged  to  different  lords,  and 

1  Prynne^H  2A  Roidster,  p.  50.  burgh  ItoTiow,  tol.  zxtI.  p.  841.    (NOTl 

t  Cart«i'8  m«t.  uf  EuKland,  ii.  250.  111.] 

*  Tbe  present  question  has  been  dts-  *  WUkiai,  p.  71. 
eusMd  with  much  ability  ia  the  £din- 


Emoush  Const. 


PBOGKESS  OF  TOWNS. 


231 


sometimes  the  same  burgess  paid  customs  to  one  master, 
while  he  was  under  the  jurisdiction  of  another.  They  fre- 
quently enjoyed  special  privileges  as  to  inheritance ;  and  in 
two  or  three  instances  they  seem  to  have  possessed  common 
property,  belonging  to  a  sort  of  guild  or  corporation,  and  in 
some  instances,  perhaps,  had  a  municipal  administration  by 
magistrates  of  their  own  choice.^  Besides  the  regular  pay- 
ments, wliich  were  in  general  not  heavy,  they  were  liable  to 
tallages  at  the  discretion  of  their  lords.  This  burden  con- 
tinued for  two  centuries,  with  no  limitation,  except  that  the 
barons  were  latterly  forced  to  ask  permission  of  the  king  be- 
fore they  set  a  tallage  on  their  tenants,  which  was  commonly 
done  when  he  imposed  one  upon  his  own.'  Still  the  towns 
became  considerably  richer;  for  the  profits  of  their  traffic 
were  undiminished  by  competition,  and  the  consciousness  that 
they  could  not  be  individually  despoiled  of  their  possessions, 


1  BuTgensifl  Exonin  nrbls  habent  extra 
olvitatem  terrain  duodeeim  carucatarom: 
qiue  Quilam  consuetudiQem  leddunt  nial 
ad  ipsam  ciTitatem.  Domenday,  p.  100. 
At  Canterbury  the  burgesses  had  fortj- 
fire  houMS  without  the  city,  de  quibus 
ipsi  babebant  icablum  et  consuetnainem, 
rexaatem  socam  et  sacam;  ipul  quoque 
burgenses  habebant  de  rege  triginta  tree 
acrai  pratl  In  gildanif  suam.  p.  2.  In 
Lincoln  and  Stamford  some  resident  pro- 
prietors, called  Lagemanni,  had  Jurisdic- 
tion (soeam  et  sacam)  over  their  tenants. 
But  nowhere  hare  I  been  able  to  discoTer 
any  trace  of  municipal  setf-go?emment; 
unless  Chester  may  be  dSemed  an  excep- 
tion, where  we  rnid  of  twelve  judices 
dritatis ;  but  by  whom  constituted  does 
not  appear.  The  wwd  lageman  seems 
equiralent  to  judex.  The  guild  men- 
tioned above  at  Oantarbuiy  was,  In  all 
probability,  a  Tolnntaiy  'association:  so 
at  Dover  we  find  the  burgesses'  guildhall, 
giballa  burgenslum.  p.  1. 

Many  of  the  passages  in  Domesday 
relative  to  the  state  of  burgesses  are  col- 
Jeeted  in  Brady ^s  History  of  Boroughs; 
a  worlc  which,  If  read  with  due  suspicion 
of  the  author's  honesty,  will  convey  a 
grsat  deal  of  knowledge. 

Since  the  fbrmer  pwt  of  this  note  was 
written,  I  have  met  with  a  charter 
gmnted  by  Uenry  IT.  to  Lincoln,  which 
seems  to  refer,  more  explicitly  than  any 
similar  instrument,  to  municipal  privi- 
leges of  Jurisdiction  enjoyed  by  the  citl- 
lens  under  Bdward  the  Confessor.  These 
charters,  it  Is  well  known,  do  not  always 
redte  what  Is  true;  yet  it  is  possible 
that  the  citiaens  of  Lincoln,  which  had 


been  one  of  the  five  Danish  towns,  some- 
times mentioned  with  a  sort  of  distinc- 
tion by  writers  before  the  Conquest,  might 
be  in  a  more  advantageous  situation  than 
the  generality  of  burgesfles.  Sciatto  me 
concesslsse  civibus  meis  Lincoln,  omnes 
libertates  et  consuetodines  et  leges  suas. 
quae  habnerunt  tempore  Edwardi  et 
Will,  et  llenr.  regum  Angliie  et  gildam 
suam  mercatoriam  de  hominibuscivitatis 
et  de  allis  mercatoribus  comitatus,  sicnt 
illam  habuernnt  tempore  predictorum, 
antecessorum  nostrorum,  regum  Angllss, 
melius  et  liberius.  Et  omnes  homines 
qui  infra  quatuor  di visas  civltates  ma- 
nent  et  mercatum  deducunt,  slot  ad  gll- 
das,  et  eonsuetudines  et  assisas  civitafis, 
sicut  melius  fuerunt  temp.  Edw.  et  Will. 
et  Hen.  regum  Angliss.  Rymer,  t.  i.  p. 
40  (edit.  1816). 

I  am  indebted  to  the  fHendly  remarks 
of  the  periodical  eritio  whom  I  have  be- 
fore mentioned  for  reminding  me  of  other 
charters  of  the  same  age,  expressed  in  a 
similar  manner,  which  in  my  haste  I  had 
overlooked,  though  printed  in  common 
books.  But  whether  these  general  word« 
ought  to  outweigh  the  silence  of  Domes- 
day Book  I  am  not  prepared  to  decide. 
I  have  admitted  below  that  the  posses- 
sion of  corporate  property  implies  an 
elective  government  for  its  admiulstra* 
tion,  and  I  think  it  perAwtly  clear  thai 
the  guilds  made  by-laws  for  the  regu- 
lation of  their  members.  Yet  this  It 
something  different  fW>m  munldf  al  Jurit' 
dictioa  over  all  the  Inhabitants  of  a  towft 
[Note  IV.] 

s  Madox,  Hist,  of  Exchequer,  t .  17* 


232  TOWN.>  LET  IN  FEE-FARM.    Chap.  VHI.  Part  IIL 

like  the  villeins  of  the  country  around,  inspired  an  industry  * 
and  perseverance  which  ail  the  rapacity  of  Norman  kings  and 
barons  was  unable  to  daunt  or  overcome. 

One  of  the  earliest  and  most  important  changes  in  the  con- 
Towns  let  dition  of  the  burgesses  was  the  conversion  of  their 
In  fee-fiu-m.  individual  tributes  into  a  perpetual  rent  from  tlie 
whole  borough.  The  town  was  then  said  to  be  ai&rmcd,  or 
let  ir  fee-farm,  to  the  burgesses  and  their  successors  forever.* 
Previously  to  such  a  gi*ant  the  lord  held  the  town  in  liis 
demesne,  and  was  the  legal  proprietor  of  the  soil  and  tene- 
ments ;  though  I  by  no  means  apprehend  that  the  burgesses 
were  destitute  of  a  certain  estate  in  their  possessions.  But 
of  a  town  in  fee-farm  he  only  kept  the  superiority  and  the 
inheritance  of  the  annual  rent,  which  he  might  recover  by 
distress.*  The  burgesses  held  their  lands  by  burgage-tenure, 
nearly  analogous  to,  or  rather  a  species  of,  fi*ee  socage.* 
Perhaps  before  the  grant  they  might  correspond  to  modem 
copyholders.  It  is  of  some  importance  to  observe  that  the 
lord,  by  such  a  gra.nt  of  the  town  in  fee-farm,  whatever  we 
may  think  of  its  previous  condition,  divested  himself  of  his 
property,  or  lucrative  dominion  over  the  soil,  in  return  for  the 
perpetual  rent ;  so  that  tallages  subsequently  set  at  his  own 
discretion  upon  the  inhabitants,  however  common,  can  hardfy 
be  considered  as  a  just  exercise  of  the  rights  of  proprietor- 
ship. 

Under  such  a  system  of  arbitrary  taxation,  however,  it  was 
Chartcwof     evident  to  the  most  selfish  tynlnt  that  the  wealth 
incorpora-   .  of  his  burgcsscs  was  his  wealth,  and  their  pros- 
"*  perity  his  interest;  much  more  were  liberal  and 

sagacious  monarchs,  like  Henry  U.,  inclined  to  encourage 
them  by  privileges.  From  the  time  of  William  Rufus  there 
was  no  reign  in  which  charters  were  not  granted  to  differenl 
towns  of  exemption  from  tolls  on  rivera  and  at  markets,  those 
lighter  manacles  of  feudal  tyranny ;  or  of  commercial  fran- 
chises ;  or  of  immunity  from  the  ordinary  jurisdictions ;  or, 
lastly,  of  internal  self-regulation.  Thus  the  original  charter 
of  Henry  I.  to  the  city  of  London  *  concedes  to  tlie  citizens,  in 

1  Madox,  Finna  Burgi,  p.  1.    There  Is  *  1   hate   read  tomewhere  that    thia 

one  iQAtance,  I  know  not  if  any   more  charter  was  gnintod  in  1101.    But  the 

eould  be  found,  of  a  firma  bai^l  before  instrument  Itself,  which  is  only  pmeerveJ 

the  Conquest.    It  was  at  Huntingdon,  by  an  Infrpeximus  of  >Mward  IV.,  does 

Itomeeday,  p.  208.  not  contain  any  date.    Kymer,  t.  1.  p.  U 

*  Msdoz,  p.  12, 13.  (edit.  1816).    Could  it  be  traced  so  hli(tk, 

*  Id.  p.  21.  the  olrcttmitanee  would  be  remaikabMi 


laoLisH  CovsT.      CHARTERS  OF  INCORPORATION. 


233 


addition  to  valuable  commercial  and  fiscal  immunities,  the 
right  of- choosing  their  own  sherifiT  and  justice,  to  the  exclusion 
of  every  foreign  jurisdiction.^  These  grants,  however,  were 
not  in  general  so  extensive  till  the  reign  of  John.^  Before 
tliat  time  the  interior  arrangement  of  towns  had  received  a 
new  organization.  In  the  Saxon  period  we  find  voluntary 
associations,  sometimes  religious,  sometimes  secular ;  in  some 
cases  for  mutual  defence  against  injury,  in  others  for  mutual 
relief  in  poverty.  These  were  called  guilds,  from  the  Saxon 
verb  gildajiy  to  pay  or  contribute,  and  exhibited  the  natural, 
if  not  the  legal,  character  of  corporations.*  At  the  time  of 
the  Conquest,  as  has  been  mentioned  above,  such  voluntary 
incorporations  of  the  burgesses  possessed  in  some  towns  either 


M  th«  «arUeiit  ehnrteni  granted  by 
Ii0al«  VI.,  ^uppooed  to  be  the  father  of 
fheee  iiMtitatioiu,  are  MTeral  years  later. 

It  Is  naiJ  by  BIr.  Thorpe  (Ancient 
Iaw«  of  Eaglanid  p.  267),  that,  though 
there  are  ten  witnesfles,  he  only  flnda  one 
who  throwfl  any  light  on  the  date :  namely 
Hugh  BlgoJ,  vho  naccoeded  his  brother 
WiUiAm  in  1120.  But  Mr.  Thorpe  doee 
not  mention  i  i  what  reepect  he  succeeded. 
It  wail  an  dapifrr  regis ;  but  he  is  not  no 
named  in  the  charter.  Dugdale^s  Bar- 
onage,  p.  132.  The  date,  therefore,  still 
•eenui  problematical. 

i-Thi4  did  not,  bowerer,  sare  the  clti- 
lens  iVom  paying  one  hundred  marks 
to  the  king  for  this  privilege.  Hag. 
Rot.  6  ateph.  apud  tladox,  Uint  ISx- 
ehequer,  t.  x\.  I  do  not  know  that  the 
charter  of  Henry  I- can  be  suspected; 
but  Brady,  in  his  treatise  of  Boroughs 
(p.  88,  edit.  1777),  does  not  think  proper 
once  to  mention  it;  and  indeed  uses 
many  expressions  iooompatible  with  its 
•zi^tenee. 

t  Blomefleld,  Hist,  of  Norfolk.  toI.  il. 
p.  16,  says  that  Henry  1.  granted  the 
mme  privileges  by  charter  to  Norwich  in 
1122  which  London  possessed.  Yet  it 
appears  that  the  king  named  the  port- 
reeve or  provost;  but  Blomefleld  suggests 
that  he  was  probably  recommended  by 
tlie  eitiaent,  the  oflloe  being  annual. 

s  Madox,  Firma  Bnrgl,  p.  28.  Hiokes 
has  given  os  a  bond  of  fetiowship  among 
ttie  thanes  of  Cambridgeshire,  containing 
several  eurioua  particulars.  A  composi- 
tion <^  eight  pounds,  exclusive,  I  eon- 
eelve,  of  the  usual  wersgild.  was  to  be 
tnforoed  Arom  the  slayer  of  any  &llow. 
If  a  follow  (gilda)  killed  a  man  of  1200 
thilUttgs  wertgild,  each  of  the  society  was 
toeontribttte  Haifa  maro:  for  a  oeorl, 
two  one  (perhaps  ten  shillings) ;  for  a 
If  iMmvvvr  this  aot  was 


committed  wantonly,  the  fellow  had  no 
right  to  call  on  the  society  for  contribu- 
tion. If  one  fellow  killed  another,  he 
was  to  pay  the  legal  weregild  to  his  kin- 
dred, and  aUo  eight  pounds  to  the  society. 
Harsh  words  UMd  by  oue  fellow  towards 
another,  or  oven  towards  a  stranger,  in- 
curred a  fine.  No  one  was  to  eat  or 
drink  in  the  company  of  one  who  had 
killed  his  brother  fellow,  unless  in  the 

Sresencoof  the  king,  bishop,  or  alderman, 
lisrartatlo  Bplstolaris,  p.  21. 
We  find  in  Wilkins's  Anglo-Saxon 
Laws,  p.  66.  a  number  of  ordinances 
sworn  to  by  persons  both  of  noble  and 
ignoble  rank  (ge  eorliKe  ge  oeorlisce), 
and  conOrmed  by  king  Athelstan.  These 
are  in  the  nature  of  by-laws  for  the  reg- 
ulation of  certain  societies  that  had  been 
formed  for  the  preservation  of  public 
order.  Their  remedy  Wtie  rather  violent : 
to  kill  and  seise  the  effects  of  all  who 
should  rob  any  member  of  the  aiisocia- 
tion.  This  property,  after  deducting  the 
raiue  of  the  thin^  stolen,  was  to  be 
divided  into  two  parts ;  one  giv«>n  to  the 
criminal's  wife  if  not  an  accomplice,  the 
other  shared  between  the  king  and  the 
society. 

In  another  fWtternity  among  the  clergy 
and  laity  of  BxeCer  every  fellow  wafl  on- 
titled  to  a  contribution  in  case  of  taking 
a  journey,  or  if  his  house  was  burned. 
Thus  they  resembled,  in  some*  degree, 
our  friendly  societies  ;  and  dlsplav  an  in- 
terestinar  picture  of  manners,  which  has 
induced  me  to  insert  this  note,  though 
not  greatly  to  the  present  purpose.  See 
mora  of  the  Anglo-Saxon  guilds  in 
Turner's  Hlstoryl  vol.  ii.  p.  102.  Socie- 
ties of  the  same  kind,  for  purposes  of 
religion,  charity,  or  mutual  assistance, 
rather  than  trade,  may  be  found  long  af 
terwards.  Blomefleld's  Hist,  of  NorfoUt 
toL  iU.  p.  4M. 


234  PROSPERITT  OF  ENiillSH  TOTVNS.    Chap.  VHI.  Pakt  UL* 

landed  property  of  their  own,  or  rights  of  superiority  over 
that  of  others.  An  internal  elective  government  seems  to 
have  been  required  for  the  administration  of  a  common  reve- 
nue, and  of  other  business  incident  to  their  association.' 
They  became  more  numerous  and  more  peculiarly  commercial 
after  that  era,  as  well  from  the  increase  of  trade  as  through 
imitation  of  similar  fraternities  existing  in  many  towns  of 
Fi'ance.  The  spirit  of  monopoly  gave  strength  to  those  in- 
stitutions, each  class  of  traders  forming  itself  into  a  body,  in 
order  to  exclude  competition.  Thus  were  established  the 
companies  in  corporate  towns,  that  of  the  Weavers  in  London 
being  perhaps  the  earliest ;  ^  and  these  were  successively  con- 
solidated and  sanctioned  by  chiirters  from  the  crown.  In 
towns  not  large  enough  to  admit  of  distinct  companies,  one 
merchant  guild  comprehended  the  traders  in  general,  or  the 
chief  of  them ;  and  this,  from  the  reign  of  Henry  IL  down- 
wai'ds,  became  the  subject  of  incorporating  charters.  The 
management  of  their  internal  concerns,  previously  to  any  in- 
corporation, fell  naturally  enough  into  a  sort  of  oligarchy, 
which  the  tenor  of  the  charter  generally  preserved.  Though 
the  immunities  might  be  very  extensive,  the  powers  were  more 
or  less  restrained  to  a  small  number.  £xcept  in  a  few  places, 
the  right  of  choosing  magistrates  was  first  given  by  king  John ; 
and  certainly  must  rather  be  ascribed  to  his  poverty  than  to 
any  enlarged  policy,  of  which  lie  was  utterly  incapable.* 

From  the  middle  of  the  twelfth  century  to  that  of  the  thir- 
prwiperity  teenth  the  traders  of  England  became  more  and 
of  Kngiiah  more  prosperous.  The  towns  on  the  southern 
*°^°*"  coast  exported  tin  and  other  metals  in  exchange 

for  the  wines  of  France ;  those  on  the  eastern  sent  corn  to 
Norway  —  the  Cinque  Ports  bartered  wool  against  the  stuffs 
of  Flanders.*  Though  bearing  no  comparison  with  the  cities 
of  Italy  or  the  Empire,  they  increased  sufficiently  to  acquire 
importance  at  home.  That  vigorous  prerogative  of  the  Nor- 
man monarchs,  which  kept  down  the  feudal  aristoci-acy, 
compensated  for  whatever  inferiority  there  might  be  in  the 
population  and  defensible  strength  of  the  English  towns,  com- 

>  See  a  gnnt  fromTur»tin.  archbisbop  *  Mndox,  Finna  Bargi,  p.  189. 

of  York,  in  the  r«i{i:n  of  Henry  T.,  to  the  >  Idem,  pa«.4im.     A  tnw  of  an  earlier 

burgei«9efl  of  lieverlyf  that    they    may  date  may  be  found  in  the  new  edition  of 

bare  their  hanskus  ({.  e.  guildhall)  like  Kymer. 

those  of  York,  et  ibi  pua  statuta  pertrac-  *  Lyttelton^s   History  of  Henry    U.j 

f^nc  nd  honorem  Del,  fro.  Kymer,  t.  i.  p.  vol.  li.  p.  170.    Macpherson^s  Anoalf  Of 

U)  edit  1810.  Commerca,  toI.  1.  p.  83L 


JfiiroLiBH  Const.  LONDON.  235 

pared  with  those  on  the  continent.  They  had  to  fear  no  pettj 
oppressors,  no  local  hostility ;  and  if  they  could  satisfy  the 
rapacity  of  the  crown,  were  secure  from  all  other  grievances 
London,  far  above  the  rest,  our  ancient  and  noble 
capital,  might,  even  in  those  early  times,  be  justly  ^"*'*^ 
termed  a  member  of  the  political  system.  This  great  city, 
so  admirably  situated,  was  rich  and  populous  long  before  the 
Conquest  Bede,  at  the  beginning  of  the  eighth  century^ 
speaks  of  London  as  a  great  market,  which  traders  frequented 
by  land  and  sea.^  It  paid  15,000iL  out  of  82,0002.,  raised  by 
(^ute  upon  the  kingdom.^  If  we  believe  Roger  Uovcden, 
the  citizens  of  London,  on  the  death  of  Ethelred  II.,  joined 
with  part  of  the  nobility  in  raising  Edmund  Ironside  to  the 
throne.'  Harold  I.,  according  to  better  authority,  the  Saxon 
Chronicle  and  William  of  Malmsbury,  was  elected  by  their 
concurrence.^  Descending  to  later  history,  we  find  them 
active  in  the  civil  war  of  Stephen  and  Matilda.  The  famous 
bishop  of  Winchester  tells  the  Londoners  that  they  are  almost 
accounted  as  noblemen  on  account  of  the  greatness  of  their 
city;  into  the  community  of  which  it  appears  that  some 
barons  had  been  received.^  Indeed,  the  citizens  themselves, 
or  at  least  the  principal  of  them,  were  called  barons.    It  was 

«  Maephetscm,  p.  346.  tiia  antlqnity  of  Loodon  (which   wm 

s  Id.  p.  282.  eoetttl,  tbey  said,  with  Rome),  and  on  iti 

*  GiTe0  LundinenMt,  et  pin  Dobltlnm  rank  aa  matropolls  of  the  kingdom.  Bt 
aaieo  tempore  oooBlsCebant  Lundonte,  dlcebantdresLandonlensesflDUiee  qnletoe 
iSUtonem  Bedmandnm  nnanlmi  con*  de  theloneo  in  omni  Ibro,  et  semper  et 
■enflu  In  regem  leraTere.  p.  249.  ubiqae,  per  totam  AngUam.  i  tempore 

*  Ghron.  Saxon,  p.  154.  Malnwbnzy,  quo  Roma  primo  fnndata  fait,  et  elrita* 
p.  76.  He  says  the  people  of  London  tem  Lnndonias,  eodem  tempore  fkinda- 
were  become  almost  barbarians  through  tarn,  talem  debere  habere  Ilbertatem  per 
ttM>lr  Interoourse  with  the  Danes;  propter  totam  Angllam,  et  ratione  drltatis  prlvi- 
fteqnentem  eonTietum.  leglatss    qurn  oUm   metropolis   fhlt  et 

*  Umdinenses,  qol  snnt  quad  opti-  caput  regnl.et  ratione  antlqnltatis.  Pal- 
natei  pro  magnltndine  olTltatis  In  An-  grare  Inclines  to  think  that  London 
|dU.  Malmsb.  p.  189.  Thos  too  Matthew  neTer  formed  part  of  any  kingdom  of  the 
Paris :  elves  Londlnenses,  qnos  propter  Heptarchy.  IntToductlon  to  Rot.  Cur. 
drltaUs  dignitatem  et  dtlnm  antiquam  Regis,  p.  95.    But  this  seems  to  imply  a 

.Bbertatem  Baronet  consucTlmns  appd-  republican  city  In  the  mktot  of  so  many 

laro.  p.  744.    And  In  another  place:  to-  royal  states,  whioh  seems  hardly  proba- 

tlna  drltads  dves,  qnos  barones  Toeant.  ble.    Certainly  It  seems  strange,  though 

p.  886.    Spelmaa  says  that  the  magia-  I  cannot  explain  It  away,  that  the  eapi- 

natea  of  aereral  other  towna  were  called  tal  of  Bngluid  ahould  have  IhUen,  aa  we 

barooa.    Oloasary,  Barones  de  London,  generally  suppose,  to  the  small  and  ob- 

A  siagnltr  proof  of  the  estimation  in  aeure   Ungdom  of  Essex.    Winchester, 

which  the  eitlaena  of  London  held  them-  indeed,  may  be  conaldered  aa  haTlng  be- 

adfea  in  the  reign  of  Richard  I.  ocourM  come  afterwarda  the  capital  during  the 

Id  the  Chronicle  of  Jooelyn  de  Brake-  An^o-Saxon  monarchy,  so  fitr  aa  that  It 

londe  (p.  56 ~  Camden  Society,   1840).  waa  Ibr  the  moat  part  the  reddraor  of 

They  claimed  to  be  ftee  from  toll   In  our  kings.     But  London   was  ftlwajf 

•Pery  part  of  Bnglind,  and  in  etery  Jn-  mora  popoloiia. 
ilidiattao,  vmUng  tbdr  iuunnnitr  da 


236  uUXTDON.  Chap.  Vm.  Part.  Ill 

certainly  hj  far  the  greatest  citj  in  England.  There  have 
been  different  estimates  of  its  population,  some  of  which  are 
extravagant ;  but  I  think  it  could  hardly  have  contained  less 
than  thirty  or  forty  thousand  souls  within  its  walls ;  and  the 
suburbs  were  very  populous.^  These  numbers,  the  enjoyment 
of  privileges,  and  the  consciousness  of  strength,  infused  a  free 
and  even  a  mutinous  spirit  into  their  conduct.^  The  Lon- 
doners were  always  on  the  barons'  side  in  their  contests  with 
the  crown.  They  bore  a  part  in  deposing  William  Long* 
cliamp,  the  chancellor  and  justiciary  of  Richard  I.'  They 
¥rere  distinguished  in  the  great  struggle  for  Magna  Charta ; 
the  privileges  of  their  city  are  expressly  confirmed  in  it ;  and 
the  mayor  of  London  was  one  of  the  twenty-five  barons  to 
whom  the  maintenance  of  ita  provisions  was  delegated.  Li  the 
subsequent  reign  the  citizens  of  London  were  regarded  with 
much  dislike  and  jealousy  by  the  court,  and  sometimes  suf- 
fered pretty  severely  at  its  hands,  especially  after  the  battle 
of  Evesham.^ 

Notwithstanding  the  influence  of  London  in  these  seasons 

I  Dnlici,  the  historian  of  Torkf  maia-  the  numben   gfren  In  that  document 

Cains  that  London  was  less  populous,  hare  been  queeOoned  as  to  Norwich  npon 

about  the  time  of  the  Conquest,  than  Tery  plausible  grounds,  and  seem  rather 

that  city ;  and  quotes  Uardyuge,  a  writer  suspicious    in    the    present    instance, 

of  Henry  V/s  age,  to  prore  that  the  in-*  [Note  V.] 

tenor  part  of  the  former  was  not  closely  *  This  seditions,  or  at  least  nttneUnj 

built.    Kboracum,  p.  91.    York  however  character  of  the  Liondouers,  was  displayed 

does  not  appear  to  have  contained  more  in  the  tumult  headed  by  William  Ixing- 

than  10,000  inhabitante  at  the  aocession  beard  in  the  dme  of  Richard  I.,  and  that 

of  the  Conqueror,'  and  the  very  exagger-  under Constontine  in  1222,  the  patriarchs 

ations  as  to  the  populou^ness  of  London  of   a   long   line   of    city    demagogues, 

prove  that  it  must  have  far  exceeded  that  Hoveden,  p.  766.    M.  Paris,  p.  164. 

number.     Fits-Stephen,  the  contempo-  *  Hovedun^s  expressions  are  vnry  pre- 

rary  biographer   of  Thomas  k   Becket,  else,  and  show  that  the  sliare  taken  by 

tells  us  of  80,000  men  capable  of  bearing  the  citinns  of   London   (probably  the 

arms  within  ite  precincts;  where  how-  mayor  and  aldermen)  in  this  measure 

ever  tiis  translator.  Pegge,  suspeete   a  was  no  tumultuary  aoclamatlon,  but  a 

mlAteke  of  the  MS.   in  the  numerals,  deliberate  concurrence  with  the  nobility. 

And  this,  with  similar  hyperboles,  so  im-  Comes  Johannes,  et  fere  omnes  episcopi, 

posed  on  the  judicious  mind  of  Lord  et  comites  Angli«  e«ldem  die  inttaverunt 

Lyttolton,  that,  finding  in  Peter  of  Blois  liondonias ;  et  in  crastlno  prsodictus  Jo- 

the  inhabitents  of  London  reckoned  at  haones  Ihtter  regis,   et   arehiepiscopus 

quadmginte  millia,  he  has  actually  pro-  Kothomageosis,   et   omnes   episcopi,  et 

posed  to  read  quadiiogento.    Hist.  Henry  oomites  et  barones,  et  elves  Londoniensee 

II.,  vol.  iv.  ad  flnem.    It  Is  hardly  neoes-  enm  illis  oonvenerunt  in  atrio  ecclesia 

sary  to  observe  that  the  condition  of  S.  Paul!  .  .  .  Plaeuitergo  Johanniftatri 

tgrlenlture  and  internal  communication  regis,  et  omnibo*  episeopis,  et  comitlbns 

would  not  have  allowed  lutlf  that  number  et  baronibus  ngnU  et  elvibus  Londonia- 

to  subelst.  mm,  quod  canceUarlos  ille  deponerrttur, 

The  subsidy-roll  of  1877,  published  In  et  depoeuerunt  eum,  Ito.    p.  lOl. 

the  Archsaologia,  toI  vil.,  would  lead  to  *  The  reader  may  consult,  for  a  mora 

a  oonelusion  that  all  the  inhabitente  of  fhll  account  of  the  English  towns  before 

London  did  not  even  then  exceed  86,000.  the  middle  of  the  thirteenth  centurr, 

It  this  be  true,  they  could  not  have  Lyttel ton's  History  of  Henry  11.  vol.  u 

•mounted,  probably,  to  so  great  a  nam-  ^.  174 ;  and  Bfacpliarion*!   Annals  o# 
bet  two  or  three  dsotiuisa  esrUer:    But 


Ehgush  C0K8T.   EARLIEST  WRITS  TO  TOWNS.  237 

of  disturbance,  we  do  not  perceive  that  it  was  distinguished 
from  the  most  insignificiint  town  hj  greater  participation  in 
national  councils.  Rich,  powerful,  honorable,  und  high-spirited 
as  its  citizens  had  become,  it  was  very  long  before  they  found 
a  regular  pkce  in  parliament.  The  prerogative  of  imposing 
tallages  at  pleasure,  unsparingly  exercised  by  Henry  III. 
even  over  London,^  left  the  crown  no  inducement  to  summon 
the  inhabitants  of  cities  and  boroughs.  As  these  indeed  were 
daily  growing  more  considerable,  they  were  certain,  in  a  mon- 
archy so  limited  as  that  of  England  became  in  the  thirteenth 
century,  of  attaining,  sooner  or  later,  this  eminent  privilege.' 
Although  therefore  the  object  of  Simon  de  Montfort  in  calling 
them  to  his  parliament  after  the  battle  of  Lewes  was  merely 
to  strengthen  his  own  faction,  which  prevailed  among  the 
commonalty,  yet  their  permanent  admission  into  the  legisla- 
ture, may  be  ascribed  to  a  more  general  cause.  For  otherwise 
it  is  not  easy  to  see  why  the  innovation  of  an  usurper  should 
have  been  drawn  into  precedent,  though  it  might  perhaps 
accelerate  what  the  course  of  affairs  was  gradually  preparing. 
It  is  well  known  that  the  earliest  writs  of  summons  to  cities 
and  boroughs,  of  which  we  can  prove  the  existence,  y|„t  ,0^. 
are  those  of  Simon  de  Montfort,  earl  of  Leicester,  moning  of 
bearing  date  12th  of  December,  1264,  in  the  forty-  puriiiuxient, 
ninth  year  of  Henry  IIL*  After  a  long  contro-  "*  **  **•  ^^** 
versy  almost  all  judicious  inquirers  seem  to  have  acquiesced 
in  admitting  this  origin  of  popular  representation.'  The 
argument  may  be  very  concisely  stated.    We  find  from  innu- 

1  Frequent    prooft  of   thii  maj   bo  Lincoln,  et  ca»terlf  burgia  AngU«.    It  it 

Ibniid  in  Uadox,  Uist.  of  Excheqoor,  singalftr  that  no  mention  is  made  of 

e.  li,aflweU  as  in  Hatt.  Pariii,  who  la-  London,   which   moat  hare  liad  eome 

menta  It  with  indignation.    Clree  Lon-  special  summons.    Rymer,  t.  i.  p.  808. 

dloeusen.  contra  consuetudinem  et  liber*  DugdaJe,  SummonlUones  ad  Parliamen* 

tateni  ciritaUs,  quasi  servi  uldmsB  con-  tnm,  p.  1. 

dirionlii,  non  sub  nomine  aut  titulo  llberi  *  It  would  ill  repay  any  reader^s  dill- 

••yutorii,  sed  tailagii.  quod  multum  eoe  gence  to  wade  through  the  THpid  and 

angebat,  regi,  licet  InTiti  et  renltentcfl.  dilutml  pages  of  Tyrrell ;    but  wboeTer 

nume  mresuntcoactl.  p.  492.    Heu  ubi  would  know  what  can  be  best  pleaded 

est  Londinensis,  toties  empta,  totles  con-  for  a  higher  antiquity  of  our  present 

cessa^totiesscripta,  totlesJnrata'Hbertaa!  parliamentary    couNtitution   may    hnvt 

&c.  p.  921.    The  king  sotnetlmes  sua-  reoourse  to  llody  on  ConTocationa,  and 

pended  their  market,  that  U,  I  suppose,  Lord  Lyttelton'a  History  of  Henry  II. 

their  right  of  toll,  tiU  his  demands  were  toI.  il.  p.  2TS,  and  vol.  It.  p.  7&-100.    I 

paid.  do  not  conceive  It  poeslble  to  argue  tlie 

*  These  writs  are   not  extant,  having  oueiitioa  mote  ingeniouRly  than  ban  been 

perhaps  never  been  returned :  and  conse-  done  by  the  noble  writer  last  quotiid. 

quently  we  cannot  tell  to  what  particu-  Whicelocke,  in  his  commentary  on  th« 

lar  places  they  were  addressed.    It  ap-  parliamentary  writ,  has  treated  it  verj 

pears  however  ^that   the  assembly  was  much  at  length,  but  with  no  criUeal  dis 

mtendsd  to  be 'numerous;  for  the  entry  orlmlnation. 
nuu:    seilhltar  dvlbus  Kbor,  clvibui 


<     ♦ 


238  EAELDEST  WRITS  TO  TOWNS.    Chap.  Vm.  Part  in 

merable  records  that  the  king  imposed  tallages  upon  hia 
demesne  towns  at  discretion.^  No  public  instrument  previous 
to  the  fortj-ninth  of  Henry  in.  names  the  citizens  and  bur- 
gesses as  constituent  parts  of  parliament;  though  prelates, 
barons,  knights,  and  sometimes  freeholders,  are  enumerated;* 
while,  since  the  undoubted  admission  of  the  commons,  they 
are  almost  invariably  mentioned.  No  historian  speaks  of 
representatives  appearing  for  the  people,  or  uses  the  word 
citizen  or  burgess  in  describing  those  present  in  parliament. 
Such  convincing,  though  negative,  evidence  is  not  to  be  inval- 
idated by  some  general  and  ambiguous  phrases,  whether  in 
writs  and  records  or  in  historians.'  Those  monkish  annalists 
are  poor  authorities  upon  any  point  where  their  language  iB 
to  be  delicately  measured.  But  it  is  hardly  possible  that, 
writing  circumstantially,  as  Roger  de  Hoveden  and  Matthew 
Paris  sometimes  did,  concerning  proceedings  in  parliament, 
they  could  have  failed  to  mention  the  commons  in  unequivocal 
expressions,  if  any  representatives  from  that  order  had  actu- 
ally formed  a  part  of  the  assembly. 

Two  authorities,  however,  which  had  been  supposed  to 
AnthoritiM  prove  a  greater  antiquity  than  we  have  assigned 
*"  ^^om  ^  ^®  representation  of  the  commons,  are  deserv- 
<ute.  ing  of  particular  consideration ;  the  cases  of  St. 

8t.Aibuis.  Albans  and  Barnstaple.  The  burgesses  of  St. 
Albans  complained  to  the  council  in  the  eighth  year  of 
Edward  IL,  that,  although  they  held  of  the  king  in  capite, 
and  ought  to  attend  his  parliaments  whenever  they  are  sum- 
moned, by  two  of  their  number,  instead  of  all  other  services, 
as  had  been  their  custom  in  all  past  times,  which  services  the 
Mud  burgesses  and  their  predecessors  had  performed  as  well 
in  the  time  of  the  late  king  Edward  and  his  ancestors  as  in 
that  of  the  present  king  until  the  parliament  now  sitting,  the 
names  of  their  deputies  having  been  constantly  enrolled  in 
chancery,  yet  the  sheriff  of  Hertfordshire,  at  tlie  instigation 

I  Madoz.  Hbt  of  Exchequer,  e.  17.  Ing  towns,  were  preient  In  thia  iHirUa 

s  The  only  spparaat  exception  to  this  mont.    But  whether  they  eat  m  repro- 

k  In  the  letter  ajildroAwd  to  the  pope  by  aenbitireii,  or  by  a  peculiar  writ  of  sum* 

the  parliament  of  1246 ;    the  salutation  monn,  b  nol  «o  evident ;  and  the  latter 

of  which  rnns  thus :  Barones,  procerea,  may  be  the  mpre  probable  hypothesis  of 

•t  magnates,  oe  nobiUs  portuum  maris  the  two. 

kabilatoreSy  neenon  et  olerufl  et  populus       >  Thus  Matthew  Paris  tells  us  that  in 

nnirersus,  salutem.    Matt.  Paris,  p.  096.  1237  the  whole  kingdom,  regnl    totlui 

It  is  plain,  I  think,  firom  these  words,  univerBitas,  repaired  to  a  paruunent  of 

that  some  of  the  chief  Inhabitants  of  the  Henry  III.  p.  387 
Cinque  Ports,  at  that  time  Tery  flourish 


EvoLisH  Const.  ST.  ALBANS.  239 

of  the  abbot  of  St.  Albans,  had  neglected  to  cause  an  election 
and  return  to  be  made ;  and  prayed  remedy.  To  this  petition 
it  was  answered,  "  Let  the  rolls  of  chancery  be  examined, 
that  it  may  appear  whether  the  said  burgesses  were  accus- 
tomed to  come  to  parliament,  or  not,  in  the  time  of  the  king's 
ancestors ;  and  let  right  be  done  to  them,  vocatis  evocandis, 
si  necesse  fuerit'*  I  do  not  translate  the^e  words,  concerning 
the  sense  of  which  there  has  been  some  dispute,  though  not, 
apparently,  very  material  to  the  principal  subject.^ 

This  is,  in  my  opinion,  by  far  the  most  plausible  testimony 
for  the  early  representation  of  boroughs.  The  burgesses  of 
St.  Albans  claim  a  prescriptive  right  from  the  u?age  of  all 
past  times,  and  more  especially  those  of  tfie  late  Edwai*d  and 
his  ancestors.  Could  this  be  alleged,  it  has  been  said,  oi  a 
privilege  at  the  utmost  of  fifty  years*  standing,  once  granted 
by  an  usurper,  in  the  days  of  the  late  king's  father,  and  after- 
wards discontinued  till  about  twenty  years  before  the  date  of 
their  petition,  according  to  those  who  refer  the  regular  appear- 
ance of  the  commons  in  parliament  to  the  twenty-third  of 
Edward  I.  ?  Brady,  who  obviously  felt  the  strength  of  this 
authority,  has  shown  little  of  his  usual  ardor  and  acuteness  in 
repelling  it.  It  wa-i  observed,  however,  by  Madox,  that  the 
petition  of  St.  Albans  contains  two  very  singular  alh'gations : 
it  asserts  that  the  town  was  part  of  the  king's  demesne, 
whereas  it  had  invariably  belonged  to  the  adjoining  abbey ; 
and  that  its  burgesses  held  by  the  tenure  of  attending  parlia- 
ment, instead  of  all  other  services,  contrary  to  all  analogy, 
and  without  parallel  in  the  condition  of  any  tenant  in  c^ipite 
throughout  the  kingdom.  "  It  is  no  wonder,  therefore,"  says 
Hume,  "  that  a  petition  which  advances  two  falsehoods  should 
contain  one  historical  mistake,  which  indeed  amounts  only  to 
an  inaccurate  expression."  But  it  must  be  confessed  that  we 
cannot  so  easily  set  aside  the  whole  authority  of  this  record- 
For  whatever  assurance  the  people  of  St.  Albans  might  show 
in  asserting  what  was  untnie,  the  king's  council  must  have 
been  aware  how  recently  the  deputies  of  any  towns  had  been 
admitted  into  parliament.  If  the  lawful  birth  oF  the  House 
of  Commons  were  in  1295,  as  is  maintained  by  Brady  juid  his 
disciples,  is  it  conceivable  that,  in  1315,  the  council  would 
have  received  a  petition,  claiming  the  elective  franchise  bv 

1  Brady**  Introduction  to  Hist,  of  Kngland,  p.  88« 


240  EARLIEST  WRITS  TO  TOWNS.    Chap.  VHI.  Part  m. 

prescription,  and  have  referred  to  the  rolls  of  chancery  to 
inquire  whether  this  had  been  used  in  the  days  of  the  king's 
progenitors  ?  I  confess  that  I  see  no  answer  which  can  easily 
be  given  to  this  objection  by  such  as  adopt  the  latest  epoch 
of  borough  representation,  namely,  the  parliament  of  23  £.  I. 
But  they  are  by  no  means  equally  conclusive  against  the  sup« 
position  that  the  communities  of  cities  and  towns,  having  been 
fii*st  introduced  into  the  legislature  during  Leicestei*'s  usurpa- 
tion, in  the  forty-ninth  year  of  Henry  III.,  were  summoned, 
not  perhaps  uniformly,  but  without  any  long  intermission,  to 
succeeding  parliaments.  There  is  a  strong  presumption,  from 
the  language  of  a  contemporary  historian,  that  they  sat  in  the 
parliament  of  12C9,  four  years  after  that  convened  by  LeicCvS- 
ter.^  It  is  more  unequivocally  stated  by  another  annalist  that 
they  were  present  in  the  first  parliament  of  Edwaixl  I.  held 
in  1271.^  Nor  does  a  similar  inference  want  some  degree  of 
support  from  the  preambles  of  the  statute  of  Marlebridge  in 
51  H.  III.,  of  Westminster  I.  in  the  third,  and  of  Gloucester 
in  the  sixth,  year  of  Edward  L'  And  the  writs  are  extant 
which  summon  every  city,  borough,  and  market  town  to  send 
two  deputies  to  a  council  in  the  eleventh  year  of  his  reign. 
I  call  this  a  council,  for  it  undoubtedly  was  not  a  parliament. 
The  sheriffs  were  directed  to  summon  personally  all  who  held 
more  than  twenty  pounds  a  year  of  the  crown,  as  well  as  four 
knights  for  each  county  invested  Avith  full  powers  to  ant  for 
the  commons  thereof.  The  knights  and  burgesses  thus  chosen, 
as  well  as  the  clergy  within  the  province  of  Canterbury,  met 
at  Northampton ;  those  within  the  province  of  York,  at  that 

1  Conyocatifl  nnlTenrfs  Anf^Iisa  preliitla  such,  particularly  the  fbnner,  though 

et  mafj^natibus,  necnon  cunctatum  rej^ni  Rummoned  for  purposes  not  strictly  par^ 

luicivitatumetburxorum  potentioribua.  Uanientary. 

Wykes,  in  Oale.   XV  Scriptores,   t.  ii.        *  The  statute  of  Marlebridge  is  mid 

p.  88.    I  am  indebted  to   llody  on  Con-  to   be  made    convocatts    di.«creCloribus, 

vocations  for  this  reference,  which  seems  tam  majoribus  quim   minoribus  ;    that 

to  have  escaped  most  of  our  constitu-  of  Westminster  primer,  par  son  conwil, 

feional  writers.  et  par  I'asmntementa  des  arrhieves<|ues, 

s  Hoc  anno  .  .  .  convenerunt   archi-  evesques,  abbes,  priors,  countes,  barons, 

episcopi,  episropi,  coroites  et    barones,  ettoutlecomniinality  dclaterretlinnqucs 

abbates  et  priores,  et  de  quolibet  comi-  snmmooes.    The  statute  of  UIoureKter 

tatu    quatuor   milites,    et    de  qulHbet  runs,  appelles  1i*n  plus  discretes  de  son 

civitate  quatuor.   Annales  Waverleienses  royaume,  auxibien  des  grandee  come  de« 

in  Gale.  t.  ii.   p.  227.    I  was  led  to  this  meinden.      These    preambles    seem     to 

passage  by  Atterbury,  Rights  of  Convo-  have  satisfied  Mr.  Pryniie  that  the  coni- 

cations,  p.  810,  where  some  other  au-  mons  were  then  repreitented,  though  the 

thorities  less  unquestionable  are  adduced  writs  are  wanting ;  and  certainly  no  on« 

for  the  same  purpose.  Both  this  assembly  could  bo  less  disposed  to  exaggerate  their 

and  that  menrioned  by  Wylces  in  12^  antiquity.    2d  Register,  p.  807 
ware  certainly  parliamentSf  and  acted  as 


ExGuaH  C0118T.  BARNSTAPLE.  241 

dtj.  And  neither  assembly  was  opened  bj  the  .king.^  This 
anomalous  convention  was  nevertheless  one  means  of  estab- 
lishing the  representative  system,  and,  to  an  inquirer  free 
firom  technical  prejudice,  is  little  less  important  than  a  regular 
parliament  Nor  have  we  long  to  look  even  for  this.  In  the 
same  year,  about  eight  months  after  the  councils  at  Northamp- 
ton and  York,  writs  were  issued  summoning  to  a  parliament 
at  Shrewsbury  two  citizens  from  London,  and  as  many  from 
each  of  twenty  other  considerable  towns.*  It  is  a  slight  cavil 
to  object  that  these  were  not  directed  as  usual  to  the  sheriff 
of  each  county,  but  to  the  magistrates  of  each  place.  Though 
a  very  imperfect,  this  was  a  regular  and  unequivocal  repre- 
sentation of  the  commons  in  parliament  But  their  attendance 
seems  to  have  intermitted  from  this  time  to  the  twenty-third 
year  of  Edward's  reign.* 

Those  to  whom  the  petition  of  St  Albans  is  not'  8atisfa<> 
lory  will  hardly  yield  their  conviction  to  that  of  j^^^^    . 
Barnstaple.    This  town  set  forth  in  the  eighteenth 

1  Bnuly^s  Wnt.  of  Bogland,   toI.  U.  oftheMnffftnd  his  ooanell.*'    Carto,  U. 

Appendix  ;  Cartv.  toI.  U.  p.  247.  105,  referring  to  Hot.  WaU.  11  Bdw.  L 

s  Thin  ill  cooimonly  denominated  the  m.  2d. 

parliament  of  Acton  fiamell ;  the  clergj  As  the  parliament  was  stinuDoned  to 

and  commons  haring  sat  in  that  totra,  meet  at  Shrvivsbury,  it  may  be  preitamed 

while  the  baroos  pawed  Judgment  upon  that  the  Commons  adjourned  to  Acton 

DftTid  prince  of  Wales  at  Shrewsbury.  Bumell.    The  word  '*  statute"  impUet 

The  towns  which  were    honored   with  that  some  consent  was  giren,  though 

the  privilege  of  representation,  and  may  the  enactment  came  from  the  kirn;  and 

eonseqnently  be  supposed  to  hare  lieen  council.    It  is  entitled  In  the  Book  of 

at  that  time  the  most  considerable  in  the  Exchequer — des  Kutatus  de  Slopbuiy 

England,    were    York,    Carlisle,    Scir*  ke  sunt  appele    Actone    bornel.     Ces 

oorough,  Nottingham,  Qrioisby,  Lincoln,  sunt  les  Estatus  fes  at   Salopsebur,  al 

Northampton,    Lynn,   Yarmouth,   Col-  pnrleroent  probhein  apres  la  fete  Seint 

thester,  Norwich,  Chester,  Shrewsburyi  Michel,  I'an  del   reigne  le  Key  Bdvrard. 

Worceetor,  Ilerelbrd,  Bristol,Canterbui7,  Fitz  le  Key  Henry,  unrime.    lieport  or 

Winchester,  and  Exeter,     liymer,  t.  fi.  Lords*  Committee,  p.  191.    The  enact- 

p.  247.  ment  by  the  king  and  council  Ibunded 

"  This   [the   trial   and  Judgment  of  on  the  consent  of  the  estates    was    at 

Llewallin]  seems  to  have  been  the  only  Acton  Bumell.      And    the  Statute  of 

business  transacted  at  Shrewsbury  ;  Ibr  Merchants,  13  Edw.  I.,  refers  to  that  of 

the  bishops  and  abbots,  and  ibnr  knights  the  11th,  as  made  by  the  king,  a   son 

of  each  shire,  and   two  representaHres  parlenictit  que  11  tint  4  Acton  Bumell, 

of  liondon  and  nineteen  other  trading  and  agnin    mentions    Pavant  dlt  .«tatut 

towns,  summoned  to  meet  the  same  day  lait   4   Acton    Bumell.    This   seems  to 

in  parliament,  are  mid  to   hare  sat  at  afford  a  Toucher  for  what  is  said  in  my 

Actoh  Bumell;  and  thence  the  law  made  text,  which  has  been  controverted  by  a 

for  the  more  easy  recovrry  of  the  debts  learned  antiquary.*    It  is  certain  that 

of  merchants  is  called  the  Statute  of  the  lords  were  at  Shrewsbury  in  their 

Acton  Bumell.    It  was  probably  made  Judicial  character  condemning  Llewellin  ; 

at  the  request  of  the  representatives  of  but  whether  they  proceeded  aflerwarda 

the  cities  and  boroughs  present  in  that  to  Acton  Bumell,  and  Joined  in  tbtt  stat* 

parliament,  authentic  copies  in  the  king's  ute,  is  not  quite  so  clear, 

name  l)dng  sent  to  seven  of  those  trading  *  [Notx  VT.] 
towns;  but  it  runs  only  in  the  name 

*  Arcbaeologioal  Journal,  vol.  ii.  p.  887,  by  the  Ber.  W.  Bartahont. 
^OL.  II.  —  M.  16 


242  EARLIEST  WRITS  TO  TOWNS.    Chap.  Vm.  Part  IIL 

of  Edward  III.  that,  among  other  franchises  granted  to  then\ 
bj  a  charter  of  Athelstan,  thej  had  ever  since  exoerdsed 
the  right  of  sending  two  burgesses  to  parliament     The  said 
charter,  indeed,  was  unfortunately  mislaid;   and  the  prayer 
of  their  petition  was  to  obtain  one  of  the  like  import  in  its 
stead.     Barnstaple,  it  must  be  observed,  was  a  town  belong- 
ing to  Lord  Audley,  and  had  actually  returned  members  ever 
since  the  twenty-third  of  Edward  I.     Upon  an  inquisition 
directed  by  the  king  to  be  made  into  the  truth  of  these  al- 
legations, it  was  found  that  ^  the  burgesses  of  the  said  town 
were  wont  to  send  two  burgesses  to  parliament  for  the  com- 
monalty of  the  borough ; "  but  nothing  appeared  as  to  the 
pretended  charter  of  Athelstan,  or  the  liberties  which  it  wsa 
alleged  to   contain.     The   burgesses,   dissatisfied   with  this 
inquest,  prevailed  that  another  should  be  taken,  which  cer- 
tainly answered  better  their  wishes.     The  second  jury  found 
that  Barnstaple  was  a  free  borough  from  time  immemorial; 
that  the  burgesses  liad  enjoyed  under  a  charter  of  Athelstan, 
which   had  been   casually  lost,  certain  franchises  by  them 
enumerated,   and   particularly  that  they  should   send  two 
burgesses  to   parliament ;   and  that  it  would  not  be  to  the 
king's  prejudice  if  he  should  grant  them  a  fresh  charter  in 
terms  equally  ample  with  that  of  his  predecessor  Athelstan. 
But  the  following  year  we  have  another  writ  and  another 
inquest ;  the  former  reciting  that  the  second  return  had  been 
unduly  and  fraudulently  made ;  and  the  latter  expressly  con* 
tradicting  the  previous  inquest  in  many  points,  and  especially 
finding  no  proof  of  Athelstan's  supposed  charter.    Comparing 
the  various  parts  of  this  business,  we  shall  probably  be  in- 
duced to  agree  with  Willis,  that  it  was  but  an  attempt  of  the 
inhabitants  of  Barnstaple  to  withdraw  themselves  from  the 
jurisdiction  of  their  lord.     For  the  right  of  returning  bur- 
gesses, though  it  is  the  main  point  of  our  inquiries,  was  by 
no  means  the  most  prominent  part  of  their  petition,  which 
rather  went  to  establish  some  civil  privileges  of  devising 
their  tenements  and  electing  their  own  mayor.     The  first  and 
fairest  return  finds  only  that  they  were  accustomed  to  send 
members  to  parliament,  which  an  usage  of  fifly  years  (from 
23  £.  I.  to  18  E.  III.)  was  fully  sufficient  to  establish,  with- 
out searching  into  more  remote  antiquity.  ^ 

1  WilUa,  Notitift  ParliamentaiU,  vol.  U.  p.  812 ;  I^ttelton^i  Hist,  of  En.  II « 

VCb  Ttm  p.   SB. 


ENGLISH  CowsT.  -  BAENSTAPLK  243 

It  has,  however,  prohablj  occurred  to  the  reader  of  these 
two  cases,  St.  Albans  and  Barnstaple,  that  the  representation 
of  the  commons  in  parliament  was  not  treated  as  a  noveltj, 
even  in  times  little  posterior  to  those  in  which  we  have  been 
supposing  it  to  have  originated.  In  this  consists,  I  think,  the 
sole  strength  of  the  opposite  argument.  An  act  in  the  fifth 
year  of  Richai*d  II.  declares  that,  if  anj  sheriff  shall  leave 
out  of  his  returns  any  cities  or  boroughs  which  be  bound  and 
of  old  times  were  wont  to  come  to  the  parliament,  he  shall 
be  punished  as  was  accustomed  to  be  done  in  the  like  case  in 
time  past  ^  In  the  memorable  assertion  of  legislative  right 
bj  the  commons  in  the  second  of  Henry  V.  (which  will  be 
quoted  hereafter)  they  affirm  that  ''  the  commune  of  the  land 
is,  UTid  ever  hcu  been,  a  member  of  parliament"  ^  And  the 
consenting  suffrage  of  our  older  law-books  must  be  placed  in 
the  same  scale.  The  first  gainsayers,  I  think,  were  Camden 
and  Sir  Henry  Spelman,  who,  upon  probing  the  antiquities 
of  our  constitution  somewhat  more  exactly  than  their  prede 
cessors,  declared  that  they  could  find  no  signs  of  the  com- 
mons in  parliament  till  the  forty-ninth  of  Henry  IIL 
Prynne,  some  years  afterwards,  with  much  vigor  and  learn- 
ing, maintained  the  same  argument,  and  Brady  completed  the 
victory.  But  the  current  doctrine  of  Westminster  Hall,  and 
still  more  of  the  two  chambers  of  parliament,  was  certainly 
much  against  these  antiquaries ;  and  it  passed  at  one  time  for 
a  surrender  of  popular  principles,  and  almost  a  breach  of 
privilege,  to  dispute  the  lineal  descent  of  die  House  of  Com- 
mons from  the  witenagemot* 

>  5  Rio.  IT.  ftat.  2,  e.  It.  presence,"  do  not  appear  to  me  concInslTe 

t  Hot.  Pari.  Tol.  It.  p.  22.  to  prove  that  they  were  actually  preeeot. 

s  Though  Bueh  an  argument   would  Uoe  anno  Rex  Scotise  WUlolm  us  magnum 

not  be  coiicIuftiTe,  It  might  afford  some  tenuit  consilium.    Ubl,  petlto  ab   opti- 

ground  for  heflitatioOf  if  the  royal  burghs  matibus  auxlHo,  promiserunt  se  daturoe 

of  Scotland  were  actually  repreeented  in  decern  uiille  marcas:  prnter  burgensea 

their  parliament  more  than  half  a  cen-  regni,  qui  sex  millta  promiserunt.   Those 

tnry  before  the  date  aaufgned  to  the  first  who  know  the  brief  and  incorrect  style 

ivpresentation  of  English  towns.    Lord  of  chronicles  will  not  think  it  unlikely 

Bailee    concludes   from   a    passage   in  that  the  offer  of  GOOO  marks  by  the  hur- 

Fordun  "  that  as   early  aa    1211    bur^  gesses  was  not  made  in  parlianieiif ,  but 

geraes  gave  suit  and  premnco  in  the  great  in  consequence  of  separate  reoulsitiona 

council  of  the  k^ng*s  vassals  ;  though  the  fh>m  the  crown.    Pinkerton  is  of  opinion 

contrary  has  been   aswrted  with  much  that  the   magistrates  of  royal    burghs 

eonfldence  by  various  authors."    Annals  might  upon  this,  and  perhaps  other  ocea- 

of  Scotland,vol.  i.  p.  139.  Fordun^s  words,  sions.  have  attend(*d  at  the  bar  of  pnrlia> 

however,  so  far  from  importing  that  they  ment  with  their  offers  of  money.    But 

formed   a   member   of  the   legislaturs,  the  deputies  of  towns  do  not  appear  as  a 

which  perhaps  Lord  IJalles  did  not  mean  part  of  parliament  till  1326.    Hist,  of 

hy  the  qoai&t  expression  *<  gave  suit  and  Scotland,  vot  i.  p.  362,  871. 


244  DEPUTIES  FROM  BOROUGHS.    Chap.  VIH.  Pabt  nt 

The  trae  ground  of  these  pretensions  to  antiquity  was  a 
very  well-founded  persuasion  that  no  otlier  arguipent  would 
be  so  conclusive  to  ordinary  minds,  or  cut  short  so  effectually 
all  encroachments  of  the  prerogative.  The  populace  of 
every  country,  but  none  so  much  as  the  English,  easily  grasp 
the  notion  of  right,  meaning  thereby  something  positive  and 
definite;  while  the  maxims  of  expediency  or  theoretical 
reasoning  pass  slightly  over  their  minds.  Happy  indeed  for 
England  that  it  is  so  I  But  we  have  here  to  do  with  the 
fact  alone.  And  it  may  be  observed  that  several  pious 
frauds  were  practised  to  exalt  the  antiquity  of  our  constitu- 
tional liberties.  These  began,  perhaps,  very  early,  when  the 
imaginary  laws  of  Edward  the  Confessor  were  so  earnestly 
demanded.  They  were  carried  further  under  Edward  I.  and 
liis  successor,  when  the  fable  of  privileges  granted  by  the 
Conqueror  to  the  men  of  Kent  was  devised  ;  when  Andrew 
Horn  filled  his  Mirror  of  Justices  with  fictitious  tales  of 
Alfred ;  and,  above  all,  when  the  ^  Method  of  holding  parlia- 
ments in  the  time  of  Ethelred"  was  fabricated,  about  the 
end  of  Richard  II.'s  reign  ;  an  imposture  which  was  not  too 
gross  to  deceive  Sir  Edward  Coke.* 

There  is  no  great  difficulty  in  answering  the  question  why 
Canaet  of  ^^^  deputies  of  boroughs  were  finally  and  perma- 
•ummoniog  ncntly  ingrafted  upon  parliament  by  Edward  I.* 
frosa  The  government  was  becoming  constantly  more 

boEooghf.  attentive  to  the  wealth  that  commerce  brought  into 
the  kingdom,  and  the  towns  were  becoming  more  flourishing 
and  more  independent.  But  chiefly  there  was  a  much 
stronger  spirit  of  general  liberty  and  a  greater  discontent  at 
violent  acts  of  prerogative  from  the  era  of  Magna  Charta ; 
afler  which  authentic  recognition  of  free  principles  many 
acts  which  had  seemed  before  but  the  regular  exercise  of 
authoiity  were  looked  upon  as  infringements  of  the  subject's 
right.     Among  these  the  custom  of  setting  tallages  at  discre- 

1  [NoTi  VTT.]  a  eharai  In  plaee  of  their  nmneii,  whor* 

9  Th«M  expranlons  cannot  appetr  too  the  different  mnki  prawnt  are  enamer. 

•trong     But  It  b  Terr  remarkable  that  ated.    Rot.  I^rl.  toI.  li.  p.  146.    A   aub- 

to  the  parliament  of  18  Kdward  III.  the  sidj  wag  ipranted  at  this  parliament;  ao 

writu  appear  to  bare  summoned  none  of  that.  If  the  citlsens  and  bni^gesMS  wera 

the  towns,  but  only  the  counties.  WilliK,  really  not  summoned.  It  Is  by  fiir  the 

Notit.  Parliament.  toI.  I.  Frefnctt,  p.  18.  most  Tiolent  stretch  of  power  during  tha 

Prynne's  Register,  8d  part,  p.  144.    Yet  reign  of  Edward  III.    But  I  know  of 

the  citliens  and  burge«ses  are  once,  but  no  collateral  CTldanca  to  iUuatrate  nr  dia 

•nly  onct},  named  as  present  In  the  par>  prore  It. 
Ramantaxy  roU ;  and  there  Is,  in  general, 


EifGLisH  CosHT.     DEPUTIES  FROM  BOROUGHS.  245 

tion  would  naturally  appear  the  most  intolerable ;  and  men 
were  unwilling  to  remember  that  the  burgesses  who  paid 
them  were  indebted  for  the  rest  of  their  possessions  to  the 
bounty  of  the  crown.  In  Edward  I.*s  reign,  even  before  the 
great  act  of  Confirmation  of  the  Charters  had  rendered  arbi- 
trary impositions  absolutely  unconstitutional,  they  might 
perhaps  excite  louder  murmurs  than  a  discreet  administra- 
tion would  risk.  Though  the  necessities  of  the  king,  there- 
fore, and  his  imperious  temper  oHen  led  him  to  this  course,' 
it  was  a  more  prudent  counsel  to  try  the  willingness  of  his 
people  before  he  forced  their  reluctance.  And  the  success 
of  his  innovation  rendered  it  worth  repetition.  Whether  it 
were  from  the  complacency  of  the  commons  at  being  thus 
admitted  among  the  peers  of  the  realm,  or  from  a  persuasion 
that  the  king  would  take  their  money  if  they  refused  it,  or 
from  inability  to  withstand  the  plausible  reasons  of  his  minis- 
ters, or  from  the  private  influence  to  which  the  leaders  of 
every  popular  assembly  have  been  accessible,  much  more  was 
granted  in  subsidies  afler  the  representation  of  the  towns 
commenced  than  had  ever  been  extorted  in  tallages. 

To  grant  money  was,  therefore,  the  main  object  of  their 
meeting ;  and  if  the  exigencies  of  the  administration  could 
have  been  relieved  without  subsidies,  the  citizens  and  bur- 
gesses might  still  have  sat  at  home  and  obeyed  the  laws 
which  a  council  of  prelates  and  barons  enacted  for  their  gov- 
ernment. But  it  is  a  difficult  question  whether  the  king  and 
the  peers  designed  to  make  room  for  them,  as  it  were,  in 
legislation ;  and  whether  the  power  of  the  purse  drew  after 
it  immediately,  or  only  by  degrees,  those  indispensable  rights 
of  consenting  to  laws  which  they  now  possess.  There  are 
DO  sufficient  means  of  solving  this  doubt  during  the  reign  of 
Edward  I.  The  writ  in  22  E.  I.  directs  two  knights  to  be 
chosen  cum  plenH  potestate  pro  se  et  tot&  communitate  comi- 
tatus  prffidicti  ad  oonsulendum  et  consentiendum  pro  se  et 
communitate  illft,  his  qu»  comites,  barones,  et  proceres 
pnedicti  concorditer  ordinaverint  in  prsemissis.  That  of  the 
next  year  runs,  ad  faciendum  tunc  quod  de  communi  consilio 
ordinabitur  in  prsemissis.     The  same  words  are  inserted  in 

>  TallngM  were  ImpoMd  trlttaont  eon-  spIritiuU  noblUtj  to  set  a  tallage  on  tbdt 

■ent  of  parlUunent  In  17  B.  t.    Wykee,  own  tenants.    Thii  was  Rubeequent  te 

p.  117;  and  In  82  B.  I.    Brady'i  Hist,  the  Conflrmatio  Chartarnm,  and  unqoM 

9t  Bng .  ToL  ii.    In  the  latter  instanoe  tioaablor  illegal. 
(IM  klOK  aUo  fotm  !»«•  t6  the  tasr  and 


246  DIVISIOK  OF  PABLIAMENT  Chap.  Vm.  Past  DDL 

the  writ  of  26  E.  I.  In  that  of  28  E.  I.  the  knights  are 
directed  to  be  sent  cum  plena  potestate  audiendi  et  facie ndl 
quaB  ibidem  ordinari  contigerint  pro  oommuni  commoda 
Several  others  of  the  same  reign  have  the  words  ad 
faciendum.  The  difficulty  is  to  pronounce  whether  this  term 
is  to  be  interpreted  in  the  sense  of  performing  or  of  enaoU 
ing ;  whether  the  representatives  of  the  commons  were 
merely  to  learn  from  the  lords  what  was  to  be  done,  or  to 
beai*  their  part  in  advising  upon  it  The  earliest  writ,  that 
of  22  E.  I.,  certainly  implies  the  latter ;  and  I  do  not  know 
tliat  any  of  the  rest  are  conclusive  to  the  contrary.  In  the 
reign  of  Edward  II.  the  words  ad  consentiendum  alone,  or 
ad  faciendum  et  consentiendum,  begin;  and  from  that  of 
Edward  UI.  this  form  has  been  constantly  used.^  It  must 
still,  however,  be  highly  questionable  whether  the  commons, 
who  had  so  recently  taken  their  place  in  parliament,  gave 
anything  more  tlian  a  constructive  assent  to  the  laws  enacted 

.  during  this  reign.  They  are  not  even  named  in  the  pream- 
ble of  any  statute  till  the  last  year  of  Edward  L  Upon 
more  than  one  occasion  the  sheriffs  were  directed  to  return 
the  same  members  who  had  sat  in  the  last  parliament,  unless 
prevented  by  death  or  infirmity.' 

It  has  been  a  very  prevailing  opinion  that  parliament  was  not 
At  what  divided  into  two  houses  at  the  first  admission  of  the 
time  pariia-  commous.  If  by  tliis  is  only  meant  that  the  com 
STraed**  mons  did  not  occupy  a  separate  chamber  till  some 
Into  two  time  in  the  reign  of  Edward  III.,  the  proposition, 
®"'"'  true  or  false,  will  be  of  little  importance.     They 

may  have  sat  at  the  bottom  of  Westminster  Hail,  while  the 
lords  occupied  the  upper  end.  But  that  they  were  ever  in* 
termingled  in  voting  appears  inconsistent  with  likelihood  and 
authority.     The  usual  object  of  calling  a  parliament  was  to 

4mpose  taxes ;  and  these  for  many  years  afler  the  introduc- 
tion of  the  commons  were  laid  in  different  proportions  upon 
the  three  estates  of  the  realm.  Thus  in  the  23  E.  I.  the 
earls,  barons,  and  knights  gave  the  king  an  eleventh,  the  cler- 
gy a  tenth ;  while  he  obtained  a  seven£  from  the  citizens  and 
burgesses ;  in  the  twenty-fourth  of  the  same  king  the  two 

1  Prjnne^B  Sd  RcgliitBr.    It  may  bt  Ikdendam  bad  the  wmm  of  anaetlng; 

icmarked  that  writs  of  snmmoni  to  great  etnce  statatas  could  not  b«  pawed  in  such 

eottneils  nerer  mn  ad  (kciendaoif  but  ad  aoMmblies.    Id.  p.  02« 
tractandam,  coneuleDdttm  et  eoDeonUeD-       *  28  K.  I.,  in  Prynna^i  4th  Eegtotar 

4iiA  I  ftciowhtoheoDM  would  iafor  that  p.  12}  01.  II.(*sm^«"umA)»P- ^ 


Bkjubb  Coamr.  INTO  TWO  HOUSES.  247 

former  of  these  orders  gave  a  twelfth,  the  last  an  eighth ;  in 
the  thirty-third  year  a  thirtieth  was  the  grant  of  the  barons 
and  knights  and  of  the  clergy,  a  twentieth  of  the  cities  and 
towns ;  in  the  fii'st  of  Edwai*d  II.  the  counties  paid  a  twen- 
tieth, the  towns  a  fifleenth  ;  in  the  sixth  of  Edward  III.  the 
rates  were  a  fifleenth  and  a  tenth.^  These  distinct  grants 
imply  distinct  grantors ;  for  it  is  not  to  be  imagined  that  the 
commons 'intermeddled  in  those  affecting  the  lords,  or  the 
loi*ds  in  those  of  the  commons.  In  fact,  however,  there  is 
abundant  proof  of  their  separate  existence  long  before  the 
seventeenth  of  Edward  III.,  which  is  the  epoch  assigned  by 
Carte,'  or  even  the  sixth  of  that  king,  which  has  been  chosen 
by  some  other  writers.  Thus  the  commons  sat  at  Acton  Bur* 
nell  in  the  eleventh  of  Edward  I.,  while  the  upper  house  was 
at  Shrewsbury.  In  the  eighth  of  Edward  11.  **  the  commons 
of  England  complain  to  the  king  and  his  council,  &c."'  These 
must  surely  have  been  the  commons  assembled  in  parliament, 
for  who  else  could  thus  have  entitled  themselves  ?  In  the 
nineteenth  of  the  same  king  we  find  several  petitions,  evident- 
ly proceeding  from  the  body  of  the  commons  in  parliament, 
and  complaining  of  public  grievances.^  The  roll  of  1  E.  III., 
though  mutilated,  is  conclusive  to  show  that  separate  petitions 
were  then  presented  by  the  commons,  according  to  the  regu- 
lar usage  of  subsequent  times.'  And  indeed  the  preamble 
of  1  E.  III.,  Stat  2,  is  apparently  capable  of  no  other  infer- 
ence. 

As  tlie  knights  of  shires  correspond  to  the  lower  nobility 
of  other  feudal  countries,  we  have  less  cause  to  be  surprised 
that  they  belonged  originally  to  the  same  branch  of  parlia 
ment  as  the  barons,  than  at  their  subsequent  intermixture 
with  men  so  inferior  in  station  as  the  citizens  and  burgesses 
It  is  by  no  means  easy  to  define  the  point  of  time  when  this 
distribution  was  settled ;  but  I  think  it  may  be  inferred  from 
the  rolls  of  parliament  that  the  houses  were  divided  as  they 
are  at  present  in  the  eighth,  ninth,  and  nineteenth  years  of 
Edward  II.*  This  appeal's,  however,  beyond  doubt  in  the 
first  of  Edward  III.^  Yet  in  the  sixth  of  the  same  prince, 
though  the  knights  and  burgesses  are  expressly  mentioned  ta 

1  Bndj*t  ntet.  of  EngUmd,  tdL  11.  p.  •  Rot.  Pari.  toI.  i.  p. 

40 :  ParUiunmtary  Uktorr,  toL    1.   p.  *  Id.  p.  480. 

a06 ;  Rot.  Pari.  t.  il.  p.  66.  •  Id.  vol.  if.  p.  7. 

«  Carta,  vol.  U.  p.  4f i ;  ParilanMBtarf  •  Id.  p.  280, 861, 40 

Vatorr,  tbL  i.  p.  281  '  Id.  p*  Oi 


248       TWO  HOUSES  OF  PARLIAMENT.    Chat.  VIII   Paet  IIL 

have  consulted  together,  the  former  taxed  themselves  in  a 
smaller  rate  of  subsidy  than  the  latter.^ 

The  proper  business  of  the  House  of  Commons  was  to  pe- 
tition for  redress  of  grievances,  as  much  as  to  provide  for  the 
necessities  of  the  crown.  In  the  prudent  fiction  of  English 
law  no  wrong  is  supposed  to  proceed  from  the  source  of  riglit. 
The  throne  is  fixed  upon  a  pinnacle,  which  perpetual  beams 
of  ti'uth  and  justice  irradiate,  though  corruption  and  partiality 
maj  occupy  the  middle  region  and  cast  their  chill  shade  upon 
all  below.  In  his  high  court  ot'  parliament  a  king  of  Eng- 
land was  to  learn  where  injustice  had  been  unpunished  and 
where  right  had  been  delayed.  The  common  courts  of  law, 
if  they  were  sufficiently  honest,  were  not  sufficiently  strong, 
to  redress  the  subject's  injuries  where  the  officers  of  the  crown 
or  the  nobles  interfered.  To  parliament  he  looked  as  the 
great  remedial  court  for  relief  of  private  as  well  as  public 
grievances.  For  this  cause  it  was  ordained  in  the  fifth  of  Ed- 
wai'd  II.  that  the  king  should  hold  a  parliament  once,  or,  if 
necessary,  twice  every  year ;  "  that  the  pleas  which  have 
been  thus  delayed,  and  those  where  the  justices  have  differed, 
may  be  brought  to  a  close."  '  And  a  short  act  of  4  Edward 
III.,  which  was  not  very  strictly  regarded,  provides  that  a 
parliament  shall  be  held  '*  every  year,  or  oftener,  if  need 
be."  '^  By  what  persons,  and  under  what  limitations,  this  ju- 
risdiction in  parliament  was  exercised  will  come  under  our 
future  consideration. 

1  Rot.  Pari.  vol.  H.  p.  86.  mons,  was  usually  conToned  to  meet  the 

s  Id.  vol.  i.  p.  285.  king's  coudcII  in  one  of  tliese  parlia- 

*  4  R.  III.  c.  14.  Annual  sewions  of  menta."  p.  171. 
parliament  seem  fully  to  satisfy  the  Certainly  the  commons  could  not  de- 
words,  and  still  more  the  spirit,  of  this  sire  to  have  an  annual  parliament  in 
act,  and  of  36  £.  III.  o.  10 ;  which  how-  order  to  make  new  statutes,  much  less  te 
ever  are  repealed  by  implication  from  the  grant  subsidies.  It  was,  however,  im 
proTbions  of  6  Will.  III.  c.  2.  But  it  portant  to  present  their  petitions,  and  U 
was  very  nu«  under  the  Plantagenot  dy-  set  forth  their  grioTanoes  to  this  high 
nasty  for  a  parliament  to  continue  more  court.  We  may  easily  reconcile  the 
than  a  year.  anxiety  so  often  expressed  by  the  com« 

It  has  been  obserred  that  this  prori^-  mons  to  have  ftequeot  sessions  of  parlia- 

ion  ^*  had  probably  in  view  the  admin-  ment,  with  the  individual  reluctance  of 

Istration  of  justice  by  the  king^s  court  members  to  attend.    A  few  active  men 

Is  parliament."    Report  of  L.  C.  p.  801.  procured  these  petitions,  which  the  ma- 

And  in  another  place :  —  **  It  is   clear  jority  could  not  with  decency  oppose, 

that  the  word  parliament  in  the  reign  of  since  the  public  benefit  was  generally 

Bdward  I.  was  not  used  only  to  describe  admitted.     But  when    the  writs  came 

a  legislative  assembly,  but  was  the  com-  down,  every  pretext  was  commonly  made 

mon  appellation  of  the  ordinary  assembly  use  of  to  avoid  a  troublesome  and  ill* 

of  the  king's  great  court  or  council;  and  romunemtad  Journey  to   Westminster, 

(hat  the  legislative  assembly  of  the  realm.  For  the  subject  of  annual  parliament 

eomposed  generally,  in  and  after  the  23u  see  a  valuable  article  by  Allen  in  the 

ot  Kdward  1.^  of  lords  spiritual  and  torn-  ap*h  volume  of  the  fidint>  juvh  Bieview-- 
yotal,  &ad  ivprseentatiTto  of  the  cook* 


Enolua  Coxst.  EDWARD  II.  249' 

The  efficacy  of  a  king's  personal  character  in  so  imperfect 
a  state  of  government  was  never  more  strongly  exemplified 
tlian  in  the  first  two  Edwards.     The  father,  a  Uttle  before  his 
death,  had  humbled  his  boldest  opponents  among  the  nobility ; 
and  as  for  the  commons,  so  far  from  claiming  a  Edward  ii. 
right  of  remonstrating,  we  have  seen  cause  to  doubt  Petitions  of 
whether  they  were  accounted  effectual   members  Sring*S 
of  the  legislature  for  any  purposes  but  taxation.  '««°- 
But  in  the  very  second  year  of  the  son's  reign  they  granted 
the  twenty-fitlh  penny  of  their  goods,  **  upon  this  condition, 
that  the  king  should  take  advice  and  grant  redress  upon  cer- 
tain articles  wherein  they  are  aggrieved."      These  were  an- 
swered at  the  ensuing  parliament,  and  are  entered  with  the 
king's  respective  promises  of  redress  upon  the  roll.     It  will 
be  worth  while  to  extract  part  of  this  record,  that  we  may 
see  what  were  the  complaints  of  the  commons  of  England, 
and  their  notions  of  right,  in  1309.     I  have  chosen  on  this 
as  on  other  occasions  to  translate  very  literally,  at  the  ex- 
pense of  some  stiffness,  and  perhaps  obscurity,  in  language. 

^  The  good  people  of  the  kingdom  who  are  come  hither  to 
parliament  pray  our  lord  the  king  that  he  will,  if  it  please 
him,  have  regard  to  his  poor  subjects,  who  are  much  ag- 
grieved by  reason  that  they  are  not  governed  as  they  should 
be,  especially  as  to  the  articles  of  the  Great  Charter ;  and  for 
this,  if  it  please  him,  they  pray  remedy.  Besides  which,  they 
pray  their  lord  the  king  to  hear  what  has  long  aggrieved  his 
people,  and  still  does  so  from  day  to  day,  on  the  part  of  those 
who  call  themselves  his  officers,  and  to  amend  it,  if  he  pleas- 
es." The  articles,  eleven  in  number,  are  to  the  following 
purport: — 1.  That  the  king's  purveyors  seize  great  quanti- 
ties of  victuals  without  payment ;  2.  That  new  customs  are 
set  on  wine,  doth,  and  other  imports ;  3.  That  the  current 
coin  is  not  so  good  as  formerly ;  ^  4,  5.  That  the  steward 
and  marshal  enlarge  their  jurisdiction  beyond  measure,  to  the 
oppression  of  the  people ;  6.  That  the  commons  find  none  to 
receive  petitions  addressed  to  the  council ;  7.  That  the  col- 
lectora  of  the  king's  dues  (pemours  des  prises)  in  towns  and 
at  fairs  take  more  than  is  lawful ;  8.  That  men  are  delayed 

1  Thlf  artlele  is  so  exprasMd  as  to  earrenej,  and  the  whole  tenor  of  these 

nake  It  appear  that  the  grievance  was  articles  relates  to  abuses  of  goTemment, 

the  high  price  of  commodities.    Bat  as  I  think  it  must  have  meant  what  1  have 

Uds  was  the  Datond  efSset  of  a  d^xaded  said  ir  the  text. 


260  PETITIONS  OF  PARLIAMENT.    Chap.  TOI.  PAsr  fll 

in  their  dvil  suits  bj  writs  of  protection ;  9.  That  felons  ea* 
cape  punishment  bj  procuring  charters  of  pardon ;  10.  That 
the  constables  of  the  king's  castles  take  cognizance  of  common 
pleas;  11.  That  the  king's  escheators  oust  men  of  lands  held 
by  good  title,  under  pretence  of  an  inquest  of  office.^ 

These  articles  display  in  a  short  compass  the  nature  of 
those  grievances  which  existed  under  almost  all  the  princes 
of  the  Plantagenet  dynasty,  and  are  spread  over  the  rolls  of 
parliament  for  more  than  a  century  after  this  time.  £dward 
gave  the  amplest  assurances  of  putting  an  end  to  them  all, 
except  in  one  instance,  the  augmented  customs  on  imports,  to 
which  he  answered,  rather  evasively,  that  he  would  take  them 
off  till  he  should  perceive  whether  himself  and  his  people 
derived  advantage  from  so  doing,  and  act  thereupon  as  he 
should  be  advised.  Accordingly,  the  next  year,  he  issued 
writs  to  collect  these  new  customs  again.  But  the  Lords  Or* 
dainers  superseded  the  writs,  having  entirely  abrogated  all  il- 
legal impositions.^  It  does  not  appear,  however,  that,  regard 
had  to  the  times,  there  was  anything  very  tyrannical  in  fid- 
ward's  government  He  set  tallages  sometimes,  like  his  fa- 
ther, on  his  demesne  towns,  without  assent  of  parliament.* 
In  the  nineteenth  year  of  his  reign  the  commons  show  that, 
^  whereas  we  and  our  ancestors  have  given  many  tallages  to 
the  king's  ancestors  to  obtain  the  charter  of  the  forest,  which 
charter  we  have  had  confirmed  by  the  present  king,  paying 
liim  largely  on  our  part ;  yet  the  king's  officers  of  tiie  forest 
seize  on  lands,  and  destroy  ditches,  and  oppress  the  people, 
for  which  they  pray  remedy,  for  the  sake  of  Grod  and  his  &• 
ther's  soul."  They  complain  at  the  same  time  of  arbitrary 
imprisonment,  against  the  law  of  the  land.^  To  both  these 
petitions  the  king  returned  a  promise  of  redress ;  and  they 
complete  the  cats^ogue  of  customary  grievances  in  this  period 
of  our  constitution. 

During  the  reign  of  Edward  11.  the  rolls  of  parliament  are 
imperfect,  and  we  have  not  much  assistance  from  other 
sources.  The  assent  of  the  commons,  which  frequently  is 
not  specified  in  the  statutes  of  this  age,*  appears  in  a  remark- 

1  Ptynne's  2d  Riglster,  p.  68.  etat.  7  Idw.  n.  and  In  12  Edw.  n.,  and 

*  Id.  p.  76>  equlTiJent  wordB  are  found  in  other  itat- 

*  Madoz,  Firma  Bnzgl,  p.  6 ;    Bot.  ntea.    Though  oftea  wanting,  the  teeti- 
ftai.  Tol.  1.  p.  449.  mony  to  the  constitution  of  parliament  li 

*  Rot.  Pari.  Tol.  t.  p.  480.  eniBcleDt  and  conciuBiTi. 

*  It  ia  howeyer  diatinctlj  speoifled  in 


JfiffOusH  C0K8T.  EDWABD  m.  251 

able  and  revolutionaTy  proceeding,  the  appointment  of  the 
Lords  Ordainers  in  1312.^  In  this  case  it  indicates  that  the 
aristocratic  party  then  combined  agaiast  the  crown  w^*e  de- 
sirous of  conciliating  popularity.  An  historian  relates  that 
some  of  the  commons  were  consulted  upon  the  ordinances  to 
be  made  for  the  reformation  of  government.* 

During  the  long  and  prosperous  reign  of  Edward  III.  the 
efforts  of  parliament  in  behalf  of  their  country  uwaxii  m. 
were  rewarded  with  success  in  establishins:  upon  ^^^  ^m- 

-         /••         «  •■••■1         I*  nous  estab- 

a  firm  footing  three  essential  pnnciples  of  our  gov-  ibh  seTezai 
emment — the  illegality  of  raising  money  without  '•«***»• 
consent ;  the  necessity  that  the  two  houses  should  concur  for 
any  alterations  in  the  law ;  and,  lastly,  the  right  of  the  com- 
mons to  inquire  into  public  abuses,  and  to  impeach  public 
•ounsellors.  By  exhibiting  proofs  of  each  of  these  from 
parliamentary  records  I  shall  be  able  to  substantiate  the 
progressive  improvement  of  our  free  constitution,  which  was 
principally  consolidated  during  the  reigns  of  £dward  TIL 
and  his  next  two  successors.  Brady,  indeed,  Carte,  and  the 
authors  of  the  Parliamentary  History,  have  trod  already 
over  this  groimd ;  but  none  of  the  three  can  be  considered  as 
fieuniliar  to  the  generality  of  readers,  and  I  may  at  least  take 
credit  for  a  sincerer  love  of  liberty  than  any  of  their  writings 
display. 

In  the  sixth  year  of  Edward  III.  a  parliament  was  called 
to  provide  for  the  emergency  of  an  Irish  rebellion,  Remoo- 
wherein,  *^  because  the  king  could  not  send  troops  1^1^^ 
and  money  to  Ireland  without  the  aid  of  his  people,  levytnt 
the  prelates,  earls,  barons,  and  other  great  men,  without 
and  the  knights  of  shires,  and  all  the  commons,  of  <»°MDt. 
their  free  will,  for  the  said  purpose,  and  also  in  order  that  the 
king  might  live  of  his  own,  and  not  vex  his  people  by  exces- 
sive prizes,  nor  in  other  manner,  grant  to  him  the  fifteenth 

1  Bot.  Pftri.  ToL  I.  p.  281.  GooM  lo  atUitm9  Jour  dn  Man  I'an  da 

*  WaMDffham,  p.   9T.      Tha   Lordi*  notre  ngoa  tiaree,  a  I'honaiir  de  Ihea 

aommlttaa  **  have  fcvnd  no  oTldanea  of  at  pour  la  blan  da  nous  at  da  nontxa 

any  writ  iMuad  Ibr  alaotloD  of  knighta,  n>iannia,euMloiiflgiantAdanoti«  franeha 

dttnUf  and  burgaaes  to  attend  tha  tama  TOtontA,  par   noa   lattraa  ouTartet  asx 

maatinei;  ftom  tha  lubfequant  doou-  pralati,  oonn tat,  at  barons,  «l  commmMj 

mants  it  Mama  probable  that  non«  ware  tU  dii  roiaumt^  an 'Us  pnlnant  eelire  oar> 

Inuad,  and  that  the  parliament  which  tain   peraonee  dea  prelati,  eomtee«  at 

•aaembled  at  Westminatar  oonaiated  onW  barona,  fro.    Rot.  Pari.  i.  9B1.    The  in* 

of  prelataa,  aarla,  and  barona."    p.  250.  frrenca  therefore  of  the  oommittaa  1 

Wa  luiTe  no  reeord  of  thia  pariiament;  arronaons.    [NonVIlLI 
bat  in  that  of  5  Edw.  II.  it  is  redtad  — 


252  REMONSTRANCES  OF  PARLIAMENT.  Chap.  Vm.  Part  IIL 

penny,  to  levj  of  the  commons/  and  the  tenth  from  the  cities, 
towns,  and  royal  demesnes.  And  the  king,  at  the  request  of 
the  same,  in  ease  of  his  people,  grants  that  the  commissions, 
lately  made  to  certain  persons  assigned  to  set  tallages  on  cities, 
towns,  and  demesnes  throughout  England  shall  be  immedi- 
ately repealed ;  and  that  in  time  to  come  he  will  not  set  such 
tallage,  except  as  it  has  been  done  in  the  time  of  his  ances- 
tors, and  as  he  may  reasonably  do."' 

These  concluding  words  are  of  dangerous  implication  ;  and 
certainly  it  was  not  the  intention  of  Edward,  inferior  to  none 
of  his  predecessors  in  the  love  of  power,  to  divest  himself  of  that 
eminent  prerogative,  which,  however  illegally  since  the  Cion- 
firmatio  Chartarum,  had  been  exercised  by  them  alL  But  the 
parliament  took  no  notice  of  this  reservation,  and  continued 
with  unshaken  perseverance  to  insist  on  this  incontestable 
and  fundamental  right,  which  he  was  prone  enough  to  violate. 

In  the  thirteenth  year  of  this  reign  the  lords  gave  their  an- 
swer to  commissioners  sent  to  open  the  parliament,  and  to 
treat  with  them  on  the  king's  part,  in  a  sealed  roll.  This 
contained  a  grant  of  the  tenth  sheaf,  fleece,  and  lamb.  But 
before  they  gave  it  they  took  care  to  have  letters  patent 
showed  them,  by  which  the  commissioners  had  power  '^to 
grant  some  graces  to  the  great  and  small  of  the  kingdom." 
^  And  the  said  lords,"  the  roll  proceeds  to  say,  "  will  that  the 
imposition  (maletoste)  which  now  again  has  been  levied  upon 
wool  be  entirely  abolished,  that  the  old  customary  duty  be 
kept,  and  that  they  may  have  it  by  charter,  and  by  enrolment 
in  parliament,  that  such  custom  be  never  more  levied,  and 

1  **  La  oommoaalMe  "  ■Mmi   in  thJa  tallage  Mt  frlthovt  iheir  eonaoDt  T    The 

place  to  mean  the  tenants  of  land,  or  silence  of  the  rolls  of  parliament  would 

oommons  of  the  eountteflf  In  oontcadis-  furotsh  but  a  poor  argument.    But  la 

tlnction  to  ciUaens  and  bafgeeses.  fiust  their  language  la  expraniTe  enough. 

s  Kot.  Pari.  toI.  U.  p.  66.    The  lords*  The  sereral  ranks  of  lords  and  commons 

committee  observe  on  this  passage  in  the  grant  the  fifteenth  penny  from  the  com* 

roll  of  parliament,  that  **  the  Ung^s  right  monalty,  and  the  teoth  firom  the  dtlea. 

to  tallage  his  cities,  boroughs,  and  de-  boroughs,  and  demesnes  of  the  king,  **thai 

mesnes  seems  not  to  have  been  quee-  our  lord  the  king  may  lire  of  his  own, 

tioned  by  the  parliament,  though  the  aiidpay  forhisezpenaeB,andnotaggrieTe 

ooromiMions  fi>r  setting  the  tallage  wers  his   people   by  ezoeedTe   (outraiouses) 

ol^ted  to."    p.  805.    But  how  can  we  prises,  or  otherwise."    And  upon  this 

belkve  that  after  the  rsprseentatlTes  of  the  king  reTokes  the  oommisslon  In  the 

these  citien  and  boroughs  had  sat,  at  least  words  of  the  text.  Can  any  tiling  be  clear* 

at  times,  for  two  reigns,  and  after  the  ez-  er  than  that  the  parliament,  though  in  a 

Elicit  renunciation  o^T  all  right  of  tallage  much  gentler  tone  than  they  came  after- 

y  Kdward  I.  (for  it  was  ncTer  pretended  wards  to  amume,  intimate  the  illegality 

that  the  king  could  lay  a  tallage  on  any  of  the  late  tallage?    As    to   any  other 

towns  which  did  not  hold  of  himself ),  objection  to  the  commissions,  which  the 

then  could  hare  been  a  parliament  which  committee  suppose  to  haTe  been  taken, 

**  did  not  question"  the  legality  of  a  nothing  appean  on  the  ralL 


ExouBH  Const.    REMONSTRANCES  OF  PARLIAMENT.  253 

that  this  grant  now  made  to  the  king,  or  anj  other  made  in 
time  past,  shall  not  turn  hereafter  to  their  charge,  nor  be 
drawn  into  precedent.''  The  commons,  who  gave  their  an- 
swer in  a  separate  roll,  declared  that  thej  could  grant  no 
subsidy  without  consulting  their  constituents ;  and  therefore 
begged  that  another  parliament  might  be  summoned,  and  in  the 
mean  time  they  would  endeavor,  by  using  persuasion  with  the 
people  of  their  respective  counties,  to  procure  the  grant  of  a 
reasonable  aid  in  the  next  parliament.^  They  demanded  also 
that  the  imposition  on  wool  and  lead  should  be  taken  as  it 
used  to  be  in  former  times,  '*  inasmuch  as  it  is  enhanced 
without  assent  of  the  commons,  or  of  the  lords,  as  we  under- 
stand ;  and  if  it  be  otherwise  demanded,  that  any  one  of  the 
commons  may  refuse  it  (le  puisse  arester),  without  being 
troubled  on  that  account  (saunz  estre  chalange)."  ^ 

Wool,  however,  the  staple  export  of  that  age,  was  too  easy 
and  tempting  a  prey  to  be  relinquished  by  a  prince  engaged 
in  an  impoverishing  war.  Seven  years  afterwards,  in  20  E. 
HL,  we  find  the  commons  praying  that  the  great  subsidy  of 
forty  shillings  upon  the  sack  of  wool  be  taken  off;  and  the  old 
custom  paid  as  heretofore  was  assented  to  and  granted.  The 
government  spoke  this  time  in  a  more  authoritative  tone. 
'^  As  to  this  point,"  the  answer  runs,  ^  the  prelates  and  others, 
seeing  in  what  need  the  king  stood  of  an  aid  before  his  pas- 
sage beyond  sea,  to  recover  his  rights  and  defend  his  king- 
dom  of  England,  consented,  with  the  concurrence  of  the 
merchants,  tliat  he  should  have  in  aid  of  his  said  war,  and  in 
defence  of  his  said  kingdom,  forty  shillings  of  subsidy  for 
each  sack  of  wool  that  should  be  exported  beyond  sea  for  two 
years  to  come.  And  upon  this  grant  divers  merchants  have 
made  many  advances  to  our  lord  the  king  in  aid  of  his  war ; 
for  whieh  cause  this  subsidy  cannot  be  repealed  without  assent 
of  the  king  and  his  lords."  * 

It  is  probable  that  Edward's  counsellors  wished  to  establish 
a  distinction,  long  afterwards  revived  by  those  of  James  I., 
between  customs  levied  on  merchandise  at  the  ports  and 
Internal  taxes.  The  statute  entitled  Confirmatio  Chartarum 
had  manifestly  taken  away  the  prerogative  of  imposing  the 
latter,  which,  indeed,  had  never  extended  beyond  the  tenants 
of  the  royal  demesne.     But  its  language  was  not  quite  so  ex- 

1  noL  Plui.  vol.  ii.  p.lM.  I  M  i  Id.  p.  ISL 


254  BEHOKSTRANCBS  OF  PARLIAMENT.    Chap.  Vm.  Past  IIL 

plicit  as  to  the  former,  although  no  reasonable  doubt  could  be 
entertained  that  the  intention  of  the  legislature  was  to  abro- 
gate every  species  of  imposition  unauthorized  by  parliament. 
The  thirtieth  section  of  Magna  Charta  had  provided  that 
foreign  merchants  should  be  free  from  all  tributes,  except  the 
ancient  customs ;  and  it  was  strange  to  suppose  that  natives 
were  excluded  from  the  benefit  of  that  enactment  Yet, 
owing  to  the  ambiguous  and  elliptical  style  so  frequent  in  our 
older  laws,  this  was  open  to  dispute,  and  could,  perhaps,  only 
be  explained  by  usage.  Edward  L,  in  despite  of  both  these 
statutes,  had  set  a  duty  of  threepence  in  the  pound  upon 
goods  imported  by  merchant  strangers.  This  imposition  was 
noticed  as  a  grievance  in  the  third  year  of  his  successor,  and 
repealed  by  the  Lords  Ordainers.  It  was  revived,  however, 
by  Edward  III.,  and  continued  to  be  levied  ever  afterwards.^ 
Edward  was  led  by  the  necessities  of  his  unjust  and  ex- 
pensive war  into  another  arbitrary  encroachment,  of  which  we 
find  as  many  complaints  as  of  his  pecuniary  extortions.  The 
commons  pray,  in  the  same  parliament  of  20  E.  m.,  that 
commissions  should  not  issue  for  the  future  out  of  chancery 
to  charge  the  people  with  providing  men-at-arms,  hobelers 
(or  light  cavalry),  archers,  victuals,  or  in  any  other  manner, 
without  consent  of  parliament.  It  is  replied  to  this  petition, 
that  ^  it  is  notorious  how  in  many  parliaments  the  lords  and 
commons  had  promised  to  aid  the  king  in  his  quarrel  with 
their  bodies  and  goods  as  far  as  was  in  their  power ;  where- 
fore the  said  lords,  seeing  the  necessity  in  which  the  king 
stood  of  having  aid  of  men-at-arms,  hobelers,  and  archers, 
before  his  passage  to  recover  his  rights  beyond  sea,  and  to 
defend  lis  realm  of  England,  ordained  that  such  as  had  ^ve 
pounds  a  year,  or  more,  in  land  on  this  side  of  Trent  should 
furnish  men-at-arms,  hobelers,  and  archers,  according  to  the 
proportion  of  the  laind  they  held,  to  attend  the  king  at  his 
cost;  and  some  who  would  neither  go  themselves  nor  find 
others  in  their  stead  were  willing  to  give  the  king  where- 
withal he  might  provide  himself  with  some  in  their  place. 
And  thus  the  thing  has  been  done,  and  no  otherwise.     And 

1  Ga«a  of  Impoaitlons  In  Howell's  State  the  wool  nrast  have  paid  a  tax,  he  had  a 

TrialSf  toI.  U.  p.  871-619;  particularly  right  to  place  the  wrought  and  un  wrought 

the  argument  of  Mr.  Hakewill.     Hale's  article  on  an  equality.     The  commons 

TreatiBe  on  the  customs.  In  Haigrare's  remonstrated  against  this:    but  it  was 

Tracts,  toI.  i.  not  repealed.    This  took  plaoe  about  SB 

Kdward  III.  imposed  another  duty  on  S.  HI.    Hale's  Tvsatise,  p.  17ft. 
•loth  exported,  on  the  pretenoe  that,  as 


ISmgush  CcrHST.    BEMONSTBAKCES  OF  PARLIAMENT.  ^55 

the  king  wills  that  henceforth  what  has  been  thus  done  in  this 
necessity  be  not  drawn  into  consequence  or  example."  ^ 

The  commons  were  not  abashed  by  these  arbitrary  pre* 
tensions;  they  knew  that  by  incessant  remonstrances  they 
should  gain  at  least  one  essential  point,  that  of  preventing  the 
crown  from  claiming  these  usurpations  as  uncontested  pre- 
rogatives. The  roll  of  parliament  in  the  next  two  years,  the 
21st  and  22nd  of  £dw.  UL,  is  full  of  the  same  complaints  on 
one  side,  and  the  same  allegations  of  necessity  on  the  other. 
In  the  latter  year  the  commons  grant  a  subsidy,  on  condition 
that  no  illegal  levying  of  money  should  take  place,  with  sev- 
eral  other  remedial  provisions ;  ^  and  that  these  conditions 
should  be  entered  on  the  roll  of  parliament,  as  a  matter  of 
record,  by  which  they  may  have  remedy,  if  anything  should 
be  attempted  to  the  contrary  in  time  to  come."  From  this 
year  the  complaint^)  of  extortion  became  rather  less  frequent ; 
and  soon  afterwards  a  statute  was  passed,  ^^That  no  man 
shall  be  constrained  to  find  men-at-arms,  hobelers,  nor  archers, 
other  than  those  which  hold  by  such  services,  if  it  be  not  by 
common  assent  and  grant  made  in  parliament."  *  Yet,  even 
in  the  last  year  of  Edward's  reign,  when  the  boundaries  of 
prerogative  and  the  rights  of  parliament  were  better  ascer- 
tained, the  king  lays  a  sort  of  claim  to  impose  charges  upon 
his  subjects  in  cases  of  great  necessity,  and  for  the  defence 
of  his  kingdom.^  But  this^more  humble  language  indicates  a 
change  in  the  spirit  of  government,  which,  after  long  fretting 
impatiently  at  the  curb,  began  at  length  to  acknowledge  the 
controlling  hand  of  law. 

These  are  the  chief  instances  of  a  struggle  between  the 
crown  and  commons  as  to  arbitrary  taxation ;  but  there  are 
two  remarkable  proceedings  in  the  45th  and  46th  of  Edward, 
which,  though  they  would  not  have  been  endured  in  later 
times,  are  rather  anomalies  arising  out  of  the  unsettled  state 
of  the  constitution  and  the  recency  of  parliamentary  rights 
than  mere  encroachments  of  the  prerogative.  In  the  former 
year  parliament  had  granted  a  subsidy  of  fifty  thousand 
pounds,  to  be  collected  by  an  assessment  of  twenty-two  shil« 
lings  and  threepence  upon  every  parish,  on  a  presumption 
that  the  parishes  in  England  amounted  to  forty-five  thousand, 
whereas  they  were  hardly  a  fifth  of  that  number.    Thig 

1  Bot.  Pftrl.  p.  100.  *  25  E.  m.  Stet.  ▼.  e.  8. 

t  p.  161, 160, 201  4  Rot.  Pari.  toI.  ii.  p.  SOf. 


256  CONCURRENCE  OF  BOTH  HOUSES  Chap.  VHI.  Part  UL 

amazing  mistake  was  not  discovered  till  the  parliament  had 
been  dissolved.  Upon  its  detection  the  king  summoned  a 
great  council,  consisting  of  one  knight,  citizen,  and  burgesSy 
named  by  himself  out  of  two  that  had  been  returned  to  the 
last  parliament.^  To  this  assembly  the  chancellor  set  forth 
the  deficiency  of  the  last  subsidy,  and  proved  by  the  certifi- 
cates of  all  the  bishops  in  England  how  strangely  the  parlia- 
ment had  miscalculated  the  number  of  parishes ;  whereupon 
they  increased  the  parochial  assessment,  by  their  own  author- 
ity, to  one  hundred  and  sixteen  shillings.^  It  is  obvious  that 
the  main  intention  of  parliament  was  carried  into  effect  by 
this  irregularity,  which  seems  to  have  been  the  subject  of 
DO  complaint.  In  the  next  parliament  a  still  more  objection- 
able measure  was  resorted  to ;  after  the  petitions  of  the  com- 
mons had  been  answered,  and  the  knights  dismissed,  the 
citizens  and  burgesses  were  convened  before  the  prince  of 
Wales  and  the  lords  in  a  room  near  the  white  chamber,  and 
solicited  to  renew  their  subsidy  of  forty  sliillings  upon  the  tun 
of  wine,  and  sixpence  in  the  pound  upon  other  imports,  for 
safe  convoy  of  shipping,  during  one  year  more,  to  which  they 
assented,  "and  so  departed."" 

The  second  constitutional  principle  established  in  the  reign 
The  con-  ^^  Edward  in.  was  that  the  king  and  two  houses 
curpence  of  parliament,  in  conjunction,  possessed  exclusively 
bou2«I*in  the  right  of  legislation.  Laws  were  now  declared 
legiaiatioa  to  be  made  by  the  king  at  the  request  of  the  com- 
mons,  and  by  the  assent  of  the  lords  and  prelates. 
Such  at  least  was  the  general  form,  though  for  many  subse- 
quent ages  there  was  no  invariable  regularity  in  this  respect 
The  commons,  who  till  this  reign  were  rarely  mentioned,  were 
DOW  as  rarely  omitted  in  the  enacting  clause.  In  fact,  it  is 
evident  from  the  rolls  of  parHament  that  statutes  were  almost 
always  founded  upon  their  petition.^    These  petitions,  with 

1  Prynne^s  4th  Recbter,  p.  289.  oomponnd  with  ererr  town  and  parish 

s  Rot.  Pari.  p.  SOl.  for  a  grout  aum,  whioh  was  ftom  thenoe- 

>  Rot.  Pari.  p.  810.     In  the  mode  of  forth  the  flxod  quota  of  subsidy,  and 

leyylng  subsidies  a  remarkable  improTe-  raised   by    the  Inhabitants  themMlTsf. 

ment  took  place  early  in  thi»  reign  of  Brady  on  Boroughs,  p  81. 

Edward  TIT.    Originally  two  chief  taxors  *  Laws  appear  to  hare  been  drawn  up, 

were  appointed   by  the  king  ft>r  each  and  propped  to  the  two  houses  by  the 

county,  who  named  twolre  persons  in  king,  down  to  the  time  of  Bdward  I. 

erery    hundred  to  ajisess  the  movable  Hale's  Hist,  of  Common  Law.  p.  16. 

estate  of  all  inhabitants  according  to  its  Sometimes  the  representatlTM  of  par* 

teal  Talue.  But  in  8  E.  III.,  on. complaint  tieular  places  address  separate  petitions 

of  parliament  that  these  taxoci  were  par-  to  the  king  and  council ;  as  the  eitlaens 

tial,  oommissiooeis  w«r»  sent  rouna  to  of  London,  the  commons  of  DeTonihirSt 


BvousH  CoNsi.       IN  LEGISLATION  NECESSABT.  257 

the  respective  answers  made  to  them  in  the  king^s  name,  vrere 
drawn  up  after  the  end  of  the  session  in  the  form  of  laws,  and 
entered  upon  the  statute-roIL  But  here  it  must  be  remaiked 
that  the  petitions  were  often  extremely  qualified  and  altered 
bj  the  answer,  insomuch  that  manj  statutes  of  this  and  some 
later  reigns  bj  no  means  express  the  true  sense  of  the  com- 
mons. Sometimes  they  contented  themselves  with  showing 
their  grievance,  and  praying  remedy  from  the  king  and  his 
council.  Of  this  one  eminent  instance  is  the  great  statute  of 
treasons.  In  the  petition  whereon  this  act  is  founded  it  is 
merely  prayed  that,  "  whereas  the  king's  justices  in  different 
counties  adjudge  persons  indicted  before  them  to  be  traitors 
for  sundry  matters  not  known  by  the  commons  to  be  treason, 
it  would  please  the  king  by  his  council,  and  by  the  great  and 
wise  men  of  the  land,  to  declare  what  are  treasons  in  this 
present  parliament"  The  answer  to  this  petition  contains 
the  existing  statute,  as  a  declaration  on  the  king's  part.^  But 
there  is  no  appearance  that  it  received  the  direct  assent  of 
the  lower  house.  In  the  next  reigns  we  shall  find  more  re- 
markable instances  of  assuming  a  consent  which  was  never 
positively  given. 

The  statute  of  treasons,  however,  was  supposed  to  be  de- 
claratory of  the  ancient  law  :  in  permanent  and  material  in- 
novations a  more  direct  concurrence  of  all  the  estates  was 
probably  required.  A  new  statute,  to  be  perpetually  incor- 
porated with  the  law  of  England,  was  regarded  as  no  light 
matter.  It  was  a  very  common  answer  to  a  petition  of  the 
commons,  in  the  early  part  of  this  reign,  that  it  could  not  be 
granted  without  making  a  new  law.  After  the  parliament 
of  14  E.  m.  a  certain  number  of  prelates,  barons,  and  coun- 
sellors, with  twelve  knights  and  six  burgesses,  were  appoint- 
ed to  sit  from  day  to  day  in  order  to  turn  such  petitions  and 
answers  as  were  fit  to  be  perpetual  into  a  statute ;  but  for 
such  as  were  of  a  temporary  nature  the  king  issued  his  let- 
ters-patenL^  This  reluctance  to  innovate  without  necessity, 
and  to  swell  the  number  of  laws  which  all  were  bound  to 
know  and  obey  with  an  accumulation  of  transitory  enact- 
ments, led  apparently  to  the  distinction  between  statutes  and 

fto     TbiM  an  intermingled  with  the       i  Rot.  P&rl.  p.  'J», 
■enenl  p«tItlon8,  and  both  together  are       *  Id.  p.  11& 
ibr  the  moet  part  Terr  nnmerons.  tn  the 
kU  of  fiO  Bdw.  m.  ttiey  aiBonnt  to  140. 

VOL.  II.  —  X.  17 


258  STATUTES  DISTINGUISHED    Chap.  Vm.  I'akt  m, 

ordinaiices.  The  latter  are  indeed  defined  by  some  lawyers 
to  be  regulations  proceeding  from  the  king  and 
tinguShed  lords  without  concurrence  of  the  commons.  But 
J™^^  if  this  be  applicable  to  some  ordinances,  it  is  cer- 
tain that  the  word,  even  when  opposed  to  statute, 
with  which  it  is  oflen  synonymous,  sometimes  denotes  an  act 
of  the  whole  legislature.  In  the  d7th  of  Edward  IIL,  when 
divers  sumptuary  regulations  against  excess  of  apparel  were 
made  in  full  parliament,  ^  it  was  demanded  of  the  lords  and 
commons,  inasmuch  as  the  matter  of  their  petitions  was  novel 
and  unheard  of  before,  whether  they  would  have  them  grants 
ed  by  way  of  ordinance  or  of  statute.  They  answered  that 
it  would  be  best  to  have  them  by  way  of  ordinance  and  not 
of  statute,  in  order  that  anything  which  should  need  amend- 
ment might  be  amended  at  the  next  parliament."  ^  So  much 
scruple  did  they  entertain  about  tampering  with  the  statute 
law  of  the  land. 

Ordinances  which,  if  it  were  not  for  their  partial  or  tem- 
porary operation,  could  not  well  be  distinguished  from  laws,' 
were  often  established  in  great  councils.  These  assemblies, 
which  frequently  occurred  in  Edward's  reign,  were  hardly 
distinguishable,  except  in  name,  from  parliaments ;  being 
constituted  not  only  of  those  who  were  regularly  sunmioned 
to  the  house  of  lords,  but  of  deputies  from  counties,  cities, 
and  boroughs.  Several  places  that  never  returned  burgesses 
to  parliament  have  sent  deputies  to  some  of  these  councils.' 
The  most  remarkable  of  these  was  that  held  in  the  27th  of 
Edward  III.,  consisting  of  one  knight  for  each  county,  and 
of  two  citizens  or  burgesses  from  every  city  or  borough 
wherein  the  ordinances  of  the  staple  were  established.*  These 
were  previously  agreed  upon  by  the  king  and  lords,  and 
copies  given,  one  to  the  knights,  another  to  the  burgesses. 
The  roll  tells  us  that  they  gave  their  opinion  in  writing  to 
the  council,  after  much  ddUberation,  and  that  this  was  read 
and  discussed  by  the  great  men.     These  ordi  lances  fix  the 

1  Rot.  Pari.  p.  280.  liamentur  Writ,  toI.  II.  p.  207.  Bee  Bot 

>  '*  If  tbere  be  any  dlAsrenoe  between  Pari.  toL  iil.  p.  17 ;  toI.  it.  p.  85. 

an  ordinance  and  a  statute,  as  some  haTe  *  Tbeee   may  be   found  in    WUUe'a 

collected,  it  in  bat  ooly  this,  that  an  Notitia  Parliamentaria.    In  28  S.  I.  tbe 

ordinance  la  bat  temporary  till  confirmed  nniTersities    were    BummoDed    to  send 

and  made  perpetual,  but  a  statute  is  members  to  a  great  council  in  coder  to 

perpetual  at  first,  and  so  bare  some  or-  defend  the  king^s  right  to  the  kingdoa 

dlnanoes  alio  been.'*  ¥niiteloelce  on  Par-  of  Scotland,    f  Prynne. 

4  Rot.  Pari  U.aOO. 


Bmoush  Gombt.  from  ORDINANCES.  259 

staple  of  wool  in  particular  places  within  England,  prohibit 
English  merchants  from  exporting  that  article  under  pain  of 
death,  inflict  sundry  other  penalties,  create  jurisdictions,  and 
in  short  have  the  effect  of  a  new  and  important  law.  Afler 
tliej  were  passed  the  deputies  of  the  commons  granted  a 
subsidy  for  three  years,  complained  of  grievances  and  receiv- 
ed answers,  as  if  in  a  regular  parliament.  But  they  were 
aware  that  these  proceedings  partook  of  some  irregularity, 
and  endeavored,  as  was  their  constant  method,  to  keep  up 
the  legal  forms  of  the  constitution.  In  the  last  petition  of 
this  council  the  commons  pray,  "  because  many  articles  touch- 
ing the  state  of  the  king  and  common  profit  of  his  kingdom 
have  been  agreed  by  him,  the  prelates,  lords,  and  commons 
of  his  land,  at  this  council,  that  the  said  articles  may  be  re- 
cited at  the  next  parliament,  and  entered  upon  the  roll ;  for 
this  cause,  that  ordinances  and  agreements  made  in  council 
are  not  of  record,  as  if  they  had  been  made  in  a  general 
parliament"  This  accordingly  was  done  at  the  ensuing  par- 
liament, when  these  ordinances  were  expressly  confirmed, 
and  directed  to  be  ^  holden  for  a  statute  to  endure  always."  ^ 

It  must  be  confessed  that  the  distinction  between  ordinances 
and  statutes  is  very  obscure,  and  perhaps  no  precise  and 
uniform  principle  can  be  laid  down  about  it.  But  it  suffi- 
ciently appears  that  whatever  provisions  altered  the  common 
law  or  any  former  statute,  and  were  entered  upon  the  statute- 
roll,  transmitted  to  the  sheriffs,  and  promulgated  to  the  peo- 
ple as  general  obligatory  enactments,  were  holden  to  require 
the  positive  assent  of  both  houses  of  parliament,  duly  and  for- 
mally summoned. 

Before  we  leave  this  subject  it  will  be  proper  to  take  no- 
tice of  a  remarkable  stretch  of  prerogative,  which,  if  drawn 
into  precedent,  would  have  effectually  subverted  this  princi- 
ple of  parliamentary  consent  in  legislation.  In  the  15th  of 
Edward  TIL  petitions  were  presented  of  a  bolder  and  more 
innovating  cast  than  was  acceptable  to  the  court :  —  That  no 
peer  shoidd  be  put  to  answer  for  any  trespass  except  before 
his  peers ;  that  commissioners  should  be  assigned  to  examine 
the  accounts  of  such  as  had  received  public  moneys ;  that  the 
judges  and  ministers  should  be  sworn  to  observe  the  Great 
Charter  and  other  laws ;  and  that  they  sbould  be  appointed 

1  Hot.  Pari.  il.268,96r 


260  STATUTES  AND  OEDINAIfCES.   Chap.  Vin.  Part  m 

in  parliament.  The  last  of  these  was  probably  the  most  ob< 
noxious ;  but  the  king,  unwilling  to  defer  a  supply  which  was 
granted  merely  upon  condition  that  these  petitions  should  pre- 
vail, suffered  them  to  pass  into  a  statute  with-  an  alteration 
which  did  not  take  off  much  from  their  efficacy  —  namely,  that 
these  officers  should  indeed  be  appointed  by  the  king  with  the 
advice  of  his  council,  but  should  surrender  their  charges  at 
the  next  parliament,  and  be  there  responsible  to  any  who 
should  have  cause  of  complaint  against  them.  The  chan- 
cellor, treasurer,  and  judges  entered  their  protestation  that 
they  had  not  assented  to  the  said  statutes,  nor  could  they  ob- 
serve them,  in  case  they  should  prove  contrary  to  the  laws 
and  customs  of  the  kingdom,  which  they  were  sworn  to  main- 
tain.^ This  is  the  first  instance  of  a  protest  on  the  roll  of 
parliament  against  the  passing  of  an  act  Nevertheless  they 
were  compelled  to  swear  on  the  cross  of  Canterbury  to  its 
observance.* 

This  excellent  statute  was  attempted  too  early  for  complete 
success.  Edward's  ministers  plainly  saw  that  it  lefl  them  at 
the  mercy  of  future  parliaments,  who  \^ould  readily  learn  the 
wholesome  and  constitutional  principle  of  sparing  the  sovereign 
while  they  punished  his  advisers.  They  had  recourse  there- 
fore to  a  violent  measure,  but  which  was  likely  in  those  times  to 
be  endured.  By  a  proclamation  addressed  to  all  the  sheriffs 
the  king  revokes  and  annuls  the  statute,  as  contrary  to  the 
laws  and  customs  of  England  and  to  his  own  just  rights  and 
prerogatives,  which  he  had  sworn  to  preserve ;  declaring  that 
be  had  never  consented  to  its  passing,  but,  having  previously 
protested  that  he  would  revoke  it,  lest  the  parliament  should 
have  been  separated  in  wrath,  had  dissembled,  as  was  his 
duty,  and  permitted  the  great  seal  to  be  affixed ;  and  that  it 
appeai*ed  to  the  earls,  barons,  and  other  learned  persons  of 
his  kingdom  with  whom  he  had  consulted,  that,  as  the  said 
statute  had  not  proceeded  from  his  own  good  will.  It  was  null, 
and  could  not  have  the  name  or  force  of  law.'  This  revocation 
of  a  statute,  as  the  price  of  which  a  subsidy  had  been  grant- 
ed, was  a  gross  infringement  of  law,  and  undoubtedly  passed 
^or  such  at  that  time ;  for  the  right  was  already  clear,  though 

1  Rot.  Pari,  p  181.  eonsdotuiMss  of  the  Tfolant  itep  h«  waa 

t  Id.  ii.  p.  W.  taking;  and  Ua  iriah  toaaovaa  It  as  modi 

•  Rymer,  t.  ▼.  p.  282.     Thif  lustra-  m  poaalble. 
BMDt  bvtn^B  In  ita  langoaga  Bdwaxd's 


CirousH  Const.    ADVICE  OF  PARLIAMENT  NECESS4BT.    261 

the  remedy  was  not  always  attainable.  Two  years  after- 
wards Edward  met  his  parliament,  when  that  obnoxious  stat* 
Qte  was  formally  repealed.^ 

Notwithstanding  the  king's  unwillingness  to  permit  this  con- 
trol  of  parliament  over    his    administration,  he  suffered,  or 
rather    solicited,  their  interference  in  matters  which   have 
since  been  reckoned  the  exclusive  province  of  the  crown. 
This  was  an  unfair  trick  of  his  policy.     He  was  j^^^i^  ^ 
desirous,   in   order    to    prevent  any    murmuring  parUameni 
about  subsidies,  to  throw  the  war  upon  parUa- ^ttenof ° 
ment  as  their  own  act,  though  none  could  have  ^^  ^^ 
been  commenced  more  selfishly  for  his  own  benefit, 
or  less  for  the  advantage  of  the  people  of  England.     It  is 
called  "the  war  which  our  loixl  the  king  has  undertaken 
against  his  adversary  of  France  by  common  assent  of  all  the 
lords  and  commons  of  his  realm  in  divers  parliaments."' 
And  he  several  times  referred  it  to  them  to  advise  upon  the 
subject  of  peace.     But  the  commons  showed  their  humility 
or  discretion  by  treating  this  as  an  invitation  which  it  would 
show  good  manners  to  decline,  though  in  the  eighteenth  of 
the  king's  reign  they  had  joined  with  the  lords  in  imploring 
the  king  to  make  an  end  of  the  war  by  a  battle  or  by  a 
suitable  peace.'    '^Most  dreaded 'lord,"  they  say  upon  one 
occasion,  **  as  to  your  war,  and  the  equipment  necessary  for 
it,  we  are  so  ignorant  and  simple  that  we  know  not  how,  nor 
have  the  power,  to  devise;  wherefore  we  pray  your  grace 
to  excuse  us  in  this  matter,  and  that  it  please  you,  with  ad« 
Tice  of  the  great  and  wise  persons  of  your  council,  to  ordain 
what  seems  best  to  you  for  the  honor  and  profit  of  yourself 
and  your  kingdom;  and  whatever  shall  be  thus  ordained  by 
assent  and  agreement  for  you  and  your  lords  we  readily  as- 
sent to,  and  will  bold  it  firmly  established."^    At  another 
time,  after  their  petitions  had  been  answered,  *^  it  was  shewed 

1  Tbe  eommonfl  In  the  17th  of  Bdw.    sod  wbat  ahonld  be  found  hononbtoand 
m.  petitloQ  that  the  Btatutes  made  two    profitable  to  the  king  and  hie  people  pnt 


Em  before  be  maintalDed  in  their  foree,  into  a  new  atatute,  and   obeerred  in 

▼iog  granted  for  them  the  eubsidiee  ftitnre."    Rot.  Pari.  11. 189.  But  though 

which  ther  enomeiate,    ^  which  was  a  thie  if  ineertcd  among  the  pedtlona,  it 

gnat  spoiling  (raa^)    and    grleTOos  appears  flrom  the  roil  a  little  before  (p. 

eharge  for  them."    Bat  the  Icing  an-  ISO,  n.  28),  that  the  statute  was  aetaail/ 

Bwei«d  that,  "  pereeiTing  the  said  statute  repealed  by  common  consent ;  such  eon« 

to  be  a^nst  hb  oath,  and  to  the  blem-  sent  at  least  being  redted,  wluther  tmJIy 

bh  of  his  crown  and  royalty,  and  against  or  not. 

fhe  law  of  the  land  in  many  points,  he  *  Rymer,  t.  T.  p.  186. 

had  repealed  it.    But  he  would  have  the  *  p.  148. 

•rtlolas  of  the  said  statute  examined,  «  21 S.  III.  p.  166. 


262  BIGHT  OF  COMMONS    Chap.  TUI.  Past  in 

to  the  lords  and  commons  hj  Bartholomew  de  Burghersh, 
the  king^s  chamberlain,  how  a  treaty  had  been  set  on  fool 
between  the  king  and  his  adversary  of  France ;  and  how  he 
had  good  hope  of  a  final  and  agreeable  issue  with  Grod's 
help;  to  which  he  would  not  come  without  assent  of  the 
lords  and  commons.  Wherefore  the  said  chamberlain  in- 
quired on  the  king's  part  of  the  said  lords  and  commons 
whether  they  would  assent  and  agree  to  the  peace,  in  case  it 
might  be  had  by  treaty  between  the  parties.  To  which  the 
said  commons  with  one  voice  replied,  that  whatever  end  it 
should  please  the  king  and  lords  to  make  of  the  treaty  would 
be  agreeable  to  them.  On  which  answer  the  chamberlain 
said  to  the  commons,  Then  you  will  assent  to  a  perpetual 
treaty  of  peace  if  it  can  be  had.  And  the  said  commons 
answered  at  once  and  unanimously.  Yes,  yes.**^  The  lords 
were  not  so  diffident.  Their  great  station  as  hereditary  coun* 
lillors  gave  them  weight  in  all  deliberations  of  government ; 
and  they  seem  to  have  pretended  to  a  negative  voice  in  the 
question  of  peace.  At  least  they  answer,  upon  the  proposals 
made  by  David  king  of  Scots  in  1368,  which  were  submitted 
to  them  in  parliament,  that,  "^  saving  to  the  said  David  and 
his  heirs  the  articles  contained  therein,  they  saw  no  way  of 
making  a  treaty  which  would  not  openly  turn  to  the  disheri- 
son of  the  king  and  his  heirs,  to  which  they  would  on  no 
account  assent;  and  so  departed  for  that  day."^  A  few 
years  before  they  had  made  a  similar  answer  to  some  other 
propositions  from  Scotland.*  It  is  not  improbable  that,  in 
both  these  cases,  they  acted  with  the  concurrence  and  at  the 
instigation  of  the  king ;  but  the  precedents  might  have  been 
remembered  in  other  circumstances. 

A  third  important  acquisition  of  the  house  of  commons 
Right  of  the  during  this  reign  was  the  establishment  of  their 
eommont  to  j^g^t  to  investigate  and  chastise  the  abuses  of  ad- 
pi^uo  ministration.    In  the  fourteenth  of  Edward  IIL 

^<*"^*  committee  of  the  lords'  house  had  been  appointed 
(o  examine  the  accounts  of  persons  responsible  for  the  receipt 
of  the  last  subsidy ;  but  it  does  not  appear  that  the  commons 
were  concerned  in  this.^     The  unfortunate  statute  of  the 

i  28  B.  m.  p.  201.  tion  of  tho  eommoiiB  doing  this  in  th 

*  28  S.  ni.  p.  285.     Carte  navi,  ^  the  roll  of  parUament. 

lords  and  commou,  glTing  thu  adrioe  *  Rymer,  p.  268. 

feparately,  declared."  Ito     Hist.ofEng*  *  p.  114. 
land,  ToL  il.  p.  618     I  can  And  no  men- 


Ijfousa  CosiST.     TO  INQUIRE  INTO  ABUSES.  263 

next  jesx  contained  a  similar  provision,  which  was  annulled 
with  the  rest  Manj  years  elapsed  before  the  commonji 
tried  the  force  of  their  vindictive  arm.  We  must  pass  on- 
ward an  entire  generation  of  man,  and  look  at  the  parliament 
assembled  in  the  fifUeth  of  Edward  III.  Nothing  memora- 
ble as  to  the  interference  of  the  commons  in  government 
occurs  before,  unless  it  be  their  request,  in  the  fortj-fiflh  of 
the  king,  that  no  clergyman  should  be  made  chancellor, 
treasurer,  or  other  great  officer ;  to  which  the  king  answered 
that  he  would  do  what  best  pleased  his  council.^ 

It  will  be  remembered  by  every  one  who  has  read  our 
history  that  in  the  latter  years  of  Edward's  life  his  parUament 
fame  was  tarnished  by  the  ascendency  of  the  duke  <*  w  «.  m. 
of  Lancaster  and  Alice  Ferrers.  The  former,  a  man  of  more 
ambition  than  his  capacity  seems  to  have  warranted,  even 
incurred  the  suspicion  of  meditating  to  set  aside  the  heir  of 
the  crown  when  the  Black  Prince  should  have  sunk  into  the 
grave.  Whether  he  were  wronged  or  not  by  these  conjectures, 
&ey  certainly  appear  to  have  operated  on  those  most  con- 
cerned to  take  alarm  at  them.  A  parliament  met  in  Aprils 
1376,  wherein  the  general  unpopularity  of  the  king's  admin- 
istration, or  the  influence  of  the  prince  of  Wales,  led  to  very 
remarkable  consequences.*  After  granting  a  subsidy,  the 
commons,  ^  considering  the  evils  of  the  country,  through  so 
many  wars  and  other  causes,  and  that  the  officers  now  in  the 
king's  service  are  insufficient  without  further  assistance  for  so 
great  a  charge,  pray  that  the  council  be  strengthened  by  the 
addition  of  ten  or  twelve  bishops,  lords,  and  others,  to  be 
constantly  at  hand,  so  that  no  business  of  weight  should  be 
despatched  without  the  consent  of  all ;  nor  smaller  matters 
without  that  of  four  or  six."*  The  king  pretended  to  come 
with  alacrity  into  this  measure,  which  was  followed  by  a  strict 
restraint  on  them  and  all  other  officers  from  taking  presents 
in  the  course  of  their  duty.  After  this,  ^  the  said  commons 
appeared  in  parliament,  protesting  that  they  had  the  same 
good  will  as  ever  to  assist  the  king  with  their  lives  and  for- 

1  KyiiMr,  p.  804.  a  IbUow  of  »  wdlage  too  Indlieriinliialt 

*  Mo«l  of  oar  gsnoral  hktoriaafl  haw  an  oneonilMt  of  lU  fbundor.     Anciher 

•InrredoTar  this  Important  M88k>n.    The  modam  book  may  be  named  with  some 

best  TieWf  perliaps,  of  its  seent  hlsto^  oommendation,  though  rery  Inferior  la 

«m  be  foond  in  Lowth's  Life  of  Wyke-  Its  ezeeutlon,  Godwin's  Life  of  Chanoer, 

bam ;  an  instructlTe  and  elegant  work,  of  which  the  dnke  of  Lanoaster  Is  tbt 

only  to  be  blamed  fi>r  marks  of  that  politloal  hero, 

aoademieal  point  of  honor  wliioh  makes  *  Bymer,  p  822. 


264  RIGHT  OF  COMMONS     Chap.  Vm.  Part  HI 

tunes ;  but  that  it  seemed  to  them,  if  their  s^id  liege  lord  had 
always  possessed  about  him  faithful  counsellors  and  good 
officers,  he  would  have  been  so  rich  that  he  would  have  had 
no  need  of  charging  his  commons  with  subsidy  or  tallage, 
considering  the  great  ransoms  of  the  French  and  Scotch 
kings,  and  of  so  many  other  prisoners ;  and  that  it  appeared 
to  be  for  the  private  advantage  of  some  near  the  king,  and 
of  others  by  their  collusion,  that  the  king  and  kingdom  are  so 
impoverished,  and  the  commons  so  ruined.  And  they  prom* 
ised  the  king  that,  if  he  would  do  speedy  justice  on  such  as 
should  be  found  guilty,  and  take  from  them  what  law  and 
reason  permit,  with  what  had  been  already  granted  in  parlia- 
ment, they  will  engage  that  he  should  be  rich  enough  to 
maintain  his  wars  for  a  long  time,  without  much  charging  his 
people  in  any  manner."  They  next  proceeded  to  allege  three 
particular  grievances ;  the  removal  of  the  staple  from  Calais, 
where  it  had  been  fixed  by  parliament,  through  the  procure- 
ment and  advice  of  the  said  private  counsellors  about  the 
king ;  the  participation  of  the  same  persons  in  lending  money 
to  die  king  at  exorbitant  usury;  and  their  purchasing  at 
a  low  rate,  for  their  own  benefit,  old  debts  from  the  crown, 
the  whole  of  which  they  had  afterwards  induced  the  king  to 
repay  to  themselves.  For  these  and  for  many  more  misde- 
meanors the  commons  accused  and  impeached  the  lords  Lad- 
mer  and  Nevil,  with  four  merchants,  Lyons,  Ellis,  Peachey, 
and  Bury.^  Latimer  had  been  chamberlain,  and  Nevil  held 
another  office.  The  former  was  the  friend  and  creature  of 
the  duke  of  Lancaster.  Nor  was  this  parliament  at  all  nice 
in  touching  a  point  where  kings  least  endure  their  interfer- 
ence. An  ordinance  was  made,  that,  "  whereas  many  women 
prosecute  the  suits  of  others  in  courts  of  justice  by  way  of 
maintenance,  and  to  get  profit  thereby,  which  is  displeasing  to 
the  king,  he  forbids  any  woman  henceforward,  and  especially 
Alice  Ferrers,  to  do  so,  on  pain  of  the  said  Alice  forfeiting 
all  her  goods,  and  suffering  banishment  from  the  kingdcm."' 
The  part  which  the  prince  of  Wales,  who  had  ever  been 
distinguished  for  his  respectful  demeanor  towards  Edward, 
bore  in  this  unprecedented  opposition,  is  strong  evidence  of 
the  jealousy  with  which  he  regarded  the  duke  of  Lancaster  i 
and  it  was  led  in  the  house  of  commons  by  Peter  de  la  Mare» 

I  Bjmer,  p.  822.  *  Id.  p.  88d. 


■vciuta  CkmsT.     TO  OSTQUIBE  INTO  ABUSES.  265 

a  servant  of  the  earl  of  Marcli,  who,  by  his  marriage  with 
Philippa,  heiress  of  Lionel  duke  of  Clarence,  stood  next 
after  ^e  young  prince  Richard  in  lineal  succession  to  the 
crown.  The  proceedings  of  this  session  were  indeed  highly 
popular.  But  no  house  of  commons  would  have  gone  such 
lengths  on  the  mere  support  of  popular  opinion,  unless  insti- 
gated and  encouraged  by  higher  authority.  Without  this 
their  petitions  might  perhaps  have  obtained,  for  the  sake  of 
subsidy,  an  immediate  consent ;  but  those  who  took  the  lead 
in  preparing  them  must  have  remained  unsheltered  afler  a 
dissolution,  to  abide  the  vengeance  of  the  crown,  with  no 
assoranoe  that  another  parliament  would  espouse  their  cause 
as  its  own.  Such,  indeed,  was  their  fate  in  the  present  in- 
stance. Soon  after  the  dissolution  of  parliament,  the  princi 
of  Wales,  who,  long  sinking  by  fatal  decay,  had  rallied  hit 
expiring  energies  for  this  domestic  combat,  left  his  inheritance 
to  a  ehild  ten  years  old,  Richard  of  Bordeaux.  Immediately 
after  this  event  Lancaster  recovered  his  influence ;  and  the 
former  favorites  returned  to  court.  Peter  de  la  Mare  was 
confined  at  Nottingham,  where  he  remained  two  years.  The 
citizens  indeed  attempted  an  insurrection,  and  threatened  to 
bum  the  Savoy,  Lancaster's  residence,  if  de  la  Mare  was  not 
released ;  but  the  bishop  of  London  succeeded  in  appeasing 
them.^  A  parliament  met  next  year  which  overthrew  the 
work  of  its  predecessor,  restored  those  who  had  been  im- 
peached,  and  repealed  the  ordinance  against  Alice  Ferrers.' 
So  little  security  will  popular  assemblies  ever  afford  against 
arbitrary  power,  when  deprived  of  regular  leaders  and  the 
oonscioosness  of  mutual  fidelity. 

The  policy  adopted  by  the  prince  of  Wales  and  earl  of 
March,  in  employing  the  house  of  commons  as  an  engine 
of  attack  against  an  obnoxious  ministry,  was  perfectly  novel, 
and  indicates  a  sensible  change  in  the  character  of  our  con 
stitution.  In  the  reign  of  Edward  11.  parliament  had  little 
share  in  resisting  the  government ;  mueh  more  was  efi^ected 
by  the  barons  through  risings  of  their  feudal  tenantry.  Fifty 
years  of  authority  better  respected,  of  law  better  enforced^ 
had  rendered  these  more  perilous,  and  of  a  more  violent  ap- 
pearance than  formerly.    A  surer  resource  presented  itself 

1  Anonym.  Hlft.  Sdw.  m.  ad  MOeam  rix  or  m?«ii  of  fho  knighto  who  had  Ml 

Bmlnslbvil,  p.  444,  448.    WaUDgham  in  the  laat  parUamant  ware  rataniad  It 

ihai  a  dUhrant  xaaaon,  p.  192.  thli,  as  appaan  bv  feha  wxlli  la  Pitdm^ 

*  Bot  Pail.  p.  874.     Mot  non  fhaa  4lh  W>rtar,  p.  ttS,  8U 


266  INCREASE  OF  THE        Chap.  VHI.  Pabt  IIL 

in  the  increased  weight  of  the  lower  house  in  parliament 
And  this  indirect  aristocratical  influence  gave  a  surprising 
impulse  to  that  assembly,  and  particularly  tended  to  establish 
beyond  question  its  control  over  public  abuses.  It  is  no  less 
just  to  remark  that  it  also  tended  to  preserve  the  relation  and 
harmony  between  each  part  and  the  other,  and  to  prevent 
that  jarring  of  emulation  and  jealousy  which,  though  gener- 
ally found  in  the  division  of  power  between  a  noble  and  a 
popular  estate,  has  scarcely  ever  caused  a  dissension,  except  io 
cases  of  little  moment,  between  our  two  houses  of  parliament 
The  commons  had  sustained  with  equal  firmness  and  dis- 
Biohaidn.  cretion  a  defensive  war  against  arbitrary  power 
Q,^^  under  Edward  III. :  they  advanced  with  very  dif- 

incrsaM  of  fercut  stcps  towards  his  successor.  Upon  the  king's 
of \he^^  death,  though  Richard's  coronation  took  place  with- 
eommonB.  Qut  delay,  and  no  proper  regency  was  constituted, 
yet  a  council  of  twelve,  whom  the  great  officers  of  state  were 
to  obey,  supplied  its  place  to  every  effectual  intent  Among 
these  the  duke  of  Lancaster  was  not  numbered ;  and  he  re- 
tired from  court  in  some  disgust  In  the  first  parliament  of 
the  young  king  a  large  proportion  of  the  knights  who  had 
sat  in  that  which  impeached  the  Lancastrian  party  were  re- 
turned.^ Peter  de  la  Mare,  now  released  from  prison,  was 
elected  speaker ;  a  dignity  which,  according  to  some,  he  had 
filled  in  the  Grood  Parliament,  as  that  of  the  fiftieth  of  Ed- 
ward m.  was  popularly  styled;  though  the  rolls  do  not 
mention  either  him  or  any  other  as  bearing  that  honorable 
name  before  Sir  Thomas  Hungerford  in  the  parliament  of 
the  following  year.^  The  prosecution  against  Alice  Perrers 
was  now  revived ;  not,  as  far  as  appears,  by  direct  impeach- 
ment of  the  commons ;  but  articles  were  exhibited  against 
her  in  the  house  of  lords  on  the  king's  part,  for  breaking  tlie 
ordinance  made  against  her  intermeddling  at  court;  upon 
which  she  received  judgment  of  banishment  and  forfeiture.' 
At  the  request  of  the  lower  house,  the  lords,  in  the  king's 
name,  appointed  nine  persons  of  different  ranks  —  three 
bishops,  two  earls,  two  bannerets,  and  two  bachelors  —  to 
be  a  permanent  council  about  the  king,  so  that  no  business 

1  WaltingtaAm,  p.  200,  sajB  pene  om-  and  all  ihe  lawyen  of  England ;  jvfe  hf 

wm ;  but  th»  liit  published  in  Prynne's  the  peneTeraooe  of  theM  kalgbtt  •!»■ 

Itti  Register  fndnoee  me  to  qualify  this  was  eonvieted. 

looee  ezprossion.     Alice    Perrers    had  *  Rot.  Pari.  toI.  ii.  p.  874. 

btited,  he  tells  as,  maoj  of  tb»  locdi  •  voL  ill.  p  12. 


EveusB  Comrr.     POWER  OF  THE  COMMONS.  267 

of  importance  should  be  transacted  without  their  unanimous 
consent  The  king  was  even  compelled  to  consent  that,  dur* 
ing  his  minority,  the  chancellor,  treasurer,  judges,  and  other 
chief  officers,  should  be  made  in  parliament ;  bj  which  pro- 
vision, combined  with  that  of  the  parliamentarj  council,  the 
whole  executive  government  was  transferred  to  the  two 
houses.  A  petition  that  none  might  be  employed  in  the 
king's  service,  nor  belong  to  his  council,  who  had  been  for> 
merly  accused  upon  good  grounds,  struck  at  lord  Latimer, 
who  had  retained  some  degree  of  power  in  the  new  establish* 
ment.  Another,  suggesting  that  Gascony,  Ireland,  Artois, 
and  the  Scottish  marches  were  in  danger  of  being  lost  for 
want  of  good  officers,  though  it  was  so  generally  worded  as  to 
leave  the  means  of  remedy  to  the  king's  pleasure,  yet  shows 
a  growing  energy  and  self-confidence  in  that  assembly  which 
not  many  years  before  had  thought  the  question  of  peace  or 
war  too  high  for  their  deliberation.  Their  subsidy  was  suffi- 
ciently liberal ;  but  they  took  care  to  pray  the  king  that  fit 
persons  might  be  assigned  for  its  receipt  and  disbursement, 
lest  it  should  any  way  be  diverted  from  the  purposes  of  the 
war.  Accordingly  Walworth  and  Philpot,  two  eminent  dti- 
sens  of  London,  were  appomted  to  this  office,  and  sworn  in 
parliament  to  its  execution.^ 

But  whether  through  the  wastefulness  of  government,  or 
rather  because  Edward's  legacy,  the  French  war,  like  a  ruin- 
ous and  interminable  lawsuit,  exhausted  all  public  contribu- 
tions, there  was  an  equally  craving  demand  for  subsidy  at 
the  next  meeting  of  parliament  The  commons  now  made  a 
more  serious  stand.  The  speaker.  Sir  James  Pickering,  afler 
the  protestation  against  giving  offence  which  has  since  become 
more  matter  of  form  than,  perhaps,  it  was  then  considered, 
reminded  the  lords  of  the  council  of  a  promise  made  to  the 
last  parliament,  that,  if  they  would  help  the  king  for  once 
with  a  large  subsidy,  so  as  to  enable  him  to  undertake  an 
expedition  against  the  enemy,  he  trusted  not  to  call  on  them 
Again,  but  to  support  the  war  from  his  own  revenues ;  in 
fiuth  of  which  promise  there  had  been  granted  the  largest 
sum  that  any  king  of  England  had  ever  heea  suffered  to  levy 
within  so  short  a  time,  to  the  utmost  loss  and  inconvenience 
of  the  commons,  part  of  which  ought  still  to  remain  in  th9 

1  Koi.  Pttl.  ytLM  p.  12 


268  DTCBEASE  OF  THE      Chap.  YIII.  Past  IIL 

treasury,  and  render  it  nnneoessarj  to  harden  anew  the  ex- 
hausted people.  To  this  Scrope,  lord  steward  of  the  house- 
hold, protesting  that  he  knew  not  of  anj  such  promise,  made 
answer  by  order  of  the  king,  that,  ^  saving  the  honor  and 
reverence  of  our  lord  the  king,  and  the  lords  there  present, 
the  commons  did  not  speak  truth  in  asserting  that  part  of  the 
last  subsidy  should  be  still  in  the  treasury ;  it  being  notorious 
that  every  penny  had  gone  into  the  hands  of  Walwonh  and 
Philpot,  appointed  and  sworn  treasurers  in  the  last  parlia- 
ment, to  receive  and  expend  it  upon  the  purposes  of  the  war, 
for  which  they  had  in  effect  disbursed  the  whole."  Not 
satisfied  with  this  general  justification,  the  commons  pressed 
for  an  account  of  the  expenditure.  Scrope  was  again  com- 
missioned to  answer,  that,  ^  though  it  had  never  been  seen 
that  of  a  subsidy  or  other  grant  made  to  the  king  in  parlia- 
ment or  out  of  parliament  by  the  commons  any  account  had 
afterwards  been  rendered  to  the  commons,  or  to  any  other 
except  the  king  and  his  officers,  yet  the  king,  to  gratify  them, 
of  his  own  accord,  without  doing  it  by  way  of  right,  would 
have  Walworth,  along  with  certain  persons  of  the  council, 
exhibit  to  them  in  writing  a  clear  account  of  the  receipt  and 
expenditure,  upon  condition  that  this  should  never  be  used  as 
a  precedent,  nor  inferred  to  be  done  otherwise  than  by  the 
king's  spontaneous  command."  The  commons  were  again 
urged  to  provide  for  the  public  defence,  being  their  own  con- 
cern as  much  as  that  of  the  king.  But  they  merely  shifted 
their  ground  and  had  recourse  to  other  pretences.  They  re- 
quested that  ^VQ  or  six  peers  might  come  to  them,  in  order  to 
discuss  this  question  of  subsidy.  The  lords  entirely  rejected 
this  proposal,  and  afiirmed  that  such  a  proceeding  had  never 
been  known  except  in  the  three  last  parliaments ;  but  allowed 
that  it  had  been  the  course  to  elect  a  committee  of  eight  or 
ten  from  each  house,  to  confer  easily  and  without  noise  to- 
gether. The  commons  acceded  to  this,  and  a  committee  of 
conference  was  appointed,  though  no  result  of  their  discussion 
appears  upon  the  rolL 

Upon  examining  the  accounts  submitted  to  them,  these 
sturdy  commoners  raised  a  new  objection.  It  appeared  that 
large  sums  had  been  expended  upon  garrisons  in  France  and 
Ireland  and  other  places  beyond  the  kingdom,  of  which  th^ 
protested  themselves  not  liable  to  bear  the  charge.  It 
was  answered  that  Gascony  and  the  king's  other  dominions 


IfivoLisR  CoMVT.      POWER  OF  THE  COMMONS.  269 

beyond  sea  were  the  outworks  of  England,  nor  could  the 
people  ever  be  secure  from  war  at  their  thresholds,  unless 
these  were  maintained.  They  lastly  insisted  that  the  king 
ought  to  be  rich  through  the  wealth  that  had  devolved  on 
him  from  his  grandfather.  But  this  was  affirmed,  in  reply, 
to  be  merely  sufficient  for  the  payment  of  Edward's  creditors. 
Thus  driven  from  all  their  arguments,  the  commons  finally 
consented  to  a  moderate  additional  imposition  upon  the  export 
of  wool  and  leather,  which  were  already  subject  to  consider- 
able duties,  apologizing  on  account  of  Uieir  poverty  for  the 
slendemess  of  their  grant.^ 

The  necessities  of  government,  however,  let  their  cause  be 
what  it  might,  were  by  no  means  feigned ;  and  a  new  par- 
liament was  assembled  about  seven  months  after  the  last, 
wherein  the  king,  without  waiting  for  a  petition,  informed  the 
commons  that  the  treasurers  were  ready  to  exhibit  their  ac- 
counts before  them.  This  was  a  signal  victory  afler  the 
reluctant  and  ungracious  concession  made  to  the  last  parlia- 
ment Nine  persons  of  different  ranks  were  appointed  at 
the  request  of  the  commons  to  investigate  the  state  of  the 
revenue  and  the  disposition  which  had  been  made  of  the  late 
king's  personal  estate.  They  ended  by  granting  a  poll-tax, 
which  they  pretended  to  think  adequate  to  the  supply  re- 
quired.' But  in  those  times  no  one  possessed  any  statistical 
knowledge,  and  every  calculation  which  required  it  was  sub- 
ject to  enormous  error,  of  which  we  have  already  seen  an 
eminent  example.*  In  the  next  parliament  (3  Ric  11.)  it 
was  set  forth  that  only  22fi00L  had  been  collected  by  the 
poll-tax,  while  the  pay  of  the  king's  troops  hired  for  the  ex- 
pedition to  Britany,  the  pretext  of  the  grant,  had  amounted 
for  but  half  a  year  to  50fi00L  The  king,  in  short,  was  more 
straitened  than  ever.  His  distresses  gave  no  small  advantage 
to  the  commons.  Their  speaker  was  instructed  to  declare 
that,  as  it  appeared  to  them,  if  the  affairs  of  their  liege  lord 
had  been  properly  conducted  at  home  and  abroad,  he  could 
not  have  wanted  aid  of  his  commons,  who  now  are  poorer 
than  before.  They  pray  that,  as  the  king  was  so  much  ad« 
vanoed  in  age  and  discretion,  his  perpetual  council  (appointed 
in  his  first  parliament)  might  be  discharged  of  their  labors, 
and  that,  instead  of  them,  the  five  chief  officers  of  state,  to  wit^ 

1  Bot  PMl.  p.  85-88.  •  Id.  p.  67. 

s  8m  p.  48  of  thii  toIusm. 


270  IKCBEASE  OF  THE      Chap.  Yin.  Part  111 

the  chancellor,  treasurer,  keeper  of  the  privy  seal,  chamber- 
lain, and  steward  of  the  household,  might  be  named  in  par- 
liament, and  declared  to  the  commons,  as  the  king's  sole 
counsellors,  not  removable  before  the  next  parliament.  Thej 
required  also  a  general  commission  to  be  made  out,  similar  to^ 
that  in  the  last  session,  giving  powers  to  a  certain  number  of 
peers  and  other  distinguished  persons  to  inquire  into  the  state 
of  the  household,  as  well  as  into  all  receipts  and  expenses 
since  the  king's  accession.  The  former  petition  seems  to  have 
been  passed  over ;  ^  but  a  commission  as  requested  was  made 
out  to  three  prelates,  three  earls,  three  bannerets,  three 
knights,  and  three  citizens.^  Ailer  guardii«g  thus,  as  thej 
conceived,  against  malversation,  but  in  effect  rather  protect 
ing  their  posterity  than  themselves,  the  commons  prolonged 
the  last  imposition  on  wool  and  leather  for  another  year. 

It  would  be  but  repetition  to  make  extracts  from  the  rolls 
of  the  two  next  years ;  we  have  still  the  same  tale  —  demand 
of  subsidy  on  one  side,  remonstrance  and  endeavors  at  refor- 
mation on  the  other.  Afier  the  tremendous  insurrection  of  the 
villeins  in  1382  a  parliament  was  convened  to  advise  about 
repealing  the  charters  of  general  manumission,  extorted  from 
the  king  by  the  pressure  of  circumstances.  In  this  measure 
all  concurred ;  but  the  commons  were  not  afraid  to  say  that 
the  late  risings  had  been  provoked  by  the  burdens  which  a 
prodigal  court  had  called  for  in  the  preceding  session.  Their 
language  is  unusually  bold.  ^  It  seemed  to  them,  after  full 
deliberation,"  they  said,  '^that,  unless  the  administration  of 
the  kingdom  were  speedily  reformed,  the  kingdom  itself  would 
be  utterly  lost  and  ruined  forever,  and  therein  their  lord  the 
king,  with  all  the  peers  and  commons,  which  God  forbid. 
For  true  it  is  that  there  are  such  defects  in  the  said  adminis- 
tration, as  well  about  the  king's  person  and  his  household  as 
in  his  couits  of  justice ;  and  by  grievous  oppressions  in  the 
country  through  maintainers  of  suits,  who  are,  as  it  were, 
kings  in  the  country,  that  right  and  law  are  come  to  nothing, 
and  the  poor  commons  are  from  time  to  time  so  pillaged  and 
ruined,  partly  by  the  king's  purveyors  of  the  household,  and 

1  Nererthelen,  the  oommom  rapcAtad  *  p.  78.    In  RyniOTf  t.  tUI.  p.  260,  thit 

It  In  thtdr  schedule  of  petidons:  and  re-  archbiahop  of  York's  name  appeenamoaf 

eelTed  an  eTasive  answer,  ntfbrring  to  an  these  commissioners,  which  makes  tbdr 

ardinanoe  made  In  the  first  parliament  of  number  sixteen.    But  it  is  plain  by  the 

the  kinff,  the  application  off  wliioh  is  in-  Instrument  that  only  fifteen  were  meaiil 

isflnite.'    £ot.rarl.p.  88.  lo  be  appointed 


EKOLI8H  Ck>H8T.      POWER  OF  THE  COMMONS.  271 

others  who  pay  nothing  for  what  they  take,  partly  by  the 
subsidies  and  tallages  raised  upon  them,  and  besides  by  the 
oppressive  behavior  of  the  servants  of  the  king  and  other 
lords,  and  especially  of  the  aforesaid  maintainers  of  suits, 
that  they  are  reduced  to  greater  poverty  and  discomfort  than 
ever  they  were  before.  And  moreover,  though  great  sums 
have  been  continually  granted  by  and  levied  upon  them,  for 
the  defence  of  ihe  kingdom,  yet  they  are  not  the  better  de- 
fended against  their  enemies,  but  every  year  are  plundered 
and  wasted  by  sea  and  land,  without  any  relief.  Which  ca- 
lamities the  said  poor  commons,  who  lately  used  to  live  in 
honor  and  prosperity,  can  no  longer  endure.  And  to  speak 
ihe  real  truth,  these  injuries  lately  done  to  the  poorer  com- 
mons, more  than  they  ever  suffered  before,  caused  them  to 
rise  and  to  commit  the  mischief  done  in  their  late  riot ;  and 
there  is  still  cause  to  fear  greater  evils,  if  sufficient  remedy 
be  not  timely  provided  against  the  outrages  and  oppressions 
aforesaid.  Wherefore  may  it  please  our  lord  the  king,  and 
the  noble  peers  of  the  realm  now  assembled  in  this  parlia- 
ment, to  provide  such  remedy  and  amendment  as  to  the  said 
administration  that  the  state  and  dignity  of  the  king  in  the 
first  place,  and  of  the  lords,  may  be  preserved,  as  the  com- 
mons have  always  desired,  and  the  commons  may  be  put  in 
peace ;  removing,  as  soon  as  they  can  be  detected,  evil  minis- 
ters and  counsellors,  and  putting  in  their  stead  the  best  and 
most  sufficient,  and  taking  away  all  the  bad  practices  which 
have  led  to  the  last  rising,  or  else  none  can  imagine  that  this 
kingdom  can  longer  subsist  without  greater  misfortunes  than 
it  ever  endured.  And  for  Grod's  sake  let  it  not  be  forgotten 
that  there  be  put  about  the  king,  and  of  his  council,  the  best 
lords  and  knights  that  can  be  found  in  the  kingdom. 

'<  And  be  it  known  (the  entry  proceeds)  that,  after  the 
king  our  lord  with  the  peers  of  the  realm  and  his  council 
had  taken  advice  upon  these'  requests  made  to  him  for  his 
good  and  his  kingdom's  as  it  really  appeared  to  him,  willed 
and  granted  that  certain  bishops,  lords,  and  others  should  be 
appointed  to  survey  and  examine  in  privy  council  both  the 
government  of  the  king's  person  and  of  his  household,  and 
to  suggest  proper  remedies  wherever  necessary,  and  report 
them  to  the  king.  And  it  was  said  by  the  peers  in  parlia- 
ment, that,  as  it  seemed  to  them,  if  reform  of  government 
were  to  tdke  place  throughout  the  kingdom,  it  jLould  begin 


272  POWEB  OF  THE  COMMONS.    Chap.  Vm.  Pabt  JUL 

by  the  chief  member,  which  is  the  king  himself,  and  so  from 
person  to  person,  as  well  churchmen  as  others,  and  place 
to  place,  from  higher  to  lower,  without  sparing  any  degree/'^ 
A  considerable  number  of  commissioners  were  accordinglj 
appointed,  whether  bj  the  king  alone,  or  in  parliament,  does 
not  appear;  the  latter,  however,  is  more  probable.  They 
;eem  to  have  made  some  progress  in  the  work  of  reforma- 
tion, for  we  find  that  the  officers  of  the  household  were 
Bwom  to  observe  their  regulations.  But  in  all  likelihood 
these  were  soon  neglected. 

It  is  not  wonderful  that,  with  such  feelings  of  resentment 
towards  the  crown,  the  commons  were  backward  in  granting 
subsidies.  Perhaps  the  king  would  not  have  obtained  one  at 
all  if  he  had  not  withheld  his  charter  of  pardon  for  all  of« 
fences  committed  during  the  insurrection.  This  was  absolutely 
necessary  to  restore  quiet  among  the  people;  and  though 
the  members  of  the  commons  had  certainly  not  been  insur- 
gents, yet  inevitable  irregularities  had  occurred  in  quelling 
the  tumults,  which  would  have  put  them  too  much  in  the 
power  of  those  unworthy  men  who  filled  the  benches  of 
justice  under  Richard.  The  king  declared  that  it  was  unu- 
sual to  grant  a  pardon  without  a  subsidy ;  the  commons  still 
answered  that  they  would  consider  about  that  matter ;  and 
the  king  instantly  rejoined  that  he  would  consider  about  his 
pardon  (s'aviseroit  de  sa  dite  grace)  till  they  had  done  what 
they  ought.  They  renewed  at  length  the  usual  tax  on  wool 
and  leaUier.* 

This  extraordinary  assumption  of  power  by  the  commons 
was  not  merely  owing  to  the  king's  poverty.  It  was  encour- 
aged by  the  natural  feebleness  of  a  disunited  government. 
The  high  rank  and  ambitious  spirit  of  Lancaster  gave  him 
no  little  influence,  though  contending  with  many  enemies  at 
court  as  well  as  the  ill-will  of  the  people.  Thomas  of  Wood- 
stock, the  king's  joimgest  uncle,  more  able  and  turbulent 
than  Lancaster,  became,  as  he  grew  older,  an  eager  competi- 
tor for  power,  which  he  sought  through  the  channel  of  popu- 
larity. The  earls  of  March,  Arundel,  and  Warwick  bore  a 
considerable  part,  and  were  the  favorites  of  parliament. 
Even  Lancaster,  afler  a  few  years,  seems  to  have  fallen  into 
popular  courses,  and  recovered  some  share  of  public  esteem. 

1  Rot  Pari.  6R.  n.  p.  100.  •  Id.  p.  104. 


tsQUSBL  ConvT.    CHABiiCTEB  OF  BICHABD  II.  278 

He  was  at  the  head  of  the  reformiDg  oommission  in  the  fifUi 
of  Richard  11^  though  he  had  been  studiously  excluded  from 
those  preceding.  We  cannot  hope  to  disentangle  the  in- 
trigues of  this  remote  age,  as  to  which  our  records  are  of  no 
service,  and  the  chroniclers  are  very  slightly  informed.  So 
fiir  as  we  may  conjecture,  Lancaster,  finding  his  station  inse- 
cure at  court,  began  to  solicit  the  favor  of  the  commons, 
whose  hatred  of  the  administration  abated  their  former  hos- 
tility towards  him.^ 

The  character  of  Richard  11.  was  now  developing  itself 
and  the  hopes  excited  by  his  remarkable  presence  chanuster 
of  mind  in  confronting  the  rioters  on  Blackheath  ^  wcb*«i. 
were  rapidly  destroyed.  Not  that  he  was  wanting  in  capac- 
ity, as  has  been  sometimes  imagined.  For  if  we  measure 
intellectual  power  by  the  greatest  exertion  it  ever  displays, 
rather  than  by  its  average  results,  Richard  11.  was  a  man  of 
considerable  talents.  He  possessed,  along  with  much  dis- 
simulation, a  decisive  promptitude  in  seizing  the  critical 
moment  for  action.  Of  this  quality,  besides  his  celebrated 
behavior  towards  the  insurgents,  he  gave  striking  evidence 
in  several  circumstances  which  we  shall  have  shortly  to  no- 
tice. But  his  ordinary  conduct  belied  the  abilities  which  on 
these  rare  occasions  shone  forth,  and  rendered  them  ineffectual 
for  his  security.  Extreme  pride  and  violence,  with  an  inor- 
dinate partiality  for  the  most  worthless  favorites,  were  his 
predominant  characteiisdcs.  In  the  latter  quality,  and  in 
the  events  of  his  reign,  he  forms  a  pretty  exact  parallel  to 
Edward  H.  Scrope,  lord  chancellor,  who  had  been  ap- 
pointed in  parliament,  and  was  understood  to  be  irremovable 
without  its  concurrence,  lost  the  great  seal  for  refusing  to  set 
it  to  some  prodigal  grants.  Upon  a  slight  quarrel  witSi  arch- 
bishop Courtney  the  king  ordered  his  temporalities  to  be 
seized,  the  execution  of  which,  Michael  de  la  Pole,  his  new 
chancellor,  and  a  favorite  of  his  own,  could  hardly  prevent. 
This  was  accompanied  with  indecent  and  outrageous  expres* 
sions  of  anger,  unworthy  of  his  station  and  of  those  whom 
he  insulted.* 

1  The  eoDunooa  granted  a  rabsidT,  7  R.    said  to  hare  compelled  men  to  mear  that 
icaster'f  nar  in  uiitUe.    thej  would  obey  king  Richaid 


n.,  to  rapport  Lancaster'f  nar  in  GaetUe.  thej  would  obey  king  Richaid  and  the 

R.  P.  p.  284.     Whether  the  popoJaoe  eommona,  and  that  they  would  accept 

changed  their  opinion  of  liim  I  know  no  king  named  John.    Walaingliam,  p 

not.    He.waaatiU  disliked  by  them  two  248. 

yean  beftne.    The  Insuzgenta  of  1882  are  •  Walsing.  p.  290, 816, 817. 

VOL.  II.  —  U.  18 


274      FBOCEEDmaS  OF  PART.TAMKNT.    Chap.  Vm.  Pam  m 

Though  no  king  could  be  less  respectable  than  Richard, 
jet  the  constitution  invested  a  sovereign  with  such 
more^pavrar  ample  prerogative,  that  it  was  far  less  easy  to 
on  wj  resist  his  personal  exercise  of  power  than  the  un- 

""  settled  councils  of  a  minority.    In  the  parliament 

6  IL  n.,  sess.  2,  the  commons  pray  certain  lords,  whom  they 
name,  to  be  assigned  as  their  advisers.  This  had  been  per- 
mitted in  the  two  last  sessions  without  exception.^  But  the 
king,  in  granting  their  request,  reserved  his  right  of  naming 
any  others.^  libough  the  commons  did  not  relax  in  their 
importunities  for  the  redress  of  general  grievances,  they  did 
not  venture  to  intermeddle  as  before  with  the  conduct  of  ad- 
ministration. They  did  not  even  object  to  the  grant  of  the 
marquisate  of  Dublin,  with  almost  a  princely  dominion  over 
Ireland;  which  enormous  donation  was  confirmed  by  act  of 
parliament  to  Yere,  a  favorite  of  the  king.'  A  petition  that 
the  officers  of  state  should  annually  visit  and  inquire  into  hia 
household  was  answered  that  the  king  would  do  what  he 
pleased.^  Yet  this  was  little  in  comparison  of  their  former 
proceedings. 

There  is  nothing,  however,  more  deceitful  to  a  monarch, 
Prooeedingi  unsupported  by  an  armed  force,  and  destitute  of 
naenUnthe  ^^T  adviscrs,  than  this  submission  of  his  people, 
tenth  of  A  single  effort  was  enough  to  overturn  his  govem- 
Biehard.  meut  Parliament  met  in  the  tenth  year  of  his 
reign,  steadily  determined  to  reform  the  administration,  and 
especially  to  punish  its  chief  leader,  Michael  de  la  Pole,  earl 
of  Sufibik  and  lord  chancellor.  According  to  the  remarkable 
narration  of  a  contemporary  historian,'  too  circumstantial  to 
be  rejected,  but  rendered  somewhat  doubtful  by  the  silence 
of  all  other  writers  and  of  the  parliamentary  roll,  the  king 
was  loitering  at  his  palace  at  Eltham  when  he  received  a  mes- 
sage from  the  two  houses,  requesting  the  dismissal  of  Suffolk, 
since  they  had  matter  to  allege  against  him  that  they  could  not 
move  while  he  kept  the  office  of  chancellor.  Richard,  with  his 
usual  intemperance,  answered  that  he  would  not  for  their  re- 

1  Rot  Pkrl.  6  B.  n.  p.  100:  6  S.  H.  thftt  niiM  lords  had  been  appolntad  la 

SDM.  1,  p.  m.  the  but  parlfaunont,  tIs.  9  K.  11^  to  in 

•  p.  146.  quire  into  the  itate  of  the  homebold.  and 

•  Rot.  Pari.  9  B.  n.  p.  2Q0l  •  nibrm  whaterer  waa  amiaa.  Bat  ootiiiBC 
4  lb.  p.  218.     It  ia  howvrar  aaierted  ofthia  appears  in  the  roU. 

In  the  artielefi  of  impeachment  againat       •  Knygfaton,  in  Twyadan  z.  Soiipt.  ooi 
inlfikUc,  and  admitted  by  his  defonce,    2880. 


boLUH  GoicsT.     IMPEACHMENT  OF  SUFFOLK.  275 

qnest  ]:emoye  the  meanest  scullion  from  his  kitchen.  Thej 
returned  a  positive  refusal  to  proceed  on  anj  public  business 
until  the  king  should  appear  personally  in  parliament  and 
displace  the  chancellor.  The  king  required  fortj  knights  to 
be  deputed  from  the  rest  to  inform  him  dearlj  of  their  wish- 
es. But  the  commons  declined  a  proposal  in  which  they 
feared,  or  affected  to  fear,  some  treachery.  At  length  the 
duke  of  Gloucester  and  Arundel  bishop  of  Ely  were  com- 
missioned to  speak  the  sense  of  parliament ;  and  they  de- 
livered it,  if  we  may  still  believe  what  we  read,  in  very  extra- 
ordinary language,  asserting  that  there  was  an  ancient  statute, 
according  to  which,  if  the  king  absented  himself  from  parlia- 
ment without  just  cause  during  forty  days,  which  he  had  now 
exceeded,  every  man  might  return  without  permission  to  his 
own  country ;  and,  moreover,  there  was  another  statute,  and 
(as  they  might  more  truly  say)  a  precedent  of  no  remote 
date,  that  if  a  king,  by  bad  counsel,  or  his  own  folly  and  ob- 
stinacy, alienate^  himself  from  his  people,  and  would  not  gov- 
ern according  to  the  laws  of  the  land  and  the  advice  of  the 
peers,  but  madly  and  wantonly  followed  his  own  single  will,  it 
should  be  lawftil  for  them,  with  the  common  assent  of  the 
people,  to  expel  him  from  his  throne,  and  elevate  to  it  some 
near  kinsman  of  the  royal  blood.  By  this  discourse  the  king 
was  induced  to  meet  his  parliament,  where  Suffolk  was  re- 
moved from  his  office,  and  the  impeachment  against  him 
commenced.^ 

The  charges  against  this  minister,  without  being  wholly 
fiivolous,  were  not  so  weighty  as  the  clamor  of  the  i„p,^ch- 
oommons  might  have  led  us  to  expect     Besides  ment  of 
forfeiting  all  his  grants  from  the  crown,  he  was  ^"^"^' 
committed  to  prison,  there  to  remain  till  he  should  have  paid 
Buch  fine  as  the  king  might  impose ;  a  sentence  that  would 

1  Upon  tall  eoDsideration.  I  am  rnueh  to  hate  reqalrBd ;  and  alio  that  Suffolk, 

Inelioed  (o  giro  ciwdit  to  this  paimfe  of  who  openod  tha  aeMion  aa  ehaneeUor,  ia 

Knvfhton,  as  to  the  maio  iaets;  and  Btylad  **  danain  chanoallor "  Inthaarti- 

paraafM  eran  tha  »paeoh  of  Oloucaster  elea  of  impeachmant  against  him ;    ao 

and  tha  blihop  of  Ely  is  mora  likely  to  that  ha  must  have  baan  ramovad  in  tha 

have  b«en  inada  public  by  them  than  in-  intarral,  which  talUee  with  Knyghton's 

▼anted  by  so  >iuna  an  historian.    Wal-  itozy.    BeBldes,  It  is  plain,  firom  tha  Uc 

■Ingham  indeed  says   nothing   of   tha  mous  qnaetions  subsequently  put  by  tha 

matter;  but  he  Is  so  unequally  Inibrmad  king  to  his  judges  at  Nottingham,  tliat 

and  00  frequently  defeotiTe,  that  we  can  both   the   right  of  retiring  without  a 

draw  no  strong  Inftrenoefrom  hissUenoe.  regular  dissolutloo,  and  tha  precedent  of 

What  most  wdghs  with  me  Is  that  par-  Bdward  II..  had  been  dimussed  in  parlia- 

Hamant  met  on  Oct.  1,  1887,  and  was  mant,  which  does  not  appear  anywlmi 

BOt  disBolred   till  Nor.  28 ;    a   longer  alsa  tiian  in  Knyghton. 
yadod  than  tha  buslnass  dona  in  it  seeraa 


276  COMMISSION  OF  REFORM.    Chap.  ym.  Past  IIL 

haTB  been  oatrageonsly  severe  in  many  cases,  thoagh  little 
more  than  nagatorj  in  the  present.^ 

This  was  the  second  precedent  of  that  grand  constitutional 
OoouiiinioB  resource,  parhamentary  impeachiDaent :  and-more  re- 
ar leibrm.  markablo  from  the  eminence  of  the  person  attacked 
than  that  of  lord  Latimer  in  the  fiftieth  year  of  Edward  TIT.* 
The  commons  were  content  to  waive  the  prosecution  of  any 
other  ministers ;  but  they  rather  chose  a  scheme  of  reforming 
the  administration,  which  should  avert  both  the  necessity  of 
punishment  and  the  malversations  that  provoked  it.  They  pe» 
titioned  the  king  to  ordain  in  parliament  certain  chief  officers 
of  his  household  and  other  lords  of  his  council,  with  power 
to  reform  those  abuses,  by  which  his  crown  was  so  much 
blemished  that  the  laws  were  not  kept  and  his  revenues  were 
dilapidated,  confirming  by  a  statute  a  commission  for  a  year, 
and  forbidding,  under  heavy  penalties,  any  one  from  oppos- 
ing, in  private  or  openly,  what  they  should  advise.*  With 
this 'the  king  complied,  and  a  commission  fojunded  upon  the 
prayer  of  parliament  was  established  by  statute.  It  compre- 
hended fourteen  persons  of  the  highest  eminence  for  rank 
and  general  estimation;  princes  of  the  blood  and  ancient 
servants  of  the  crown,  by- whom  its  prerogatives  were  not 
likely  to  be  unnecessarily  impaired.  In  fact  the  principle  of 
this  commission,  without  looking  back  at  the  precedents  in  the 
reign  of  John,  Henry  III.,  and  Edward  IL,  which  yet  were 
not  without  their  weight  as  constitutional  analogies,  was  mere- 
ly that  which  the  commons  had  repeatedly  maintained  during 
the  minority  of  the  present  king,  and  which  had  produced 
the  former  commissions  of  reform  in  the  third  and  fifth  years 
of  his  reign.  These  were  upon  the  whole  nearly  the  same 
in  their  operation.  It  must  be  owned  theie  was  a  more  ex- 
tensive  sway  virtually  given  to  the  lords  now  appointed,  by 
the  penalties  imposed  on  any  who  should  endeavor  to  obstruct 
what  they  might  advise ;  the  design  as  well  as  tendency  of 
which  was  no  doubt  to  throw  the  whole  administration  into 
their  hands  during  the  period  of  this  commission. 

Those  who  have  written  our  history  with  more  or  less  of 

t  Bot.  Put.  Tol.  itt.  p.  819.  01flin«nt  fai  iha  achinn.    Thla  ernault 

*  Articles  hftd  been  exUiUtad  bj  iha  h«d  been  exceedingly  popnlar,  but  tto  W 

ehanoellor  belbre  tbe  peers,  in  the  serenth  snceeas  bad  the  nsvuu  efleet.    Tbe  com* 

of  the  king,  agmlnst  SpenoeTf  btehop  of  mons  were  not  parties  In  this  proeeedinf. 

Norwich,   who  had  led  a  considerable  Bot.  Pari.  p.  l&B. 

armr  in  a  disaatrons  expedition  against  *  Bot.  FazL  p.  821. 

the  Flainlngs,  adharanti  to  the  antipopa 


bousH  Gomr.      COMMISSION  01*  BEFOBM.  277 

a  Tory  bias  exclaim  against  this  parliamentary  oommlssion 
as  an  unwarrantable  violation  of  the  king's  sovereignty,  and 
even  impartial  men  are  struck  at  first  sight  by  a  measure 
that  seems  to  overset  the  natural  balance  of  our  constitution. 
But  it  would  be  unfair  to  blame  either  those  concerned  in  this 
commission,  some  of  whose  names  at  least  have  been  handed 
down  with  unquestioned  respect,  or  those  high-spirited  repre- 
sentatives of  the  people  whose  patriot  fimmess  has  been  luth- 
erto  commanding  all  our  sjrmpathy  and  gratitude,  unless  we 
could  distinctly  pronounce  by  what  gentler  means  they  could 
restrain  the  excesses  of  government  Thirteen  parliekments 
had  already  met  since  the  accession  of  Richard ;  in  all  the 
same  remonstrances  had  been  repeated,  and  the  same  prom- 
ises renewed.  Subsidies,  more  frequent  than  in  any  former 
xeign,  had  been  granted  for  the  supposed  exigencies  of  the 
war;  but  this  was  no  longer  illuminated  by  ti^ose  dazzling 
victories  which  give  to  fortune  the  mien  of  wisdom;  the 
ooasts  of  England  were  perpetually  ravaged,  and  her  trade 
destroyed ;  while  the  administraticm  incurred  the  suspicion  of 
diverting  to  private  uses  that  treasure  which  they  so  feebly 
and  unsucceifiafully  applied  to  the  public  service.  No  voice 
of  his  people,  untU  it  spoke  in  thunder,  would  stop  an  intoxi- 
cated boy  in  the  wasteful  career  of  dissipation.  He  loved 
festivals  and  pageants,  the  prevailing  folly  of  his  time,  with 
unusual  frivolity ;  and  his  ordinary  living  is  represented  as 
beyond  comparison  more  showy  and  sumptuous  than  even 
that  of  his  magnificent  and  chivalrous  predecessor.  Acts  of 
parliament  were  no  adequate  barriers  to  his  misgovemment 
^Of  what  avail  are  statutes,"  says  Walsingham,  ''since  the 
king  with  his  privy  council  is  wont  to  abdish  what  parlia- 
ment has  just  enacted  ?  "  ^  The  constant  prayer  of  the  com- 
mons in  every  session,  that  fonner  statutes  might  be  kept  in 
force,  is  no  sUght  presumption  that  they  were  not  secure  of 
being  regarded.  It  may  be  true  that  Edward  IIL's  govern- 
ment had  been  full  as  arbitrary,  though  not  so  unwise,  as  his 
g^randson's ;  but  this  is  the  strongest  argument  that  nothing 
less  than  an  extraordinary  remedy  could  preserve  the  still 
unstable  liberties  of  England. 

The  best  plea  that  could  be  made  for  Bichard  was  his  inex- 
perience, and  the  misguided  suggestions  of  fovorites.  ThiS| 
however,  made  it  more  necessary  to  remove  those  fiilse  ad- 

•  1  Sot.  PurL  p.  9BL 


278  COMMISSION  OF  REFOBM.    Chap.  Tm.  Pabt  UL 

yisers,  aud  to  supply  that  inexperienoet  Unquestionablj  the 
choice  of  ministers  is  reposed  in  the  sovereign ;  a  tnist,  like 
every  other  attribute  of  legitimate  power,  for  the  public  good; 
not,  what  no  legitimate  power  can  ever  be,  the  instrument 
of  selfishness  or  caprice.  There  is  something  more  sacr^^d 
than  the  prerogative,  or  even  than  the  constitution ;  the  pub- 
lic weal,  for  which  all  powers  are  granted,  and  to  which 
they  must  all  be  referred.  For  this  public  weal  it  is  con- 
fessed'to  be  sometimes  necessary  to  shake  the  possessor  of  the 
throne  out  of  his  seat ;  could  it  never  be  permitted  to  suspend, 
though  but  indirectly  and  for  a  time,  the  positive  exercise  of 
misapplied  prerogatives  ?  He  has  learned  in  a  very  differ- 
ent school  from  myself,  who  denies  to  parliament  at  the  pres- 
ent day  a  preventive  as  well  as  vindictive  control  over  the 
administration  of  affairs ;  a  right  of  resisting,  by  those  means 
which  lie  within  its  sphere,  the  appointment  of  unfit  minis- 
ters. These  means  are  now  indirect ;  they  need  not  to  be 
the  less  effectual,  and  they  are  certainly  more  salutary  on 
that  account  But  we  must  not  make  our  notions  of  the  con- 
stitution in  its  perfect  symmetry  of  manhood  the  measure  of 
its  infantine  proportions,  nor  expect  from  a  parliament  just 
struggling  into  life,  and  ^  pawing  to  get  free  its  hinder  parts," 
the  regularity  of  definite  and  hi^itual  power. 

It  is  assumed  rather  too  lightly  by  some  of  those  historians 
to  whom  I  have  alluded  that  these  commissioners,  though  but 
appointed  for  a  twelvemonth,  designed  to  retain  longer,  or 
would  not  in  fact  have  surrendered,  their  authority.  There 
is  certainly  a  danger  in  these  delegations  of  preeminent  trust ; 
but  I  think  it  more  formidable  in  a  republican  form  than  un- 
der such  a  government  as  our  own.  The  spirit  of  the  peo- 
ple, the  letter  of  the  law,  were  both  so  decidedly  monarchi- 
cal, that  no  glaring  attempt  of  the  commissioners  to  keep  the 
helm  continually  in  their  hands,  though  it  had  been  in  the 
king's  name,  would  have  had  a  fair  probability  of  success. 
And  an  oligarchy  of  fourteen  persons,  different  in  rank  and 
profession,  even  if  we  should  impute  criminal  designs  to 
all  of  them,  was  ill  calculated  for  permanent  union.  Indeed 
the  facility  with  which  Richard  reassumed  his  full  powers 
two  years  afterwards,  when  misconduct  had  rendered  his  cir- 
cumstances far  more  unfavorable,  gives  the  corroboration  of 
experience  to  this  reasoning.  By  yielding  to  the  will  of  his 
parliament  and  to  a  temporary  suspension  of  preiogative»  thj« 


JSvGUBB  Comn.   ANSWERS  TO  BIGHABD*S  QUESTIONS.    279 

unfortunate  prince  might  probably  have  reigned  long  and 
peacefully ;  the  contrary  course  of  acting  led  eventusdly  to 
his  deposition  and  miserable  death. 

Before  the  dissolution  of  parliament  Richard  made  a  verbal 
protestation  that  nothing  done  therein  should  be  in  prejudice 
of  his  rights ;  a  reservation  not  unusual  when  any  remarka- 
ble concession  was  made,  but  which  could  not  de- 
cently be  interpreted,  whatever  he  might  mean,  as  4eTadew  to ' 
a  dissent  from  the  statute  just  passed.  Some  ^^J^jjg*'" 
months  had  intervened  when  the  king,  who  had 
already  released  Suffolk  from  prison  and  restored  him  to  hia 
favor,  procured  from  the  judges,  whom  he  had  summoned  to 
Nottingham,  a  most  convenient  set  of  answers  to  questions 
concerning  the  late  proceedings  in  parliament.  Tresilian  and 
Belknap,  chief  justices  of  the  King's  Bench  and  Common 
Pleas,  with  several  other  judges,  gave  it  under  their  seals  that 
the  late  statute  and  commission  were  derogatory  to  the  prerog* 
ative  ;  that  all  who  procured  it  to  be  passed,  or  persuaded  or 
compelled  the  king  to  consent  to  it,  were  guilty  of  treason ; 
that  the  king^s  business  must  be  proceeded  upon  before  any 
other  in  parliament ;  that  he  may  put  an  end  to  the  session 
at  his  pleasure ;  that  his  ministers  cannot  be  impeached  with- 
out his  consent ;  that  any  members  of  parliament  contravening 
the  three  last  articles  incur  the  penalties  of  treason,  and  espe* 
cially  he  who  moved  for  the  sentence  of  deposition  against 
Edward  11.  to  be  read ;  and  that  the  judgment  against  the 
earl  of  Suffolk  might  be  revoked  as  altogether  erroneous. 

These  answers,  perhaps  extorted  by  menaces,  as  all  the 
judges,  except  Tresilian,  protested  before  the  next  sabMqnent 
parliament,  were  for  the  most  part  servile  and  un-  "wroiution. 
constitutionaL  The  indignation  which  they  excited,  and 
the  measures  successfully  taken  to  withstand  the  king's  designs, 
belong  to  general  history ;  but  I  shall  pass  slightly  over  that 
Beason  of  turbulence,  which  afforded  no  legitimate  precedent 
to  our  constitutional  annals.  Of  the  five  lords  appellants,  as 
they  were  called,  Gloucester,  Derby,  Nottingham,  Warwick, 
and  Arundel,  the  three  former,  at  least,  have  httle  daim  to  our 
esteem ;  but  in  every  age  it  is  the  sophism  of  malignant  and 
peevish  men  to  traduce  the  cause  oif  freedom  itself,  on  ac- 
count of  the  interested  motives  by  which  its  ostensible  advo- 
cates have  frequently  been  actuated.  The  parliament,  who 
had  the  oountiy  thoroughly  with  them,  acted  no  doobi  bon*. 


280  SUBSEQUENT  BEVOLUTIOK.    Chaf.  Yin.  Past  m. 

estlj,  bat  with  an  inattention  to  &e  rules  of  law,  culpable  in« 
deed,  jet  from  which  the  most  civilized  of  their  successors, 
in  the  heat  of  passion  and  triumph,  have  scarcely  been  ex- 
empt. Whether  all  with  whom  they  dealt  severely,  some 
of  them  apparently  of  good  previous  reputation,  merited  such 
punishment,  is  more  thsua,  upon  uncertain  evidence,  a  modem 
writer  can  profess  to  deddeA 

Notwithstanding  the  death  or  exile  of  all  Richard's  favor- 
ites, and  the  oath  taken  not  only  by  parliament,  but  by  every 
dass  of  the  people,  to  stand  by  the  lords  appellants,  we  find 
him,  ailer  about  a  year,  suddenly  annihilating  their  preten- 
sions, and  snatching  the  reins  again  without  obstruction. 
The  secret  cause  of  this  event  is  among  the  many  obscurities 
that  attend  the  history  of  his  reign.  It  was  conducted  with 
a  spirit  and  activity  which  broke  out  two  or  three  times  in 
the  course  of  his  imprudent  life ;  but  we  may  conjecture 
that  he  bad  the  advantage  of  disunion  among  his  enemies. 
For  some  years  after  this  the  king^s  administration  was  pru- 
dent. The  great  seal,  which  he  took  away  from  archbishop 
Arundel,  he  gave  to  Wykeham  bishop  of  Winchester,  another 
member  of  the  reforming  commission,  but  a  man  of  great  mod- 
eration  and  political  experience.  Some  time  after  he  restored 
the  seal  to  Arundel,  and  reinstated  the  duke  of  Gloucester  in 
the  counciL  The  duke  of  Lancaster,  who  had  been  absent 
during  the  transactions  of  the  tenth  and  eleventh  years  of 
the  king,  in  prosecution  of  his  Castilian  war,  formed  a  link 
between  the  parties,  and  seems  to  have  maintained  some 
share  of  public  favor. 

There  was  now  a  more  apparent  harmony  between  the 

court  and  the  parliainent.  It  seems  to  have  been 
Surmony  tacitly  agreed  that  they  should  not  interfere  with 
batwMn  thfb  the  kin^s  household  expenses ;  and  they  gratified 
^^ament.    ^^  "1  a  point  where  his  honor  had  been  most 

wounded,  declaring  his  prerogative  to  be  as  high 
and  unimpaired  as  that  of  his  predecessors,  and  repealing  the 
pretended  statute  by  virtue  of  which  Edward  IL  was  said  to 
have  been  deposed.^  They  were  provident  enough,  however 
lo  grant  conditional  subsidies,  to  be  levied  only  in  case  of  a 

1  TIm   JndgiMiit    affainst   Simon  d«  IV.;  a  Me  pntmnptlon  of  Its  fa^juatloa. 

Boriev,  one  of  thooe  who  were  executed  Bot.  Part  vol.  iU.  p.  46i. 

on  Uni  occasion,  upon  impeachment  of  •  Bot  Pari.  14 11.  n.  p.  879 ,  16  B.  11 

llMeoaiBMMa,waiT«nperMaanidarHMU7  p.  396 


Bhglish  Co2«8t.    disunion  AMONG  LEADING  PEERS.         281 

royal  expedition  against  the  enemy ;  and  several  were  ac- 
cordingly remitted  by  proclamation,  this  condition  not  being 
fulfilled.  Richard  never  ventured  to  recall  his  favorites, 
though  he  testified  his  unabated  affection  fof  Vere  by  a  pom- 
pous funeral.  Few  complaints,  unequivocally  affecting  the 
ministry,  were  presented  by  the  commons.  In  one  parlia- 
ment the  chancellor,  treasurer,  and  counsel  resigned  their 
offices,  submitting  themselves  to  its  judgment  in  case  any 
matter  of  accusation  should  be  alleged  against  them.  The 
commons,  after  a  day's  deliberation,  probably  to  make  their 
approbation  appear  more  solemn,  declared  in  full  parliament 
that  nothing  amiss  had  been  found  in  the  conduct  of  these 
ministers,  and  that  they  held  them  to  have  faithfully  dis- 
charged their  duties.  The  king  reinstated  them  accordingly, 
with  a  protestation  that  this  should  not  be  made  a  precedent, 
and  that  it  was  his  right  to  change  his  servants  at  pleasure.^ 
But  this  summer  season  was  not  to  last  forever.  Richard 
had  but  dissembled  with  those  concerned  in  the 
transactions  of  1388,  none  of  whom  he  could  ever  among^aonM 
forgive.  These  lords  in  lapse  of  time  wei*e  di-  i<«<**nK 
vided  among  each  other.  The  earls  of  Derby  and 
Nottingham  were  brought  into  the  king's  interest.  The  earl 
of  Arundel  came  to  an  open  breach  with  the  duke  of  Lan- 
caster, whose  pardon  he  was  compelled  to  ask  for  an  un- 
founded accusation  in  parliament.^  Gloucester's  ungovemed 
ambition,  elated  by  popularity,  could  not  brook  the  ascendency 
of  his  brother  Lancaster,  who  was  much  less  odious  to  the 
king.  He  had  constantly  urged  and  defended  the  concession 
of  Guienne  to  this  prince  to  be  held  for  life,  reserving  only 
his  liege  homage  to  Richard  as  king  of  France ; '  a  grant  as 
unpopular  among  the  natives  of  that  country  as  it  was  derog- 
atory to  the  crown  ;  but  Lancaster  was  not  much  indebted  to 
his  brother  for  assistance  which  was  only  given  in  order  to 
diminish  his  influence  in  England.  The  truce  with  France, 
and  the  king's  French  marriage,  which  Lancaster  supported, 
were  passionately  opposed  by  Gloucester.  And  the  latter 
had  given,  keener  provocation  by  speaking  contemptuously 
of  that  misalliance  with  Katherine  Swineford  which  contam- 
inated the  blood  of  Plantagenet.  To  the  parliament  sum- 
moned in  the  20th  of  Richard,  one  object  of  which  was  to 

1  Bot  Pari.  IB  R.  n.  p.  268.  •  17  B.  H.  p.  Sift 

•  Bymer,  t.  ttt.  p.  688, 66d. 


282  PBOSECDTION  OF  HAXET.    Chap.  VHI.  Pact  IH 

legitimate  the  duke  of  Lancaster's  antenuptial  children  by 
this  lady,  neither  Gloucester  nor  Arundel  would  repair. 
There  passed  in  this  assembly  something  remarkable,  as  it 
exhibits  not  only  the  arbitrary  temper  of  Qie  king,  a  point  by 
no  means  doubtful,  but  the  inefficiency  of  the  commons  to 
resist  it  without  support  from  political  confederacies  of  the 
nobility.     The  drcumstancee  are  thus  related  in  the  record. 

During  the  session  the  king  sent  for  the  lords  into  parlia- 
Riehard'8  ^^^^^  one  aftemoon,  and  told  them  how  he  had 
prcMeeadoa  heard  of  certain  articles  of  complaint  made  by  the 
of  Haxey.  commons  in  conference  with  them  a  few  days  be- 
fore, some  of  which  appeared  to  the  king  against  his  royalty, 
estate,  and  liberty,  and  commanded  the  chancellor  to  inform 
him  Mly  as  to  this.  The  chancellor  accordingly  related  the 
whole  matter,  which  consisted  of  four  alleged  grievances ; 
namely,  that  sheriffs  and  escheators,  notwithstanding  a  statr 
ute,  are  continued  in  their  offices  beyond  a  year  ;^  that  the 
Scottish  marches  wei-e  not  well  kept ;  that  the  statute  against 
wearing  great  men's  Uveries  was  disregarded ;  and,  lastly, 
that  the  excessive  charges  of  the  king's  household  ought  to 
be  diminished,  arising  from  the  multitude  of  bishops  and  of 
ladies  who  are  there  maintained  at  his  cost 

Upon  this  information  the  king  declared  to  the  lords  that 
through  God's  gift  he  is  by  lineal  right  of  inheritance  king  of 
£nglaiid,  and  will  have  the  royalty  and  freedom  of  his  crowOy 
from  which  some  of  these  articles  derogate.  The  first  peti- 
tion, that  sheriffs  should  never  remain  in  office  beyond  a  year, 
he  rejected ;  but,  passing  lightly  over  the  rest,  took  most  o^ 
fence  that  the  commons,  who  are  his  lieges,  should  take  on 
themselves  to  make  any  ordinance  respecting  his  royal  per- 
son or  household,  or  those  whom  he  might  please  to  have 
about  him.  He  enjoined  therefore  the  lords  to  declare  plainly 
to  the  commons  his  pleasure  in  this  matter ;  and  especially 
directed  the  duke  of  Lancaster  to  make  the  speaker  give  up 
the  name  of  the  person  who  presented  a  bill  for  this  last  ar- 
ticle in  the  lower  house. 

1  Home  hu  repreMnted  this  at  if  tti»  ii  anfortnnate  that  Hom«  relied  to  miioh. 

aoDUDons  had  peatloned  for  the  conUiia-  The  paange  from   Walalngbun  in  the 

•Boe   of   shorub   beyond  a  yotfi  and  nme  note  is  also  wholly  perrerted ;  aa 

Eouuds  upon  this  mistake  part  of  his  the  reader  will  disoover  without  ftirther 

fence  of  Kichard  II.    (Note  to  toI.  ii.  obeerratlon.      An    historian    must   ba 

p  270,  4to.  edit.)    For  this  he  refers  to  strangely  warped  who  quotes  a  passage 

Cotton^  Abridgment ;  whether  rightly  or  explicitly  complaining  of  illegal  acts  in 

not  I  cannot  say,  being  little  acquainted  order  to  infer  that  those  Tery  acts  van 

with  that  inaooorate  book,  upon  wlileh  it  legal. 


BVOU8B  Goubt.    ABBITRABr  MEASUBES  OF  BICHARD  IL  283 

The  commons  were  in  no  state  to  resist  this  unexpected 
promptitude  of  action  in  the  king.  Thej  surrendered  the 
obnoxious  bill,  with  its  proposer,  one  Thomas  Haxej,  and 
with  great  humility  made  excuse  that  thej  never  designed  to 
give  offence  to  his  majesty,  nor  to  interfere  with  his  house- 
hold or  attendants,  knowing  well  that  such  things  do  not  bo* 
long  to  them,  but  to  the  king  alone ;  but  merely  to  draw  bin 
attention,  that  he  might  act  therein  as  should  please  him  best. 
The  king  forgave  these  pitiful  suppliants;  but  Haxej  was 
adjudged  in  parliament  to  suffer  death  as  a  tnutor.  As,  how* 
ever,  he  was  a  clerk,^  the  archbishop  of  Canterbury,  at  the 
head  of  the  prelates,  obtained  of  the  king  that  his  life  might 
be  spared,  and  that  they  might  have  the  custody  of  his  per- 
son ;  protesting  that  this  was  not  claimed  by  way  of  right,  but 
merely  of  the  king's  grace.^ 

This  was  an  open  defiance  of  parliament,  and  a  dedans 
tion  of  arbitrary  power.     For  it  would  be  impossible  to  con- 
tend that,  afler  the  repeated  instances  of  control  over  public 
expenditure  by  the  commons  since  the  50th  of  Edward  III., 
this  principle  was  novel  and  unauthorized  by  the  constitution^ 
or  that  the  right  of  iree  speech  demanded  by  them  in  every 
parliament  was  not  a  real  and  indisputable  privilege.     The 
king,  however,  was  completely  successful,  and,  having  proved 
the  feebleness  of  the  commons,  fell  next  upon  those  ^bitnrr 
he  more  dreaded.     By  a  skilful  piece  of  treachery  measures  of 
he  seized  the  duke  of  Gloucester,  and  spread  con-  ***•  **°** 
stemation  among  all  his  party.     A  parliament  was  sum- 
moned, in  which  the  only  struggle  was  to  outdo  the  king's 
wishes,  and    thus    to  effiice  their  former   transgressions.* 
Gloucester,  who  had  been  murdered  at  Calais,  was  attainted 

1  Tbe  dinroh  woald  pofaapf  hftre  In-  parlemttDft.    p.  i80.    Then  can  be   no 

terfered  la  behalf  of  Hazey  if  he  had  doabt  with  any  man  who  looki  atten* 

only  reeeived  the  tonsure.    But  it  leems  tively  at  the  paeeagen  relatire  Co  Haxey« 

that  be  was  aetnally  in  orders ;  fbr  the  that  he  was  a  member  of  parliament ; 

xeoord  calls  him  Sir  Thomas  Hazey.  a  thoosh  this  was  qnestioned  a  fcw  yean 

title  at  that  time  regularly  given  to  the  ago  by  the  eommittee  of  the  house  of 

parson  of  a  parish.    If  this  be  so.  It  Is  a  commons,  who  made  a  report  on  the  right 

remariuble  authority  Ibr  the  dergy^s  ei^  of  the  clergy  to  bH  eteeted ;  a  right  which, 

padty  of  slttlDg  in  parliament.  I  am  inclined  to  beUere,  did  exist  down 

I  Hot.  Pari.  90  B.  n.    p.  889.      In  to  the  Relbrmation,  as  the  nounds  al* 

Henry  IV.*s  first   parliament  the  com-  leged  for  NoweU's  expulsion  in  the  first, 

mons  petitioned  for  Haxey*s  restoration,  of  Mary,  besides  this  instance  of  Uaxey, 

and  truly  say  that  his  sentence  was  en  conspire  to  prove,  though  It  has  sfaieo 

aneantisflement  dee  custumes  de  la  com-  been  lost  by  disuse, 
mone.  p.  484.     His  judgment  was  re-       *  This  assembly,  if  we  may  trust  the 

Teraed  by  both  houses,  as  haying  passed  anonymous  author  of  tlie  Life  of  Mohanl 

de  TOlontedu  roy  Richard  en  contra  droll  II.,    published    by   Heame,   was   suf 

et  la  eouxse  quel  aroit  est*  derant  on  soanded  by  tho  king's  troops,   p  188. 


2Si  ABBITRART  MEASURES  OF  RICHABD  H.  Cb.  vm.  Ft.  in 

afler  his  death ;  Arundel  was  beheaded,  his  brother  the  arch« 
bishop  of  Canterbury  depased  and  banished,  Warwick  and 
Cobham  sent  beyond  sea.  The  commission  of  the  tenth,  the 
proceedings  in  parliament  of  the  eleventh  year  of  the  king^ 
were  annulled.  The  answers  of  the  judges  to  the  questions 
put  at  Nottingham,  which  had  been  punished  with  death  and 
exile,  were  pronounced  by  parliament  to  be  just  and  legaL 
It  was  declared  high-treason  to  procure  the  repeal  of  any 
judgment  against  persons  therein  impeached.  Their  issuo 
male  were  disabled  from  ever  sitting  in  parliament  or  hold- 
ing place  in  council.  These  violent  ordinances,  as  if  the 
precedent  they  were  then  overturning  had  not  shielded  itself 
with  the  same  sanction,  were  sworn  to  by  parliament  upon 
the  cross  of  Canterbury,  and  confirmed  by  a  national  oath, 
with  the  penalty  of  excommunication  denounced  against  ita 
infringers.  Of  those  recorded  to  have  bound  themselves  by 
this  adjuration  to  Richard,  far  the  greater  part  had  touched 
the  same  relics  for  Gloucester  and  Arundel  ten  years  before, 
and  two  years  afterwards  swore  allegiance  to  Henry  of  Lan«' 
caster.^ 

In  the  fervor  of  prosecution  this  parliament  could  hardly 
go  beyond  that  whose  acts  they  were  annulling ;  and  each  is 
alike  unworthy  to  be  remembered  in  the  way  of  precedent. 
But  the  leaders  of  the  former,  though  vindictive  and  turbu- 
lent, had  a  concern  for  the  public  interest ;  and,  after  pun- 
ishing their  enemies,  left  the  government  upon  its  right 
foundation.  In  this  all  regard  for  liberty  was  extinct ;  and 
the  commons  set  the  dangerous  precedent  of  granting  the 
king  a  subsidy  upon  wool  during  his  life.  Their  remarkable 
act  of  severity  was  accompanied  by  another,  less  unexampled, 
but,  as  it  proved,  of  more  ruinous  tendency.  The  petitions 
of  the  commons  not  having  been  answered  during  the  ses* 
sion,  which  they  were  always  anxious  to  conclude,  a  commis- 
sion was  granted  for  twelve  peers  and  six  commoners  to  sit 
after  the  dissolution,  and  ^  examine,  answer,  and  fully  deter- 
mine, as  well  all  the  said  petitions,  and  the  matters  therein 
comprised,  as  all  other  matters  and  things  moved  in  the  king's 
presence,  and  all  things  incident  thereto  not  yet  determined, 
as  sliall  seem  best  to  them."*  The  '^  other  matters"  men- 
tioned above  were,  I  suppose,  private  petitions  to  the  kin^a 

1  Bot.  Put  81 B.  n.  p.  8i7.  <  21 B.  XL  p.  an 


BirousH  CknrsT.    ARBITRABT  IfEASURES  OF  BICHABD  IL  285 

council  in  parliament,  which  had  been  frequently  despatched 
afler  a  dissolution.  For  in  the  statute  which  establishes  this 
commission,  21  R.  11.  c  16,  no  powers  are  committed  but 
those  of  examining  petitions :  which,  if  it  does  not  confirm  the 
charge  aflerwards  alleged  against  Richard,  of  faL<if3ring  the 
parliament  roll,  must  at  least  be  considered  as  limiting  and 
explaining  the  terms  of  the  latter.  Such  a  trust  had  been 
committed  to  some  lords  of  the  council  eight  years  before,  in 
very  peaceful  times ;  and  it  was  even  requested  that  the  same 
might  be  done  in  future  parliaments.^  But  it  is  obvious 
what  a  latitude  this  gave  to  a  prevailing  faction.  These 
eighteen  commissioners,  or  some  of  them  (for  there  were  who 
disliked  the  turn  of  affairs),  usurped  the  full  rights  of  the 
legislature,  which  undoubtedly  were  only  delegated  in  re- 
spect of  business  already  commenced.'  They  imposed  a  per- 
petual oath  on  prelates  and  lords  for  all  time  to  come,  to  be 
taken  before  obtaining  livery  of  their  lands,  that  they  would 
maintain  the  statutes  and  ordinances  made  by  this  parliamenti 
or  **  afterwards  by  the  lords  and  knights  having  power  com- 
mitted to  them  by  the  same."  They  declared  it  high  treason 
to  disobey  their  ordinances.  They  annulled  the  patents  of 
the  dukes  of  Hereford  and  Norfolk,  and  adjudged  Henry 
Bowet,  the  former^s  chapliun,  who  had  advised  him  to  petition 
for  his  inheritance,  to  the  penalties  of  treason.'  And  thus, 
having  obtained  a  revenue  for  hfe,  and  the  power  of  parliament 
being  notoriously  usurped  by  a  knot  of  his  creatures,  the  king 
was  little  likely  to  meet  his  people  again,  and  became  as  truly 
absolute  as  his  ambition  could  require. 

It  had  been  necessary  for  this  purpose  to  subjugate  the 
ancient  nobility.     For  the  English   constitution  gave  them 

1  13  R.  II.  p.  266.  pemlclMum  «xemplnm.  Bt  -at  rapcv 
*  This  proceeding  wm  made  one  of  the  fkcti*  eorum  huOunnodi  allqnefm  oolorem 
srtleles  of  charge  agaiiist  Kkhard  In  the  et  aactorltatem  Tiderentur  habere,  rex 
IMIovIng  terms:  Item,  In  parliamento  fecit  rotnloi  parliament  pro  toCo  lua 
ultimo  oelebrato  apud  Saloplam,  Idem  mutarl  et  delerl,  contra  effeetnm  eon- 
rex  propooena  opprlmere  popnlnm  euum  lenstonU  praedietaB.  Rot.  Pari.  1  H.  IV. 
procttraTiteabtiliteret  fecit  concedl,qaod  toI.  ill.  p.  418.  Whether  the  laataoeuna. 
poCestas  parliamenti  deconaeniuomiuam  tion,  of  altering  the  parliamentary  roll, 
•tatttum  regni  sni  remanent  apud  qnaa-  be  true  or  not,  there  u  enough  left  in  it 
dam  eertaa  peraonas  ad  temunanaum,  to  proTc  evecything  I  haT*  asserted  In 
diSDoIuto  pariiamento,  cartas  petitionee  the  text.  From  this  it  is  sufflclently 
In  eodem  parliamento  porrectas  protono  manifest  how  unfeirly  Carte  and  Hume 
-  minimi  expedltas.  Cujus  eoneesslonis  hare  drawn  a  parallel  between  this  self- 
colore  persons  sic  deputatas  proceaaernnt  deputed  l^glslattTe  commfaslon  and  that 
ad  alia  generallter  parllameotum  illnd  appointed  by  parliament  to  refonn  tht 
taofsntla ;  et  hoc  de  Toluntate  regis ;  in  adminlstratloii  deven  yean  bafbis. 
^erogatlODem  statds  parliamenti,  et  In  •  Bot.  Pari.  p.  872,  Hft. 
tfignnm  Inoommodom  totins  rigni  at 


286       HEREFORD  AND  NORFOLK.  Chap.  Vm.  Pabt  in. 

Qoarreiof  sach  paramount  rights  that  it  was  impossible 
HepefonT  ^  either  to  make  them  surrender  their  country's  free- 
ftDd  Norfolk,  dom,  or  to  destroy  it  without  their  consent.  But 
several  of  the  chief  men  had  fallen  or  were  involved  with 
the  party  of  Gloucester.  Two  who,  having  once  belonged 
to  it,  had  lately  plunged  into  the  depths  of  infamy  to  ruin 
their  former  friends,  were  still  perfectly  obnoxious  to  the  king, 
who  never  forgave  their  original  sin.  These  two,  Henry  of 
Bolingbroke,  earl  of  Derby,  and  Mowbray,  earl  of  Notting- 
ham, now  dukes  of  Hereford  and  Norfolk,  the  most  powerful 
of  the  remaining  nobility,  were,  by  a  singular  conjuncture, 
thrown,  as  it  were,  at  the  king's  feet.  Of  the  political  mys- 
teries which  this  reign  affords,  none  is  more  mexplicable  than 
the  quarrel  of  these  peers.  In  the  parliament  at  Shrewsbury, 
in  1398,  Hereford  was  called  upon  by  the  king  to  relate  what 
had  passed  between  the  duke  of  Norfolk  and  himself  in 
slander  of  his  majesty.  He  detailed  a  pretty  long  and  not 
improbable  conversation,  in  which  Norfolk  had  asserted  the 
king's  intention  of  destroying  them  both  for  their  old  offence 
in  impeaching  his  ministers.  Norfolk  had  only  to  deny  the 
charge  and  throw  his  gauntlet  at  the  accuser.  It  was  referred 
to  the  eighteen  commissioners  who  sat  afler  th^  dissolution, 
and  a  trial  by  combat  was  awarded.  But  when  this,  after 
many  delays,  was  about  to  take  place  at  Coventry,  Richard 
interfered  and  settled  the  dispute  by  condemning  Hereford  to 
banishment  for  ten  years  and  Norfolk  for  life.  This  strange 
determination,  which  treated  both  as  guilty  where  only  one 
could  be  so,  seems  to  admit  no  other  solution  than  the  king^s 
desire  to  rid  himself  of  two  peers  whom  he  feared  and  hated 
at  a  blow.  But  it  is  difficult  to  understand  by  what  means 
he  drew  the  crafty  Bolingbroke  into  his  snare.^  However 
this  might  have  been,  he  now  threw  away  all  appeai*ance  of 
moderate  government.  The  indignities  be  had  suffered  in 
the  eleventh  year  of  his  reign  were  still  at  his  heart,  a  desire 
to  revenge  which  seems  to  have  been  the  mainspring  of  his 
conduct.    Though  a  general  pardon  of  those  proceedings  had 

1  BeddM  the  oontempoTary  htetoriam,  ishment  of  hif  aoenaer  wu  wholly  Qu- 
ito m&y  read  t  fall  narradT*  of  theaa  jtutiiBabtfl  by  any  motlTes  that  w«  can 
prooeedinga  In  the  RoUb  of  Parliament,  diacoTer.  It  la  strange  that  Carte  ahould 
Tol.  ill.  p.  882.  It  appears  that  Mowbray  expreea  snrprise  at  the  aentence  upon  the 
waa  the  most  offending  party,  sinee,  In-  duke  of  Norfolk,  while  he  seems  to  eon- 
dependently  of  Hereford's  accaaation,  he  idder  that  upon  Ilersford  as  very  equity- 
is  chMged  with  openly  maintaining  the  ble.  But  he  viewed  the  whole  of  this 
appeals  made  in  the  flUse  parliament  of  reign,  and  of  those  that  ensaed,  with  th* 
Uie  eleTenth  of  the  king.    But  the  ban-  Jaandioed  eye  of  Jaoobitlsm 


XvoLiBR  CoHflT.   NECESSITY  FOB  DEPOSING  BICHABD.      287 

been  granted,  not  only  at  the  time,  but  in  his  own  last  parlia- 
ment, he  made  use  of  them  as  a  pretence  to  extort  money 
from  seventeen  counties,  to  whom  he  imputed  a  share  in  the 
rebellion.  He  compelled  men  to  confess  under  their  seals 
that  they  had  been  guilty  of  treason,  and  to  give  blank  cbli- 
gations,  which  his  officers  filled  up  with  large  sums.^  Upon 
the  death  of  the  duke  of  Lancaster,  who  had  passively  com- 
plied throughout  all  these  transactions,  Richard  refused  livery 
of  his  inheritance  to  Hereford,  whose  exile  implied  no  crime, 
and  who  had  letters-patent  enabling  him  to  make  his  attorney 
for  that  purpose  during  its  continuance.  In  short,  jq^c^g^^ 
his  government  for  nearly  two  years  was  altogether  ibr  depodnc 
tyrannical ;  and,  upon  the  same  principles  that  ^^  ^ 
cost  James  II.  his  throne,  it  was  unquestionably  far  more 
necessary,  unless  our  fathers  would  have  abandoned  all 
thought  of  liberty,  to  expel  Richard  II.  Far  be  it  from  us 
to  extenuate  the  treachery  of  the  Percies  towards  this  un- 
happy prince,  or  the  cruel  circumstances  of  his  death,  or  in 
any  way  to  extol  either  his  successor  or  the  chief  men  of 
that  time,  most  of  whom  were  ambitious  and  &ithless ;  but 
after  such  I6ng  experience  of  the  king's  arbitrary,  dissembling, 
and  revengeful  temper,  I  see  no  other  safe  course,  in  the  ac- 
tual state  of  the  constitution,  than  what  the  nation  concurred 
in  pursuing. 

The  reign  of  Richard  II.  is,  in  a  constitutional  light,  the 
most  interesting  part  of  our  earlier  history ;  and  it  has  been 
the  most  imperfectly' written.  Some  have  misrepresented 
the  truth  through  prejudice,  and  others  through  carelessness. 
It  is  only  to  be  understood,  and,  indeed,  there  are  great  diffi- 
culties in  the  way  of  understanding  it  at  all,  by  a  perusal  of 
the  rolls  of  parliament,  with  some  assistance  from  the  con- 
temporary historians,  Walsingham,  Knyghton,  the  anony- 
mous biographer  published  by  Heame,  and  Froissart  These, 
I  must  remark,  except  occasionally  the  last,  are  extremely 
hostile  to  Richard;  and  although  we  are  &r  from  being 
bound  to  acquiesce  in  their  opinions,  it  is  at  least  unwarrant- 
able in  modem  yrriters  to  sprinkle  their  margins  with  refer- 
ences to  such  authority  in  support  of  positions  decidedly 
opposite.' 

t  Bot.  Pferi.  1  H.  TV.  p.  490,  436;  t  Rlf  Mr  to  obwrv«  thst  WtdbmrVt 
Wabinchmm,  p.  868,  857 ;  Ottorburn,  p.  tMdmony  in*kM  most  In  tkror  of  th« 
uO;  Vfte  Rio.  n.  p.  147.  kin;,  or  rather  ngainst  bit  eneinlM.  wben 


288  CmCUHSTiJ^CES  ATTENDING   Chap.  Vm.  Pabt  HI. 

The  revolution  which  elevated  Henry  IV.  to  the  throne 
Cinnm-  was  certainlj  so  far  accomplished  by  force,  that 
StenSiMt  ^^  ^"^S  ^^^^  ^°  captivity,  and  those  who  might  still 
Henxy  iv.'s  adhere  to  him  in  no  condition  to  support  his  au- 
•***"*®"-  thority.  But  the  sincere  concurrence  which  most 
of  the  prelates  and  nobility,  with  the  mass  of  the  people,  gave 
to  changes  that  could  not  have  been  otherwise  effected  by  one 
80  unprovided  with  foreign  support  as  Henry,  proves  this 
revolution  to  have  been,  if  not  an  indispensable,  yet  a  na- 
tional act,  and  should  prevent  our  considering  the  Lancastrian 
kings  as  usurpers  of  the  throne.  Nothing  indeed  looks  so 
much  like  usurpation  in  the  whole  transaction  as.  Henry's 
remarkable  challenge  of  the  crown,  insinuating,  tliough  not 
avowing,  as  Hume  has  justly  animadverted  upon  it,  a  false 
and  ridiculous  title  by  right  line  of  descent,  and  one  equally 
unwarrantable  by  conquest.  The  course  of  proceedings  is 
worthy  of  notice.  As  the  renunciation  of  Richard  might 
well  pass  for  the  effect  of  compulsion,  there  was  a  strong 
reason  for  propping  up  its  instability  by  a  solemn  deposition 
from  the  throne,  founded  upon  specific  charges  of  misgovern- 
ment.  Again,  as  the  right  of  dethroning  a  monarch  was  no- 
where found  in  tlie  law,  it  was  equally  requisite  to  support  tliis 
assumption  of  power  by  an  actual  abdication.  But  as  neither 
one  nor  the  other  filled  up  the  duke  of  Lancaster's  wishes, 
who  was  not  contented  with  owing  a  crown  to  election,  nor 
seemed  altogether  to  account  for  the  exclusion  of  the  house 
of  l^Iarch,  he  devised  this  claim,  which  was  preferred  in  the 
vacancy  of  the  throne,  Richard's  cession  having  been  read 
and  approved  in  parliament,  and  the  sentence  of  deposition, 
^  out  of  abundant  caution,  and  to  remove  all  scruple,"  sol- 
emnly passed  by  seven  commissioners  appointed  out  of  the 
several  estates.  '^Afler  which  challenge  and  claim,"  says 
the  record,  "the  lords  spiritual  and  temporal,  and  all  the 
estates  there  present,  being  asked,  separately  and  togeth- 
er, what  they  thought  of  the  said  challenge  and  rlaim, 
the  said  estates,  with  the  whole  people,  without  any 
difiiculty  or  delay,  consented  that  the  said  duke  should 
reign  over  them."  ^    The  claim  of   Henry,  as  opposed'  to 


It  is  m<Mt  Talnable ;  that  Ift,  In  his  aeeonnt  Glonooster.    In  general  this  writer  Is  ni 

of  what  he  heard  In  the  JBnglish  ooort  in  informed  of  English  a&irs,  and  ODd^ 

1896.  I.  It.  c.  62,  wh«re  he  gires  a  Tery  lerring  to  be  quoted  as  aa  authoii^. 

tadUbnnt  chaxaotar  of  tiw  dnlca  of  i  Bot.  Pari.  p.  428. 


Rmcaim  Gohst.       HENRY  TV.'S  ACCESSION.  289 

tliat  of  the  earl  of  March,  was  indeed  ridiculous ;  but  it  is 
bj  no  means  evident  that,  in  such  cases  of  extreme  urgency 
as  leave  no  security  for  the  common  weal  but  the  deposition 
of  a  reigning  prince,  there  rests  any  positive  obh'gation  upon 
the  estates  of  the  realm  to  iill  his  place  with  the  nearest  heir. 
A  revolution  of  this  kind  seems  rather  to  defeat  and  con- 
found all  prior  titles;  though  in  the  new  settlement  it  will 
commonly  be  prudent,  as  well  as  equitable,  to  treat  them  with 
some  regard.  Were  this  otherwise  it  would  be  hard  to  saj 
why  William  III.  reigned  to  the  exclusion  of  Anne,  or  even 
of  the  Pretender,  who  had  surely  committed  no  offence  at 
that  time ;  or  why  (if  such  indeed  be  the  true  construction 
of  the  Act  of  Settlement)  the  more  distant  branches  of  the 
royal  stock,  descendants  of  Henry  YU.  and  earlier  kings, 
have  been  cut  off  from  their  hope  of  succession  by  the  re- 
striction to  the  heirs  of  the  princess  Sophia. 

In  this  revolution  of  1399  there  was  as  remarkable  an 
attention  shown  to  the  formalities  of  the  constitution,  allow- 
ance made  for  the  men  and  the  times,  as  in  that  of  1688. 
Tlie  parliament  was  not  opened  by  commission ;  no  one  took 
the  office  of  president ;  the  commons  did  not  adjourn  to  their 
own  chamber ;  they  chose  no  speaker ;  the  name  of  parliar 
ment  was  not  taken,  but  that  only  of  estates  of  the  realm. 
But  as  it  would  have  been  a  violation  of  constitutional  prin- 
ciples to  assume  a  parliamentary  character  without  the  king's 
commission,  though  summoned  by  his  writ,  so  it  was  stiU 
more  essential  to  limit  their  exercise  of  power  to  the  neces- 
sity of  circumstances.'  Upon  the  cession  of  the  king,  as  upon 
his  death,  the  parliament  was  no  more ;  its  existence,  as  the 
council  of  the  sovereign,  being  dependent  upon  his  will.  The 
actual  convention  summoned  by  the  writs  of  Richard  could  not 
legally  become  the  parliament  of  Henry;  and  the  validity 
of  a  statute  declaring  it  to  be  such  would  probably  have  been 
questionable  in  that  age,  when  the  power  of  statutes  to  alter 
the  original  principles  of  the  common  law  was  by  no  means 
so  thoroughly  recognized  as  at  the  Restoration  and  Revolu- 
tion. Yet  Henry  was  too  well  pleased  with  his  friends  to 
part  with  them  so  readily ;  and  he  had  much  to  effect  before 
the  fervor  of  their  spirits  should  abate.  Hence  an  expedient 
was  devised  of  issuing  writs  for  a  new  parliament,  returnable 
in  six  days.  These  neither  were  nor  could  be  complied  with ; 
but  the  same  members  as  had  deposed  Richard  sat  in  the 

VOL.  11.  — M.  19 


290  ADVANCES  OF  rHE  CONSTITUTION    Chap.  Vm.  Past  HI. 

new  parliament,  which  was  regalarlj  opened  hj  Henry's 
oonunissioner  as  if  thej  had  been  dulj  elected.^  In  this 
contrivance,  more  than  in  all  the  rest,  we  may  trace  the  hand 
of  lawyers. 

If  we  look  back  from  the  accession  of  Henry  IV.  to  that 
Batrospect  ®^  ^  prcdecessor,  the  constitutional  authority  of 
of  ihe  proff-  the  housc  of  commons  will  be  perceived  to  have 
eonsdtauon  made  Surprising  progress  during  the  course  of 
Bicluud  n     twdty-two  years.     Of  the  three  capital  points  in 

contest  while  Edward  reigned,  that  money  could 
not  be  levied,  or  laws  enacted,  without  the  commons'  consent, 
and  that  the  administration  of  government  was  subject  to 
their  inspection  and  control,  the  first  was  absolutely  decid- 
ed in  their  favor,  the  second  was  at  least  perfectly  admitted 
in  principle,  and  the  last  was  confirmed  by  frequent  exercise. 
The  commons  had  acquired  two  additional  engines  of  im- 
mense efficiency ;  one,  the  right  of  directing  the  application 
of  subsidies,  and  calling  accountants  before  them ;  the  other, 
that  of  impeaching  the  king's  ministers  for  misconduct    All 

these  vigorous  shoots  of  liberty  throve  more  and 
under  the  more  Under  the  three  kings  of  the  house  of  Lan- 
JjJJJ^^      caster,  and  (irew  such  strength  and  nourishment 

from  the  generous  heart  of  England,  that  in  after- 
times,  and  in  a  less  prosperous  season,  though  checked  and 
obstructed  in  their  growth,  neither  the  blasts  of  arbitrary 
power  could  break  them  off,  nor  the  mildew  of  servile  opin- 
ion cause  them  to  wither.  I  shall  trace  the  progress  of  par- 
liament till  the  civil  wars  of  York  and  Lancaster:  1.  in 
maintaining  the  exclusive  right  of  taxation ;  2.  in  directing 
and  checking  the  public  expenditure ;  3.  in  making  supplies 
depend  on  the  redress  of  grievances;  4.  in  securing  the  peo- 
ple against  illegal  ordinances  and  interpolations  of  the  stat- 
utes ;  5.  in  controlling  the  royal  administration ;  6.  in  pun- 
ishing bad  ministers;  and  lastly,  in  establishing  their  own 
immunities  and  privileges. 

1.  The  pretence  of  levying  money  without  consent  of  pai^ 
liament  expired  with  EdwaM  HI.,  who  had  asserted  it,  ap 
we  have  seen,  in  the  very  last  year  of  his  reign.  A  great 
council  of  lords  and  prelates,  summoned  in  the  second  year 

I  If  proof  eonld  be  required  of  any-  persons.  It  maj  be  Iband  In  their  wrftt 
thing  to  lelf-evident  aa  that  these  as-  ofexpenses,  as  published  by  Piynne,  4th 
•emblies  oonslsted  of  ezact^  the  same    Register,  p.  460. 


EvoLisH  Const.    UNDER  THE  HOUSE  OF  LANCASTER.       291 

of  his  sacccssor,  declared  that  they  could  advise  no  remedy 
for  the  king's  necessities  without  laying  taxes  on  the  people, 
which  could  only  be  granted  in  parliament^  Nor  was  Rich- 
ard ever  accused  of  illegal  tallages,  the  frequent  theme  of 
remonstrance  under  Edward,  unless  we  may  conjecture  that 
this  charge  is  implied  in  an  act  (11  R.  II.  c  9)  which  annuls 
all  impositions  on  wool  and  leather,  without  consent  of  par- 
liament, if  any  there  he}  Doubtless  his  innocence  in  this 
respect  was  the  effect  of  weakness ;  and  if  the  revolution  of 
1399  had  not  put  an  end  to  his  newly-acquired  despotism, 
this,  like  every  other  right  of  his  people,  would  have  been 
swept  away.  A  less  palpable  means  of  evading  the  consent 
of  the  commons  was  by  the  extortion  of  loans,  and  harassing 
those  who  refused  to  pay  by  summonses  before  the  coundL 
These  loans,  the  frequent  resource  of  arbitrary  sovereigns  in 
later  times,  are  first  complained  of  in  an  early  parliament 
of  Richard  II. ;  and  a  petition  is  granted  that  no  man  shall 
be  compelled  to  lend  the  king  money.'  But  how  little  this 
was  regarded  we  may  infer  from  a  writ  directed,  in  1386,  to 
some  persons  in  Boston,  enjoining  them  to  assess  every  person 
wno  had  goods  and  chattels  to  the  amount  of  twenty  pounds, 
in  his  proportion  of  two  hundred  pounds,  which  the  town  had 
promised  to  lend  the'king;  and  giving  an  assurance  that  this 
shall  be  deducted  from  the  next  subsidy  to  be  granted  by 
parliament  Among  other  extraordinary  parts  of  this  letter 
is  a  menace  of  forfeiting  life,  limbs,  and  property,  held  out 
against  such  as  should  not  obey  these  commissioners.^  Afler 
his  triumph  over  the  popular  party  towards  the  end  of  his 
reign,  he  obtained  large  sums  in  this  way. 

Under  the  Lancastrian  kings  thero  is  much  less  appearance 
of  raising  money  in  an  unparliamentary  course.  Henry  FV. 
obtained  an  aid  from  a  great  council  in  the  year  1400 ;  but 
they  did  not  pretend  to  charge  any  besides  themselves ; 
though  it  seems  that  some  towns  afterwards  gave  the  king  a 
contribution.*  A  few  years  afterwards  he  dirocts  the  sheriffs 
to  call  on  the  richest  men  in  their  counties  to  advance  the 

iail.n.p.66.  •2B.n.p.63.    This  did  not  llndlta 

*  It  la  poiltif«lT  laid  down  by  the  waj  to  the  ■tatal«-book. 

Mserten  of  ciTil  liberty,  ta  the  great  *  Rjmer,  t.  vli.  p.  644. 

caMofimpoeltloQa(Howeira  State  TrlalB,  •  Carte,  toI.  li.  p.  64a     Sir  M.  Hale 

▼ol.  U.  p.  448,  607),  that  no  precedenta  obaerrea  that  he  flnda  no  eomplalnta  of 

ft>r  arbttrerjr  taxation  of  ezporta  or  Im-  illegal  impodtiona  nnder  the  kingaof  the 

porta  oeour  from  the  aooeaaion  of  Rich-  honae  of  Lanoaater.    HaxgraTe^a  Tinota, 

■Id  n.  to  the  reign  of  Marr  vol.  i.  p.  184 


292  CONDITIONS  OF  SUPPLY.    Chap.  VTO.  Pabt  UX 

money  voted  by  parliament  This,  if  any  compulsion  was 
threatened,  is  an  instance  of  overstrained  prerogative,  though 
consonant  to  the  practice  of  the  late  reign.^  There  is,  how- 
ever, an  instance  of  very  arbitrary  conduct  with,  respect  to  a 
grant  of  money  in  the  minority  of  Henry  VI.  A  subsidy 
had  been  granted  by  parliament  upon  goods  imported  under 
certain  restrictions  in  favor  of  the  merchants,  with  a  provision 
that,  if  these  conditions  be  not  observed  on  the  king's  part, 
then  the  grant  should  be  void  and  of  no  effect'  But  an 
entry  is  made  on  the  roll  of  the  next  parliament  that,  ^  where- 
as some  disputes  have  arisen  about  the  ^*ant  of  the  last  sub- 
sidy, it  is  declared  by  the  duke  of  Bedford  and  other  lords 
in  parliament,  with  advice  of  the  judges  and  others  learned 
in  the  law,  that  the  said  subsidy  was  at  all  events  to  be  col- 
lected and  levied  for  the  king's  use;  notwithstanding  any 
conditions  in  the  grant  of  the  said  subsidy  contained."  *  The 
commons,  however,  in  making  the  grant  of  a  fresh  subsidy 
in  this  parliament,  renewed  their  former  conditions,  with  the 
addition  of  another,  that  'Mt  ne  no  part  thereof  be  beset  ne 
dispensed  to  no  other  use,  but  only  in  and  for  the  defense  of 
the  said  roialme."  ^ 

2.  The  right  of  granting  supplies  would  bave  been  very 
Appropiia-  incomplete,  had  it  not  been  accompanied  with 
tsoa  of  that  of  directing  their  application.    The  principle 

■nppu«'  Qf  appropriating  public  moneys  began,  as  we  have 
seen,  in  the  minority  of  Richard ;  and  was  among  the  best 
fi-uits  of  that  period.  It  was  steadily  maintained  under  the 
new  dynasty.  The  parliament  of  6  H.  IV.  granted  two  fif- 
teenths and  two  tenths,  with  a  tax  on  skins  and  wool,  on  con- 
dition that  it  should  be  expended  in  the  defence  of  the  king 
dom,  and  not  otherwise,  as  Thomas  lord  Fumival  and  Sir 
John  Pelham,  ordained  treasurers  of  war  for  thb  parliament, 
to  receive  the  said  subsidies,  shall  account  and  answer  to  the 
commons  at  the  next  parliament  These  treasurers  were 
sworn  in  parliament  to  execute  their  trusts.*  A  similar  pre- 
caution was  adopted  in  the  next  session.* 
Attempt  to  3.  The  commons  made  a  bold  attempt  in  the 
J^^*5"w>iy  second  year  of  Henry  IV.  to  give  the  strongest 
redraas  of  Security  to  their  claims  of  redress,  by  inverting 
grieTaoccB.     ^j^^  usual  coursc  of  parliamentary  proceedings. 

1  Rymer,  t.  -vlli.  p.  412, 488.  «  Id.  p.  SOS. 

<  Rot.  Pari.  tol.  ir.  p.  216.  *  Id.  toI.  itt.  p.  MS. 

*  Id.  p.  80L  •  Id.  p.  MS 


ftiroLisH  Const.      RIGHTS  OF  THE  COMMONS.  293 

It  was  usual  to  answer  their  petitions  on  the  last  day  of 
the  session,  which  put  an  end  to  all  further  discussion  upon 
them,  and  prevented  their  making  the  redress  of  grievances 
a  necessary  condition  of  supply.  They  now  requested  that 
an  answer  might  be  given  before  they  made  their  grant  of 
subsidy.  This  was  one  of  the  articles  which  Richard  II.'s 
judges  had  declared  it  high  treason  to  attempt.  Henry  was 
not  inclined  to  make  a  concession  which  would  virtually  have 
removed  the  chief  impediment  to  the  ascendency  of  parlia- 
ment He  first  said  that  he  would  consult  with  the  lords, 
and  answer  according  to  their  advice.  On  the  last  day  of 
the  session  the  commons  were  informed  that  ^  it  had  never 
been  known  in  the  time  of  his  ancestors  that  they  should  have 
their  petitions  answered  before  they  had  done  all  their  busi- 
ness  in  parliament,  whether  of  granting  money  or  any  other 
concern ;  wherefore  the  king  will  not  alter  the  good  customs 
and  usages  of  ancient  times."  ^ 

Notwithstanding  the  just  views  these  parliaments  appear 
generally  to  have  entertained  of  their  power  over  the  public 
purse,  that  of  the  third  of  Henry  V.  followed  a  precedent 
fi-om  the  worst  times  of  Richard  II.,  by  granting  the  king  a 
subsidy  on  wool  and  leather  during  his  life. '  This,  an  histo- 
rian tells  us,  Henry  IV.  had  vainly  labored  to  obtain ;'  but  the 
taking  of  Harfleur  intoxicated  the  English  with  new  dreams 
of  conquest  in  France,  which  their  good  sense  and  constitu- 
tional jealousy  were  not  firm  enough  to  resist  The  con* 
tinned  expenses  of  the  war,  however,  prevented  this  grant 
from  becoming  so  dangerous  as  it  might  have  been  in  a  sea- 
son of  tranquillity.  Henry  Y.,  like  his  father,  convoked  par- 
liament almost  in  every  year  of  his  reign. 

4.  It  had  long  been  out  of  all  question  that  the  legislature 
consisted  of  the  king,  lords,  and  commons ;  or,  in  j^... 
stricter  language,  that  the  king  could  not  make  or  Hghuor^ 
repeal  statutes  without  the  consent  of  parliament  ~£52S|i^^ 
But  Uiis  fundamental  maxim  was  still  frequently 
defeated  by  various  acts  of  evasion  or  violence ;  which,  though 
protested  against  as  illegal,  it  was  a  difficult  task  to  prevent 
The  king  sometimes  exerted  a  power  of  suspending  the  ob- 
servance of  statutes,  as  in  the  ninth  of  Richard  II.,  when  a 
petition  that  all  statutes  might  be  confirmed  is  granted,  with 

t  Aot.  PuL  foL  la.  p.  468.  t  u.  toL  It.  p.  68. 

•  WaJftDgbam,  |^  879 


294  DISPENSING  POWER   Chap.  Vm.  Part.  IDL 

an  exception  as  to  one  passed  in  the  last  parliament,  forbid* 
ding  the  judges  to  take  fees,  or  give  counsel  in  cases  where 
the  king  was  a  partj ;  which,  ^  because  it  was  too  severe  and 
needs  declaration,  the  king  would  have  of  no  effect  till  it 
should  be  declared  in  pariiament"  ^  The  apprehension  of 
the  dispensing  prerogative  and  sense  of  its  illegality  are  man- 
ifested bj  the  warj  terms  wherein  the  commons,  in  one  of 
Bichard's  parliaments,  "  assent  that  the  king  make  such  su^ 
ferance  respecting  the  statute  of  provisors  as  shall  seem  rea- 
sonable to  him,  so  that  the  said  statute  be  not  repealed ;  and, 
moreover,  that  the  commons  may  disagree  thereto  at  the  next 
parliament,  and  resort  to  the  statute ; "  with  a  protestation  that 
this  assent,  which  is  a  novelty  and  never  done  before,  shall 
not  be  drawn  into  precedent ;  praying  the  king  that  this  prot- 
estation may  be  entered  on  the  roll  of  parliament^  A  peti- 
tion, in  one  of  Henry  IV.'s  parliaments,  to  limit  the  num- 
ber of  attorneys,  and  forbid  filazers  and  prothonotaries  from 
practising,  having  been  answered  favorably  as  to  the  first 
point,  we  find  a  marginal  entry  in  the  roll  that  the  prince 
and  council  had  respited  the  execution  of  this  act.* 

The  dispensing  power,  as  exercised  in  favor  of  individuals, 
DiBpeiuiiis  ^  quite  of  a  different  character  firom  this  general 
power  of  um  Suspension  of  statutes,  but  indirectly  weakens  the 
•^^^  sovereignty  of  the  legislature.    This  power  was 

exerted,  and  even  recognized,  throughout  all  the  reigns  of 
the  Flantagenets.  In  tiie  firat  of  Henry  V.  the  commons 
pray  that  the  statute  for  driving  aliens  out  of  the  kingdom 
be  executed.  The  king  assents,  saving  his  prerogative  and 
his  right  of  dispensing  with  it  when  he  pleased.  To  which 
the  commons  roplied  that  their  intention  was  never  other 
wise,  nor,  by  God's  help,  ever  should  be.  At  the  same 
time  one  Rees  ap  Thomas  petitions  the  king  to  modify  or 
dispense  with  the  statute  prohibiting  Welchmen  irom  pur- 
chasing lands  in  England,  or  the  English  towns  in  Wales ; 
which  the  king  grants.  In  the  same  parliament  the  com- 
mons pray  that  no  grant  or  protection  be  made  to  any  one 
in  contravention  of  the  statute  of  provisors,  saving  the  king^s 

1  WaUngham,  p.  210.    Ruffhoad  ob-  •  16  B.  II.  p.  SB6.    See,  too,  16  R.  IL 

Mrres  in  toe  margin  upon  thii  statute,  p.  801,  when  the  aama  powvr  is  nnnnd 

%  B.  II.  c.  8,  that  it  l8  repealed,  but  in  H.  IV.'iparliamenta. 

doee  not  take  notioe  what  sort  of  repeal  *  18  B.  lY.  p.  818. 
It  had. 


ExousB  Const.  OF  THE  CROWN.  295 

prerogative.     He   merely   answers,  ''Let   the  statates  be 
observed :  *  evading  any  allusion  to  his  dispensing  power.^ 

It  has  been  observed,  under  the  reign  of  Edward  III., 
that  the  practice  of  leaving  statutes  to  be  drawn  up  by  the 
judges,  from  the  petition  and  answer  jointly,  afler  a  disso- 
lution of  parliament,  presented  an  opportunity  of  falsifying 
the  intention  of  the  legblature,  whereof  advantage  was 
oflen  taken.  Some  very  remarkable  instances  of  this  fraud 
occurred  in  the  succeeding  reigns. 

An  ordinance  was  put  upon  the  roll  of  parliament,  in 
the  fifth  of  Richard  11.,  empowering  sheriffs  of  countied 
to  arrest  preachers  of  heresy  and  their  abettors,  and  de- 
tain them  in  prison  till  they  should  justify  themselves  before 
the  church.  This  was  introduced  into  the  statutes  of  the 
year ;  but  the  assent  of  lords  and  commons  is  not  expressed. 
In  the  next  parliament  the  commons,  reciting  this  ordinance, 
declare  that  it  was  never  assented  to  or  granted  by  them,  but 
what  had  been  proposed  in  this  matter  was  without  their  con* 
currence  (that  is,  as  I  conceive,  had  been  rejected  by  them), 
and  pray  that  this  statute  be  annulled;  for  it  was  never 
their  intent  to  bind  themselves  or  their  descendants  to  the 
bishops  more  than  their  ancestors  had  been  bound  in  times 
past  The  king  returned  an  answer,  agreeing  to  this  petition. 
Nevertheless  the  pretended  statute  was  untouched,  and  ise- 
mains  still  among  our  laws ;  *  unrepealed,  except  by  desue 
tude,  and  by  inference  from  the  acts  of  much  later  times. 

This  commendable  reluctance  of  the  commons  to  let  the 
clergy  forge  chains  for  them  produced,  as  there  is  much  ap- 
pearance, a  similar  violation  of  their  l^slative  rights  in  the 
next  reign  The  statute  against  heresy  in  the  second  of  Hen- 
ry IV.  is  not  grounded  upon  any  petition  of  the  commons,  but 
only  upon  one  of  the  clergy.  It  is  said  to  be  enacted  by  con- 
sent of  the  lords,  but  no  notice  is  taken  of  the  lower  house 
in  the  parliament  roll,  though  the  statute  reciting  the  petition 
asserts  the  commons  to  have  joined  in  it.*    The  petition  and 

1  Bot.  Pari.  T.  4.  H.  V.  p  S,  9.  eonntlas  should  be  nnnited  to  tbom,  la 

*  6  a.  n.  stftt  2,  e.  6 ;  Rot.  Purl,    not  fonnded  apon  any  peUtion  that  ap- 

6  a.  II.  p.  141.     Some  other  instancea    pears   on   the  roll;   and  probably,  by 


of  the  commons  attempting  to  prerent  making  search,  other  instances  equally 

these  unJUr  practices  are   adduced  by  flagrant  might  be  disoorered. 

Buffhead,  in  his  preftce  to  the  Statutes,  >  There  had  been,  howerer,  a  petitioa 

and   in  Piynne's    pre&oe   to  Cotton's  of  the  commons  on  the  same  sulyeot.  ex* 

Abridgment  ot  the  Heoords.     The  aet  prsssed  In  very  general  terms,  on  wnieli 


la  R.  II.  Stat.  1,  0.  16,  that  the  king's    this  terrible  superstruetuxo  might  art* 
eastles  and  gaols  which  had  been  sepa- 
mled  from  the  body  of  the  a^JoiDing 


296  DISPENSING  POWER    Chap.  Vm.  Pakt  UL 

the  statute  are  both  in  Latin,  which  is  unusual  in  the  laws  of 
this  time.  In  a  subsequent  petition  of  the  commons  this  act 
is  styled  "  the  statute  made  in  the  second  year  of  your  maj- 
esty's reign  at  the  request  of  the  prelates  and  clergy  of  your 
kingdom ; "  which  affords  a  presumption  that  it  had  no  reg- 
ular assent  of  parliament^  And  the  spirit  of  the  commons 
during  this  whole  reign  being  remarkably  hostile  to  the  church, 
it  would  have  been  hardly  possible  to  obtain  their  consent  to 
60  penal  a  law  against  heresy.  Several  of  their  petitions  seem 
designed  indireclly  to  weaken  its  efficacy." 

These  infringements  of  their  most  essential  right  were  re- 
sisted by  the  commons  in  various  ways,  according  to  the  meas* 
ure  of  their  power.  In  the  fifth  of  Richard  II.  they  request 
the  lords  to  let  them  see  a  certain  ordinance  before  it  is  en- 
grossed.^ At  another  time  they  procured  some  of  their  own 
members,  as  well  as  peers,  to  be  present  at  engrossing  the 
roll.  At  length  they  spoke  out  unequivocally  in  a  memora- 
ble petition  which,  besides  its  intrinsic  importance,  is  deserv- 
ing of  notice  as  the  earliest  instance  in  which  the  house  of 
commons  adopted  the  English  language.  I  shall  present  itB 
yenerable  orthography  without  change. 

^  Oure  soverain  lord,  youre  humble  and  trewe  lieges  that 
ben  come  for  the  comune  of  youre  lond  bysechyn  onto 
youre  rizt  riztwesnesse,  That  so  as  hit  hath  ever  be  thair  libte 
and  fredom,  that  thar  sholde  no  statut  no  lawe  be  made  of- 
fiasse  than  theye  yaf  therto  their  assent ;  consideringe  that  the 
oomune  of  youre  lond,  the  whiche  that  is,  and  ever  kith  be, 
a  membre  of  youre  parlemente,  ben  as  well  assenters  as  peti- 
cioners,  that  fro  this  tyme  foreward,  by  comnlcynte  of  the 
comune  of  any  myschief  axk3rnge  remedie  ;^  mouthe  of 
their  speker  for  the  comune,  other  ellys  by  petition  wnten,  that 
ther  never  be  no  lawe  made  theruppon,  and  engrossed  as  statut 
and  lawe,  nother  by  addicions,  nother  by  diminucions,  by  no 
manner  of  terme  ne  termes,  the  whiche  tliat  sholde  cliaunge 
the  sentence,  and  the  entente  axked  by  the  speker  mouthe,  or 
the  petitions  beforesmd  yeven  up  yn  writyng  by  the  manere 

1  Rot.  Pari.  6  R.  n.p.  826.  tht  Inng  and  pters  of  the  rfolm.    Thli 

s  We  find  a  remarkable  petition  In  8  seems  to  supersede  the  burning  statut* 

H.  IV.,  professedly  aimed  agafnst  the  of  2  H.  IV.,  and  the  spiritual  cognisance 

Lollards,  but  intended,  as  I  strongly  sus-  of  heresy.     Rot.  Pari.  p.  683.     See,  too, 

pect,  in  their  IkTor.     It  condemns  per-  p.    626.      The   petition   was    expressly 

sons  preaching  against  the  catholic  (kith  granted ;  but  the  clergy,  I  suppotie,  pre* 

or  sacraments  to  imprimnment  till  the  Tented  its  appearing  on  the  statute  col), 

next  parliament,  whore  they  were  toabide  >  Rot.  Pari.  Tol.  ill.  p  102 
•uoh  Jad(ment  as  should  be  rendered  bjf 


Esoiun  CoirsT.  OF  THE  CROWN.  297 

forsaid,  withoute  assente  of  the  forsaid  comune.  Consider^ 
inge,  oure  soverain  lord,  that  it  is  not  in  no  wyse  the  entente 
of  joore  oomunes,  zif  yet  be  so  that  they  axke  you  by  spe- 
kyng,  or  by  writyng,  two  thynges  or  three,  or  as  manye  as 
theym  lust :  But  that  ever  it  stande  in  the  fredom  of  youre 
hie  regalie,  to  graunte  whiche  of  thoo  that  you  lust,  and  to 
werune  the  remanent. 

^  The  kyng  of  his  grace  especial  graunteth  that  fro  hens* 
forth  nothyng  be  enacted  to  the  peticions  of  his  comune  that  be 
oontrarie  of  hir  askyng,  wharby  they  shuld  be  bounde  with* 
oute  their  assent.  Savyng  alwey  to  our  liege  lord  his  real  pre- 
rogatif,  to  graunte  and  denye  what  him  lust  of  their  petitions 
and  askynges  aforesaid."  ^ 

Notwithsttmding  the  fulness  of  this  assent  to  so  important  a 
petition  we  find  no  vestige  of  either  among  the  statutes,  and 
the  whole  transaction  is  unnoticed  by  those  historians  who 
have  not  looked  into  our  original  records.  If  the  compilers 
of  the  statute-roll  were  able  to  keep  out  of  it  the  very  provi- 
sion that  was  intended  to  check  their  fraudulent  machinations, 
it  was  in  vain  to  hope  for  redress  without  altering  the  estab- 
lished practice  in  this  respect ;  and  indeed,  where  there  was 
DO  design  to  falsify  the  roll  it  was  impossible  to  draw  up  stat- 
utes which  should  be  in  truth  the  acts  of  the  whole  legislature, 
so  long  as  the  king  continued  to  grant  petitions  in  part,  and  to 
engraft  new  matter  upon  them.  Such  was  still  the  case  till 
the  commons  hit  upon  an  effectual  expedient  for  screening 
themselves  against  these  encroachments,  which  has  lasted 
without  alteration  to  the  present  day.  This  was  the  intro- 
duction of  complete  statutes  under  the  name  of  bills,  instead 
of  tlie  old  petitions ;  and  these  containing  the  royal  assent 
and  the  whole  form  of  a  law,  it  became,  though  not  quite  im- 
mediately,' a  constant  principle  that  the  king  must  admit  or 
reject  them  without  qualification.  This  alteration,  which 
wrought  an  extraordinary  effect  on  the  character  of  our  con- 
stitution, was  gradually  introduced  in  Henry  VI.'s  reign.' 

1  Rot.  Pari.  Tol.   It.    p.   22.      It  la  *  Henry  VI.  and  Edward  IV.  In  torn* 

cnrioos  that  the  authori  of  the  Parlfa-  caeee  passed  bills  with  sundry  proTlsiona 

mentary  History  aay  that  the  roll  of  this  annexed  by  themselTes.     Thus  the  act 

parliament  is  loetf  and  consequently  snp-  Ibr  resumption  of  ffrants,  4  K.  IV.,  waa 

press  altogether  this  important  petition,  encumbered  with  289  clauses  in  faror  of 

Instead   of  which    they-  give,  as  their  so  many  persons  whom  the  king  meant 

^hion  b,  impertinent  speecnes  out  of  to  exempt  from  Its  operation ;  and  the 

Holingshed,    which    are    certainly    not  same  was  done  in  other  acts  of  the  sama 

Cnuine,  and  would  be  of  no  mine  If  description.    Hot.  Pari,  rol  ▼.  p.  617. 

m  warn  *»  *  Tba  nudattooi  of  mtk.  liMuto,  as 


298      INTERFERENCE  OF  PARLIAMENT    Chap.  VHI.  Part  m 

From  the  first  jears  of  Henrj  Y.,  though  not,  1  tlink, 
earlier,  the  commons  began  to  concern  themselves  with  the 
petitions  of  individuals  to  the  lords  or  council.  The  nature 
of  the  jurisdiction  exercised  by  the  latter  will  be  treated  more 
fully  hereafter ;  it  is  only  necessary  to  mention  in  this  place 
that  many  of  the  requests  preferred  to  them  were  such  as 
could  not  be  granted  without  transcending  the  boundaries  of 
law.  A  just  inquietude  as  to  the  encroachments  of  the  king's 
council  had  long  been  manifested  by  the  commons ;  and  find- 
ing remonstrances  ineffectual,  they  took  measures  for  prevent- 
ing such  usurpations  of  legislative  power  by  introducing  their 
own  consent  to  private  petitions.  These  were  now  presented 
by  the  hands  of  the  commons,  and  in  very  many  instances 
passed  in  the  form  of  statutes  with  the  express  assent  of  all 
parts  of  the  legislature.  Such  was  the  origin  of  private  bills, 
which  occupy  the  greater  part  of  the  rolls  in  Henry  V.  and 
YI.'s  parliament  The  commons  once  made  an  ineffectual 
endeavor  to  have  their  consent  to  aU  petitions  presented  to 
the  council  in  parliament  rendered  necessary  by  law;  if  I 
rightly  apprehend  the  meaning  of  the  roll  in  this  place,  which 
seems  obscure  or  corrupt.  ^ 

5.  If  the  strength  of  the  commons  had  lain  merely  in  the 
interferaQM  Weakness  of  the  crown,  it  might  be  inferred  that 
"'ont'**^  such  harassing  interference  with  the  administration 
the  royal  of  affairs  as  the  youthful  and  frivolous  Richard 
•Apenditnre.  ^^  compelled  to  endure  would  have  been  sternly 
repelled  by  his  experienced  successor.  But,  on  the  contrary, 
the  spirit  of  Richard  might  have  rejoiced  to  see  that  his 
mortal  enemy  suffered  as  hard  usage  at  the  hands  of  parlia- 
ment as  himself.  Af^er  a  few  years  the  government  of 
Henry  became  extremely  unpopular.   Perhaps  his  dissension 

DOW  printed,   from  the  pftrllamentaiy  pariiament  In  a  perftet  shape,  and  r^ 

roll,  whether  In  form  or  snbstaooe,  are  ceiviog  first  the  assent  of  lords  and  oom- 

noticed   in   Cotton's    Abridgment.      It  mons,  and  finally  that  of  the  king,  who 

may  be  worth  while  to  consult  the  pref-  has  no  power  to  modify  them,  mast  b« 

are  to  Ruffhead^s  edition  of  the  Statutes,  deemed  to  proceed,  and  deriTe  their  eS- 

where  this  sul^t  is  treated  at  some  cacy,  ftrom  the  Joint  concurrence  of  all 

bngth.  the  three.    It  is  said,  indeed,  at  a  muoh 

Perhaps   the   triple   dlrtsion   of   our  earlier  time,  that  le  ley  de  la  terre  esl 

legislature  may  be  dated  from  this  in-  fkit  en   parlement   par   le   roi,  et   les 

noTation.     For  as  it   is  impossible  to  seigneurs  esplrituds  et  temporeUi,  et  tout 

deny  that,  while  the  king  f  romuloated  a  la  communaut^  du  royaume.   Rot.  Pari 

statute  founded  upon  a  men*  petiuon.  he  Tol.  ill.  p.  298.    But  this,  I  most  allow, 

was  himself  the  real  legislator,  so  I  think  was  In  tQe  riolent  session  of  11  Rie.  11., 

It  is  equally  fidr  to  assert,  notwithstand-  the  constitutional  authori^  of  whkh  if 

Ing  the  former  preamble  of  oar  statutes,  not  to  be  h.^ly  prized, 

that  laws  brought  into  either  house  of  i  8  H.  V.  toI.  It.  p.  127. 


RvousB  COMST.       WITH  ROYAL  EXFENDITUKE.  299 

witli  the  great  family  of  Percy,  which  had  placed  him  on  the 
throne,  and  was  regarded  with  partiality  by  the  people,^ 
chiefly  contributed  to  this  alienation  of  their  attachment. 
The  commons  requested,  in  the  fifth  of  his  reign,  that  cer* 
tain  persons  might  be  removed  from  the  court;  the  lords 
concurred  in  displacing  four  of  these,  one  being  the  king*8 
confessor.  Henry  came  down  to  parliament  and  excused 
these  four  persons,  as  knowing  no  special  cause  why  they 
should  be  removed ;  yet,  well  understanding  that  what  the 
lords  and  commons  should  ordain  would  be  for  his  and  hit 
kingdom's  interest,  and  therefore  anxious  to  conform  himself 
to  their  wishes,  consented  to  the  said  ordinfmce,  and  chained 
the  persons  in  question  to  leave  his  palace ;  adding,  that  he 
would  do  as  much  by  any  other  about  his  person  whom  he 
should  find  to  have  incurred  the  iU  affection  of  his  people.* 
It  was  in  the  same  session  that  the  archbishop  of  Canterbury 
was  commanded  to  declare  before  the  lords  the  king's  inten- 
tion respecting  his  administration ;  allowing  that  some  things 
had  been  done  amiss  in  his  court  and  household ;  and  there- 
fore, wishing  to  conform  to  the  will  of  Grod  and  laws  of  th^ 
land,  protested  that  he  would  let  in  future  no  letters  of  signet 
or  privy  seal  go  in  disturbance  of  law,  beseeched  the  lordi 
to  put  lus  household  in  order,  so  that  every  one  might  be  paid 
and  declared  that  the  money  granted  by  the  commons  for  tho 
war  should  be  received  by  treasurers  appointed  in  parlia- 
ment, and  disbursed  by  them  for  no  other  purpose,  unless  in 
case  of  rebellion.  At  the  request  of  the  commons  he  named 
the  members  of  his  privy  council ;  and  did  the  same,  with 
some  variation  of  persons,  two  years  afterwards.  These, 
though  not  nominated  with  the  express  consent,  seem  to  have 
had  the  approbation  of  the  commons,  for  a  subsidy  is  granted 
in  7  H.  IV.,  among  other  causes,  for  ^  the  great  trust  that 
the  commons  have  in  the  lords  lately  chosen  and  ordained  to 
be  of  the  king's  continual  coundl,  that  there  shall  be  better 
management  than  heretofore."  ' 

In  the  sixth  year  of  Henry  the  parliament,  which  Sir  £• 
G)ke  derides  as  unlearned  because  lawyers  were  excluded 
from  it,  proceeded  to  a  resumption  of  grants  and  a  prohibi- 
tion of  alienating  the  ancient  inheritance  of  the  crown  with- 

1  Tb«  bouM  of  eommoDs  thanlced  tho       •  6  H.  TV.  p.  506. 
Ung  ibr    poidonloc  Northumborland,       •  Boi.  P«rL  toL  UL  p.  639,  668, 67& 
whom,  M  It  proTod,  he  had  jott  eaoM  to 
WMpeot.    6  H.  IV.  p.  636. 


300  EOTAL  EXPENDITUBE.      Chap.  VllL  Pabt  m. 

out  consent  of  parliament,  in  order  to  ease  the  commons  of 
taxes,  and  that  the  king  might  live  on  his  own.^  This  was  a 
favorite  though  rather  chimerical  project  In  a  later  parlia- 
ment it  was  requested  (hat  the  king  would  take  his  council's 
advice  how  to  keep  within  his  own  revenue ;  he  answered 
that  he  would  wiliinglj  comply  as  soon  as  it  should  be  in  his 
power.* 

But  no  parliament  came  near,  in  the  number  and  boldness 
of  its  demands,  to  that  held  in  the  eighth  year  of  Henry  IV. 
The  commons  presented  thirty-one  articles,  none  of  which 
the  king  ventured  to  refuse,  though  pressing  very  severely 
upon  his  prerogative.  He  was  to  name  sixteen  counsellors^ 
by  whose  advice  he  was  solely  to  be  guided,  none  of  them  to 
be  dismissed  without  conviction  of  misdemeanor.  The  chan- 
cellor and  privy  seal  to  pass  no  grants  or  other  matter  con- 
trary to  law.  Any  persons  about  the  court  stirring  up  the 
king  or  queen's  minds  against  their  subjects,  and  duly  con- 
victed  thereof,  to  lose  their  offices  and  be  fined.  The  king^p 
ordinary  revenue  was  wholly  appropriated  to  his  household 
and  the  payment  of  his  debts ;  no  grant  of  wardship  or  other 
profit  to  be  made  thereout,  nor  any  forfeiture  to  be  pardoned. 
The  king,  *^  considering  the  wise  government  of  other  Chris- 
tian princes,  and  conforming  himself  thereto,"  was  to  assign 
two  days  in  the  week  for  petitions,  ^  it  being  an  honorable 
and  necessary  thing  that  his  lieges,  who  desired  to  petition 
him,  should  be  heard."  No  judicial  officer,  nor  any  in  the 
revenue  or  household,  to  enjoy  his  place  for  life  or  term  of 
years.  No  petition  to  be  presented  to  the  king,  by  any  of 
his  household,  at  times  when  the  council  were  not  sitting. 
The  council  to  determine  nothing  cognizable  at  common  law, 
unless  for  a  reasonable  cause  and  with  consent  of  the  judges. 
The  statutes  regulating  purveyance  were  affirmed  —  abuses 
of  various  kinds  in  the  council  and  in  courts  of  justice  enu- 
merated and  forbidden  —  elections  of  knights  for  counties 
put  under  regulation.  The  council  and  officers  of  state  were 
sworn  to  observe  the  common  law  and  all  statutes,  those 
especially  just  enacted.' 

It  must  strike  every  reader  that  these  provisions  were  of 
themselves  a  noble  fabric  of  constitutional  liberty,  and  hardly 
perhaps  inferior  to  the  petition  of  right  under  Charles  I 

>Rot.P&rI  ToI.Uf.p.M7.  « 18  H.  IV.  p.  634. 

•&Dt.FiBri.8H.  IV.p.686 


EnoLtsH  C0N8T.     POPULABITT  OF  HENRY  V.  801 

We  cannot  account  for  the  submission  of  Henry  to  conditions 
far  moi*e  derogatory  than  ever  were  imposed  on  Richard,  be- 
cause the  secret  politics  of  his  reign  are  very  imperfectly 
understood.  Towards  its  close  he  manifested  moi*e  vigor. 
The  speaker,  Sir  Thomas  Chaucer,  having  made  the  usual 
petition  for  liberty  of  speech,  the  king  answered  that  he 
might  speak  as  others  had  done  in  the  time  of  his  (Henry*s) 
ancestors,  and  his  own,  but  not  otherwise ;  for  he  would  by 
no  means  have  any  innovation,  but  be  as  much  at  his  liberty 
as  any  of  his  ancestors  had  ever  been.  Some  time  after  he 
sent  a  message  to  the  commons,  complaining  of  a  law  passed 
at  the  last  parliament  infringing  his  liberty  and  prerogative, 
which  he  requested  their  consent  to  repeal.  ^To  this  the  com- 
mons agreed,  and  received  the  king's  thanks,  who  declared  at 
tlie  same  time  that  he  would  keep  as  much  freedom  and  prero- 
gative as  any  of  his  ancestors.  It  does  not  appear  what  was  the 
particular  subject  of  complaint ;  but  there  had  been  much  of 
the  same  remonstrating  spirit  in  the  last -parliament  that  was 
manifested  on  preceding  occasions.  The  commons,  however, 
for  reasons  we  cannot  explain,  were  rather  dismayed.  Be- 
fore their  dissolution  they  petition  the  king,  that,  whereas  he 
was  reported  to  be  offended  at  some  of  his  subjects  in  this 
and  in  the  preceding  parliament,  he  would  openly  declare 
tliat  he  held  them  all  for  loyal  subjects.  Henry  granted  this 
*^  of  his  special  grace  ; "  and  thus  concluded  his  reign  more 
triumphantly  with  respect  to  his  domestic  battles  tlian  he  had 
gone  through  it.^ 

Power  deemed  to  be  ill  gotten  is  naturally  precarious ;  and 
the  instance  of  Henry  IV.  has  been  well  quoted  g^„_  y^ 
to  prove  that  public  liberty  flourishes  with  a  bad  hi«  popa- 
title  in  the  sovereign.    None  of  our  kings  seem      '^' 
to  have  been  less  beloved ;  and  indeed  he  had  little  claim  to 
affection.     But  what  men  denied  to  the  reigning  king  they 
poured  in  full  measure  upon  the  heir  of  his  throne.     The 
virtues  of  the  prince  of  Wales  are  almost  invidiously  eulogized 
by  those  parliaments  who  treat  harshly  his  father ;  ^  and  these 
records  afford  a  strong  presumption  that  some  early  petulance 
or  riot  has  been  much  exaggerated  by  the  vulgar  minds  of 
our  chroniclers.     One  can  scarcely  understand  at  least  that 
a  prince  who  was  three  years  engaged  in  quelling  the  dan^ 

V  13  a.  IV  p.  648, 668  t  Rot  Pari.  tqI.  iU.  p.  649, 666, 674, 611. 


802  INFLUENCE  OF  PARLIAMENT.    Chap.  Vm.  Paht  in. 

gerons  insurrection  of  Glendower,  and  who  in  the  latter  time 
of  his  father's  reign  presided  at  the  council,  was  so  lost  in  a 
doud  of  low  debauchery  as  common  fame  represents.^  Loved 
he  certainly  was  throughout  his  life,  as  so  intrepid,  affable, 
and  generous  a  temper  well  deserved ;  and  this  sentiment  was 
heightened  to  admiration  by  successes  still  more  rapid  and 
dazzling  than  those  of  Edward  III.  During  his  reign  there 
scarcely  appears  any  vestige  of  dissatisfaction  in  parliament  — 
a  circumstance  very  honorable,  whether  we  ascribe  it  to  the 
justice  of  his  administration  or  to  the  affection  of  his  people. 
Perhaps  two  exceptions,  though  they  are  rather  one  in  spirit, 
might  be  made :  the  first,  a  petition  to  the  duke  of  Gloucester, 
then  holding  parliament  as  guardian  of  England,  that  he 
would  move  the  king  and  queen  to  return,  as  speedily  as 
might  please  them,  in  relief  and  comfort  of  the  commons ;  * 
the  second,  a  request  that  their  petitions  might  not  be  sent  to 
the  king  beyond  sea,  but  altogether  determined  ^  within  this 
kingdom  of  England,  during  this  parliament,"  and  that  this 
ordinance  might  be  of  force  in  all  future  parliaments  to  be 
held  in  England.*  This  prayer,  to  which  the  guardian  de- 
clined to  accede,  evidently  sprang  from  the  apprehensions, 
excited  in  their  minds  by  the  treaty  of  Troyes,  that  England 
might  become  a  province  of  the  French  crown,  which  led 
them  to  obtain  a  renewal  of  the  statute  of  Edward  III.,  de- 
claring the  independence  of  this  kingdom.^ 

It  has  been  seen  already  that  even  Edward  IIL  consulted 
^  ..  ^  his  parliament  upon  the  expediency  of  negotiations 
eoMuited  for  peacc,  though  at  that  time  the  commons  had  not 
Uoaffiitai!^  acquired  boldness  enough  to  tender  their  advice. 
In  Richard  IL's  reign  they  answered  to  a  similar 
proposition  with  a  little  more  confidence,  that  the  dangers  each 
way  were  so  considerable  they  dared  not  decide,  though  an 
honorable  peace  would  be  the  greatest  comfort  they  could  have, 
and  concluded  by  hoping  that  the  king  would  not  engage  to 
do  homage  for  Calais  or  the  conquered  country.*  The  parlia- 
ment of  the  tenth  of  his  reign  was  expressly  summoned  in 
order  to  advise  concerning  the  king's  intended  expedition  be- 
yond sea — a  great  council,  which  had  previously  been  assem- 

1  Thl« pMsage  wis  written  befbn  I  wbj  *  Rot.  Parl.8  H.  V.  Tol.  It  p.  ISft. 

aware  that  tiie  same  bpinion  had  been  •  p.  128 

•laboratelj  maintained  bjr  Mr.  Lnden,  *  p.  ISO. 

'  ■  •  7  R.  U 


In  one  of  his  Taluable  eraays  upon  points       •  7  R.  II.  vol.  lU.  p.  170. 
tf  constitutional  histoxy. 


Emolish  CosBT.    INFLUENCE  OJ  PARLIAMENT.  303 

bled  at  Oxford,  having  declared  their  incompetence  to  consent 
to  this  measure  without  the  advice  of  parliament.^  Yet  a 
few  years  afterwards,  on  a  similar  reference,  the  commons 
rather  declined  to  give  any  opinion.*  They  confirmed  the 
league  of  Henry  V.  with  the  emperor  Sigiamund;'  and  the 
treaty  of  Troyes,  which  was  so  fundamentally  to  change 
the  situation  of  Henry  and  his  successors,  obtained,  as  it 
evidently  required,  the  sanction  of  both  houses  of  parliament.^ 
These  precedents  conspiring  with  the  weakness  of  the  exec- 
utive government,  in  the  minority  of  Henry  VI.,  to  fling  an 
increase  of  influence  into  the  scale  of  the  commons,  they 
made  their  concurrence  necessary  to  all  important  business 
both  of  a  foreign  and  domestic  nature.  Thus  commissioners 
were  appointed  to  treat  of  the  deliverance  of  the  king  of 
Scots,  the  duchesses  of  Bedford  and  Gloucester  were  made 
denizens,  and  mediators  were  appointed  to  reconcile  the  dukes 
of  Gloucester  and  Burgundy,  by  authority  of  the  three  estates 
assembled  in  parliament'  Leave  was  given  to  the  dukes  of 
Bedford  and  Gloucester,  and  others  in  the  king's  behalf,  to 
treat  of  peace  with  France,  by  both  houses  of  parliament,  in 
pursuance  of  an  article  in  the  treaty  of  Troyes,  that  no 
treaty  should  be  set  on  foot  with  the  dauphin  without  consent 
of  the  three  estates  of  both  realms.*  This  article  was  after- 
wards repealed  J 

Some  complaints  are  made  by  the  commons,  even  during 
the  first  years  of  Henry's  minority,  that  the  king's  subjects 
underwent  arbitrary  imprisonment,  and  were  vexed  by  sum- 
monses before  the  council  and  by  the  newly-invented  writ  of 
subpoena  out  of  chancery.'  But  these  are  not  so  common  as 
formerly ;  and  so  far  as  the  rolls  lead  us  to  any  inference, 
there  was  less  injustice  committed  by  the  government  under 
Henry  VI.  and  his  father  tlian  at  any  former  period.  Waste- 
fulness indeed  might  justly  be  imputed  to  the  regency,  who 

1  7  K.  n.  p.  215.  trowr^  mnm  betwwn  Um  mxU  manhal 

<  17  R.  n.  p.  815.  and  or  Warwick  rMpeeting  th«lr  pra- 

*  4  H.  V.  ToL  W.  p.  06.  Mdanoe ;  IbundMl  npoa  the  royal  blood 
^  p.  185.  of  th«  flxBt,  and  long  pomeMlon  of  tho 

*  BoC  Pari.  4  H.  V.  vol.  It.  p.  Sn,  242,    Mcond.    In  this  the  eommons  eoald  not 
877.  aflbct  to  Interftre  jndldally;  bnt  they 

*  Pr  871.  found  a  dngnlar  way  of  meddlins,  by 
T  28  H.  VI.  voL  T.  p.  108.     There  Is    petitioning  the  king  to  confer  the  doke- 

racber  a  eurlous  Instanoe  in  8  H.  VI.  of  dom  of  Norfolk  on  the  earl  marshal, 

the  Jealoosy  with  which  the  eommons  toI.  It.  p.  278. 

regarded  any  proceedings  In  parliament  •  Rot.  Pari.  1  H.  VI.  p.  189;  8  H.  VI. 

vhere  they  were  not  eoncemed.    A  con-  p.  292 ;  8  H.  VI.  p.  8i8. 


304       IMPEACHMENTS  OF  MINISTERS.    Chap.  VHI.  Pabt  m. 

had  scandalously  lavished  the  king's  revenue.*  This  ulti- 
mately led  to  an  act  for  resuming  all  grants  since  his  acces- 
sion, founded  upon  a  public  declaration  of  the  great  officers 
of  the  crown  that  his  debts  amounted  to  372,000/.,  and  the 
annual  expense  of  the  household  to  24,000/.,  while  the  ordi- 
nary revenue  was  not  more  than  5000/.^ 

G.  But  before  this  time  the  sky  had  begun  to  darken,  and 
Impeach-  dip  Content  with  the  actual  administration  pervaded 
meat*  of  every  rank.  The  causes  of  tliis  are  familiar-^ 
"*  "'  the  unpopularity  of  the  king's  marriage  with  Mar- 
garet of  Anjou,  and  her  impolitic  violence  in  the  conduct  of 
affairs,  particularly  the  imputed  murder  of  the  people's  favor- 
ite, the  duke  of  Gloucester.  This  provoked  an  attack  upon 
her  own  creature,  the  duke  of  Suffolk.  Impeachment  had 
lain  still,  like  a  sword  in  the  scabbard,  since  the  accession  of 
Henry  IV.,  when  the  commons,  though  not  preferring  formal 
articles  of  accusation,  had  petitioned  the  king  that  Justice 
Rickhill,  who  had  been  employed  to  tak^  the  former  duke  of 
Gloucester's  confession  at  Calais,  and  the  lords  appellants  of 
Bichard  XL's  last  parliament,  should  be  put  on  their  defence 
before  the  lords.'  In  Suffolk's  case  the  commons  seem  to 
have  proceeded  by  bill  of  attainder,  or  at  least  to  have  de- 
signed the  judgment  against  that  minister  to  be  the  act  of  the 
whole  legislature ;  for  they  delivered  a  bill  containing  articles 
against  him  to  the  lords,  with  a  request  that  they  would  pray 
the  king's  majesty  .to  enact  that  bill  in  parliament,  and  that 
tlie  said  duke  might  be  proceeded  against  upon  the  said  aili- 
cles  in  parliament  according  ^o  the  law  and  custom  of  Eng- 
land. These  articles  contained  charges  of  high  treason,  chiefly 
relating  to  his  conduct  in  France,  which,  whether  treasonable 
or  not,  seems  to  have  been  grossly  against  the  lionor  and  ad- 
vantage of  the  crown.  At  a  later  day  the  commons  presented 
many  other  articles  of  misdemeanor.  To  the  former  he  made 
a  defence,  in  presence  of  the  king  as  well  as  the  lords  both, 
spiritual  and  temporal;  and  indeed  the  articles  of  impeach- 
ment were  directly  addressed  to  the  king,  which  gave  him  a 
reasonable  pretext  to  interfere  in  the  judgment.  But  from 
apprehension,  as  it  is  said,  that  Suffolk  could  not  escsipe  con- 
viction upon  at  least  some  part  of  these  cliarges,  Henry  antic- 
ipated with  no  slight  irregularity  the  course  of  legal  trial,  and, 

1  Tol.  ▼.  18  H.  VI.  p.  17.  *  28  H.  VI.  p.  185. 

s  liot.  Pari.  ToL  UL  p.  430,  il9. 


EvoLisH  Const.     PRIVILEGE  OF  PARLIAMENT.  805 

fiummoning  the  peers  into  a  private  chamber,  informed  the 
duke  of  Suffolk,  by  mouth  of  his  chancellor,  that,  inasmuch 
as  he  had  not  put  himself  upon  his  peerage,  but  submitted 
wholly  to  the  royal  pleasure,  the  king,  acquitting  him  of  tuts 
first  articles  containing  matter  of  treason,  by  his  own  advice 
and  not  that  of  the  lords,  nor  by  way  of  judgment,  not  being 
in  a  place  where  judgment  could  be  delivered,  banished  him 
for  five  years  from  his  dominions.  The  lords  then  present 
besought  the  king  to  let  their  protest  appear  on  record,  that 
neither  they  nor  their  posterity  might  lose  their  rights  of 
peerage  by  this  precedent.  It  was  justly  considered  as  an 
arbitrary  stretch  of  prerogative,  in  order  to  defeat  the  privi- 
leges of  parliament  and  screen  a  favorite  minister  from  pun- 
ishment. But  the  course  of  proceeding  by  bill  of  attainder, 
instead  of  regular  impeachment,  was  not  judiciously  chosen 
by  the  commons.^ 

7.  Privilege  of  parliament,  an  extensive  and  singular 
branch  of  our  constitutional  law,  begins  to  attract  pririiege  of 
attention  under  the  Lancastrian  princes.  It  is  ?««*»•»*• 
true  indeed  that  we  can  trace  long  before  by  records,  and 
may  infer  Mrith  probability  as  to  times  whose  records  have  not 
survived,  one  considerable  immunity — a  freedom  from  arrest 
for  persons  transacting  the  king^s  business  in  his  national 
council.^  Several  authorities  may  be  found  in  Mr.  Hatsell's 
Precedents ;  of  which  one,  in  the  9th  of  Edward  11.,  is  con- 
clusive.* But  in  those  rude  times  members  of  parliament 
were  not  always  respected  by  the  officers  executing  legal  pro- 
cess, and  still  less  by  the  violators  of  law.  Afler  several 
remonstrances,  which  the  crown  had  evaded,^  the  commons 
obtained  the  statute  11  Henry  YI.  c.  11,  for  the  punishment 
of  such  as  assault  any  on  their  way  to  the  parliament,  giving 
double  damages  to  the  party.*  They  had  more  ditRculty  in 
establishing,  notwithstanding  the  old  precedents  in  their  favor, 
an  immunity  from  all  criminal  process  except  in  charges  of 
treason,  felony,  and  breach  of  the  peace,  which  is  their  pres- 

1  Rot.  Pari.  28  H.  VT.  toI.  t.  p.  176.  Jury  to  one  of  them,  let  him  paj  a  fine.'* 

s  If  thU  were  to  rest  upon  aotiqatty  WilUns,  Leges  Anglo-Saxon,  p.  2. 

of  precedent,  one  might  be  produced  that  *  Uatsell,  vol.  1.  p.  12. 

would  ohallenge   all   competition.      In  *  Kot.  l*arl.  6  U.  IV.  p.  G41. 

the  laws  of  Kthelbert,  the  first  Christian  •  The  clei^r  had  got  a  little  preea 

king  of  Kent,  at  the  end  of  the  sixth  dence  in  this.     An  act  passed  8  H.  VI. 

•entury,  we  find  this  provision :  **  If  the  e.  1,  granting  priTllege  m>m  arrest  foi 

Idog  eall  his  people  to  him  (1.  e.  in  the  themselres  and  sorranfis  on  their  way  t« 

witecagecioc)  and  aay  one  does  an  in-  eonTOoatloiK. 

VOL.  II. — If.  20 


806  PBIYILEGE  OF  PABLIAMENT.   Chap.  YUL  Past  III 

ent  measure  of  privilege.  The  tmih  was,  that,  with  a  right 
prettj  dearly  rooognized,  as  is  admitted  bj  the  judges  in 
Thorp's  case,  the  house  of  commons  had  no  regular  compul- 
sory process  at  their  command.  In  the  cases  of  Lark,  servant 
of  a  member,  in  the  8th  of  Henry  VI.,^  and  of  Gierke,  him- 
self a  burgess,  in  the  39th  of  the  same  king,'  it  was  thought 
necessary  to  effect  their  release  from  a  civil  execution  by 
special  acts  of  parliament  The  commons,  in  a  former  in- 
stance, endeavored  to  make  the  law  general  that  no  members 
nor  their  servants  might  be  taken  except  for  treason,  felony, 
and  breach  of  peace ;  but  the  king  put  a  negative  upon  this 
part  of  their  petition. 

The  most  celebrated,  however,  of  these  early  cases  of 
privilege  is  that  of  Thomas  Thorp,  speaker  of  the  commons 
in  31  Henry  VI.  This  person,  who  was  moreover  a  baron 
of  the  exchequer,  had  been  imprisoned  on  an  execution  at 
suit  of  the  duke  of  York.  The  commons  sent  some  of  their 
members  to  complain  of  a  violation  of  privilege  to  the  king 
and  lords  in  parliament,  and  to  demand  Thorp's  release.  It 
was  alleged  by  the  duke  of  York's  counsel  that  the  trespass 
done  by  Thorp  was  since  the  beginning  of  the  parliament, 
and  the  judgment  thereon  given  in  time  of  vacation,  and  not 
during  the  sitting.     The  lords  referred  the  question  to  the 

judges,  who  said,  afler  deliberation,  that  ^  they  ought  not  to 
answer  to  that  question,  for  it  hath  not  be  used  aforetyme 
that  the  judges  should  in  any  wise  determine  the  privilege 
of  this  high  court  of  parliament;  for  it  is  so  high  and  so 
mighty  in  his  nature  that  it  may  make  law,  and  that  that  is 
law  it  may  make  no  law ;  and  tlie  determination  and  knowl- 
edge of  that  privilege  belongeth  to  the  lords  of  the  parlia- 
ment, and  not  to  the  justices."  They  went  on,  however, 
afler  observing  that  a  general  writ  of  supersedeas  of  all 
processes  upon  ground  of  privilege  had  not  been  known,  to 
Bay  that,  ^  if  any  person  that  is  a  member  of  this  high  court 
of  parliament  be  arrested  in  such  cases  as  be  not  for  treason, 
or  felony,  or  surety  of  the  peace,  or  for  a  condemnation  had 
before  the  parliament,  it  is  used  that  all  such  persons  should 
be  released  of  such  arrests  and  make  an  attorney,  so  that 

hey  may  have  their  freedom  and  liberty  freely  to  intend 
upon  the  parliament" 

1  Hot  Pftrl.  vol.  ir.  p-  »7.  •  U  ral.  t.  p.  S74. 


jsIVGLiSH  CoHST.        PRIVILEGE  OF  PARTJAMENT.  307 

Notwithstanding  this  answer  of  the  judges,  it  was  con- 
cluded by  the  lords  that  Thorp  should  remain  in  prison, 
without  regarding  the  alleged  privilege ;  and  the  commons 
were  directed  in  the  king's  name  to  proceed  ^'  with  all  goodly 
haste  and  speed"  to  the  election  of  a  new  speaker.  It  is 
curious  to  observe  that  the  commons,  forgetting  their  griev- 
ances, or  content  to  drop  them,  made  such  haste  and  speed 
according  to  this  command,  that  they  presented  a  new  speaker 
for  approbation  the  next  day.^ 

This  case,  as  has  been  strongly  said,  was  begotten  by  the 
iniquity  of  the  times.  The  state  was  verging  fast  towards 
civil  war ;  and  Thorp,  who  afterwards  distinguished  himself 
for  the  Lancastrian  cause,  was  an  inveterate  enemy  of  the 
duke  of  York.  That  prince  seems  to  have  been  swayed  a 
little  from  his  usual  temper  in  procuring  so  unwarrantable  a 
determination.  In  the  reign  of  Edward  lY.  the  commons 
claimed  privilege  against  any  civil  suit  during  the  time  of 
their  session ;  but  they  had  recourse,  as  before,  to  a  particu- 
lar act  of  parliament  to  obtain  a  writ  of  supersedeas  in  favor 
of  one  Atwell,  a  member,  who  had  been  sued.  The  present 
law  of  privilege  seems  not  to  have  been  fully  established,  or 
at  least  effectually  maintained,  before  the  reign  of  Henry 
VIII.« 

No  privilege  of  the  commons  can  be  so  fundamental  as 
liberty  of  speech.  This  is  claimed  at  the  opening  of  every 
parliament  by  their  speaker,  and  could  never  be  infringed 
without  shaking  the  ramparts  of  the  constitution.  Richard 
XL's  attack  upon  Haxey  has  been  already  mentioned  as  a 
flagrant  evidence  of  his  despotic  intentions.  No  other  case 
occurs  until  the  83d  year  of  Henry  VI.,  when  Thomas 
Young,  member  for  Bristol,  complained  to  the  commons, 
that,  ^  for  matters  by  him  showed  in  the  house  accustomed 
for  the  commons  in  the  said  parliaments,  he  was  therefore 
taken,  arrested,  and  rigorously  in  open  wise  led  to  the  Tower 
of  London,  and  there  grievously  in  great  duress  long  time 
imprisoned  against  the  said  freedom  and  liberty ; "  with  much 
more  to  the  like  effect.  The  commons  transmitted  this  peti- 
tion to  the  lords,  and  the  king  ^  willed  that  the  lords  of  his 
council  do  and  provide  for  the  said  suppliant  as  in  their  dis* 

1  Rot.  Purl.  TOL  ▼.  p.  880;  HfttMll'i       *  Upon  (his  lul^iset  the  Nadar  lA&oald 
PiWMlmtf,  p.  90.  hsTB  racoarM  to  HfttaeU*t  Preocdnto, 

TOl  I  chap.  1 


308  FBTVILEGE  OF  PARLIAMENT.   Chap.  Vm.  Past  OL 

eretions  shall  be  thought  conyenient  and  reasonable.**  This 
imprisonment  of  Young,  however,  had  happened  six  years 
before,  in  consequence  of  a  motion  made  by  him  that,  the 
king  then  having  no  issue,  the  duke  of  York  might  be  de* 
Glared  heir-apparent  to  the  crown.  In  the  present  session, 
when  the  duke  was  protector,  he  thought  it  well-timed  to 
prefer  his  claim  to  remuneration.^ 

There  is  a  remarkable  precedent  in  the  9th  of  Henry  IV., 
and  perhaps  the  earliest  authority  for  two  eminent  maxims 
of  parliamentary  law  —  that  the  commons  possess  an  exclu- 
sive right  of  originating  money  bills,  and  that  the  king  ought 
not  to  take  notice  of  matters  pending  in  parliament  A 
quarrel  broke  out  between  the  two  houses  upon  this  ground ; 
and  as  we  have  not  before  seen  the  commons  venture  to 
clash  openly  with  their  superiors,  the  circumstance  is  for  this 
additional  reason  worthy  of  attention.  As  it  has  been  little 
noticed,  I  shall  translate  the  whole  record. 

"  Friday  the  second  day  of  December,  which  was  the  last 
day  of  the  parliament,  the  commons  came  before  the  king 
and  the  lords  in  parliament,  and  there,  by  command  of  the 
king,  a  schedule  of  indemnity  touching  a  certain  altercation 
moved  between  the  lords  and  commons  was  read ;  and  on 
this  it  was  commanded  by  our  said  lord  the  king  that  the  said 
schedule  should  be  entered  of  reoqrd  in  the  roll  of  parlia- 
ment ;  of  which  schedule  the  tenor  is  as  follows :  Be  it  re- 
membered, that  on  Monday  the  21st  day  of  November,  the 
king  our  sovereign  lord  being  in  the  council-ehamber  in  the 
abbey  of  Gloucester,^  the  lords  spiritual  and  teYnporal  for 
this  present  parliament  assembled  being  then  in  his  presence, 
a  debate  took  place  among  them  about  the  state  of  the  king- 
dom, and  its  defence  to  resist  the  malice  of  the  enemies  who 
on  every  side  prepare  to  molest  the  *said  kingdom  and  its 
faithful  subjects,  and  how  no  man  can  resist  this  malice,  un- 
less, for  the  safeguard  and  defence  of  his  said  kingdom,  our 
sovereign  lord  the  king  has  some  notable  aid  and  subsidy 
granted  to  him  in  his  present  parliament.  And  therefore  it 
was  demanded  of  the  said  lords  by  way  of  question  what  aid 
would  be  sufficient  and  requisite  in  these  circumstances? 

1  Rot.  ParL  toI.  ▼.  p.  887;  W.  Wor-  tostanee  of  the  crown*!  Interferanee  with 

Mtter,  p.  476.    Mr.  HatwU  aeems  to  havo  freedom  of  speech  In  parliament     toI.  L 

Oirerlooked  this  ease,  for   he   mentions  p.  85. 

thatofSferiokland,  in  1571,  as  the  earliest  t  This  pariiamant  sat  at  Gtoooetlv 


E>ou8B  Corar.       PRIVILEGE  OF  PAKLIAMENT.  309 

To  which  question  it  was  answered  by  the  said  lords  sever* 
ally,  that,  considering  the  necessity  of  the  king  on  one  side, 
and  the  poverty  of  his  people  on  the  other,  no  less  aid  could 
be  sufficient  than  one  tenth  and  a  half  from  cities  and  towns, 
and  one  fifteenth  and  a  half  from  all  other  lay  persons ;  and, 
besides,  to  grant  a  continuance  of  the  subsidy  on  wool,  wool- 
fells,  and  leather,  and  of  three  shillings  on  the  tun  (of  wine), 
and  twelve  pence  on  the  pound  (of  other  merchandise),  £vom 
Michaelmas  next  ensuing  for  two  years  thenceforth.  Where- 
upon, by  command  of  our  said  lord  the  king,  a  message  was 
sent  to  the  commons  of  this  parliament  to  cause  a  certain 
number  of  their  body  to  come  before  our  said  lord  the  king 
and  the  lords,  in  order  to  hear  and  report  to  their  compan- 
ions what  they  should  be  commanded  by  our  said  lord  the 
king.  And  upon  this  the  said  commons  sent  into  the  pres- 
ence of  our  said  lord  the  king  and  the  said  lords  twelve  of 
their  companions ;  to  whom,  by  command  of  our  said  lord  the 
king,  the  said  question  was  declared,  with  the  answer  by  the 
said  lords  severally  given  to  it  Which  answer  it  was  the 
pleasure  of  our  said  lord  the  king  that  they  should  report  to 
the  rest  of  their  fellows,  to  the  end  that  they  might  take  the 
shortest  course  to  comply  with  the  intention  of  the  said  lords. 
Which  report  being  thus  made  to  the  said  commons,  they 
were  greatly  disturbed  at  it,  saying  and  asserting  it  to  be 
much  to  the  prejudice  and  derogation  of  their  liberties.  And 
after  that  our  said  lord  the  king  had  heard  this,  not  willing  that 
anything  should  be  done  at  present,  or  in  time  to  come,  that 
might  anywise  turn  against  the  liberty  of  the  estate  for 
which  they  are  come  to  parliament,  nor  against  the  liberties 
of  the  said  lords,  wills  and  grants  and  declares,  by  the  ad- 
vice and  consent  of  the  said  lords,  as  follows :  to  wit,  that  it 
shall  be  lawful  for  the  lords  to  debate  together  in  this  present 
parliament,  and  in  every  other  for  time  to  come,  in  the 
king's  absence,  concerning  the  condition  of  the  kingdom,  and 
the  remedies  necessary  for  it  And  in  like  manner  it  shall 
be  lawful  for  the  commons,  on  their  part  to  debate  together 
concerning  the  said  condition  and  remedies.  Provided  al- 
ways that  neither  the  lords  on  their  part,  nor  the  commons 
on  theirs,  do  make  any  report  to  our  said  lord  the  king  of 
any  grant  granted  by  tho  commons,  and  agreed  to  by  the 
lords,  nor  of  the  communications  of  the  said  grant,  before 
that  the  said  lords  and  oommcHu  are  of  one  acooi^  and  agree- 


310  rarVfLBGE  OF  PARLIAMENT.    Chap.  VHI.  Pakt  ZH 

ment  in  this  matter,  and  then  in  manner  and  form  acca»- 
tomed  —  that  is  to  say,  bj  the  mouth  of  the  speaker  of  the 
said  commons  for  the  time  being — to  the  end  that  the  said 
lords  and  commons  may  have  what  they  desire  (avoir  puis« 
sent  leur  gree)  of  our  said  lord  the  king.  Our  said  lord  the 
king  willing  moreover,  by  the  consent  of  the  said  lords,  that 
the  communication  had  in  this  present  parliament  as  above 
be  not  drawn  into  precedent  in  time  to  come,  nor  be  turned 
to  the  prejudice  or  derogation  of  the  liberty  of  the  estate  for 
which  the  sfud  commons  are  now  come,  neither  in  this 
present  parliament  nor  in  any  other  time  to  come.  But 
wills  that  himself  and  all  the  other  estates  should  be  as  free 
as  they  were  before.  Also,  the  said  last  day  of  parliament, 
the  said  speaker  prayed  our  said  lord  the  king,  on  the  part 
of  the  said  commons,  that  he  would  grant  the  said  commons 
that  they  should  depart  in  as  great  liberty  as  other  commons 
had  done  before.  To  which  the  king  answered  that  this 
pleased  him  well,  and  that  at  all  times  it  had  been  his  de- 
sire.'' * 

Every  attentive  reader  will  discover  this  remarkable  pas- 
sage to  illustrate  several  points  of  constitutional  law.  For 
hence  it  may  be  perceived  —  first,  that  the  king  was  used  in 
those  times  to  be  present  at  debates  of  the  lords,  personally 
advising  with  them  upon  the  public  business ;  wbidi  also  ap- 
pears by  many  other  passages  on  record ;  and  this  practice, 
I  conceive,  is  not  abolished  by  the  king's  present  declaration, 
save  as  to  grants  of  money,  which  ought  to  be  of  the  free  will 
of  parliament,  and  without  that  fear  or  influence  which  the 
presence  of  so  high  a  person  might  create :  secondly,  that  it 
was  already  the  established  law  of  parliament  that  the  lords 
should  consent  to  the  commons'  grant,  and  not  the  oonunons 
to  the  lords' ;  since  it  is  the  inversion  of  this  order  whereof 
the  commons  complain,  and  it  is  said  expressly  that  grants 
are  made  by  the  commons,  and  agreed  to  by  the  lords : 
thirdly,  that  the  lower  house  of  parliament  is  not,  in  proper 
language,  an  estate  of  the  realm,  but  rather  the  image  and 
representative  of  the  commons  of  England ;  who,  being  the 
third  estate,  with  the  nobility  and  clergy  make  up  and  con- 
stitute the  people  of  this  kingdom  and  liege  subjects  of  the 
crown.* 

1  Hot.  Pari.  ToL  Ui.  p.  611  people,  and  oot  without  the  aothoritj  el 

t  A  Qotioo  la  entertained   by  manj    some  Tery  rwpectable  namea,  that  the 


JEtfousH  Gunr.    PBIVILEGE  OF  PARLIAMENT. 


311 


At  the  next  meeting  of  parliament,  in  allusion  probablj  to 
this  disagreement  between  the  houses,  the  king  told  them 
that  the  states  of  parliament  were  come  together  for  the 
common  profit  of  the  king  and  kingdom,  and  for  unanimity's 
sake  and  general  consent;  and  therefore  he  was  sure  the 
commons  would  not  attempt  nor  saj  anything  but  what 
should  be  fitting  and  conducive  to  unanimity ;  commanding 
them  to  meet  together  and  communicate  for  the  public 
service** 

It  was  not  only  in  money  bills  that  the  originating  power 
was  supposed  to  reside  in  the  commons.  The  course  of 
proceedings  in  parliament,  as  has  been  seen,  from  the  com- 
mencement at  least  of  Edward  IIL's  reign,  was  that  the 
commons  presented  petitions,  which  the  lords,  by  themselves, 


kinf  la  OM  of  th«  thrw  asftates  of  the 
iMun,  the  lordf  >plritaal  and  temporal 
fbrmlng  togetber  Um  ieooDd,M  the  eom- 
mooa  in  parliunent  do  the  third.  This 
It  contradicted  by  the  general  tenor  of 
our  ancient  recordi  and  law-books;  and 
Indeed  the  analogy  of  other  governments 
ought  to  hare  the  greatest  weight,  even 
If  more  reason  for  <k>nbt  appeered  upon 
the  fkoe  of  our  own  authorities.  But  the 
Instanees  where  the  three  estates  are  de- 
clared or  implied  to  be  the  nobility , clergy , 
and  commons,  or  at  least  thm  repre- 
sratatives  in  parliament,  are  too  numer- 
ous for  Insertion.  This  land  standeth, 
says  the  Chaneeltor  StiLllngton,  in  7th 
■dward  IV..  by  three  states,  and  above 
that  one  prinoipaL,  that  Is  to  wit,  lords 
spiritual,  lords  temporal,  and  commons, 
and  over  that,  state  royal,  as  our  sovcr* 
•ign  lord  the  king.  Rot.  Pari.  vol.  r. 
p.  822.  Thus,  too,  it  is  declared  that  tlie 
treaty  of  Staples  in  1482  was  to  be  oon- 
Ormed  per  tras  status  regni  AnglisB  ritA 
•t  debltA  eooTOcatos,  videlicet  per  pre- 
latos  et  elerum,  noblies  et  communltates 
^usdem  regni.    Rymer,  t.  xil.  p.  606. 

I  will  not,  however,  suppress  one 
passage,  and  the  only  instance  that  has 
oceurred  in  my  reading,  where  the  king 
does  appear  to  have  been  reckoned  amoug 
the  three  estates.  The  eommons  say,  in 
the  2d  of  Henry  IV.,  that  the  states  of 
the  realm  may  be  compared  to  a  trinity, 
that  is,  the  king,  the  lords  spiritual  and 
temporal,  and  the  commons.  Rot.  Pari, 
vol.  ill.  p.  460.  In  this  expression,  how- 
ever, the  sense  shows  that  by  estates  of 
the  realm  they  meant  members,  or  neo* 
easarj  paits,  of  the  parliament. 

\rhitoioeke,  on  the  Parliamentaiy  Writ, 
vol.  U.  p.  48,  argues  at  length,  that  the 
^iM  estates  are  king,  lords,  and  eom- 


mons, which  seems  to  have  been  a  cur- 
rent doctrine  among  the  popular  lawyers 
of  the  seventeenth  eentuiy.  His  reason- 
ing Uchleflv  grounded  on  the  baronial 
tenure  of  bishops,  the  validity  of  acta 
passed  against  their  consent,  and  other 
arguments  of  the  same  kind ;  which  might 
go  to  prove  that  there  are  only  at  pres- 
ent two  estates,  but  can  never  turn  the 
king  into  one. 

Toe  source  of  this  error  is  an  inatten- 
tion to  the  primary  sense  of  the  word 
estate  (status),  which  means  an  order  or 
condition  into  which  men  are  classed  by 
the  institutions  of  society.  It  is  only  in 
a  secondary,  or  rather  an  elliptical  appli- 
cation, that  it  can  be  referred  to  their 
representatives  in  parliament  or  national 
councils.  The  lords  temporal,  indeed,  of 
BngUnd  are  identical  with  the  estate 
of  the  nobiUty :  but  the  house  of  com- 
mons is  not,  strictly  speaking,  the  estate 
of  oommonfllty,  to  which  Tte  membem 
belong,  and  from  which  they  are  deputed. 
So  the  whole  body  of  the  clergy  are  prop- 
erly speaking  one  of  the  estates,  and  are 
described  as  such  in  the  older  authori- 
ties, 21  Rtc.  n.  Rot.  Pari.  vol.  Hi.  p.  848, 
though  latterly  the  lords  spiritual  in  par- 
liament acquired,  with  less  correctness, 
that  appellation.  Hody  on  Convocations, 
p.  426.  The  bishops,  indeed,  may  be 
said,  constructively,  to  represent  the 
whole  of  the  clergy,  with  whoee  griev- 
ances they  are  supposed  to  be  best  ao- 
qualoted,  and  whoee  rlghte  it  is  their 
peculiar  duty  to  defend.  And  I  do  not 
find  that  the  inferior  clergy  had  aqy 
other  representation  in  the  cortes  of  Cas- 
tile and  Aragon.  where  the  ecelesiastteal 
<Mrder  was  dways  counted  among  tlw 
estates  of  the  lealm. 

I  Rot.  Pari.  vol.  Ili  p.  828. 


812 


PBIViLEGfi  OF  PARLIAMENT.    Chap.  Till.  Past  m 


or  with  the  assistance  of  the  council,  having  duly  considered, 
the  sanction  of  the  king  was  notified  or  withheld.  This  was 
80  much  according  to  usage,  that,  on  one  occasion,  when  the 
commons  requested  the  advice  of  the  other  house  on  a  matter 
before  them,  it  was  answered  that  the  ancient  custom  and 
form  of  parliament  had  ever  been  for  the  commons  to  report 
their  own  opinion  to  the  king  and  lords,  and  not  to  the  con- 
trary; and  the  king  would  have  the  ancient  and  laudable 
usages  of  parliament  maintained.^  It  is  singular  that  in  the 
terror  of  innovation  the  lords  did  not  discover  how  materially 
this  usage  of  parliament  took  off  from  their  own  legislative 
influence.  The  rule,  however,  was  not  observed  in  succeed- 
ing times ;  bills  originated  indiscriminately  in  either  house 
and  indeed  some  acts  of  Henry  V.,  which  do  not  appear  to 
be  grounded  on  any  petition,  may  be  suspected,  from  the 
manner  of  their  insertion  in  the  rolls  of  parliament,  to  have 
been  proposed  on  the  king's  part  to  the  commons.'  But 
there  is  one  manifest  instance  in  the  18th  of  Henry  VI^ 
where  the  king  requested  the  commons  to  give  their  authori- 
ty to  such   regulations'  as  his   council  might  provide  for 


1  Rot.  Purl.  5  R.  II.  p.  100. 

s  scat.  2  a.  V.  o.  6,  7,  8,  0 ;  4  H.  VI. 
e.  7. 

s  Rot.  Pari.  toI.  t.  p.  7.  It  appears 
by  a  cMe  in  the  Year  Book  of  the  83d 
of  Henry  VI.,  that,  where  the  lords 
made  only  some  minor  alterations  in 
a  bill  seut  up  to  them  ttom  the  c<Mn- 
mons,  eTen  if  it  related  to  a  grant  of 
money,  the  custom  was  not  to  remand 
it  for  their  assent  to  the  amendment. 
Brooke^s  Abridgment:  Parliament.  4. 
The  passage  is  worth  extracting,  in  order 
to  illustrate  the  course  of  proceeding  in 
parliament  at  that  time.  Case  fuitqae 
Sir  J.  P.  fUit  attaint  de  certeyn  trespas 
par  acte  de  parliament,  dont  les  commons 
fUrent  assentus,  que  sil  ne  ^ent  eins  per 
tiel  Jour  que  il  forby  tera  tiel  summe,  et 
lee  seigneurs  done  plus  longe  jour,  et  le 
bil  nient  rebaile  al  commons  arrere ;  et 

Kr  Kiaby,  clerk  des  roles  del  parliament, 
ISO  del  parliament  est,  que  si  bil  yient 
E rimes  a  les  commons,  et  lis  paasent  oeo, 
est  use  d'endorser  ceo  en  tiel  forme, 
Soit  bayie  as  seigniors;  et  si  les  seig- 
niors n€  le  roy  ne  alteront  le  bil.  donquea 
est  use  a  liverer  ceo  al  clerke  del  parlia- 
mente  destre  enrol  sauns  endorser  ceo.  . 
Bt  si  les  seigniors  TOlent  alter  un  bil  in 
ceo  que  poet  estoyer  ore  le  bil,  lis  poyent 
sauns  remavdre  ceo  al  commons,  come  si 
les  commons  graunte  poundage,  pur  qua- 
tuor  ana,  et  m  graatani  nia  pear  deox 


ans,  ceo  ne  serra  zebayle  al  commons; 
mes  si  les  commons  gntnntent  nisi  pur 
deux,  ans.  et  les  seigneurs  pur  quatreans, 
la  ceo  serra  reliver  al  commons,  et  en 
cest  case  les  seigniors  doyent  fhlre  un 
sedule  de  lour  intent,  ou  d'endoner  la 
bil  en  ceste  forme,  Les  seigneurs  ceo 
assentent  pur  durer  par  «juatuor  ans;  et 
quant  las  commons  ount  le  bil  arrere,  e( 
ne  Tolent  asaeuter  a  ceo,  ceo  ne  poet 
estre  un  actre ;  mes  si  les  commons  Toient 
assenter,  donques  Us  indorse  leur  respona 
sur  le  mergent  ne  basse  deios  le  bil  en 
tiel  forme,  Les  commons  sont  assentans 
al  sedul  des  seigniors,  a  mesme  cesty  bil 
annexe,  et  donques  sera  bayle  ad  clerka 
del  parliament,  ut  supra.  Kt  si  un  bil 
eolt  primes  liver  al  seig^ors,  et  le  bil 
passe  eux,  lis  ne  nsont  de  favro  asoun  en- 
dOTsement,  mess  de  mitter  le  bil  as  com- 
mons ;  et  donques,  si  le  bil  passe  les  com- 
mons, il  est  use  destre  isslnt  endoroe, 
Les  commons  sont  assentants;  et  ceo 
proTe  que  il  ad  passe  les  seigniors  dsTsnt, 
et  lour  assent  est  a  cest  passer  del  seig- 
niors ;  et  ideo  cest  aote  supra  neat  bon, 
pur  ceo  que  ne  ftdt  rebaiie  as  commons 
A  singular  assertion  is  made  in  the 
Tear  Book  21  B.  IV.  p  48  (Maynard's 
edit.),  that  a  subsidy  gmnted  by  the 
commons  without  assent  of  the  peers  la 
good  enough.  This  cannot  anxely  bar* 
own  law  at  that  tinka. 


Kmouib  Cutan.       CONTESTED  ELECTIONS.  813 

I 

redressmg  the   abuse  of  purveyance;  to  which  thej  as- 
sented. 

"  If  we  are  to  choose  constitutional  precedents  from  seasons 
of  tranquillity  rather  than  disturbance,  which  surely  is  the  only 
means  of  preserving  justice  or  consistency,  but  little  intrinsic 
authority  can  be  given  to  the  following  declaration  of  parlia- 
mentary law  in  the  11th  of  Richard  II. :  ^  In  this  parliament 
(the  roll  says)  all  the  lords  as  well  spiritual  and  temporal 
there  present  claimed  as  their  liberty  and  privilege,  that  the 
great  matters  moved  in  this  parliament,  and  to  be  moved  in 
other  parliaments  for  time  to  come,  touching  the  peers  of  the 
land,  should  be  treated,  adjudged,  and  debated  according  to  the 
course  of  parliament,  and  not  by  the  civil  law  nor  the  common 
law  of  the  land,  used  in  the  other  lower  courts  of  the  kingdom ; 
which  claim,  liberty,  and  privileges,  the  king  graciously  al- 
lowed and  granted  them  in  full  parliament"  ^  It  should  be 
remembered  that  this  assertion  of  paramount  privilege  was 
made  in  very  irregular  times,  when  the  king  was  at  the  mercy 
of  the  duke  of  Gloucester  and  his  associates,  and  that  it  had 
a  view  to  the  immediate  object  of  justifying  their  violent  pro- 
ceedings against  the  opposite  party,  and  taking  away  the  re- 
straint of  the  common  law.  It  stands  as  a  dangerous  rock 
to  be  avoided,  not  a  lighthouse  to  guide  us  along  &e  channel. 
The  law  of  parliament,  as  determined  by  regular  custom,  is 
incorporated  into  our  constitution ;  but  not  so  as  to  warrant 
an  indefinite,  uncontrollable  assumption  of  power  in  any  case, 
least  of  all  in  judicial  procedure,  where  the  form  and  the  es- 
sence of  justice  are  inseparable  from  each  other.  And,  in 
fact,  this  claim  of  the  lords,  whatever  gloss  Sir  £.  Ck>ke  may 
put  upon  it,  was  never  intended  to  bear  any  relation  to  the 
privileges  of  the  lower  house.  I  should  not,  perhaps,  have 
noticed  this  passage  so  strongly  if  it  had  not  been  made  the 
basis  of  extravagant  assertions  as  to  the  privileges  of  parlia- 
ment ; '  the  spirit  of  which  exaggerations  might  not  be  ill 
adapted  to  the  times  wherein  Sir  £.  Coke  lived,  though  I 
think  they  produced  at  several  later  periods  no  slight  mischief, 
some  consequences  of  which  we  may  still  have  to  experience* 
The  want  of  all  judicial  authority,  either  to  issue  process 
or  to  examine  witnesses,  together  with  the  usual  Contested 
shortness  of  sessions,  deprived  the  house  of  com-  ^^^ 
mons  of  what  is  now  considered  one  of  its  most  detarmioed 

I  BoL  Pmri.  Tol.  ill.  p.  au.  «  Ooke's  4tti  Instttate,  p.  16.         ^ 


314  CONTESTED  ELECTIONS.    Chjlp.  YIH.  Part  UJ. 

fundamental  privileges,  the  cognizance  of  disputed  elections. 
Upon  a  false  return  by  the  sheriff,  there  was  no  rem- 
edy but  through  tlie  king  or  his  council  Six  instances 
only,  I  believe,  occur,  during  the  reigns  of  the  Plantagenet 
family,  wherein  the  misconduct  or  mistake  of  the  sheriff  is 
recorded  to  have  called  for  a  specific  animadversion,  though  it 
was  frequently  the  ground  of  general  complaint,  and  even  of 
some  statutes.  The  first  is  in  the  12th  of  Edward  II.,  when 
a  petition  was  presented  to  the  council  against  a  false  return 
for  the  county  of  Devon,  the  petitioner  liaving  been  duly 
elected.  It  was  referred  to  the  court  of  exchequer  to  summon 
the  sheriff  before  them.^  The  next  occurs  in  the  3  6th  of 
Edward  III.,  when  a  writ  was  directed  to  the  sheriff  of  Lan- 
cashire,  after  the  dissolution  of  parliament,  to  inquire  at  the 
county-court  into  the  validity  of  the  election ;  and  upon  his 
neglect  a  second  writ  issued  to  the  justices  of  the  peace  to 
satisfy  themselves  about  this  in  the  best  manner  they  could, 
and  report  the  truth  into  chancery.  This  inquiry  afler  the 
dissolution  was  on  account  of  the  wages  for  attendance,  to 
which  the  knights  unduly  returned  could  hate  no  pretence.' 
We  iind  a  tldrd  case  in  the  7th  of  Richard  11.,  when  the 
king  took  notice  that  Thomas  de  Camoys,  who  was  sum- 
moned by  writ  to  the  house  of  peers,  had  been  elected  knight 
for  Surrey,  and  directed  the  sheriff  to  return  another.*  In 
the  same  year  the  town  of  Shaflesbury  petitioned  the  king, 
lords,  and  commons  against  a  false  return  of  the  sheriff  of 
Dorset,  and  prayed  them  to  order  remedy.  Nothing  further 
appears  respecting  this  petition.^  This  is  the  first  instance  of 
the  commons  being  noticed  in  matters  of  election.  But  the 
next  case  is  more  material ;  in  the  5th  of  Henry  IV.  the 
commons  prayed  the  king  and  lords  in  parliament,  that,  be- 
cause the  writ  of  sunmions  to  parliament  was  not  sufficiently 
returned  by  the  sheriff  of  Rutland,  this  matter  might  be  ex- 
amined in  parliament,  and  in  case  of  default  found  therein 
an  exemplary  punishment  might  be  inflicted ;  whereupon  the 
lords  sent  for  the  sheriff  and  Oneby,  the  knight  returned,  as 
well  as  for  Thorp,  who  had  been  duly  elected,  and,  having  ex- 
amined into  the  facts  of  the  case,  directed  the  return  to  be 
amended,  by  the  in&ertion  of  Thorp's  name,  and  committed 

1  aUnrlPs  It«porta  of  BleotloiM,  edit.       •  GtaaTirs  Reports,  ibid,  from  Piynntk 
1771;  iBtrodnction.  p  12.  «  QUuTU't  Reports,  Ibid,  from  Pxynno 

•  4  PzyniMf  p  261. 


Ehoush  C0S8T.      BIGHT  OF  VOTING  FOR  KKIGHTS.        315 

the  sheriff  to  the  Fleet  till  he  should  paj  a  fine  at  the  king^a 
pleasure.^  The  last  passage  that  I  can  produce  is  from  &e 
roll  of  18  H.  VI.,  where  **  it  is  considered  by  the  king,  with 
the  advice  and  assent  of  the  lords  spiritual  and  temporaj/' 
that,  whereas  no  knights  have  been  returned  for  Cambridge' 
shire,  the  sheriff  shsdl  be  directed,  by  another  writ,  to  hold  a 
court  and  to  proceed  to  an  election,  proclaiming  that  no  person 
shall  come  armed,  nor  any  tumultuous  proceeding  take  place ; 
something  of  which  sort  appears  to  have  obstructed  the  exe- 
cution of  the  first  writ.  It  is  to  be  noticed  that  the  commons 
are  not  so  much  as  named  in  this  entry.'  But  several  pro- 
visions were  made  by  statute  under  the  Lancastrian  kings, 
when  seats  in  parliament  became  much  more  an  object  g£ 
competition  than  before,  to  check  the  partiality  of  the  sheriffs 
in  making  undue  returns.  One  act  (11  H.  IV.  c  1)  gives 
the  justices  of  assize  power  to  inquire  into  this  matter,  and 
infiicts  a  penalty  of  one  hundred  pounds  on  the  sheriff.  An- 
other (6  H.  VI.  c.  4)  mitigates  the  rigor  of  the  former,  so  far 
as  to  permit  the  sheriff  or  the  knights  returned  by  him  to  trav- 
erse the  inquests  before  the  justices ;  that  is,  to  be  heard  in  their 
own  defence,  which,  it  seems,  had  not  been  permitted  to  them. 
Another  (23  H.  VL  c.  14)  gives  an  additional  penalty  upon 
false  returns  to  the  party  aggrieved.  These  statutes  conspire 
with  many  other  testimonies  to  manifest  the  rising  importance 
of  the  house  of  commons,  and  the  eagerness  with  which  gen- 
tlemen of  landed  estates  (whatever  might  be  the  case  in  petty 
boroughs)  sought  for  a  share  in  the  national  representation. 
Whoever  may  have  been  the  original  voters  for  county  re- 
presentatives, the  first  statute  that  regulates  their  in  whom 
election,  so  far  from  limiting  the  privilege  to  ten-  {ijji'*^**' 
ants  in  capite,  appears  to  place  it  upon  a  very  knichts 
large  and  democratical  foundation.  For  (as  I  '^''^^ 
rather  conceive,  though  not  without  much  hesitation),  not 
only  all  freeholders,  but  all  persons  whatever  present  at  the 
county-court,  were  declared,  or  rendered,  capable  of  voting 
for  the  knight  of  their  shire.  Such  at  least  seems  to  be  the 
inference  from  the  expressions  of  7  H.  IV.  c.  15,  ^  all  who 
are  there  present,  as  well  suitors  duly  summoned  for  that 
cause  as  others."  '    And  this  acquires  some  degree  of  confir- 

1  OlaoTil'f  Baporii,  Ibid,  and  Boi.  Pari  hypoiheria,  Choiigfa  em1»ramd  bj  Prynn*. 

fol.  UL  p.  680.  is,i  ooniwt,  mueh  opposed  to  gentru 

>  Rot.  Pirl.  Tol.  T.  p.  7.  (»plolon  ;  and  a  mj  nwpoctahle  VMnq 

*  8  Piynao*!  aegbtor,  p.  187.     This  writer  teeate  looh  aa  intarpretatloo  oir 


316  ELECTION  OF  BURGESSES.    Chap.  Vm.  Past  UL 

notation  from  the  later  statute,  8  H.  YL  c.  7,  which,  reciting 
that  ^elections  of  knights  of  shires  have  now  of  late  been 
made  by  very  great,  outrageous,  and  excessive  number  of 
people  dwelling  within  the  same  counties,  of  the  which  most 
part  was  people  of  small  substance  and  of  no  value,"  confines 
the  elective  franchise  to  freeholders  of  lands  or  tenements  to 
the  value  of  forty  shillings. 

The  representation  of  towns  in  parliament  was  founded 
nectioiifl  or  upon  two  principles  —  of  consent  to  public  bur- 
barg«8aea.  dens,  and  of  advice  in  public  measures,  especially 
such  as  related  to  trade  and  shipping.  Upon  both  these  ac- 
counts it  was  natural  for  the  kings  who  first  summoned  them 
to  parliament,  little  foreseeing  that  such  half-emancipated 
burghers  would  ever  clip  the  loftiest  plumes  of  their  prerog- 
ative, to  make  these  assemblies  numerous,  and  summon  mem- 
bers from  every  town  of  consideration  in  the  kingdom.  Thus 
the  writ  of  23  £.  I.  directs  the  sheriffs  to  cause  deputies  to  be 
elected  to  a  general  council  from  every  city,  borough,  and 
ti*ading  tewn.  And  although  the  last  words  are  omitted  in 
subsequent  writs,  yet  their  spirit  was  preserved ;  many  towns 
having  constantly  returned  members  to  parliament  by  regular 
summonses  from  the  sheriffs,  which  were  no  chartered  bor- 
oughs, nor  had  apparently  any  other  claim  than  their  popu 
lousness  or  commerce.  These  are  now  called  boroughs  by 
prescription.^ 

the  statute  7  H.  IV.  aa  chimerical.    The  Henry  TV.  was  not  to  let  Id  too  maoT 

words  cited  in  the  text,   "u  others,"  voters,  or  to  render  eleettoustamaltnous, 

mean  only,  aocording  to  him,  saitora  not  in  the  largest  of  Bnglish  oonnties,  what- 

dul J  summoned.    Heywood  on  Bleotions,  ever  it  might  be  in  others.    Prynne  has 

Tol.  i.  p.  20.    But,  as  I  presume,  the  published  some  sinepilar  sheriff's    in- 

summons  to  fteeholden  was  by  general  dentures  for  the  county   of  Toric,  all 

proclamation :    so   that  It  is  not  easy  during  the  Interval  between  the  acts  of 

to  perodve  what  difference  there  could  Henry  IV.  and  Henry  VI.,  which  are 

be  between  summoned  and  unsummoned  sealed  by  a  few  persons  calling  them- 

suitors.    And  if  the  words  are  supposed  selves  the  attorneys  of  smne  peers  and 

to  glance  at  the  private  summonses  to  ladies,  who,  as  fkr  as  appears,  had  aolelr 

a  few  friends,  by  means  of  which  the  returned  the  Icnights  of  that  shire.    8 

sheriSB   were  accustomed  to  procure  a  Prynne,  p.  152.    What  degree  of  weight 

olnndestine  election,  one  can  hardly  im-  these  anomalous  returns  ought  to  possess 

agino  that  such  persons  would  be  styled  I  leave  to  the  reader. 

**  duly  summoned."    It  is  not  nnlikriy,  i  Tbenu^Joritv  of  piesoriptivB  borons^ 

however,  that   these   large  expressions  have  prescriptive  corporations,    which 

were  inadvertently  used,  and  that  they  carry  the  l^al,  which  is  not  alwayj  the 

led  to  that  inundation  of  votora  without  moral,  presumption ofanwiginal  charter, 

property  wliich  rendered  the  subsequent  But  "  many  boroughs  and  towns  in  Bngp> 

act  of  Henry  VI.  necessary.    That  of  land  have  burgesses  by  prescription,  that 

Henry  IV.  had  Itself  been  occasioned  by  never  were  incorporated."    Ch.  J.  Ho- 

ao  opposite  evil,  the  close  election  of  hart  In  Dungannon  Case,  Hobart*s  Ifte- 

knlghta  by  a  few  parsons  in  the  name  of  ports,  p.  16.    And  Mr.  Luders  thinks,  I 

the  county.  know  not  how  Justly,  that  in  the  age  of 

Yet  the  eonsequenoe  of  the  stf^tate  of  Sdwud  I.,  which  Is  mnst  to  oar ;' 


BvouBB  Comr.  POWER  OF  SHERIFF.  QIJ 

Besides  these  respectable  ^owns,  there  were  some  of  a  less 
eminent  figare  which  had  writs  directed  to  them  as  ancient 
demesnes  of  the  crown.  During  times  of  arbitrary  taxation 
the  crown  had  set  tallages  alike  upon  its  chartered  boroughs 
and  upon  its  tenants  in  demesne.  When  parliamentary  con- 
sent became  indispensable,  the  free  tenants  in  ancient  de« 
mesne,  or  rather  such  of  them  as  inhabited  some  particular 
Tills,  were  called  to  parliament  among  the  other  representa- 
tives of  the  commons.  They  are  usually  specified  distinctly 
from  the  other  classes  of  representives  in  grants  of  subsidies 
throughout  the  parliaments  of  the  first  and  second  Edwards, 
tiU,  about  the  beginning  of  the  third's  reign,  they  were  con- 
founded with  ordinary  burgesses.^  This  is  the  foundation  of 
that  particular  species  of  elective  franchise  incident  to  what 
we  denominate  burgage  tenure ;  which,  however,  is  not  con- 
fined to  the  ancient  demesne  of  the  crown.' 

The  proper  constituents  therefore  of  the  citizens  and  bur- 
gesses in  parliament  appear  to  have  been  —  1.  All  chartered 
boroughs,  whether  they  derived  their  privileges  from  the 
crown,  or  from  a  mesne  lord,  as  several  in  Cornwall  did  from 
Richard  king  of  the  Romans  ;*  2.  All  towns  which  were  the 
ancient  or  the  actual  demesne  of  the  crown ;  S.  All  consider- 
able places,  though  unincorporated,  which  could  afford  to 
defray  the  expenses  of  their  representatives,  and  had  a  no- 
table interest  in  the  public  welfare.     But  no  parliament  ever 
perfectly  corresponded  with  this  theory.    The  writ 
was  addressed  in  general  terms  to  the  sheriff,  re-  th*  sherur 
quiring  him  to  cause  two  knights  to  be  elected  out  ^J^™**w. 
of  the  body  of  the  county,  two  citizens  from  every     "*"' 
city,  and  two  burgesses  from  every  borough.    It  rested  alto^ 
gether  upon  him  to  determine  what  towns  should  exercise 
this  franchise ;  and  it  is  really  incredible,  with  all  the  care- 

»to  xmrpowt  '*  them  nm  not  perhapg  has  more  frequently  been  that  of  adro- 

thlrty  eorpontione  in  the  kingdom.'*  catee  pleading  for  their  clients  than  of 

Reports  of  Ueetlons,  vol.  1.  p.  98.    Bntl  unbiassed  antiquaries.  If  this  be  kept  in 

must  allow  that,  in  the  opinion  of  many  tWw,  the  lorer  of  constitutional  hlstoiy 

sound  lawyers,  the  representation  of  nn-  wlU  find  much  information  in  seTeral  of 

charteredf   or  at  least   unincorporated  the  reported  cases  on  controTerted  eleo- 

boroughs  was  rather  a  real  priyikige.  and  tions ;  particular^  those  of  Tewksbury 

Ibunded  upon  teonre,  than  one  artsing  and   Liskeard,   In   Peekwell's    Reports, 

out  of  thcdr  share  In  public  contribn-  toI.  i. 

ttons.    Ch.  J.  Holt  in  Ashby  r.  White,  2  i  Brady  on  Boroughs,  p.  76,  80.  and 

Ld.  Raymond,  851.   Heywood  on  Borough  168.    Case  of  Tswksbuiy,  In  Peekwell^ 

Blectioos,  p.  11.    This  inquiry  is  Fscy  Beporto,  toI.  1.  p.  178. 

obscure ;  and  perhaps  the  more  so,  be-  i  Littleton,  s.  ICQ,  168 

the  IsainiQg  divseted  towards  it  •  tody,  p.  97. 


318  POWER  OF  SHERIFF.    Chap.  Vm.  Part  III. 

• 
lessness  and  ignorance  of  those  times,  what  frauds  the  sheriffs 

ventured  to  commit  in  executing  this  trust  Though  parlia- 
ments  met  almost  every  year,  and  there  could  be  no  mistake 
in  so  notorious  a  fact,  it  was  the  continual  practice  of  sheriffs 
to  omit  boroughs  that  had  been  in  recent  habit  of  electing 
members,  and  to  return  upon  the  writ  that  there  were  no 
more  within  their  county.  Thus  in  the  12th  of  Edward  UL 
the  sheriff  of  Wiltshire,  afler  returning  two  citizens  for  Salis- 
bury, and  burgesses  for  two  boroughs,  concludes  with  these 
words:  —  ** There  are  no  other  cities  or  boroughs  within  my 
bailiwick."  Yet  in  fact  eight  other  towns  had  sent  members 
to  preceding  parliaments.  So  in  the  Gth  of  Edward  II.  the 
sheriff  of  Bucks  declared  that  he  had  no  borough  within  his 
county  except  Wycomb ;  though  Wendover,  Agmondesham, 
and  Marlow  had  twice  made  returns  since  that  king's  acces- 
sion.^ And  from  this  cause  alone  it  has  happened  that  many 
towns  called  boroughs,  and  haying  a  charter  and  constitution 
as  such,  have  never  returned  members  to  parliament ;  some 
of  which  are  now  among  the  most  considerable  in  England* 
as  Leeds,  Birmingham,  and  Macclesfield.^ 

It  has  been  suggested,  indeed,  by  Brady,'  that  these  retuma 
may  not  appear  so  false  and  collusive  if  we  suppose  the  sheriff 
to  mean  only  that  there  M^ere  no  resident  burgesses  within 
these  boroughs  fit  to  be  returned,  or  that  the  expense  of  their 
wages  would  be  too  heavy  for  the  place  to  support.  And  no 
doubt  the  latter  plea,  whether  implied  or  not  in  the  return, 
was  very  frequently  an  inducement  to  the  sheriffs  to  spare 
the  smaller  boroughs.  The  wages  of  knights  were  four  shil- 
lings a  day,  levied  on  all  freeholders,  or  at  least  on  all  holding 
by  knight-service,  within  the  county.^    Those  of  burgesses 

t  Bxwly    on  Boroughs,    p.    110.     8  <  Willlg,  Notltb  ParllAincntaila,  toI.  I. 

Prynne,  p.  281.    Th«  latter  eren  arjcuei  prafltce,  p.  85. 

that   this   power  of   omitting   ancient  •  p.  117. 

boroughs  wan  legally  Tested  in  the  sheriff  «  It  Is  a  perplexing  question  whether 
before  the  5th  of  Richard  II. ;  and  freeholders  in  socage  were  liable  to  con- 
though  the  language  of  that  act  Implfes  tribute  towards  the  wages  of  knights ; 
the  contrary  of  this  position,  yet  it  is  and  authorities  might  m  produced  on 
more  than  probable  that  most  of  our  both  sides.  The  more  probable  suppoel- 
parliamentary  boroughs  by  prescription,  tion  is,  that  they  were  not  exempted, 
especially  such  as  were  then  unincorpo-  See  the  Tarlous  petitions  relating  to  the 
rated,  are  Indebted  for  their  privileges  to  payment  of  wages  in  Prynne's  Iburth 
the  exercise  of  the  shAlff's  discretion;  Kc^ster.  This  is  not  unconnected  with 
not  founded  on  partiality,  which  would  the  question  as  to  their  right  of  suffrage, 
rather  have  led  him  to  omit  them,  but  See  p.  115  of  this  Tolume.  Freeholders 
on  the  broad  principle  that  they  were  within  franchises  made  repeated  endeaT- 
•nflleiently  opulent  and  important  to  ors  to  exempt  themselTes  from  payment 
•tnd  rspresentattfas  to  parliament.  of  wages.    Thus  in  0  H.  IV  It  waa  sal- 


BvouBH  GOKBT.    BELUCTANGE  TO  S£ND  MEMBERS.  819 

were  half  that  sum;^  but  even  this  pittance  was  raised  with 
reluctance  and  difficulty  from  miserable  burghers,  little  solici- 
tous about  political  franchises.  Poverty,  indeed,  seems  to 
have  been  accepted  as  a  legal  excuse.  In  the  6th  of  E.  II. 
the  sheriff  of  Northumberland  returns  to  the  writ  of  sum- 
mons that  all  his  knights  are  not  sufficient  to  protect  the 
county;  and  in  the  1st  of  E.  IIL  that  they  were  too  much 
ravaged  by  their  enemies  to  send  any  members  to  parliament' 
The  sheriffs  of  Lancashire,  afler  several  returns  that  they 
had  no  boroughs  within  their  county,  though  Wigan,  Liver- 
pool, and  Preston  were  such,  alleged  at  length  that  none 
ought  to  be  called  upon  on  account  of  their  poverty.  This 
return  was  constantly  made,  irom  36  E.  III.  to  the  reign  of 
Henry  VI.« 

The  elective  franchise  was  deemed  by  the  boroughs  no 
privilege  or  blessing,  but  rather,  during  the  chief 
part  of   this    period,  an    intolerable    grievance,  or  boroughs 
Where  they  could  not  persuade  the  sheriff  to  omit  JJ^^J^ 
sending  his  writ  to  them,  they  set  it  at  defiance  by 
sending  no  return.    And  this  seldom  failed  to  succeed,  so  that, 
after  one  or  two  refusals  to  comply,  which  brought  no  punish- 
ment upon  them,  they  were  left  in  quiet  enjo3rment  of  their 
insignificance.    The  town  of  Torrington,  in  Devonshire,  went 

tlod  by  pftrlimment  that,  to  put  an  end  came,  Ibr  going  and  ntomlng.    It  ap- 

to  the  dteputee  on  this  tul||eet  between  pears  bj  Uiese  that  thIrty-flTe  or  forty 

the  people  of  Cambridgeehifo  and  those  miles  were  reckoned  a  day^s  Journey ; 

of  the  Isle  of  Ely,  the  latter  should  pay  which  may  correct  the  exanerated  no- 

SOOf.  and  be  quit  in  future  of  all  charges  tlons  of  bad  roads  and  tardylooomotion 

on  that  account.    Hot.  Pari.  toI.  It.  p.  that  are  sometimes  entertained.     See 

888.    By  this  means  the  inhabitants  of  Prynn«*s  fourth  Heglster,  and  Willises 

that  franchise  seoii  to  hare  purobeeed  Motitia  Parliamentaiii,  pessim. 

the  right  of  suffrage,  which  they  still  The  latest  entries  of  writs  for  expenses 

eiOoy,  though  not,  I  suppose,  suitors  to  in  the  close  rolls  are  of  2  H.  V.;  but 

the  county-court.    In  most  other  (hm-  th^  may  be  proved  to  liaTe  issued  much 

ehlses,  and  in  many  cities  erected  into  longer ;  and  Prynne  traces  them  to  the 

dbtinct  counties,  the  same  priTilege  of  end   of   Henry  VIII.  *s  reign,    p     406. 

▼oting  for  knights  of  the  shire  is  practi-  Without  the  formality  of  this  writ  a 

sally  exercised ;  but  whether  this  has  Tory  few  instances  of  towns  remunera/- 

Bot  proceeded  as  much  finom  the  tendency  ing  Uieir  burgesses   for  attendance  In 

of  returning  olBoerB  and  of  parliament  parliament  are  known  to  have  oceuired 

to  (kvor  the  right  of  election  in  doubtful  in  later  Umes.    Andrew  Marrel  Is  oom- 

cases,  as  from  the  merits  of  their  preten-  monly  sidd  to  have  been  the  b^t  who 

sions,  may  be  a  question.  received  this  honorable  salary.  A  modern 

1  Tlie  wages  of  knights  and  burgesses  book  asserts  that  wages  were   paid  in 

were  first  reduced  to  this  certain  sum  some  Cornish  boroughs  as  late  as  the 

by  the  writs  De  lerandis  ezpenslA.  16  K.  eighteenth  century.    Lysons^s  Cornwall, 

II.    Prynne^s   fourth   Register,   p.    68.  pvsftce,    p.   xxxil.j     but   the    pssaage 

These  were   issued   at   the   request  of  quoted  in  proof  of  this  Is  not  preous 

those  who  had  served,  alter  the  diseolu-  enough  to  support  so  unUkalj  a  ftok 

Hob  of  parliament,  and  included  a  cer-  *  8  Prynne,  p.  165- 

tain  number  of  days,  according  to  the  *  4  Prynne,  p.  817. 
ilrtanfie  at    the  eounty  whence   they 


820  ELECTORS  JN  BOROUGHS.    Chap.  Vm.  Part  TU. 

farther,  and  obtained  a  charter  of  exemption  from  sending 
burgesses,  grounded  upon  what  the  charter  asserts  to  appear 
on  the  rolls  of  chancery,  that  it  had  never  been  represented 
before  the  21st  of  E.  III.  This  is  absolutely  false,  and  is  a 
proof  how  little  we  can  rely  upon  the  veracity  of  records, 
Torrington  having  made  not  less  than  twenty-two  returns  be- 
fore that  time.  It  is  curious  that  in  spite  of  this  charter  the 
town  sent  members  to  the  two  ensuing  parliaments,  and  then 
ceased  forever.^  Richard  11.  gave  the  inhabitants  of  Col* 
Chester  a  dispensation  from  returning  bui^esses  for  five  years, 
in  consideration  of  the  expenses  they  had  incurred  in  fortify- 
ing the  town.^  But  this  immunity,  fi'om  whatever  reason, 
was  not  regarded,  Colchester  having  continued  to  make  re- 
turns as  before. 

The  partiality  of  sheriffs  in  leaving  out  boroughs,  which 
were  accustomed  in  old  time  to  come  to  the  parliament,  was 
repressed,  as  far  as  law  could  repress  it,  by  a  statute  of  Rich- 
ard II.,  which  imposed  a  fine  on  them  for  such  neglect,  and 
upon  any  member  of  parliament  who  should  absent  himself 
from  his  duty.'  But  it  is,  I  think,  highly  probable  that  a 
great  part  of  those  who  were  elected  from  the  boroughs  did 
not  trouble  themselves  with  attendance  in  parliament.  The 
sheriff  even  found  it  necessary  to  take  sureties  for  their  exe- 
cution of  so  burdensome  a  duty,  whose  names  it  was  usual, 
down  to  the  end  of  the  fifteenth  century,  to  endorse  upon  the 
writ,  along  with  those  of  the  elected.*  This  expedient  is  not 
likely  to  have  been  very  successful ;  and  the  small  number, 
comparatively  speaking,  of  writs  for  expenses  of  members 
for  boroughs,  which  have  been  published  by  Prynne,  while 
those  for  the  knights  of  shires  are  almost  complete,  leads  to 
a  strong  presumption  that  their  attendance  was  very  defective. 
This  statute  of  Richard  II.  produced  no  sensible  effect 
By  what  persons  the  election  of  burgesses  was  usually 
made  is  a'  question  of  great  obscurity,  which  is  still 
•lectora'iu  occasionally  debated  before  committees  of  parlia- 
Hroughi  ment  It  appears  to  have  been  the  common  prac- 
tice for  a  very  few  of  the  principal  members  of 
the  corporation  to  make  the  election  in  the  county-court,  and 

*  4  PiTTiTie,  p.  820.  tlm«i  an  elected  bnrgetia  abmlntelj  re- 

*  8  Prynne,  p.  241.  fUsed  to  go  to  parlUment,  and  droTe  hia 
'  6  R.  II.  8tat.  U.  o.  4.  conxtltaentB  to  a  tnth  ohoioe.  8  Pxynne, 

*  LudaxB's  Report!,  rol.  I.  p.  15.  Some-  p  277. 


EaousH  C0V8T.       MEMBERS  OF  THE  COMMONS.  321 

their  names,  as  actaal  electors,  are  generally  returned  upon 
the  writ  by  the  sheriff.^  But  we  cannot  surely  be  warranted 
by  this  to  infer  that  they  acted  in  any  other  capacity  than  as 
deputies  of  the  whole  body,  and  indeed  it  is  frequently  ex- 
pressed that  they  chose  such  and  such  persons  by  the  assent 
of  the  community ; '  by  which  word,  in  an  ancient  corporate 
borougli,  it  seems  natural  to  understand  the  freemen  partici- 
pating in  its  general  franchises,  rather  than  the  ruling  body, 
which,  in  many  instances  at  present,  and  always  perhaps  in 
the  earliest  age  of  corporations,  derived  its  authority  by  dele 
gation  from  the  rest  The  consent,  however,  of  the  inferio. 
freemen  we  may  easily  believe  to  have  been  merely  nominal; 
and,  from  being  nominal,  it  would  in  many  places  come  by 
degrees  not  to  be  required  at  all ;  the  corporation,  specially  so 
denominated,  or  municipal  government,  acquiring  by  length 
of  usage  an  exclusive  privilege  in  election  of  members  of 
parliament,  as  they  did  in  local  administration.  This,  at  least, 
appears  to  me  *a  more  probable  hypothesis  than  that  of  Dr. 
Brady,  who  limits  the  original  right  of  election  in  aU  corpo- 
rate boroughs  to  the  aldermen  or  other  capital  burgesses.' 

The  members  of  the  house  of  commons,  from  this  occa- 
sional disuse  of  ancient  boroughs  as  well  as  from  the  Hemben  of 
creation  of  new  ones,  underwent  some  fluctuation  the  house  of 

:i       •  .«  .1  1  *      X    a.  •  m  comnoDB. 

during  the  period  subject  to  our  review.     Two 
hundred  citizens  and  burgesses  sat  in  the  parliament  held  by 
Edward  I.  in  his  twenty-third  year,  the  earliest  epoch  of  ac- 
knowledged representation.    But  in  the  reigns  of  Edward  IIL 
and  his  three  successors  about  ninety  places,  on  an  average, 

1  8  PiynDe,  p.  252.  entlj  by  delegates  from  the  boronghs, 

*  8  Prynne,  p.  257,  de  assensa  totlns  who  were  authorlaed  by  their  fellow- 
commanltatiBpnBdicts&elegerontR.  W. ;  burgesses  to  elect  representatiTes  for 
■o  in  seTeral  other  instances  quoted  ia  them  In  parliament.  In  the  reigns  of 
tiie  ensuing  pages.  James  I.  and  Charles  I.,  when  popn^r 

*  Brady  on  Borouglis,  p.  182,  &o.  principles  were  in  their  greatest  vigor, 
Mr.  Allen,  than  whom  no  one  of  equal  there  was  a  strong  disposition  In  the 
learning  was  erer  less  inclined  to  de-  bouse  of  commons  to  extend  the  right 
preciate  popular  rights,  inclines  more  of  suffrage  in  boroughs,  and  in  many 
than  we  should  exr  ect  to  the  school  of  Instances  these  eflSorts  were  crowned  with 
Brady  in  this  point.  "  There  is  reason  suoco8s.>*  Kdin.  Rer.  xxtUI.  146.  But 
to  belieTe  that  originally  the  right  of  an  election  by  del^ates  choran  for  tliat 
•lection  in  boroughs  was  rested  in  the  purpose  by  the  burgemes  at  large  is  rery 
goreming  part  of  these  communities,  or  different  firom  one  by  the  goreming  part 
m  a  select  portion  of  the  burgesses ;  and  of  the  community.  JSren  in  the  latter 
that,  in  the  progress  of  the  house  of  case,  howerer,  this  part  had  generally 
eommons  to  power  and  importance,  the  been  chosen,  at  a  greater  or  less  interral 
tendemty  has  been  in  general  to  render  of  time,  by  the  entire  body.  Some* 
the  elections  mors  popular.  It  is  certain  times,  indeed,  corporations  IbU  into  self* 
that  for   many   years   burgesses   were  election  and  became  elose. 

tisetad  In  the  oonnty  courts,  and  appar- 

VOL.1I.  — II.  21 


322  VTCMBRRf^  OF  THE   Chap.  Tin.  Past  m. 

retarned  members,  so  that  we  may  reckon  this  part  of  the 
commons  at  one  hundred  and  eighty.^  These,  if  regular  in 
their  duties,  might  appear  an  over-balance  for  the  seventy- 
four  knights  who  sat  with  them.  But  the  dignity  of  ancient 
lineage,  territorial  wealth,  and  military  character,  in  times 
when  the  feudal  spirit  was  hardly  extinct  and  that  of  chivalry 
at  its  height,  made  these  burghers  vail  their  heads  to  the 
landed  aristocracy.  It  is  pretty  manifest  that  the  knights, 
though  doubtless  with  some  support  from  the  representatives 
of  towns,  sustained  the  chief  brunt  of  battle  against  the  crown* 
The  rule  and  intention  of  our  old  constitution  was,  that  each 
county,  city,  or  borough,  should  elect  deputies  out  of  its  own 
body,  resident  among  Siemselves,  and  consequently  acquainted 
with  their  necessities  and  grievances.^  It  would  be  very  in- 
teresting to  discover  at  what  time,  and  by  what  degrees,  the 
practice  of  election  swerved  from  this  strictness.  But  I  have 
not  been  able  to  trace  many  steps  of  the  launsition.  The 
number  of  practising  lawyers  who  sat  in  parliament,  of  which 
there  are  several  complaints,  seems  to  afford  an  inference  that 
it  had  begun  in  the  reign  of  Edward  HI.  Besides  several 
petitions  of  the  commons  that  none  but  knights  or  reputable 
squires  should  be  returned  for  shires,  an  ordinance  was  made 
in  the  forty-sixth  of  his  reign  that  no  lawyer  practising  in  the 
king's  court,  nor  sheriJBT  during  his  shrievalty,  be  returned 
knight  for  a  county ;  because  these  lawyers  put  forward  many 
petitions  in  the  name  of  the  commons  which  only  concerned 
their  clients.*  This  probably  was  truly  alleged,  as  we  may 
guess  from  the  vast  number  of  proposals  for  changing  the 
course  of  legal  process  which  fill  the  rolls  during  this  reign. 
It  is  not  to  be  doubted,  however,  that  many  practising  lawyers 
were  men  of  landed  estate  in  their  respective  counties. 

.  An  act  in  the  first  year  of  Henry  V.  directs  that  none  be 
chosen  knights,  citizens,  or  burgesses,  who  are  not  resident 
within  the  place  for  which  they  are  returned  on  the  day  of 

1  Wlllb,  Notltia  ParttanMntufo,  toI.  19  B.  II.  Vtun  wwe  tiranty-ttifcfat  mem 

tti.  p.  96,  ko. ;  8  Prjmiie,  p.  224.  fre.  ben  Teturned  ttum  ihlree  who  wen  not 

*  In  4  Bdw.  II.  the  nheriff  of  Rutfaind  knights,  and  bat  twenty-eeven  who  weiw 

made  this  retum :    Eligi  fed  In  pleno  raoh.    The  fbrmer  had  at  thin  lime  only 

eomitatu,  loeo  dnomm  mlUtnm,  eo  quod  two  shillings  or  three  shillings  a  day  m 

mllltee  non  sunt  in  boo  oomitatu  eom-  their  wages,  while  the  real  knights  bad 

morantss,  daoe   homines   de  oomitatn  IbarshilUngs.    4  Prynne,  p./j3,74.  Bnt 

Bntland,  de  discretioribns  et  ad  labor>  in  the  next  reign  their  wages  wsra  put 

andum  potentioribos.  fcc.  8  Prynne,  p.  on  a  leTel. 

170.     But     this    de^cieoey    of  aetnal  •  Bot.  Pari.  vol.  U.  p.  SlOl 
knights  soon  beeame  Tery  common.    In 


fivousH  Const.         HOUSE  OF  COMMONS.  823 

the  date  of  the  writ.^  This  statute  apparently  indicates  a  point 
of  time  when  the  deviation  from  the  line  of  law  was  frequent 
enough  to  attract  notice,  and  jet  not  so  estahlished  as  to  pass 
for  an  unavoidable  irregularity.  It  proceeded,  however,  from 
great  and  general  causes,  which  new  laws,  in  this  instance  very 
A>rtunately,  are  utterly  incompetent  to  withstand.  There  can- 
not be  a  more  apposite  proof  of  the  ineffieacy  of  human  insti- 
tutions to  stru^le  against  the  steady  course  of  events  than 
this  unlucky  statute  of  Henry  V.,  which  is  almost  a  solita- 
ry instance  in  the  law  of  England  wherein  the  principle  of 
desuetude  has  been  avowedly  set  up  against  an  unrepealed 
enactment  I  am  not  aware,  at  least,  of  any  other,  which 
not  only  the  house  of  commons,  but  the  court  of  king's  bench, 
has  deemed  itself  at  liberty  to  declare  unfit  to  be  observed.' 
Even  at  the  time  when  it  was  enacted,  the  law  had  probably, 
as  such,  very  little  effect  But  still  the  plurality  of  elections 
were  made  according  to  ancient  usage,  as  well  as  statute,  out 
of  the  constituent  body.  The  contrary  instances  were  excep- 
tions to  the  rule ;  but  exceptions  increasing  continually,  till 
they  subverted  the  rule  itself.  Prynne  has  remarked  that 
we  chiefly  find  Cornish  surnames  among  the  representatives 
of  Cornwall,  and  those  of  northern  families  among  the  re- 
turns from  the  North.  Nor  do  the  members  for  shires  and 
towns  seem  to  have  been  much  interchanged ;  the  names  of 
the  former  belonging  to  the  most  ancient  families,  while  those 
of  the  latter  have  a  more  plebeian  cast*  In  the  reign  of 
Edward  lY.,  and  not  before,  a  very  few  of  the  burgesses  bear 
the  addition  of  esquire  in  the  returns,  which  became  universal 
in  the  middle  of  the  succeeding  century.^ 

Even  county  elections  seem  in  general,  at  least  in  the 

1  Rot.  Pari.  1  n.  V.  e.  1.  aooeuloii  to  out  knowledgt  of  ftnoleot 

•  8m  the  case  of  Dublin  nnlvtsnttj  in  times,  the  Puton  collection,  thowa  that 
Qw  first  Tolume  of  Peckweirs  Reports  eager  canTaas  was  sometimes  made  by 
of  eontested  elections.  Note  D,  p.  68.  eonntiy  gentlemen  in  Edward  rv.*8 
The  statute  itself  was  repealed  by  14  Q.  reign  to  represent  boroughs.  This  letter 
m.  c.  58-  throws  light  at  the  same  time  on  the 

*  By  SS  H.  VI.  e.  15,  none  but  gen-  creation  or  reylv»l  of  boroughs.  The 
llemen  bom,  generod  a  natlyltate.  are  writer  tells  Sir  John  Paston,  "  If  ye  miss 
aapable  of  stttinglcparllameDt  as  knights  to  be  buraesR  of  Ifalden,  and  my  lord 
of  counties ;  an  election  was  set  aside  chamberlain  will,  ye  may  be  In  another 
8D  H.  VI.  becauM  the  peraon  returned  place ;  there  be  a  doien  towns  In  England 
was  not  of  gentle  birUi.  Pxynne's  third  that  ehooae  no  burgcMS,  which  ought  to 
Beglster,  p.  161.  do  It ;  ye  may  be  set  In  fbr  one  of  those 

4   Willis,      Notitia      Parliamentaxla,    towns  an*  ye  be  friended."    This  t^  Iq 
Pxyiines  fourth  Reglsfer,  p.  1184.     A    1472.    toI.  U.  p.  107. 
M«rln  that  aathentie  and  interssting 


824  INFLUENCE  ON  ELECTIONS.    Chaf.  YUL.  Part  IIL 

imgQiArity  fourteenth  century,  to  have  heen  ill-attended  and 
«f  eleetioaj.  j^ft  jq  jh^  influence  of  a  few  powerful  and  active 
persons.  A  petitioner  against  an  undue  return  in  the  12th 
of  Edward  II.  complains  that,  whereas  he  had  heen  chosen 
knight  for  Devon  hj  Sir  William  Martin,  bishop  of  Exeter, 
with  the  consent  of  the  county,  yet  the  sheriff  had  returned 
another.^  In  several  indentures  of  a  much  later  date  a 
few  persons  only  seem  to  have  been  concerned  in  the  elec- 
tion, though  the  assent  of  the  community  be  expressed.' 
These  irregularities,  which  it  would  be  exceedingly  erroneous 
to  convert,  with  Hume,  into  lawful  customs,  resulted  from 
the  abuses  of  the  sheriff's  power,  which,  when  parliament  sat 
only  for  a  few  weeks  with  its  hands  fall  of  business,  were 
inflaenoe  of  ^°^®^*  ^urc  to  cscapc  With  impunity.  They  were 
the  croim  sometimes  also  countenanced,  or  rather  instigated^ 
npon  them,  y^^,  ^j^^  crowu,  which,  having  recovered  in  Edward 
IL's  reign  the  prerogative  of  naming  the  sheriffs,  surrendered 
by  an  act  of  his  father,'  filled  that  office  with  its  creatures, 
and  constantly  disregarded  the  statute  forbidding  their  con- 
tinuance beyond  a  year.  Without  searching  for  every  pas- 
sage that  might  illustrate  the  interference  of  the  erown  in 
elections,  I  will  mention  two  or  three  leading  instances. 
When  Richard  11.  was  meditating  to  overturn  the  famous 
commission  of  reform,  he  sent  for  some  of  the  sheriffs,  and 
required  them  to  permit  no  knight  or  burgess  to  be  elected  to 
the  next  parliament  without  the  approbation  of  the  king  and 
his  council.  The  sheriffs  replied  that  the  commons  would 
maintain  their  ancient  privilege  of  electing  their  own  repre- 
sentatives.* The  parliament  of  1397,  which  attainted  his 
enemies  and  left  the  constitution  at  his  mercy,  was  chosen, 
as  we  are  told,  by  dint  of  intimidation  and  influence.* 
Thus  also  that  of  Henry  YI.,  held  at  Coventry  in  1460, 
wherein  the  duke  of  York  and  his  party  were  attainted,  is 
said  to  have  been  unduly  returned  by  the  like  means.  This 
is  rendered  probable  by  a  petition  presented  to  it  by  the 

1  GIanTil*8  Reports  of  Eleotlont,  edit.  Norman  kings.    Hist,  of  Heniy  IL  toL 

1774,  Introduction,  p.  zU.  U.  p.  921. 

<  Prynne's  third  Register,  p.  171.  •  Vita  RicardI  II.  p.  86. 

s  28  B.  I.  e.  8 ;  9  B.  II.    It  is  said  that  •  Otterbonme,  p.  191.    He  saTS  cf  the 

the  sheriff  was  elected  hy  the  people  of  knights  returned  on  this  oeeaaaon,  that 

his  county  in  the  Anglo-Saxon  period ;  tiiey  were  not  elected  per  oommunitatem, 

no  instance  of  this  howereY,  aooordlng  to  ut  mos  ezlgit,  sed   per  reglam  Toliift 

lord  Lyttelton,  ooenrs  alter  the  Oonquest.  tateoi. 
Ilulsfalties  were  oommonly  sold  ^j  the 


Bholus  Cqsbt.  HOUSK  01   LORDS.  825 

Bherifla,  praying  indemnitj  for  all  which  thej  had  done  in 
relation  thereto  contrary  to  law.^  An  act  passed  according 
to  their  prayer,  and  in  confirmation  of  elections.  A  few 
years  before,  in  1455,  a  singular  letter  under  the  kuig^s 
signet  is  addressed  to  the  sheriffs,  reciting  that  ^  we  be  en- 
fourmed  there  is  busy  labour  made  in  sondry  wises  by  oer- 
taine  persons  for  the  chesyng  of  the  said  knights,  .  •  •  .  .  of 
which  labour  we  marvaille  greatly,  insomuche  as  it  is  nothing 
to  the  honour  of  the  laborers,  but  ayenst  their  worship ;  it  is 
also  ayenst  the  lawes  of  the  lande,"  with  more  to  that  effect ; 
and  enjoining  the  sheriff  to  let  elections  be  free  and  the 
peace  kept'  There  was  certainly  no  reason  to  wonder  that 
a  parliament,  which  was  to  shift  the  virtual  sovereignty  of 
the  kingdom  into  the  hands  of  one  whose  claims  were  known 
to  extend  much  further,  should  be  the  object  of  tolerably 
warm  contests.  Thus  in  the  Fasten  letters  we  find  sevend 
proofs  of  the  importance  attached  to  parliamentary  electionB 
l)y  the  highest  nobility.* 

The  house  of  lords,  as  we  led  it  in  the  reign  of  Henry 
III.,  was  entirely  composed  of  such  persons  hold-  ooiutitatfcm 
ing  lands  by  barony  as  were  summoned  by  partic-  ^  ?*IJ,J'*"* 
ular  writ  of  parliament^  Tenure  and  summons 
were  both  essential  at  this  time  in  order  to  render  any  one  a 
lord  of  parliament — the  first  by  the  ancient  constitution  of 
our  feudal  monarchy  from  the  Conquest,  the  second  by  some 
regulation  or  usage  of  doubtful  origin,  which  was  thoroughly 
established  before  the  conclusion  of  Henry  HL's  reign.  This 
produced,  of  course,  a  very  marked  difference  between  the 
greater  and  the  lesser  or  unparliamentary  barons.  The 
tenure  of  the  latter,  however,  still  subsisted,  and,  though  too 
inconsiderable  to  be  members  of  the  legislature,  they  paid 
relief  as  barons,  they  might  be  challenged  on  juries,  and,  as 
I  presume,  by  parity  of  reasoEing,  were  entitled  to  trial  by 
their  peerage.  These  lower  barons,  or  more  commonly 
tenants  by  parcels  of  baronies,'  may  be  dimly  traced  to  the 

1  Piynne'i  taoond  ILeg,  p.  lil;  Rol.  Inqiilfy  into  th«  Mannw  of   eraatlnK 

Pftrl.  Tol.  T.  p.  867.  PMn;   wbkh,  thopgh  writtoo  with  ft 

>  PiyiaiM'f  second  Reg.  p.  460.  pftrty  motiTs,  to  Mrro  the  minlBtry  of 

•  Tol.  i.  D.  96,  98;  vol  ii.  p.  90,  106;  1719, ia  the  peenkge  bUl,  deeerree,  Ibr  the 

fol.  H.  p.  248.  penpioQlty  of  the  method  and  ityle,  to 

4  Upon  this  diy  and  obeonrs  satajeot  be  reckoned  among  the  best  of  our  com- 

of  Inquiry,  the  nature  and  oonstltatlon  stitutional  dtnertatlooa. 

of  tlie  bouse  of  lords  during  this  period.  •  Baronies  were  often  dlrlded  by  de- 

I  bare  been  much  indebted  to  the  flnt  aeent  among  females  into  many  parta, 

part  of  Pzynne's  Register,  and  to  West's  mfih  xvtainliig  its  oharsoter  as  a  ttf 


826       TENDRE  OF  LORDS  SPffilTUAL.    Chap.  VIH.  Pakt  ID 

latter  years  of  Edward  III.^  But  many  of  them  were  sao* 
cessivelj  suniDioned  to  parliament,  and  thus  recovered  the 
former  lustre  of  their  rank,  while  the  rest  fell  gradually  into 
the  station  of  commoners,  as  tenants  by  simple  knight-service. 
As  tenure  without  summons  did  not  entitle  any  one  to  the 
Baronial  privileges  of  a  lord  of  parliament,  so  no  spiritual 
^^uired  person  at  least  ought  to  have  been  summoned 
fbr  lords  without  baronial  tenure.  The  prior -of  St.  James 
spiritual.  ^^  Northampton,  having  been  summoned  in  the 
twelfth  of  Edward  II.,  was  discharged  upon  his  petition,  be* 
cause  he  held  nothing  of  the  king  by  barony,  but  only  in 
frankalmoign.  The  prior  of  Bridlington,  after  frequent  sum* 
mouses,  was  finally  left  out,  with  an  entry  made  in  the  roll 
that  he  held  nothing  of  the  king.  The  abbot  of  Leicester 
had  been  called  to  fifty  parliaments;  yet,  in  the  25th  of 
Edward  III.,  he  obtained  a  charter  of  perpetual  exemption, 
reciting  that  he  held  no  lands  or  tenements  of  the  crown  by 
barony  or  any  such  service  as  bound  him  to  attend  parlia- 
ments or  councils.^  But  great  irregularities  prevailed  in  the 
rolls  of  chancery,  from  which  the  writs  to  spiritual  and  tem- 
poral peers  were  taken  —  arising  in  part,  perhaps,  from 
negligence,  in  part  from  wilful  perversion;  so  that  many 
abbots  and  priors,  who  like  these  had  no  baronial  tenure, 
were  summoned  at  times  and  subsequently  omitted,  of  whose 
actual  exemption  we  have  no  record.  Out  of  one  hundred 
and  twenty-two  abbots  and  forty-one  priors  who  at  some 
time  or  other  sat  in  parliament,  but  twenty-five  of  the  formet 
and  two  of  the  latter  were  constantly  summoned :  the  names 
of  forty  occur  only  once,  and  those  of  thirty-six  others  not 
more  than  ^ve  times.'    Their  want  of  baronial  tenure,  in  all 

tional  member  of  a  barony.  The  tenants  tion  of  r^yml  powers  and  mnrder  of  the 

In  such  oaae  were  said  to  hold  of  the  liege  lord  (as  they  styled  Bdward  II.), 

king  by  the  third,  Iburth,  or  twentieth  the  lordu,  as  Judges  of  parliament,  by  as- 

part  of  a  barony,  and  did  serrloe  or  paid  sent  of  the  king  in  parliament,  awarded 

rslief  In  fiuch  propwtion.  and  ad^adged  him  to  be  hanged.    A  like 

1  Madox,  Baronia  An^ca,  p.  42  and  sentence   with  a  like  protestation  was 

68;  West's  inquiry,  p.  28,  88.    That  a  passed    on   MautraTem   and   Gonmay. 

baroo  could  only  be  tried  by  his  ftUow  There  Is  a  yery  remarlcable  anomaly  in 

barons  was  probably  a  rule  as  old  as  the  the  rase  of  Lord  Berkley,  who,  though 

trial  per  pals  of  aoommoner.  In  4  B.  III.  nndoubtedly  a  baron,  Us  anoeetors  bay- 

Sir  SUnon  Berslbxtl  haying  been  accused  ing  been  summoned  ftom  the  earliest 

before  the  lords  in  parliament  of  aiding  date  of  writs,  put  himself  on  his  trial 

and  adyising  Mortimer  In  his  treasons,  in  parliament^  by  twelTe  knights  of  the 

they  deoland  with  one  yoioe  that  he  county  of  Olouoester.    Rot.  Farl.  toI.  U. 

was  not  their  peer ;  wherefore  they  were  p.  68 ;  Rymer,  t.  iy.  p.  784 . 

not  bound  to  Judge  him  as  a  peer  of  the  *  Prynne,  p  142,  &c.;  West^s  Inqnlrf 

land ;  but  inasmuch  as  it  was  notorious  *  Pxynne,  p.  141. 
•kat  be  had  been  concerned  in  nsurpa- 


\ 


£aoi.tB  C0X8T.     BASONS  GALLED  BT  WBIT.  327 

probability,  prevented  tbe  repetition  of  writs  which  accident 
or  occasion  had  caused  to  issue.^ 

The  ancient  temporal  peers  are  supposed  to  have  been  in- 
termingled with  persons  who  held  nothing  of  the  bi^tods 
crown  by  baronj,  but  attended  in  parliament  solely  «<^m  bj 
by  virtue  of  the  king's  prerogative  exercised  in 
the  writ  of  summons.^  These  have  been  called  barons  by 
writ ;  and  it  seems  to  be  denied  by  no  one  that,  at  least  under 
the  first  three  Edwards,  there  were  some  of  this  description 
in  parliament.  But  after  all  the  labors  of  Dugdale  and  others 
in  tracing  the  genealogies  of  our  ancient  aristocracy,  it  is  a 
problem  of  much  difficulty  to  distinguish  these  from  the 
territorial  barons.  As  the  latter  honors  descended  to  female 
heirs,  they  passed  into  new  families  and  new  names,  so  that 
we  can  hardly  decide  of  one  summoned  for  the  first  time  to 
parliament  that  he  did  not  inherit  the  possession  of  a  feudal 
barony.  Husbands  of  baronial  heiresses  were  frequently 
gammoned  in  their  wives'  right,  but  by  their  own  names. 
They  even  sat  afler  the  death  of  their  wives,  as  tenants  by 
the  courtesy.*  Again,  as  lands,  though  not  the  subject  of 
frequent  transfer,  were,  especially  before  the  statute  de  donis, 
not  inalienable,  we  cannot  positively  assume  that  all  the  right 
heirs  of  original  barons  had  preserved  those  estates  upon  which 
their  barony  had  depended.^  If  we  judge,  however,  by  the 
lists  of  those  summoned,  according  to  the  best  means  in  our 
power,  it  will  appear,  according  at  least  to  one  of  our  most 
learned  investigators  of  this  subject,  that  the  regular  barons 

1  It  is  worthy  of  obeerration  that  the  I  beHere,  no  Initance  of  aoj  layman'i 

fpirltual  peen  sommonod  to  parllam«nt  makiDg  saeh  an  application.    The  termf 

wen  in  general  considerably  more  nn-  of  the  ancient  writ  of  summons,  howerer, 

merons  than  the  temporal.    Prynne,  p.  in  fide  ethomagio  qnibas  nobis  tenemini, 

114.    This  appears,  among  other  caasee,  aflbrd  a  presumption  that  a  Ibudal  tenure 

to   have  saved  tbe  church   firom  that  was,  in  construction  of  law,  the  basis  of 

■weeping  reformation  of  Its  wealth,  and  etery  lord's  attendance  in  parliament, 

perhaps  of  its  doctrines,  which  the  com-  This  Ibnn  was  not  finally  changed  to  the 

mons  were  thoroughly  inclined  to  make  present,  in  fide  et  /^af»lrA,till  ue  46th  of 

under  Richard  II.  and  lieoTy  IV.    Thus  Bdw.  III.  Prynne*s  first  Register,  n.  206. 
the  reduction  of  the  spiritual  lords  by       *  Collinses    Proceedings  (m  Claims  of 

ttie  dissolution  of  monasteries  was  indls-  Baronies,  p.  24  and  78. 
pensably  required  to  bring  the  eccle-       <  Prynne   speaks  of  "the  alienation 

■iastlcai  order  into  due  snt{^tion  to  the  of  baronies  by  sale,  gift,  or  marxisge, 

state.  aitnr  which  the   new  purchasers  were 

>  Perhaps  It  can  hardly  be  said  that  summoned  instead,"  as  if  it  ftequently 

the   king's   prerogative  compelled    the  happened.    First  Rie^ter,  p.  288.    And 

party  summoned,  not  bring  a  tenant  by  seTeral  Instances  are  mentioned  in  the 

barony,  to  take  his  seat.     But  though  BeisaTenny  case  (Collinses  Proceedings, 

several  spiritual  persoiu  appear  to  have  p.  118)  where,  land-baronies  haviog  been 

been  dlschaiyed  ttom  attendance  on  ao-  entailed  by  the  owners  on  their  beirt 

aountof  their  holding  nothing  by  baron  V,  male,  the  heirs  leneral  have  been  «B- 

a*  has  been  Justly  obsenred,  yet  there  is,  eluded  from  inhsiitiug  the  dlgoi^. 


828  BARONS  CALLED  BY  WRIT.    Chap.  Vm.  Part  m. 

by  tenure  were  all  along  very  far  more  numerous  than  thom 
called  by  widt ;  and  that  from  the  end  of  Edward  IIL'a  reign 
no  Bpiriiual  persons,  and  few  if  any  laymen,  except  peers 
created  by  patent,  were  summoned  to  parliament  who  did  not 
hold  territorial  baronies^^ 

With  respect  to  those  who  were  indebted  for  their  seats 
among  the  lords  to  the  king's  writ,  there  are  two  material 
questions :  whether  they  acquired  an  hereditary  nobility  by 
virtue  of  the  writ ;  and,  if  this  be  determined  against  them, 
whether  they  had  a  decisive  or  merely  a  deliberative  voice  in 
the  house.  Now,  for  the  first  question,  it  seems  that,  if  the 
writ  of  sunmions  conferred  an  estate  of  inheritance,  it  must 
have  done  so  either  by  virtue  of  its  terms  or  by  established 
construction  and  precedent.  But  the  writ  contains  no  words 
by  which  such  an  estate  can  in  law  be  limited ;  it  summons  the 
person  addressed  to  attend  in  parliament  in  order  to  give  his 
advice  on  the  public  business,  but  by  no  means  implies  that 
this  advice  will  be  required  of  his  heirs,  or  even  of  himself  on 
any  other  occasion.  The  strongest  expression  is  ^  vobiscum 
et  cceieris  prselatis,  magnatibus  et  proceribus,"  which  appears 
to  place  the  party  on  a  sort  of  level  with  the  peers.  But  the 
words  magnates  and  proceres  are  used  very  largely  in  an« 
cient  language,  and,  down  to  the  time  of  Edward  III.,  com- 
prehend the  king's  ordinary  council,  as  well  as  his  barons. 
Nor  can  these,  at  any  rate,  be  construed  to  pass  an  inheri- 
tance, which  in  the  grant  of  a  private  person,  much  more  of 
a  king,  would  require  express  words  of  limitation.  In  a  sin- 
gle instance,  the  wi*lt  of  summons  to  Sir  Henry  de  Bromflete 
(27  H.  VL),  we  find  these  remarkable  words :  Volumus 
enim  vos  et  haeredes  vesti'os  masculos  de  corpore  vestro  le- 
gitime exeuntes  barones  de  Vescy  existere.  But  this  Sir 
Henry  de  Bromflete  was  the  lineal  heir  of  the  ancient  barony 
de  Vesci.*  And  if  it  were  true  that  the  writ  of  summons 
conveyed  a  barony  of  iteelf,  there  seems  no  occasion  to  have 
introduced  these  extraordinary  words  of  creation  or  revival 
Indeed  there  is  less  necessity  to  urge  these  arguments  from  the 

1  Prynne^s  fint  RegUiter.  p.  287.    This  not  aware  of  Sir  Henry  de  Bromflete^s 

must  be  understood  to  mean  that  no  new  descent,  admits  that  a  writ  of  suibmonf 

flimilies  were  summoned ;    for    the  de-  to  any  one,  naming  him  baron,  or  d<Hni- 

wsendants  of  some  who  are  not  supposed  nus,  as  Baroni  de  Qreystoke.  domino  de 

to  hare  held  land-baronies   may   oon-  Furniral,  did  gire  an  inheritable  p«er- 

•tantly  be  found  in  later  lists.    [Non  age;    not  so  a  writ  generally  worded, 

IX.]  naming  the  party  knight  or  esquire,  uv 

>  West's  Inquiry.    Prynne,  who  takes  less  he  held  oy  barony. 
nttMT  lower  ground  than  West,  and  was 


CaoLOH  Coan.      BAl^EBETS  SUMMONED.  829 

DRtare  of  the  writ,  because  the  modem  doctrine,  which  is  en- 
tirely opposite  to  what  has  here  been  suggested,  asserts  that 
no  one  is  ennobled  bj  the  mere  summons  unless  he  has  ren- 
dered it  operative  bj  taking  his  seat  in  parliament ;  distin- 
guishing it  in  this  from  a  patent  of  peerage,  which  requires 
no  act  of  the  party  for  its  completion.^  But  this  distinction 
could  be  supported  bj  nothing  except  long  usage.  If,  how- 
ever, we  recur  to  the  practice  of  former  times,  we  shall  find 
that  no  less  than  ninetj-eight  laymen  were  summoned  once 
.only  to  parliament,  none  of  their  names  occurring  afterwards ; 
and  fifty  others  two,  three,  or  four  times.  Some  were  con- 
stantly summoned  during  their  lives,  none  of  whose  posterity 
ever  attained  that  honor.^  The  course  of  proceeding,  there- 
fore, previous  to  the  accession  of  Henry  VII.,  by  no  means 
warrants  the  doctrine  which  was  held  in  the  latter  end  of 
Elizabeth's  reign,*  and  has  since  been  too  fully  established 
by  repeated  precedents  to  be  shaken  by  any  reasoning.  The 
foregoing  observations  relate  to  the  more  ancient  history  of 
our  constitution,  and  to  the  plain  matter,  of  fact  as  to  those 
times,  without  considering  what  political  cause  there  might  be 
to  prevent  the  crown  from  introducing  occasional  counsellors 
into  the  house  of  lords.^ 

It  is  nuinifest  by  many  passages  in  these  records  that  ban- 
nerets were  frequently  summoned  to   the  upper 
hbuse  of  parliament,  constituting  a  distinct  class  .umm^ed 
inferior  to   barons,  though  generally  named   to-JPj®"*®*^ 
getber,   and  ultimately  confounded,  with    them.^ 

1  Lord  Abgiisfcupy*g  esM,  12  Ooke*f  of  It  In  tbe  honM  of  lordi,  did  In  1kc% 

Reportii;   and  ColllDfl^H  Proceedinga   on  create  an  hereditary  peerafi^e  from  the 

Clalnu  of  Baroniee  by  Writ,  p.  61.  fifth  year  of  Richard  II.,  though  he  re 

s  Prynne's  first  Reguter.  p.  232.    EI-  slated  this  with  rc«peet  to  ciaIoiant«  who 

flynge,  who  strennoiuTy  contends  against  could  only  dedoce  their  pedigree  from 

the  writ  of  sammons  confrrring  an  he-  an  ancestor  summoned  by   one  of  the 

teditary  nobility,  is  of  opinion  that  the  three  Edwards.  Nicolas's  (!ase  of  Barony 

party  sammoned  was  never  omitted  In  of  L*lsle,  p.  200.    The  theory,  therefore, 

subsequent    parliaments,     and    conse*  of  West,  which  denies  peerage  by  writ 

quently  was  a  peer  fbr  life.    p.  48.    But  even  to  those  summoned  In  seTeml  later 

more  regard  is  due  to  Prynne's  Utter  in-  reigns,  must  be  taken  with  limltatinn. 

quiries.  "  I  am  informed,"  it  is  said  by  Mr.  Uart, 

*  Case  of  Wlllonghby,  Collins,  p.  8 ;  ar^tndOy   *^  that  evexy    person  whose 

of  Daeres,  p.  41 ;  of  Abei^Tenny,  p.  119.  name  appears  in  the  writ  of  summons 

But  see  the  rase  of  Grey  de  Ruthin,  of  6  Ric.  II.  was  again   summoned  to 

p.   222   and   290,  where    the  contrary  the  following  parliament,  and  their  poe- 

posltion  Is  stated  by  Selden  upon  better  teritv  hare  sat  in  parliament  as  peers.'^ 

grounds.  p.  288. 

«  It  seems  to  hare  been  admitted  by       >  Rot.  Pari.  toI.  H.  p.  147,  809 ;  toI.  Hi 

liord  Redesdale,  in  the  case  of  the  barony  p.  100, 886.  424;  ToL  It.  p.  874.  Ryintt 

of  L*Isle,  that  a  writ  of  summons,  with  t.  tU.  p.  161 
■nlletant  pnxrf  of  faaTing  tat  by  Tirtne 


830  BANKEKETS  SUMMONED    Chap.  Vm.  Past  IC 

Barons  are  disdnguislied  bj  the  appellation  of  Sire,  banner- 
ets have  only  that  of  Monsieur,  as  le  Sire  de  Berkeley,  le 
Sire  de  Fitzwalter,  Monsieur  Richard'  Scrop,  Monsieur  Bich« 
ard  Stafford.  In  the  7th  of  Richard  II.  Thomas  Camoys 
having  been  elected  knight  of  the  shire  for  Surrey,  the  king 
addresses  a  writ  to  the  sheriff,  directing  him  to  proceed  to  a 
new  election,  cum  hujusmodi  banneretti  ante  hsec  tempora  in 
milites  comitatus  ratione  alicujus  parliament!  eligi  minime 
consueverunt  Camoys  was  summoned  by  writ  to  the  same 
parliament.  It  has  been  inferred  from  hence  by  Selden  that 
he  was  a  baron,  and  that  the  word  banneret  is  merely  sy- 
nonymous.^ But  this  is  contradicted  by  too  many  passages. 
Bannerets  had  so  far  been  considered  as  commoners  some 
years  before  that  they  could  not  be  challenged  on  juries.* 
But  they  seem  to  have  been  more  highly  estimated  at  the 
date  of  this  writ 

The  distinction,  however,  between  barons  and  bannerets 
died  away  by  degrees.  In  the  2d  of  Henry  VI.'  Scrop  of 
Bolton  is  called  le  Sire  de  Scrop ;  a  proof  that  he  was  then 
reckoned  among  the  barons.  The  bannerets  do  not  oflen  ap- 
peajr  afterwards  by  that  appellation  as  members  of  the  upper 
house.  Bannerets,  or,  as  they  are  called,  ban  rents,  are  enu- 
merated among  the  orders  of  Scottish  nobility  in  the  year 
1428,  when  the  statute  directing  the  common  lairds  or  tenants 
in  capite  to  send  representatives  was  enacted  ;  and  a  modem 
historian  justly  calls  them  an  intermediate  order  between  the 
peers  and  lairds.^  Perhaps  a  consideration  of  these  facts,  which 
have  frequently  been  overlooked,  may  tend  in  some  measure 
to  explain  the  occasional  discontinuance,  or  sometimes  the 
entire  cessation,  of  writs,  of  summons  to  an  individual  or  his 
descendants ;  since  we  may  conceive  that  bannerets,  being  of 
a  dignity  much  inferior  to  that  of  barons,  had  no  such  inherit- 
able nobility  in  their  blood  as  rendered  their  parliamentary 
privileges  a  matter  of  right.     But  whether  all  those  who 

1  Selden^s  Worlcs,   toI.    Hi.    p.    764.  ijnm'i  Method  of  holding  ParUamenti, 

Selden^s  opinion  that  bannerets  In  the  p.  65. 

lords'  house  were  the  same  as  barons  *  Puis  nn  fht  cbalengi  puree  quMl  fht 

may  Be<*ni  to  call  on  me  for  some  con-  a  banniere,  et  non  allocatur ;  car  s'll  soil 

tiary  nuthorltle^,  in  order  to  support  my  a  banniere.  et  ne  tient  pas  par  baronie,  U 

own  a«s«rtion,  benides  the  pwsa^  abore  sera  en  I'asKise.    Year-ltook  22  Kdw.  III. 

quoted  from  the  rolls,  of  which  he  would  fol.  18  a.  apud  West's  Inquiry^  p.  22. 

naturally  be  supposed  a  more  competent  *  Kot.  PkrU  vol.  It  p.  201. 

ludgp.     I  refer  therefore  to  Speluian's  *  Pinkerton's  Hist,  cf  Scotland,  ?ol.  I 

Olosfeary,  p.  74 ;  ^Vhitelocke  on  ParUa-  p.  367  and  366. 
mentaij  Writ,  toI.  i.  p.  314;  and  SI- 


ExGuaH  CosBT.       TO  HOUSE  OF  LORDS.  331 

without  any  baronial  tenure  received  tbeir  writs  of  summonji 
to  parliament  belonged  to  the  order  of  bannerets  I  cannot 
pretend  to  afiirm ;  though  some  passages  in  the  rolls  might 
rather  lead  to  such  a  supposition.^ 

The  second  question  relates  to  the  right  of  sufirage  pos- 
sessed by  these  temporary  members  of  the  upper  house.  It 
might  seem  plausible  certainly  to  conceive  that  the  real  and 
ancient  aristocracy  would  not  permit  their  powers  to  be  im- 
paired by  numbering  the  votes  of  such  as  the  king  might 
please  to  send  among  them,  however  they  might  allow  them 
to  assist  in  their  debates.  But  I  am  much  more  inclined  to 
suppose  that  they  were  in  all  respects  on  an  equality  with 
other  peers  during  their  actual  attendance  in  parliament. 
For, —  1.  They  are  summoned  by  the  same  writ  as  the  rest, 
and  their  names  are  confused  among  them  in  the  lists; 
whereas  the  judges  and  ordinary  counsellors  are  called  by 
a  separate  writ,  vobiscum  et  casteris  de  consilio  nostro.  and 
th^ir  names  are  entered  after  those  of  the  peers.^  2.  Some^ 
who  do  not  appear  to  have  held  land-baronies,  were  constantly 
summoned  from  father  to  son,  and  thus  became  hereditary 
lords  of  parliament  through  a  sort  of  prescriptive  right,  which 
probably  was  the  foundation  of  extending  the  same  privilege 
afterwards  to  the  descendants  of  all  who  had  once  been  sum« 
moned.  There  is  no  evidence  that  the  family  of  Scrope,  for 
example,  which  was  eminent  under  Edward  III.  and  subse* 
quent  kings,  and  gave  rise  to  two  branches,  the  lords  of  Bolton 
and  Masham,  inherited  any  territorial  honor.'    3.  It  is  very 

>  The  lords*  committee  do  not  like,  ap-  ants  witbont  Riifh«ftei  citee  the  writ  te 

parently,  to  admit  that  bannereta  were  them  rather  diningenaouiily,  an  if  it  rao 

■ummoned   to  the  hoaee  of  lords  as  a  Toblseum  et  cum  prelatis,  magnafibus 

distinct  class  of  peers.    **  It  Is  obserT-  ao  procerlbus,  omittlnff  the  luiportani 

able/'  they  say,  **  that  this  statute  (6  word  csBteris.    p.  86.    Prynoef  however. 

Ric.  n.  c.  4)  speaks  of  bannerets  as  well  from  whom  West  has  borrowed  a  great 

■a  of  dukes,  earls,  and  barons,  as  persona  part  of  his  aivamentB,  doee  not  seem  to 

bound  to  attend  the  parliament;  but  it  go  the  length  of  denying  the  right  of 

docs  not  follow  that  banneret  was  then  suOknge  to  persons  so  summoned.    lHat 

considered  as  a  name  of  dignity  distinct  Register,  p.  287. 

finom  that  honorable  knighthood  under  *  These  descended  from  two  penona. 

the  king's  banner  in  the  field  of  battle,  each  named   Oeoflfrey  le  Scivtpe,  chief 

to  which  precedence  of  all  other  knights  Justices  of  K.  B.  and  0.  B.  at  The  b^in- 

was  attributed."     p.  842.    But  did  the  ning  of  Edward  Ill.'s  reign.    The  name 

committee  really    oelieTe  that    all  the  of  one  of  them  is  once  found  among  the 

bannerets  of  whom  we  read  in  the  reigns  barons,  but  I  presume  this  to  have  been 

of  Richard  11^ and  afterwards  bad  been  an  accident,  or  mistake  in  the  roll;  as 

knighted  at  Crecy  and   Poitiers?     The  he  is  fVeqnently  mentioned   afterwardf 

name  Is  only   found  in  parlltmentary  among  the  Judges.    Scrope,  chief  justice 

procceJl ngs   during   oomparatlTe^    pa-  of  K.  B.,  was  made  a bo»neret  in  14  £.  I II. 

oifie  times.  He  was  the  fother  of  Henry  Scrope  of 


sent 


>  West,  whose  business  it  was  to  repre-    llasham,  a  considerable  person   in  Bd 
Bt  the  barons  by  writ  as  mere  assist-    ward  Hi.  and  Richard  U.'s  gorernmanl 


332  BANNERETS  SUMMONED    CJhap.  VIIL  Pab*  m. 

difllcuU  to  obtain  any  direct  proof  as  to  the  right  of  voting, 
because  the  rolls  of  parliament  do  not  take  notice  of  any  de- 
bates ;  but  there  happens  to  exist  one  reraariuible  passage  in 
which  the  suffrages  of  the  lords  are  individuaUj  specified. 
In  the  first  parliament  of  Henry  IV.  they  were  requested  by 
the  earl  of  Northumberland  to  declare  what  should  be  done 
with  the  late  king  Richard.  The  lords  then  present  agreed 
that  he  should  be  detained  in  safe  custody ;  and  on  account 
of  the  importance  of  this  matter  it  seems  to  have  been  thought 
necessary  to  enter  their  names  upon  the  roll  in  these  words : 
—  The  names  of  the  lords  concurring  in  their  answer  to  the 
said  question  here  follow ;  to  wit,  the  archbishpp  of  Canter- 
bury and  fourteen  other  bishops ;  seven  abbots ;  the  prince  of 
WflJes,  the  duke  of  York,  and  six  earls;  nineteen  barons, 
styled  thus — le  Sire  de  Boos,  or  le  Sire  de  Grey  de  Ruthyn. 
Thus  far  the  entry  has  nothing  singular;  but  then  follow 
these  nine  names:  Monsieur  Henry  Percy,  Monsieur  Richard 
Scrop,  le  Sire  Fitz-hugh,  le  Sire  de  Bergeveny,  le  Sire  de 
Lorn  ley,  le  Baron  de  Greystock,  le  Baron  de  Hilton,  Mon- 
sieur Thomas  Erpyngham,  chamberlayn.  Monsieur  Mayhewe 
Gournay.  •  Of  these  nine  five  were  undoubtedly  barons,  from 
whatever  cause  misplaced  in  order.  Scrop  was  summoned 
by  writ ;  but  his  title  of  Monsieur,  by  which  he  is  invariably 
denominated,  would  of  itself  create  a  strong  suspicion  that 
he  was  no  baron,  and  in  another  place  we  find  him  reckoned 
among  the  bannerets.  The  other  three  do  not  appear  to  have 
been  summoned,  their  writs  probably  being  lost.  One  of 
them,  Sir  Thomas  Erpyngham,  a  statesman  well  known  in 
the  history  of  those  times,  is  said  to  have  been  a  banneret;^ 
certainly  he  was  not  a  baron.  It  is  not  unlikely  that  the  two 
others,  Henry  Percy  (Hotspur)  and  Gk)umay,  an  officer  of 
the  household,  were  also  bannerets ;  they  cannot  at  least  be 
supposed  to  be  barons,  neither  were  they  ever  summoned  to 

vhoMfl^Ddson.LordScTOiMofMuhain.  this  intricate  tnl^t.     ThoaSoropeof 

was  behaaded  for  a  eonsplraey  againat  Mawham,  though  oertaiDly  a  baroo,  and 

Hvnry  V.   There  irag  a  tkuMy  of  Scrape  triad  next  year  by  the  peen,  is  called 

aa  old  as  the  reign  of  Henry  II.;  but  It  chevaUor  in  an  instrument  of  1  H.  V. 

Is  not  clear,  notwithstanding  Dugdale*s  Rymer,  t.  Iz.  p.  IS.  So  in  the  indietmeni 

assertion,  that  the  Scropee  descended  (W>m  ag^nst  Sir  John  Oldcastls,  he  is  con* 

them,  or  at  least  that  they  held  the  sama  staotly  styled  knight,  though  he  had  been 

lands :  nor  were  the  Scrapes  barons,  as  summoned  seTeral  times  as  lord  Oobham, 

appears  by  their  paying  a  relief  of  only  in  right  of  his  wife,  who  inherited  that 

•izty  marks  for  three  knights*  Cms.  Du^  barony.    Rot.  Pari.  yol.  iv.  p.  107. 
dale's  Baronage,  p.  054.  ^  Blomefleld's  Hist,  of  Norfolk,  toI.  UL 

The  want  of  oonslsCency  in  old  reeords  p.  646  (folio  edit.). 
Ilizom  much  additional  diOeal^  orar 


Btolibb  Covbt.  CBEATION  OF  FEEBS.  333 

anj  subsequent  parliament  Yet  in  the  oi  I7  record  we  pos- 
sess of  votes  actuallj  given  in  the  house  of  lords  they  appear 
to  have  been  reckoned  among  the  rest^ 

The  next  method  of  conferring  an  honor  of  peerage  was 
by  creation  in  parliament.  This  was  adopted  by  0,^^^^  ^ 
Edward  III.  in  several  instances,  though  always,  peen  by 
I  believe,  for  the  higher  titles  of  duke  or  earl.  It  ■*•'"*•• 
is  laid  down  by  lawyers  that  whatever  the  king  is  said  in  an 
ancient  record  to  have  done  in  full  parliament  must  be  taken 
to  have  proceeded  from  the  whole  legislature.  As  a  questiov 
of  fact,  indeed,  it  might  be  doubted  whether,  in  many  pro 
oeedings  wh^re  this  expression  is  used,  and  especially  in  th« 
creation  of  peers,  the  assent  of  the  commons  was  specifically 
and  deliberately  given.  It  seems  hardly  consonant  to  the 
circumstances  of  their  order  under  Edward  III.  to  suppose 
their  sanction  necessary  in  what  seemed  so  little  to  concern 
their  interest  Yet  there  is  an  instance  in  the  fortieth  year 
of  that  prince  where  the  lords  individually,  and  the  commons 
with  one  voice,  are  declared  to  have  consented,  at  the  king's 
request,  that  the  lord  de  Coucy,  who  had  married  his  daugh- 
ter, and  was  already  possessed  of  estates  in  England,  might 
be  raised  to  the  dignity  of  an  earl,  whenever  the  king  should 
determine  what  earldom  he  would  confer  upon  him.^  Unditr 
Richard  11.  the  marquisate  of  Dublin  is  granted  to  Vere  by 
full  consent  of  all  the  estates.  But  this  instrument,  besides 
the  unusual  name  of  dignity,  contained  an  extensive  jurisdio* 
tion  and  authority  over  Ireland.*  In  the  same  reign  Lancas- 
ter was  made  duke  of  Guienne,  and  the  duke  of  York's  son 
created  earl  of  Rutland,  to  hold  during  his  father's  life.  The 
consent  of  the  lords  and  commons  is  expressed  in  their  patents, 
and  they  are  entered  upon  the  roll  of  parliament^  Henry  Y, 
created  liis  brotliers  dukes  of  Bedford  and  Gloucester  by  re- 
quest of  the  lords  and  commons.*  But  the  patent  of  Six 
John  Ck>mwalL  in  the  tenth  of  Henry  VI.,  declares  him  to  be 
made  lord  Fanhope,  ^'by  consent  of  the  lords,  in  the  presence 
'  of  the  three  estates  of  parliament;"  as  if  it  were  designed 
to  show  that  the  commons  had  not  a  legislative  Toice  In  th« 
creation  of  peers.* 

The  mention  I  have  made  of  creating  peers  by  ^t  of  par 

«  Rot.  Pari.  vol.  m.  p.  ^.  «  Id.  p.  9B8, 9M. 

*  Boi.  Pari.  toI.  il.  p.  2B0.  *  Tol.  It.  p.  17. 

•  vol.  Ui.  p.  900  •LLp.lOl. 


334  CLEEtGT  SUMMONED     Chap.  Yin.  Pabt  HL 

And  by  liament  has  partly  anticipated  the  modem  fonn  of 
I******-  letters-patent,  with  which  the  other  was  nearly 
allied.  The  fii'st  instance  of  a  barony  conferred  by  patent 
was  in  the  tenth  year  of  Richard  II.,  when  Sir  John  Holt,  a 
judge  of  the  Common  Pleas,  was  created  lord  Beaachamp 
of  Kidderminster.  Holt's  patent,  however,  passed  while 
Richard  was  endeavoring  to  act  in  an  arbitrary  manner ;  and 
in  fact  he  never  sat  in  parliament,  having  been  attainted  in 
that  of  the  next  year  by  the  name  of  Sir  John  Holt.  In  a 
number  of  subsequent  patents  down  to  the  reign  of  Henry 
YII.  the  assent  of  parliament  is  expressed,  though  it  fre- 
quently happens  that  no  mention  of  it  occurs,  in  the  parlia- 
mentary roll.  And  in  some  instances  the  roll  speaks  to  the 
consent  of  parliament  where  the  patent  itself  is  silent.^ 
1 1  is  now  perhaps  scarcely  known  by  many  persons  not 

unversed  in  the  constitution  of  their  country,  that, 
■mooned  besides  the  bishops  and  baronial  abbots,  the  in- 
***  *iamwit     ^*^"^r  clergy  were  regularly  summoned  at  every 

parliament.  In  the  writ  of  summons  to  a  bishop 
he  is  still  directed  to  cause  the  dean  of  his  cathedral  church, 
the  archdeacon  of  his  diocese,  with  one  proctor  from  the  chap 
ter  of  the  former,  and  two  from  the  body  of  his  clergy,  to 
attend  with  him  at  the  place  of  meeting.  This  might,  by  an 
inobservant  reader,  be  confounded  with  the  summons  to  the 
convocation,  which  is  composed  of  the  same  constituent  parts, 
and,  by  modern  usage,  is  made  to  assemble  on  the  same  day. 
But  it  may  easily  be  distinguished  by  this  difference  —  that 
the  convocation  is  provincial,  and  summoned  by  the  metro- 
politans of  Canterbury  and  York ;  whereas  the  clause  com- 
monly denominated  praemunientes  (from  its  first  word)  in  the 
writ  to  each  bishop  proceeds  from  the  crown,  and  enjoins  the 
attendance  of  the  clergy  at  the  national  council  of  parlia- 
ment.* 

The  first  unequivocal  instance  of  representatives  appearing 
for  the  lower  clergy  is  in  the  year  1255,  when  they  are  ex- 
pressly named  by  the  author  of  the  Annals  of  Burton.' 

1  T^'eiit^g  Inquiry,  p.  66.    Thia  writer  kept  in  sight.    It  wm  his  object  to  proT« 

dons  not  allow  that  the  king  possessed  that  the  pending  bill  to  limit  the  num- 

the  prerogatire  of  creating  new  peers,  bers  of  the  peerage  was  conformable  to 

without   oonsent   of  parliament.     Bat  the  original  eonratntlon. 

Prynne  (1st  Register,  p.  226),  who  gener*  *  Hody's  History  of  ConToeations,  p. 

Ally  adopts  the  same  theory  of  p««rage  12.    Blssertatlo  de  antiquA  et  modemlk 

as  West,  strongly  asserts  th^  contrary ;  SynodI  AngUcanl  Constitatlond,  prefixed 

and  the  party  Ttowt  of  the  latter*s  trea-  tr  WUkins's  Concilia,  t.  1. 

Use.  which  I  mentioned  abore,  should  be  •2  Gale,  BeiiptoCM  Bar.  Ai«tte.  t.  M 


lErougn  CoHBT.     TO  ATTEND  PARLIAMENT.  J8d5 

Thej  preceded,  therefore,  by  a  few  years  tbe  house  of  ooin« 
moos;  but  the  introduction  of  each  was  founded  upon  the 
Bame  principle.  The  king  required  the  clergy's  money,  but 
dared  not  take  it  without  their  consent.^  In  the  double 
parliament,  if  so  we  may  call  it,  summoned  in  tlie  eleventh 
of  Edward  I.  to  meet  at  Northampton  and  York,  and  divided 
according  to  the  two  ecclesiastical  provinces,  the  proctors  of 
chapters  for  each  province,  but  not  those  of  the  diocesan 
clergy,  were-  summoned  through  a  royal  writ  addressed  to 
the  archbishops.  Upon  account  of  the  absence  of  any  depu- 
ties from  the  lower  clergy  these  assemblies  refused  to  grant 
a  subsidy.  The  proctors  of  both  descriptions  appear  to  have 
been  summoned  by  the  prsemunientes  clause  in  the  2 2d,  23d, 
24th,  28th,  and  3dth  years  of  the  same  king ;  but  in  some 
other  parliaments  of  his  reign  the  prsemunientes  clause  is 
omitted.'  The  same  irregularity  continued  under  his  suc- 
cessor ;  and  the  constant  usage  of  inserting  this  clause  in  the 
bishop's  writ  is  dated  from  the  twenty-eighth  of  Edward  III.* 
It  is  highly  probable  that  Edward  I.,  whose  legislative 
mind  was  engaged  in  modelling  the  constitution  on  a  compre- 
hensive scheme,  designed  to  render  the  clergy  an  effective 
branch  of  parliament,  however  their  continual  redstance 
may  have  defeated  the  accomplishment  of  this  intention.^ 
Wq  find  an  entry  upon  the  roll  of  his  parliament  at  Carlisle, 
containing  a  list  of  all  the  proctors  deputed  to  it  by  the 
several  dioceses  of  the  kingdom.  This  may  be  reckoned  a 
clear  proof  of  their  parliamentary  attendance  during  his 
reign  under  the  pnemunientes  clause ;  since  the  province  of 
Canterbury  could  not  have  been  present  in  convocation  at  a 
city  beyond  its  limits.^  And  indeed,  if  we  were  to  found  our 
judgment  merely  on  the  language  used  in  these  writs,  it 
would  be  hard  to  resiilt  a  very  strange  paradox,  that  the 
clergy  were  not  only  one  of  the  three  estates  of  the  realm, 
but  as  essential  a  member  of  the  legislature  by  their  repre* 
sentatives  as  the  conunons.*    They  are  summoned  in  the 

p.  855 ;  nodj,  p.  846.  AttnrbiiTy  (Righto       i  Hodj.  p.  881 ;  Atterbnrj*!  Bi^to  of 

tf  OoDToeatioos,  p.  205,  816)  endMTon  ConTOc&ttons  jd.  221. 

to  show  that  the  elergr  bad  been  repve*       *  Hody,  p.  886 ;  Atteibniy,  p.  28S. 

tented  In  parliament  from  the  Conquest       *  Hody,  p.  8D1. 

as  well   as  before  it.    Man/  of  the  pas-       *  Gilbert^s  Hist,  of  Xxeheqner,  p.  €7. 

•aises  hft  quotes  are  Tery  inooneluMTe ;       •  Rot.  Pari.  toI.  i.  p   188 ;  Atterbnzyi 

but  possibly  there  may  be  some  wdght  p.  229. 

In  one  from  Uatthew  Paris,  ad  ann.  1247       *  The  lower  honas  of  oo&TOeation,  !■ 

»nd  two  or  three  writo  of  the  raign  of  1M7,  texrified  at  the  progress  of  reforma- 

Beniy  HI  tion.  petitioned  that,  "  aeconUag  to  us 


836  CLERGY  SUMMONED     Chap.  VHI.  Part  HI- 

earliest  year  extant  (23  E.  L)  ad  tractandum,  ordinandum  et 
fitciendum  nobiscum,  et  cum  caeteris  prselatis,  proceribus,  ac 
aliis  incolis  regni  nostri ;  in  that  of  the  next  year,  ad  ordi- 
nandum de  quantitate  et  modo  subsidii ;  in  that  of  the  twen- 
ty-eighth, ad  faciendum  et  consentiendum  his,  quae  tunc  de 
oommuni  consilio  ordinari  contigerit  In  later  times  it  ran 
sometimes  ad  faciendum  et  consentiendum,  sometimes  only 
ad  consentiendum ;  which,  from  the  fifth  of  Richard  XL,  has 
been  the  term  invariably  adopted.^  Now,  as  it  is  usual  to 
infer  from  the  same  words,  when  introduced  into  the  writs 
for  election  of  the  commons,  that  they  possessed  an  enacting 
power,  implied  in  the  words  ad  faciendum,  or  at  least  to 
deduce  the  necessity  of  their  assent  from  the  words  ad 
consentiendum,  it  should  seem  to  follow  that  the  clergy  were 
invested,  as  a  branch  of  the  parliament  with  rights  no  less 
extensive.  It  is  to  be  considered  how  we  can  reconcile  these 
apparent  attributes  of  political  power  with  the  unquestiona- 
ble facts  that  almost  all  laws,  even  while  they  continued  to 
attend,  were  passed  without  their  concurrence,  and  that,  after 
some  time,  they  ceased  altogether  to  comply  with  the  writ.* 
The  solution  of  this  diiRculty  can  only  be  found  in  that 
estrangement  from  the  common  law  and  the  temporal  courts 
which  the  clergy  throughout  Europe  were  disposed  to  effect. 
In  this  country  their  ambition  defeated  its  own  ends;  and 
while  they  endeavored  by  privileges  and  immunities  to  sepa- 
rate themselves  from  the  people,  they  did  not  perceive  that 
the  line  of  demarcation  thus  strongly  traced  would  cut  them 
off  from  the  sympathy  of  common  interests.  Everything 
which  they  could  call  of  ecclesiastical  cognizance  was  drawn 
into  their  own  courts ;  while  the  administration  of  what  they 
contemned  as  a  barbarous  system,  the  temporal  law  of  the 
land,  fell  into  the  hands  of  lay  judges.     But  these  were  men 

tenor  of  the  klng^a  writ,  and  the  ancient  parliament  till  the  Refbrmattoa.     QU- 

eustoma  of  the  realm,  they  might  haye  berths  Hist,  of  the  Exchequer,  p.  67. 

room  and  place  and  be  associated  with  i  Ilody,  p.  892. 

the  commons  in  the  nether  house  of  this  *  The  pnemunientra  clause  In  a  bish- 

present  parliament,  as  members  of  the  op^s  writ  of  summons  was  so  for  regarded 

commonwealth  and  the  king's  most  hum-  down  to  the  Refbrmation,  that  proctors 

ble  sul^ts."     Burnet's   Hist,  of  Ref-  were  elected,  and  their  names  returned 

ormatioUf  toI.  li. ;    Appendix,  No.  17.  upon  the  writ ;  though  the  clergy  never 

This  assertion  that  the  clergy  had  erer  attended  firom  the  b«^nning  of  the  flf- 

been  associated  as  one  body  with  the  teenth  century,  and  gave  th«dr  money 

commons  is  not  borne  out  by  anything  only  in  eonvocadon.    Since  the  Reforma- 

that  appears  on  our  tecords,  and  is  con>  tion  the  clause  has   been  preserved  ftnr 

tradicted  by  many  passages.    But  it  is  form  merely  In  the  writ.     Wllkins,  Dla- 

•aid  that  the  clergy  were  actually   so  ertatio,  ubi  supn. 
united  with  the  commons  In  the  Iziah 


EvousK  CoirsT.     TO  ATTEND  PARLIAMENT.  337 

not  less  subUe,  not  less  ambitioas,  not  less  attached  to  their 
profession  than  themselves ;  and  wielding,  as  thej  did  in  the 
courts  of  Westminster,  the  delegated  sceptre  of  judicial 
sovereignty,  thej  soon  began  to  control  the  spiritual  jurisdic- 
tion, and  to  establish  the  inherent  supremacy  of  the  common 
law.  From  this  time  an  inveterate  animosity  subsisted  be- 
tween the  two  courts,  the  vestiges  of  which  have  only  been 
effaced  by  the  liberal  wisdom  of  modem  ages.  The  general 
love  of  the  common  law,  however,  with  the  great  weight  of 
its  professors  in  the  king's  council  and  in  parliament,  kept  th 
clergy  in  surprising  subjection.  None  of  our  kings  after 
Henry  III.  were  bigots ;  and  the  constant  tone  of  the  com- 
mons serves  to  show  that  the  English  nation  was  thoroughly 
averse  to  ecclesiastical  influence,  whether  of  their  own  church 
or  the  see  of  Rome. 

It  was  natural,  therefore,  to  withstand  the  interference  of 
the  clergy  summoned  to  parliament  in  legislation,  as  much  as 
that  of  the  spiritual  court  in  temporal  jurisdiction.  With 
the  ordinary  subjects,  indeed,  of  legislation  they  had  little 
concern.  The  oppressions  of  the  king's  purveyors,  or  es- 
cheators,  or  officers  of  the  forests,  the  abuses  or  defects  ^of 
the  common  law,  the  regulations  necessary  for  trading  towns 
and  seaports,  were  matters  that  touched  them  not,  and  to 
which  their  consent  was  never  required.  And,  as  they  well 
knew  there  was  no  design  in  summoning  their  attendance  but 
to  obtain  money,  it  was  with  great  reluctance  that  they 
obeyed  the  royal  writ,  which  was  generally  obliged  to  be  en- 
forced by  an  archiepiscopal  mandate.^  Thus,  instead  of  an 
assembly  of  deputies  from  an  estate  of  the  realm,  they  be- 
came a  synod  or  convocation.  And  it  seems  probable  that 
in  most,  if  not  all,  instances  where  the  clergy  are  sud  in  the 
roll  of  parliament  to  have  presented  their  petitions,  or  are 
otherwise  mentioned  as  a  deliberative  body,  we  should  sup- 
pose the  convocation  alone  of  the  province  of  Canterbury  to 
be  intended.*     For  that  of  York  seems  to  have  been  always 

>  Hody,  p.  896, 406,  fro.    In  1814  the  Th«  Utter  teemi  to  think  that  the  clergy 

clergy  protest  even  ftgidnst  the  recital  of  of  both  provinces  never  actually  met  in  a 

the  king's  writ  to  the  archbishop  direct-  national  oooncil  or  bonse  of  parliament, 

ing  him  to  sammon  the  clergy  of  his  pro>  nnder  the  pmmunientes  writ,  after  the 

Tlnce  In  his  letters  mandatory,  declaring  reign  of  JBdward  11.,  though  the  proctors 

that  the  Soglish  clergy  had  not  been  were  duly  returned.    But  Ilody  does  not 

accustomed,  nor  ought  by  itebt,  to  be  go  quite  so  &r,  and  Atterbury  had  a  par- 

eonvoked  bv  the  king's  authority.  Attar-  tienlar  motive  to  enhance  the  influence 

bury,  p.  280.  of  the  oonTOoatlon  of  OantiirbnrT. 

*aody,  p.  425.    Attevbnxy,  p.  43, 288 
VOL.  II.  —  V.  22 


838  CLERGY  SUMMONED     CiUF.Vni.  Past  IQ 

considered  as  inferior,  and  even  ancillarj,  to  the  greater 
province,  voting  subsidies,  and  even  assenting  to  canons, 
without  deliberation,  in  compliance  with  the  example  of  Can- 
terbury;^ the  convocation  of  which  province  consequently 
assumed  the  importance  of  a  national  council.  But  in  either 
point  of  view  the  proceedings  of  this  ecclesiastical  assembly, 
collateral  in  a  certain  sense  to  parliament,  yet  very  inti- 
mately connected  with  it,  whether  sitting  by  virtue  of  the 
prsemunientes  clause  or  otherwise,  deserve  some  notice  in  a 
constitutional  history. 

In  the  sixth  year  of  Edward  III.  the  proctors  of  the 
clergy  are  specially  mentioned  as  present  at  the  speech  pro- 
nounced by  the  king's  commissioner,  and  retired,  along  with 
the  prelates,  to  consult  together  upon  the  business  submitted 
to  their  deliberation.  They  proposed  accordingly  a  sentence 
of  excommunication  against  disturbers  of  the  peace^  which 
was  assented  to  by  the  lords  and  commons.  The  clergy  are 
said  afterwards  to  have  had  leave,  as  well  as  the  knights, 
citizens,  and  burgesses,  to  return  to  their  homes ;  the  prel- 
ates and  peers  continuing  with  the  king.'  This  appearance 
of  the  clergy  in  full  parliament  is  not,  perhaps,  so  decisively 
proved  by  any  later  record.  But  in  the  eighteenth  of  the 
same  reign  several  petitions  of  the  clergy  are  granted  by  the 
king  and  his  council,  entered  on  the  roll  of  parliament,  and 
even  the  statute  roll,  and  in  some  respects  are  still  part  of 
our  law.'  To  these  it  seems  highly  probable  that  the  com- 
mons gave  no  assent ;  and  they  may  be  reckoned  among  the 
other  infringements  of  their  legislative  rights.  It  is  remaxk- 
able  that  in  the  same  parliament  the  commons,  as  if  appre- 
hensive of  what  was  in  preparation,  besought  the  king  that 
no  petition  of  the  clergy  might  be  granted  till  he  and  his 
council  should  have  considered  whether  it  would  turn  to  the 
prejudice  of  the  lords  or  commons.* 

A  series  of  petitions  from  the  clergy,  in  the  twenty-ilf\h 
of  Edward  III.,  had  not  probably  any  real  assent  of  the 
commons,  though  it  is  once  mentioned  in  the  enacting  words, 
when  they  were  drawn  into  a  statute.'    Indeed  the  petitions 

>  Atterbnry,  p.  46.  The  pretended  ttatntet  irere  theraftm 

*  Rot.  Pari.  Tol.  ii.  p.  64,  66.  every  way  null ;  being  fiUsiely  imputed 

*  IS  £.  III.  Stat  3.    Rot.  Pari.  Tol.  U.  to  an  incomplete  parliament. 

I).  161.    Thifl  &■  the  pariiament  in  which  *  Rot.  Pari.  toI.  ii.  p.  151. 

t  ia  very  doabtful  whether  any  deputies  »  26  S.  HI.  ttat  S. 
fh»m  citiee  and  boroushs  bad  a  i^laoe. 


BvoLOB  oOBVT       iX>  ATTEND  PABLUMENT.  839 

correspond  so  little  with, the  general  sentiment  of  hostility 
towards  ecclesiastical  privileges  manifested  by  the  lower 
house  of  parliament,  that  they  would  not  easily  have  ob- 
tained its  acquiescence.  The  conyocation  of  the  province  of 
Canterbury  presented  several  petitions  in  the  fiftieth  year  of 
the  same  king,  to  which  they  received  an  assenting  answer ; 
but  they  are  not  found  in  the  statute-book.  This,  however, 
produced  the  following  remonstrance  from  the  commons  at 
the  next  parliament :  ^  Also  the  commons  beseech  their  lord 
the  king,  that  no  statute  nor  ordinance  be  made  at  the  peti- 
tion of  the  clergy,  unless  by  assent  of  your  commons ;  and 
that  your  commons  be  not  bound  by  any  constitutions  which 
they  make  for  their  own  profit  without  the  commons'  assent. 
For  they  will  not  be  bound  by  any  of  your  statutes  or  ordi- 
nances made  without  their  assent.'*^  The  king  evaded  a 
direct  answer  to  this  petition.  But  the  province  of  Canter^ 
bury  did  not  the  less  present  their  own  grievances  to  the 
king  in  that  parliament,  and  two  among  the  statutes  of  the 
year  seem  to  be  founded  upon  no  other  authority.' 

In  the  first  session  of  Richard  II.  the  prelates  and  clergy 
of  both  provinces  are  said  to  have  presented  their  schedule 
of  petitions  which  appear  upon  the  roll,  and  three  of  which 
are  the  foundation  of  statutes  unassented  to  in  all  probability 
by  the  commons.*  If  the  clergy  of  both  provinces  were 
actually  present,  as  is  here  asserted,  it  must  of  course  have 
been  as  a  house  of  parliament,  and  not  of  convocation.  It 
rather  seems,  so  far  as  we  can  trust  to  the  phraseology  of 
records,  that  the  clergy  sat  also  in  a  national  assembly  under 
the  king's  writ  in  the  second  year  of  the  same  king.^  Upon 
other  occasions  during  the  same  reign,  where  the  representa- 
tives of  the  clergy  are  alluded  to  as  a  deliberative  body, 
sitting  at  the  same  time  with  the  parliament,  it  is  impossible 
to  ascertain  its  constitution;  and,  indeed,  even  from  those 
already  cited  we  cannot  draw  any  positive  inference.*    But 

1  26  B  m.  ftet.  8,  p.  888.    The  word  n.  o.  18, 14, 16.    But  Me  H6dj»  P*  426; 

ihey  it  amblguoiu ;  ^Vhiteloeke  (oo  Par^  Atterbuiy,  p.  829. 

Uamenhtfj  writ,  vol.  H.  p.  846)  interpret!  «  Rok.  Pari.  Tol.  lii.  p.  87. 

it  of  the  eommona :  I  ahoald  retber  eap-  *  It  might  be  argned,  fkom  m  peeeefe 

poM  it  to  mean  the  cleigj.  in  the  parliament-roll  of  21  R.  II.,  that 

*  60  K.  III.  e.  4  ft  6.  the  elergy  of  both  prorlnees  were  not 

*  Rot.  Pari.  Tol.  ill.  p.  26.  A  nostre  only  preeent,  but  that  they  were  ao- 
tne  ezoelleat  aeigoeur  le  roy  suppUent  eonnted  an  eeaendal  part  of  parUament 
aumblement  aea  derotea  omtoara,  lee  In  temporal  matten,  which  is  eontxaiy  to 

'  kte  et  la  elergle  de  la  prorlnoe  de  the  whole  tenor  of  oar  lawe.    The  com* 

'ixKM  d'BTwwyk.  Stat.  1  Rlehard  moni  are  there  laid  to  have  prayed  that 


340  CLEEGT  IN  PARLIAMENT.  Chap.  Vm.  Part  m. 

whether  in  convocation  or  in  parliament,  tbej  certainly 
formed  a  legislative  council  in  ecclesiastical  matters  bj  the 
advice  and  consent  of  which  alone,  without  that  of  the  com- 
mons (I  cdn  say  nothing  as  to  the  lords),  Edward  ITT.  and 
even  Richard  II.  enacted  laws  to  bind  the  laitj.  I  have 
mentioned  in  a  different  place  a  still  more  conspicuous  in« 
stance  of  this  assumed  prerogative ;  namely,  the  memorable 
statute  against  heresy  in  the  second  of  Henry  IV. ;  which 
can  hardly  be  deemed  an3rthing  else  than  an  infringement  of 
the  rights  of  parliament,  more  clearly  established  at  that 
time  than  at  the  accession  of  Richard  11.  Petitions  of  the 
commons  relative  to  spiritual  matters,  however  frequently 
proposed,  in  few  or  no  instances  obtained  the  king^s  assent 
so  as  to  pass  into  statutes,  unless  approved  by  the  convoca« 
tion.^  But,  on  the  other  hand,  scarcely  any  temporal  laws 
appear  to  have  passed  by  the  concurrence  of  the  clergy. 
Two  instances  only,  so  far  as  I  know,  are  on  record :  the 
parliament  held  in  the  eleventh  of  Richard  II.' is  annulled 
by  that  in  the  twenty-first  of  his  reign,  "  with  the  assent  of 
the  lords  spiritual  and  temporal,  and  the  proctors  of  the 
clergy,  and  the  commons;"'  and  the  statute  entailing  the 
crown  on  the  children  of  Henry  IV.  is  said  to  be  enacted  on 
the  petition  of  the  prelates,  nobles,  clergy,  and  commons.* 
Both  these  were  stronger  exertions  of  legislative  authority 
than  ordinary  acts  of  parliament,  and  were  very  likely  to  be 
questioned  in  succeeding  times. 

**  whereas  maoy  Judgments  and  ordi-  potestatem."    It  may  be  pereeifed  bj 

nances  fonnerlr  made  in  ]>arUament  bad  theee  expressions,  and   more   uneqniT* 

been  annulled  &fcav5e  th$  estate  of  clergy  ocally  by  the  nature  of  the  case,  that  ifc 

had  not  been  present  thereat^  the  prelates  was   the  judicial   power  of  parliament 

and  clergy  might  malce  a  proxy  with  siif-  which  the  spiritual  lords  delegated  to 

flelent  power  to  consent  in  their  name  their   proxy.    Many  impeachments   fi>r 

to  all  things  done  in  this  parliament."  capital  oflbnoes  were  coming  on,  at  whkh, 

Whereupon  the  spiritual  lords  agreed  to  by  their  canons,  the  bishops  could  not 

Intrust  their  powers  to  Sir  Thomns  Percy,  assist.    But  it  can  never  be  conceiTsd 

and  gave  him  a  procuration  commencing  that  the  Inferior  clergy  had  any  share  In 

in  the  following  words :  "  Nos  Thomas  this  high  Judicature.    And,  upon  looking 

Gantuar'  et  Robertus  Ebor'  arehiepisco|)t,  attentively  at  the  words  abore  printed  In 

«o  pnelati  et  eUrus  utriusgtie  provineia  italics,  it  will  be  evident  that  the  spiritual 

CtnUuar^  et  Ebor''  jure  eceiesiarum  nostm-  lords  holding  by  barony  are  the  only 

rum  et  temporoKum  earund«m  habentes  persons  designated ;  whatever  may  haw 

ju9  interessendi  in  singtUis  parliamentu  Deen  meant  by  the  singular  phrase,  a* 

domini  nostri  regis  et  regni  Angllas  pro  applied  to  them,  derus  utrinraue   pro- 

tempore  oelebrandis,  necnon  traetandl  et  vindsB.    Rot.  Pari.  vol.  ill.  p.  MS. 

•xpediendl  in  eisdem  quantum  ad  Mngula  i  Atterbury,  p.  846. 

in    instanti   parliamento   pro   statu   et  *  21  R.  II.  e.  12.    Burnetts  Hist,  ot 

honors  domini  no«tri  regis,  necnon  re-  Reformation  (vol.  ii.  p.  47)  led  me  to  this 

gaUsB  suae,  ae  quiete,  pace,  et  tranquilU-  act,  which  I  had  overlooked. 

late  regni  Judiciallter  JustUlcandls,  vene-  *  Rot.  Pari.  vol.  iii.  p.  682.   Atterboxy, 

tabili   viro   domino    ThomjB   de   Percy  p.  61. 
■illiti,  nostram  plenatit  eommlttimiis 


Ebm»U8H  C0H8T.  THE  KING'S  COUNCIL.  841 

The  supreme  judicature,  which  had  been  exercised  by  the 
king^s  court,  was  diverted,  about  the  reign  of  j^rig^cti^n 
John,  into  three  channels ;  the  tribunals  of  King's  of  the  Mng^i 
Bench,  Common  Pleas,  and  the  Exchequer.*  ~'*^"- 
These  became  the  regular  fountains  of  justice,  which  soon 
almost  absorbed  the  provincial  jurisdictions  of  the  sheriff 
and  lord  of  manor.  But  the  original  institution,  having  been 
designed  for  ends  of  state,  police,  and  revenue,  full  as  much 
as  for  the  determination  of  private  suits,  still  preserved  the 
most  eminent  parts  of  its  authority.  For  the  king^s  ordinary 
or  privy  council,  which  is  the  usual  style  from  the  reign  of 
Edward  I.,  seems  to  have  been  no  other  than  the  king^s  court 
(curia  regis)  of  older  times,  being  composed  of  the  same 
persons,  and  having,  in  a  principal  degree,  the  same  subjects 
of  deliberation.  It  consisted  of  the  chief  ministers ;  as  the 
chanceUor,  treasurer,  lord  steward,  lord  admiral,  lord  mar- 
shal, the  keeper  of  the  privy  seal,  the  chamberlain,  treasurer^ 
and  comptroller  of  the  household,  the  chancellor  of  the  ex- 
chequer, the  master  of  the  wardrobe;  and  of  the  judges, 
king^s  Serjeant,  and  attorney-general,  the  master  of  the  rolls, 
and  justices  in  eyre,  who  at  that  time  were  not  the  same  as 
the  judges  at  Westminster.  When  all  these  were  called 
together,  it  was  a  full  council ;  but  where  the  business  was 
of  a  more  contracted  nature,  those  only  who  were  fittest  to 
advise  were  summoned ;  the  chancellor  and  judges  for  mat- 
ters  of  law;  the  officers  of  state  for  what  concerned  the 
revenue  or  households' 

The  business  of  this  council,  out  of  parliament,  may  be 
reduced  to  two  heads ;  its  deliberative  office  as  a  council  of 
advice,  and  its  decisive  power  of  jurisdiction.  With  respect 
to  the  first,  it  obviously  comprehended  all  subjects  of  political 
deliberation,  which  were  usually  referred  to  it  by  the  king : 
this  being  in  fact  the  administration  or  governing  council  of 

1  The  ensQlng  sketch  of  the  Jarisdle-  now  say,  the  ministers,  had  no  oeeaslon 

Hon  exerelaed  hj  the  king's  oonneil  has  Ibr  the  presence  of  judges  or  any  lawyers 

been  ehtefly  deriTed  tnm  Sir  Matthew  Sn  the  secret  ooancils  of  the  crown.  They 

liale^s  Treatise  of  the  Jurisdiction  of  the  become,  therefbre,  a  council  of  gorem- 

Lords*  House  in  Parliament,  pobUriied  ment.  though  always  membm  of  the 

by  Mr.  BargraTe.  etmeutum  ort/tnonum ;  and,  in  the  former 

t  The  words  ^*  priTy  eounell"  are  said  capacity,  began  to  keep  formal  records  of 

not  to  be  used  till  alter  the  reign  of  their  proceedings.    The  acts  of  this  eoun- 

Henry  VI.:  the  former  style  was  ^'^ordi-  eil,  though,  as  I  hare  Just  said.  It  bore 

nary"  or  "continual  eonneil."    But  a  as  yet  no  distinguishing  name,  are  extant 

distlnctloa  had  always  been  made,  ao-  from  the  year  1886,  and  for  seventy  yean 

eordlng  to  the  nature  of  the  business ;  aJterwards  are  known  through  the  Tain* 

ttMgrsatoOcexsof  state,or,atw»ai^t  able  puUloatton  of  Sir  Hands  Mlotka. 


342  JURISDICTION  OF    Chap.  YUL  Fabx  IIL 

Btate,  the  dUtincUon  of  a  cabinet  being  introduced  in  compaiv 
atively  modem  times.  But  there  wei'e  likewise  a  vast  num- 
ber  of  petitions  continually  presented  to  the  council,  upon 
which  thej  proceeded  no  further  than  to  sort,  as  it  were,  and 
forward  them  by  indorsement  to  the  proper  courts,  or  advise 
the  suitor  what  remedy  he  had  to  seek.  Thus  some  petitions 
are  answered,  ^'  this  cannot  be  done  without  a  new  law ;  ** 
some  were  turned  over  to  the  regular  court,  as  the  chancery 
or  king^s  bench  ;  some  of  greater  moment  were  endorsed  to 
be  heard  ^  before  the  great  council ;  *'  some,  concerning  the 
king's  interest,  were  referred  to  the  chancery,  or  select  per- 
sons of  the  council. 

The  coercive  authority  exercised  by  this  standing  council 
of  the  king  was  far  more  important.  It  may  be  divided  into 
acts,  legislative  and  judicial.  As  for  the  first,  many  ordi- 
nances were  made  in  council ;  sometimes  upon  request  of  the 
commons  in  parliament,  who  felt  themselves  better  qualified 
to  state  a  grievance  than  a  remedy  ;  sometimes  without  any 
pretence,  unless  the  usage  of  government,  in  the  infancy  of 
our  constitution,  may  be  thought  to  afford  one.  These  were 
always  of  a  temporary  or  partial  nature,  and  were  considered 
as  regulations  not  sufficiently  important  to  demand  a  new 
statute.  Thus,  in  the  second  year  of  Richard  IL,  the  coun- 
cil, afler  hearing  read  the  statute-roll  of  an  act  recently 
passed,  confirming  a  criminal  jurisdiction  in  certain  cases 
upon  justices  of  the  peace,  declared  that  the  intention  of 
parliament,  though  not  clearly  expressed  therein,  had  been 
to  extend  that  jurisdiction  to  certain  other  cases  omitted, 
which  accordingly  they  cause  to  be  inserted  in  the  commis- 
sions made  to  these  justices  under  the  great  seaL^  But  they 
frequently  so  much  exceeded  what  the  growing  spirit  of  pub- 
lic liberty  would  permit,  that  it  gave  rise  to  complaint  in  par 
liament  The  commons  petition  in  13  R.  11.  that  **  neither 
the  chancellor  nor  the  king^s  council,  afler  the  close  of  par- 
liament, may  make  any  ordinance  against  the  common  law, 
or  the  ancient  customs  of  the  land,  or  the  statutes  made 
heretofore  or  to  be  made  in  this  pai*liament ;  but  that  the 
common  law  have  its  course  for  all  the  people,  and  no  judg- 
ment be  rendered  without  due  legal  process.''  The  king  an 
swers,  ^  Let  it  be  done  as  has  been  usual  heretofore,  saving 

lBot.PMl.fOl.iU.  p.  8A. 


KTOLum  C02f8T.  THE  KING'S  COUNCIL.  34$ 

the  prerogative ;  and  if  any  one  is  aggi'ieved,  let  him  show  it 
specialij,  and  right  shall  be  done  him."  ^  This  unsatisfactory 
ansi%  er  proves  the  arbitrary  spirit  in  which  Richard  was  de- 
termined to  govern. 

The  judicial  power  of  the  council  was  in  some  instanced 
founded  upon  particular  acts  of  parliament,  giving  it  power 
to  hear  and  determine  certain  causes.  Many  petitions  like* 
wise  were  referred  to  it  from  parliament,  especially  where 
they  were  left  unanswered  by  reason  of  a  dissolution.  But 
independently  of  this  delegated  authority,  it  is  certain  tha 
the  king's  council  did  anciently  exercise,  as  well  out  of  par- 
liament as  in  it,  a  very  great  jurisdiction,  both  in  causes 
criminal  and  civil.  Some,  however,  have  contended,  that 
whatever  they  did  in  this  respect  was  illegal,  and  an  en- 
croachment upon  the  common  law  and  Magna  Charta.  And 
be  the  common  law  what  it  may,  it  seems  an  indisputable 
violation  of  the  charter  in  its  most  admirable  and  essential 
article,  to  drag  men  in  questions  of  their  freehold  or  liberty 
before  a  tribunal  which  neither  granted  them  a  trial  by  their 
peers  nor  always  respected  the  law  of  the  land.  Against 
this  usurpation  the  patriots  of  those  times  never  ceased  to 
lift  their  voices.  A  statute  of  the  fiflh  year  of  Edward  IIL 
provides  that  no  man  shall  be  attached,  nor  his  property 
seized  into  the  king's  hands,  against  the  form  of  the  great 
charter  and  the  law  of  the  land.  In  the  twenty-fifth  of  the 
same  king  it  was  enacted,  that  **  none  shall  be  taken  by  peti* 
tion  or  suggestion  to  the  king  or  his  council,  unless  it  be  by 
indictment  or  presentment,  or  by  writ  original  at  the  common 
law,  nor  shall  be  put  out  of  his  franchise  or  freehold,  unless 
he  be  duly  put  to  answer,  and  forejudged  of  the  same  by 
due  course  of  law."'  This  was  repeated  in  a  short  act  of 
the  twenty-eighth  of  his  reign  ;*  but  both,  in  all  probability^ 
were  treated  with  neglect;  for  another  was  passed  some 
years  afterwards,  providing  that  no  man  shall  be  put  to 
answer  without  presentment  before  justices,  or  matter  of 
record,  or  by  due  process  and  writ  original  according  to  the 

1  Rot.  Piri.  Tol.  iil.  p.  206.  plcM  of  ftvebold  befon  th«  coundl,  took 

*  26  B.   III.  ttat.  0,  0   4.     Probably  away  the  compulaory  finding  of  mcn'At. 

tbifi  fifth  aCatata  of  tha  25th  of  Edward  arma  and  other  troopa.  conflrmad  tho 

III.  la  the  moat  extaoslTely  beneficial  act  reaaonable  aid  of  the  king's  tenants  fixed 

In  the  whole  body  of  our  laws.    It  ea-  by  8  K.  I.,  and  provided  that  tha  king*a 

tabllshed   certainty   in   treasons,  regn-  protection  should  not  hinilar  dfil  proOMS 

lated   purreyance,  prohibited  arbitrary  or  execution, 

impriaonnient  and  ilie  determinatioa  of  '  28  B.  Ill  o.  8 


344  JUKISDICTION  OF    Chap.  Vm.  Pabt  la 

old  law  Off  the  land.  The  answer  to  the  petition  whereon 
this  statute  is  grounded,  in  the  parliament-roll,  expressly  de- 
clares this  to  be  an  article  of  the  great  charter.^  Nothing, 
however,  would  preTail  on  the  council  to  surrender  so  emi- 
nent a  power,  and,  though  usurped,  jet  of  so  long  a  continu- 
ance. Cases  of  arbitrary  imprisonment  frequently  occun-ed, 
and  were  remonstrated  against  by  the  commons.  The  right 
of  every  freeman  in  that  cardinal  point  was  as  indubitable, 
legally  speaking,  as  at  this  day ;  but  the  courts  of  law  were 
afi'aid  to  exercise  their  remedial  functions  in  defiance  of  so 
powerful  a  tribunal  After  the  accession  of  the  Lancastrian 
&mily,  these,  like  other  grievances,  became  rather  less  fre* 
quent,  but  the  commons  remonstrate  several  times,  even  in 
Uie  minority  of  Henry  YL,  against  the  counciFs  interference 
in  matters  cognizable  at  common  law.^  In  these  later  times 
the  civil  jurisdiction  of  the  council  was  principally  exercised 
in  conjunction  with  the  chancery,  and  accordingly  they  are 
generally  named  together  in  the  complaint.  The  chancellor- 
having  the  great  seal  in  his  custody,  the  council  usually  bor- 
rowed its  process  from  his  court  This  was  returnable  into 
chancery  even  where  the  business  was  depending  before  the 
council.  Nor  were  the  two  jurisdictions  less  intimately 
allied  in  their  character,  each  being  of  an  equitable  nature ; 
and  equity,  as  then  practised,  being  little  else  than  innova- 
tion and  encroachment  on  the  course  of  law.  This  part, 
long  since  the  most  important  of  the  chancellor's  judicial 
function,  cannot  be  traced  beyond  the  time  of  Richard  IL, 
when,  the  practice  of  feoffments  to  uses  having  been  intro- 
duced, without  any  legal  remedy  to  secure  the  cestui  que  use, 
or  usufructuary,  against  his  feoffees,  the  court  of  chancery 

1  42  K.  m.  0. 8,  and  Rot.  Pari.  toI.  U.  and  tat  whieh  there  was  always  a  provk* 

E.  2&6.    Ifc  Is  not  surprising  that   the  loo  in  their  castles,  enabled  them   to 

Ing^seouncil  should  have  persisted  in  render  this  oppietsiye  Jurisdiction  ef* 

these  tiansgreasions  of  their  lawful  au-  fectual. 

thority,  when  we  find  a  similar  Jurisdio-  *  Rot.  Pari.  17  R.  TI.  vol.  Hi.  p.  819;  4 

tioQ  usurped  by  the  officers  of  inferior  H.  IV.  p.  607:  1  H.  VI.  toI.  It.  p.  189; 

persons.    Complaint  is  made  in  the  18th  8  H.  VI.  p.  292  ;  8  H.  VI.  p.  818  ;  10  U. 

of  Richard  II.  that  men  were  compelled  VI.  p.  408 ;  16  H.  VI.  p.  601.    To  one  of 

to  answer  before  the  council  of  divers  those  (10  H.  VI.),  "  that  none  should  be 

hrdt  and  tadiet^  for  their  freeholds  and  put  to  answer  for  his  freehold  in  parlia- 

other  matters  cognisable  at  common  law,  ment,  nor  before  any  court  or  council 

and  a  remedy  for  this  abuse  Is  given  by  where  such  things  are  not  ooguimble  by 

Etltlon  In  chancery,  stat.  16  R.  II.  e.  the  law  of  the  land.**  the  king  gave  a 

.    This  act  is  confirmed  with  a  penalty  denial.    As  It  was  less  usual  to  refuM 

on  Its  eontraveners  the  next  year,  16  R.  promises  of  this  Icind  than  to  forget  them 

II.  0.  2.     The  private  jails  which  some  afterwards,  I  do  not  undsntaad  tlM  mo* 

Icrds  were  permitted  by  law  to  potseas,  tiva  of  tUa. 


£mou8H  Comr.  THE  KlStrS  COUNCIL.  345 

undertook  to  enforce  this  species  of  contract  bj  process  of 
its  own.^ 

Such  was  the  nature  of  the  king's  ordinary  council  in 
itself,  as  the  organ  of  his  executive  sovereignty,  and  such 
the  jurisdiction  which  it  habitually  exercised.  But  it  is  also 
to  be  considered  in  its  relation  to  the  parliament, -during 
whose  session,  either  singly  or  in  conjunction  with  the  lords' 
house,  it  was  particularly  conspicuous.  The  great  officers  of 
state,  whether  peers  or  not,  the  judges,  the  king's  Serjeant, 
and  attorney-general,  were,  from  the  earliest  times,  as  the 
latter  still  continue  to  be,  summoned  by  special  writs  to  the 
upper  house.  But  while  the  writ  of  a  peer  runs  ad  tractan- 
dum  nobiscum  et  cum  cseteris  prselatis,  magnatibus  et  pro- 
ceribus,  that  directed  to  one  of  the  judges  is  only  ad  tractan- 
dum  nobiscum  et  cum  caeteris  de  consilio  nostro;  and  the 
seats  of  the  latter  are  upon  the  woolsacks  at  one  extremity 
of  the  house. 

In  the  reigns  of  Edward  I.  and  U.  the  council  appear  to 
have  been  the  regular  advisers  of  the  king  in  passing  laws  to 
which  the  houses  of  parliament  had  assented.  The  pream- 
bles of  most  statutes  during  this  period  express  their  con- 
currence. Thus  the  statute  Westm.  I.  is  said  to  be  the  act 
of  the  king  by  his  council,  and  by  the  assent  of  archbishops, 
bishops,  abbots,  priors,  earls,  barons,  and  all  the  commonalty 
of  the  realm  being  hither  summoned.  The  statute  of  escheat- 
ors,  29  E.  I.,  is  said  to  be  agreed  by  the  council,  enumerat- 
ing their  names,  all  whom  appear  to  be  judges  or  public 
officers.  Still  more  striking  conclusions  are  to  be  drawn 
from  the  petitions  addressed  to  the  council  by  both  houses  of 
parliament  In  the  eighth  of  Edward  II.  there  are  four  pe- 
titions from  the  commons  to  the  king  and  his  council,  one 
from  the  lords  alone,  and  one  in  which  both  appear  to  have 
joined.     Later  parliaments  of  the  same  reign  present  us  with 

*  Eala's  Jnxladletioii  of  Lordj*  Hoiue,  to  ftdriae  of  a  remedy  agalmt  the  enffolng 

.  46.    Ooka,  2  Inst.  p.  658.    The  last  parlfaunent.    It  may  perhaps  be  infbrreQ 

aathor  places  this  a  little  later.    There  from  hence  that  the  writ  of  sabpoena  out 

Is  a  petltioii  of  the  commons,  in  the  roll  of  chancery  had  not  yet  been  applied  to 

of  the  4th  of  Heniy  IV.  p.  611,  that,  protect  the  cestui  que  use.    But  it  if 

whereas  many  gnntees  and  feollBes  in  equally  possible  that  the  commons,  b*> 

trust  jbr  their  grantors  and  feoflbrs  alien-  ing  disinclined  to  what  they  iroutd  deem 

ate  or  charge  the  tenements  gnnted,  in  an  illegal  innoyatioo.  were  endeaTorlng 

wkUh  ease  then  it  no  rtmedy  unUu  ont  to  reduce  these  fiduciary  estates  witliin 

is  ordered  by  parliament,  that  the  king  the  pale  of  the    common  law,  as  was 

and  lords  would  proTide  a  remedy.   This  afterwards  done  by  the  statute  of  UMt 

petition  is  referred  to  the  Ung*«  eouncU  [Motb  X.] 


346  JURISDICTION  OF    Ciup.  Vm.  Past  m. 

several  more  instances  of  the  like  nature.  Thus  in  18 
E.  IL  a  petition  begins,  ^  To  our  lord  the  king,  and  to  his 
council,  the  archbishops,  bishops,  prelates,  earls,  barons,  and 
others  of  the  commonalty  of  England,  show,"  &c.^ 

But  from  the  beginning  of  Edward  III.'s  reign  it  seems 
that  the  council  and  the  lords'  house  in  parliament  were  often 
blended  together  into  one  assembly.  This  was  denominated 
the  great  council,  being  the  lords  spiritual  and  temporal,  with 
the  king's  ordinary  council  annexed  to  them,  as  a  council 
within  a  council.  And  even  in  much  earlier  times  the  lords, 
as  hereditary  counsellors,  were,  either  whenever  they  thought 
fit  to  attend,  or  on  special  summonses  by  the  king  (it  is  hard 
to  say  which),  assistant  members  of  this  council,  both  for  ad- 
vice and  for  jurisdiction.  This  double  capacity  of  the  peer- 
age, as  members  of  the  parliament  or  legislative  assembly 
and  of  the  deliberative  and  judicial  council,  throws  a  very 
great  obscurity  over  the  subject.  However,  we  find  that 
private  petitions  for  redress  were,  even  under  Edward  L, 
presented  to  the  lords  in  parliament  as  much  as  to  the  ordi- 
nary counciL  The  parliament  was  considered  a  high  court 
of  justice,  where  relief  was  to  be  given  in  cases  where  the 
course  of  law  was  obstructed,  as  well  as  where  it  was  defec- 
tive. Hence  the  intermission  of  parliaments  was  looked  upon 
as  a  delay  of  justice,  and  their  annual  meeting  is  demanded 
upon  that  ground.  "  The  king,"  says  Fleta,  "  has  his  court 
in  his  council,  in  his  parliaments,  in  the  presence  of  bishops, 
earls,  barons,  lords,  and  other  wise  men,  where  the  doubtiul 
cases  of  judgments  are  resolved,  and  new  remedies  are  pro- 
vided against  new  injuries,  and  justice  is  rendered  to  every 
man  according  to  his  desert."  *  In  the  third  year  of  Edward 
U.  receivers  of  petitions  began  to  be  appointed  at  the  open- 
ing of  every  parliament,  who  usually  transmitted  them  to  the 
ordinary,  but  in  some  instances  to  the  great  council.  These 
receivers  were  commonly  three  for  England,  and  three  for 
Ireland,  Wales,  Gascony,  and  other  foreign  dominions.  There 
were  likewise  two  corresponding  classes  of  auditors  or  triers 
of  petitions.  These  consisted  partly  of  bishops  or  peers, 
partly  of  judges  and  other  members  of  the  council ;  and 
they  seem  to  have  been  instituted  in  order  to  disburden  the 
council  by  giving  answers  to  some  jietitions.     But  about  the 

1  Boi.  Pari.  vol.  L  p.  418.  *  L.  U.  e.  S. 


^ouAH  CoavT.         THE  KING'S  COUNCIL.  347 

middle  of  Edward  IIL'b  time  tfaej  ceased  to  act  jniidicallj 
In  this  respect,  and  confined  themselves  to  transmitting  pe» 
titions  to  the  lords  of  the  comiciL 

The  great  council,  according  to  the  definition  we  have 
given,  consisting  of  the  lords  spiritual  and  temporal,  in  con- 
junction with  the  ordinary  council,  or,  in  other  words,  of  all 
who  were  severally  summoned  to  parliament,  exercised  a 
considerable  jurisdiction,  as  well  dvil  as  criminal.  In  this 
jurisdiction  it  is  the  opinion  of  Sir  M.  Hale  that  the  CQuncil, 
though  not  peers,  had  right  of  sufirage;  an  opinion  very 
prol»ble,  when  we  recollect  that  the  council  by  themselves, 
both  in  and  out  of  parliament,  possessed  in  &ct  a  judicial  au- 
thority little  inferior ;  and  that  the  king's  delegated  sovereign* 
ty  in  the  administration  of  justice,  rather  than  any  intrinsic 
right  of  the  peerage,  is  the  foundation  on  which  the  judica- 
ture of  the  lords  must  be  supported.  But  in  the  time  of 
Edward  UI.  or  Richard  II.  the  lords,  by  their  ascendency, 
threw  the  judges  and  rest  of  the  council  into  shade,  and  took 
the  decisive  jurisdiction  entirely  to  themselves,  making  use  of 
their  former  colleagues  but  as  assistants  and  advisers,  as  they 
stiU  continue  to  be  held  in  all  the  judicial  proceedings  of  that 
house.^ 

Those  statutes  which  restrain  the  king's  ordinary  council 
from  disturbing  men  in  their  freehold  rights,  or  questioning 
them  for  misdemeanors,  have  an  equal  application  to  the 
lords'  house  in  parliament,  though  we  do  not  frequently  meet 
with  complaints  of  the  encroachments  made  by  that  assem- 
bly. There  was,  however,  one  class  of  cases  tacitly  excluded 
from  the  operation  of  those  acts,  in  which  the  coercive  juris- 
diction of  this  high  tribunal  had  great  convenience ;  namely, 
where  the  ordinary  course  of  justice  was  so  much  obstructed 
by  the  defending  party,  through  riots,  combinations  of  main* 
tenance,  or  overawing  influence,  that  no  inferior  court  would 
find  its  process  obeyed.  Those  ages,  disfigured  in  their  quiet* 
est  season  by  rapine  and  oppression,  afforded  no  small  num« 
ber  of  cases  that  called  for  this  interposition  of  a  paramount 
authority.*     Another  indubitable  branch  of  this  jurisdiction 

1  [Non  XT.]  Iftm  •hall  benmitted  tber  to  U  Met- 

•  Thli  is  wmarkably  ezpnned  In  OM  miaad ;  but  If  so  be  that  the  dieemloQ 

ef  the  artielec  agread  fai  parliaments  U.  of  the  ooanadll  fcle  to  grete  myipht  on 

▼I.  finr  the  regalalioD  of  the  eoooell.  that  5  ijde,  and  nmnygfat  on  that  other, 

**  Item,  that  alle  the  blUee  that  oompre-  or  eilee  other  sMtm   rwonable  yat  nhiil 

Wnd  matters  terminable  atte  the eommon  more  liiin.'*    Bot  ParL  toL  kw.  p.  M8 


848 


THE  KING^S  COUNCIL.     Chaf.  Vm.  Past  Hi. 


was  in  writs  of  error ;  but  it  may  be  observed  that  their  de- 
termination was  very  frequently  left  to  a  select  committee  of 
peers  and  councillors.  These,  too,  cease  almost  entirely  with 
Henry  IV. ;  and  were  scarcely  revived  till  the  accession  of 
James  I. 

Some  instances  occur  in  the  reign  of  Edward  III.  where 
records  have  been  brought  into  parliament,  and  annu11e<\ 
with  assent  of  the  commons  as  well  as  the  rest  of  the  legis 
lature.^  But  these  were  attainders  of  treason,  which  it 
seemed  gracious  and  solemn  to  reverse  in  the  most  authentic 
manner.  Certainly  the  commons  had  neither  by  the  nature 
of  our  constitution  nor  the  practice  of  parliament  any  right 
of  intermeddling  in  judicature,  save  where  something  was  re- 
quired beyond  the  existing  law,  or  where,  as  in  the  statute 
of  treasons,  an  authority  of  that  kind  was  particularly  r^ 


Mr.  Bmoe  hu  w«U  obserred  of  the  arll- 
oIm  acreod  upon  in  8  Hen.  VI..  or  rather 
of  **  those  in  5  Hen.  VI.,  which  were 
nearly  the  aame,  that  in  theory  nothing 
rould  be  more  exoellent.  In  turbulent 
times,  it  IB  scaroely  neoeesary  to  remaric, 
great  men  were  too  apt  to  weigh  out 
fustioe  tot  themaelTeii,  and  with  no  graat 
nicety ;  a  eourt,  therefbre,  to  wliich  tiie 
people  might  fly  for  relief  against  power- 
ful oppressors,  was  most  especially  need- 
ful. Law  charges  also  were  considerable ; 
and  this,  *the  poor  man^s  court,  in 
which  be  might  have  right  without  pay- 
ing any  money'  (Sir  T.  Smith's  Common- 
wealth, book  Ui.  ch.  7),  was  an  institution 
apparently  ealenlated  to  be  of  unques- 
tionable utility.  It  was  the  compreben- 
siveness  of  the  last  clause  —  the  *  other 
cause  reasonable* — which  was  its  ruin." 
Archasologla,  vol.  xzt.  p.  848.  The  stat- 
ute 81  Hon.  VI.  e.2,  which  Is  not  printed 
In  Ruff  head's  edition,  is  Tery  important, 
as  giving  a  legal  authority  to  the  ooun- 
eil,  by  writs  under  the  great  seal,  and 
by  writs  of  proclamation  to  the  sherifB^ 
on  parties  making  deikult,  to  compel  the 
attendance  of  any  persons  complained  at 
for  **  great  liots,  extortions,  oppressions, 
and  grieTOus  offences,"  under  neavy  pen- 
alties; in  case  of  a  peer,  **  the  loss  of  bis 
estate,  and  name  of  lord,  and  his  plaoe 
In  pariiament,"  and  all  his  lands  Ibr  the 
term  of  his  lilb;  and  fine  at  discretion  in 
the  case  of  other  persons.  A  proriso  is 
added  that  no  matter  determinable  by 
the  law  of  the  realm  should  be  deter- 
mined In  other  form  than  after  the  course 
of  law  in  the  king's  courts.  Sir  Francis 
PalgraTe  (Ifissay  on  the  King's  Council, 
^  84j  obserTes  tliat  this  pronw  **  would 


In  no  way  Interfere  with  the  effeetlTe  j«- 
risdiotion  of  the  council,  inasmuch  as  U 
could  always  be  allseed  in  the  bills  whick 
were  prefened  before  it  that  the  opprea- 
siTe  and  grieTOus  offences  of  which  they 
complained  were  not  determinable  by  thia 
ordinary  course  of  the  common  law." 
p.  86.  But  this  takes  the  word  '*  deter- 
minable" to  mean  in  /act;  whereas  I 
apprehend  that  the  proTiso  must  be  un- 
derstood to  mean  cases  legally  determin- 
able; the  words,  I  think,  will  bear  no 
other  construction.  But  as  all  the  of 
fences  enumerated  were  Indictable,  wa 
must  either  hold  the  proriso  to  be  utterly 
inconsistent  with  the  rest  of  the  statut^ 
or  suppose  that  ttie  words  **  other  form," 
were  intended  to  prohibit  the  irregular 
process  usual  with  the  council ;  secret 
examination  of  witnesses,  torture,  neg- 
lect of  technical  formality  In  specifying 
charges,  punishments  not  according  to 
the  course  of  law,  and  other  TiolaUons 
of  foir  and  ftee  trial,  which  constituted 
the  greatest  grlcTanoe  in  the  proceedings 
of  the  council. 

1  The  judgment  against  Mortimer  waa 
rsTersed  at  the  suit  of  his  son,  28 E.  m., 
because  he  had  not  been  put  on  his  trial. 
The  peers  had  adjudged  him  to  death  In 
his  absence,  upon  common  notoriety  of 
his  guilt.  4  B.  in.  p.  68.  In  the  san» 
session  of  28  B.  HI.  the  earl  of  Arundel's 
attainder  was  also  reTersed,  which  had 
passed  In  1  B.  III.,  when  Mortimer  waa 
at  the  height  of  his  power.  These  prece- 
dents taken  together  seem  to  have  re- 
sulted ttom  no  iwrtlality,  but  a  trna 
sense  of  justice  in  respest  of  treasons, 
animated  by  the  recent  statnta*  Boi. 
Pftrl.  vol.  U.  p.  2G6. 


Bmoi  itB  Conr.      CHABACTER  OF  GOVERNMENT.  849 

seryed  to  both  houses.  This  is  fullj  acknowledged  hj  them- 
selves  in  the  first  year  of  Henry  IV.*  But  their  iuiluence 
upon  the  balance  of  government  became  so  commanding  in  a 
few  years  ailerwards,  that  they  contrived,  as  has  been  men- 
tioned already,  to  have  petitions  directed  to  them,  rather  than 
to  the  lords  or  council,  and  to  transmit  them,  either  with  a 
tacit  approbation  or  in  the  form  of  acts,  to  the  upper  house. 
Perhaps  this  encroachment  of  the  commons  may  have  con- 
tributed to  the  disuse  of  the  lords'  jurisdiction,  who  would 
rather  relinquish  their  ancient  and  honorable  but  laborious 
function  than  share  it  with  such  bold  usurpers. 

Although  the  restraining  hand  of  parliament  was  continually 
growing  more  effectual,  and  the  notions  of  legal  q^^^^^ 
right  acquiring  more  precision,  from  the  time  of  ohuaoter 
Magna  Charta  to  the  civil  wars  under  Henry  VL,  —^^ment 
we  may  justly  say  that  the  general  tone  of  adminis-  u  tb«M 
tration  was  not  a  little  arbitrary.     The  whole  fabric  '•^ 
of  English  liberty  rose  step  by  step,  through  much  toil  and 
many  sacrifices,  each  generation  adding  some  new  security  to 
the  work,  and  trusting  that  posterity  would  perfect  the  labor 
as  well  as  enjoy  the  reward.     A  time,  perhaps,  was  even  then 
foreseen  in  the  visions  of  generous  hope,  by  the  brave  knights 
of  parliament  and  by  the  sober  sages  of  justice,  when  the 
proudest  ministers  of  the  crown  should  recoil  from  those  bar- 
riers which  were  then  daily  pushed  aside  with  impunity. 

There  is  a  material  distinction  to  be  taken  between  the 
exercise  of  the  king's  undeniable  prerogative,  however  repug- 
nant to  our  improved  principles  of  fre^om,  and  the  abuse  or 
extension  of  it  to  oppressive  purposes.  For  we  cannot  fairly 
consider  as  part  of  oar  ancient  constitution  what  the  parlia- 
ment was  perpetually  remonstrating  against,  and  the  statute- 
book  is  full  of  enactments  to  repress.  Doubtless  the  continual 
acquiescence  of  a  nation  in  arbitrary  government  may  ulti- 
mately destroy  all  privileges  of  positive  institution,  and  leave 
them  to  recover,  by  such  means  as  opportunity  shall  offer,  the 
natural  and  imprescriptible  rights  for  which  human  societies 
were  established.  And  this  may  perhaps  be  the  case  at 
present  with  many  European  kingdoms.  But  it  would  be 
necessary  to  shut  our  eyes  with  deliberate  prejudice  against 
the  whole  tenor  of  the  most  unquestionable  authorities,  against 

I  ADt  Put  TiO.  HL  p.  417. 


850        CHARACTER  OF  GOVERNMENT.    Chap.  VHI.  Part  HL 

the  petitions  of  the  commons,  the  acts  of  the  legislature,  the 
testimony  of  historians  and  lawyers,  before  we  could  assert 
that  England  acquiesced  in  those  abuses  and  oppressions 
which  it  must  be  confessed  she  was  unable  fully  to  prevent. 

The  word  prerogative  is  of  a  peculiar  import,  and  scarcely 
understood  by  those  who  come  from  the  studies  of  political 
philosophy.  We  cannot  define  it  by  any  theory  of  executive 
functions.  All  these  may  be  comprehended  in  it ;  but  also  a 
great  deal  more.  It  is  best,  perhaps,  to  be  understood  by  its 
derivation,  and  has  been  said  to  be  that  law  in  case  of  the 
king  which  is  law  in  no  case  of  the  subject^  Of  the  higher 
and  more  sovereign  prerogatives  I  shall  here  say  nothing; 
they  result  from  the  nature  of  a  monarchy,  and  have  nothing 
very  peculiar  in  their  character.  But  the  smaller  rights  of 
the  crown  show  better  the  original  lineaments  of  our  consti- 
tution. It  is  said  conunonly  enough  that  all  prerogatives  are 
given  for  the  subject's  good.  I  must  confess  that  no  part  of 
this  assertion  corresponds  with  my  view  of  the  subject.  It 
neither  appears  to  me  that  these  prerogatives  were  ever  given 
nor  that  they  necessarily  redound  to  the  subject's  good.  Pre- 
rogative, in  its  old  sense,  might  be  defined  an  advantage 
obtained  by  the  crown  over  the  subject,  in  cases  where  their 
interests  came  into  competition,  by  reason  of  its  greater 
strength.  This  sprang  from  the  nature  of  the  Norman  gov<^ 
emment,  which  rather  resembled  a  scramble  of  wild  beasts, 
where  the  strongest  takes  the  best  share,  than  a  system 
founded  upon  principles  of  common  utility.  And,  modified 
as  the  exercise  of  most  prerogatives  has  been  by  the  more 
liberal  tone  which  now  pervades  our  course  of  government, 
whoever  attends  to  the  common  practice  of  courts  of  justice, 
and,  still  more,  whoever  consults  the  law-books,  will  not  only 
be  astonished  at  their  extent  and  multiplicity,  but  very 
frequenUy  at  their  injustice  and  severity. 

The  real  prerogatives  that  might  formerly  be  exerted  were 

Parreyaaee.  80°^^'^°^^  o^  80  injurious  a  nature,  that  we  can 
hardly  separate  them  from  their  abuse :  a  striking 
instance  is  that  of  purveyance,  which  will  at  once  illustrate 
the  definition  above  given  of  a  prerogative,  the  limits  within 
which  it  was  to  be  exercised,  and  its  tendency  to  transgress 
Ihem.    This  was  a  right  of  purchasing  whatever  was  neoes 

t  BlAokitou**  ConaMk.  from  IlDeh,  toL  L  «.  7. 


ExoLUB  Comr.  PUBYETANCE.  851 

BBTj  for  the  king^s  household,  at  a  fair  price,  in  preference  to 
every  competitor,  and  without  the  consent  of  the  owner.  By 
the  same  prerogative,  carriages  and  horses  were  impressed 
for  the  king's  journeys,  and  lodgings  provided  for  his  attend- 
ants. This  was  defended  on  a  pretext  of  necessity,  or 
at  least  of  great  convenience  to  the  sovereign,  and  was 
both  of  high  antiquity  and  universal  practice  throughout 
Europe.  But  the  royal  purveyors  had  the  utmost  tempta- 
tion,  and  doubtless  no  small  store  of  precedents,  to  stretch 
this  power  beyond  its  legal  boundary ;  and  not  only  to  fix 
their  own  price  too  low,  but  to  seize  what  they  wanted  i^ith- 
out  any  payment  at  all,  or  with  tallies  which  were  carried  in 
Tsdn  to  an  empty  exchequer.^  This  gave  rise  to  a  number 
of  petitions  from  the  commons,  upon  which  statutes  were 
often  framed;  but  the  .evil  was  almost  incurable  in  its  nature 
and  never  ceased  till  that  prerogative  was  itself  abolished. 
Purveyance,  as  I  have  already  said,  may  serve  to  distinguish 
the  defects  from  the  abuses  of  our  constitution.  It  was  a  re- 
proach to  the  law  that  men  should  be  compelled  to  send  their 
goods  without  their  consent  i  it  was  a  reproach  to  the  admin- 
istration that  they  were  deprived  of  them  'without  payment. 
The  right  of  purclia.sing  men's  goods  for  the  use  of  the 
king  was  extended  by  a  sort  of  analogy  to  their  labor.  Thus 
Edward  III.  announces  to  all  sheriffs  that  William  of  Wal- 
Bingham  had  a  commission  to  collect  as  many  painters  as 
might  suffice  for  '^  our  works  in  St.  Stephen's  chapel.  West 
minster,  to  be  at  our  wages  as  long  as  shall  be  necessary," 
and  to  arrest  and  keep  in  prison  all  who  should  refuse  or 
be  refractory;  and  enjoins  them  to  lend  their  assistance.' 
Windsor  Castle  owes  its  massive  magnificence  to  laborers 
impressed  from  every  part  of  the  kingdom.  There  is  even  a 
commission  from  Edward  lY.  to  take  as  many  workmen  in 

>  Letters  are  directed  to  all  thflsherift,  lengths,  and  selied  larger  quantities  of 

2  B.  I.,  ei^joining  them  to  send  np  a  wool,  which  he  sold  beyond  sea.  as  well 

eertain  number  of  beeves,  sheep,  capons,  as  proTisions  for  the  supply  of  hli  army, 

fro.,  for  the  king's  coronation.    Kymer,  In  both  cases  the  proprietoni  had  tallies, 

vol.  ii.  p.  21.    By  the  sutute  21  £.  III.  or  other  securities ;  but  their  despair  of 

e.  12,  goodA  taken  by  the  purveyors  were  obtaining  payment  gave  rise,  In  1888,  to 

to  bo  paid  ftir  on  the  spot  if  under  twenty  an  insurrection.      There  is  a  singufaix 

■hillings'  value,  or  within  three  months'  apologetical  letter  of  Bdward  to  the  arah- 

time  if  above  that  value.    But  It  is  not  bishops  on  this  occasion,     llymer,  t.  v. 

to  be  imi^nml  that  this  law  was  or  could  p.  10 ;  see  also  p.  73,  and  Enyghtoii,  oo). 

be  observed.  2570. 

Bdward  III.,  impelled  by  the  ex(gen-  *  Byu«r,  t.Ti.  p.  417. 
dM  of  his  French  war,  went  still  greater 


852  ABUSES  OF  FEUDAL  RIGHTS.    Chap.  VHI.  Pabt  UL 

gold^  as  were  wanting,  and  employ  them  at  the  king's  cost 
upon  the  trappings  of  himself  and  his  household.^ 

Another  class  of  abuses  intimatelj  connected  with  unques- 
Abiuesof  tionable  though  oppressive  rights  of  the  crown 
ftndfti  originated  in  the  feudal  tenure  which  bound  all 

^^^'  the  lands  of  the  kingdom.     The  king  had  indis- 

putably a  right  to  the  wardship  of  his  tenants  in  chivalrj, 
and  to  the  escheats  or  forfeitures  of  persons  dying  without 
heirs  or  attainted  for  treason.  But  his  officers,  under  pre- 
tence of  wardship,  took  possession  of  lands  not  held  imme- 
diately of  the  crown,  claimed  escheats  where  a  right  heir 
existed,  and  seized  estates  as  forfeited  which  were  protected 
by  the  statute  of  entails.  The  real  owner  had  no  remedy 
against  this  disposition  but  to  prefer  his  petition  of  right  in 
chancery,  or,  which  was  probably  moip  effectual,  to  procure 
a  remonstrance  of  the  house  of  commons  in  his  favor. 
Even  where  justice  was  finally  rendered  to  him  he  had  no 
recompense  for  his  damages ;  and  the  escheators  were  not 
less  likely  to  repeat  an  iniquity  by  which  they  could  not 
personally  suffer. 

The  charter  of  the  forests,  granted  by  Henry  III.  along 
Foratt  lawi.  ^^^^  Magna  Charta,*  had  been  designed  to  crush 
the  flagitious  system  of  oppression  wUch  prevailed 
in  those  favorite  haunts  of  the  Norman  kings.  They  had 
still,  however,  their  peculiar  jurisdiction,  though,  from  the 
time  at  least  of  Edwsuxl  III.,  subject  in  some  measure  to  the 
control  of  the  King's  Bench.'  The  foresters,  I  suppose, 
might  find  a  compensation  for  their  want  of  the  common  law 
in  that  easy  and  licentious  way  of  life  which  they  affected ; 
but  the  neighboring  cultivators  frequently  suffered  from  the 
king's  officers  who  attempted  to  recover  those  adjacent  lands, 
or,  as  they  were  called,  purlieus,  which  had  been  disaffor- 
ested by  the  charter  and  protected  by  frequent  perambula- 

i  Rymer,  t.  xl.  p.  862.  the  dJalofpie  on  the  Exeheqaer  ander 

*  Ifatthew  Paris  asaerts  that  John  Herny  U.,  is  gorerned  by  its  own  laws, 
granted  a  separate  forest-charter,  and  not  founded  on  tlie  conunoo  law  of  the 
supports  his  position  by  asserting  that  of  land,  but  the  roluntary  enactment  of 
Henry  III.  at  fhll  length.  In  fiict,  the  princes:  so  that  whateTer  is  done  by  that 
elauses  relating  to  the  forest  were  incor-  aw  is  reckoned  not  legal  in  itself,  but 

S orated  with  the  great  charter  of  John,  legal  according  to  forest  law,  p.  29,  non 

neh  an  error  as  this  shows  the  precaii-  justuni  abeolnti,  sed  Justum  sccundiim 

onsness  of    historicAl    testimony,  even  egem  forestae  dicatnr.     I   bellcTe  mr 

where  it  seems  to  be  best  grounded.  translation  ot  justum  is  right;  for  he  u 

•  Coke,  fourth  Inst.  p.  294.  The  forest  not  writing  satirieaUy. 
domain  of  the  king,  says  the  author  of 


Khoush  Cokbt.      constable  AND  MAKaHATi.  853 

tions.    Many  petitions  of  the  commons  relate  to  this  grier- 
ance. 

The  constable  and  marshal  of  England  possessed  a  juris- 
diction, the  proper  limits  whereof  were  sufficiently  jorfa^uetion 
narrow,  as  it  seems,  to  have  extended  only  to  ap-  or  eonttebi« 
peals  of  treason  oommitted  beyond  sea,  which  *"*  ™»"*»*i- 
were  determined  by  combat,  and  to  military  offences  within 
the  realm.  But  these  high  officers  frequently  took  upon 
them  to  inquire  of  treasons  and  felonies  cognizable  at  com- 
mon law,  and  even  of  civil  contracts  and  trespasses.  This 
is  no  bad  illustration  of  the  state  in  which  our  constitution 
stood  under  the  Plantagenets.  No  color  of  right  or  of  su- 
preme prerogative  was  set  up  to  justify  a  procedure  so 
manifestly  repugnant  to  the  great  charter.  For  all  remon- 
strances against  these  encroachments  the  king  gave  prom- 
ises in  return ;  and  a  statute  was  enacted,  in  the  thirteenth 
of  Richard  11.,  declaring  the  bounds  of  the  constable  and 
marshal's  jurisdiction.^  It  could  not  be  denied,  therefore, 
that  all  infringements  of  these  acknowledged  limits  were  il- 
legal, even  if  they  had  a  hundred  fold  more  actual  precedents 
in  their  favor  than  can  lie  supposed.  But  the  abuse  by  no 
means  ceased  after  the  passing  of  this  statute,  as  several  sub- 
sequent petitions  that  it  might  be  better  regai^ded  will  evince. 
One,  as  it  contains  a  special  instance,  I  shall  insert  It  is  of 
the  fifth  year  of  Henry  IV. :  ^  On  several  supplications  and 
petitions  made  by  the  commons  in  parliament  to  our  lord  the 
king  for  Bennet  Wilman,  who  is  accused  by  certain  of  his 
Ul-wishers  and  detained  in  prison,  and  put  to  answer  before 
the  constable  and  marshal,  against  the  statutes  and  the  com- 
mon law  of  England,  our  said  lord  the  king,  by  the  advice 
and  assent  of  the  lords  in  parliament^  granted  that  the  said 
Bennet  should  be  treated  according  to  the  statutes  and  com- 
mon law  of  England,  notwithstanding  any  commission  to  the 
contrary,  or  accusation  against  him  made  before  the  consta- 
ble and  marshaL"  And  a  writ  was  sent  to  the  justices  of  the 
King^s  Bench -with  a  copy  of  this  article  from  the  roll  of  par- 
liament, directing  them  to  proceed  as  they  shall  see  fit  ac- 
eording  to  the  laws  and  customs  of  England. ' 

It  must  appear  remarkable  that,  in  a  case  so  manifestly 
within  their  competence,  the  court  of  King's  Bench  should 

1  IBB.  n.  e.  a.  •  B«t.  Put.  Tol.  ilL  p.  680. 

VOL.  11.  —  M.  28 


854  CONSTABLE  AND  MARSHAL.    Chap.  YIIL  Pabt  Uh 

not  have  issued  a  writ  of  habeas  corpas,  without  wmdng  for 
what  may  be  considered  as  a  particular  act  of  parliament. 
But  it  is  a  natural  effect  of  sin  arbitrary  administration  of 
government  to  intimidate  courts  of  justice.^  A  negative  ar- 
gument, founded  upon  the  want  of  legal  precedent,  is  cer- 
tainly not  conclusive  when  it  relates  to  a  distant  period,  of 
which  all  the  precedents  have  not  been  looted ;  jet  it  must 
strike  us  that  in  the  learned  and  zealous  arguments  of  Sir 
Bobert  Cotton,  Mr.  Selden,  and  others,  against  arbitrary  im- 
prisonment, in  the  great  case  of  the  habeas  corpus,  though 
the  statute  law  is  full  of  authorities  in  their  favor,  we  find  no 
instance  adduced  earlier  than  the  reign  of  Henry  YII.,  where 
the  King's  Bench  has  released,  or  even  bailed,  persons  com- 
mitted by  the  council  or  the  constable,  though  it  is  unques- 
tionable that  such  committals  were  both  frequent  and  illegaL* 
If  I  have  faithfully  represented  thus  far  the  history  of 
our  constitution,  its  essential  character  will  appear  to  be  a 
monarchy  greatly  limited  by  law,  though  retaining  much 
power  that  was  ill  calculated  to  promote  the  public  good,  and 
swerving  continually  into  an  irregular  course,  which  there 
was  no  restr^nt  adequate  to  correct.  But  of  all  the  notions 
that  have  been  advanced  as  to  the  theory  of  this  constitution, 
the  least  consonant  to  law  and  history  is  that  which  represents 
the  king  as  merely  an  hereditary  executive  magistrate,  the 

1  Tba  appveheitfilon  of  thU  eompHant  mm  in  direct  contradiction  to  9f«fnu 
•pirit  In  th«  ministers  of  ju«tfce  led  to  an  Charta ;  and  it  Is  erident  that  no  regular 
excellent  act  In  2  B.  III.  e.  8,  that  the  liberty  oould  subelat  with  It.  It  Inrolved 
Judges  shall  not  omit  to  da  right  for  any  a  full  dictatorial  power^ntinually  sub- 
command under  the  g^reat  or  priry  seal,  slating  in  the  state."  Ilist.  of  England, 
And  the  conduct  of  Richard  II.,  who  e.  22.  But  by  the  rery  words  of  thin 
sought  absolute  power  by  corrupting  or  patent  the  Jurisdiction  given  was  only 
Intimidating  them,  produced  another  over  such  causes  quse  In  eurii  coustaba- 
statute  in  the  eleventh  year  of  his  reign  larii  Anglin  ab  antiquo,  tIi.  tempore 
(o.  10),  providing  that  neither  letters  of  dietl  Golielmi  conquiestoris.  sen  aliqno 
the  klng^s  signet  nor  of  the  privy  seal  tempore  eitra,tnctari,audiri,examinaTiy 
should  from  thenceforth  be  sent  In  dls-  aut  decidi  consueverunt  aut  jwrt  debue- 
turbance  of  the  law.  An  ordinance  of  rant  aut  debent.  These  are  exproeaed, 
Charles  V.,  king  of  France,  in  1809,  though  not  very .  perspicuously,  In  the 
directs  the  parliament  of  Paris  to  pay  no  statute  18  R.  II.  e.  2,  that  declares  the 
regard  to  any  letters  under  his  seal  sns-  oonstable^s  JurlsdloUoo.    And  the  eblef 

tending  the  course  of  legal  procedure,  criminal  matter  reserved  by  law  tc  tn« 

nt  to  consider  them  as  surreptitiously  court  of  this  officer  was  treason  eom- 

obtaioed.    Villaret,  t.  z.  p.  176.    Thb  mitted  out  of  the  kingdom.    la  TiolenI 

ordinance  which  was  sedulously  observed,  and  rpvolutionary  seasons,  t^;!)  C4  the 

tended  very  much  tc  conlirm  the  tnde-  commencement  of  Edward  IV.Vi  reign, 

pendenee  and  Integrity  of  that  tribunal,  some  persons  were  tried  by  martial  Uw 

9  Cotton's  Posthuma,  p.  221.  HowelPs  before  the  constable.     But,  in  nnenil. 

State  Trials,  vol.  Ui.  p.  1.    Hume  quotes  the  exercise  of  criminal  Jnsttee  oy  thli 

a  grant  of  the  office  of  oonstable  to  the  tribunal  though  one  of  the  abuses  of  th« 

sstri  of  Rivers  in  7  B.  IV.,  and  infors,  nn-  times,  cannot  be  said  to  warrant  Ukt 

vanaatablv  enoni^,  that "  its  authority  strong  language  adopted  by  Huma. 


JSaGLUR  Coiwr.       ENGLISH  CONSTITUTION.  855 

first  officer  of  the  state.  Wliat  advantages  might  result  from 
such  a  form  of  government  this  is  not  the  place  to  discuss. 
But  it  certainly  was  not  the  ancient  constitution  of  England. 
There  was  nothing  in  this^  absolutely  nothing,  of  a  republican 
appearance.  All  seemed  to  grow  out  of  the  monarchy,  and 
was  referred  to  its  advantage  and  honor.  The  voice  of  eup- 
plication,  even  in  the  stoutest  disposition  of  the  commons, 
was  always  humble ;  the  prerogative  was  always  named  in 
large  and  pompous  expressions.  Still  more  naturally  may 
we  expect  to  find  in  the  law-books  even  an  obsequious  defer- 
ence to  power,  from  judges  who  scarcely  ventured  to  consider 
it  as  their  duty  to  defend  the  subject's  freedom,  and  who  be- 
held the  gigantic  image  of  prerogative,  in  the  full  play  of  its 
hundred  arms,  constantly  before  their  eyes.  Through  this 
monarchical  tone,  which  certainly  pervades  all  our  legal  au- 
thorities, a  writer  like  Hume,  accustomed  to  philosophical 
liberality  as  to  the  principles  of  government,  and  to  the  de- 
mocratical  language  which  the  modem  aspect  of  the  consti- 
tution and  the  liberty  of  printing  have  pxt>duced,  fell  hastily 
into  the  error  of  believing  that  all  limitations  of  royal  power 
during  the  fourteenth  and  fifteenth  centuries  were  as  much 
unsettled  in  law  and  in  public  opinion  as  they  were  liable 
to  be  violated  by  force.  Though  a  contrary  position  has  been 
sufficiently  demonstrated,  I  conceive,  by  the  series  of  par- 
liamentary proceedings  which  I  have  already  produced,  yet 
there  is  a  passage  in  Sir  John  Fortescue's  treatise  De  Lau- 
dibus  Legum  Anglise,  so  explicit  and  weighty,  that  no  writer 
on  the  English  constitution  can  be  excused  from  inserting  it. 
This  eminent  person,  having  been  chief  justice  of  the  King's 
Bench  under  Henry  VI.,  was  governor  to  the  young  prince 
of  Wales  during  his  retreat  in  France,  and  received  at  his 
hands  the  office  of  chancellor.  It  must  never  be  forgot* 
ten  that,  in  a  treatise  purposely  composed  for  the  instruc- 
tion of  one  who  hoped  to  reign  over  England,  the  limitations 
of  goveinment  are  enforced  as  strenuously  by  Fortescne,  as 
some  succeeding  lawyers  have  inculcated  the  doctrines  of  ar- 
*bitrary  prerogative. 

^  A  king  of  England  cannot  at  his  pleasure  make  any  al- 
terations in  the  laws  of  the  land,  for  the  nature  ^  j^^^ 
of  his  government  is  not  only  regal,  but  political.  FortaMM^i 
Had  it  been  merely  regal,  he  would  have  a  power  tbeK^iii^ 
to  make  what  iimovations  and  alterations  he  pleased  om^tttuumii 


356       SIB  J.  FORTESCUE'S  DOCTRINE   Chak  Vm.  Pabt  IIL 

in  tlie  laws  of  the  kingdom,  impose  tallages  and  other  hard- 
ships upon  the  people  whether  they  would  or  no,  without 
their  consent,  which  sort  of  government  the  civil  laws  point 
out  when  they  declare  Quod  principi  placuit,  legis  habet  vi- 
gorem.  But  it  is  much  otherwise  with  a  king  whose  govern- 
ment is  political,  because  he  can  neither  make  any  alteration 
or  change  in  the  laws  of  the  realm  without  the  consent  of 
the  subjects,  nor  burden  them  against  their  wills  with  strange 
impositions,  so  that  a  people  governed  by  such  laws  as  are  made 
by  their  own  consent  and  approbation  enjoy  their  properties  se- 
curely, and  without  the  hazard  of  being  deprived  of  them,  either 
by  the  king  or  any  other.  The  same  things  may  be  effected 
under  an  absolute  prince,  provided  he  do  not  degenerate  into 
the  tyrant  Of  such  a  prince,  Aristotle,  in  the  third  of  his 
Politics,  says, '  It  is  better  for  a  city  to  be  governed  by  a  good 
man  than  by  good  laws.'  But  because  it  does  not  always 
happen  that  the  person  presiding  over  a  people  is  so  qualified, 
St.  Thomas,  in  the  book  which  he  writ  to  the  king  of  Cy- 
prus, De  Regimine  Principum,  wishes  that  a  kingdom  could 
be  so  instituted  as  that  the  king  might  not  be  at  libeity  to  tyr- 
annize over  his  people ;  which  only  comes  to  pass  in  the 
present  case  ;  that  is,  when  the  sovereign  power  is  restrained 
by  political  laws.  Rejoice,  therefore,  my  good  prince,  that 
such  is  the  law  of  the  kingdom  which  you  are  to  inherit,  be- 
cause it  will  afford,  both  to  yourself  and  subjects,  the  greatest 
security  and  satisfaction."  ^ 

The  two  great  divisions  of  civil  rale,  the  absolute,  or  regal 
as  he  calls  it,  and  the  political,  Fortescue  proceeds  to  deduce 
from  the  several  originals  of  conquest  and  compact.  Con- 
cerning the  latter  he  declares  emphatically  a  truth  not  always 
palatable  to  princes,  that  such  governments  were  instituted  by 
the  people,  and  for  the  people's  good ;  quoting  St  Augustin 
for  a  similar  definition  of  a  political  society.  ^  As  the  head 
of  a  body  natural  cannot  change  its  nerves  and  sinews,  cannot 
deny  to  the  several  parts  their  proper  energy,  their  due  pro- 
portion and  aliment  of  blood ;  neither  can  a  king,  who  is  the 
the  head  of  a  body  politic,  change  the  laws  thereof  nor  take 
from  the  people  what  is  theirs  by  right  against  their  consent 
Thus  you  have,  sir,  the  formal  institution  of  every  political 
kingdom,  from  whence  you  may  guess  at  the  power  which  « 

t  Vorteicw*,  Do  Lattdibns  Lofum  AogUiB,  o.  9. 


EvGusH  OoHot.    of  the  ENGLISH  C0NSTITUTI013.  357 

king  may  exercise  with  respect  to  the  laws  and  the  subject 
For  he  is  appointed  to  protect  his  subjects  in  their  lives,  prop- 
erties, and  laws ;  for  this  veiy  end  and  purpose  he  has  the 
delegation  of  power  from  th^  people,  and  he  has  no  just 
claim  to  any  other  power  but  this.  Wherefore,  to  give  a 
brief  answer  to  that  question  of  yours,  concerning  the  differ- 
ent powers  which  kings  claim  over  their  subjects,  I  am  firm- 
ly of  opinion  that  it  arises  solely  from  the  different  natures  of 
their  original  institution,  as  you  may  easily  collect  from  what 
has  been  said.  So  the  kingdom  of  England  had  its  original 
from  Brute,  and  the  Trojans,  who  attended  him  from  Italy 
and  Greece,  and  became  a  mixed  kind  of  government,  com- 
pounded of  the  r^gal  and  political."^ 

It  would  occupy  too  much  space  to  quote  every  other  pas- 
sage of  the  same  nature  in  this  treatise  of  Fortes-  ^^^^ 
cue,  and  in  that  entitled.  Of  the  Difference  between  views  taken 
an  Absolute  and  Limited  Monarchy,  which,  so  far  **^  ^""•• 
as  these  points  are  concerned,  is  nearly  a  translation  from  the 
former.^  But  these,  corroborated  as  they  are  by  the  statute- 
book  and  by  the  rolls  of  parliament,  are  surely  conclusive 
against  the  notions  which  pervade  Mr.  Hume's  History.  I 
have  already  remarked  that  a  sense  of  the  glaring  prejudice 
by  which  some  Whig  writers  had  been  actuated,  in  I'epresent- 
ing  the  EngUsh  constitution  from  the  earliest  times  as  nearly 
arrived  at  its  present  perfection,  conspired  with  certain  pre- 
possessions of  his  own  to  lead  this  eminent  historian  into  an 
equally  erroneous  system  on  the  opposite  side.  And  as  he 
traxsed  the  stream  backwards,  and  came  last  to  the  times  of 
the  Plantagenet  dynasty,  with  opinions  already  biassed  and 
even  pledged  to  the  world  in  his  volumes  of  earlier  publica- 
tion, he  was  prone  to  seize  hold  of,  and  even  exaggerate,  ev- 
ery circumstance  that  indicated  immature  civilization,  and 
law  perverted  or  infringed.*     To  this  his  ignorance  of  Eng- 

1  lorteieiM,  Th  Landibai  Legnm  Ang-  *  The  followliig  Is  one  example  of  these 

Ite,  e.  18.  piVQadioes :    In  the  9th  of  Richard  n. 

t  The     latter    treatise    haying    been  a  tax  on  wool  granted  till  the  ensuing 

written  nndwr  Edward  IV.,  whom  For-  feast  of  St.  John  Baptist  was  to  be  inter- 

tescue,  ea  a  restored  Lancastrian,  would  mitted  ttom  thence  to  that  of  St.  Peter, 

be  anxious  not  to  offend,  and  whom  in  and  then  to  recommence ;  that  it  might 

fibct  he  took  some  pains  to  oonciliate  both  not  be  claimed  as  a  right.     Rot.   Pari, 

in  this  and  other  writings,  it  is  evident  toI.  iii.  p.  214.    Mr  Hume  has  noticed 

tiiat  the  principles  of  limited  monarchy  this  proTision,  as  *■'■  showing  an  aoonraey 

were  as  fully  recognised  in  his  reign,  beyond  what  was  to  be  expected  in  those 

whatever   pefticnlar    acts   of   Tiolenoe  rude  times."    In  this  epithet  we  see  the 

might  occur,  as  they  had  been  under  the  foundation  of  his  mistakes.    The  age  of 

Lancastrian  princei.  Biflhard  II.  might  pevhaps  be  oaUed  rude 


358      ILLEGAL  CONDEBfNATION  RABE.    Chap.  YHL  Pabt  Til 

lidh  jurisprudence,  which  certainly  in  some  measure  disqual- 
ified him  from  writing  our  history,  did  not  a  little  contribute ; 
misrepresentations  frequently  occurring  in  his  work,  which  a 
moderate  acquaintance  with  the  law  of  the  land  would  have 
prevented.* 

It  is  an  honorable  circumstance  to  England  that  the  history 
instancM  of  of  uo  Other  couutry  presents  so  few  instances  of 
dem^uon  iH^g^l  Condemnation  upon  political  charges.  The 
lare.  judicial  torture  was  hardly  known  and  never  reo- 

ognized  by  law.^  The  sentence  in  capital  crimes,  fixed  unal- 
terably by  custom,  allowed  nothing  to  vindictiveness  and  in- 
dignation.  There  hardly  occurs  an  example  of  any  one 
being  notoriously  put  to  death  without  form  of  trial,  except 
in  moments  of  flagrant  civil  war.  J£  the  rights  of  juries 
were  sometimes  evaded  by  irregular  jurisdictions,  they  were 
at  least  held  sacred  by  the  courts  of  law :  and  through  all  the 
vicissitudes  of  civil  liberty,  no  one  ever  questioned  the  prima- 
ry right  of  every  freeman,  handed  down  from  his  Saxon  fore- 
fathers, to  the  trial  by  his  peers.  A  just  regard  for  public 
safety  prescribes  the  necessity  of  severe  penalties  against 
rebellion  and  conspiracy ;  but  the  interpretation  of  these  of- 
fences, when  intrusted  to  sovereigns  and  their  counsellors,  has 
been  tbe  most  tremendous  instrument  of  despotic  power.  In 
rude  ages,  even  though  a  general  spirit  of  political  liberty 
may  prevail,  the  legal  character  of  treason  will  commonly  be 
undefined ;  nor  is  it  the  disposition  of  lawyers  to  give  greater 
accuracy  to  this  part  of  criminal  jurisprudence.  The  nature 
of  treason  appears  to  have  been  subject  to  much  uncertainty 
in  England  before  the  statute  of  Edward  III.  If  that  mem- 
orable law  did  not  give  all  possible  precision  to  the  ofience, 

la  Home  iMpeeta.      But  anaredly   in  monuterlM  and  dtvlncfl.    Most  of  theM 

pradent  snd  clrcnmspect  perception  of  relate  to  the   main  iufajeet.     Bnt  one 

eoniieqaeneefl,  and  an  accurate  use  of  Ian-  qneation,  fitter  indeed  for  latryers  than 

guage,  there  could  be  no  reason  why  it  theologians,  was,  whereas  maoy  would 

should  be  deemed  inferior  to  our  own.  not  confess  without  torture,  whether  ha 

If  Mr.  Hume  had  ever  deigned  \o  glance  might  make  use  of  this  means,  licet  hoc 

at  the  legal  decisions  reported  in  the  in  ngno  Anglua  nvnquam  vinum  JUent 

Tear-books  of  those  times,  he  would  haTe  vel  auditum  ?      £t  si  torquendi  sunt, 

oeen  snrprisod,  not  only  at  the  utmost  utrum  per  derlcos  rel  laioos  ?    Bt  dato. 

aeatraey.  but  at  a  subtle   refinement  qn6d    nmUu*    omnmo    tortar    inrenin 

In  Terbal  logic,  which  none  of  his  own  vaUat  in  Anglift,  utrum  pro  tortorlbna 

metaphysical  treatises  could  surpass.  mittendnm  sit  ad  partes  transmarlnast 

t  [NoTi  XII.]  Walt.  Hemtnglbrd,  p.  256.     Instances, 

*  During  the  Ikmons  process  agslnst  however,  of  Its  use  are  said   to  hav* 

the  knights  templars  In  the  reign  of  ooonrred  In  the  16th  century.     See  m 

Bdward   11.,  the  archbishop  of  York,  learned  "  Reading  on  the  Use  of  Tortun 

having  taken  the  examination  of  certain  In   the  Criminal  Law  of   Bnglaad,  bjf 

templars   in   his    province,    felt    some  David  Jardlaa,  Bsq.,  1887." 
doBots  which  h»  propoundsd  to  sevnal 


Ctouu  Coan.      ILLEGAL  GOKDEIfNATION  RABB.  859 

which  we  must  certainly  allow,  it  preyented  at  least  those 
stretches  of  yindictive  tyranny  which  disgrace  the  annals  of 
other  countries.  The  praise,  however,  mast  be  understood  as 
comparative.  Some  cases  of  harsh  if  not  illegal  convictions 
could  hardly  fail  to  occur  in  times  of  violence  and  during 
changes  of  the  reigning  family.  Perhaps  the  circumstances 
have  now  and  then  been  aggravated  by  historians.  Nothing 
could  be  more  illegal  than  the  conviction  of  the  earl  of  Cam- 
bridge and  lord  Scrope  in  1415,  if  it  be  true,  according  to 
Carte  and  Hume,  that  they  were  not  heard  in  their  defence.' 
But  whether  this  is  to  be  absolutely  inferred  from  the  record^ 
is  perhaps  open  to  question.  There  seems  at  least  to  have 
been  no  sufficient  motive  for  such  an  irregularity;  their  par- 
ticipation in  a  treasonable  conspiracy  being  manifest  from 
their  own  confession.  The  proceedings  against  Sir  John  Mor- 
timer in  the  2d  of  Henry  VI.'  are  called  by  Hume  highly 
irregular  and  illegaL  They  were,  however,  by  act  of  attain- 
der, which  cannot  well  be  styled  illegal.  Nor  are  they  to  be 
considered  as  severe.  Mortimer  had  broken  out  of  the 
Tower,  where  he  was  confined  on  a  charge  of  treason.  This 
was  a  capital  felony  at  common  law ;  and  the  chief  irregular- 
ity seems  to  have  consisted  in  having  recourse  to  parliament 
m  order  to  attaint  him  of  treason,  when  he  had  already  for- 
feited his  life  by  another  crime. 

I  would  not  willingly  attribute  to  the  prevalence  of  Tory 
dispositions  what  may  be  explained  otherwise,  the  progress 
which  Mr.  Hume's  historical  theory  as  to  our  constitution  has 
been  gradually  making  since  its  publication.  The  tide  of 
opinion,  which  since  the  Revolution,  and  indeed  since  the 
reign  of  James  I.,  had  been  flowing  so  strongly  in  favor 
of  the  antiquity  of  our  liberties,  now  seems,  among  the  high- 
er and  more  literary  classes,  to  set  pretty  decidedly  the  other 
way.  Though  we  may  still  sometimes  hear  a  demagogue  chat- 
tering about  the  witenagemot,  it  is  far  more  usual  to  find  sen- 
sible and  liberal  men  who  look  on  Magna  Charta  itself  as  the 
result  of  an  uninteresting  squabble  between  the  king  and  his 
barons.  Acts  of  force  and  injustice,  which  strike  the  curso- 
ry inquirer,  especially  if  he  derives  his  knowledge  from  mod- 
em compilations,  more  than  the  average  tenor  of  events,  are 
selected  and  displayed  as  &ir  samples  of  the  law  and  of  its 

t  lot.  PwL  ToL  It.  p.  6ft  •  Bot.  Pwl.  toL  It.  p.  202. 


360  CAUSES  TENDING  TO  FOBM    Chap.  VUI.  Pabt  IlL 

administration.  We  are  deceived  by  the  comparatively  per- 
fect state  of  our  present  liberties,  and  forget  that  our  superior 
security  is  far  less  owing  to  positive  law  than  to  the  ccm- 
trol  which  is  exercised  over  government  by  public  opinion 
through  the  general  use  of  printing,  and  to  the  diffusion  of 
liberal  principles  in  policy  through  the  same  means.  Thus 
disgusted  at  a  contrast  which  it  was  hardly  candid  to  institute, 
we  turn  away  from  the  records  that  attest  the  real,  though  im- 
perfect, freedom  of  our  ancestors ;  and  are  willing  to  be  per- 
suaded that  the  whole  scheme  of  English  polity,  till  the  com- 
mons took  on  themselves  to  assert  their  natural  rights  against 
James  I.,  was  at  best  but  a  mockery  of  popular  privileges, 
hardly  recognized  in  theory,  and  never  regiarded  in  effect.' 

This  system,  when  stripped  of  those  slavish  inferences 
that  Brady  and  Carte  attempted  to  build  upon  it,  admits  per- 
haps of  no  essential  objection  but  its  want  of  historical  truth. 
God  forbid  that  our  rights  to  just  and  free  government  should 
be  tried  by  a  jury  of  antiquaries!  Yet  it  is  a  generous  pride 
that  intertwines  the  consciousness  of  hereditary  freedom  with 
the  memory  of  our  ancestors;  and  no  trifling  argument 
against  those  who  seem  indifferent  in  its  cause,  that  the  char 
acter  of  the  bravest  and  most  virtuous  among  nations  has 
not  depended  upon  the  accidents  of  race  or  climate,  but  been 
gradually  wrought  by  the  plastic  influence  of  civil  rights,  trans- 
mitted as  a  prescriptive  inheritance  through  a  long  course  of 
generations. 

By  what  means  the  English  acquired  and  preserved  this 
political  liberty,  which,  even  in  the  fifteenth  cen- 
tonding  to  tury,  was  the  admiration  of  judicious  foreigners,' 
SStitudon  ^  *  ^^^y  rational  and  interesting  inquiry.  Their 
own  serious  and  steady  attachment  to  tlie  laws 
must  always  be  reckoned  among  the  principal  causes  of  this 
blessing.  The  civil  equality  of  all  freemen  below  the  rank 
of  peerage,  and  the  subjection  of  peers  themselves  to  the  im- 
partial arm  of  justice,  and  to  a  due  share  in  contribution  to 
public  burdens,  advantages  unknown  to  other  counti'ies, 
tended  to  identify  the  interests  and  to  assimilate  the  feelings 
of  the  aristocracy  with  those  of  the  people ;  classes  whose 


1  This  was  IMtten  In  1811  or  1812 ;  *  Phllfp  d«  OomiMS  takes  several  op- 

and  is  among    many   jNiasages   which  portunldes  of  testifying  hto  esteem  Ibff 

the    progress    of    time  has  somewhat  the  Sngllsh  gOTernment.     See  pardon 

AUailtod.  larly  1.  It.  o.  I.  and  L  t.  o.  ziz 


EkolisuCovst.  the  CONSTITDTION.  361 

dissension  and  jealousy  has  been  in  many  instances  the  fiurest 
hope  of  sovereigns  aiming  at  arbitrary  power.  This  free- 
dom from  the  oppressive  supenority  of  a  privileged  order 
was  peculiar  to  England.  In  many  kingdoms  the  royal  pre- 
rogative was  at  least  equally  limited.  The  statutes  of  Ara- 
gon  are  more  full  of  remedial  provisions.  The  right  of  op- 
posing a  tyrannical  government  by  arms  was  more  frequently 
asserted  in  Castile.  But  nowhere  else  did  the  people  possess 
by  law,  and  I  think,  upon  the  whole,  in  effect,  so  much  secu- 
rity for  their  personal  freedom  and  property.  Accordingly, 
the  middling  ranks  flourished  remarkably,  not  only  in  com- 
mercial towns,  but  among  the  cultivators  of  the  soil.  ^^  There 
is  scarce  a  small  village,"  says  Sir  J.  Fortescue,  ^*  in  which 
you  may  not  find  a  knight,  an  esquire,  or  some  substantial  , 
householder  (paterfamilias),  commonly  called  a  franklcyn,^ 
possessed  of  considerable  estate;  besides  others  who  are 
called  freeholders,  and  many  yeomen  of  estates  sufficient  to 
make  a  substantial  jury."  I  would,  however,  point  out  more 
particularly  two  causes  which  had  a  very  leading  efiicacy 
in  the  gradual  development  of  our  constitution;  first,  the 
schemes  of  continental  ambition  in  which  our  government 
was  long  engaged;  secondly,  the  manner  in  which  feudal 
principles  of  insubordination  and  resistance  were  modified  by 
the  prerogatives  of  the  early  Norman  kings. 

1.  At  the  epoch  when  William  the  Conqueror  ascended 
the  throne,  hardly  any  other  power  was  possessed  by  the 
king  of  France  than  what  he  inherited  from  the  great  fiefs 
of  the  Capetian  family.  War  with  such  a  potentate  was  not 
exceedingly  to  be  dreaded,  and  William,  besides  his  immense 
revenue,  could  employ  the  feudal  services  of  his  vassals, 
which  were  extended  by  him  to  continental  expeditions. 
These  circumstances  were  not  essentially  changed  till  after 
the  loss  of  Normandy;  for  the  acquisitions  of  Henry  II. 
kept  him  fully  on  an  equality  with  the  French  crown,  and 
the  dilapidation  which  had  taken  place  in  the  royal  demesnes 

1  By  ft  flranktojm  In  thto  plaos  we  are  add  ttiat  the  prologue  to  hli  GantflrbuTy 

to  understand  what  we  call  a  country  liilee  to  ofltaelf  aeontlnaal  tMttmony  to 

•quire.  like  the  frankleyn  of  Chaucer ;  the  plenteous  and  oomfortoble  dtuaUon 

Ibr  the  word  enquire  In  Porteecue^s  time  of  the  middle  ranks  in  Knglond,  as  weU 

was  only  used  in  its  limited  sense,  for  as  to  that  fearless  indenendence  and  ft«- 

the  sons  of  peers  and  knights,  or  such  as  quant  originality  of  chaxaeter  amongst 

had  obtained  die  title  by  ereatlon  or  some  them ,  whieh  liberty  and  oompetenoe  haw 

other  kgal  means.  conspired  to  produoa. 

TIm  mentkni  at  Ghaocer  leads  me  to 


362  CAUSES  TENDING  TO  FORM    Chap.  VHI.  Pakt  Ul 

was  compensated  bj  several  arbitrary  resources  that  filled 
the  exchequer  of  these  monarchs.  But  in  the  reigns  of  John 
and  Henry  III.,  the  position  of  England,  or  rather  of  its 
sovereign,  with  respect  to  France,  underwent  a  very  disad- 
vantageous change.  The  loss  of  Normandy  severed  the 
connection  between  the  English  nobility  and  the  continent ; 
they  liad  no  longer  estates  to  defend,  and  took  not  sufGident 
interest  in  the  concerns  of  Guienne  to  fight  for  that  province 
at  their  own  cost.  Their  feudal  service  was  now  commuted 
for  an  escuage,  which  fell  very  short  of  the  expenses  incur- 
red in  a  protracted  campaign.  Tallages  of  royal  towns  and 
demesne  lands,  extortion  of  money  from  the  Jews,  every  feu- 
dal abuse  and  oppression,  were  tried  in  vain  to  replenish  the 
treasury,  which  the  defence  of  Eleanor^s  inheritance  against 
the  increased  energy  of  France  was  constantly  exhausting. 
Even  in  the  most  arbitrary  reigns,  a  general  tax  upon  land- 
holders, in  any  cases  but  those  prescribed  by  the  feudal  law, 
had  not  been  ventured ;  and  the  standing  bulwark  of  Magna 
Charta,  as  well  as  the  feebleness  and  unpopularity  of  Henry 
m.,  made  it  more  dangerous  to  violate  an  established  prin- 
ciple. Subsidies  were  therefore  constantly  required ;  but  for 
these  it  was  necessary  for  the  king  to  meet  parliament,  to 
hear  their  complaints,  and,  if  he  could  not  elude,  to  acquiesce 
in  their  petitions.  These  necessities  came  still  more  urgently 
upon  Edward  I.,  whose  ambitious  spirit  could  not  patiently 
endure  the  encroachments  of  Philip  the  Fair,  a  rival  not  less 
ambitious,  but  certainly  less  distinguished  by  personal  prow- 
ess, than  himself.  What  advantage  the  friends  of  liberty 
reaped  from,  this  ardor  for  continental  warfare  is  strongly 
seen  in  the  circumstances  attending  the  Confirmation  of  the 
Charters. 

But  afler  this  statute  had  rendered  all  tallages  without 
consent  of  parliament  illegal,  though  it  did  not  for  some  time 
prevent  their  being  occasionally  imposed,  it  was  still  more 
difficult  to  carry  on  a  war  with  France  or  Scotland,  to  keep 
on  foot  naval  armaments,  or  even  to  preserve  the  courtly 
magnificence  which  that  age  of  chivalry  affected,  without 
perpetual  recurrence  to  the  house  of  commons.  Edward  III. 
very  little  consulted  the  interests  of  his  prerogative  when  he 
stretched  forth  his  hand  to  seize  the  phantom  of  a  crown  in 
France.  It  compelled  him  to  assemble  parliament  almost 
annually,  and  ofl^  to  hold  more  than  one  session  within  the 


Amousb  Cohw.  the  constitution.  363 

jear.  Here  the  representatives  of  England  learned  the 
habit  of  remonstrance  and  conditional  supply ;  and  though,  in 
the  meridian  of  £ki ward's  age  and  vigor,  they  often  failed 
of  immediate  redress,  yet  they  gradually  swelled  the  statute- 
roll  with  provisions  to  secure  their  country's  freedom  ;  and 
acquiring  self-confidence  by  mutual  intercourse,  and  sense  of 
the  public  opinion,  they  became  able,  before  the  end  of  Ed« 
ward's  reign,  and  still  more  in  that  of  his  grandson,  to  control, 
prevent,  and  punish  the  abuses  of  administration.  Of  all 
these  proud  and  sovereign  privileges,  the  right  of  refusing 
supply  was  the  keystone.  But  for  the  long  wars  in  which 
our  kings  were  involved,  at  first  by  their  possession  of  Guienne« 
and  afterwards  by  their  pretensions  upon  the  crown  of  France, 
it  would  have  been  ea^y  to  suppress  remonstrances  by  avoid- 
ing to  assemble  parliament.  For  it  must  be  confessed  that 
an  authority  was  given  to  the  king's  proclamations,  and  to  ordi- 
nances of  the  council,  which  differed  but  little  from  legislative 
power,  and  would  very  soon  have  been  interpreted  by  com- 
plaisant courts  of  justice  to  give  them  the  full  extent  of  statutes. 

It  is  common  indeed  to  assert  that  the  liberties  of  England 
were  bought  with  the  blood  of  our  forefathers.  This  is  a 
very  magnanimous  boast,  and  in  some  degree  is  consonant 
enough  to  the  truth.  But  it  is  far  more  generally  accurate 
to  say  that  they  were  purchased  by  money.  A  great  pro- 
portion of  our  best  laws,  including  Magna  Charta  itself,  as  it 
now  stands  confirmed  by  Henry  III.,  were,  in  the  most  literal 
sense,  obtained  by  a  pecuniary  bargain  with  the  crown.  In 
many  parliaments  of  Edward  IIL  and  Richard  IL  this  sale 
of  redress  is  chaffered  for  as  distinctly,  and  with  as  little 
apparent  sense  of  disgrace,  as  the  most  legitimate  business 
between  two  merchants  would  be  transacted.  So  little  was 
there  of  voluntary  benevolence  in  what  the  loyal  courtesy  of 
our  constitution  styles  concessions  from  the  throne ;  and  so 
little  title  have  these  sovereigns,  though  we  cannot  refuse  our 
admiration  to  the  generous  virtues  of  Edward  UL  and 
Henry  V.,  to  claim  the  gratitude  of  posterity  as  the  benefac- 
tors of  their  people ! 

2.  The  relation  established  between  a  lord  and  his  vassal 
by  the  feudal  tenure,  far  from  containing  principles  of  any 
servile  and  implicit  obedience,  permitted  the  compact  to  be 
dissolved  in  case  of  its  violation  by  either  party.  This 
extended  as  much  to  the  sovereign  as  to  inferior  lords ;  th« 


364  CAUSES  TENDING  TO  FOBM    Chap.  VIIL  Pari  III* 

authority  of  the  former  in  France,  where  the  system  most 
flourished,  being  for  several  ages  rather  feudal  than  politicaL 
If  a  vassal  was  aggrieved,  and  if  justice  was  denied  him,  he 
sent  a  defiance,  that  is,  a  renunciation  of  fealty  to  the  king 
and  was  entitled  to  enforce  redress  at  the  point  of  his  sword. 
It  then  became  a  contest  of  strength  as  between  two  inde- 
pendent potentates,  and  was  terminated  by  treaty,  advan- 
tageous or  otherwise,  according  to  the  fortune  of  war.  This 
privilege,  suited  enough  to  the  situation  of  France,  the  great 
peers  of  which  did  not  originally  intend  to  admit  more  than 
a  nominal  supremacy  in  the  house  of  Capet,  was  evidently 
less  compatible  with  the  regular  monarchy  of  England.  The 
stern  natures  of  William  the  Conqueror  and  his  successors 
kept  in  control  the  mutinous  spirit  of  their  nobles,  and  reaped 
the  profit  of  feudal  tenures  without  submitting  to  their  recip- 
rocal obligations.  They  counteracted,  if  I  may  so  say,  the 
centrifugal  force  of  that  system  by  the  application  of  a 
stronger  power ;  by  preserving  order,  administering  justice, 
checking  the  growth  of  baronial  influence  and  riches,  with 
habitual  activity,  vigilance,  and  severity.  Still,  however,  there 
remained  the  original  principle,  that  allegiance  depended 
conditionally  upon  good  treatment,  and  that  an  appeal  might 
be  lawfully  made  to  arms  against  an  oppressive  government. 
Nor  was  this,  we  may  be  sure,  lefi  for  extreme  necessi^, 
or  thought  to  require  a  long  enduring  forbearance.  In 
modem  times  a  king  compelled  by  his  subjects'  swords  to 
abandon  any  pretension  would  be  supposed  to  have  ceased 
to  reign ;  and  the  expressed  recognition  of  such  a  right  as 
ihat  of  insurrection  has  been  justly  deemed  inconsistent 
with  the  majesty  of  law.  But  ruder  ages  had  ruder  senti- 
ments. Force  was  necessary  to  repel  force ;  and  men  accus- 
tomed to  see  the  king's  authority  defied  by  private  riot  were 
not  much  shocked  when  it  was  resisted  in  defence  of  public 
freedom. 

The  Great  Charter  of  John  was  secured  by  the  election 
of  twenty-five  barons  as  conservators  of  the  compact.  If 
the  king,  or  the  justiciary  in  his  absence,  should  transgress 
any  article,  any  four  might  demand  reparation,  and  on  denial 
cany  their  complaint  to  the  rest  of  their  body.  ^'  And  those 
barons,  with  all  the  commons  of  the  land,  shall  distrain  and 
annoy  us  by  every  means  in  their  power ;  that  is,  by  seizing 
our  castlea,  lands,  and  possessions,  and  every  other  mode,  till 


EvQUBB  CoKST.  THE  CONSTITUTION.  365 

the  wrong  shall  be  repaired  to  their  satisfaction ;  saving  our 
person,  and  our  queen  and  children.  And  when  it  shall  be 
repaired  thej  shall  obej  us  as  before."^  It  is  amusing  to  see 
the  common  law  of  distress  introduced  upon  this  gigantic 
scale ;  and  the  capture  of  the  king's  castles  treated  as  analo- 
gous to  impounding  a  neighbor's  horse  for  breaking  fences. 

A  very  curious  illustration  of  this  feudal  principle  is  found 
in  the  conduct  of  William  earl  of  Pembroke,  one  of  the 
greatest  names  in  our  ancient  history,  towards  Henry  lU.^ 
The  king  had  defied  him,  which  was  tantamount  to  ti  declara- 
tion of  war ;  alleging  that  he  had  made  an  inroad  upon  the 
royal  domains.  Pembroke  maintained  that  he  was  not  the 
aggressor,  that  the  king  had  denied  him  justice,  and  been  the 
first  to  invade  his  territory ;  on  which  account  he  had  thought 
himself  absolved  from  his  homage,  and  at  Uberty  to  use  force 
against  the  malignity  of  the  royal  advisers.  ^  Nor  would  it 
be  for  the  king^s  honor,**  the  earl  adds,  "^  that  I  should  submit 
to  his  will  against  reason,  whereby  I  should  rather  do  wrong 
to  him  and  to  that  justice  which  he  is  bound  to  administer 
towards  his  people ;  and  I  should  give  an  ill  example  to  all 
men  in  deserting  justice  and  right  in  compliance  with  his 
mistaken  wilL  For  this  would  show  that  I  loved  my  wordly 
wealth  better  than  justice."  These  words,  with  whatever 
dignity  expressed,  it  may  be  objected,  prove  only  the  disposi- 
tion of  an  angry  and  revolted  earl.  But  even  Henry  fully 
admitted  the  right  of  taking  arms  against  himself  if  he  had 
meditated  his  vassal's  destruction,  and  disputed  only  the  ap- 
plication of  this  maxim  to  the  earl  of  Pembroke.^ 

These  feudal  notions,  which  placed  the  moral  obligation  of 
allegiance  very  low,  acting  under  a  weighty  pressure  from 
the  real  strength  of  the  crown,  were  favorable  to  constitu- 
tional liberty.  The  great  vassals  of  France  and  Grermany 
aimed  at  living  independently  on  their  fiefs,  with  no  further 
concern  for  the  rest  than  as  useful  aUies  having  a  common 
interest  agauist  the  crown.  But  in  England,  as  there  was  no 
prospect  of  throwing  off  subjection,  the  barons  endeavored 
only  to  lighten  its  burden,  fixing  limits  to  *  prerogative  by 
law,  and  securing  their  observation  by  parliamentary  remon- 
strances or  by  dint  of  arms.  Hence,  as  all  rebellions  in 
England  were  directed  only  to  coerce  the  government,  or  at 

1  Bndy^  Hbt.  vol.  I. ;  Appendix,  p.  148. 

•  Mam.  Pwla,  p.  880;  lorttelton'i  HUt.  of  Hanry  JL  vcd.  It.  p.  4L 


866        INFLUENCE  OF  THE  NOBILITY.    Chap.  VIIL  Pabt  IBL 

the  utmoiit  to  change  the  succession  of  the  crowri,  without 
the  smallest  tendency  to  separation,  they  did  not  impair  the 
national  strength  nor  destroy  the  character  of  the  constitu- 
tion. In  ail  these  contentions  it  is  remarkable  that  the 
people  and  clergy  sided  with  the  nobles  against  the  throne. 
No  individuals  are  so  popular  with  the  monkish  annalists, 
who  speak  the  language  of  the  populace,  as  Simon  earl  of 
Leicester,  Thomas  earl  of  Lancaster,  and  Thomas  duke  of 
Gloucester,  all  turbulent  opposers  of  the  royal  authority,  and 
probably  little  deserving  of  their  panegyrics.  Very  few 
English  historians  of  the  middle  ages  are  advocates  of  pre- 
rogative. This  may  be  ascribed  both  to  the  equality  of  our 
laws  and  to  the  interest  which  the  aristocracy  found  in  court- 
ing popular  favor,  when  committed  against  so  formidable  an 
adversary  as  the  king.  And  even  now,  when  the  stream 
that  once  was  hurried  along  gullies  and  dashed  down  preci- 
pices hardly  betrays  upon  its  broad  and  tranquil  bosom  the 
motion  that  actuates  it,  it  must  still  be  accounted  a  singular 
happiness  of  our  constitution  that,  all  ranks  graduating  har- 
moniously into  one  another,  the  interests  of  peers  and  com- 
moners are  radically  interwoven ;  each  in  a  certain  sense 
distinguishable,  but  not  balanced  like  opposite  weights,  not 
separated  like  discordant  fluids,  not  to  be  secured  by  inso- 
lence or  jealousy,  but  by  mutual  adherence  and  reciprocal 
influences. 

From  the  time  of  Edward  I.  the  feudal  system  and  all  the 
influenoe  feelings  Connected  with  it  declined  very  rapidly. 
which  the  But  what  the  nobility  lost  in  the  number  of  their 
mana««  military  tenants  was  in  some  degree  compensated 
**bur***  by  the  state  of  manners.  The  higher  class  of 
^'  them,  who  took  the  chief  share  in  public  aflairs, 
were  exceedingly  opulent ;  and  their  mode  of  life  gave  wealth 
an  incredibly  greater  efficacy  than  it  possesses  at  present. 
Gentlemen  of  large  estates  and  good  families  who  had  at- 
tached themselves  to  these  great  peers,  who  bore  offices 
which  we  should  call  menial  in  their  households,  and  sent 
their  children  thither  for  education,  were  of  course  ready  to 
follow  their  banner  in  rising,  without  much  inquiry  into  the 
cause.  Still  less  would  the  vast  body  of  tenants  and  their 
retainers,  who  were  fed  at  the  castle  in  time  of  peace,  refuse 
to  carry  their  pikes  and  staves  into  the  fleld  of  battle.  Many 
devices  were  used  to  preserve  this    aristocratic   influence. 


BUGLUH  COKST.      PREVALENCE  OF  RATINE.  867 

which  riches  and  ancestry  of  themselves  rendered  so  fonni« 
dable.  Such  was  the  maintenance  of  suits,  or  confederacies 
for  the  purpose  of  supporting  each  other's  claims  in  litigation, 
which  was  the  subject  of  frequent  complaints  in  parliament, 
and  gave  rise  to  several  prohibitory  statutes.  By  help  of 
such  confederacies  parties  were  enabled  to  make  violent  en* 
tries  upon  the  lands  they  claimed,  which  the  law  itself  could 
hardly  be  said  to  discourage.^  Even  proceedings  in  courts 
of  justice  were  often  liable  to  intimidation  and  influence.*  A 
practice  much  allied  to  confederacies  of  maintenance,  though 
ostensibly  more  harmless,  was  that  of  giving  liveries  to  all 
retainers  of  a  noble  family  ;  but  it  had  an  obvious  tendency 
to  preserve  that  spirit  of  factious  attachments  and  animosities 
which  it  is  the  general  policy  of  a  wise  government  to  dissi- 
pate. From  the  first  year  of  Richard  II.  we  find  continual 
mention  of  this  custom,  with  many  legal  provisions  against 
it,  but  it  was  never  abolished  till  the  reign  of  Henry  VII.' 

These  associations  under  powerful  chiefs  were  only  inci- 
dentally beneficial  as  they  tended  to  withstand  the  p^^^i^nt 
abuses  of  prerogative.     In  their  more  usual  course  hAbitu  of 
they  were  designed  to  thwart  the  legitimate  exer-  ^^  *' 
else  of  the  king's  government  in  the  administration  of  the 
laws.    All  Europe  was  a  scene  of  intestine  anarchy  during 

>  If  •  man  wu  disMlied  of  his  land,  sometiiiMt  oremwed  by  umed  partial 

he  might  enter  u|^n  the  diawlaor  and  who  eudeaTored  to  preTent  their  adTer- 

nlnstate  himself  without  eoane  of  law.  sarien  fh>m  appearing.    Paston  Letters, 

In  what  ease  this  right  of  entry  was  toI.  iU.  p.- 119. 

taken  away,  or  totf«rf.  as  it  was  expressed,  >  Vrom  a  passage  In  the  Paston  Let- 
by  the  death  or  alienation  of  the  dis-  ters  (vol.  ii.  p.  28)  it  appears  that,  fkr 
•elaor,  is  a  sulgect  extenslTe  enoagh  to  firom  these  acts  being  regarded,  it  was 
oeoopy  two  oliapters  of  Littelton.  What  considered  as  a  mark  of  respect  to  tlie 
pertidna  to  our  inquiry  is,  that  by  an  king,  when  he  caoio  into  a  county^  for 
entry  in  the  old  law-books  we  must  no-  the  noblemen  and  gentry  to  meet  him 
derstand  an  actual  repossession  of  the  with  as  many  attendants  In  livery  as  they 
dlseeiiee,  not  a  suit  in  ejectment,  as  it  is  could  mnster.  Sir  John  Ponton  was  to 
now  interpreted,  but  which  is  a  com-  proride  twenty  men  in  their  liTery- 
paratirely  modem  proceeding.  The  first  gowns,  and  the  duke  of  Norfolk  two  hun- 
lemedy,  says  Britton.  of  the  disseisee  is  dred.  This  illustrates  the  well-known 
to  collect  a  body  of  nis  friends  (reooiller  story  of  Henry  VII.  and  the  earl  of 
amys  et  fbtjoe),  and  without  delay  to  east  Oxford,  and  shows  the  mean  and  oppreft- 
out  the  disseisors,  or  at  least  to  maintain  sive  conduct  of  the  king  in  that  aflkir, 
himself  in  possession  along  with  them,  which  Hume  lias  pretended  to  Justify. 
e.  44.  This  entry  ought  indeed  by  6  In  the  first  of  Edward  IV.  it  is  said 
R.  n.  Stat.  1.  c.  8,  to  be  made  peace-  In  the  roll  of  parliament  (toI.  t.  p.  407), 
ably  ;  and  the  justices  might  assemble  that,  **  by  yering  of  Uyerlee  and  signeu, 
Che  posse  comiutus  to  imprison  persons  contrary  to  the  statntee  and  ordinances 
entering  on  lands  by  violence  (16  R.  II.  made  aforetyme,  maintenaance  of  (|uar> 
o.  2,)  bat  these  laws  imply  the  fiusts  that  rals,  extortions,  robbeoies,  murders  Men 
made  them  necessary.  multiplied  and  eontinusa   wlUiin   tlds 

*  No  lord,  or  other  person,  by  90  R.  II.  xeame,  to  the  grate  distarbaunoe  and  In* 

e.  8,  was  permitted  to  sit  on  the  bench  quietatlon  of  ttte  same." 
•mi  the  Jnstiees  of  asslsq.    Trials  waie 


368  PBEVALENT  HABITS        Chap.  VIII.  Pabt  UL 

the  middle  ages ;  and  though  England  was  far  less  exposed 
to  the  scourge  of  priv.ite  war  than  most  nations  on  the  conti- 
nenty  we  should  find,  could  we  recover  the  local  annals  of 
everj  country,  such  an  accumulation  of  petty  rapine  and 
tumult  as  would  almost  alienate  us  from  the  liberty  which 
served  to  engender  it.  This  was  the  common  tenor  of  man- 
ners, sometimes  so  much  aggravated  as  to  find  a  place  in 
general  history,*  more  often  attested  by  records  during  the 
three  centuries  that  the  house  of  Plantagenet  sat  on  the 
throne.  Disseizin,  or  forcible  dispossession  of  freeholds, 
makes  one  of  the  most  considerable  articles  in  our  law 
books.^  Highway  robbery  was  from  the  earliest  times  a  sort 
of  national  crime.  Capital  punishments,  though  very  fre- 
quent, made  little  impression  on  a  bold  and  a  licentious 
crew,  who  had  at  least  the  sympathy  of  those  who  had 
nothing  to  lose  on  their  side,  and  Mattering  prospects  of  im- 
punity. We  know  how  long  the  outlaws  of  Sherwood  lived 
in  tradition  —  men  who,  like  some  of  their  betters,  have 
been  permitted  to  redeem  by  a  few  acts  of  generosity  the 
just  ignominy  of  extensive  crimes.  These,  indeed,  were  the 
heroes  of  vulgar  applause ;  but  when  such  a  judge  as  Sir 

1  Thus  to   select  one  passa^  out  of  Mansfleld^s  elaborate  Jadgment  in  Tlty* 

many:  Kodem  anno  (1332)  quiilam  ma-  lor  dem.    Atkins  t.  Hoi^ef  1  Burrow, 

ligni,  fulti  quoruudam  uiagnatum  pne-  107,  &c. ;   but  some  positions  in  it  ap> 

■idlo,  regis  adolescentiam  spernentes,  et  pear  to  me  rather  too  strongly  stated ; 

regnuni  perturbare  intendentes,  in  tan-  and  particularly  that  the  acceptance  or 

tarn  turbam  creverunt,  nemora  et  siiltus  the  disseisor  as  tenant  by  the  lord 


occupaverunt.  ita  quod  toti  regno  terror!  necessary  to  render  the  disaeiain  c«>mplete ; 

•asent.    Walflingham,  p.  132.  a  condition  which  I  have  not  found  hint- 

s  I  am  aware  that  in  many,  probably  ed  in  any  law-book.    See  Butler's  note 

a  great  ms^rlty  of  reported  cases,  this  on  Co.  Litt.  p.  880;  where  that  eminent 

word  was  technically  used,  where  sooie  lawyer  uxpresnes  similar  doubts  as  to 

jinwarranted  conveyance,  such  as  a  feoff-  Lord  Mansfield's  reasoning.  It  may  how- 

Inent  by  the  tenant  for  life,  was  held  to  ever  be  remarked,  that  constructive  or 

have  wrought  a  disseisin ;  or  where  the  elective  diftseixina,  being  of  a  technical 

plaintiff  WAS  allowed,  for  the  purpose  of  nature,  were   more   likely  to    produce 

a  more  convenient  remedy,  to  feign  him-  cases  In  the  Year-books  than  those  ac- 

•elf  disMised,  which  was  called  disseizin  companied  with  actual  violence,  which 

by  election.    But  several  proofb  might  would  commonly  turn  only  on  matters 

be  brought  from  the  parliamentary  peti-  of  ^t,  and  be  determined  by  a  jury, 

tions,  and  I  doubt  not,  if  nearly  looked  A  remarkable  instance  o^  violent  dis- 

at,  from  the  Year-books,  that  iu  other  seizin,  amounting  in  eflbot  to  a  private 

eases  there  was  an  actual  and  violent  war,  may  be  found  in  the  Paston  Lettent, 

expulsion.     And  the  definition  of  dis*  occupying  most  of  the  fourth  volume, 

seisin  in  all  the  old  writers,   such  as  One  of  Che  Paston  fiunily,  claiming  a 

Britton  and  Littleton,  is  obviously  fhuned  right  to  Caifltor  Castle,  kept  possessioa 

upon  its  primary  meaning  of  violent  dis-  a^nst  the  Duke  of  Norfolk,  who  brought 

possession,  which  the  wonl  had  probably  a  large  force,  and  laid  a  regular  siege  to 

acquired  long  before  the  more  peaceable  the  place,  till  it  surrendered  for  want  of 

disseizins,  if  I  may  Ube  the  expression,  provisions.    Two  of  the  besiegers  were 

became  the  subject  of  the  lamedjr  by  killed.    It  does  not  appear  that  any  i^pal 

aa^as.  measures  were  taken  to  prevent  or  pua- 

I  would  speak  wlOi  dofbrenoe  of  Lord  Ssh  this  outn^e* 


ExoLiSH  CosTBT.  OF  RAPINE    '  369 

John  Fortescue  could  exult  that  more  Englishmen  were 
hanged  for  robbery  in  one  year  than  French  in  seven,  and 
that,  '^  if  an  Englishman  be  poor,  and  see  another  having 
riches  which  may  be  taken  from  him  by  might,  he  will  not 
spare  to  do  so,"  *  it  may  be  perceived  how  thoroughly  these 
sentiments  had  pervaded  the  public  mind. 

Such  robbers,  I  have  said,  had  flattering  prospects  of  im- 
punity. Besides  the  general  want  of  communication,  which 
made  one  who  had  fled  from  his  own  neighborhood  tolerably 
secure,  they  had  the  advantage  of  extensive  forests  to  facili- 
tate their  depredations  and  prevent  detection.  When  out- 
lawed or  brought  to  trial,  the  worst  offenders  could  frequently 
purchase  charters  of  pardon,  which  defeated  justice  in  the 
moment  of  her  blow.*  Nor  were  the  nobility  ashamed  to 
patronize  men  guilty  of  every  crime.  Several  pi-oofs  of  this 
occur  in  the  rolls.  Thus,  for  example,  in  the  22d  of  Edward 
III.,  the  commons  pray  that,  ^  whereas  it  is  notorious  how 
robbers  and  malefactors  infest  the  country,  the  king  would 
charge  the  great  men  of  the  land  that  none  such  be  mun- 
tained  by  them,  privily  or  openly,  but  that  they  lend  assist- 
ance to  arrest  and  take  such  ill  doers."* 

1  Difference  between  an  Abeolute  and  had   done   befbref  but  conceding  some 

Limited  Monarchy,  p.  99.  regulations.  &r  less  remedial  than  what 

>  The  manner  in  which  then  were  ob-  were  proTided  already  by  the  27th  of  Kd- 

tained,  In  ipite  of  law,  may  be  noticed  ward  II.    Pardons  make  a  pretty  large 

among  the  violent  counes  of  prerogatiTe.  head  in  Brockets  Abridgment,  and  were 

By  statute  2  E.  III.  c.  2,  oouflrmed  by  undoubtedly  granted  without  scruple  by 

10  K.  III.  0.  2,  the  king's  power  of  grant-  every  one  of  our  kings.     A   pardon  ob- 

Ing  pardons  was  taken  away,  except  in  tained  in  a  case  of  peculiar  atrocity  is 


of  homicide  per  infortunium.    An-  the  suljeet  of  a  specific  remonstrance  in 

other  act,  14  £.  III.  c.  15,  reciting  that  28  U.  TI.    Rot.  Pari.  vol.  v.  p.  111. 

the  former  laws  In  this  respect  have  not  *  Rot.  Pari.  vol.  ii.  p.  201.    A  strange 

been  kept,  declares  that  all  pardons  con-  policy,  for  which  no  rational  cause  can 

trary  to  them  shall  be  holden  as  null,  be  allied,  kept  Wales  and  even  Cheshire 

This  however  was  disregarded  like  the  distinct  from  the  rest  of  the  kingdom, 

reet ;  and  the  oommoas  began  tacitly  to  Nothing  could  be  more  izv}uriou8  to  the 

recede  from   them,  and  endeavored  to  adjacent  countiee.    Upon   the  credit  of 

compromise  the  question  with  the  crown,  their  immunity  from  the  jurisdiction  of 

By  Zi  S.  III.  Stat.  1,  c.  2,  without  advert-  the  king's  courts,  the  people  of  Cheshire 

log  to  the  existing  provisions,  which  may  broke  ^th  armed  bands  into  the  neigh- 

therefoie  seen  to  be  repealed  by  implica^  boring    counties,   and    perpetrated    all 

ti(in.  it  is  enacted  that  in  every  charter  the  crimes  in  their  power.    Rot.  Pari, 

of  pardon,  granted  at  any  one's  sugges-  vol.  iii.  p.  81,  201.  440;  Stat.  1  H.  IV.  e. 

tion,    the    suggestor's   name   and    the  18.    As  to  the  Welsh  flnontier,  it  waa 

grounds  of  his  suggestion  shall  be  ex-  constantly  almost  in  a   state   of  war, 

{^wesed.  that  If  the  same  be  found  untrue  which  a  very  little  good  sense  and  be- 

t  mav  be  disallowed.     And  in  13  R.  II.  nevolenoe  in  any  one  of  our  shepherds 

•tat.  2,  e.  1,  we  are  surprised  to  find  the  would  have  easily  prevented,  by  admit- 

commons  requesting  that  pardons  might  ting  the  conquered  people  to  partake  in 

not  be  granted,  as  if  the  sul^t  were  equal  privileges  with  their  follow-sub- 

wholly  unknown  to  the  law ;  the  king  Jeets.     Instead  of  this,   they  satisfied 

protesting  In  reply  that  he  will  save  his  themselves  with   aggravating  the  nJs* 

Uberty  and  repJicy,  as  his  progenftoia  ehlef  by  granting  legal  reimsalf  npoa 
VOL.  II.  —  M.                          24 


870  PREVALENT  HABITS    Chap.  Vm.  Part.  HI 

It  18  perhaps  the  most  meritoriouQ  part  of  Edward  L'l 
government  that  he  bent  all  his  power  to  restrain  these 
breaches  of  tranquillity.  One  of  his  salutary  provisioas  is 
still  in  constant  use,  the  statute  of  coroners.  Another,  more 
extensire,  and,  though  partly  obsolete,  the  foundation  of 
modem  laws,  is  the  statute  of  Winton,  which,  reciting  that 
^  from  day  to  day  robberies,  murders,  burnings,  and  theft  be 
more  often  used  than  they  have  been  heretofore,  and  felons 
cannot  be  attainted  by  the  oath  of  jurors  which  had  rather 
suffer  robberies  on  strangers  to  pass  without  punishment 
than  indite  the  offenders,  of  whom  great  part  be  people  of 
the  same  country,  or  at  least,  if  the  offenders  be  of  another 
country,  the  receivers  be  of  places  near,"  enacts  that  hue 
and  cry  shall  be  made  upon  the  commission  of  a  robbery, 
and  that  the  hundred  shall  remain  answerable  for  the  damage 
unless  the  felons  be  brought  to  justice.  It  may  be  inferred 
from  this  pix)vi8ion  that  the  ancient  law  of  frank-pledge, 
though  retained  longer  in  form,  had  lost  its  efficiency*  Bj 
the  same  act,  no  stranger  or  suspicious  person  was  to  lodge 
even  in  the  suburbs  of  towns;  the  gates  were  to  be  kept 
locked  from  sunset  to  sunrising ;  every  host  to  be  answerable 
for  his  guest ;  the  highways  to  be  cleared  of  trees  and  under- 
wood for  two  hundred  feet  on  each  side ;  and  every  man  to 
keep  arms  according  to  his  substance  in  readiness  to  follow 
the  sheriff'  on  hue  and  cry  raised  after  felons.^  The  last 
provision  indicates  that  the  robbers  plundered  the  country  in 
formidable  bands.  One  of  these,  in  a  subsequent  part  of 
Edward's  reign,  burned  the  town  of  Boston  during  a  fair, 
and  obtained  a  vast  booty,  though  their  leader  had  the  ill 
fortune  not  to  escape  the  gallows. 

The  preservation  of  oi^er  throughout  the  country  was 
originally  intrusted  not  only  to  the  sheriff*,  coroner,  and  con- 

WeUhmen.    Stat.  2  H.  IV.  e.  16.    Welsh-  the  ionth  of  thst  prlnelpallW.  to  Mnr» 

meo  were  absolutely  ezcladed  from  bear-  in  parliament.    Rot.  Pari.  toI.  i.  p.  456. 

lug  offices  in  Wales.    The  English  liTing  And  we  find  a  similar  writ  in  the  a)th  of 

In  the  Euffllsh  towns  of  Wales  earnestly  the  same  king.    Prynne's  Register,  4th 

Jetition,  28  H.  VI    Rot.  Pari.  toI.  t.  p.  part,  p.  60.    Willis  says  that  he  has  seen 

04,  154,  that  this   exclusion    may  be  a  return  to  one  of  these  preoeptSf  much 

kept  in  force.    Complaints  of  the  (Usor-  obliterated,  but  from  wliich  it  appears 

derly  state  of  the  Welsh  frontier  are  re-  that  Conway,  Beaumaris,  and  Camaryon 

peated  as  late  as  12  B.  IV.  vol.  tI.  p.  8.  returned  members.    Notitia  Parliaman- 

It  is  curious  that,  so  early  as  15  B.  11-,  taria,  toI.  i.  prefluw,  p.  15. 

a  writ  was  addressed  to  the  earl  of  Aran-  i  The  statute  of  Winton  was  eonflrmed. 

del,  justiciary  of  Wales,  directing  him  to  andprotJaimed  afresh  by  the  sherifis,  t 

eanse  twenty-fbur  discreet  persons  to  be  B.  II.  o.  6,  after  an  era  of  gnat  disovdar. 
•hosen  firom  the  nortli,  and  as  many  from 


English  Cohst.  OF  RAPINE.  871 

stables,  but  to  certain  magistrates  called  conservators  of  the 
peace.  These,  in  conformity  to  the  democratic  character  of 
our  Saxon  government^  were  elected  by  the  freeholders  in 
their  county  court.^  But  Edward  L  issued  commissions  to 
carry  into  effect  the  statute  of  Winton  ;  and  from  the  begin* 
ning  of  Edward  III.'s  reign  the  appointment  of  conservators 
was  vested  in  the  crown,  tl^eir  authority  gradually  enlarged 
by  a  ^series  of  statutes,  and  their  titles  changed  to  that  of 
justices.  They  were  empowered  to  imprison  and  punish  all 
rioters  and  other  offenders,  and  such  as  they  should  find  by 
indictment  or  suspicion  to  be  reputed  thieves  or  vagabonds, 
and  to  take  sureties  for  good  behavior  from  persons  of  evil 
fame.^  Such  a  jurisdiction  was  hardly  more  arbitrary  than, 
in  a  free  and  civilized  age,  it  has  been  thought  fit  to  vest  in 
magistrates ;  but  it  was  ill  endured  by  a  people  who  placed 
their  notions  of  liberty  in  personal  exemption  from  restraint 
rather  than  any  political  theory.  An  act  having  been  passed 
(2  R.  II.  Stat  2,  c  6),  in  consequence  of  unusual  riots  and 
outrages,  enabling  magistrates  to  commit  the  ringleaders  of 
tumultuary  assemblies  without  waiting  for  legal  process  till 
the  next  arrival  of  justices  of  jail  delivery,  the  commons 
petitioned  next  year  against  this  ^horrible  grievous  ordi- 
nance," by  which  ^  every  freeman  in  the  kingdom  would  be 
in  bondage  to  these  justices,"  contrary  to  the  great  charter, 
and  to  many  statutes,  which  forbid  any  man  to  be  taken 
without  due  course  of  law.*  So  sensitive  was  their  jealousy 
of  arbitrary  imprisonment,  that  they  preferred  enduring  riot 
and  robbery  to  chastising  them  by  any  means  that  might 
afford  a  precedent  to  oppression,  or  weaken  men's  reverence 
for  Magna  Charta. 

There  are  two  subjects  remaining  to  which  this  retrospect 
of  the  state  of  manners  naturally  leads  us,  and  which  I  would 
not  pass  unnoticed,  though  not  perhaps  absolutely  essential  to 
a  constitutional  history ;  because  they  tend  in  a  very  mate- 
rial degree  to  illustrate  the  progress  of  society,  with  which 

1  Blaekstone,  ▼oL  i.  e.  9 ;  Oifte,  toI.  0.  *  Rot.  Psri.  toI.  111.  p.  66.    It  mnj  b« 

p.  208.  obserred  that  this  act,  2  B.  11.  e.  16,  wu 

SIB.  in. itat.  2,  0. 16 ;  4 B.  m.  c.  2 ;  not  founded  on  a  petition,  bat  on  the 
84  B.  III.  0. 1 ;  7  R.  11.  e.  6.  The  insti-  king^s  aiMwer ;  m  that  the  eommoni 
tntion  excited  a  good  deal  of  lll-wlll,eTen  were  not  real  parties  to  it,  and  accord- 
before  these  strong  acts  were  passed.  Ingly  call  it  an  ordinance  in  their  praent 
Many  petitions  of  the  commons  in  the  petition.  This  naturally  increased  their 
SSth  B.  III.,  and  other  ysart,  complain  animosity  in  treating  it  as  an  inftlngv- 
•f  It.    Bot.  ParL'Tol  U  ment  of  tbo  snlitJwt's  right 


372  VILLENAGE  OF      Chap.  VHT.  Part  m 

civil  liberty  and  regular  government  are  closely  connected. 
Tliese  are,  first,  the  servitude  or  villenage  of  the  peasantry, 
and  their  gradual  emancipation  from  that  condition;  and, 
secondly,  the  continual  increase  of  commercial  intercourse 
Tvith  foreign  countries.  But  as  the  latter  topic  will  fall  more 
conveniently  into  the  next  part  of  this  work,  I  shall  postpone 
its  consideration  for  the  present. 

In  a  former  passage,  I  have  remarked  of  the  Anglo-Saxon 
viUeniuM  ceorls  that  neither  their  situation  nor  that  of  their 
of  the  descendants  for  the  earlier  reigns  after  the  Con- 

itomuare  quest  appears  to  have  been  mere  servitude-  But 
»nd  gradual  from  the  time  of  Henry  IL,  as  we  learn  from 
ex  nc  oEu  Qiajjyii^  ^jj^  villciu,  SO  Called,  was  absolutely  de- 
pendent upon  his  lord's  will,  compelled  to  unlimited  services, 
and  destitute  of  property,  not  only  in  the  land  he  held  for  his 
maintenance,  but  in  his  own  acquisitions.^  If  a  villein  pur- 
chased or  inherited  land,  the  lord  might  seize  it ;  if  he  aoca* 
mulated  stock,  its  possession  was  equally  precarious.  Against 
his  lord  he  had  no  right  of  action  ;  because  his  indemnity 
in  damages,  if  he  could  have  recovered  any,  might  have 
been  immediately  taken  away.  If  he  fled  from  his  lord'fl 
service,  or  from  the  land  which  he  held,  a  writ  issued  de  na- 
tivitate  probanda,  and  the  master  recovered  his  fugitive  by 
law.  His  children  were  bom  to  the  same  state  of  servitude ; 
and,  contrary  to  the  rule  of  the  civil  law,  where  one  parent 
was  free  and  the  other  in  villenage,  the  offspring  followed 
their  father's  condition.* 

This  was  certainly  a  severe  lot ;  yet  there  are  circum- 
stances which  materially  distinguish  it  from  slavery.  The 
condition  of  villenage,  at  least  in  later  times,  was  perfectly 

1  GlaoTll,  1.  T.  0.  5.  ward  IV.  aa  an  iDStanoe  of  the  bias  wfaleh 

*  According  to  Bracton,  the  baatard  of  the  jadges  showed  in  Ikvor  of  personal 

a  nief,  or  female  villein,  was  bom  in  fteedom.    Another,  if  we  can  rely  upon 

servitude ;  and  where  the  parents  lired  It,  is  more  Important.    In  the  i«dgn  of 

on  a  Tillein  tenement,  the  ehildivn  of  a  Henry  II.  a  freeman  marrying  a  nIef. 

nief,  even  though  married  to  a  freeman,  and  settling  on  a  villein  tenement,  lost 

were  villeins.  I.  iv.  e.  21 ;  and  soe  Beames^  the  privileges  of  freedom  during  the  tlma 

translation  of  Olanvil,  p.  109.    But  Lit-  of  his  occupation  ,*  legem   terns  quasi 

tleton  lays  down  an  opposite  doctrine,  nativus  amittit.    Glanvil,  l.v.c.6.    This 

that «  bastard  was  necessarily  free  ;  be  was  consonant  to  the  customs  of  soma 

cause,  being  the  child  of  no  &ther  in  the  other  countries,  some  of  which  went  fnr^ 

eontempUtion  of  law,  he  could  not  be  ther.  and  treated  such  a  person  forever 

presumed  to  inherit  servitude  from  any  as  a  villein.    But,  on  the  contrary,  w« 

one ;  and  makes  no  distinction  as  to  the  find  in  Britton,  a  century  later,  that  the 

parent's  rnsidence.    Sect.  188.    I  merely  nief  herself  by  such  a  marriage  became 

take  notice  of  this  change  in  the  law  b»-  free  during  the  covertat«.   c.  SL    fl^on 

twesn  the  reigns  of  Henry  III.  and  Ed-  XTTT.] 


Eholibb  Const. 


THE  PEASANTBT. 


873 


relative ;  it  formed  no  distinct  order  in  the  political  econ* 
omj.  No  man  was  a  villein  in  the  eye  of  Law,  unless  his 
master  claimed  him ;  to  all  others  he  was  a  freeman,  and 
might  acquire,  dispose  of,  or  sue  for  property  without  impedi« 
ment.  Hence  Sir  E.  Coke  argues  that  villeins  are  incduded 
in  the  29th  article  of  Magna  Charta :  "  No  freeman  snail  be 
disseized  nor  imprisoned/'  ^  For  murder,  rape,  or  mutilation 
of  his  villein,  the  lord  was  indictable  at  the  king's  suit; 
though  not  for  assault  or  imprisonment,  which  were  within 
the  sphere  of  his  seignorial  authority.* 

This  class  was  distinguished  into  villeins,  regardant,  who 
had  been  attached  from  time  immemorial  to  a  certain  manor, 
and  villeins  in  gros8,  where  such  territorial  prescription  had 
never  existed,  or  had  been  broken.  In  the  condition  of  these, 
whatever  has  been  said  by  some  writers,  I  can  find  no  man- 
ner of  difference ;  the  distinction  was  merely  technical,  and 
affected  only  the  mode  of  pleading. '  The  term  in  gross  is 
appropriated  in  our  legal  language  to  property  held  absolutely 
and  without  reference  to  any  other.  Thus  it  is  applied  to 
rights  of  advowson  or  of  common,  when  possessed  simply 


1 1  must  eonfeas  that  I  hare  wnne 
donbU  how  ikr  this  wm  law  at  Ui«  •poeh 
of  MAgQ*  Charta.  OlanTil  and  Bracton 
both  speak  of  tho  statvs  viUenagii  aa 
opposed  to  that  of  liberty,  and  wem  to 
consider  It  as  a  cItII  condition,  not  a 
merely  personal  relation.  The  dvil  law 
and  the  French  treatise  of  Beaonianoir 
bold  the  seme  lanrage.  And  Sir  Rob- 
ert Cotton  nudntains  without  hesitation 
that  yillelns  are  not  within  the  29th  sec- 
tion of  Mania  Charta.  **  beioff  excluded 
by  the  word  liber."  Cotton's  Posthnma, 
p.  228.  Brittonf  howerer,  a  little  after 
Bracton,  says  that  in  an  action  the  tU- 
lein  Is  answerable  to  all  men,  and  all  men 
to  him.  p.  79.  And  later  Jadgee,  in  Ik- 
Torem  libertatis,  caTe  this  constmction 
to  the  Tllleln's  sitnation,  which  mnst 
therefore  be  considered  as  the  clear  law 
of  England  in  the  foorteenth  and  llf<* 
teenth  eenturlea. 

t  Littleton,  sect.  189, 190,  speaks  only 
of  an  appeal  in  the  two  former  cases ; 
bnt  nn  Indictment  is  4  fortiori ;  and  he 
says,  seet.194,  that  an  Indietment,  though 
not  an  appeal.  lies  against  the  lord  for 
nalraittft  his  TiUeln. 

*  aordon,  on  Courts  Baron,  p.  £92,  sap- 
poeos  the  rilleln  In  gross  to  hare  been 
the  Iassos  or  Serms  of  early  times,  a 
domcstio  serf,  and  of  an  inftrtor  speotea 
to  the  enltlTator,  or  Tlilein  rqpardant. 
VnloeUly  Biacton  and  Littleton  do  not 


eonflnn  this  notion,  which  would  be  eon* 
▼enient  enough  ;  for  in  Domesday  Book 
there  is  a  marked  disUnction  between 
the  Serri  and  Villani.  Blackstone  ex- 
presses himself  inaccnrately  when  he 
says  the  TiUein  in  groas  was  annexed  to 
the  person  of  the  lord,  and  transferable 
by  deed  from  one  owner  to  another.  By 
this  means  Indeed  a  Tilleln  VMardant 
would  become  a  rlllein  In  gross,  but  all 
▼llleins  were  alike  liable  to  be  sold  by 
their  owners.  Littleton,  sect.  181.  Bkun^ 
field's  Norfolk,  toI.  lii.  p.  800.  Mr.  Har- 
grave  soppoeea  tliat  rilldns  in  gross 
were  noTer  numerous  (Oase  of  Somerset, 
Howeirs  State  Trials,  rol.  xx.  p.  42); 
drawing  this  Inference  from  the  few  cases 
relatlTe  to  them  tliat  occur  in  the  Year 
books.  And  certainly  the  form  of  a  writ 
de  natiTitate  probandl,  and  the  peculiar 
evidence  It  required,  which  mav  be  found 
In  Fltaherbert's  Nature  Breylum,  or  in 
Mr.  H.'s  argument,  are  only  applicable 
to  the  other  species.  It  is  a  doubtful 
point  whether  a  freeman  could,  In  eon- 
tonplatlon  of  law,  become  a  ViUein  In 
gross;  though  his  confession  in  a  court 
of  record,  upon  a  suit  already  commenced 
(for  this  was  requisite),  would  estop  him 
from  claiming  his  liberty ;  and  nenee 
Braeton  sneaks  of  this  proceeding  as  a 
mode  by  which  a  freeman  ml^t  fiul  int« 
aerritude. 


374  VILLENAGE  OF      Chap.  Vm.  Paiw  IL. 

fuid  not  as  incident  to  any  particular  lands.  And  thero  can 
be  no  doubt  that  it  was  used  in  the  same  sense  for  the  possea- 
Bion  of  a  villein.^  But  there  was  a  class  of  persons,  some- 
times uiaccuratelj,  confounded  with  villeins,  whom  it  is  more 
important  to  separate.  Villenage  had  a  double  sense,  as  it 
related  to  persons  or  to  lands.  As  all  men  were  free  or  vil- 
leins, so  all  lands  were  held  by  a  free  or  villein  tenure.  As 
a  villein  might  be  enfeoffed  of  freeholds,  though  thej  lay  at 
the  mercy  of  his  lord,  so  a  freeman  might  hold  tenements  in 
villenage.  In  this  case  his  personal  liberty  subsisted  along 
with  the  burdens  of  territori^  servitude.  He  was  bound  to 
arbitrary  service  at  the  will  of  the  lord,  and  he  might  by  the 
same  will  be  at  any  moment  dispossessed ;  for  such  was  the 
condition  of  his  tenure.  But  his  chattels  were  secure  from 
seizure,  his  person  from  injury,  and  he  might  leave  the  land 
whenever  he  pleased.  * 

From  so  disadvantageous  a  condition  as  this  of  villenage  it 
may  cause  some  surprise  that  the  peasantry  of  England 
should  have  ever  emerged.  The  law  incapacitating  a  villein 
from  acquiring  property,  placed,  one  would  imagine,  an 
insurmountable  barrier  in  the  way  of  his  enfranchisement 
It  followed  from  thence,  and  is  positively  said  by  Glanvil, 
that  a  villein  could  not  buy  his  freedom,  because  the  price 
he  tendered  would  already  belong  to  his  lord.  *  And  even 
in  the  case  of  free  tenants  in  villenage  it  is  not  easy  to 
comprehend  how  their  uncertain  and  unboimded  services 
oould  ever  pass  into  slight  pecuniary  commutations;  much 
less  how  they  could  come  to  maintain  themselves  in  their 
lands  and  mock  the  lord  with  a  nominal  tenure,  according  to 
the  custom  of  the  manor. 

This,  like  many  others  relating  to  the  progress  of  society, 
is  a  very  obscure  inquiry.  We  can  trace  the  pedigree  of 
princes,  fill  up  the  catalogue  of  towns  besieged  and  provinces 
desolated,  describe  even  the  whole  pageantry  of  coronations 
and  festivals,  but  we  cannot  recover  the  genuine  history  of 
mankind.  It  has  passed  away  with  slight  and  partial  notice 
by  contemporary  writers ;  and  our  most  patient  industry  can 
hardly  at  present  put  together  enough  of  the  fragments  to 
suggest  a  tolerably  clear  representation  of  ancient  manners 

»  [Non  XIV.l 

•  Bmcton,  I.  A.  e.  8 ;  1.  It.  o.  SB;  UttMon,  seet.  ITS. 

•  QIaotU,  L  It.  0. 6. 


E3IGU8H  Const.  THE  FEASANTBT.  875 

and  social  life.  I  cannot  profess  to  undertake  what  would 
require  a  command  of  books  as  well  as  leisure  beyond  my 
reach ;  but  the  following  observations  may  tend  a  little  to 
illustrate  our  immediate  subject,  the  gradual  extinction  of 
villenage. 

If  we  take  what  maj  be  considered  as  the  simplest  case, 
that  of  a  manor  divided  into  demesne  lands  of  the  lord's 
occupation  and  those  in  the  tenure  of  his  villeins,  performing 
all  the  services  of  agriculture  for  him,  it  is  obvious  that  his 
interest  was  to  maintain  just  so  manj  of  these  as  his  estate 
required  for  its  cultivation.  Land,  the  cheapest  of  articles, 
was  the  price  of  their  labor  ;  and  though  the  law  did  not 
compel  him  to  pay  this  or  anj  other  price,  yet  necessity, 
repairing  in  some  degree  the  law's  injustice,  made  those 
pretty  secure  of  food  and  dwellings  who  were  to  give  the 
strength  of  their  arms  for  his  advantage.  But  in  course  of 
time,  as  alienations  of  small  parcels  of  manors  to  free  tenants 
came  to  prevail,  the  proprietors  of  land  were  placed  in  a 
new  situation  relatively  to  its  cultivators.  The  tenements 
in  villenage,  whether  by  law  or  usage,  were  never  separated 
from  the  lordship,  while  its  domain  was  reduced  to  a  smaller 
extent  through  subinfeudations,  sales,  or  demises  for  valuable 
rent.  The  purchasers  under  these  alienations  had  occasion  for 
laborers;  and  these  would  be  free  servants  in  respect  of 
such  employers,  though  in  villenage  to  their  original  lonL 
As  he  demanded  less  of  their  labor,  through  the  diminution 
of  his  domain,  they  had  more  to  spare  for  other  masters ; 
and  retaining  the  character  of  villeins  and  the  lands  they 
held  by  that  tenure,  became  hired  laborers  in  husbandry  for 
the  greater  part  of  the  year.  It  is  true  that  all  their  earn- 
ings were  at  the  lord's  disposal,  and  that  he  might  have 
made  a  profit  of  their  labor  when  he  ceased  to  require  it  for 
his  own  land.  But  this,  which  the  rapacity  of  more  com- 
mercial times  would  have  instantly  suggested,  might  escape 
a  feudal  superior,  who,  wealthy  beyond  his  wants,  and 
guarded  by  Uie  haughtiness  of  ancestry  against  the  desire  of 
such  pitiful  gains,  was  I)etter  pleased  to  win  the  affection  of 
his  dependants  than  to  improve  his  fortune  at  their  expense. 

The  services  of  villenage  were  gradually  rendered  less 
onerous  and  uncertain.  Those  of  husbandry,  indeed,  are 
naturally  uniform,  and  might  be  anticipated  with  no  small 
exactness.    Lords  of  generous  tempers  granted  indulgences 


876  VDLLENAGE  OF      Chap.  VIIL  Pabt  m, 

which  were  either  intended  to  be  or  readily  became  i>er- 
petuid.  And  thus,  in  the  time  of  Edward  I.,  we  find  the 
tenants  in  gome  manors  bound  only  to  stated  services,  as  re« 
coi'ded  in  the  lord's  book.^  Some  of  these,  perhaps,  might 
be  villeins  by  blood ;  but  free  tenants  in  villenage  were  still 
more  likely  to  obtain  this  precision  in  their  services;  and 
from  claiming  a  customary  right  to  be  entered  in  the  court- 
roll  upon  the  same  terms  as  tlieir  predecessors,  prevailed  at 
length  to  get  copies  of  it  for  their  security.*  Proofs  of  this 
remarkable  transformation  from  tenants  in  villenage  to  copy« 
holders  are  found  in  the  reign  of  Henry  III.  I  do  not 
know,  however,  that  they  were  protected,  at  so  early  an 
epoch,  in  the  possession  of  their  estates.  But  it  is  said  in 
the  Year-book  of  the  42d  of  Edward  IIL  to  be  **  admitted 
for  clexir  law,  that,  if  the  customary  tenant  or  copyholder 
does  not  peiform  his  services,  the  lord  may  seize  his  land  as 
forfeited."'  It  seems  implied  herein,  that,  so  long  as  the 
copyholder  did  continue  to  perform  the  regular  stipulations 
of  his  tenure,  the  lord  was  not  at  liberty  to  divest  him  of  his 
estate;  and  this  is  said  to  be  confirmed  by  a  passage  in 
Britton,  which  has  escaped  my  search;  though  Littleton 
intimates  that  copyholders  could  have  no  remedy  against 
their  lord.*  However,  in  the  reign  of  Edward  IV.  this  was 
put  out  of  doubt  by  the  judges,  who  permitted  the  copyholder 
to  bring  his  action  of  trespass  against  the  lord  for  dbposses 
sion. 

While  some  of  the  more  fortunate  villeins  crept  up  into 

1  DtigdAle*8WarwickBhire,apad  Eden's  determinate    ierrlees  of  labor  fbr  tha 

State  of  the  Poor,  toI.  i.  p.  18.    A  pu>  lord.    Blomfleld^s  Norfolk,  vol.  i.  p.  M. 

•a^  la  another  local  hbtory  rather  seems  *  LitU.  sect.  77.    A  copyholder  with- 

to  indicate  that  some  kind  of  delinquency  out  l^pil  remedy  may  seem  little  better 

iras  usually  alleged,  and  some  ceremony  than  a  tenant  in  mere  Tillen'age,  except 

employed,  before  the  lord  entered  on  the  in  name.    But  though,  from  the  relation 

Tillein's  land.    In  Oissing  manor,  89  B.  between  the  lonl  and  copyholder,  the 

III.,  the  jury  present,  that  W.  O..  a  vil-  latter  might  not  be  permitted  to  sne  hii 

lein  by  blood,  was  a  rebel  and  ungrateful  superior,  yet  it  does  not  follow  that  he 

toward  his  lord,  for  which  all  his  tene-  might  not  bring  his  action  agiUnst  any 

ments  were  seised.    His  offionce  was  the  person  acting  under  the  lord's  dlreetSon, 

having  said  that  the  lord  kept  four  stolen  in  which  the  defendant  could  not  set  up 

sheep  in  his  field.    Blomefleld's  Norfolk,  an  illegal  authority ;  just  as,  although  no 

Tol.  1.  p.  114.  writ  runs  against  the  king,  his  miulsten 

*  Ourdon  on  Courts  Baron,  p.  674.  or  officers  are  not  justiflel  in  acting  un- 

*  Brooked  Abridgm.  Tenant  par  co-  der  his  command  contrary  to  law.  I 
pie,  1.  By  the  extent-roll  of  the  manor  wish  this  note  to  be  considered  as  cor- 
of  Brlsingham  in  Norfolk,  in  1264,  it  reeling  one  in  my  first  Toluue,  p.  196, 
appears  that  there  were  then  ninety-four  where  I  have  said  that  a  shnilar  law  ia 
eopyholders  and  six  cottagers  in  viUen-  France  rendered  the  distinction  between 
»MB  :  (he  IbnoAr  performkii  many,  but  a  serf  and  a  homme  de  pocie  Uttle  nunm 
^  thantbeoretioaL 


SvousH  COV0T.  THE  PEASANTBY.  377 

property  as  well  as  freedom  under  the  name  of  copyholders^ 
the  greater  part  enfranchised  themselves  in  a  different  man- 
ner. The  law,  which  treated  them  so  harshly,  did  not  take 
away  the  means  of  escape ;  nor  was  this  a  matter  of  diffi- 
culty in  such  a  country  as  England.  To  this,  indeed,  the 
unequal  progre^on  of  agriculture  and  population  in  different 
counties  would  have  naturally  contributed.  Men  emigrated, 
as  they  always  must,  in  search  of  cheapness  or  employment, 
according  to  the  tide  of  human  necessities.  But  the  villein, 
who  had  no  additional  motive  to  urge  his  steps  away  from 
his  native  place,  might  well  hope  to  be  forgotten  or  undis- 
covered when  he  breathed  a  freer  air,  and  engaged  his  vol- 
untary labor  to  a  distant  master.  The  lord  had  indeed  an 
action  against  him;  but  there  was  so  little  communication 
between  remote  parts  of  the  country,  that  it  might  be  deemed 
his  fault  or  singular  ill-fortune  if  he  were  compelled  to  defend 
himsel£  Even  in  that  case  the  law  inclined  to  favor  him ; 
and  so  many  obstacles  were  thrown  in  the  way  of  these  suits 
to  reclaim  fugitive  villeins,  that  they  could  not  have  operated 
materially  to  retard  their  general  enfranchisement^  In  one 
case,  indeed,  that  of  unmolested  residence  for  a  year  and  a 
day  within  a  walled  city  or  borough,  the  villein  became  free, 
and  the  lord  was  absolutely  barred  of  his  remedy.  This 
provision  is  contained  even  in  the  laws  of  William  the  Con- 
queror, as  contained  in  Hoveden,  and,  if  it  be  not  an  inter 
polation,  may  be  supposed  to  have  had  a  view  to  strengthei 
the  population  of  those  places  which  were  designed  for  gar 
risons.  This  law,  whether  of  William  or  not,  is  unequivo* 
cally  mentioned  by  Glanvil.^  Nor  was  it  a  mere  letter. 
According  to  a  record  in  the  sixth  of  Edward  II.,  Sir  John 
Clavering  sued  eighteen  villeins  of  his  manor  of  Cossey,  for 
withdrawing  themselves  therefrom  with  their  chattels ;  where- 
upon a  writ  was  directed  to  them ;  but  six  of  the  number 
churned  to  be  freemen,  alleging  the  Conqueror's  charter,  and 
offering  to  prove  that  they  had  lived  in  Norwich,  paying  scot 
and  lot,  about  thirty  years ;  which  claim  was  admitted.* 
By  such  means  a  large  proportion  of  the  peasantry  before 

>  8«  th0  mlM  of  pleadlDg  and  ari-  •  Blomelleld^t  Norfolk,  tol.  I.  p.  667. 

ifonee  In   qneedons  ot  Tillenage  tally  I  know  not  how  ikr  thia  prlrilege  vm 

•teted  In  Mr.  Hmifi«T«*f  ari^ment  in  snppoMd  to  be  Impaired  bj  tb«  statuta 

the  oaae  of  Somonot     Howoll'i  State  84  S.  III.  o.  11 ;  which  howwar  might. 


Trialii  Tol.  zx.  p.  8S.  I  vhould  oonodira,  fuy  well  stuid  along 

•  1.  T.  a.  T  with  it 


378  BEGULATION  OF  WAGES.    Chap.  Vm.  Pabt  EL 

the  middle  of  the  fourteenth  century  had  heoome  hired  la- 
borers instead  of  villeins.  We  first  hear  of  them  on  a  grand 
scale  in  an  ordinance  made  by  Edward  III.  in  the  twenty- 
third  year  of  his  reign.  This  was  just  after  the  dreadful  pes- 
tilence of  1348,  and  it  recites  that,  the  number  of  workmen 
and  servants  having  been  greatly  reduced  by  that  calamity, 
the  remainder  demanded  excessive  wages  from  their  em- 
ployers. Such  an  enhancement  in  the  price  of  labor, 
though  founded  exactly  on  the  same  principles  as  regulate 
the  value  of  any  other  commodity,  is  too  frequently  treated  as 
a  sort  of  crime  by  lawgivers,  who  seem  to  grudge  the  poor 
that  transient  melioration  of  their  lot  which  the  progress  of 
population,  or  other  analogous  circumstances,  will,  without 
any  interference,  very  rapidly  take  away.  This  ordinance 
therefore  enacts  that  every  man  in  England,  of  whatever  con- 
dition, bond  or  free,  of  able  body,  and  within  sixty  years  of 
age,  not  living  of  his  own,  nor  by  any  trade,  shall  be  obliged, 
when  required,  to  serve  any  master  who  is  willing  to  hire  him 
at  such  wages  as  were  usually  paid  three  years  since,  or  for 
some  time  preceding ;  provided  that  the  lords  of  villeins  or  ten- 
ants in  villenage  shall  have  the  preference  of  their  labor,  so 
that  they  retain  no  more  than  shall  be  necessary  for  thenu 
More  than  these  old  wages  is  strictly  forbidden  to  be  offered, 
as  well  as  demanded.  No  one  is  permitted,  under  color  of 
charity,  to  give  alms  to  a  beggar.  And,  to  make  some  com- 
pensation to  the  inferior  classes  for  these  severities,  a  clause 
is  inserted,  as  wise,  just,  and  practicable  as  the  rest,  for  the 
sale  of  provisions  at  reasonable  prices.^ 

This  ordinance  met  with  so  little  regard  that  a  statute  was 
made  in  parliament  two  years  afler,  fixing  the  wages  of  all 
artificers  and  husbandm'en,  with  regard  to  the  nature  and  sea- 
son of  their  labor.  From  this  time  it  became  a  frequent 
complaint  of  the  commons  that  the  statute  of  laborers  was 
not  kept  The  king  had  in  this  case,  probably,  no  other  rea 
son  for  leaving  their  grievance  unredresssed  than  his  inability 
to  change  the  order  of  Providence.  A  silent  alteration  had 
been  wrought  in  the  condition  and  character  of  the  lower 
classes  during  the  reign  of  Edward  m.  This  was  the  effect 
of  increased  knowledge  and  refinement,  which  had  been  mak- 
ing a  considerable  progress  for  full  half  a  century,  though  they 

1  Stat.  88  B.  nL 


BsoijsbConbt.         POPULAB   OUTBBEAKS.  379 

did  not  readilj  permeate  the  cold  region  of  poverty  and  igno- 
rance. It  was  natural  that  the  country  people,  or  uplandish 
folk,  as  they  were  called,  should  repine  at  the  exclusion  from 
that  enjoyment  of  competence,  and  security  for  the  fruits  of 
their  labor,  which  the  inhabitants  of  towns  so  fully  possessed. 
The  fourteenth  century  was,  in  many  parts  of  Europe,  the  age 
when  a  sense  of  political  servitude  was  most  keenly  felt. 
Thus  the  insurrection  of  the  Jacquerie  in  France  about  the 
year  1858  had  the  same  character,  and  resulted  in  a  great 
measure  fix>m  the  same  causes,  as  that  of  the  English  peasants 
in  1382.  And  we  may  account  in  a  similar  manner  for  the 
democratical  tone  of  the  French  and  Flemish  cities,  anB  for 
the  prevalence  of  a  spirit  of  liberty  in  Germany  and  Switzer- 
land.^ 

I  do  not  know  whether  we  should  attribute  part  of  this 
revolutionary  concussion  to  the  preaching  of  Widiffe's  disci- 
ples, or  look  upon  both  one  and  the  other  as  phenomena  be- 
longing to  that  particular  epoch  in  the  progress  of  society. 
New  principles,  both  as  to  civil  rule  and  religion,  broke  sud- 
denly upon  the  uneducated  mind,  to  render  it  bold,  presump- 
tuous, and  turbulent.  But  at  least  I  make  little  doubt  that 
the  dislike  of  ecclesiastical  power,  which  spread  so  rapidly 
among  the  people  at  this  season,  connected  itself  with  a  spirit 
of  insubordination  and  an  intolerance  of  political  subjection. 
Both  were  nourished  by  the  same  teachers,  the  lower  secular 
clergy ;  and  however  distinct  we  may  think  a  religious  ref- 
ormation from  a  civil  anarchy,  there  was  a  good  deal  com- 
mon in  the  language  by  which  the  populace  were  inflamed  to 
either  one  or  the  other.  Even  the  scriptural  moralities  which 
were  then  exhibited,  and  which  became  the  foundation  of  our 
theatre,  afforded  fuel  to  the  spirit  of  sedition.  The  common 
original  and  common  destination  of  mankind,  with  every 
other  lesson  of  equality  which  religion  supplies  to  humble  or 
to  console,  were  displayed  with  coarse  and  glaring  features  in 
these  representations.  The  familiarity  of  such  ideas  has  dead- 
ened their  effects  upon  our  minds ;  but  when  a  rude  peasant, 
surprisingly  destitute  of  religious  instruction  during  Uiat  cor- 
rupt age  of  the  church,  was  led  at  once  to  these  impressive 
truths,  we  cannot  be  astonished  at  the  intoxication  of  mind 
they  produced.* 

>  [Non  XV.]  and  probftbllitiet  than  tesMmony  In  m- 

>  I  hftT*  iMMo  mora  inflnmteed  Vl  w^    eribiog  thia  tflbot  to  Wldiffe't  innoT^ 


380  CAUSES  OF  Crap.  YIQ.  Past  m. 

Though  I  believe  that,  compared  at  leapt  with  the  aris- 
tocracy of  other  countries,  the  English  lords  were  guilty  of 
very  little  cruelty  or  injustice,  yet  there  were  circumstances 
belonging  to  that  period  which  might  tempt  them  to  deal  more 
hardly  than  before  with  their  peasantry.  The  fourteenth 
century  was  an  age  of  greater  magnificence  than  those  which 
had  preceded,  in  dress,  in  ceremonies,  in  buildings ;  foreign 
luxuries  were  known  enough  to  excite  an  eager  demand 
among  the  higher  ranks,  and  yet  so  scarce  as  to  yield  inordi- 
nate prices ;  while  the  landholders  were,  on  the  other  hand, 
impoverished  by  heavy  and  unceasing  taxation.  Hence  it  is 
probable  that  avarice,  as  commonly  happens,  had  given  birth 
to  oppression ;  and  if  the  gentry,  as  I  am  inclined  to  believe, 
had  become  more  attentive  to  agricultural  improvements,  it 
is  reasonable  to  conjecture  that  those  whose  tenure  obliged 
them  to  unlimited  services  of  husbandry  were  more  harassed 
than  under  their  wealthy  and  indolent  masters  in  preceding 
times. 

The  storm  that  almost  swept  away  all  bulwarks  of  civil 
ized  and  regular  society  seems  to  have  been  long  in  collect- 
ing itself.  Perhaps  a  more  sagacious  legislature  might  have 
contrived  to  disperse  it:  but  the  commons  only  presented 
complaints  of  the  refractoriness  with  which  viUeins  and  ten- 
ants in  villenage  rendered  their  due  services ;  ^  and  the  exi- 
gencies of  government  led  to  the  fatal  poll-tax  of  a  groat, 
which  was  the  proximate  cause  of  the  insurrection.  By  the 
demands  of  these  rioters  we  perceive  that  territorial  servitude 
was  far  from  extinct ;  but  it  should  not  be  hastily  concluded 
that  they  were  all  personal  villeins,  for  a  lai^  proportion 
were  Kentish-men,  to  whom  that  condition  could  not  have 
applied;  it  being  a  good  bar  to  a  writ  de  nativitate  proband^ 
that  the  party's  father  was  bom  in  the  county  of  Kent' 

After  this  tremendous  rebellion  it  might  be  expected  that 

tfons,  beeauM  the  historians  are  pr^a-  The  sermon  of  this  priest,  as  related 

dked  witoesses  against  hhn.    SeTeral  of  by  Walsingham,  p.  275,  derives  its  aiga- 

them  depose  to  the  connection  between  ment  for   eqoalitj  Arom  the   common 

his  opinions  and  the  rebellion  of  1S82 ;  origin  of  the  species.    He  is  ssid  to  have 

especially  Walsingham,  p.  288.    This  hn-  been  a  disciple  6t  WicUflb.     Toraar^a 

pUes   no   reflection  upon  WlcUOb,  any  ffist.  of  England,  Tol.  ii.  p.  4S0. 

more  than  the  crimes  of  the  anabaptists  >  Stat.  1  &.  II.  c.  6 ;  Rot.  Pari.  Tol.  UL 

In  Hunster  do  upon  Luther.    Every  one  p.  21. 

knows  the  distleh  of  John  Ball,  which  *  80  E.  I.,  in  Fltxherbert.     VIUenaca| 

eomprehends   the   essence  of  religions  apud  Lambard's  Perambulation  of  KmA^ 

democracy :  p.  683.    Somner  on  OaTolhind,  p.  T8. 
**■  When  Adam  delved  and  Eve  ipan. 
Where  was  then  the  gentleman  T" 


EvouBH  CoxsT.         POPULAK  OUTBREAKS.  881 

the  legislature  Tiould  use  little  indulgence  towards  the  lower 
commons.  Such  unhappy  tumults  are  doubly  mischievousi 
not  more  from  the  inmiediate  calamities  that  attend  them 
than  from  the  fear  and  hatred  of  the  people  which  they 
generate  in  the  elevated  classes.  The  general  charter  of 
manumission  extorted  from  the  king  by  the  rioters  of  Black- 
heath  was  annulled  by  proclamation  to  the  sheriffs/  and  this 
revocation  approved  by  the  lords  and  commons  in  parlia* 
ment;  who  added,  as  was  very  true,  that  such  enfrancliise- 
ment  could  not  be  made  without  their  consent;  "which  they 
would  never  give  to  save  themselves  from  perishing  all  togeth- 
er in  one  day."  ^  Riots  were  turned  into  treason  by  a  law  of 
the  same  parliament*  By  a  very  harsh  statute  in  the  12th 
of  Richard  IE.  no  servant  or  laborer  could  depart,  even  at 
the  expiration  of  his  service,  from  the  hundred  in  which  he 
lived  without  permission  under  the  king's  seal;  nor  might 
any  who  had  been  bred  to  husbandry  till  twelve  years  old 
exercise  any  other  calling.^  A  few  years  afterwards  the 
commons  petitioned  that  villeins  might  not  put  their  children 
to  school  in  order  to  advance  them  by  the  church;  "and 
this  for  the  honor  of  all  the  freemen  of  the  kingdom."  In 
the  same  parliament  they  complained  that  villeins  fly  to 
cities  and  boroughs,  whence  their  masters  cannot  recover 
them ;  and,  if  they  attempt  it,  are  hindered  by  the  people ; 
and  prayed  that  the  lords  might  seize  their  villeins  in  such 
places  without  regard  to  the  franchises  thereof.  But  on 
both  these  petitions  the  king  put  in  a  negative.* 

From  henceforward  we  find  little  notice  taken  of  villenage 
in  parliamentary  records,  and  there  seems  to  have  been  a 
rapid  tendency  to  its  entire  abolition.  But  the  fifteenth 
century  is  barren  of  materials ;  and  we  can  only  infer  that, 
as  the  same  causes  which  in  £dward  in.'8  time  had  con<* 
verted  a  large  portion  of  the  peasantry  into  free  laborers  still 

1  Rymer,  t.  ▼!!.  p.  816,  fro.    Tba  Ung  «  12  R.  n.  e.  8. 

holds  this  bitter  languaga  to  the  VUleina  •  Rot.  Pari.  15  R.  II.  vol.  ill.  p.  294, 

of  HtMz,  after  the  death  of  Tyler  and  296.    The  statnto  7  H.  IV.  e.  17,  enacti 

ezecutiOB  of  the  other  leaden  had  dls-  that  no  one  shall  pnt  hie  son  or  daughter 

concerted  them :  Rustic!  quidem  ftiistls  apprentice  to  any  trade  in  a  borough, 

et  eetis,  in  bondagio  permanebitis,  non  unless  he  hare  land  or  rent  to  the  ralne 

ut  hactenus,  sed  incomparabiUtor  TUiori,  of  twenty  shillings  a  year,  but  that  any 

fto.    Walitingbam,  p.  260.  one  may  put  his  children  to  school.   The 

s  Rot.  Pari.  toI.  ill.  p.  100.  reason  assigned  is  the  scarcity  of  laboi^ 

s  R.  n.  c.  7.     The  words  are,  riot  era  in  husMndry,  in  consequence  of  peo* 

ii  rumour  n^autres  temblabUt ;  rather  a  pie  lirlng  In  Vfiand  apprenticing  ta^ 

general  way  of  creating  a  new  treason;  children. 
Mt  panto  pats  an  end  to  Jealooqr* 


882  MANUMISSION  OF  VILLEINS.   Chap.  VHI.  Pabf  fll. 

continued  to  operate,  thej  must  silentlj  have  extinguished 
the  whole  system  of  personal  and  territorial  servitude.  The 
latter,  indeed,  was  essentiaUj  changed  bj  the  establishment 
of  the  law  of  copyhold. 

I  cannot  presume  to  conjecture  in  what  degree  Toluntarj 
manumission  is  to  be  reckoned  among  the  means  that  con- 
tributed to  the  abolition  of  villenage.  Charters  of  enfran- 
chisement were  very  common  upon  the  continent  They  may 
perhaps  have  been  less  so  in  England.  Indeed  the  statute  de 
donis  must  have  operated  very  injuriously  to  prevent  the 
enfranchisement  of  villeins  regardant,  who  were  entuled  along 
with  the  land.  Instances,  however,  occur  from  time  to  time, 
and  we  cannot  expect  to  discover  many.  One  appears  as 
early  as  the  fifteenth  year  of  Henry  III.,  who  grants  to  all 
persons  bom  or  to  be  bom  within  his  village  of  Contishall, 
tliat  they  shall  be  free  from  all  villenage  in  body  and  blood, 
paying  an  aid  of  twenty  shillings  to  knisht  the  king's  eldest 
son,  and  six  shillings  a  year  as  a  quit  rent^  So  in  the  twelfth 
of  £dward  III.  certain  of  the  king's  villeins  are  enfranchised 
on  payment  of  a  fine.'  In  strictness  of  law,  a  fine  fh)m  the 
villein  for  the  sake  of  enfranchisement  was  nugatory,  since 
all  he  could  possess  was  already  at  his  lord's  disposal.  But 
custom  and  equity  might  easily  introduce  different  maxims; 
and  it  was  plainly  for  the  lord's  interest  to  encourage  his 
tenants  in  the  acquisition  of  money  to  redeem  themselves, 
rather  than  to  quench  the  exertions  of  their  industry  by  availing 
himself  of  an  extreme  right.  Deeds  of  enfrancliisement 
occur  in  the  reigns  of  Mary  and  Elizabeth  ;*  and  perhaps  a 
commission  of  the  latter  princess  in  1574,  directing  the 
enfranchisement  of  her  bondmen  and  bondwomen  on  certain 
manors  upon  payment  of  a  fine,  is  the  last  unequivocal  testi- 
mony to  the  existence  of  villenage ;  *  though  it  is  highly 
probable  that  it  existed  in  remote  parts  of  the  country  some 
time  longer.* 

>  Blomefield's  Norfolk,  toI.  111.  p.  671.    Chftfanen,  In  his  CaledooSa,  haf  bitragbt 

*  Rymer,  t.  t.  p.  44.  seTerml  proolii  thftt  this  aanrtioii  b  too 

*  Gurdoa  on  Courtf  BaroUf  p.  696;    geoArml. 

pfadox,  Formulare  Angneanum,  p.  tiO ;  *  B«rringtoii,  nbl  sapra,  from  Rymer. 

Barrloffton  on  Anctont  Statutes,  p.  278.  *  There  are  mreral  later  ease*  reported 

It  Is  said  in  a  modern  book  thatvillennge  wherein  villenage  was  pleaded,  and  om 

was  rery  rare  In  Scotland,  and  even  that  of  them  as  late  as  the  16th  of  James  I. 

no  Instance  exists  in  records  of  an  estate  (Noy,  p.  27.)    See  Uargrave's  argameni. 


■old  with  the  laborers  and  their  tunl-    StaUi  Trials,  Tol.  zx.  p.  41.    But  th 
Ues  attached  to  the  soil.      Pinkerton's    are  so  briefly  stated,  that  It  Is  iiffleult  In 
Hist,  of  Scotland,  Tol.  i.  p.  147.  Bat  Mr.    general  to  undemtand  them     It  U  o^ 


KMQUMaConn,  BEI6N  OF  HENBT  YL  383 

From  this  gmeral  view  of  the  English  constitution,  as 
it  stood  about  the  time  of  Henry  VI.,  we  must  lutgn  of 
turn  our  eyes  to  the  political  revolutions  which  ^"^  ^^ 
clouded  the  latter  years  of  his  reign.  The  minority  of 
this  prince,  notwithstanding  the  vices  and  dissensions  of  hLi 
court  and  the  inglorious  discomfiture  of  our  arms  in  France, 
was  not  perhaps  a  calamitous  period.  The  country  grew 
more  wealthy ;  the  law  was,  on  the  whole,  better  observed  - 
the  power  of  parliament  more  complete  and  isffectual  thai 
in  preceding  times.  But  Henry's  weakness  of  understanding, 
becoming  evident  as  he  reached  manhood,  rendered  his  reign 
a  perpetual  minority.  His  marriage  with  a  princess  of  strong 
mind,  but  ambitious  and  vindictive,  rather  tended  to  weaken 
the  government  and  to  accelerate  his  downfall ;  a  certain  rev- 
erence that  had  been  paid  to  the  gentleness  of  the  king's 
disposition  being  overcome  by  her  unpopularity.  By  degrees 
Henry's  natural  feebleness  degenerated  almost  into  fatuity ; 
and  ibis  unhappy  condition  seems  to  have  overtaken  him 
nearly  about  the  time  when  it  became  an  arduous  task  to  with- 
stand the  assault  in  preparation  against  his  government. 
This  may  properly  introduce  a  great  constitutional  subject,  to 
which  some  peculiar  circumstances  of  our  own  age  have  im- 
periously directed  the  consideration  of  parliament  Though 
the  proceedings  of  1788  and  1810  are  undoubtedly  prece- 
dents of  far  more  authority  than  any  that  can  be  derived 
from  our  ancient  history,  yet,  as  the  seal  of  the  legislature 
has  not  yet  been  set  upon  this  controversy,  it  is  not  perhaps 
altogether  beyond  the  possibility  of  future  discussion ;  and  at 
least  it  cannot  be  uninteresting  to  look  back  on  those  parallel 
or  analogous  cases  by  which  the  deliberations  of  parliament 
npon  the  question  of  regency  were  guided. 

While  the  kings  of  Engird  retained  their  continental  do- 
minions, and  were  engaged  in  the  wars  to  which  siatorkai 
iliose  gave  birth,  they  were  of  course  frequently  iMtancw  of 
absent  from  this  country.     Upon  such  occasions  *''«*°''*"  '• 
the  administration  seems  at  first  to  have  devolved  officially 
on  the  justiciary,  as  chief  servant  of  the  crown.     But  Henry 
IIL  began  the  practice  of  appointing  lieutenants,  or  guar- 

▼loai,  ho«iT«r,  Uiat  Judcment  wm  in  by  wiiie  pnKnw  a  proof  of  legal  podAo- 

DO  CMe  giTon  in  fitror  of  the  plea;  no  try,  that  Sir  B.  Coke,  while  he  dllatee  on 

that  we  can  infbr   nothing  an  to  the  the  law  of  Tllleoage,   never  intimatas 

actual  eonUnnanoe  of  Tillenage.  that  it  waa  hecome  aatlqoated 
It  la  fMnarluble,  and  may  he  deemed 


384  fflSTOBICAL  INSTANCES       Chap.  VHl.  Pabt  m. 

dians  of  the  realm  (custodes  regni),  as  they  were 
absence  of  more  usuallj  termed,  by  way  of  temporary  sub- 
?nui»^^   stitutes.     They  were  usually  nominated  by  the 

king  without  consent  of  parliament ;  and  their  of- 
fice carried  with  it  the  right  of  exercising  all  the  preroga- 
tives of  the  crown.  It  was  of  course  determined  by  the 
king's  return;  and  a  distinct  statute  was  necessary  in  the 
reign  of  Henry  V.  to  provide  that  a  parliament  called  by 
the  guardian  of  the  resdm  during  the  king's  absence  should 
not  be  dissolved  by  that  event.^  The  most  remarkable  cir- 
cumstance attending  those  lieutenancies  was  that  they  were 
sometimes  conferred  on  the  heir  apparent  during  his  infancy. 
The  Black  Prince,  then  duke  of  Cornwall,  was  lefl  guardian 
of  the  realm  in  1339,  when  he  was  but  ten  years  old;* 
and  Richard  his  son,  when  still  younger,  in  1372,  during  fid- 
ward  in/s  last  expedition  into  France.* 

These  do  not  however  bear  a  very  close  analogy  to  regen- 
cies in  the  stricter  sense,  or  substitutions  during  the  natural 
incapacity  of  the  sovereign.  Of  such  there  had  been  several 
at  the  instances  before  it  became  necessary  to  supply  the 

accession  of    deficiency  arising  from  Henry's  derangement     1. 
Henyy  m.  j    ^^  ^^^  ^^^^  ^^  j^j^^  WilUam  earl  of  Pembrt)ke 

assumed  the  title  of  rector  regis  et  regni,  with  the  consent  of 
the  loyal  barons  who  had  just  proclaimed  the  young  king, 
and  probably  conducted  the  government  in  a  great  measure 
by  their  advice*  But  the  circumstances  were  too  critical,  and 
the  time  is  too  remote,  to  give  this  precedent  any  material 
^  jy^,^  J  .  weight.  2.  Edward  I.  being  in  Sicily  at  his  fa- 
*  ther's  death,  the  nobility  met  at  the  Temple  church, 
as  we  are  informed  by  a  contemporary  writer,  and,  after 
making  a  new  great  seal,  appointed  the  archbishop  of  York, 
Edward  earl  of  Cornwall,  and  the  earl  of  Gloucester,  to  be 
ministers  and  guardians  of  the  realm ;  who  accoi*dingly  con- 
ducted the  administration  in  the  king's  name  until  his  return.* 
It  is  here  observable  that  the  earl  of  Cornwall,  though  near- 
est prince  of  the  blood,  was  not  supposed  to  enjoy  any  supe- 
rior title  to  the  regency,  wherein  he  was  associated  with  two 
other  persons.     But  while  the  crown  itself  was  hardly  ao- 

1  8  H.  V.  c.  1,  •  Rymer,  t.  tI.  p.  748. 

>  This  prince  having  heen  sent  to  Ant-  *  Matt.  Paris,  p.  248. 

werp,  six  commissioners  were  appointed  *  Matt.  Westmonast.  ap.  Biady'l 

to  open  parliament.    Rot.  Pari.  18  B.  HI.  tory  of  England,  toL  li.  p.  1. 
fol.U.p.  107. 


KffOusR  CosOT  OF  REGENCIES.  885 

knowledged  to  be  unquestionably  hereditary,  it  would  be 
strange  if  any  notion  of  such  a  right  to  the'  regency  had 
been  entertained.     3.  At  the  accession  of  Edward  m.,  then 
fourteen  years  old,  the  parliament,  which  was  im-  of  Edwmid 
mediately  summoned,  nominated  four  bishops,  four  ^^-  > 
earls,  and  six  barons  as  a  standing  council,  at  the  head  of 
which  the  earl  of  Lancaster  seems  to  have  been  placed,  to 
advise  the  king  in  all  business  of  government.     It  was  an 
article  in  the  charge  of  treason,  or,  as  it  was  then  styled, 
of  accroaching  royal  power,  against  Mortimer,  that  he  in 
termeddled  in  the  king's  household  without  the  assent  of 
this  counciL^    They  may  be  deemed  therefore  a  sort  of  par- 
liamentary regency,  though  the  duration  of  their  functions 
does  not  seem  to  be  defined.     4.  The  proceedings  of  lUoiuffd 
at  the  commencement  of  the  next  reign  are  more  ^'* 
worthy  of  attention.     Eklward  III.  dying  June  21,  1877,  the 
keepers  of  the  great  seal  next  day,  in  absence  of  the  chan- 
cellor beyond  sea,  gave  it  into  the  young  king's  hands  before 
his  oounciL     He  inmiediately  delivered  it  to  the  duke  of  Lan- 
caster, and  the  duke  to  Sir  Nicholas  Bode  for  safe  custody. 
Four  days  afterwards  the  king  in  council  delivered  the  seal  to 
the  bishop  of  St.  David's,  who  affixed  it  the  same  day  to  di- 
vers letters  patent'    Richard  was  at  this  time  ten  years  and 
six  months  old ;  an  age  certainly  very  unfit  for  the  personal 
execution  of  sovereign  authority.    Yet  he  was  supposed  ca- 
pable of  reigning  without  the  aid  of  a  regency.     This  might 
be  in  virtue  of  a  sort  of  magic  ascribed  by  lawyers  to  the 
great  seal,  the  possession  of  which  bars  all  further  inquiry, 
and  renders  any  government  legaL    The  practice  of  modem 
times  requiring  the  constant  exercise  of  the  sign  manual  has 
made  a  public  confession  of  incapacity  necessary  in  many 
eases  where  it  might  have  been  concealed  or  overlooked  in 
earlier  periods  of  the  constitution.     But  though  no  one  was 
invested  with  the  office  of  regent,  a  council  of  twelve  was 
named  by  the  prelates  and  peers  at  the  king's  coronation, 
July  16,  1377,  without  whose  concurrence  no  public  measure 
was  to  be  carried  into  effect    I  have  mentioned  in  another 
plaoe  the  modifications  introduced  from  time  to  time  by  par 
liament,  which  might  itself  be  deemed  a  great  oouncnl  of 
regency  during  the  first  years  of  Richard. 

1  Bot.  Ful.  TOl.  ii.  p.  IB.  t  RTiBff,  t.  TiL  p.  171. 

VOL.11.  —  M.  26 


886  fflSTORICAL  mSTANCES     Chap.  Vm.  Part  HI 

5.  The  next  instance  is  at  the  accession  of  Henry  YL 
9t  Henry  VI  ^^^^  prince  was  but  nine  months  old  at  his  father^a 
'  death;  and  whether  from  a  more  evident  inca- 
pacity for  the  conduct  of  government  in  his  case  than  in  that 
of  Richard  II.,  or  from  the  progress  of  constitutional  princi- 
ples in  the  forty  years  elapsed  since  the  latter^s  accession,  far 
more  regularity  and  deliberation  were  shown  in  supplying  the 
defect  in  the  executive  authority.  Upon  the  news  arriving 
that  Henry  Y.  was  dead,  several  lords  spiritual  and  temporal 
assembled,  on  account  of  the  imminent  necessity,  in  order  to 
preserve  peace,  and  provide  for  the  exercise  of  officers  ap- 
pertaining to  the  king.  These  peers  accordingly  issued  com- 
missions to  judges,  sheriffs,  escheators,  and  others,  for  various 
purposes,  and  writs  for  a  new  parliamenL  This  was  opened 
by  commission  under  the  great  seal  directed  to  the  duke  of 
Gloucester,  in  the  usual  form,  and  with  the  king's  teste.^ 
Some  ordinances  were  made  in  this  parliament  by  the  duke 
of  Gloucester  as  commissioner,  and  some  in  the  king's  name* 
The  acts  of  the  peers  who  had  taken  on  themselves  the  ad- 
ministration, and  summoned  parliamenl^  were  confirmed.  On 
the  twenty-seventh  day  of  its  session,  it  is  entered  upon  the 
roll  that  the  king,  ^  considering  his  tender  age,  and  inability 
to  direct  in  person  the  concerns  of  his  realm,  by  assent  of 
lords  and  conmions,  appoints  the  duke  of  Bedford,  or,  in  his 
absence  beyond  sea,  the  duke  of  Gloucester,  to  be  protector 
and  defender  of  the  kingdom  and  English  church,  and  the 
king's  chief  counsellor."  Letters  patent  were  made  out  to 
this  effect,  the  appointment  being  however  expressly  during 
the  king's  pleasure.  Sixteen  councillors  were  named  in 
parliament  to  assist  the  prot^ictor  in  his  administration ;  and 
their  concurrence  was  made  necessary  to  the  removal  and 
appointment  of  officers,  except  some  inferior  patronage  spe- 
cifically reseiTed  to  the  protector.  In  all  important  business 
that  should  pass  by  order  of  council,  the  whole,  or  major 
part,  were  to  be  present ;  "  but  if  it  were  such  matter  that 
the  king  hath  been  accustomed  to  be  counselled  of,  that  then 
the  said  lords  proceed  not  therein  without  the  advice  of  my 
brds  of  Bedford  or  Gloucester."  *  A  few  more  councillors 
were  added  by  the  next  parliament,  and  divers  regulations 
established  for  their  observance.' 

iBotPtttTol  lT.p.l00.  tIbiiLp.174,176.  •Ibid.p.9>l 


ilvoLiBH  CoxBT.  OF  BEGENCDSS.  887 

This  arrangement  was  in  contravention  of  the  late  king's 
testament,  which  had  conferred  the  regency  on  the  duke  of 
Gloucester,  in  exclusion  of  his  elder  brother.  But  the  na- 
ture and  spirit  of  these  proceedings  will  be  better  understood 
by  a  remarkable  passage  in  a  roll  of  a  later  parliament; 
where  the  house  of  lords,  in  answer  to  a  request  of  Glouces- 
ter that  he  might  know  what  authority  he  possessed  as  pro- 
tectory remind  him  that  in  the  first  parliament  of  the  king^ 
'^ye  desired  to  have  had  ye  govemaunce  of  yis  land: 
ttffermj'ng  yat  hit  belonged  unto  you  of  rygzt,  as  well  by  ye 
mene  of  your  birth  as  by  ye  laste  wylle  of  ye  kyng  yat  was 
your  broyer,  whome  God  assoile ;  alleggyng  for  you  such 
groundes  and  motyves  as  it  was  yought  to  your  discretion 
made  for  your  intent;  whereupon,  the  lords  spiritual  and 
temporal  assembled  there  in  parliament,  among  which  were 
there  my  lordes  your  undes,  the  bishop  of  Winchester  that 
now  liveth,  and  the  duke  of  Exeter,  and  your  cousin  the  earl 
of  March  that  be  gone  to  Grod,  and  of  Warwick,  and  other 
in  great  number  that  now  live,  had  great  and  long  delibera- 
tion and  advice,  searched  precedents  of  the  governail  of  the 
land  in  time  and  case  semblable,  when  kings  of  this  land 
have  been  tender  of  age,  took  also  information  of  the  laws 
of  the  land,  of  such  persons  as  be  notably  learned  therein, 
and  finally  found  your  said  desire  not  caused  nor  grounded 
in  precedent,  nor  in  the  law  of  the  land ;  the  which  the  king 
that  dead  is,  in  his  life  nor  might  by  his  last  will  nor  other- 
wise altre,  change,  nor  abroge,  without  the  assent  of  the  three 
estates,  nor  commit  or  grant  to  any  person  governance  or 
rule  of  this  land  longer  than  he  lived;  but  on  that  other 
behalf,  the  said  lords  found  your  said  desire  not  according 
with  the  laws  of  this  land,  and  against  the  right  and  fredome 
of  the  estates  of  the  same  land.  Howe  were  it  that  it  be 
not  thought  that  any  such  thing  wittingly  proceeded  of  your 
intent ;  and  nevertheless  to  keep  peace  and  tranquillity,  aiid 
to  the  intent  to  ease  and  appease  you,  it  was  advised  and  ap- 
pointed by  authority  of  the  king,  assenting  the  three  estates 
of  tills  land,  that  ye,  in  absence  of  my  lord  your  brother  of 

1 1  Ibllow  the  orthography  of  the  roll,  eoqlectiiTB.    The  vfliul  imgaUrity  of 

which  I  hope  viU  not  be  loconTenient  ancient  apelUng  te  hardly  atfllcient  to 

to  the  reader.    Why  thto  orthography,  aceoant  for  such  tarlattoofl ;  I  ut  if  there 

from  obaolete  and  diflloult,  fo  freqoentiy  be  any  error,  it  belongs  to  the  euper* 

beoomes  almoet  modem,  ae  will  appear  Intendents  of  that  publkation  and  la  ool 

in  tlM  eouMe  of  theee  extracts,  I  eaonot  mlnok 


S88  HISTORICAL  INSTANCES     Chap.  Vm.  Pabt  HI. 

Bedford,  should  be  chief  of  the  king's  council,  and  devised 
onto  jou  a  name  different  from  other  counsellors,  not  the 
name  of  tutor,  lieutenant,  governor,  nor  of  regent,  nor  no 
name  that  should  import  authority  of  governance  of  the 
land,  but  the  name  of  protector  and  defensor,  which  import- 
eth  a  personal  dutj  of  attendance  to  the  actual  defence  of 
the  land,  as  well  against  enemies  outward,  if  case  requii^ 
as  against  rebels  inward,  if  any  were,  that  God  forbid; 
granting  you  therewith  certain  power,  the  which  is  specified 
and  contained  in  an  act  of  the  said  parliament,  to  endure  as 
long  as  it  liked  the  king.  Iii  the  which,  if  the  intent  of  the 
said  estates  had  been  that  ye  more  power  and  authority 
ahould  have  had,  more  should  have  been  expressed  therein ; 
to  the  which  appointment,  ordinance,  and  act,  ye  then  agreed 
you  as  for  your  person,  making  nevertheless  protestation  that 
it  was  not  your  intent  in  any  wise  to  deroge  or  do  prejudice 
unto  my  lord  your  brother  of  Bedford  by  your  said  agree- 
ment, as  toward  any  right  that  he  would  pretend  or  claim  in 
the  governance  of  this  land;  and  as  toward  any  pre-emi- 
nence that  you  might  have  or  belong  unto  you  as  chief  of 
council,  it  is  plainly  declared  in  the  ^d  act  and  articles,  sub- 
scribed by  my  said  lord  of  Bedford,  by  yourself,  and  the 
other  lords  of  the  council  But  as  in  parliament  to  which 
ye  be  called  upon  your  faith  and  ligeance  as  duke  of  Gloces- 
ter,  as  other  lords  be,  and  not  otherwise,  we  know  no  power 
nor  authority  that  ye  have,  other  than  ye  as  duke  of  Gioces- 
ter  should  have,  the  king  being  in  parliament,  at  years  of 
mest  discretion:  We  marvailing  with  all  our  hearts  that, 
considering  the  open  declaration  of  the  authority  and  power 
belonging  to  my  lord  of  Bedford  and  to  you  in  his  alienee, 
and  also  to  the  king's  council  subscribed  purely  and  simply 
by  my  said  lord  of  Bedford  and  by  you,  that  you  should  in 
any  wise  be  stirred  or  moved  not  to  content  you  therewith  or 
to  pretend  you  any  other:  Namely,  considering  that  the 
king,  blessed  be  our  Lord,  is,  sith  the  time  of  the  said  power 
.granted  unto  you,  far  gone  and  grown  in  person,  in  wit,  and 
understanding,  and  like  with  the  grace  of  God  to  occupy  his 
own  royal  power  within  few  years :  and  forasmuch  consider- 
ing the  things  and  causes  abovesaid,  and  other  many  that 
long  were  to  write.  We  lords  aforesaid  pray,  exhort,  and 
require  you  to  content  you  with  the  power  abovesaid  luid 
de<:la]^,  of  the  which  my.  lord  your  brother  of  Bedford,  the 


Enoluh  Cohbt.  of  regencies.  889 

king^B  eldest  ande,  contented  him :  and  that  ye  none  larger 
power  desire,  will,  nor  use ;  giving  jou  this  that  is  aboveti 
written  for  our  answer  to  your  foresaid  den  and,  the  which 
we  will  dwell  and  abide  with,  withouten  varisinoe  or  chang- 
ing. Over  this  beseeching  and  praying  you  in  our  most 
humble  and  lowly  wise,  and  also  requiring  you  in  the  king*8 
name,  that  ye,  according  to  the  king's  commandment,  con- 
tained in  his  writ  sent  unto  you  in  that  behalf,  come  to  this 
his  present  parliament,  and  intend  to  the  good  effect  and 
speed  of  matters  to  be  demesned  and  treted  in  the  same,  like 
as  of  right  ye  owe  to  do."^ 

It  is  evident  that  this  plain,  or  rather  rude  address  to  the 
duke  of  Gloucester,  was  dictated  by  the  prevalence  of  cardi- 
nal Beaufort's  party  in  council  and  parliament  But  the 
transactions  in  the  former  parliament  are  not  unfairly  repre- 
sented; and,  comparing  them  with  the  passage  extracted 
above,  we  may  perhaps  be  entitled  to  infer :  1.  That  the 
king  does  not  possess  any  constitutional  prerogative  of  ap- 
pointing a  regent  during  the  minority  of  his  successor ;  and 
2.  That  neither  the  heir  presumptive,  nor  any  other  person, 
is  entitled  to  exercise  the  royal  prerogative  during  the  king's 
infancy  (or,  by  parity  of  reasoning,  his  infirmity),  nor  to  any 
title  that  conveys  them ;  the  sole  right  of  determining  the 
persons  by  whom,  and  fixing  the  limitations  under  whjch,  the 
executive  government  shall  be  conducted  in  the  king's  name 
and  behalf,  devolving  upon  the  great  council  of  parliament. 

The  expression  used  in  the  lords'  address  to  the  duke  of 
Gloucester,  relative  to  the  young  king,  that  he  was  far  gone 
and  grown  in  person,  wit,  and  understanding,  was  not  thrown 
out  in  mere  flattery.  In  two  years  the  party  hostile  to 
Gloucester's  influence  had  gained  ground  enough  to  abrogate 
his  office  of  protector,  leaving  only  the  honorary  title  of  (£ief 
counsellor.'  For  this  the  king's  coronation,  at  eight  years  of 
age,  was  thought  a  fair  pretence ;  and  undoubtedly  the  loss 
of  that  exceedingly  limited  authority  which  had  been  delegated 
to  the  protector  could  not  have  impaired  the  strength  of  govern- 
ment This  was  conducted  as  before  by  a  selfish  and  disunited 
council;  but  the  king's  name  was  sufficient  to  legalize  their 
measures,  nor  does  any  objection  appear  to  have  been  made 
m  parliament  to  such  a  mockery  of  the  name  of  monarchy. 

*  Rot.  Pari  6  H  TI  Td .  tr.  p.  9X.  *  Bot.  Pari.  8  H.  VI.  ▼«!.  It.  p.  880. 


S90         DKIUNOIDIKNT  OF  HKNBT  VI.   Chat-  VHI.  Paw  IT- 

Tn  die  Tear  1454,  the  thirty-second  of  Henry's  reign,  his 

^^ppy  malady,  transmitted  perhaps  from  ^ 

H.iiry'i        unnappy  ™"    ,4',       a=sumed  so  decided  a  char- 

nwDtai  if     maternal  grandlatner,  assuBiw  o  ...ijament 

~««»~»-     acter  of  derangement  or  imbecility,  that  paxUamOTS 

successive  prorogations  for  nearly  a  year,  met  at  W«^™T^ 

Mnceming  his  government.    In  fact,  perhaps,  this  was   a 

§::riX^e?it.;"S^<i^"e"^ve^  ^'^^l^^^t 
mZ^  bGt  «  could  get  no  answer  ne  sign  for  no  P"y«"?« 
dlMi«r"though  they  repeated  their  endeavors  at  three  dif^ 
Je^inS,;!^  Vs  report,  with  the  ^trucuon  ^whi^ 

it  was  founded,  was,  at  their  prayer,  ^f"**;]^.  «^ '^f-'J.^^ 
„,^        parliament.    Upon  so  authenUc  a  tesUmony  of  their 

ISflu     Lvereign's  infirmity,  the  peers,  a4)oun""«  'J^? 
»«^'"-      days  for  solemnity  or  dehberaUon,  «  elected  imd 
nominated  Richai^  duke  of  York  to  be  protector  and  defends 
of  the  reahn  of  Engtond  during  the  king's  f^^.     |™ 
duke,  protesting  his  insufficiency,  requested  "that  in  this 
present  parliaiient,  and  by  authority  thereof,  it  be  enacted 
that,  of  yourself  and  of  your  ful  and  mere  disposiUon,  ye 
desire,  nine,  and  caU  me  to  the. said  name  and  charge,  and 
that  of  any  presumption  of  myself  I  take  them  not  upon  me, 
but  only  of  the  due  and  humble  obeisance  that  I  owe  to  do 
unto  the  king  our  most  dread  and  sovereign  lord,  and  »<>  y«« 
the  peei-age  of  this  land,  in  whom  by  the  occasion  of  the 
infirmity  of  our  said  sovereign  lord  resteth  the  exercise  ot 
bis  authority,  whose  noble  commandments  I  am  as  ready  to 
perform  and  obey  as  any  of  his  liegemen  alive,  and  that,  at 
such  time  as  it  shall  please  our  blessed  Creator  to  restore  his 
most  noble  peifeon  to  healthful  dispoution,  it  shall  like  you 
so  to  declare  and  notify  to  his  good  grace."    To  this  pro- 
testation the  lords  answered  that,  for  his  and  thtir  ^Uschaj-ge, 
an  act  of    parUament  should  be  made  conformably  to  that 
enacted  in  the  king's  infancy,  since  they  were  compelled  by 


Ejiolish  Cosbt.     duke  OF  YORK  PBOTECTOB.  391 

an  equal  necessity  again  to  choose  and  name  a  protector  and 
defender.  And  to  the  duke  of  York's  request  to  be  informed 
how  far  the  power  and  authority  of  his  charge  should  extend, 
they  replied  that  he  should  be  chief  of  the  king's  council, 
and  ^  devised  therefore  to  the  said  duke  a  name  different 
from  other  counsellors,  not  the  name  of  tutor,  lieutenant, 
governor,  nor  of  regent,  nor  no  name  that  shall  import 
authonty  of  governance  of  the  land;  but  the  said  name  of 
protector  and  defensor;"  and  so  forth,  according  to  the  lan« 
guago  of  their  former  address  to  the  duke  of  Gloucester. 
An  act  was  passed  accordingly,  constituting  the  duke  of  York 
protector  of  the  church  and  kingdom,  and  chief  counsellor  of 
!iie  king,  during  the  latter's  pleasure;  or  until  the  prince  of 
Wales  should  attain  years  of  discretion,  on  whom  the  said 
dignity  was  immediately  to  devolve.  The  patronage  of 
certain  spiritual  benefices  was  reserved  to  the  protector 
according  to  the  precedent  of  the  king's  minority,  which 
parliament  was  resolved  to  follow  in  every  particular.^ 

It  may  be  conjectured,  by  the  provision  made  in  favor  of 
the  prince  of  Wales,  then  only  two  years  old,  that  the  king's 
condition  was  supposed  to  be  beyond  hope  of  restoration. 
But  in  about  nine  months  he  recovered  sufficient  speech  and 
recollection  to  supersede  the  duke  of  York's  protectorate.' 
The  succeeding  transactions  are  matter  of  familiar,  though 
not,  perhaps,  very  perspicuous  history.  The  king  was  a  pris- 
oner in  his  enemies'  hands  after  the  affair  at  St.  Albans,* 
when  parliament  met  in  July,  1455.  In  this  session  little 
was  done,  except  renewing  the  strongest  oaths  of  allegiance 
to  Henry  and  his  family.  But  the  two  houses  meeting  again 
afler  a  prorogation  to  November  12,  during  which  time  the 
duke  of  York  had. strengthened  his  party,  and  was  appointed 
by  commission  the  king's  lieutenant  to  open  the  parliament,  a 
prciposition  was  made  by  the  commons  that,  '*  whereas  the 

1  Rot.  Pari.  Tol.  t.  p.  241.  nnd  ordlnaxy  ehronlclen.    And  th«  n»- 

*  Paston  Latt«n,  Tol.  i.  p.  81.    The  tare  of  th«  action,  which  was  a  sadden 

proofi  of  sound  mind  given  In  this  letter  attack  on  the  town  of  St.  Albans,  with- 

are  not  Tei7  deeislTe,  but  the  wits  of  out  any  pitched  combat,   renders   the 

■t^errifiM  an  Qerer  weighed  In  golden  larger  number  improbable.    Whetham- 


stede,  himself  abttot  of  St.  Albans  at  the 

*  This  maj  seem  an  improper  appella-  time,  makes  the  dulce  ef  York's  army 

tion  fbr  rhat  Is  usually  termed  a  battle,  but  80OO  fighting  men.  p.  852.    Tliis  ao- 

wherein  6000  men  an  said  to  hare  lUlen.  count  of  the  trifling  loss  of  liib  in  the 

Bat  I  nly  hen  upon  mv  flUthful  guide,  battle  of  St.  Albans  is  conflnoaed  by  a 

the  Paston  Letten,  p.  100,  one  of  which,  contemporary  letter,  published  in   the 

written  Immediately  alter  the  engage-  Archasologia  (xx.  619).    The  whole  num- 

meni,  says  that  only  Mxsoon  wen  Mlled.  ber  of  the  slain  was  but  forty>eight,  la- 

Surely  this  teettmin^  >atwdgfaB  a  thou-  'Uuding,  however,  serexal  lotdk 


392     DUKE  OF  YORK  PROTECTOR.  Chap.  VIU.  Past  m. 

king  had  deputed  the  duke  of  York  as  his  commissioner  to 
proceed  in  this  parliament,  it  was  thought  bj  the  commons 
that,  if  the  king  hereafler  could  not  attend  to  the  protection 
of  the  country,  an  able  person  should  be  appointed  protector, 
to  whom  thej  might  have  recourse  for  redress  of  injuries ; 
especially  as  great  disturbances  had  lately  arisen  in  the  west 
through  the  feuds  of  the  earl  of  Devonshire  and  Lord  Bon- 
vile."*  The  archbishop  of  Canterbury  answered  for  the 
lords  that  they  would  take  into  consideration  what  the  com- 
mons had  suggested.  Two  days  afterwards  the  latter  ap- 
peared again  with  a  request  conveyed  nearly  in  the  same 
terms.  Upon  their  leaving  the  chamber,  the  archbishop,  who 
was  also  chancellor,  moved  the  peers  to  answer  what  should 
be  done  in  respect  of  the  request  of  the  commons ;  adding 
that  ^  it  is  understood  that  they  will  not  further  proceed  in 
matters  of  parliament,  to  the  time  that  they  have  answer  to 
their  desire  and  request."  This  naturally  ended  in  the  re- 
appointment of  the  duke  of  York  to  his  charge  of  protector. 
The  commons  indeed  were  determined  to  bear  no  delay.  As 
if  ignorant  of  what  had  been  resolved  in  consequence  of 
their  second  request,  they  urged  it  a  third  time,  on  the  next 
day  of  meeting ;  and  received  for  answer  that  '*  the  king  our 
said  sovereign  lord,  by  the  advice  and  assent  of  his  lords 
spiritual  and  temporal  being  in  this  present  parliament,  had 
named  and  desired  the  duke  of  York  to  be  protector  and  de- 
fensor of  this  land."  It  is  worthy  of  notice  that  in  these  words, 
and  indeed  in  effect,  as  appears  by  the  whole  transaction,  the 
house  of  peers  assumed  an  exclusive  right  of  choosing  the 
protector,  though,  in  the  act  passed  to  ratify  their  election, 
the  commons'  assent,  as  a  matter  of  course,  is  introduced. 
The  last  year's  precedent  was  followed  in  the  present  instance, 
excepting  a  remarkable  deviation ;  instead  of  the  wordfiT  ^  dur- 
ing the  king's  pleasure,"  the  duke  was  to  hold  his  office  "  un- 
til he  should  be  discharged  of  it  by  the  lords  in  parliament"  ' 
This  extraordinary  clause,  and  the  slight  allegations  on 
which  it  was  thought  fit  to'  substitute  a  vicegerent  for  the 
reigning  monarch*  are  sufficient  to  prove,  even  if  the  common 
historians  were  silent,  that  whatever  passed  as  to  this  second 
protectorate  of  the  duke  of  York  was  altogether  of  a  revolu- 
tionary complexion.      In  the  actual  circumstances  of  civil 


I  Smkmm  Mooant  of  th€M  In  PwCon  LtUtn,  voL  L  p.  114L 
•  Bot,  Pui.  TOL  T.  p.  28i-9tN). 


JShgush  Coxst.       mS  CLAD!  TO  THE  CROWK.  893 

blood  already  spilled  and  the  king  in  captivitj,  we  may  justly 
wonder  that  so  much  regard  was  shown  to  the  regular  forms 
and  precedents  of  the  constitution.  But  the  duke's  natural 
moderation  will  account  for  part  of  this,  and  the  temper  of 
the  lords  for  much  more.  That  assembly  appears  for  the 
most  part  to  have  been  faithfully  attached  to  the  house  of 
Lancaster.  The  partisans  of  Richard  were  found  in  the 
commons  and  among  the  populace.  Several  months  elapsed 
after  the  victory  of  St.  Albans  before  an  attempt  was  thus 
made  to  set  aside  a  sovereign,  not  laboring,  so  far  as  we  know, 
under  any  more  notorious  infirmity  than  before.  It  then 
originated  in  the  commons,  and  seems  to  have  received  but 
an  unwilling  consent  from  the  upper  house.  Even  in  con- 
stituting the  duke  of  York  protector  over  the  head  of  Henry, 
whom  all  men  despaired  of  ever  seeing  in  a  state  to  face  the 
dangers  of  such  a  season,  the  lords  did  not  forget  the  rights 
of  his  son.  By  this  latter  instrument,  as  well  as  by  that  of 
the  preceding  year  the  duke's  office  was  to  cease  upon  the 
prince  of  Wales  arriving  at  the  age  of  discretion. 

But  what  had  long  been  propagated  in  secret,  soon  became 
familiar  to  the  public  ear ;  that  the  duke  of  York  j^^^^  ^ 
laid  claim  to  the  throne.  He  was  unquestionably  Tork's  claim 
heir  general  of  the  royal  line,  through  his  moth-  *°  ***•  ««>wn. 
er,  Anne,  daughter  of  Roger  Mortimer  earl  of  March,  son  of 
Philippa,  daughter  of  Lionel  duke  of  Clarence,  third  son 
of  Edward  III.  Roger  Mortimer's  eldest  son,  Edmund,  had 
been  declared  heir  presumptive  by  Richard  II. ;  but  his  in- 
fancy during  the  revolution  that  placed  Henry  lY.  on  the 
throne  had  caused  his  pretensions  to  be  passed  over  in  si- 
lence. The  new  king  however  was  induced  by  a  jealousy 
natural  to  his  situation  to  detain  the  earl  of  March  in  custody. 
Henry  V.  restored  his  liberty ;  and,  though  he  had  certainly 
connived  for  a  while  at  the  conspiracy  planned  by  his  brother- 
in-law  the  earl  of  Cambridge  and  Lord  Scrope  of  Masham 
to  place  the  crown  on  his  head,  that  magnanimous  prince 
gave  him  a  free  pardon,  and  never  testified  any  displeasure. 
The  present  duke  of  York  was  honored  by  Henry  VI.  with 
the  highest  trusts  in  France  and  Ireland ;  such  as  Beaufort 
and  Gloucester  could  never  have  dreamed  of  conferring  on 
him  if  his  title  to  the  crown  had  not  been  reckoned  obsolete. 
It  lias  been  very  pertinently  remarked  that  the  crime  perpe- 
trated by  Margaret  and  her  oounselbrs  in  the  death  of  the 


394  DUES  OF  YOBK'S  CLAIM     Chap.  Ym.  Fast  UL 

duke  of  Gloucester  was  the  destraction  of  the  house  of  Lan- 
caster.^ From  this  time  the  duke  of  Yoik,  next  heir  'm  pre- 
sumption while  the  king  was  childless,  might  innocently  con« 
template  the  prospect  of  royalty ;  and  when  such  ideas  had 
long  been  passing  through  his  mind,  we  may  judge  how  re- 
luctantly the  bir&  of  prince  Edward,  nine  years  after  Hen- 
ry's marriage,  would  be  admitted  to  disturb  them.  The 
queen's  administration  unpopular,  careless  of  national  inter- 
ests, and  partial  to  his  inveterate  enemy  the  duke  of  Som- 
erset;^ the  king  incapable  of  exciting  fear  or  respect;  him- 
self conscious  of  powerful  alliances  and  universal  favor ;  all 
these  circumstances  combined  could  hardly  fail  to  nourish 
those  opinions  of  hereditary  right  which  he  must  have  im- 
bibed fix)m  his  infancy. 

The  duke  of  York  preserved  through  the  critical  season  of 
rebellion  such  moderation  and  humanity  that  we  may  pardon 
him  that  bias  in  favor  of  his  own  pretensions  to  which  he 
became  himself  a  victim.  Margaret  perhaps,  by  her  san 
guinary  violence  in  the  Coventry  parliament  of  1460,  where 
the  duke  and  all  his  adherents  were  attainted,  left  him  not 
the  choice  of  remaining  a  subject  with  impunity.  But  with 
us«  who  are  to  weigh  these  ancient  factions  in  the  balance  of 
wisdom  and  justice,  there  should  be  no  hesitation  in  decid- 
ing that  the  house  of  Lancaster  were  lawful  sovereigns  of 
England.  I  am,  indeed,  astonished  that  not  only  such  his- 
torians as  Carte,  who  wrote  undisguisedly  upon  a  Jacobite 
system,  but  even  men  of  juster  principles,  have  been  inadver- 
tent enough  to  mention  the  right  of  the  house  of  York.  If 
the  original  consent  of  the  nation,  if  three  descents  of  the 
crown,  if  repeated  acts  of  parliament,  if  oaths  of  allegiance 
from  the  whole  kingdom,  and  more  particularly  from  those 
who  now  advanced  a  contrary  pretension,  if  undisturbed, 
unquestioned  possession  during  sixty  years,  could  not  secure 
the  reigning  family  against  a  mere  defect  in  their  genealogy, 
when  were  the  people  to  expect  tranquillity  ?  Sceptres  were 
committed,  and  governments  were  instituted,  for  public  pro- 
tection and  public  happiness,  not  certainly  for  the  benefit  of 
rulers,  or  for  the  security  of  particular  dynasties.  No  prej- 
udice has  less  in  its  favor,  and  none  has  been  more  fatal 
to  the  peace  of  mankind,  than  that  which  regards  a  nation 

1  Hall.  p.  210.  an  aneqoiToeal  tostlinony,  a  lottm  of  doM 

*  Th«  lll-wiU  of  York  and  tlM  queen    date  in  xiw  Pwton  collecttcn.  vol.  i.  o.  28 
iMfui  as  o%rly  as  1448,  tm  we  learn  from 


Is^ousn  Ck>ssT.  TO  THE  CBOWN.  395 

of  subjects  as  a  family's  private  inheritance.  For,  as  this 
opinion  induces  reigning  princes  and  their  courtiers  to  look 
on  the  people  as  made  only  to  obey  them,  so,  when  the  tide  of 
events  has  swept  them  from  their  thrones,  it  begets  a  fond 
hope  of  restoration,  a  sense  of  injury  and  of  imprescriptible 
rights,  which  give  the  show  of  justice  to  fresh  disturbances 
of  public  order,  and  rebellions  against  established  authority. 
Even  in  cases  of  unjust  conquest,  which  are  far  stronger  than 
any  domestic  revolution,  time  heals  the  injury  of  wounded 
independence,  the  forced  submission  to  a  victorious  enemy  is 
changed  into  spontaneous  allegiance  to  a  sovereign,  and  the 
laws  of  Grod  and  nature  enjoin  the  obedience  that  is  chal* 
lenged  by  reciprocal  benefits.  But  far  more  does  every 
national  government,  however  violent  in  its  origin,  become  le- 
gitimate, when  universally  pbeyed  and  justly  exercised,  the 
possession  drawing  after  it  the  right ;  not  certainly  that  suc- 
cess can  alter  the  moral  character  of  actions,  or  privilege 
usurpation  before  the  tribunal  of  human  opinion,  or  in  the 
pages  of  history,  but  that  the  recognition  of  a  government 
by  the  people  is  the  binding  pledge  of  their  allegiance  so  long 
as  its  corresponding  duties  are  fulfilled.^  And  thus  the  law 
of  England  has  been  held  to  annex  the  subject's  fidelity  to 
the  reigning  monarch,  by  whatever  title  he  may  have  ascend- 
ed the  throne,  and  whoever  else  may  be  its  claimant.^  But 
the  statute  of  11th  of  Henry  Yll.  c.  1,  has  furnished  an  un- 
equivocal conmientary  upon  this  principle,  when,  alluding  to 
the  condemnations  and  forfeitures  by  which  those  alternate 
successes  of  the  white  and  red  roses  had  almost  exhausted 
the  noble  blood  of  England,  it  enacts  that  ^  no  man  for  doing 
true  and  faithful  service  to  the  king  for  the  time  being  be 
convict  or  attaint  of  high  treason,  nor  of  other  offences,  by 
act  of  parliament  or  otherwise." 

Though  all  classes  of  men  and  all  psacis  of  England  were 
divided  into  factions  by  this  unhappy  contest,  yet  the  strength 
of  the  Yorkists  lay  in  London  and  the  neighboring  counties, 
and  generally  among  the  middling  and  lower  people.    And 
this  is  what  might  naturally  be  expected.     For  no- 
tions of  hereditary  right  tike  easy  hold  of  the  pop-  lucm-*'^ 
ulace,  who  feel  an  honest  sympathy  for  those  whom  y*^2** 
they  consider  as  injured ;  while  men  of  noble  birth 

>  Upon  this  gNtkt  question  Um  firarth       *  Hals*s  Pleas  of  the  Ciown,  TOl.  i.  f 
ilseoarae  In  Sir  Michael  Foster's  Reports    61, 101  (edit.  1786) 
■light  pwtioiiluijr  to  he  read 


896  EDWARD  IV.  Chai-.  VHI.  Pabt  HL 

and  high  station  have  a  keener  sense  of  personal  duty  to  their 
sovereign,  and  of  the  baseness  of  deserting  their  allegiance. 
Notwithstanding  the  wide-spreading  influence  of  the  Nevilsy 
most  of  the  nobility  were  well  affected  to  the  reigning  dynas- 
ty. We  have  seen  how  reluctantly  they  acquiesced  in  the 
second  protectorate  of  the  duke  of  York  after  the  battle  of 
St.  Albans.  Thirty-two  temporal  peers  took  an  oath  of  feal- 
ty to  Henry  and  his  issue  in  the  Coventry  parliament  of  1460, 
which  attainted  the  duke  of  York  and  the  earls  of  Warwick 
and  Salisbury.^  And  in  the  memorable  circumstances  of  the 
duke*s  claim  personally  made  in  parliament,  it  seems  mani- 
fest that  the  lords  complied  not  only  with  hesitation  but  un- 
willingness, and  in  fact  testified  their  respect  and  duty  for 
Henry  by  confirming  the  crown  to  him  during  his  life.^  Th^ 
rose  of  Lancaster  blushed  upon  the  banners  of  the  Stafforda^ 
the  Percies,  the  Veres,  the  Hollands,  and  the  Courtneys. 
All  these  illustrious  families  lay  crushed  for  a  time  under  Uie 
ruins  of  their  party.  But  the  course  of  fortune,  which  has 
too  great  a  mastery  over  crowns  and  sceptres  to  be  controlled 
by  men's  affection,  invested  Edward  IV.  with  a  possession 
which  the  general  consent  of  the  nation  both  sanctioned  and 
secured.  This  was  effected  in  no  slight  degree  by  the  furi- 
ous spirit  of  Margaret,  who  began  a  system  of  extermination 
by  acts  of  attainder  and  execution  of  prisoners  that  created 
abhorrence,  though  it  did  not  prevent  imitation.  And  the  bar- 
barities of  her  northern  army,  whom  she  led  towards  London 
afler  the  battle  of  Wakefield,  lost  the  Lancastrian  cause  its 
former  friends,'  and  might  justly  convince  reflecting  men  that 
it  were  better  to  risk  the  chances  of  a  new  dynasty  than  tru9t 
the  kingdom  to  an  exasperated  fisiction. 

A  period  of  obscurity  and  confusion  ensues,  daring  which 

Bdwaid  IV     ^®  ^^®  ^    ^^®  insight  into  constitutional  as  gen- 
eral history.    There  are  no  contemporary  chroni- 

1  Rot.  Pari.  Tol.  t.  p.  851.  not  reject,  vnlfln  upon  real  groundi  of 

*  Id  p.  876.    This  «ntry  In  the  roU  Is    suspicioi 
highly  interesting  and  important.     It    writers. 


*  Id  p.  876.    This  «ntry  In  tho  roU  Is    suspicion,  tlie  assertions  of  seeondaiy 
ighly  interesting  and  important.     It    writers, 
ought  to  be  read  in  preftrenoe  to  any  of      *  The  abb^  of  St.  Albans  was  stripped 


our  historians.    Uume,  who  drew  from  by  the  queoi  and  her  army  after  Um 

inferior  souroes,  is  not  altogether  aoou-  second  battle  fought  at  that  place,  Feb. 

rate.    Yet  one  remarkable  cireumstanoe,  17, 1461 ;  which  changed  Whetbamstedo 

told  by  Hall  and  other  chroniclers,  that  the  abbot  and  historiographer,  firom  » 

the  duke  of  York  stood  by  the  throne,  as  violent  Lancustrian  into  a  YorkiBt;    His 


told  by  Hall  and  other  chroniclers,  that    the  abbot  and  historiographer,  ttomjk 

]>v  the  throne,  as    violent  Lancustrian  into  a  YorkiBt; 
If  to  claim  It,  though  omitted  entirely  In    change  of  party  Is  quite  sudden,  and 


theroll,  laoonflrmed'by  Whethamstede,  amusing  enough.     See  too  the  Pastoo 

abbot  of  St.  Albans,  who  was  probably  Letters,  toI.  1.  p.  206.    Yet  the  Pastoa 

then  present,  (p.  484,  edit.  Heame.)  Thu  fkmily  were  originally  Lancastrian,  and 

■hows  that  wo  should  only  doubt,  and  returned  to  that  side  in  1470. 


BvousH  CoHBT.  EDWABD  lY  397 

elers  of  any  value,  and  the  rolls  of  parliament,  hj  whose  light 
we  have  hitherto  steered,  hecome  mere  registers  of  private 
bills,  or  of  petitions  relating  to  commerce*  The  reign  of  Ed- 
ward lY.  is  the  first  daring  which  no  statute  was  passed  for 
the  redress  of  grievances  or  maintenance  of  the  subject's  lib- 
erty. Nor  is  tihere,  if  I  am  correct,  a  single  petition  of  this 
nature  upon  the  roll.  Whether  it  were  that  the  commons 
had  lost  too  much  of  their  ancient  ooun^e  to  present  anj  re- 
monstrances, or  that  a  wilful  omission  has  vitiated  the  record, 
is  hard  to  determine ;  but  we  certainly  must  not  imagine  that 
a  government  cemented  with  blood  poured  on  the  scaffold,  as 
wdil  as  in  the  field,  under  a  passionate  and  unprincipled  sov- 
ereign, would  afibrd  no  scope  for  the  just  animadversion  of 
parliament^  The  reign  of  Edward  lY.  was  a  reign  of  ter- 
ror. One  half  of  the  noble  families  had  been  thinned  by 
proscription ;  and  though  generally  restored  in  blood  by  the 
reversal  of  their  attainders  —  a  measure  certainly  deserving 
of  much  approbation  —  were  still  under  the  eyes  of  vigilant 
and  inveterate  enemies.  The  opposite  faction  would  be  cau- 
tious how  they  resisted  a  king  of  their  own  creation,  while 
the  hopes  of  their  adversaries  were  only  dormant  And  in- 
deed, without  relying  on  this  supposition,  it  is  commonly  seen 
that,  when  temporary  circumstances  have  given  a  king  the 
means  of  acting  in  disregard  of  his  subjects'  privileges,  it  is  a 
very  difilcult  undertaking  for  them  to  recover  a  liberty  which 
has  no  security  so  effectual  as  habitual  possession. 

Besides  the  severe  proceedings  against  the  Lancastrian 
party,  which  might  be  extenuated  by  the  common  pretences, 
retaliation  of  similar  proscriptions,  security  for  the  actual 
government,  or  just  punishment  of  rebellion  against  a  legiti- 
mate heir,  there  are  several  reputed  instances  of  violence  and 
barbarity  in  the  reign  of  Edward  lY.  which  have  not  such 
plausible  excuses.  Every  one  knows  the  common  stories  of  the 
citizen  who  was  attainted  for  treason  for  an  idle  speech  that  he 
would  make  his  son  heir  to  the  crown,  the  house  where  he 
dwelt ;  and  of  Thomas  Burdett,  who  wished  the  horns  of  his 
stag  in  the  belly  of  him  who  had  advised  the  king  to  shoot  it 
Of  the  former  I  can  assert  nothing,  though  I  do  not  believe  it  to 

1  TImn  an  Mwnl  inatafices  of  tIo-  lK>rmd  to  throw  an  odium  on  the  duko 

Iweo  and  opprenion  apparent  on  tho  of  ClarenoOf  who  had  been  oonoemed  In 

loUfl  daiioff  thifl  rtlgn,  bat  not  proceed-  It.    Several  panacea  Indicate  the  ohaxae 

lac  from  ue  crown.    One  of  a  remark-  ter  of  the  duke  of  Olonoeeter. 
•bw  natnni  (vol.  t.  p.  178)  waa  hrooidit 


398  EDWABD  rV.         Chap.  Vni.  Pabt  TIT. 

be  accnrately  reported.  But  certainly  the  accusation  against 
Burdett,  however  iniquitous,  was  not  confined  to  these  frivo- 
lous words ;  which  indeed  do  not  appear  in  his  indictment, 
or  in  a  passage  relative  to  his  conviction  in  the  roll  of  parlia- 
ment.  Burdett  was  a  servant  and  friend  of  the  duke  of  Clar- 
ence, and  sacrificed  as  a  preliminarj  victim.  It  was  an  article 
of  charge  against  Clarence  that  he  had  attempted  to  persuade 
the  people  that  '^Thomas  Burdett  his  servant,  which  was 
lawfully  and  truly  attainted  of  treason,  was  wrongfully  put  to 
death."  '  There  could  indeed  be  no  more  oppressive  usage 
inflicted  upon  meaner  persons  than  this  attainder  of  the  duke 
of  Clarence  —  an  act  for  which  a  brother  could  not  be  par- 
doned had  he  been  guilty,  and  which  deepens  the  shadow  of 
a  tyrannical  age,  if,  as  it  seems,  his  offence  toward  Edward 
was  but  levity  and  rashness. 

But  whatever  acts  of  injustice  we  may  attribute,  from  au- 
thority or  conjecture,  to  Edward's  government,  it  was  very  far 
irom  being  unpopular.  His  love  of  pleasure,  his  affability^ 
his  courage  and  beauty,  gave  him  a  credit  with  his  subjects 
which  he  had  no  real  virtue  to  challenge.  This  restored  him 
to  the  throne,  even  against  the  prodigious  influence  of  War- 
wick, and  compelled  Henry  VII.  to  treat  his  memory  with 
respect,  and  acknowledge  him  as  a  lawfol  king.*    The  latter 

1  See  In  Cro.  Gar.  120,  the  Indietment  tri&n.    And  Henry  VI.  pewwe  for  havinf 

•gainst  Burdett  for  oompaMing  the  king*!  been  king  during  his  ahort  restoration  in 

diaath,  and  for  that  purpose  conspiring  1470,  when  Edward  had  been  nloe  yeaim 

with  Stacie  and  Blake  to  calculate  his  upon  the  throne.    For  the  earl  of  Oxford 

natlTlty  and   his  son^s,    ad   sciendum  Is  said  to  hare  been  attainted  "  for  the 

quando  Itdem  rex  et  fidwanlns  ^us  flli-  true  allegiance  and  serrioe  he  owed  and 

us  morlentur :    Also  for  the  same  end  did  to  Henry  VI.  at  Bamet  field  and 

dispersing  divers  rhymes  and  ballads  de  otherwise."  (p.  281.)    This  might  be 


murmurationlbus.  sedlMonibus  et  pro-  son&ble  enough  on  the  true  principle  that 

ditorils  exdtationlbus,  foctas  et  fitbrica-  allegiance  Is  due  to  a  king  deftutb;  if 

tss  apud  Holbonm,  to  the  Intent  that  Indeed  we  oould  determine  who  was  the 

the  people  might  withdraw  their   love  king  de  Iketo  on  the  morning  of  the  bat- 

fh)m  the  king  and  desert  him,  ac  erga  ip-  tie  of  Bamet.     But  this  principle  was 

sum  regem  insuigerent,  et  guerram  erga  not  fairly  recognind.    Richard  III.  Is 

Ipsum   regem  lerarent,  ad  flnalem  de-  always  called,  "In  deed  and  not  in  right 

struetionem  ipsonun   regis   ao   domini  kingof  Koglard.**    Nor  was  this  merely 

prittoipis,  ao.  founded  on  his  usurpation  as  against  his 

*  Rot.  Pari.  Tol.  ▼!.  p.  198.  nephew.    For  that  unfortunate  bov  is 

•  The  rolls  of  Henry  VII.^s  first  parlla-  little  better  treated,  and  In  the  act  of  re- 
ment  are  ftiU  of  an  absurd  confU^n  in  sumption,  1  H.  VII..  while  Edward  IV, 
thought  and  language,  which  is  render-  Is  styled  "  late  king."  appears  only  with 
ed  odious  by  the  purposes  to  which  it  Is  the  denomination  of  "  Edward  his  son, 
applied.  Both  Henry  VI.  and  Edward  late  called  Edward  V."  (p.  8%.)  Who 
IV.  are  considered  as  lawful  kings  ;  ex-  then  was  king  alter  the  death  of  Edward 
oept  In  one  instance,  where  Alaa  Cotter-  IV.  f  And  was  his  son  really  illegitl- 
ell,  petitioning  for  the  rsTersal  of  his  mate,  as  an  usurping  uncle  pretended? 
attainder,  speaks  of  Edward.  * '  late  called  Or  did  the  crime  of  Richard,  though  pun- 
Edward  IV."(Tol.lT.  p.  290.)  But  this  ished  in  him,  enure  to  the  beoeflt  of 
Is  ouly  the  laaagnage  of  a  prirate  Tannas-  Henxy?    These  wars  points  wUeh.  llk« 


Eholuu  Coxst.  EDWABD  TV.  899 

jears  of  his  reign  were  passed  in  repose  at  home  after  scenes 
of  unparalleled  convulsions,  and  in  peace  abroad  after  more 
than  a  century  of  expensive  warfare.  His  demands  of  sub- 
sidy were  therefore  moderate,  and  easily  defrayed  by  a  nation 
which  was  making  rapid  advances  towards  opulence.  Accord- 
ing to  Sir  John  Fortescue,  nearly  one-fifth  of  the  whole  king- 
dom had  come  to  the  king's  hand  by  forfeiture  at  some  time 
or  other  since  the  commencement  of  his  reign.^  Many  in- 
deed of  these  lands  had  been  restored,  and  others  lavished 
away  in  grants,  but  the  surplus  revenue  must  still  have  been 
considerable. 

Edward  IV.  was  the  first  who  practised  a  new  method  of 
taking  his  subjects'  money  without  consent  of  parliament,  un- 
der the  plausible  name  of  benevolences.  These  came  in 
place  of  the  still  more  plausible  loans  of  former  monarchs, 
and  were  principally  levied  on  the  wealthy  traders.  Though 
no  complaint  appears  in  the  parliamentary  records  of  Us 
reign,  which,  as  has  been  observed,  complain  of  nothing,  the 
illegality  was  undoubtedly  felt  and  resented.  In  the  remark- 
able address  to  Richard  by  that  tumultuary  meeting  which 
invited  him  to  assume  the  crown,  we  find,  among  general  as- 
sertions of  the  state's  decay  through  misgovemment,  the  fol- 
lowing strong  passage :  —  ^  For  certainly  we  be  determined 
rather  to  aventure  and  committe  us  to  the  perill  of  owre  lyfs 
and  jopardie  of  deth,  than  to  lyve  in  such  thraldome  and  bond- 
age as  we  have  lyved  long  tyme  heretofore,  oppressed  and  in- 
lured  by  extortions  and  newe  impositions  ayenst  the  lawes  of 
God  and  man,  and  the  libertie,  old  policie,  and  lawes  of  this 
realme,  whereyn  every  Englishman  is  inherited."  ^  According- 
ly, in  Richard  III.'s  only  parliament  an  act  was  passed  which 
after  reciting  in  the  strongest  terms  the  grievances  lately 
endured,  abrogates  and  annuls  forever  all  exactions  under 

ttie  fltto  of  th«  yonng  princtB  in  th«  tire  ttatute  to  which  I  haTO  abeadj  al- 

Towar,  be  ihoae  to  wrap  In  dlaeraat  si-  Indad,  which  passed  in  the  elerenth  year 

lence.    But  the  first  question  he  seems  of  his  reign,  and  afforded  as  much  seeni^ 

to  here  answered  in  his  own  IkTor.    For  ity  for  men  following  the  plain  line  o 

Richard  hlmselff  Howard  dnke  of  Nor-  rallying  round    the   standard  of  their 

folk.  Lord  Lorel,  and  some  others,  are  country  as  mers  law  can  olbr.    There  is 

attainted  (p.  276)  for  ^*  traitorously  in-  some  extraordinary  reasoning  upon  this 

tending,    compassing,   and   imagining*'  act  in  Carte's  History  (toI.  ii.  p.  844),  for 

the  death  of  Henry ;  of  course  before  or  the  purpose  of  proving  tliat  the  adhersnts 

at  the  battle  of  Boeworth ;  and  while  his  of  George  II.  would  not  be  protected  by 

right,  unsupported  by  poeaaMion,  oould  it  on  the  restoration  of  the  true  blood, 
bare  rtsted  only  on  an  hereditary  title       ^  DUibrance  of  Absolute  aad  Limited 

which  it  WIS  an  insult  to  the  nation  to  Xonarehy.  p.  88. 
prefer.     These  monstrous  proceedingi       •  Bot.  PurL  toL  tI.  p.  241. 
upJaln  the  neeessltr  of  that 


400  •  CONCLUSION.        Chap.  VHI.  Part  UI 

the  name  of  benevolence.^  The  liberties  of  this  country  were 
at  least  not  directly  impaired  by  the  usurpation  of  RichanL 
But  from  an  act  so  deeply  tainted  with  moral  guilt,  as  well  as 
so  violent  in  all  its  circumstances,  no  substantial  benefit  was 
likely  to  spring.  Whatever  difficulty  there  may  be  in  decid- 
ing upon  the  fate  of  Richard's  nephews  afler  they  were  im- 
mured in  the  Tower,  the  more  public  parts  of  the  transac- 
tion bear  unequivocal  testimony  to  his  ambitioiis  usurpation.* 
It  would  therefore  be  foreign  to  the  purpose  of  this  chapter 
to  dwell  upon  his  assumption  of  the  regency,  or  upon  the  sort 
of  election,  however  curious  and  remarkable,  which  gave  a 
pretended  authority  to  his  usurpation  of  the  throne.  Nei- 
ther of  these  has  ever  been  alleged  by  any  party  in  the  way  <rf 
constitutional  precedent. 

At  this  epoch  I  terminate  these  inquiries  into  the  English 
constitution  ;  a  sketch  very  imperfect,  I  fear,  and  unsatisfac- 
tory, but  which  may  at  least  answer  the  purpose  of  fixing  the 
Goneinaion.  reader's  attention  on  the  principal  objects,  and  of 
guiding  him  to  the  purest  fountains  of  constitution- 
al knowledge.  From  the  accession  of  the  house  of  Tudor  a 
new  period  is  to  be  dated  in  our  history,  far  more  prosperous 
in  the  difiusion  of  opulence  and  the  preservation  of  genera] 
order  than  the  preceeding,  but  less  distinguished  by  the  spirit 
of  freedom  and  jealousy  of  tyrannical  power.  We  have  seen, 
through  the  twilight  of  our  Anglo-Saxon  records,  a  foi-m  of 
civil  policy  established  by  our  ancestors,  marked,  like  the  kin- 
dred governments  of  the  continent,  with  aboriginal  Teutonic 
features ;  barbarous  indeed,  and  insufficient  for  the  great  ends 
of  society,  but  capable  and  worthy  of  the  improvement  it  has 
received,  because  actuated  by  a  sound  and  vital  spirit,  the 
love  of  freedom  and  of  justice.  From  these  principles  arose 
that  venerable  institution,  which  none  but  a  free  and  simple 
people  could  have  conceived,  trial  by  peers — an  institution 
common  in  some  degree  to  other  nations,  but  which,  more 
widely  extended,  more  strictly  retained,  and  better  modified 
among  ourselves,  has  become  perhaps  the  first,  certainly 
among  the  first,  of  our  securities  against  arbitrary  govern- 

1  1  R.  m.  e.  2.  Laing,  who  maintain  that  the  dnke  o* 

•  The  long-debated  question  as  to  the  York,  at  least,  was  in  some  way  leloaeeJ 

murder  of  Kdward  and  his  brother  seems  IVom    the    Tower,   and   reappeared   as 

to  me  more  probably  solred  on  the  oom-  PerUn  Warbeck.     But  a  Tery  strong 

mon  suppotdtion  that  it  wms  really  per-  eonyietion  either  way  te  not  rwidlly  at 

petiated  by  the  orders  of  RIcliard,  than  tainable. 
on  that  of  Walpole,  Carte,  Henry,  and 


AHOUBH  COHfT.  CONCLUSION.  401 

ment  We  have  seen  a  foreign  conqueror  and  his  descend- 
ants trample  almost  alike  upon  the  prostrate  nation  and  upon 
those  who  had  been  companions  of  their  victory,  introduce  the 
servitudes  of  feudal  law  with  more  than  their  usual  rigor, 
and  establish  a  large  revenue  by  continual  precedents  upon  a 
system  of  universal  and  prescriptive  extortion.  But  the 
Norman  and  English  races,  each  unfit  to  endure  oppression, 
forgetting  their  animosities  in  a  common  interest,  enforce  by 
arms  the  concession  of  a  great  charter  of  liberties.  Privi- 
leges wrested  from  one  faithless  monarch  are  preserved  with 
continual  vigilance  against  the  machinations  of  another ;  the 
rights  of  the  people  become  more  precise,  and  their  spirit 
more  magnanimous,  during  the  long  reign  of  Henry  m. 
With  greater  ambition  and  greater  abilities  than  his  father, 
Edward  I.  attempts  in  vain  to  govern  in  an  arbitrary  man- 
ner, and  has  the  mortification  of  seeing  his  prerogative  fettered 
by  still  more  important  limitations.  The  great  council  of  the 
nation  is  opened  to  the  representatives  of  the  commons. 
They  proceed  by  slow  and  cautious  steps  to  remonstrate 
against  public  grievances,  to  check  the  abuses  of  administra- 
tion, and  sometimes  to  chastise  public  delinquency  in  the  of- 
ficers of  the  crown.  A  number  of  remedial  provisions  are 
added  to  the  statutes ;  every  Englishman  learns  to  remember 
that  he  is  the  citizen  of  a  free  state,  and  to  claim  the  common 
law  as  his  birthright,  even  though  the  violence  of  power 
should  intemipt  its  enjoyment  It  were -a  strange  misrepre- 
sentation of  history  to  assert  that  the  constitution  had  attained 
anything  like  a  perfect  state  in  the  fifteenth  century ;  but  I 
know  not  whether  there  are  any  essential  privileges  of  our 
countrymen,  any  fundamental  securities  against  arbitrary 
power,  so  far  as  they  depend  upon  positive  institution,  which 
may  not  be  traced  to  the  time  when  the  house  of  Plantage«i»t 
filled  the  English  throne. 


VOL.  II.— if.  26 


402  FBIYILEGGS  OF  Koraa  to 


NOTES  TO  CHAPTER  Vm. 
(Part  HI.) 


Note  L    Page  217. 

It  is  rathei  a  carious  speculative  question,  and  sncli  only, 
we  may  presume,  it  will  long  continue,  whether  bishops  are 
entitled,  on  charges  of  treason  or  felony,  to  a  trial  by  the 
peers.  If  this  question  be  considered  either  theoretically  or 
according  to  ancient  authority,  I  think  the  affirmative  propo- 
sition is  beyond  dispute.  Bishops  were  at  all  times  mem- 
bers of  the  great  national  council,  and  fully  equal  to  lay 
lords  in  temporal  power  as  well  as  dignity.  Since  the  Con 
quest  they  have  held  their  temporalities  of  the  crown  by  a 
baronial  tenure,  which,  if  there  be  any  consistency  in  law, 
must  unequivocally  distinguish  them  from  commoners-— 
since  any  one  holding  by  barony  might  be  challenged  on  a 
jury,  as  not  being  the  peer  of  the  party  whom  he  was  to  try. 
It  is  true  that  they  take  no  share  in  the  judicial  power  of  the 
house  of  lords  in  cases  of  treason  or  felony ;  but  this  is  mere* 
ly  in  conformity  to  those  ecclesiastical  canons  which  prohib- 
ited the  clergy  from  partaking  in  capital  judgment,  and  they 
have  always  withdrawn  from  the  house  on  such  occasions 
under  a  protestation  of  their  right  to  remain.  Had  it  not 
been  for  this  particularity,  arising  wholly  out  of  their  own 
discipline,  the  question  of  their  peerage  could  never  have 
come  into  dispute.  As  for  the  common  argument  that  they 
are  not  tried  as  peers  because  they  have  j6>  inheritable  no- 
bility, I  consider  it  as  very  frivolous,  since  it  takes  for  granted 
the  precise  matter  in  controversy,  that  an  inheritable  nobility 
is  necessary  to  the  definition  of  peerage,  or  to  its  incidental 
privileges. 

If  we  come  to  constitutional  precedents,  by  which,  when 
sufficiently  numerous  and  unexceptionable,  all  questions  of 


Crap.  Yin.  SPIBITUAL  PEERS.  403 

this  kind  are  ultimately  to  be  determined,  the  weight  of  an- 
cient authority  seems  to  be  in  favor  of  the  prelates.  In  the 
fifteenth  year  of  £dward  IIL  (1340),  the  king  brought  sev- 
eral charges  against  archbishop  Stratford.  He  came  to  par> 
liament  with  a  declared  intention  of  defending  himself  before 
his  peers.  The  king  insisted  upon  his  answering  in  the  court 
of  exchequer.  Stratford  however  persevered,  and  the  house 
of  lords,  by  the  king^s  consent,  appointed  twelve  of  their 
number,  bishops,  earls,  and  barons,  to  report  whether  peers 
ought  to  answer  criminal  charges  in  parliament,  and  not  else- 
where. This  committee  reported  to  the  king  in  full  parlia 
ment  that  the  peers  of  the  land  ought  not  to  be  arraigned, 
nor  put  on  trial,  except  in  parliament  and  by  their  peers. 
The  archbishop  upon  this  prayed  the  king,  that,  inasmuch  as 
he  had  been  notoriously  defamed,  he  might  be  arraigned  in 
full  parliament  before  the  peers,  and  there  make  answer ; 
which  request  the  king  granted.  (Rot.  Pari.  vol.  ii.  p.  127. 
Collier's  £ccles.  HisL  voL  i.  p.  543.)  The  proceedings  against 
Stratford  went  no  further ;  but  I  think  it  impossible  not  to 
admit  that  his  right  to  trial  as  a  peer  was  fully  recognized 
both  by  the  king  and  lords. 

This  is,  however,  the  latest,  and  perhaps  the  only  instance 
of  a  prelate's  obtaining  so  high  a  privilege.  In  the  preceding 
reign  of  Edward  II.,  if  we  can  rely  on  the  account  of  Wal- 
singham  (p.  119),  Adam  Orleton,  the  factious  bishop  of 
H^eford,  had  first  been  arraigned  before  the  house  of  lorda. 
and  subsequently  convicted  by  a  common  jury ;  but  the.  trans- 
action was  of  a  singular  nature,  and  the  king  might  probably 
be  influenced  by  the  difficulty  of  obtaining  a  conviction  from 
the  temporal  peers,  of  whom  many  were  disaffected  to  him, 
in  a  case  where  privilege  of  clergy  was  vehemently  claimed. 
But  about  1357  a  bishop  of  Ely,  being  accused  of  harboring 
one  guilty  of  murder,  though  he  demanded  a  trial  by  the 
peers,  was  compelled  to  abide  the  verdict  of  a  jury.  (Col- 
lier, p.  557.)  In  the  3]8t  of  Edw.  III.  (1358)  the  abbot  of 
Missenden  was  hanged  for  coining.  (2  Inst  p.  635.)  The 
abbot  of  this  monastery  appears  from  Dugdale  to  have  been 
summoned  by  writ  in  the  49  th  of  Henry  III.  If  he  actually 
held  by  barony,  I  do  not  perceive  any  strong  distinction  be- 
tween his  case  and  that  of  a  bishop.  The  leading  precedent, 
however,  and  that  upon  which  lawyers  principally  found  their 
denial  of  this  privilege  to  the  bishops,  is  the  case  of  Fidier 


404  PRIVILEGES  OF  SPIRITUAL  PEERS.         Xotm  to 

who  was  certainlj  tried  before  an  ordinary  jarj ;  nor  am  I 
aware  that  any  remonstrance  was  made  by  himself,  or  com- 
plaint by  his  friends,  upon  this  ground.  Cranmer  was  treated 
in  the  same  manner ;  and  from  these  two,  being  the  most  re- 
cent precedents,  though  neither  of  them  in  the  best  of  timesi 
the  great  plurality  of  law-books  have  drawn  a  conclusion 
that  bishops  are  not  entitled  to  trial  by  the  temporal  peers. 
Nor  can  there  be  much  doubt  that,  whenever  the  occasion 
shall  occur,  this  will  be  the  decision  of  the  house  of  lords. 

There  are  two  peculiarities,  as  it  may  naturally  appear,  in 
the  above-mentioned  resolution  of  the  lords  in  Stratford's 
case.  The  first  is,  that  they  claim  to  be  tried,  not  only  be- 
fore their  peers,  but  in  parliament.  And  in  the  case  of  the 
bishop  of  Ely  it  is  said  to  have  been  objected  to  his  claim  of 
trial  by  his  peers,  that  parliament  was  not  then  sitting. 
(Collier,  ubi  sup.)  It  is  most  probable,  therefore,  that  the 
court  of  the  lord  high  steward,  for  the  special  purpose  of  try- 
ing a  peer,  was  of  more  recent  institution  —  as  appears  also 
firom  Sir  E.  Coke's  expressions.  (4  Inst  p.  58.)  The 
second  circumstance  that  may  strike  a  reader  is,  ibat  the 
lords  assert  their  privilege  in  all  criminal  cases,  not  distin- 
guishing misdemeanors  from  treasons  and  felonies.  But  in 
^is  they  were  undoubtedly  warranted  by  the  clear  language 
of  Magna  Charta,  which  makes  no  distinction  of  the  kind. 
The  practice  of  trying  a  peer  for  misdemeanors  by  a  jury  of 
commoners,  concerning  the  origin  of  which  I  can  say  noth- 
ing, is  one  of  those  anomalies  which  too  often  render  our 
laws  capricious  and  unreasonable  in  the  eyes  of  impartial 
men. 

Since  writing  the  above  note  I  have  read  Stillingfleet^a 
treatise  on  the  judicial  power  of  the  bishops  in  capital  cases— 
a  right  which,  though  now,  I  think,  abrogated  by  non-claim 
and  a  course  of  contrary  precedents,  he  proves  beyond  dis- 
pute to  have  existed  by  the  common  law  and  constitutions  of 
Clarendon,  to  have  been  occasionally  exercised,  and  to  have 
been  only  suspended  by  their  voluntary  act.  In  the  course 
of  this  argument  he  treats  of  the  peerage  of  the  bishops,  and 
produces  abundant  evidence  from  the  records  of  parliament 
that  they  were  styled  peers,  for  which,  though  convinced  from 
general  recollection,  I  had  not  leisure  or  disposition  to  search. 
But  if  any  doubt  should  remain,  the  statute  25  E.  lU.  c.  6,  oon- 
taina  a  legislative  declaration  of  the  peerage  of  bishops.   The 


Cbap.  Vm.  NATT7RE  OF  BABONIES.  405 

whole  subject  is  discussed  with  much  perspicuity  and  force  by 
Stillingfleet,  who  seems  however  not  to  press  very  greatly 
the  right  of  trial  bj  peers,  aware  no  doubt  of  the  weight  of 
opposite  precedents.  (Stillingfleet's  Works,  vol.  iii.  p.  820.) 
In  one  distinction,  that  the  bishops  vote  in  their  judicial  func- 
tions as  barons,  but  in  legislation  as  magnates,  which  War- 
burton  has  brought  forward  as  his  own  in  the  Alliance  of 
Church  and  State,  Stillingfleet  has  perhaps  not  taken  the 
strongest  ground,  nor  sufficiently  accounted  for  their  right  of 
sitting  in  judgment  on  the  impeachment  of  a  commoner.  Par- 
liamentary impeachment,  upon  charges  of  high  public  crimes, 
seems  to  be  the  exercise  of  a  right  inherent  in  the  great  council 
of  the  nation,  some  traces  of  which  appear  even  before  the 
Conquest  (Chron.  Sax.  p.  164,  169),  independent  of  and  su- 
perseding that  of  trial  by  peers,  which,  if  the  29th  section 
of  Magna  Charta  be  strictly  construed,  is  only  required  upon 
indictments  at  the  king's  suit.  And  this  consideration  is  of 
great  weight  in  the  question,  still  unsettled,  whether  a  com- 
moner can  be  tried  by  the  lords  upon  an  impeachment  for 
treason. 

The  treatise  of  StiUingfleet  was  written  on  occasion  of  the 
objection  raised  by  the  commons  to  the  bishops  voting  on  the 
question  of  Lord  Danby's  pardon,  which  he  pleaded  in  bar  of 
his  impeachment  Burnet  seems  to  suppose  that  their  right 
to  final  judgment  had  never  been  defended,  and  confounds 
judgment  with  sentence.  Mr.  Hargrave,  strange  to  say,  has 
made  a  much  greater  blunder,  and  imagined  that  the  ques- 
tion related  to  their  right  of  voting  on  a  bill  of  attainder, 
which  no  one,  I  believe,  ever  disputed.  (Notes  on  Co.  Litt. 
184  b.) 

NoTB  n.    Page  220. 

The  constitution  of  parliament  in  this  period,  antecedent  to 
the  Great  Charter,  has  been  minutely  and  scrupulously 
investigated  by  the  Lords'  Committee  on  the  Dignity  of  a 
Peer  in  1819.  Two  questions  may  be  raised  as  to  the  lay 
portion  of  the  great  council  of  the  nation  from  the  Conquest 
to  the  reign  of  John: — first,  Did  it  comprise  any  members, 
whether  from  the  counties  or  boroughs,  not  hol4ing  them* 
selves,  nor  deputed  by  others  holding  in  chief  of  the  ctowb 
by  knightpservice  or  grand  seijeanty  ?  secondly,  Were  all 


406  NATUBE  OF  BARONIES.  Kons  to 

such  tenants  in  capite  personally,  or  in  contemplation  of 
law,  assisting,  by  advice  and  suffrage,  in  councils  held  for  tho 
purpose  of  laying  on  burdens,  or  for  permanent  and  impor- 
tant legislation  ? 

The  former  of  these  questions  they  readily  determine. 
The  committee  have  discovered  no  proof,  nor  any  likelihood 
from  analogy,  that  the  great  council,  in  these  Norman  reignsy 
was  composed  of  any  who  did  not  hold  in  chief  of  the  crown 
by  a  military  tenure,  or  one  in  grand  seijeanty;  and  they 
exclude,  not  only  tenants  in  petty  serjeanty  and  socage,  but 
such  as  held  of  an  escheated  barony,  or,  as  it  was  called,  de 
honors. 

They  found  more  difficulty  in  the  second  question.  It 
has  generally  been  concluded,  and  I  may  have  taken  it  for 
granted  in  my  text,  that  all  military  tenants  in  capite  were 
summoned,  or  ought  to  have  been  summoned,  to  any  great 
council  of  the  reaJm,  whether  for  the  purpose  of  levying  a 
new  tax,  or  any  other  affecting  the  public  weal.  The  com- 
mittee, however,  laudably  cautious  in  drawing  any  positive 
inference,  have  moved  step  by  step  through  this  obscure 
path  with  a  circumspection  as  honorable  to  themselves  as  it 
renders  their  ultimate  judgment  wortliy  of  respect. 

^'The  council  of  the  kingdom,  however  composed  (they 
are  adverting  to  the  reign  of  Henry  I.),  must  have  been 
assembled  by  the  king^s  command ;  and  the  king,  therefore, 
may  have  assumed  the  power  of  selecting  the  persons  to 
whom  he  addressed  the  command,  especially  if  the  object  of 
assembling  such  a  council  was  not  to  impose  any  buiden  on 
any  of  the  subjects  of  the  realm  exempted  from  such  bur- 
dens except  by  their  own  free  grants.  Whether  the  king 
was  at  this  time  considered  as  bound  by  any  constitutional 
law  to  address  such  command  to  any  particular  persons, 
designated  by  law  as  essential  parts  of  such  an  assembly  for 
all  purposes,  the  committee  have  been  unable  to  ascertain. 
It  has  generally  been  considered  as  the  law  of  the  land  that 
the  kiug  had  a  right  to  require  the  advice  of  any  of  his 
subjects,  and  their  personal  services,  for  the  general  benefit 
of  the  kingdom ;  but  as,  by  the  terras  of  the  charters  of 
Henry  and  of  his  father,  no  aid  could  be  required  of  the 
immediate  tenants  of  the  crown  by  military  service,  beyond 
the  obligation  of  their  respective  tenures,  if  the  crown  had 
occasion  for  any  extraordinary  aid  £rom  those  tenants,  it 


CHAF.  Vltt  NATURE  OF  BARONIES.  407 

mast  have  been  necessary,  according  to  law,  to  assemble  all 
persons  so  holding,  to  give  their  consent  to  the  imposition. 
Though  the  numbers  of  such  tenants  of  the  crown  were  not 
originally  very  great,  as  far  as  appears  from  .Domesday,  yet,  if 
it  was  necessary  to  convene  all  to  form  a  constitutional  legisla* 
tive  assembly,  the  distances  of  their  respective  residences,  and 
the  inconvenience  of  assembling  at  one  time,  in  one  spot,  all 
those  who  thus  held  of  the  crown,  and  upon  whom  the 
maintenance  of  the  Conquest  itself  must  for  a  considerable 
time  have  importantly  depended,  must  have  produced  diffi- 
calties,  even  in  the  reign  of  the  Conqueror ;  and  the  increase 
of  their  numbers  by  subdivision  of  tenures  must  have  greatly 
increased  the  difficulty  in  the  reign  of  his  son  Henry :  and 
at  length,  in  the  reigns  of  his  successors,  it  must  have  been 
almost  impossible  to  have  convened  such  an  assembly,  except' 
by  general  summons  of  the  greater  part  of  the  persons  who 
were  to  form  it ;  and  unless  those  who  obeyed  the  summons 
could  bind  those  who  did  not,  the  powers  of  the  assembly 
when  convened  must  have  been  very  defective."  (p.  40.) 

Though  I  do  not  perceive  why  we  should  assume  any 
great  subdivision  of  tenures  before  the  statute  of  Quia  Em'p^ 
tores  J  in  18  Edw.  L,  which  prohibited  subinfeudation,  it  is  ob- 
vious that  the  committee  have  pointed  out  the  inconvenience 
of  a  scheme  which  gave  all  tenants  in  capite  (more  numerous 
in  Domesday  than  they  perhaps  were  aware)  a  right  to 
assist  at  great  councils.  Still,  as  it  is  manifest  from  the  early 
charters,  and  explicitly  admitted  by  the  committee,  that  the 
king  could  raise  no  extraordinary  contribution  from  his  imme- 
diate vassals  by  his  own  authority,  and  as  there  was  no  feudal 
subordination  between  one  of  these  and  another,  however 
differing  in  wealth,  it  is  dear  that  they  were  legally  entitled 
to  a  voice,  be  it  through  general  or  special  summons,  in  the 
imposition  of  taxes  which  they  were  to  pay.  It  will  not 
follow  that  they  were  summoned,  or  had  an  acknowledged 
right  to  be  summoned,  on  the  few  other  occasions  when 
legislative  measures  were  in  contemplation,  or  in  the  deter- 
minations taken  by  the  king's  great  council.  This  can  only 
be  inferred  by  presumptive  proof  or  constitutional  analogy. 

The  eleventh  article  of  the  Constitutions  of  Clarendon  in 
1164  declares  that  archbishops,  bishops,  and  all  persons  of 
the  realm  who  hold  of  the  king  in  capite,  possess  their  lands 
as  a  barony,  and  are  bound  to  attend  in  the  judgment?  of  the 


41t^  NATUB£  OF  BABONIES.  Nqtss  to 

It  appears,  therefore,  on  the  whole,  that  in  the  judgment 
of  the  committee,  bj  no  means  indulgent  in  their  requisition 
of  evidence,  or  disposed  to  take  the  more  popular  side,  all 
the  military  tenants  in  capite  were  constitutionally  members 
of  the  commune  concilium  of  the  realm  during  the  Normaa 
constitution.  This  commune  concilium  the  committee  distin- 
guish from  a  magnum  concilium,  tliough  it  seems  doubtful 
whether  there  were  any  very  definite  line  between  the  two. 
But  that  the  consent  of  these  tenants  was  required  for  taxa- 
tion they  repeatedly  acknowledge.  And  there  appears  suffi- 
cient evidence  that  they  were  occasionally  present  for  other 
important  purposes.  It  is,  however,  very  probable  that 
writs  of  summons  were  actually  addressed  only  to  those  of 
distinguished  name,  to  those  resident  near  the  place  of  meet- 
ing, or  to  the  servants  and  favorites  of  the  crown.  Thb 
seems  to  be  deducible  from  the  words  in  the  Great  Charter^ 
which  limit  the  king's  engagement  to  summon  all  tenants  in 
chief,  through  the  sheriff,  to  the  case  of  his  requiring  an  aid 
or  scutage,  and  still  more  from  the  withdrawing  of  this 
promise  in  the  first  year  of  Henry  III.  The  privilege  of 
attending  on  such  occasions,  though  legally  general,  may 
never  have  been  generally  exercised. 

Tlie  committee  seem  to  have  been  perplexed  about  the 
word  magnates  employed  in  several  records  to  express  part 
of  those  present  in  great  councils.  In  genei*al  they  interpret 
it,  as  well  as  the  word  proceres,  to  include  persons  not  distin- 
guished by  the  name  ^  barones ;  "  a  word  whieh  in  the  reign 
of  Henry  lU.  seems  to  have  been  chiefiy  used  in  the  re- 
stricted sense  it  has  latterly  acquired.  Yet  in  one  instance^ 
a  letter  addressed  to  the  justiciar  of  Ireland,  1  Hen.  IIL, 
they  suppose  the  word  magnates  to  "^  exclude  those  tenued 
therein  ^  alii  quamplurimi ; '  and  consequently  to  be  confined 
to  prelates,  earls,  and  barons.  This  may  be  deemed  impor* 
tant  in  the  consideration  of  many  other  instruments  in  which 
the  word  Tnagnates  has  been  used  to  express  persons  consti- 
tuting the  '  commune  concilium  regni.* "  But  tliis  strikes  me 
as  an  erroneous  construction  of  the  letter.    The  words  are 

fbdn  to  th«  A«riff  (Yorkshire.  298,  b),  mode  in  which  th«  relief  vm  pail,  tb« 

that  "  thla  mfy^tend  to  solw  thediflputed  greater  baroDS  were  summoned  by  par- 

quention  an  tc>  what  constituted  one  of  ticular  wriU,  the  rest  by  one  general 

the  greater  barons  mentioned  in  the  Mag-  summons  through  the  sheriff.'^    Ubtoty 

na  Oharta  of  John  and  other  mrly  Nor-  of  Equitable  J  iirisdieUon,  p.  40. 
BUB  documents ;  for,  bj  analogy  to  the 


GiUP.  Vm.  NAT0BE  OF  BARONIES.  411 

as  follows :  —  ^^  Convenerunt  apud  Glocestriam  plures  regni 
nostri  magnates,  episcopi,  abbsites,  comites,  et  barones,  qui 
patri  nostra' viventi  semper  astiterunt  fideliter  et  devote,  et 
alii  quampluiimi ;  applaudentibus  clero  et  populo,  &c,  pub- 
licfe  luimus  in  regem  Angliffi  inuncti  et  coronati."  (p.  77.)  I 
think  that  magnates  is  a  collective  word,  including  the  ^  alii 
quamplurimi."  It  appears  to  me  that  magnaUs,  and  perhaps 
some  other  Latin  words,  correspond  to  the  witan  of  the 
Anglo-Saxons,  expressing  the  l^islature  in  general,  under 
which  were  comprised  those  who  held  peculiar  dignities, 
whether  lay  or  spiritual.  And  upon  the  whole  we  may  be 
led  to  believe  that  the  Norman  great  council  was  essentially 
of  the  same  composition  as  the  witenagemot  which  had  pre- 
ceded it ;  the  king's  thanes  being  replaced  by  the  barons  of 
the  first  or  second  degree,  who,  whatever  may  have  been  the 
distinction  between  them,  shared  one  common  character,  one 
source  of  their  legislative  rights  —  the  derivation  of  their 
lands  as  immediate  fiefs  from  the  crown. 

The  result  of  the  whole  inquiry  into  the  constitution  of 
parliament  down  to  the  reign  of  John  seems  to  be — 1* 
That  the  Norman  kings  explicitly  renounced  all  prerogative 
of  levying  money  on  the  immediate  military  tenants  of  the 
crown,  without  their  consent  given  in  a  great  council  of  the 
realm ;  this  inmiunity  extending  also  to  their  sub-tenants  and 
dependants.  2.  Th^  all  these  tenants  in  chief  had  a  consti- 
tutional right  to  attend,  and  ought  to  be  summoned;  but 
whether  they  could  attend  without  a  summons  is  not  mani- 
fest. 3.  That  the  summons  was  usually  directed  to  the 
higher  barons,  and  to  such  of  a  second  class  as  the  king 
pleased,  many  being  omitted  for  difi*eront  reasons,  though  aU 
had  a  right  to  it.  4.  That  on  occasions  when  money  was 
not  to  be  demanded,  but  alterations  made  in  the  law,  some 
of  these  second  barons,  or  tenants  in  chief,  were  at  least  oc- 
casionally summoned,  but  whether  by  strict  right  or  usage 
does  not  fully  appear.  5.  That  the  irregularity  of  passing 
many  of  them  over  when  councils  were  held  for  the  purpose 
of  levying  money,  led  to  the  provision  in  the  Great  Charter 
of  John  by  which  the  king  promises  that  Jiiej  shall  all  be 
summoned  through  the  sheriff  on  such  occasions;  but  the 
promise  does  not  extend  to  any  other  subject  of  parliamen- 
tary deliberation.  6.  That  even  tliis  concession,  though  bul 
the  recognition  of  a  known  rights  appeared  so  da*}gerouA  to 


412  NATUBE  OF  BARONIES.  Koneiio 

some  in  the  government  that  it  was  withdiawn  in  the  first 
charter  of  Henry  HI. 

The  charter  of  John,  as  has  just  been  observed,  while  it 
removes  all  doubt,  if  any  could  have  been  entertuned,  as  to 
the  right  of  every  military  tenant  in  capite  to  be  summoned 
thiough  the  sheriff,  when  an  aid  or  scutage  was  to  be  de- 
manded, will  not  of  itself  establish  their  right  of  attending 
parliament  on  other  occasions.  We  cannot  absolutely  as- 
sume any  to  have  been,  in  a  general  sense,  members  of  the 
legislature  except  the  prelates  and  the  majares  betrofus.  But 
who  were  these,  and  how  distinguished  ?  For  distinguished 
they  must  now  have  become,  and  that  by  no  new  provision, 
since  none  is  made.  The  right  of  personal  summons  did  not 
constitute  them,  for  it  is  on  majares  barones,  as  already  a  de- 
terminate rank,  that  the  right  is  conferred.  The  extent  of 
property  afforded  no  definite  criterion;  at  least  some  baro- 
nies, which  appear  to  have  been  of  the  first  class,  compre- 
hended veiy  few  knights'  fees ;  yet  it  seems  probable  that 
this  was  the  original  ground  of  distinction.^ 

The  charter,  as  renewed  in  the  first  year  of  Henry  HL, 
does  not  only  omit  the  clause  prohibiting  the  imposition  of 
aids  and  scutages  without  consent,  and  providing  for  the  sum- 
mons of  all  tenants  %n  capite  before  either  could  be  levied, 
but  gives  the  following  reason  for  suspending  this  and  other 
articles  of  king  John's  charter :  ^-  ^  Quia  vero  qusodam  capit- 
ula  in  priori  cart4  continebantur,  qu»  gravia  et  dubitabilia 
▼idebantur,  nciU  de  sctUagiis  et  auxiliit  assidendit ....  pla 
cuit  supra-dictis  praelatb  et  magnatibus  ea  esse  in  respecto, 
quousque  plenius  consilium  habuerimus,  et  tunc  faciemus  plu- 
rissime,  tam  de  his  quam  de  aliis  quss  occurrerint  emendan- 
da,  quse  ad  communem  omnium  utilitatem  pertinuerint,  et 
pacem  et  statum  nostrum  et  regni  nostri."  This  charter  was 
made  but  twenty-four  days  afler  the  death  of  John  ;  and  we 
may  agree  with  the  committee  (p.  77)  in  thinking  it  extraor^ 
dinary  that  these  deviations  from  the  charter  of  Runnyinede, 
in  such  important  particulars,  have  been  so  little  noticed.  It 
is  worthy  of  consideration  in  what  respects  the  provisions  re- 
specting the  levying  of  money  could  have  appeared  grave  and 
doubtfuL    We  cannot  believe  that  the  earl  of  Pembroke,  and 

1  8*e  qaotatioQ  ftrom  Spencfl't  Equlta-  which  wms  aftArwards  redneed  to  thrM. 

bis  JuriMllctioiif  a  UtUe  above.  The  bar-  NIoolaa's  Report  of  Claim  to  Bazoay  9 

ODT  of  Berketoy  was  gmnted  in  1  lile.  I.,  L'lala,  Appendix,  p.  SIS. 
to  IM  hoiden  bj  the  Mrrioaof  five  knightSi 


.Vnt  ELECTION  OF  KNIGHTS.  413 

the  other  barons  who  were  with  the  yonng  king,  himself  a 
child  of  nine  jears  old  and  incapable  of  taking  a  part,  meant 
to  abandon  the  constitutional  privilege  of  not  being  taxed  in 
aids  without  their  consent  But  this  they  might  deem  suffi- 
dentlj  provided  for  by  the  charters  of  former  kings  and  by 
general  usage.  It  is  not,  however,  impossible  that  the  gov- 
ernment demurred  to  the  prohibition  of  levying  scutage,  which 
stood  on  a  different  footing  from  extraordinary  aids ;  for  scu- 
tage appears  to  have  been  formerly  taken  without  consent  of 
the  tenants ;  and  in  the  second  chapter  of  Henry  III.  there  is 
a  clause  that  it  should  be  taken  as  it  had  been  in  the  time  of 
Henry  11.  This  was  a  certain  pa3rment  for  every  knight's 
fee ;  but  if  the  original  provision  of  the  Runnymede  charter 
had  been  maintained,  none  could  have  been  levied  without 
consent  of  parliament. 

It  seems  also  highly  probable  that,  before  the  principle  of 
representation  had  been  established,  the  greater  barons  looked 
with  jealousy  on  the  equality  of  suffrage  claimed  by  the  in- 
ferior tenants  in  eapite.  That  these  were  constitutionally 
members  of  the  great  council,  at  least  in  respect  of  taxation, 
has  been  sufficiently  shown ;  but  they  had  hitherto  come  in 
smaU  numbers,  likely  to  act  always  in  subordination  to  the 
more  potent  aristocracy.  It  became  another  question  whether 
they  should  all  be  summoned,  in  their  own  counties,  by  a  writ 
selecting  no  one  through  favor,  and  in  its  terms  compelling 
all  to  obey.  And  this  question  was  less  for  the  crown,  which 
might  possibly  find  its  advantage  in  the  disunion  of  its  ten- 
ants, than  for  the  barons  themselves.  They  would  naturally 
be  jealous  of  a  second  order,  whom  in  their  haughtiness  they 
held  much  beneath  them,  yet  by  whom  they  might  be  out- 
numbered in  those  councils  where  they  had  bearded  the  king. 
No  effectual  or  permanent  compromise  could  be  made  but  by 
lepresentation,  and  the  hour  for  representation  was  not  come* 

NoTB  m.    Page  230. 

The  Lords'  committee,  though  not  very  confidently,  take 
the  view  of  Brady  and  Blackstone,  confining  the  electors  of 
knights  to  tenants  in  capite.  They  admit  that  ^  the  subse- 
quent usage,  and  the  subsequent  statutes  founded  on  that 
usage,  afford  ground  for  supposing  that  in  the  49th  of  Henry 
in.  and  m  the  reign  of  Edward  L  the  knights  of  the  shires  re- 


414  ELECTION  OF  KNIGHTS.  Nont  to 

turned  to  parliament  were  elected  at  the  oonnty  courts  and  by 
the  suitors  of  those  courts.  If  the  knif^hts  of  the  shires  were 
80  elected  in  the  reigns  of  Henry  III.  and  Edward  I.,  it 
seems  important  to  discover,  if  possible,  who  were  the  suitors 
of  the  county  courts  in  these  reigns^  (p.  149).  The  subject^ 
they  are  oompelled  to  confess,  after  a  discussion  of  some 
length,  remains  involved  in  great  obscurity,  which  their  in- 
dustry has  been  unable  to  disperse.  They  had,  however,  in 
an  earlier  part  of  their  report  (p.  30),  thought  it  highly  prob- 
able that  the  knights  of  the  shires  in  the  reign  of  £dwanl 
III.  represented  a  description  of  persons  who  might  in  the 
reign  of  the  Conqueror  have  been  termed  barons.  And  the 
general  spirit  of  Uieir  subsequent  investigation  seems  to  favor 
this  result,  though  they  finally  somewhat  recede  from  it,  and 
admit  at  least  that,  before  the  close  of  Edward  IIL's  reign, 
the  elective  franchise  extended  to  freeholders. 

The  question,  as  the  committee  have  stated  it,  will  tmn  on 
the  character  of  those  who  were  suitors  to  the  county  courL 
And,  if  this  may  be  granted,  I  must  own  that  to  my  appre- 
hension there  is  no  room  for  the  hypothesis  that  the  county 
court  was  differently  constituted  in  the  reign  of  Edward  I.  or 
of  Edward  UI.  from  what  it  was  very  lately,  and  what  it 
was  long  before  those  princes  sat  on  the  throne.  In  the 
Anglo-Saxon  period  we  find  this  court  composed  of  thaneSi 
but  not  exclusively  of  royal  thanes,  who  were  comparatively 
few.  In  the  laws  of  Henr/I.  we  still  find  sufficient  evidence 
that  the  suitors  of  the  court  were  all  who  held  freehold  land% 
terrarum  dominif  or,  even  if  we  please  to  limit  this  to  lords 
of  manors,  which  is  not  at  all  probable,  still  without  distinc- 
tion of  a  mesne  or  immediate  tenure.  Vavassors,  that  is, 
mesne  tenants,  are  particularly  mentioned  in  one  enumeration 
of  barons  attending  the  court.  In  some  counties  a  limitation 
to  tenants  tn  captte  would  have  left  this  important  tribunal 
very  deficient  in  numbers.  And  as  in  all  our  law-books  we 
find  the  county  court  composed  of  freeholders,  we  may  rea- 
sonably demand  evidence  of  two  changes  in  its  constitution, 
which  the  adherents  to  tlie  theory  of  restrained  representation 
must  combine  —  one  which  excluded  all  freeholders  except 
those  who  held  immediately  of  the  crown  ;  another  which  re- 
stored them.  The  notion  that  the  county  court  was  the  king*s 
court  baron  (Report,  p.  150),  and  thus  bore  an  analogy  to 
that  of  the  lord  in  ever|r  numor,  whether  it  rests  on  any  mod- 


CBAP.Yin.  ELECTION  OF  KNIGHTS.  415 

ern  legal  authority  or  not,  seems  delusive.  The  court  baron 
was  essentially  a  feudal  institution;  the  county  court  was 
from  a  different  source  ;  it  was  old  Teutonic,  and  subsisted  in 
ibis  and  other  countries  before  the  feudal  jurisdictions  had 
taken  root.  It  is  a  serious  error  to  conceive  that,  because 
many  great  alterations  were  introduced  by  the  Normans, 
there  was  nothing  left  of  the  old  system  of  society.^ 

It  may,  however,  be  naturally  inquired  why,  if  the  king's 
tenants  in  chief  were  exclusively  members  of  the  national 
council  before  the  era  of  county  representation,  they  did  not 
retain  that  privilege ;  especially  if  we  conceive,  as  seems  on 
the  whole  probable,  that  the  knights  chosen  in  38  Henry  IIL 
were  actually  representatives  of  the  military  tenants  of  the 
crown.  The  answer  might  be  that  these  knights  do  not  ap-i 
pear  to  have  been  elected  in  the  county  court ;  and  when  that 
mode  of  choosing  knights  of  the  shire  was  adopted,  it  was 
but  consonant  to  the  increasing  spirit  of  liberty,  and  to  the 
weight  also  of  the  barons,  whose  tenants  crowded  the  court, 
that  no  freeholder  should  be  debarred  of  his  equal  suffrage. 
But  this  became  the  more  important,  and  we  might  almost 
add  necessary,  when  the  feudal  aids  were  replaced  by  subsi- 
dies on  movables ;  so  that,  unless  the  mesne  freeholders  could 
vote  at  county  elections,  they  would  have  been  taxed  without 
their  consent  and  pbiced  in  a  worse  condition  than  ordinary 
burgesses.  This  of  itself  seems  almost  a  decisive  argument 
to  prove  that  they  must  have  joined  in  the  election  of  knights 
of  the  shire  after  the  Chnfirmatio  Chartarum,  J£  we  were 
to  go  down  so  late  as  Richard  11.,  and  some  pretend  that  the 
medne  freeholders  did  not  vote  before  the  reign  of  Heni*y  IV., 
we  find  Chaucer's  franklin,  a  vavassor,  capable  even  of  sitting 
in  parliament  for  his  shire.  For  I  do  not  think  Chaucer  ig* 
ncrant  of  the  proper  meaning  of  that  word.  And  Allen  says 
(Kdinb.  Rev.  xxvili.  145)  —  ^  In  the  earliest  records  of  the 
house  of  commons  we  have  found  many  instances  of  sub-vas* 
sals  who  have  represented  their  counties  in  parliament" 

1  A  charter  of  Henry  I..  pnliUsbed  in  nmm,  il  «t  Inter  beionee  meoe  domlol* 

the  new  edition  of  Kjuier  (I.  p.  12),  fallj  ooe,  trutetar  plaeitam  in  curea  mea. 

eoDfirm*  what  Is  herr  eaid.    SclatU  quod  Bt  n  eet  inter  TaTinoree  dnomm  doml- 

ooooedo  et  pnecipfo,  nt  k  modo  oomita-  nomm,  tractetnr  in  oomltatn.    Bt  hoe 

tne  mel  et  handreda  in  illl*  locli  et  lis-  dnello  flat,  nlri  in  eis  remanaerlt.    Bt 

«iem  terminb  ledeant,  ileut  lederunt  in  Tolo  et  pnedpio,  nt  omnee  de  oomltatu 

tempore  ragU  Bdwardi,  et  non  aliter.  eant  ad  comitatiu  et  hundreda,  elcttt  fi»- 

Igo  enfan,  qoando  Tolnero,  tmdam  ea  eernnt  in  tempore  regis  Bdwardi.    But 

fatis  snmmonerl  propter  mea  dominfea  it  is  also  easiljr  proved  from  the  ~ 

neeesiarla  ad  Tolnntatem  meam.    Bt  si  Hanrici  Primi. 
ttiodo  asttii^  plawitwtn  de  diririooe  ter 


416  KUinCIPAL  RIGHTS  Nam  to 

If,  however,  it  should  be  suggested  that  the  practice  of  ad- 
mitting the  votes  of  mesne  tenants  at  eonntj  elections  maj 
have  crept  in  bj  degrees,  partly  hj  the  constitutional  princi- 
ple of  common  consent,  partlv  on  account  of  the  broad  de- 
marcation of  tenants  in  capitt  by  knight-service  from  baronsy 
which  the  separation  of  the  houses  of  parliament  produced, 
thus  tending,  by  diminishing  the  importance  of  the  former,  to 
bring  them  down  to  the  level  of  other  freeholders ;  partly, 
also,  through  the  operation  of  the  statute  Quia  JSmptores  (18 
Edward  L),  which,  by  putting  an  end  to  subinfeudation,  cre- 
ated a  new  tenant  of  the  crown  upon  every  alienation  of  land, 
however  partial,  by  one  who  was  such  already,  and  thus  both 
multiplied  their  numbers  and  lowered  their  dignity ;  this  sup-> 
position,  though  incompatible  with  the  ailment  built  on  the 
nature  of  the  county  court,  would  be  sufficient  to  explain  the 
facts,  provided  we  do  not  date  the  establishment  of  the  new 
usage  too  low.  The  Lords'  committee  themselves,  afler  mudi 
wavermg,  come  to  the  conclusicm  that  "  at  length,  if  not  al- 
ways, two  persons  were  elected  by  all  the  freeholders  of  the 
county,  whether  holding  in  chief  of  the  crown  or  of  others* 
(p.  £131).  This  they  infer  from  the  petitions  of  the  oofhmons 
that  the  mesne  tenants  should  be  charged  with  the  wages  of 
knights  of  the  shire ;  since  it  would  not  be  reasonaUe  to  levy 
such  wages  from  those  who  had  no  voice  in  the  election. 
They  ultimately  incline  to  the  hypothesis  that  the  change 
came  in  silently,  favored  by  the  growing  tendency  to  enlarge 
the  basis  of  the  constitution,  and  by  the  operation  of  the  stat- 
ute Quia  ^mptoresy  which  may  not  have  been  of  inconsider- 
able influence.  It  appears  by  a  petition  in  51  Edward  III. 
that  much  confusion  liad  arisen  with  respect  to  tenures ;  and 
it  was  frequently  disputed  whether  lands  were  held  of  the 
king  or  of  other  lords.  This  question  would  often  turn  on 
the  date  of  alienation  ;  and,  in  the  hurry  of  an  election,  the 
bias  being  always  in  favor  of  an  extended  suffrage,  it  is  to  be 
supposed  that  the  sheriff  would  not  reject  a  claim  to  vote 
which  he  had  not  leisure  to  investigate. 

Note  IV.    Page  231. 

It  now  appears  more  probable  to  me  than  it  did  that  some 
of  the  greater  towns,  but  almost  unquestionably  London,  did 
enjoy  the  right  of  electing  magistrates  with  a  certain  ja- 
riRdiction  before  the  Conquest.    The  notion  which  I  found 


CBAP.Vm.  OF  TOWNS  417 

prevailing  among  the  writers  of  the  last  centnrj,  that  the 
municipal  privileges  of  towns  on  the  continent  were  merely 
derived  from  charters  of  the  twelfth  century,  though  I  was 
aware  of  some  degree  of  limitation  which  it  required,  sway- 
ed me  too  much  in  estimating  the  condition  of  our  own  bur- 
gesses. And  I  must  fairly  admit  that  I  have  laid  too  much 
stress  on  the  silence  of  Domesday  Book ;  which,  as  has  been 
justly  pointed  out,  does  not  relate  to  matters  of  internal 
government,  unless  when  they  involve  some  rights  of  prop- 
erty. 

I  do  not  conceive,  nevertheless,  that  the  municipal  govern- 
ment of  Anglo-Saxon  boroughs  was  analogous  to  that  gener- 
ally established  in  our  corporations  from  the  reign  of  Henry 
XL  and  his  successors.  The  real  presumption  has  been  acute- 
ly indicated  by  Sir  F.  Palgrave,  arising  from  the  universal 
institution  of  the  court-leet,  whidi  gave  to  an  alderman,  or 
otherwise  denominated  officer,  chosen  by  the  suitors,  a  juris- 
diction, in  conjunction  with  themselves  as  a  jury,  over  the 
greater  part  of  civil  disputes  and  criminal  accusations,  as  well 
as  general  police,  that  might  arise  within  the  hundred. 
Wherever  the  town  or  borough  was  too  large  to  be  included 
within  a  hundred,  this  would  imply  a  distinct  jurisdiction, 
which  may  of  course  be  called  municipal.  It  would  be  simi- 
lar to  that  which,  till  lately,  existed  in  some  towns  —  an  elec- 
tive high  bailiff  or  principal  magistrate,  without  a  represen- 
tative body  of  aldermen  and  councillors.  But  this  is  more 
distinctly  proved  with  respect  to  London,  which,  as  is  well 
known,  does  not  appear  in  Domesday,  than  as  to  any  other 
town.  It  was  divided  into  wards,  answering  to  hundreds  in 
the  county ;  each  having  its  own  wardmote,  or  leet,  under  its 
elected  alderman.  '^The  city  of  London,  as  well  within  the 
walls,  as  its  liberties  without  the  walls,  has  been  divided  from 
time  immemorial  into  wards,  bearins  nearly  the  same  relation 
to  the  city  that  the  hundred  anciently  did  to  the  shire.  Each 
ward  L'  for  certain  purposes,  a  distinct  jurisdiction.  The 
organisation  of  the  existing  municipal  constitution  of  the  city 
is,  and  always  has  been,  as  far  as  can  be  t;raced,  entirely 
founded  upon  the  ward  system."  (Introduction  to  the  PVench 
Chronicle  of  London.  —  Camden  Society,  1 844.) 

Sir  F.  Palgrave  extends  this  much  further:  —  "There 
were  certain  districts  locally  included  within  the  hundreds, 
which  nevertheless  constituted  independent  bodies  politic 

VOL.  II.  —  M.  27 


418  MXTNICIPAL  RIGHTS  Nom  10 

The  bnrgnsses,  the  tenants,  the  resiants  of  the  king^s  burghs 
and  manors  in  ancient  demesne,  owed  neither  suit  nor  service 
to  the  hundred  leet  Thej  attended  at  their  own  leet,  which 
differed  in  no  essential  respect  from  the  leet  of  the  hundred. 
The  principle  of  frank-pledge  required  that  each  friborg 
should  appear  hj  its  head  as  its  representative ;  and  oonse* 
quently,  the  jurymen  of  the  leet  of  the  burgh  or  manor  are 
usually  describetl  under  the  style  of  the  twelve  chief  pledges* 
The  legislative  and  remedial  assembly  of  the  burgh  or  manor 
was  constituted  by  the  meeting  of  the  heads  of  its  component 
parts.  The  portreeve,  constable,  headborough,  bailiff,  or 
other  the  chief  executive  magistrate,  was  elected  or  present- 
ed by  the  leet  jury.  Offences  against  the  law  were  repressed 
by  their  summary  presentments.  They  who  were  answer- 
able to  the  community  for  the  breach  of  the  peace  punished 
the  crime.  Responsibility  and  authority  were  conjoined.  In 
their  legislative  capacity  they  bound  their  fellow-townsmen 
by  making  by-laws."  (Edin.  Rev.  xxxvi.  809.)  •*  Domesday 
Book,"  he  says  afterwards,  ^Moes  not  notice  the  hundred 
court,  or  the  county-court;  because  it  was  unnecessary  to 
inform  the  king  or  his  justiciaries  of  the  existence  of  the  tri- 
bunals which  were  in  constant  action  throughout  all  the  land. 
It  was  equally  unnecessary  to  make  a  return  of  the  leets 
which  they  knew  to  be  inherent  in  every  burgh.  Where  any 
special  municipal  jurisdiction  existed,  as  in  Chester,  Stam- 
ford, and  Lincoln,  then  it  became  necessary  that  the  franchise 
should  be  recorded.  The  twelve  lagemen  in  the  two  latter 
burghs  were  probably  hereditary  aldermen.  In  London  and 
in  Canterbury  aldermen  occasionaUy  held  their  sokes  by  in 
heritance.^  The  negative  evidence  extorted  out  of  Domes 
day  has,  therefore,  little  weight."     (p.  313.) 

It  seems,  however,  not  unquestionable  whether  this  repre- 
sentation of  an  Anglo-Saxon  and  Anglo-Norman  municipality 
is  not  urged  rather  beyond  the  truth.  The  portreeve  of 
London,  their  principal  magistrate,  appears  to  have  been  ap- 
pointed by  the  crown.  It  was  not  till  1188  that  Henry  Fitz- 
alwyn,  ancestor  of  the  present  Lord  Beaumont,*  became  the 

1  See  the  emnilog  part  of  this  note.  than  Norman,  10  that  we  mej  prtmme 

*  Thin  pedigree  it  elaborately  and  with  the  first  mayor  to  hare  been  of  IfingUiih 

pfooa  care,  traced  by  Mr.  Stapleton,  In  defeat ;  but  whether  he  were  a  luer- 

dIr   excellent  introduction  to  the  old  chant,  or  a  landholder  Uflng  In  the  eitj, 

shrenicle  of  London,   already  quoted,  miut  Im  undecided. 

The  name  Aiwyn  appean  rather  Saxon 


CRAr.Vm.  OF  TOWNS.  419 

first  raayor  of  London.  But  he  also  was  nominated  by  the 
crown,  and  remained  twentj-foar  years  in  office.  In  the 
same  year  the  first  sheriffs  are  said  to  have  been  made  (factt). 
But  John,  immediately  ai\er  his  accession  in  1199,  granted 
the  citizens  leave  to  choose  their  own  sherifis.  And  his 
charter  of  1215  permits  them  to  elect  annually  their  mayor. 
(Maitland's  Hist  of  London,  p.  74,  76.)  We  read,  however, 
under  the  year  1200,  in  the  ancient  chronicle  lately  published, 
that  twenty-five  of  the  most  discreet  men  of  the  city  were 
chosen  and  sworn  to  advise  for  the  city,  together  with  the 
mayor.  These  were  evidently  different  from  the  aldermen, 
and  are  the  original  common  council  of  the  city.  They  were 
perhaps  meant  in  a  later  entry  (1229):  —  <^Omnes  alder- 
manni  et  n^agnates  civitatis  per  assensum  universorum  dvi- 
um,**  who  are  said  to  have  agreed  never  to  permit  a  sheriff 
to  remain  in  office  during  two  consecutive  years. 

The  city  and  liberties  of  London,  were  not  wholly  under 
the  jurisdiction  of  the  several  wardmotes  and  their  aldermen. 
Landholders,  secular  and  ecclesiastical,  possessed  their  exclu- 
sive sokes,  or  jurisdiction^  in  parts  of  both.  One  of  these 
has  lefl  its  name  to  the  ward  of  Portsoken.  The  prior  of 
the  Holy  Trinity,  in  right  of  this  district,  ranked  as  an  al- 
derman, and  held  a  regular  wardmote.  The  wards  of  Far- 
ringdon  are  denominated  from  a  family  of  that  name,  who 
held  a  part  of  them  by  hereditary  right  as  their  territorial 
franchise.  These  sokes  gave  way  so  gradually  before  the 
power  of  the  citizens,  with  whom,  as  may  be  supposed,  a  per- 
petual conflict  was  maintained,  that  there  were  nearly  thirty 
of  them  in  the  early  part  of  the  reign  of  Henry  HI.,  and 
upwards  of  twenty  in  that  of  Edward  I.  With  the  excep- 
tion of  Portsoken,  they  were  not  commensurate  with  the  city 
wards,  and  we  find  the  juries  of  the  wards,  in  the  third  of 
Edward  I.,  presenting  the  sokes  as  liberties  enjoyed  by  pri- 
vate persons  or  ecclesiastical  corporations,  to  Uie  detriment 
of  the  crown.  But,  though  the  lord  of  these  sokes  trenched 
materially  on  the  exclusive  privileges  of  the  city,  it  is  re- 
markable that,  no  condition  but  inhabitancy  being  required 
in  the  thirteenth  century  for  civic  franchises,  both  they  and 
their  tenants  were  citizens,  having  individually  a  voice  in 
municipal  affairs,  though  exempt  from  municipal  jurisdiction. 
I  have  taken  most  of  this  paragraph  from  a  valuable  though 
ihort  notice  of  th«^  state  of  London  in  the  thirteenth  century, 


420  POPULATION  OF  LONDON.  Notm  to 

published  in  the  fourth  volume  of  the  Archaeological  Jour- 
nal (p.  273). 

The  inference  which  su^ests  itself  from  these  facts  is  that 
London,  for  more  than  two  centuries  aHer  the  Conquest,  was 
not  so  exclusively  a  city  of  traders,  a  democratic  municipaliQry 
as  we  have  been  wont  to  conceive.  And  as  this  evidently 
extends  back  to  the  Anglo-Saxon  period,  it  both  lessens  the 
improbability  that  the  citizens  bore  at  times  a  part  in  political 
affairs,  and  exhibits  them  in  a  new  light,  as  lords  and  tenants 
of  lords,  as  well  as  what  of  course  they  were  in  part,  engaged 
in  foreign  and  domestic  commerce.  It  will  strike  every  one, 
in  running  over  the  list  of  mayors  and  sheriffs  in  the  thir- 
teenth century,  that  a  large  proportion  of  the  names  are 
French ;  indicating,  perhaps,  that  the  territorial  proprietors 
whose  sokes  were  intermingled  with  the  city  had  influence 
enough,  through  birth  and  wealth,  to  obtain  an  election.  The 
general  polity,  Saxon  and  Norman,  was  aristocratic;  what- 
ever infusion  there  might  be  of  a  more  popular  scheme  of 
government,  and  much  certainly  there  was,  could  not  resist, 
even  if  resistance  had  been  always  the  people's  desire,  the 
joint  predominance  of  rank,  riches,  military  habits,  and  com- 
mon alliance,  which  the  great  baronage  of  the  ccalm  enjoyed. 
London,  nevertheless,  from  its  populousness,  and  the  usual 
character  of  cities,  was  the  centre  of  a  democratic  power, 
which,  bursting  at  times  into  precipitate  and  needless  tumult 
easily  repressed  by  force,  kept  on  its  silent  course  till,  near 
the  end  of  the  thirteenth  century,  the  rights  of  the  citizens 
and  burgesses  in  the  legislature  were  constitutionally  estab- 
lished.    [1848.] 


Note  V.    Page  236. 

If  Fitz-Stephen  rightly  informs  us  that  in  London  thera 
were  126  parish  churches,  besides  13  conventual  ones,  we 
may  naturally  think  the  population  much  underrated  at  40,000. 
But  the  fashion  of  building  churches  in  cities  was  so  general, 
that  we  cannot  apply  a  standard  from  modem  times.  Nor- 
wich contained  sixty  parishes. 

Even  under  Henry  11^  as  we  find  by  Fitz-Stephen,  the  prel- 
ates and  nobles  had  town  houses.  ^  Ad  hsec  omnes  fere  epis- 
oopi,  abbates,  et  magnates  Anglise,  quasi  cives  et  manicipea 


CHAP.Vni.  POPULATION  OF  LONDON.  ^21 

sunt  urbis  LundonisB ;  sua  ibi  babentes  eedificia  praeclara ;  ubi 
se  redpiunt,  ubi  divites  impensas  facijunt,  ad  concilia^  ad  con- 
ventus  celebres  in  urbem  evocati,  k  domino  rege  vel  metro- 
politano  suo,  seu  propriis  tracti  negotiis."  The  eulogy  of 
London  bj  this  writer  is  verj  curious ;  its  citizens  were  thus 
early  distinguished  by  their  good  eating,  to  which  they  added 
amusements  less  congenial  to  later  liverjmen,  hawking,  cock- 
fighting,  and  much  more.  The  word  cockney  is  not  improba- 
bly derived  from  cocaynej  the  name  of  an  imaginary  land  of 
ease  and  jollity. 

The  city  of  London  within  the  walls  was  not  wholly  built, 
many  gardens  and  open  spaces  remaining.  And  the  houses 
were  never  more  than  a  single  story  above  the  ground-iloory 
according  to  the  uniform  type  of  English  dwellings  in  the 
twelfth  and  following  centuries.  On  the  other  hand,  the  liber- 
ties contained  many  inhabitants ;  the  streets  were  narrower 
than  since  the  fire  of  1666 ;  and  the  vast  spaces  now  occupied 
by  warehouses  might  have  been  covered  by  dwelling-houses. 
Forty  thousand,  on  the  whole,  seems  rather  a  low  estimate 
for  these  two  centuries ;  but  it  is  impossible  to  go  beyond  the 
vaguest  conjecture. 

The  population  of  Paris  in  the  middle  ages  has  been  esti- 
mated with  as  much  diversity  as  that  of  London.  M.  Dula- 
ure,  on  the  basis  of  the  taUU  in  1813,  reckons  the  inhabitants 
at  49,110.^  But  he  seems  to  have  made  unwarrantable  as- 
sumptions where  his  data  were  deficient.  M.  Gu^rard,  on 
the  other  hand  (Documens  Limits.  1841),  after  long  calcula- 
tions, brings  the  population  of  the  city  in  1292  to  2J5,861. 
This  is  certainly  very  much  more  than  we  could  assign  to 
London,  or  probably  any  European  city ;  and,  in  fact,  his  es- 
timate goes  on  two  arbitrary  postulates.  The  extent  of  Paris 
in  that  age,  which  is  tolerably  known,  must  be  decisive  against 
80  high  a  population.^ 

The  Winton  Domesday,  in  the  possession  of  the  Society  of 
Antiquaries  of  London,  furnishes  some  important  informa- 
tion as  to  that  city,  which,  as  well  as  London,  does  not  appear 
in  the  great  Domesday  Book,    This  record  is  of  the  reign  of 

>  Hilt  dB  Full,  vol.  ill.  p.  281.  double,  whleh  to  Ineredlbto.     In   Ih* 

•  John  of  TroyM  nvi,  in  14S7,  thai  thirteonth  and  Ibnrtoentb  contnriot  tho 

from  cixtjr  to  eighty  thonmnd  mon  ap-  hotuea  w«re  still  eotUigM :   onljr    fbor 

poaxed  in  anna.    DnUnr«(Uist.  de  Paris,  streets  wars  paved ;  they  were  Tery  oar- 

rol.  iii.  p.  606)  says  this  gives  1^,000  low  and  dirty,  and  often  inundated  hf 

•n-  Um  whole  popolatloo  i  bat  il  ijves  llie  Mne.    ^  p.  186  ^ 


422  EARLIEST  WBTTS  TO  TOWlfS.  Nom  «• 

Heniy  1.  Winchester  had  been,  as  is  well  known,  the  capi« 
tal  of  ihe  Anglo-Saxon  kings.  It  has  been  observed  that 
^  the  opulence  of  the  inhabitants  may  possibly  be  gathered 
from  the  frequent  recurrence  of  the  trade  of  goldsmith  in  it, 
and  the  populousness  of  the  town  from  the  enumeration  of 
the  streets/'  (Cooper's  Public  Records,  L  226.)  Of  these 
we  find  sixteen.  ^  In  the  petition  from  the  city  of  Winches- 
ter to  kmg  Henry  VI.  in  1450,  no  less  than  nine  of  these 
streets  are  mentioned  as  having  been  ruined."  As  York  ap* 
pears  to  have  contained  about  10,000  inhabitants  under  the 
Confessor,  we  may  probably  compute  the  population  of  Win- 
chester at  nearly  twice  that  number. 


Note  VL    Page  241. 

The  Lords'  Committee  extenuate  the  presumption  that  ei- 
ther knights  or  burgesses  sat  in  any  of  these  parliaments.  The 
**  cunctaiTim  regni  civitatum  pariter  et  burgorum  potentiores," 
mentioned  by  Wikes  in  1269  or  1270,  they  suppose  to  have 
been  invited  in  order  to  witness  the  ceremony  of  translating  the 
body  of  Edward  the  Confessor  to  his  tomb  newly  prepared  in 
Westminster  Abbey  (p.  161).  It  is  evident,  indeed,  that  this 
assembly  acted  afterwards  as  a  parliament  in  levying  money. 
But  the  burgesses  are  not  mentioned  in  this.  It  cannot,  never- 
theless, be  presumed  from  the  silence  of  the  historian,  who  had 
previously  informed  us  of  their  presence  at  Westminster,  that 
they  took  no  part  It  may  be,  perhaps,  more  doubtful  wheth- 
er they  were  chosen  by  their  constituents  or  merely  summoned 
as  «  potentiores." 

The  words  of  the  statute  of  Marlbridge  (51  Hen.  HI.), 
which  are  repeated  in  French  by  that  of  Gloucester  (6  £dw. 
I.)  do  not  satisfy  the  committee  that  there  was  any  repre- 
sentation either  of  counties  or  boroughs.  ^  They  rather  hn- 
port  a  selection  by  the  king  of  the  most  discreet  men  of 
every  degree"  (p.  183).  And  the  statutes  of  13  Edw.  L,  re- 
feriing  to  this  of  Gloucester,  assert  it  to  have  been  made 
by  the  king,  "^  with  prelates,  earls,  barons,  and  his  council,** 
thus  seeming  to  exclude  what  would  afterwards  have  been 
called  the  lower  house.  The  assembly  of  1271,  described  in 
the  Annals  of  Waverley,  "  seems  to  have  been  an  extraordi- 
nary convention,  warranted  rather  by  the  particular  circum 


Cbap.  YHI.  EABLIEST  WRITS  TO  TOWKS.  423 

Stances  under  which  the  country  was  placed  than  by  any 
constitutional  law  "  (p.  173.)  It  was,  however  a  case  of  rep- 
resentation ;  and  following  several  of  the  like  nature,  at  least 
as  far  as  counties  were  concerned,  would  render  the  principle* 
familiar.  The  committee  are  even  unwilling  to  admit  that 
^  la  communaut^  de  1^  terre  illocques  summons "  in  the  stat- 
ute  of  Westminster  L,  though  expressly  distinguished  from 
the  prelates,  earls  and  barons,  appeared  in  consequence  of 
election  (p.  173).  But,  if  not  elected,  we  cannot  suppose 
less  than  that  all  the  tenants  in  chief,  or  a  large  number  of 
them,  lyere  summoned ;  which,  afler  the  experience  of  repre- 
sentation, was  hardly  a  probable  course. 

The  Lords'  committee,  I  must  still  incline  to  think,  have 
gone  too  far  when  they  come  to  the  conclusion  that,  on  the 
whole  view  of  the  evidence  collected  on  the  subject,  from  the 
49th  of  Hen.  in.  to  the  18th  of  Edw.  I.,  there  seems  strong 
ground  for  presuming  that,  after  the  49th  of  Hen.  IH.,  the 
constitution  of  the  legislative  assembly  returned  generally  to 
its  old  course ;  that  the  writs  issued  in  the  49th  of  Hen.  III.,  be- 
ing a  novelty,  were  not  afterwards  precisely  followed,  as  far  as 
appears,  in  any  instance ;  and  that  the  writs  issued  in  the  1 1th  of 
£dw.  I.,  ^  for  assembling  two  conventions,  at  York  and  North- 
ampton, of  knights,  citizens,  burgesses,  and  representatives  of 
towns,  without  prelates,  earls,  and  barons,  were  an  extraordi- 
nary measure,  probably  adopted  for  the  occasion,  and  never 
aflerwards  followed;  and  that  the  writs  issued  in  the  18th  of 
Edw  L,  for  electing  two  or  three  knights  for  each  shire  without 
corresponding  writs  for  election  of  citizens  or  burgesses,  and 
not  directly  founded  on  or  conformable  to  the  writs  issued  in 
the  49th  of  Henry  III.,  were  probably  adopted  for  a  partic- 
ular purpose,  possibly  to  sanction  one  important  law  [the  stat- 
ute Quia  Emptores]^  and  because  the  snuiller  tenants  in  chief 
of  the  crown  rarely  attended  the  ordinary  legislative  assemblies 
when  summoned,  or  attended  in  such  small  numbers  that  a  rep- 
resentation of  them  by  knights  chosen  for  the  whole  shire  was 
deemed  advisable,  to  give  sanction  to  a  law  materially  affecting 
all  the  tenants  in  chief,  and  those  holding  under  them  '(p.  204). 

The  election  of  two  or  three  knights  for  the  parliament  of 
18th  Edw.  I.,  which  I  have  overlooked  in  my  text,  appears 
by  an  entry  on  the  close  roll  of  that  year,  directed  to  the 
sheriff  of  Northumberland ;  and  it  is  proved  from  the  same 
roll  that  similar  writs  were  directed  to  all  the  sheriffs  in 


424  EABLIEST  WBITS  TO  TOWNS.  Nam  to 

England.  We  do  not  find  that  the  citizens  and  burgesses 
were  present  in  this  parliament ;  and  it  is  reasonablj  con- 
jectured that,  the  object  of  summoning  it  being  to  procure  a 
legislative  consent  to  the  statute  Quia  Emptores^  which  put 
an  end  to  the  subinfeudation  of  lands,  the  towns  were  thought 
to  have  little  interest  in  the  measure.  It  is,  however,  another 
eai4j  precedent  for  county  representation;  and  that  of  22d 
of  Edw.  I.  (see  the  writ  in  Report  of  Committee,  p.  209)  is 
more  regular.  We  do  not  find  that  the  citizens  and  bur- 
gesses were  summoned  to  either  parliament. 

But,  afler  the  23d  of  Edward  I.,  the  legislative  constitu- 
tion seems  not  to  have  been  unquestionably  settled,  even  in 
the  essential  point  of  taxation.  The  Confirmation  of  the 
Charters,  in  the  25th  year  of  that  reign,  while  it  contained  a 
positive  declsUntion  that  no  "  aids,  tasks,  or  prizes  should  be 
levied  in  future,  without  assent  of  the  realm,"  was  made  in 
consideration  of  a  grant  made  by  an  assembly  in  which  rep- 
resentatives of  cities  and  boroughs  do  not  appear  to  have 
been  •  present.  Yet,  though  the  words  of  the  charter  or 
statute  are  prospective,  it  seems  to  have  long  before  been 
reckoned  a  clear  right  of  the  subject,  at  least  by  himself,  not 
to  be  taxed  without  his  consent  A  tallage  on  royal  towns 
and  demesnes,  nevertheless,  was  set  without  authority  of 
parliament  four  years  afterwards.  This  <*  seems  to  show, 
either  that  the  king's  right  to  tax  his  demesnes  at  his  pleas- 
ure was  not  intended  to  be  included  in  the  word  tallage  in 
that  statute  [meaning  the  supposed  statute  de  taUagio  mm 
concedendo']y  or  that  the  king  acted  in  contravention  of  it 
But  if  the  king's  cities  and  boroughs  were  still  liable  to  tal- 
lage at  the  will  of  the  crown,  it  may  not  have  been  deemed 
inconsistent  that  they  should  be  required  to  send  representa- 
tives for  the  purpose  of  granting  a  general  aid  to  be  assessed 
on  the  same  cities  and  boroughs,  together  with  the  rest  of 
the  kingdom,  when  such  general  aid  was  granted,  and  yet 
should  be  liable  to  be  tallaged  at  the  will  of  the  crown  when 
no  such  general  aid  was  granted"  (p.  244). 

If  in  these  later  years  of  Edward's  reign  the  king  could 
venture  on  so  strong  a  measure  as  the  imposition  of  a  tallage 
without  consent  of  those  on  whom  it  was  levied,  it  is  less 
surprising  that  no  representatives  of  the  commons  appear  to 
have  been  summoned  to  one  parliament,  or  perhaps  two,  in 
his  twenty-seventh  year,  when  some  statutes  were  enacted. 


Chai»,  Vm.  BOROUGH  EEPRESENTATION.  425 

But,  as  this  is  merely  inferred  from  the  want  of  any  extant 
writ,  which  is  also  the  case  in  some  parliaments  where,  from 
other  sources,  we  can  trace  the  commons  to  have  been 
present,  little  stress  should  be  laid  upon  it. 

In  the  remarks  which  I  have  offered  in  these  notes  on  the 
Repoi*t  of  the  Lords'  Committee,  I  have  generally  abstained 
£rom  repeating  any  which  Mr.  Allen  brought  forward.  But 
the  reader  should  have  recourse  to  his  learned  criticism  in  the 
Edinburgh  Review.  It  will  appear  that  the  committee  over- 
looked not  a  few  important  records,  both  in  the  reign  of  £d« 
ward  I«  and  that  of  his  son. 

Note  VII.    Page  244. 

Two  considerable  authorities  have,  since  the  first  publica- 
tion of  this  work,  placed  themselves,  one  very  con^dently, 
one  much  less  so,  on  the  side  of  our  older  lawyers  and  in  fa- 
vor of  the  antiquity  of  borough  representation.  Mr.  Allen, 
who,  in  his  review  of  my  volumes  (£dinb.  Rev.  xxx.  169), 
observes,  as  to  this  point,  —  ''We  are  inclined,  in  the  main, 
to  agree  with  Mr.  Hallam,"  lets  us  know,  two  or  three  years 
aflerwards,  that  the  scale  was  tending  the  other  way,  when, 
in  his  review  of  the  Report  of  the  Lords'  Committee,  who 
give  a  decided  opinion  that  cities  and  boroughs  were  on  no 
occasion  called  upon  to  assist  at  legislative  meetings  before 
the  forty-ninth  of  Henry  III.,  and  are  much  disposed  to  be- 
lieve that  none  were  originally  summoned  to  parliament,  ex- 
cept cities  and  boroughs  of  ancient  demesne,  or  in  the  hands 
of  the  king  at  the  time  when  they  received  the  summons,  he^ 
says,  —  "ATe  are  inclined  to  doubt  the  first  of  these  proposi- 
tions, and  convinced  that  the  latter  is  entirely  erroneous.'^ 
(Edinb.  R^v.  xxxv.  30.)  He  allows,  however,  that  our 
kings  had  no  motive  to  summon  their  cities  and  boroughs  to 
the  legislature,  for  the  purpose  of  obtaining  money,  ''this 
being  procured  through  the  justices  in  eyre,  or  special  com- 
missioners ;  and  therefore,  if  summoned  at  all,  it  is  probable 
that  the  citizens  and  burgesses  were  assembled  on  particular 
occasions  only,  when  their  assistance  or  authority  was  wanted 
to  confirm  or  establish  the  measures  in  contemplation  by  the 
government''  But  as  he  alleges  no  proof  that  this  was  ever 
done,  and  merely  descants  on  the  importance  of  London  and 
other  cities  both  before  and  after  the  Conquest,  and  as  such 


426  A»  riQUTiT  OF  Notes  to 

an  occasional  summons  to  a  great  council,  for  the  purpose  of 
advice,  would  by  no  means  involve  the  necessity  of  legisla- 
tive consent,  we  can  hardly  reckon  this  veiy  acute  writer 
among  the  positive  advocates  of  a  high  antiquity  for  the 
commons  in  parliament.  • 

Sir  Francis  Palgrave  has  taken  much  higher  ground,  and 
his  theory,  in  part  at  least,  would  have  been  hailed  with  ap- 
plause by  the  parliaments  of  Charles  I.    According  to  this, 
we  are  not  to  look  to  feudal  principles  for  our  great  councils 
of  advice  and  consent-     They  were  the  aggregate  of  repre- 
sentatives from  the  courts-leet  of  each  shire  and  each  bor- 
ough, and  elected  by  the  juries  to  present  the  grievances  of 
the  people  and  to  suggest  their  remedies.     The  assembly 
summoned  by  William  the  Conqueror  appears  to  him  not 
only,  as  it  did  to  lord  Hale,  '^  a  sufficient  parliament,*'  but  a 
regular  one ;  ^'  proposing  tlie  law  and  giving  the  initiation  to 
the  bill   which   required  the   king's  consent."     (£d.  Rev. 
xxxvi.  327.)     **  We  cannot,"  he  proceeds,  "  discover  any  es- 
sential difference  between  the  powers  of  these  juries  and  the 
share  of  the  legislative  authority  which  was  enjoyed  by  the 
commons  at  a  period  when  the  constitution  assumed  a  more 
tangible  shape  and  form."     This  is  supported  with  that  copi- 
ousness and  vanety  of  illustration  which  distinguish  his  theo- 
ries, even  when  there  hangs  over  them  something  not  quite 
satisfactory  to  a  rigorous  inquirer,  and  when  their  absolute 
originality  on  a  subject  so  beaten  is  of  itself  reasonably  sus- 
picious.    Thus  we  come  in  a  few  pages  to  the  conclusion  — 
^<  Certainly  there  is  no  theory  so  improbable,  so  irreconcilable 
JU)  general  history  or  to  the  peculiar  spirit  of  our  constitution, 
as  the  opinions  which  are  held  by  those  who  deny  the  sub- 
stantial antiquity  of  the  house  of  commons.     No  paradox  is 
so  startling  as  the  assumption  that  the  knights  and  burgesses 
who  stole  into  the  great  council  between  the  close  of  the 
reign  of  John  and  the  beginning  of  the  i-eign  of  Edward 
should  convert  themselves  at  once  into  the  thii^  estate  of  the 
realm,  and  stand  before  the  king  and  his  peers  in  possession 
of  powers  and  privileges  which  the  original  branches  of  the 
legislature  could  neither  dispute  nor  withstand"  (p.  882). 
^  It  must  not  be  forgotten  that  the  researches  of  all  previous 
writers  have  been  directed  wholly  in  furtherance  of  the  opin- 
ions which  have  been  held  respecting  the  feudal  origin  of 
parliament.     No  one   has  considered  it  as  a  common-law 
courU" 


CojLr.  YIIL         BOROUGH  BEPRESENTATION.  427 

I  do  not  know- that  it  is  necessarj  to  believe  m  a  properly 
feudal  origin  of  parliament,  or  that  this  hypothesis  is  gener« 
ally  received.  The  great  <;ouncil  of  the  Norman  kings  was, 
as  in  common  with  Sir  F.  Palgrave  and  many  others  I  be- 
lieve, little  ejse  than  a  continuation  of  the  witenagemot,  the 
immemorial  organ  of  the  Anglo-Saxon  aristocracy  in  their 
relation  to  the  king.  It  might  be  composed,  perhaps,  more 
strictly  according  to  feudal  priqciples ;  but  the  royal  thanes 
had  always  been  consenting  parties.  Of  the  representation 
of  courts-leet  we  may  require  better  evidence :  aldermen  of 
London,  or  persons  bearing  that  name,  perhaps  as  land- 
owners rather  than  citizens  (see  a  former  note),  may  possi- 
bly have  been  occasionally  present;  but  it  is  remarkable 
that  neither  in  historians  nor  records  do  we  find  this  men- 
tioned; that  aldermen,  in  the  municipal  sense,  are  never 
enumerated  among  the  constituents  of  a  witenagemot  or  a 
council,  though  they  must,  on  the  representative  theory,  have 
composed  a  large  portion  of  both.  But,  waiving  this  hy- 
pothesis, which  the  author  seems  not  here  to  insist  upon, 
though  he  returns  to  it  in  the  Rise  and  Progress  of  the  Eng- 
lish Commonwealth,  why  is  it  ^  a  startling  paradox  to  deny 
the  substantial  antiquity  of  the  house  of  commons"?  By 
this  I  understand  him  to  mean  that  representatives  from 
counties  and  boroughs  came  regularly,  or  at  least  frequently, 
to  the  great  councils  of  Saxon  and  Norman  kings.  Their 
indispensable  consent  in  legislation  I  do  not  apprehend  him 
to  affirm,  but  rather  the  reverse :  —  ^'  The  supposition  that  in 
any  early  period  the  burgesses  had  a  voice  in  the  solemn 
acts  of  die  legislature  is  untenable."  (Rise  and  Progress, 
&c.,  i.  314.)  But  they  certainly  did,  at  one  time  or  other, 
obtain  this  right,  '^or  convert  themselves,*'  as  he  expresses 
it,  ^  into  the  third  estate  of  the  realm ; "  so  that  upon  any 
hypothesis  a  great  constitutional  change  was  wrought  in  the 
powers  of  the  conmions.  The  revolutionary  character  of 
Montfort's  parliament  in  the  49th  of  Hen.  III.  would  suffi- 
ciently account  both  for  the  appearance  of  representatives 
from  a  democracy  so  favorable  to  that  bold  reformer  and  for 
the  equality  of  power  with  which  it  was  probably  designed 
to  invest  them.  But  whether  in  the  more  peaceable  times 
of  Edward  I.  the  citizens  or  burgesses  were  recognized  as 
essential  parties  to  every  legislative  measure*  may,  as  I  have 
shown,  be  open  to  much  doubt 


428  AUTHOBITY  OF  THE  Notes  to 

I  cannot  upon  the  whole  oyercome  the  argument  from  the 
silence  of  all  historians,  from  the  deficiency  of  all  proof  as 
to  anj  presence  of  citizens  and  burgesses,  in  a  representatiye 
character  as  a  house  of  commons,  before  the  49  th  year  of 
Henry  III. ;  because  after  this  time  historians  and  chroniclers 
exactly  of  the  same  character  as  the  former,  or  even  less 
copious  and  valuable,  do  not  omit  to  mention  it.  We  are 
accustomed  in  the  sister  kingdoms,  so  to  speak,  of  the  conti* 
nenl ,  founded  on  the  same  Teutonic  original,  to  argue  against 
the  existence  of  representative  councils,  or  other  institutions, 
from  the  same  absence  of  positive  testimony.  No  one 
believes  that  the  three  estates  of  France  were  called  together 
before  the  time  of  Philip  the  Fair.  No  one  sti'ains  the 
representation  of  cities  in  the  cortes  of  Castile  beyond  the 
date  at  which  we  discover  its  existence  by  testimony.  It  is 
true  that  unreasonable  inferences  may  be  made  from  what  is 
usually  called  negative  evidence ;  but  how  readily  and  how 
oflen  are  we  deceived  by  a  reliance  on  testimony  1  In  many 
instances  the  negative  conclusion  carries  with  it  a  conviction 
equal  to  a  great  mass  of  affirmative  proof.  And  such  I 
reckon  the  inference  from  the  language  of  Roger  Hoveden, 
of  Matthew  Paris,  and  so  many  more  who  speak  of  councils 
and  parliaments  full  of  prelates  and  nobles,  without  a  syllable 
of  the  burgesses.  Either  they  were  absent,  or  they  were  too 
insignificant  to  be  named ;  and  in  that  case  it  is  hard  to  per^ 
oeive  any  motive  for  requiring  their  attendance. 

NoTB  Vin.    Page  251. 

A  record,  which  may  be  read  in  Brady's  History  of  Eng 
land  (voL  ii.  Append,  p.  66)  and  in  Rymer  (t  iv.  p.  1237), 
relative  to  the  proceedings  on  Edward  II.*s  flight  into  Wales 
and  subsequent  detention,  recites  that,  ^  the  king  having  left 
his  kingdom  without  government,  and  gone  away  with  no- 
torious enemies  of  the  queen,  prince,  and  realm,  divers 
prelates,  earls,  barons,  and  knights,  then  being  at  Bristol  in 
the  presence  of  the  said  queen  and  duke  (prince  Edward, 
duke  of  Cornwall),  ^  ths  cusent  of  the  whole  commonaUy  of 
ike  realm  there  being,  unanimously  elected  the  said  duke  to 
be  guardian  of  the  said  kingdom ;  so  that  the  said  duke  and 
guardian  should  rule  and  govern  the  said  realm  in  the  name 
and  by  the  authority  of  the  king  his  ^Either,  he  being  thus 


CHAP.ym.  HOUSE  of  commons.  429 

absent**  But  the  king  being  taken  and  brou<rbt  back  into 
England,  the  power  thus  delegated  to  the  guardian  censed  of 
coui'se ;  whereupon  the  bishop  of  Hereford  was  sent  to  press 
the  king  to  permit  that  the  great  seal,  which  he  had  with 
hira,  the  prince  having  only  used  his  private  seal,  should  be 
used  in  all  things  that  required  it.  Accordingly  the  king 
sent  the  great  se-al  to  the  queen  and  prince.  The  bishop  is 
said  to  have  been  thus  commissioned  to  fetch  the  seal  by  the 
prince  and  queen,  and  by  the  said  prelates  and  peers,  with 
the  a$9ent  of  the  said  commonalty  then  being  at  Hereford.  It  is 
plain  that  these  were  mere  words  of  course ;  for  no  parliament 
had  been  convoked,  and  no  proper  representatives  could  have 
been  either  at  Bristol  or  Hereford.  However,  this  is  a  very 
curious  record,  inasmuch  as  it  proves  the  importance  attached 
to  the  forms  of  the  constitution  at  this  period. 

The  Lords'  Committee  dwell  much  on  an  enactment  in  the 
parliament  held  at  York  in  15  £dw.  II.  (1B22),  which  they 
conceived  to  be  the  first  express  recognition  of  the  constitu- 
tional powers  of  the  lower  house.  It  was  there  enacted 
that "  for  ever  thereafter  all  manner  of  ordinances  or  pro- 
visions made  by  the  subjects  of  the  king  or  his  heirs,  by  any 
power  or  authority  whatsoever,  concerning  the  royal  power 
of  the  king  or  his  heirs,  or  against  the  estate  of  the  crown 
should  be  void  and  of  no  avail  or  force  whatsoever ;  but  the 
matters  to  be  established  for  the  estate  of  the  king  and  of 
his  heirs,  and  for  the  estate  of  the  realm  and  of  the  people, 
should  be  treated,  accorded,  and  established  in  parliament  by 
the  king,  and  by  the  assent  of  the  prelates,  earls,  and  barons, 
and  the  commonalty  of  the  realm,  according  as  had  been 
before  accustomed.  This  proceeding,  therefore,  declared  the 
legislative  authority  to  reside  only  in  the  king,  with  the 
assent  of  the  prelates,  earls,  and  barons,  and  commons  assem- 
bled in  pai'liament ;  and  that  every  legislative  act  not  done 
by  that  authority  should  be  deemed  void  and  of  no  effect. 
By  whatever  violence  this  statute  may  have  been  obtained, 
it  declared  the  constitutional  law  of  the  realm  on  this  im- 
portant subject."  (p.  282.)  The  violence,  if  resistance  to 
the  usurpation  of  a  subject  is  to  be  called  such,  was  on  the 
part  of  the  king,  who  had  just  sent  the  earl  of  Lancaster  to 
the  scaffold,  and  the  present  enactment  was  levelled  at  the 
ordinances  which  had  been  forced  upon  the  crown  by  his 
taction.    The  lords  ordainers,  neveitheless,  had  been  ap- 


430  BARONS  m  PARLIAMENT:  Notes  to 

pointed  with  consent  of  the  commons,  as  has  been  mentioned 
in  the  text ;  so  that  this  provision  in  15  Edward  II.  seemH 
rather  to  limit  than  to  enhance  the  supreme  power  of  parlia- 
ment, if  it  were  meant  to  prohibit  any  future  enactment  of 
the  same  kind  by  its  sole  authority.  But  the  statute  is  de- 
claratory in  its  nature ;  nor  can  we  any  more  doubt  that  the 
legislative  authority  was  reposed  in  the  king,  lords,  and 
commons  before  this  era  than  that  it  was  so  ever  aflerwards. 
Unsteady  as  the  constitutional  usage  had. been  through  the 
reign  of  Edward  I.,  and  willing  as  both  he  and  his  son  may 
have  been  to  prevent  its  complete  establishment,  the  necessi^ 
of  parliamentary  consent  both  for  levying  money  and  enacting 
laws  must  have  become  an  article  of  the  public  creed  before 
his  death.  If  it  be  true  that  even  after  this  declaratory 
statute  laws  were  made  without  the  assent  or  presence  of  the 
commons,  as  the  Lords'  Committee  incline  to  hold  (p.  285, 286, 
287),  it  was  undeniably  an  irregular  and  unconstitutional 
proceeding ;  but  this  can  only  show  that  we  ought  to  be  very 
slow  in  presuming  earlier  proceedings  of  the  same  nature  to 
have  been  more  conformable  to  the  spirit  of  the  existing 
constitution.  The  Liords'  Committee  too  often  reason  from  the 
fact  to  the  right,  as  well  as  from  the  words  to  the  fact ;  both 
are  fallacious,  and  betray  them  into  some  vacillation  and  per- 
plexity. They  do  not,  however,  question,  on  tlie  whole,  but 
that  a  new  constitution  of  the  legislative  assemblies  of  the 
realm  had  been  introduced  before  the  15th  year  of  Edward 
II.,  and  that  '^  the  practice  had  prevailed  so  long  before  as  to 
give  it,  in  the  opinion  of  the  parliament  then  assembled,  the 
force  and  effect  of  a  custom,  which  the  parliament  declared 
should  thereafter  be  considered  as  established  law."  (p.  293.) 
This  appears  to  me  rather  an  inadequate  exposition  of  the 
public  spirit,  of  the  tendency  towards  enlarging  the  basis  of 
the  coniititution,  to  which  the  ^  practice  and  custom  "  owed  its 
origin ;  but  the  positive  facts  are  truly  stated. 

Note  IX.    Page  328. 

Writs  are  addressed  in  11th  of  Edw.  11.  "comitibus,  ma- 
joribus  baix)nibus,  et  prselatis,"  whence  the  Lords'  committee 
infer  that  the  style  used  in  John's  charter  was  still  preserved 
(Report,  p.  277).  And  though  in  those  times  there  might 
be  much  irregularity  in  issuing  writs  of  summons,  the  tern 


Cbap.  Vm.         KATURE  OF  THEIR  SUMMONS.  431 

^majores  barones"  must  have  had  an  application  to  definite 
persons.  Of  the  irregularity  we  may  judge  hj  the  fact  that 
under  Edward  L  aboilt  eighty  were  generally  summoned; 
under  his  son  never  so  many  as  fifly,  sometimes  less  than 
forty,  as  may  be  seen  in  Dugdale's  Summonitiones  ad  Par- 
Itamentum.  The  committee  endeavor  to  draw  an  inference 
from  this  against  a  subsisting  right  of  tenure.  But  if  it  is 
meant  that  the  king  had  an  acknowledged  prerogative  of 
omitting  any  baron  at  his  discretion,  the  higher  English 
nobility  must  have  lost  its  notorious  privileges,  sanctioned  b^ 
long  usage,  by  the  analogy  of  all  feudal  governments,  and 
by  the  charter  of  John,  which,  though  not  renewed  in  terms, 
nor  intended  to  be  retained  in  favor  of  the  lesser  barons,  or 
tenants  in  capite,  could  not,  relatively  to  the  rights  of  the 
superior  order,  have  been  designedly  relinquished. 

The  committee  wish  to  get  rid  of  tenure  as  conferring  a 
right  to  summons ;  they  also  strongly  doubt  whether  the  sum- 
mons conferred  an  hereditary  nobiUty  ;  but  they  assert  that, 
in  the  15th  of  Edward  III.,  ^  those  who  may  have  been 
deemed  to  have  been  in  the  reign  of  John  distinguished  as 
majores  harones  by  the  honor  of  a  personal  writ  of  sum- 
mons, or  by  the  extent  and  influence  of  their  property,  from 
the  other  tenants  in  chief  of  the  crown,  were  now  clearly  be- 
come, \ntli  the  earls  and  the  newly  created  dignity  of  duke, 
a  distinct  body  of  men  denominated  peers  of  the  land,  and 
having  distinct  personal  rights ;  while  the  other  tenants  in 
chief,  whatsoever  their  rights  may  have  been  in  the  reign 
of  John,  sunk  into  the  general  mass."  (p.  314.) 

The  appellation  ^  peers  of  the  land "  is  said  to  occur  for 
the  first  time  in  14  Edward  11.  (p.  281),  and  we  find  them 
very  distinctly  in  the  proceedings  against  Hereford  and  others 
at  the  beginning  of  the  next  reign.  They  were,  of  course, 
entitled  to  trial  by  their  own  order.  But  whether  all  lajmen 
summoned  by  particular  writs  to  parliament  were  at  that  time 
considered  as  peers,  and  triable  by  the  rest  as  such,  must  be 
questionable,  unless  we  could  assume  that  the  writ  of  sum- 
inons  already  ennobled  the  blood,  which  is  ut  least  not  the 
opinion  of  the  committee.  If,  therefore,  the  writ  did  not  con- 
stitute an  hereditary  peer,  nor  tenure  in  chief  by  barony  give 
a  right  to  sit  in  parliament,  we  should  have  a  difiiculty  in 
finding  any  determinate  estate  of  nobility  at  all.  exclusive  of 
earls,  who  were,  at  all  times  and  without  exception,  indispu- 


432  BARONS  IN  PARLIAMENT:  Notes  to 

tably  noble ;  an  hTpothesis  manifestly  paradoxical,  and  coq« 
tradicted  by  history  and  law.  If  it  be  said  that  prescription 
was  the  only  title,  this  may  be  so  far  gi'anted  that  the  majares 
bar  ones  had  by  prescription,  antecedent  to  any  statute  or 
charter,  been  summoned  to  parliament ;  but  this  prescription 
would  not  be  broken  by  the  omission,  through  negligence  or 
policy,  of  an  individual  tenant  by  barony  in  a  few  parlia- 
ments. The  prescription  was  properly  in  favor  of  the  class, 
the  mcyores  barones  generally,  and  as  to  them  it  was  perfect, 
extending  itself  in  right,  if  not  always  in  fact,  to  every  one 
who  came  within  its  scope. 

In  the  Third  Report  of  the  Lords'  Committee,  apparently 
drawn  by  the  same  hand  as  the  Second,  they  "conjecture 
that  after  the  establishment  of  the  commons'  house  of  parlia- 
ment as  a  body  by  election,  separate  and  distinct  from  the 
lords,  all  idea  of  a  right  to  a  writ  of  summons  to  parliament 
by  reason  of  tenure  had  ceased,  and  that  the  dignity  of  baron, 
if  not  conferred  by  patent,  was  considered  as  derived  only 
from  the  king's  writ  of  summons."  (Third  Report,  p.  22  G.) 
Yet  they  have  not  only  found  many  cases  of  persons  sum- 
moned by  >vrit  several  times  whose  descendants  have  not 
been  summoned,  and  hesitate  even  to  approve  the  decision 
of  the  house  on  the  Cliflon  barony  in  1673,  when  it  was  de- 
term  med  that  the  claimant's  ancestor,  by  writ  of  summons 
and  sitting  in  parliament,  was  a  peer,  but  doubt  whether 
"  even  at  this  day  the  doctrine  of  that  case  ought  to  be  con- 
sidered as  generally  applicable,  or  may  be  limited  by  time 
and  circumstances."  *  (p.  33.) 

It  seems,  with  much  deference  to  more  learned  investiga- 
tors, rather  improbable  that,  either  before  or  after  the  regu- 
lar admission  of  the  knights  and  burgesses  by  representa- 
tion, and  consequently  the  constitution  of  a  distinct  lords' 
house  of  parliament,  a  writ  of  summons  could  have  been 
lawfully  withheld  ut  the  king's  pleasure  from  any  one  holding 

1  This    doabt   was    soon    afterwards  been  an  universal  pTaetice.    It  was  held 

changed  into  a  proposition,  strenuously  by  Lord  Kedosdale,  that,  at  least  until 

maintained  by  the  supposed  compiler  of  the  statute  of  5  Richard  II.  e.  4,  no  he- 

theee  Keporta.  Lord  Uedesdale,  on  the  reditary  or  even  personal  right  to  tba 

claim  to  the  oarooy  of  L'If>le  in  1S29.  peerage  was  created  by  the  writ  of  sum- 

The  ancestor  had  l)een  called  by  writ  to  mons.    The  honse  of  lords  rejected  th« 

•eyeral  parliaments  of  liUiw.  III. ;  and  claim,  though  the  langui^e  of  their  reso- 

haring   only  a  daughter,  the  negative  Intion  is  not  conclusire  as  to  the  prin- 

ai^ument  from  the  omission  of  his  pofl«  dple.    Tlie  opinion  of  I/>rd  R.  has  been 

terity  is  of  little  value ;  for  though  the  ably  Impugned  by  Sir  Uarris  Nicolas,  In 

husbands  of  heiresses  were  ft<e<iuontIy  his  Report  of  the  L^Islc  Peerage,  1829^ 
aummoned,  this  does  not  seem  to  hava 


Ohap.  Vm.         NATUBB  OF  THEIB  SUMMONS.  483 

such  lands  hj  barony  as  rendered  bim  notoriouslj  one  of  the 
majores  barones.  Nor  will  this  be  much  affected  by  argu- 
ments from  the  inexpediency  or  supposed  anomaly  of  permit* 
ting  the  right  of  sitting  as  a  peer  of  parliament  to  be  trans- 
ferred by  alienation.  The  Lords'  Committee  dwell  at  length 
upon  them.  And  it  is  true  that,  in  our  original  feudal  con- 
stitution, the  fiefs  of  the  crown  could  not  be  aJienated  without 
its  consent.  But  when  this  was  obtained,  when  a  barony  had 
passed  by  purchase,  it  would  naturally  draw  with  it,  as  an  in- 
cident of  tenure,  the  privilege  of  being  summoned  to  parlia 
ment,  or,  in  language  more  accustomed  in  those  times,  the 
obligation  of  doing  suit  and  service  to  the  king  in  his  high 
court.  Nor  was  the  alienee,  doubtless,  to  be  taxed  without 
his  own  consent,  any  more  than  another  tenant  in  capita* 
What  incongruity,  therefore,  is  there  in  the  supposition  that, 
afler  tenants  in  fee-simple  acquired  by  statute  the  power  of 
alienation  without  previous  consent  of  the  crown,  the  new 
purchaser  stood  on  the  same  footing  in  all  other  respects  aa 
before  the  statute  ?  It  is  also  much  to  be  observed  that  the 
claim  to  a  summons  might  be  gained  by  some  methods  of 
purchase,  using  that  word,  of  course,  in  the  legal  sense.  Thus 
the  husbands  of  heiresses  of  baronies  were  frequently  sum- 
moned, aRd  sat  as  tenants  by  courtesy  afler  the  wife's  death ; 
though  it  must  be  owned  that  the  committee  doubt,  in  their 
Third  Report  (p.  47),  whether  tenancy  by  courtesy  of  a  dig- 
nity was  ever  allowed  as  a  right.  Thus,  too,  every  estate 
created  in  tail  male  was  a  diversion  of  the  inheritance  by  the 
owner's  sole  will  from  its  course  according  to  law.  Tet  in 
the  case  of  the  barony  of  Abergavenny,  even  so  late  as  the 
reign  of  James  I.,  the  heir  male,  being  in  seizin  of  the  lands, 
was  called  by  writ  as  baron,  to  the  exdusion  of  the  heir  gen- 
eroL  Surely  this  was  an  authentic  recognition,  not  only  of 
baronial  tenure  as  the  foundation  of  a  right  to  sit  in  parlia- 
ment, but  of  its  alienability  by  the  tenant^ 

If  it  be  asked  whether  the  posterity  of  a  baron  aliening 
the  lands  which  gave  him  a  right  to  be  summoned  to  the 
king's  court  would  be  entitled  to  the  privileges  of  peerage 
by  nobility  of  blood,  it  is  true  that,  according  to  Collins, 
whose  opinion  the  committee  incline  to  follow,  there  are  in- 

1  Th0  Lords'  Committee  (Second  R*-  the  Fanes  Ibr  the  partlenUr  terony  in 

port,  p.  486)  endearor  to  elude  tho  Ibroo  question ;  though  some  safcisfhetion  waf 

of  this  authority ;  but  it  maniftetly  ap*  made  to  the  claimant  of  the  latter  fiunilj 

pears  that  the  Nerilles  were  preferred  to  by  calling  her  to  a  diffiarent  peeniDS. 

VOL.  II.  —  M.  2& 


434  BARONS  IN  PABLIAHENT:  Norsi  10 

stances  of  jpersons  in  such  drcumstanoes  being  summooed. 
Bat  this  seems  not  to  prove  anything  to  the  purpose.  The 
king,  no  one  doubts,  from  the  time  of  £dward  !•,  used  to 
summon  hj  writ  many  who  had  no  baronial  tenure ;  and  the 
circumstance  of  having  alienated  a  barony  could  not  render 
any  one  incapable  of  attending  parliament  by  a  different  title. 
It  is  very  hard  to  determine  any  question  as  to  times  of  much 
irregularity ;  but  it  seems  that  the  posterity  of  one  who  had 
parted  with  his  baronial  lands  would  not,  in  those  early  times, 
as  a  matter  of  course,  remain  noble.  A  right  by  tenure 
seems  to  exclude  a  right  by  blood ;  not  necessarily,  because 
two  collateral  titles  may  coexist,  but  in  the  principle  of  the 
constitution.  A  feudal  principle  was  surely  the  more  ancient ; 
and  what  could  be  more  alien  to  this  than  a  baron,  a  peer,  an 
hereditary  counsellor,  without  a  fief  ?  Nobility,  that  is,  gen- 
tility of  birth,  might  be  testified  by  a  pedigree  or  a  bearing ; 
but  a  peer  was  to  be  in  arms  for  the  crown,  to  grant  his  own 
money  as  well  as  that  of  others,  to  lead  his  vassals,  to  advise, 
to  exhort,  to  restrain  the  sovereign.  The  new  theory  came 
in  by  degrees,  but  in  the  decay  of  every  feudal  idea ;  it  was 
the  substitution  of  a  different  pride  of  aristocracy  for  that  of 
baronial  wealth  and  power ;  a  pride  nourished  by  heralds, 
more  peaceable,  more  indolent,  more  accommodated  to  the 
rules  of  fixed  law  and  vigorous  monarchy.  It  is  difiicult  to 
trace  the  progress  of  tliis  theory,  which  rested  on  nobility  of 
blood,  but  yet  so  remarkably  modified  by  the  original  princi- 
ple of  tenure,  that  the  privileges  of  this  nobility  were  ever 
confined  to  the  actual  possessor,  and  did  not  take  his  kindred 
out  of  the  class  of  commoners.  This  sufficiently  demonstrates 
that  the  phrase  is,  so  to  say,  catachrestic,  not  used  in  a  proper 
sense ;  inasmuch  as  the  actual  seizin  of  the  peerage  as  an 
hereditament,  whether  by  writ  or  by  patent,  is  as  much  requi- 
site at  present  for  nobility,  as  the  seizin  of  an  estate  by  barony 
was  in  the  reign  of  Henry  IIL 

Tenure  by  barony  appears  to  have  been  recognized  by  the 
house  of  lonls  in  the  reign  of  Henry  VL,  when  the  earldom 
of  Arundel  was  claimed  as  annexed  to  the  *^  castle,  honor, 
and  lordship  aforesaid.**  The  Lords'  Committee  have  elabo- 
rately disproved  the  allegations  of  descent  and  tenure,  on 
which  this  claim  was  allowed.  (Second  Report,  p.  406-426.) 
But  all  with  which  we  are  concerned  is  tlie  decision  of  the 
crown  and  of  the  house  in  the  11th  year  of  Henry  YLi 


Chap.  YUI.         NATURE  OF  THEIB  SUMMONS.  435 

wlicther  it  were  right  or  wrong  as  to  the  particular  facts  of 
the  case.  And  here  we  find  that  the  king,  by  the  advice  and 
assent  of  the  lords,  ^  considering  that  Richard  Fitzalan,  &C., 
was  seized  of  the  castle,  honor,  and  lordship  in  fee,  and  by 
reason  of  his  possession  thereof,  without  any  other  reason  or 
creation,  was  earl  of  Arundel,  and  held  the  name,  style,  and 
honor  of  earl  of  Arundel,  and  the  place  and  seat  of  earl  of 
Arundel  in  parliament  and  councils  of  the  king,"  &c.,  admits 
him  to  the  same  seat  and  place  as  his  ancestors,  earls  of 
Arundel,  had  held.  This  was  long  afterwards  confirmed  by 
act  of  parliament  (3  Car.  I.),  reciting  the  dignity  of  earl  of 
Arundel  to  be  real  and  loc^,  &c,  and  settling  the  title  on 
certain  persons  in  tail,  with  provisions  against  alienation  of 
the  castle  and  honor.  This  appears  to  establish  a  tenure  by 
barony  in  Arundel,  as  a  recent  determination  had  done  in 
Abergavenny.  Arundel  was  a  very  peculiar  instance  of  an 
earldom  by  tenure.  For  we  cannot  doubt  that  all  earls  were 
peers  of  parliament  by  virtue  of  that  rank,  though,  in  fact,  all 
held  extensive  lands  of  the  crown.  But  in  1GG9  a  new  doc- 
trine, which  probably  had  long  been  floating  among  lawyers 
and  in  the  house  of  lords,  was  laid  down  by  the  king  in  coun- 
cil on  a  claim  to  the  title  of  Fitzwalter.  The  nature  of  a 
barony  by  tenure  having  been  discussed,  it  was  found  ^  to 
have  been  discontinued  for  many  ages,  and  not  in  being "  (a 
proposition  not  very  tenable,  if  we  look  at  the  Abergavenny 
case,  even  setting  aside  that  of  Arundel  as  peculiar  in  its 
character,  and  as  settled  by  statute) ;  ^  and  so  not  fit  to  be  re- 
ceived, or  to  admit  any  pretence  of  right  to  succession  there- 
to." It  is  fair  to  observe  that  some  eminent  judges  were 
present  on  this  occasion.  The  committee  justly  say  tliat  ^  this 
decision"  (which,  after  all,  was  not  in  the  house  of  lords) 
**  may  perhaps  be  considered  as  amounting  to  a  solemn  opin- 
ion that,  although  in  early  times  the  right  to  a  writ  of  sum- 
mons to  parliament  as  a  baron  may  have  been  founded  on 
tenure,  a  contrary  practice  ^liad  prevailed  for  ages,  and  that, 
therefore,  it  was  not  to  be  taken  as  then  forming  part  of  the 
constitutional  law  of  the  land."  (p.  446.)  Thus  ended  bar- 
ony by  tenure.  The  final  decision,  for  such  it  has  been  con- 
sidered, and  recent  attempts  to  revive  the  ancient  doctrine 
have  been  defeated,  has  prevented  many  tedious  investiga- 
tions of  claims  to  baronial  descent,  and  of  alienations  in  times 
long  ])ast.     For  it  could  not  be  pretended  that  every  fraction 


436  BABONS  IN  PARLIAMENT.  Norw  to 

of  a  baronj  gave  a  right  to  summons ;  and,  on  the  other  hand, 
alienations  of  parcels,  and  descents  to  coparceners,  must  have 
been  common,  and  sometimes  difficult  to  disprove.  It  waa 
held,  indeed,  hj  some,  that  the  caput  haronicB^  or  principal 
lordship,  contained,  as  it  were,  the  vital  principle  of  the  peer- 
age, and  that  its  owner  was  the  true  baron ;  but  this  assump- 
tion seems  uncertain. 

It  is  not  very  easy  to  reconcile  this  peremptory  denial  of 
peerage  by  tenure  with  the  proviso  in  the  recent  statute  tak- 
ing away  tenure  by  knight-service,  and,  inasmuch  as  it  con- 
verts all  tenure  into  socage,  that  also  by  barony,  "that  this 
act  shall  not  infringe  or  hurt  any  title  of  honour,  feudal  or  oth- 
er, by  which  any  person  hath  or  may  have  right  to  sit  in  the 
lords'  house  of  parliament,  as  to  his  or  their  title  of  honour,  or 
sitting  in  parliament,  and  the  privilege  belonging  to  them  as 
peers."  (Stat.  12  Car.  II.  c.  24,  s.  11.) 

Surely  this  clause  was  designed  to  preserve  the  incident  to 
baronial  tenure,  the  privilege  of  being  summoned  to  parlia- 
ment, while  it  destroyed  its  original  root,  the  tenure  itself. 
The  privy  council,  in  their  decision  on  the  Fitzwalter  claim, 
did  not  allude  to  this  statute,  probably  on  account  of  the  above 
proviso,  and  seem  to  argue  that,  if  tenure  by  barony  was  no 
longer  in  being,  the  privilege  attached  to  it  must  have  been 
extinguished  also.  It  is,  however,  observable  that  tenure  by 
barony  is  not  taken  away  by  the  statute,  except  by  implica- 
tion. No  act  indeed  can  be  more  loosely  drawn  than  this, 
which  was  to  change  essentially  the  condition  of  landed  prop- 
erty throughout  the  kingdom.  It  literally  abolishes  all  ten- 
ure in  capite  ;  though  this  is  the  basis  of  the  crown's  right 
to  escheat,  and  though  lands  in  common  socage,  which  the  act 
with  a  strange  confusion  opposes  to  socage  in  capite^  were  as 
much  holden  of  the  king  or  other  lord  as  those  by  knight-ser- 
vice. Whether  it  was  intended  by  the  silence  about  tenure 
by  barony  to  pass  it  over  as  obsolete,  or  this  arose  from  negli- 
gence  alone,  it  cannot  be  doubted* that  the  proviso  preserving 
the  right  of  sitting  in  parliament  by  a  feudal  honor  was  intro 
duced  in  order  to  save  that  privilege,  as  well  for  Arundel  and 
Abergavenny  as  for  any  other  that  might  be  entitled  to  it^ 

1  The  eontinnanee  of  Iwrony  by  tennre  poBsessSon  of  Bexkatoy  caatto,  pnbltolMtf 

hail  been  oontroTertcd  by  Sir  Harris  Nioo-  as  an  Appendix  to  his  lieport  of   UM 

Jaa,  in  mime  remarks  on  such  a  claim  L'lsle  Peerage.    In  the  partioular  east 

preferred  by  the  present  earl  Fitsharding  there  seem  to  have  been  sereral  diflieal* 

vhUe  yet  a  commoner,  in  Tirtoe  of  the  ties,  independently  of  the  gnat  onti 


Chat  VIIL  COURT  Of  CHAKCERT.  437 


Note  X.    Page  345. 

The  equitable  jurisdiction  of  the  Court  of  Chaiioery  has 
been  lately  traced,  in  some  respects,  though  not  for  the  special 
purpose  mentioned  in  the  text,  higher  than  the  reign  of  Rich- 
ard IL  This  great  minister  of  the  crown,  as  he  was  at  least 
from  the  time  of  the  conquest,^  always  till  the  reign  of  Ed- 
ward in.  an  ecclesiastic  of  high  dignity,  and  honorably  dis- 
tinguished as  the  keeper  of  the  king*s  conscience,  was  pecu- 
liarly intrusted  with  ihe  duty  of  redressing  the  grievances  of 
the  subject,  both  when  they  sprung  from  misconduct  of  the 
government,  through  its  subordinate  officers,  and  when  the  in- 
jury had  been  inflicted  by  powerful  oppressors.  He  seems 
generally  to  have  been  the  chief  or  president  of  the  council, 
when  it  exerted  that  jurisdiction  which  we  have  been  sketch- 
u^g  in  the  text,  and  which  will  be  the  subject  of  another  note. 
But  he  is  more  prominent  when  presiding  in  a  separate  tribu- 
nal as  a  single  judge. 

The  Court  of  Chancery  is  not  distinctly  to  be  traced  under 
Henry  lU.  For  a  passage  in  Matthew  Paris,  who  says  of 
Radulfus  de  Nevil  —  ^  Brat  regis  fidelissimus  cancellarius,  et 
inconcussa  columna  veritatis,  singulis  sua  jura,  prsBcipue  pau- 
peribus,  just^  reddens  et  indilat^*'  may  be  construed  of  his 
judicial  conduct  in  the  council.  This  province  naturally,  how- 
ever, led  to  a  separation  of  the  two  powers.  And  in  the 
reign  of  Edward  L  we  find  the  king  sending  certain  of  the 
petitions  addressed  to  him,  praying  extraordinary  remedies,  to 
the  chancellor  and  master  of  the  rolls,  or  to  either  separate- 
ly, by  writ  under  the  privy  seal,  which  was  the  usual  mode 
by  which  the  king  delegated  the  exercise  of  his  prerogative 

that,  !d  tlw  rrign  et  Charles  11.,  haronj  tog  the  anthoritj  of  Spelman,  and  foma 

by  tennie  had  been  finally  condemned,  earlier  bat  rather  preourloua  testimony, 

Bat  there  ii  •niely  a  great  general  difll-  whether  the  chancellor  before  the  Con- 

eulty  on  the  opposite  side,  in  the  by-  qaest  was  any  more  than  a  scribe  or 

potheels  that,  while  It  is  aeknowledged  secretary.     Palgnte,  in  the  Quarterly 

that  there  were,  in  the  rdgns  of  Bdward  ReTiew,  zzzir.  291.    The  Anglo-Saxon 

I.  and  Edward  TI.,  certain  known  per-  charters,  as  (hr  as  I  hare  obserred,  nerer 

^soos  hilding  by  barony  and  called  peen  mention  him  as  a  witness ;  which  seems 

of  the  realm,  it  could  have  been  agree-  a  very  strong  circumstance.    Ingnlfus. 

able  to  the  feudal  or  to  the  English  con-  Indeed,  has  gtren  a  pompons  account  of 

sUtntlon  that  the  king,  by  refusing  to  ehanoellor  Tnrketnl ;  and,  if  the  history 

the  posterity  of  such  barons  a  writ  of  ascribed  to  Ingulfns  be  genuine,  tbeofllM 

summons  to  parliament,  might  deprlTe  must  haTe  been  of  high  dignity.    Iiord 

them  of  their  nobility,  and  reduce  them  Campbell  assumes  this  in  his  Utss  of 

forever  to  the  rank  of  eommoners.  the  OhanoeUors 
1 U  has  bean  doubted,  aotwithstawl- 


438  JUBISDICTION  OF  THE  Noras  to 

to  his  council,  directing  them  to  give  such  remedj  as  should 
appear  to  be  consonant  to  honesty  (or  equity,  honestati)* 
"  There  is  reason  to  believe,"  says  Mr.  Spence  (Ekjuitable 
Jurisdiction,  p.  335),  ^<  that  this  was  not  a  novelty."  But  I 
do  not  know  upon  what  grounds  this  is  believed.  Writs,  both 
those  of  course  and  others,  issued  from  Chancery  in  the  same 
reign.  (Palgi*ave's  Essay  on  Ejng's  Council,  p.  15.)  Lord 
Campbell  has  given  a  few  specimens  of  petitions  to  the  coun- 
cil, and  answers  endorsed  upon  them,  in  the  reign  of  Edward 
I.,  communicated  to  him  by  Mr.  Hardy  from  the  records  of 
the  Tower.  In  all  these  the  petitions  are  referred  to  the  chan- 
cellor for  justice.  The  entry,  at  least  as  given  by  lord  Camp- 
bell, is  commonly  so  short  that  we  cannot  always  determine 
whether  the  petition  was  on  account  of  wrongs  by  the  crown 
or  others.  The  following  is  rather  more  clear  than  the  rest : 
'<  18  Edw.  I.  The  king^s  tenants  of  Aulton  complain  that 
Adam  Gordon  ejected  them  from  their  pasture,  contrary  to 
the  tenor  of  the  king's  writ.  Besp.  Veniant  partes  coram 
cancellario,  et  ostendat  ei  Adam  quare  ipsos  ejecit,  et  fiat  iis 
justitia."  Another  is  a  petition  concerning  concealment  of 
dower,  for  which,  perhaps,  there  was  no  legal  remedy. 

In  the  reign  of  Edward  II.  the  peculiar  jurisdiction  of  the 
chancellor  was  still  more  distinctly  marked.  "'  From  petitions 
and  answers  lately  discovered,  it  appears  that  during  this 
reign  tlie  jurisdiction  of  the  Court  of  Chancery  was  consider- 
ably extended,  as  the  ^  consuetudo  cancellarias '  is  oflen  famil- 
iarly mentioned.  We  find  petitions  referred  to  the  chancellor  in 
his  court,  either  separately,  or  in  conjunction  with  the  king's 
justices,  or  the  king's  Serjeants ;  on  disputes  respecting  the 
wardship  of  infants,  partition,  dower,  rent-charges,  tithes, 
and  goods  of  felons.  The  chancellor  was  in  full  possession 
of  his  jurisdiction  over  charities,  and  he  superintended  the 
conduct  of  coroners.  Mere  wrongs,  such  as  malicious  prose- 
cutions and  trespasses  to  personal  property,  are  sometimes  the 
subject  of  proceedings  before  him ;  but  I  apprehend  that 
those  were  cases  where,  from  powerful  combinations  and  con- 
federacies, redress  could  not  be  obtained  in  the  courts  of  com- 
mon law."  (Lives  of  Chanc  voL  i.  p.  204). 
•  Lord  Campbell,  still  with  materials  furnished  by  Mr.  Har- 
dy, has  given  not  less  than  thirty-eight  entries  during  the 
reign  of  Edward  II.,  where  the  petition,  though  sometimes 
directed  to  the  council,  is  referred  to  the  chancellor  for  deter^ 


Chaf.  YUi.       COUHT  OF  CHAKGERT.  439 

mination.  One  only  of  these,  so  far  as  we  can  judge  from 
their  very  brief  expression,  implies  anything  of  an  equitable 
jurisdiction.  It  is  again  a  case  of  dower,  and  the  claimant  is 
remitted  to  the  Chancery ;  **  et  fiat  sibi  ibidem  justitia,  quia 
non  potest  juvari  per  communem  legem  per  breve  de  dote."* 
This  case  is  in  the  Rolls  of  Parliament  (i.  340),  and  had  been 
previously  mentioned  by  Mr.  Bruce  in  a  learaed  memoir  on 
the  Court  of  Star-Chamber.  (Archsologia,  xxv.  345.)  It 
is  difficult  to  say  whether  this  fell  within  the  modem  rules  of 
equity,  but  the  general  principle  is  evidently  the  same. 

Another  petition  is  from  the  commonalty  of  Suffolk  to  the 
council,  complaining  of  false  indictments  and  presentments  in 
courts-leet.  It  is  answered  — '"^  Si  quis  sequi-voluerit  adver- 
Bus  falsos  indicatores  et  procuratores  de  falsis  indictamentis, 
sequatur  in  Cancell.  et  habebit  remedium  consequens."  Sev- 
eral other  entries  in  this  list  are  illustrative  of  the  jurisdiction 
appertaining,  in  fact  at  least,  to  the  council  and  the  chancel- 
lor; and  being  of  so  early  a  reign  form  a  valuable  accession 
to  those  which  later  records  have  furnished  to  Sir  Matthew 
Hale  and  others. 

The  Court  of  Chancery  began  to  decide  causes  as  a  court 
of  equity,  according  to  Mr.  Hardy,  in  the  reign  of  Edward 
III.,  probably  about  22  £dw.  lU.  (Introduction  to  Close 
Bolls,  p.  28.)  Lord  Campbell  would  carry  this  jurisdiction 
higher,  and  the  instances  already  mentioned  may  be  sufficient 
just  to  prove  that  it  had  begun  to  exist.  It  certainly  seems 
no  unnatural  supposition  that  the  great  principle  of  doing  jus- 
tice, by  which  the  council  and  the  chancellor  professed  to  guide 
their  exercise  of  judicature,  may  have  led  them  to  grant  re- 
lief in  some  of  those  numerous  instances  where  the  common 
law  was  defective  or  its  rules  too  technical  and  unbending. 
But,  as  has  been  observed,  the  actual  entries,  as  far  as  quoted, 
do  not  afford  many  precedents  of  equity.  Mr.  Hardy,  indeed, 
suggests  (p.  25)  that  the  Cfttria  Regis  in  the  Norman  period 
proceeded  on  equitable  principles ;  and  that  this  led  to  the 
removal  of  plaints  into  it  from  the  county-court.  This  is, 
perhaps,  not  what  we  should  naturally  presume.  The  subtle 
and  tCMchnical  spirit  of  the  Norman  lawyers  is  precisely  that 
which  leads,  in  legal  procedure,  to  definite  and  unbending 
rules ;  while  in  the  lower  courts,  where  Anglo-Saxon  thanes 
had  ever  judged  by  the  broad  rules  of  justice,  according  to 
the  circumstances  of  the  case,  rather  than  a  strict  line  of  law 


440  JX7BISDICTI0H  OF  THE  Notes  to 

which  did  not  jet  exist,  we  might  expect  to  find  all  the  un- 
certainty and  inconsistency  which  belongs  to  a  system  of  equi- 
ty, until,  as  in  England,  it  has  acquired  by  length  of  time 
the  uniformity  of  law,  but  none  at  least  of  the  technical- 
ity so  characteristic  of  our  Norman  common  law,  and  by 
which  the  great  object  of  judicial  proceedings  was  so  contin- 
ually defeated.  This,  therefore,  does  not  seem  to  me  a  prob- 
able cause  of  the  removal  of  suits  from  the  county  court  or 
court^baron  to  those  of  Westminster.  The  true  reason,  as  I 
have  observed  in  another  place,  was  the  partiality  of  these 
local  tribimals.  And  the  expense  of  trying  a  suit  before  the 
iustices  in  eyre  might  not  be  very  much  greater  than  in  the 
county  court. 

I  conceive,  therefore,  that  the  three  supreme  courts  at  West- 
minster proceeded  upon  those  rules  of  strict  law  which  they  had 
chiefly  themselves  established ;  and  this  from  the  date  of  their 
separation  from  the  original  Owria  Regis,  But  whether  the 
king's  council  may  have  given  more  extensive  remedies  than 
the  common  lav^  afforded,  as  early  at  least  as  the  reign  of . 
Henry  III.,  is  what  we  are  not  competent,  apparently,  to 
affirm  or  deny.  We  are  at  present  only  concerned  with 
the  Ck)urt  of  Chancery.  And  it  will  be  interesting  to  quote 
the  deliberate  opinion  of  a  late  distinguished  writer,  who  has 
taken  a  different  view  of  the  subject  from  any  of  his  prede 
cessors. 

^  Afler  much  deliberation,"  says  Lord  Campbell,  "  I  must 
express  my  clear  conviction  that  the  chancellor's  equitable 
jurisdiction  is  as  indubitable  and  as  ancient  as  his  common- 
law  jurisdiction,  and  that  it  may  be  traced  in  a  manner 
equally  satisfactory.  The  silence  of  Bracton,  Glanvil,  Fleta, 
and  other  early  juridical  writers,  has  been  strongly  relied 
upon  to  disprove  the  equitable  jurisdiction  of  the  chancellor ; 
but  they  as  little  notice  his  common-law  jurisdiction,  most  of 
them  writing  during  the  subsistence  of  the  Aula  Regia  ;  and 
they  all  speak  of  the  Chancery,  not  as  a  court,  but  merely  as 
an  office  for  the  making  and  sealing  of  writs.  There  are  no 
very  early  decisions  of  the  chancellors  on  points  of  law  any 
more  than  of  equity,  to  be  found  in  the  Year-books  or  old 

abridgments By  'equitable  jurisdiction'  must  be 

understood  the  extraordinary  interference  of  the  chancellor, 
without  common-law  process  or  regard  to  the  common-law 
rules  of  proceeding,  upon  the  petition  of  a  party  grieved  who 


Chap.  vm.      COURT  OF  CHANCERY.  441 

was  without  adequate  remedy  in  a  court  of  common  law; 
whereupon  the  opposite  partj  was  compelled  to  appear  and 
to  be  examined,  either  personally  or  upon  written  interroga- 
tories :  and  evidence  being  heard  on  both  sides,  without  the 
interposition  of  a  jury,  an  order  was  made  secundum  mquvm 
et  bonuniy  which  was  enforced  by  imprisonment.  Such  a 
jurisdiction  had  belonged  to  the  Aula  Regict^  and  was  long 
exercised  by  parliltoent;  and,  when  parliament  was  not 
sitting,  by  the  king's  ordinary  council.  Upon  the  dissolution 
of  the  Aula  Regia  many  petitions,  which  parliament  or  the 
council  could  not  conveniently  dispose  of,  were  referred  to 
the  chancellor,  sometimes  with  and  sometimes  without  asses- 
sors. To  avoid  the  circuity  of  applying  to  parliament  or  the 
council,  the  petition  was  very  soon,  in  many  instances,  ad- 
dressed originally  to  the  chEmcellor  himsdf."  (Lives  of 
Chancellors,  i.  7.) 

In  the  latter  part  of  Edward  III.'s  long  reign  this  equitable 
jurisdiction  had  become,  it  is  likely,  of  such  frequent  exercise, 
that  we  may  consider  the  following  brief  smnmary  by  lord 
Campbell  as  probable  by  analogy  and  substantially  true,  if  not 
sustained  in  all  respects  by  the  evidence  that  has  yet  been 
brought  to  light :  —  "  The  jurisdiction  of  the  Court  of  Chan- 
cery was  now  established  in  all  matters  where  its  own  officers 
were  concerned,  in  petitions  of  right  where  an  injury  was  al- 
leged to  be  done  to  a  subject  by  the  king  or  his  officers  in 
relieving  against  judgments  in  courts  of  law  (lord  C.  gives 
two  instances),  and  generally  in  ca^es  of  fraud,  accident^  and 
trust"     (p.  291.) 

In  the  reign  of  Richard  IL  the  writ  of  muhpcena  was  in- 
vented by  John  de  Waltham,  master  of  the  rolls ;  and  to  this 
a  great  importance  seems  to  have  been  attached  at  the  time, 
as  we  may  perceive  by  the  frequent  complaints  of  the  com- 
mons in  parliament,  and  by  the  traditionary  abhorrence  in 
which  the  name  of  the  inventor  was  held.  ^  In  reality,"  says 
lord  CampbeU,  "•  he  first  framed  it  in  its  present  form  when 
a  clerk  in  Chancery  in  the  latter  end  of  the  reign  of  Edward 
IIL;  but  the  invention  consisted  in  merely  adding  to  the 
old  clause,  Quibusdam  certis  de  causis,  the  words '  M  hoc  sitb 
pcma  centum  Ubrarum  ntiUatenus  amUtas  ; '  and  I  am  at  a  loss 
to  conceive  how  such  importance  was  attached  to  it,  or  how 
it  was  supposed  to  have  brought  about  so  complete  a  revolu- 
tion in  equitable  proceedings,  for  the  penalty  was  never  en* 


442  JUBISDICTION  OF  THE  Notbs  tc 

forced ;  and  if  the  party  failed  to  appear,  his  default  waa 
treated,  according  to  the  practice  prevailing  in  our  own  time, 
as  a  contempt  of  court,  and  made  the  foundation  of  oompul« 
sory  process."     (p.  296.) 

The  commons  in  parliament,  whose  sensitiveness  to  public 
grievances  was  by  no  means  accompanied  by  an  equal  sagac- 
ity in  devising  remedies,  had,  probably  without  intention,  vast- 
ly enhanced  the  power  of  the  chancellor  by  a  clause  in  a  re- 
medial act  passed  in  the  thirty-sixth  year  of  Edward  III.,  that, 
'^  If  any  man  that  feeleth  himself  aggrieved  contrary  to  any 
of  the  articles  above  written,  or  others  contained  in  divers 
statutes,. will  come  into  the  Chancery,  or  any  for  him,  and 
thereof  make  his  complaint,  he  shall  presently  there  have 
remedy  by  force  of  the  said  articles  or  statutes,  without  else- 
where pursuing  to  have  remedy .'^  Yet  nothing  could  be  more 
obvious  than  that  the  breach  of  any  statute  was  cognizable 
before  the  courts  of  law.  And  the  mischief  of  permitting 
men  to  be  sued  vexatiously  before  the  chancellor  becoming 
felt,  a  statute  was  enacted,  thirty  years  indeed  after  this  time 
(17  Ric  II.  c  6),  analogous  altogether  to  those  in  the  late 
reign  respecting  the  jurisdiction  of  the  council,  which,  re- 
citing that  '*  people  l^  compelled  to  come  before  the  king^a 
council,  or  in  the  Chancery  by  writs  grounded  on  untrue  sug- 
gestions," provides  that  "  the  chancellor  for  the  time  being, 
presently  after  that  such  suggestions  be  duly  found  and  proved 
untrue,  shall  have  power  to  ordain  and  award  damages,  ac- 
cording to  Ids  discretion,  to  him  which  is  so  troubled  unduly 
as  aforesaid."  "This  remedy,"  lord  Campbell  justly  re- 
marks, "  which  was  referred  to  the  discretion  of  the  chan- 
cellor himself,  whose  jurisdiction  was  to  be  controlled, 
proved,  as  might  be  expected,  wholly  ineffectual ;  but  it  was 
used  as  a  parliamentary  recognition  of  his  jurisdiction,  and 
a  pretence  for  reining  to  establish  any  other  check  on  it.** 
(p.  247.) 

A  few  years  before  this  statute  the  commons  had  petitioned 
(13  Ric.  II.,  Rot  Pari.  iii.  2G9)  that  the  chancellor  might 
make  no  oi*der  against  the  common  law,  and  that  no  one 
should  appear  before  the  chancellor  where  remedy  was  given 
by  the  common  law.  **  This  carries  with  it  an  admission,"  as 
lord  C.  observes,  "  that  a  power  of  jurisdiction  did  reside  in 
the  chancellor,  so  long  as  he  did  not  determine  against  the 
common  law,  nor  interfere  where  the  common  law  furnished 


GiiAP.  VnL  GOUBT  OF  CHAKCERT.  443 

a  remedy.  The  king's  answer, '  that  it  should  continue  as  the 
usage  had  been  heretofore/  clearly  demonstrates  tliat  such  an 
author! t J,  restrained  within  due  bounds,  was  recognized  by 
the  constitution  of  the  country."  (p.  305.) 

The  act  of  17  Ric  II.  seems  to  have  produced  a  greater 
regularity  in  the  pi-oceedings  of  the  court,  and  put  an  end  to 
such  hasty  interference,  on  perhaps  verbal  suggestions,  as  had 
given  rise  to  this  remedial  provision.  From  the  very  year  in 
which  the  statute  was  enacted  we  find  bilk  in  Chancery,  and 
the  answers  to  them,  regularly  filed ;  the  grounds  of  demand- 
ing relief  appear,  and  Uie  chancellor  renders  himself  in  ev- 
ery instance  responsible  for  the  orders  he  has  issued,  by  thus 
showing  that  they  came  within  his  jurisdiction.  There  aro 
certainly  many  among  the  earlier  bills  in  Chancery,  which, 
according  to  the  statute  law  and  the  great  principle  that  they 
were  determinable  in  other  courts,  could  not  have  been  heard; 
but  we  are  unable  to  pronounce  how  far  the  allegation  usual- 
ly contained  or  implied,  that  justice  could  not  be  had  else- 
where, was  founded  on  the  real  circumstances.  A  calendar 
of  these  early  proceedings  (in  abstract)  is  printed  in  the  In- 
troduction to  the  first  volume  of  the  Calendar  of  Chancery 
Proceedings  in  the  Reign  of  Elizabeth,  and  may  also  be  found 
in  Cooper's  Public  Records,  i.  356. 

The  struggle,  however,  in  behalf  of  the  common  law  was  not 
at  an  end.  It  is  more  than  probable  that  the  petitions  against 
encroachments  of  Chancery,  which  fill  the  rolls  under  Henry 
IV.,  Henry  V.,  and  in  the  minority  of  Henry  VI.,  emanated 
from  tliat  numerous  and  je4ilous  body  whose  interests  as  well 
as  prejudices  were  so  deeply  affected.  Certain  it  is  that  the 
commons,  though  now  acknowledging  an  equitable  jurisdiction, 
or  rather  one  more  extensive  than  is  understood  by  the  word 
^  equitable,**  in  the  greatest  judicial  ofiicer  of  the  crown,  did 
not  cease  to  remonstrate  against  his  transgression  of  these 
boundaries.  They  succeeded  so  far,  in  1436,  as  to  obtain  a 
statute  (15  Henry  VI.  c.  4)  in  these  words: — **  For  that  di- 
vers persons  have  before  this  time  been  greatly  vexed  and 
grieved  by  writs  of  suhpcmc^  purchased  for  matters  deter- 
minable by  the  common  law  of  this  land,  to  the  great  damage 
of  such  persons  so  vexed,  in  suspension  and  impediment  of  the 
common  law  as  aforesaid ;  Our  lord  the  king  doth  command 
that  the  statutes  thereof  made  shall  be  duly  observed,  accord- 
ing to  the  fom  and  effect  of  the  same,  and  that  no  writ 


444  GOUBT  OF  GHANCEBT.  Nom  to 

of  iubpcma  be  granted  from  henoeforth  until  surety  be 
found  to  satisfy  the  party  so  grieved  and  vexed  for  his  dam- 
ages and  expenses,  if  so  be  that  the  matter  cannot  be  made 
good  which  is  contained  in  the  bilL"  It  was  the  intention  of 
the  commons,  as  appears  by  the  preamble  of  this  statute  and 
more  fully  by  their  petition  in  Rot  Pari.  (iv.  101),  that  the 
matters  contained  in  the  bill  on  which  the  subpcena  was  issued 
should  be  not  only  true  in  themselves,  but  such  as  could  not 
be  determined  at  common  law.  But  the  king^s  answer  ap- 
pears rather  equivocaL 

The  principle  seems  nevertheless  to  have  been  generally 
established,  about  the  reign  of  Henry  YI.,  that  the  Court  of 
Chancery  exercises  merely  a  remedial  jurisdiction,  not  indeed 
controllable  by  courts  of  law,  unless  possibly  in  such  circum- 
stances as  cannot  be  expected,  but  bound  by  its  general  re- 
sponsibility to  preserve  the  limits  which  ancient  usage  and 
innumerable  precedents  have  imposed.  It  was  at  the  end  of 
this  reign,  and  not  in  that  of  Richard  IL,  according  to  the 
writer  so  often  quoted,  that  the  great  enhancement  of  the 
chancellor's  authority,  by  bringing  feoffments  to  uses  within 
it,  opened  a  new  era  in  the  history  of  our  law.  And  this  the 
judges  brought  on  themselves  by  their  narrow  adherence  to 
technical  notions.  They  now  began  to  discover  this ;  and 
those  of  Edward  IV.,  as  lord  Campbell  well  says,  were  "  very 
bold  men,"  having  repealed  the  statute  de  donis  by  their  own 
authority  in  Taltarum's  case  —  a  stretch  of  judicial  power  be- 
yond any  that  the  Court  of  Chancery  had  ventured  upon* 
They  were  also  exceedingly  jealous  of  that  court ;  and  in  one 
case,  reported  in  the  Year-books  (22  £dw.  lY.  37),  advised 
a  party  to  disobey  an  injunction  fix>m  the  Court  of  Chancery, 
telling  him  that,  if  the  chancellor  committed  him  to  the  Fleet, 
they  would  discharge  the  prisoner  by  habeca  corpus.  (Lord 
Campbell,  p.  894.)  The  case  seems  to  have  been  one  where, 
in  modem  times,  no  injunction  would  have  been  granted,  the 
courts  of  law  being  competent  to  apply  a  remedy. 

Note  XL    Page  347 

This  intricate  subject  has  been  illustrated,  since  the  first 
publication  of  these  volumes,  in  an  Essay  upon  the  original 
Authority  of  the  King's  Council,  by  Sir  Francis  Palgrave 
(1834),  written  with  remarkable  perspicuity  and  freedom 


Ohap.  Vm.  THE  KING'S  COUNCIL.  445 

from  diffusiveness.  But  I  do  not  jet  assent  to  the  jud^ 
ment  of  the  author  as  to  the  legality  of  proceedings  be- 
fore the  council,  which  I  have  represented  as  unconstitu- 
tionaly  and  which  certainly  it  was  the  object  of  pailiament  to 
restrain. 

^It  seems,"  he  says,  ^that  in  the  reign  of  Henry  III.  the 
council  was  considered  as  a  court  of  peers  within  the  terms 
of  Magna  Charta;  and  before  which,  as  a  court  of  original 
jurisdiction,  the  rights  of  tenants  holding  in  capite  or  by 
barony  were  to  be  discussed  and  decided,  and  it  unquestiona- 
bly exercised  a  direct  jurisdiction  over  all  the  king's  subjects  ** 
(p.  34).  The  first  volume  of  Close  Rolls,  published  by  Mr. 
Hardy  since  Sir  F.  Palgrave's  Essay,  contains  no  instances 
of  jurisdiction  exercised  by  the  council  in  the  reign  of  John. 
But  they  begin  immediately  afterwards,  in  the  minority  of 
Henry  III. ;  so  that  we  have  not  only  the  fullest  evidence 
that  the  council  took  on  itself  a  coercive  jurisdiction  in  mat- 
ters of  law  at  that  time,  but  that  it  had  not  done  so  before  : 
for  the  Close  Rolls  of  John  are  so  full  as  to  render  the  nega- 
tive ailment  satisfactory.  It  will,  of  course,  be  understood 
that  I  take  the  facts  on  the  authority  of  Mr.  Hardy  (Intro- 
duction to  Close  Rolls,  vol.  ii.),  whose  diligence  and  accuracy 
are  indisputable.  Thus  tliis  exercise  of  judicial  power  be- 
gan immediately  after  the  Great  Charter.  And  yet,  if  it  is 
to  be  reconciled  with  the  twenty-ninth  section,  it  is  difficult  to 
perceive  in  what  manner  that  celebrated  provision  for  person- 
al liberty  against  the  crown,  which  has  always  been  accounted 
the  most  precious  jewel  in  the  whole  coronet,  the  most  valua- 
ble stipulation  made  at  Runnymede,  and  the  most  enduring 
to  later  times,  could  merit  the  fondness  with  which  it  has  been 
regarded.  ^  Non  super  eum  ibimus,  nee  super  eum  mittemus, 
nisi  per  legale  judicium  parium  suorum,  vel  per  legem  terrae." 
If  it  is  alleged  that  the  jurisdiction  of  the  king's  council  was 
tlie  law  of  the  land,  the  whole  security  falls  to  the  ground 
and  leaves  the  grievance  as  it  stood,  unredressed.  Could  the 
judgment  of  the  council  have  been  reckoned,  as  Sir  F.  Pal- 
grave  supposes,  a  ''judicium  parium  suorum,"  except  perhaps 
in  the  case  of  tenants  in  chief?  The  word  is  commonly  un- 
derstood of  that  trial  per  pais  which,  in  one  form  or  another, 
is  of  immemorial  antiquity  in  our  social  institutions. 

''Though  tliis  jurisdiction,"  he  proceedF,  "was  more  fre- 
quently allied  into  action  when  parliament  was  sitting,  still  il 


446  JTJEISDICTION  OF  Notm  to 

was  no  less  inherent  in  the  council  at  all  other  times ;  and 
until  the  middle  of  the  reign  of  Edward  III.  no  exception  had 
ever  been  taken  to  the  form  of  its  proceedings."  He  sub- 
joins indeed  in  a  note,  "  Unless  the  statute  of  5  £dw.  III.  c 
9,  may  be  considered  as  an  earlier  testimony  against  the  au- 
thority of  the  council.  This,  however,  is  by  no  means  clear, 
and  there  is  no  corresponding  petition  in  the  parliament  roll 
from  which  any  further  information  could  be  obtained"  (p.  34). 

The  irresistible  conclusion  from  this  passage  is,  that  we 
have  been  wholly  mistaken  in  supposing  the  commons  under 
Edward  III.  and  his  successors  to  have  resisted  an  illegal  en- 
croachment of  power  in  the  king's  ordinary  council,  while  it 
had  in  truth  been  exercising  an  ancient  jurisdiction,  never 
restrained  by  law  and  never  complained  of  by  the  subject 
This  would  reverse  our  constitutional  theory  to  no  small  de- 
gree, and  affect  so  much  the  spirit  of  my  own  pages,  that  I 
cannot  suffer  it  to  pass,  coming  on  an  authority  so  respectable, 
without  some  comment  But  why  is  it  asserted  that  this  ju- 
risdiction was  inherent  in  the  council  ?  Why  are  we  to  inter- 
pret Magna  Charta  otherwise  than  according  to  the  natural 
meaning  of  the  words  and  the  concurrent  voice  of  parliament? 
The  silence  of  the  commons  in  parliament  under  Edward  IL 
as  to  this  grievance  wiU  hardly  prove  that  it  was  not  felt, 
when  we  consider  how  few  petitions  of  a  public  nature,  during 
that  reign,  are  on  the  rolls.  But  it  may  be  admitted  that  they 
were  not  so  strenuous  in  demanding  redress,  because  they 
were  of  comparatively  recent  origin  as  an  estate  of  parlia- 
ment, as  they  became  in  the  next  long  reign,  the  most  impor- 
tant, perhaps,  in  our  early  constitutional  history. 

It  is  doubted  by  Sir  F.  Palgrave  whether  the  statute  of  5 
£dw.  III.  c  9,  can  be  considered  as  a  testimony  against  the 
authority  of  the  council.  It  is,  however,  very  natural  so. to 
interpret  it,  when  we  look  at  the  subsequent  statutes  and  peti- 
tions of  the  commons,  directed  for  more  than  a  century  to  the 
same  object  ''No  man  shall  be  taken,"  says  lord  Coke 
(2  Inst  46),  ^that  is,  restrained  of  liberty,  by  petition  or  sug- 
gestion to  the  king  or  to  his  council,  unless  it  be  by  uidict- 
ment  or  presentment  of  good  and  lawful  men,  where  such 
deeds  be  done.  This  branch  and  divers  other  parts  of  this 
act  have  been  wholly  explained  by  divers  acts  of  parliament, 
&c.,  quoted  in  the  margent"  He  then  gives  the  titles  of  six 
statutes,  the  first  being  this  of  5  Edw.  ILL  c  9.     But  let  ua 


Chap.  VHI.  THE  KING'S  COUNCIL.  447 

suppose  that  the  petition  of  the  commons  in  25  Edw.  HI.  de- 
manded an  innovation  in  law,  as  it  certainly  did  in  long-estab- 
lished usage.  And  let  us  admit  what  is  justly  pointed  out 
by  Sir  F.  Palgrave,  that  the  king's  first  answer  to  their  peti- 
tion is  not  commensurate  to  its  request,  and  reserves,  though 
it  is  not  quite  easy  to  see  what,  some  part  of  its  extraordinary 
jurisdiction.^  Still  the  statute  itself,  enacted  on  a  similar  peti- 
tion in  a  subsequent  parliament,  is  explicit  that  ^  none  shall 
be  taken  by  petition  or  suggestion  to  the  king  or  his  council, 
unless  it  be  by  indictment  or  presentment"  (in  a  criminal 
charge),  ''or  by  writ  original  at  the  common  law"  (in  a  civil 
suit),  ''nor  shall  be  put  out  of  his  franchise  of  freehold,  unless 
he  have  been  duly  put  to  answer,  and  forejudged  of  the  same 
by  due  course  of  law." 

Lord  Hale  has  quoted  a  remarkable  passage  from  a  Year- 
book, not  long  after  these  statutes  of  25  Edw.  III.  and  28 
Edw.  IIL,  which,  if  Sir  F.  Palgrave  had  not  overlooked,  he 
would  have  found  not  very  favorable  to  his  high  notions  of 
the  king's  prerogative  in  council.  "In  after  ages,"  says  Hale, 
"the  constant  opinion  and  practice  was  td  disallow  any  rever- 
sals of  judgment  by  the  council,  which  appears  by  the  nota- 
ble case  in  Year-book,  39  Edw.  III.  14."  (Jurisdiction  of 
Lords'  House,  p.  41.)  It  is  indeed  a  notable  case,  wherein 
tihe  chancellor  before  the  council  reverses  a  judgment  of  a 
court  of  law.  "Mes  les  justices  ne  pristoient  nul  regard  al 
reverser  devant  le  council,  par  ceo  que  ce  ne  fust  place  ou 
jugement  purroit  estre  reverse."  If  the  council  could  not 
exercise  this  jurisdiction  on  appeal,  which  is  not  perhaps  ex- 
pressly taken  away  by  any  statute,  much  less- against  the  lan- 
guage of  so  many  statutes  could  they  lawfully  entertain  any 
original  suit     Such,  however,  were  the  vacillations  of  a  mot- 

>  The  word!  of  Um  petitton  and  answer  tempts  on  exeeaoe,  soit  iiilt  oome  ad  eat* 

are  the  following :  —  use  ce*  en  arere."    Bot.  Par.  ii.  22B. 

**  Item,  que  nal  frane  homme  ne  aoit  It  Is  not  eaay  to  pereeive  what  was  r»- 

mys  a  respondre  de  son  franc  tenement,  serred  by  the  words  "  choee  que  tonche 

ne  de  riens  qui  touche  Tie  et  membre,  Tie  ou  membte ; "  for  the  council  never 

fyns  on  redemptions,  par  apposaiUes  de-  determined  these.    Possibly  it  regarded 

▼ant  le  consell  none  seigneur  le  roi,  accusations  of  treason  or  felony,  which 

ne  derant  ses  mlnistres  queconques,  si-  they   might   entertain  as   an   inquest, 

noun  par  proeea  de  ley  de  ces  en  arere  though  they  would  ultimately  be  tried 

Wf9."  by  a  Jury.    Contempts  are  eaaily  under- 

*'  n  plest  a  notre  seigneur  le  roi  que  stood ;  and  by  excesses  were  meant  riots 

Isa  leles  de  son  roialme  soient  tenus  et  and  seditions.    These  political  oflbnoea, 

gardes  en  lour  force,  et  que  nul  hoimme  whkh  could  not  be  always  safely  trie« 

■olt  tenu  a  respondre  de  son  fraunk  tene-  In  a  lower  court.  It  was  che  oonstr.ot 

ment,  sinoun  par  procease  de  l^y :  mes  Intention  of  the  goremmcnt  to  rtmanr* 

te  ehoit  qnatouAh#  ▼!»  on  BMnkbre,  eon-  for  the  counoiL 


" 


448  JURISDICTION  OP  Notes  to 

ley  assemblj,  so  steady  tbe  perseverance  of  government  in 
retaining  its  power,  so  indefinite  the  limits  of  ancient  usage, 
BO  loose  the  phrases  of  remedial  statutes,  passing  sometimes 
by  their  generality  the  intentions  of  those  who  enacted  them, 
so  useful,  we  may  add,  and  almost  indispensable,  was  a  por- 
tion of  those  prerogatives  which  the  crown  exercised  through 
the  council  and  chancery,  that  we  find  soon  afterwards  a  stat- 
ute (37  Edw.  III.  c  18),  which  recognizes  in  some  measure 
those  irregular  proceedings  before  the  council,  by  providing 
only  that  those  who  make  suggestions  to  the  chancellor  and 
great  council,  by  which  men  ai*e  put  in  danger  against  the 
form  of  the  charter,  shall  give  security  for  proving  them. 
This  is  rendered  more  remedial  by  another  act  next  year  (38 
Edw.  III.  c.  9),  which,  however,  leaves  the  liberty  of  making 
such  suggestions  untouched.  The  truth  is,  that  die  act  of  25 
Edw,  III.  went  to  annihilate  the  legal  and  equitable  jurisdic- 
tion of  the  Court  of  Chancery — the  former  of  which  had 
been  long  exercised,  and  the  latter  was  banning  to  spring 
up.  But  the  42  Edw.  HI.  c.  3,  which  seems  to  go  as  far  as 
the  former  in  the  enacting  words,  will  be  found,  according  to 
the  preamble,  to  regard  only  criminal  charges. 

Sir  Francis  Palgrave  maintains  that  the  oouncil  never  in- 
termitted its  authority,  but  on  the  contrary  ''it  continually  as- 
sumed more  consistency  and  order.  It  is  probable  that  the 
long  absences  of  Henry  V.  from  England  invested  this  body 
with  a  greater  degree  of  importance.  After  every  minority 
and  after  every  appointment  of  a  select  or  extraordinary  coun- 
cil by  authority  of  the  legislature,  we  find  that  the  ordinary 
council  acquired  a  fresh  impulse  and  further  powers.  Hence 
the  next  reign  constitutes  a  new  era"  (p.  80).  He  proceeds 
to  give  the  same  passage  which  I  have  quoted  from  Hot  Pari. 
8  Hen.  VI.  vol.  v.  p.  343,  as  well  as  one  in  an  earlier  par- 
liament (2  Hen.  VI.  p.  28).  But  I  bad  neglected  to  state 
the  whole  case  where  I  mention  the  articles  settled  in  parlia- 
ment for  the  regulation  of  the  council.  In  the  first  place,  this 
was  not  the  king's  ordinary  council,  but  one  specially  appointed 
by  the  lords  in  parliament  for  the  government  of  the  realm 
during  his  minority.  They  consisted  of  certain  lords  spir- 
itual and  temporal,  the  chancellor,  the  treasurer,  and  a  few 
commoners.  These  commissioners  delivered  a  schedule  of 
provisions  "  for  the  good  and  the  governance  of  the  land,  which 
the  lords  that  be  of  the  king's  council  de8i«*<)th  **  (p.  28).     It 


Gbaf.VIIL  the  KING'S  COUNCIL.  449 

does  not  explicitly  appear  that  the  commons  assented  to  these 
provisions;  but  it  may  be  presumed,  at  least  in  a  legal  sense, 
bj  their  being  present  and  by  the  schedule  being  delivered 
into  parliament,  ^'baillez  en  meme  le  parlement."  But  in  the 
8  Hen.  VL,  where  the  same  provision  as  to  the  jurisdiction 
of  this  extraordinary  council  is  repeated,  the  articles  are  said, 
after  being  approved  by  the  lords  spiritual  and  temporal,  to 
have  been  read  ^  coram  domino  rege  in  eodem  parliamento, 
in  presentia  trium  regni  statuum"  (p.  343).  It  is  always 
held  that  what  is  expressly  declared  to  be  done  in  presence 
of  all  the  estates  is  an  act  of  parliament. 

We  find,  therefore,  a  recognition  of  the  principle  which  had 
always  been  alleged  in  defence  of  the  ordinary  council  in  this 
parliamentary  confirmation  —  the  principle  that  breaches  of 
the  law,  which  the  law  could  not,  through  the  weakness  of  its 
ministers,  or  corruption,  or  partiality,  sufficiently  repress,  must 
be  reserved  for  the  strong  arm  of  royal  authority.  "Thus,** 
says  Sir  Francis  Palgrave,  "did  the  council  settle  and  define 
its  principles  and  practice.  A  new  tribunal  was  erected, 
and  one  which  obtained  a  virtual  supremacy  over  the 
common  law.  The  exception  reserved  to  their  'discretion' 
of  interfering  wherever  their  lordships  felt  too  much  might 
on  one  side,  and  too  much  unmight  on  the  other,  was  of 
itself  sufficient  to  embrace  almost  every  dispute  or  trial" 
(p.  81). 

But,  in  the  first  place,  this  latitude  of  construction  was  not 
by  any  means  what  the  parliament  meant  to  allow,  nor  could 
it  be  taken,  except  by  wilfully  usurping  powers  never  im- 
parted ;  and,  secondly,  it  was  not  the  ordinary  council  which 
was  thus  constituted  during  the  king's  minority ;  nor  did  the 
jurisdiction  intrusted  to  persons  so  speciaUy  named  in  parlia> 
ment  extend  to  the  regular  officers  of  the  crown.  The  re- 
straining statutes  were  suspended  for  a  time  in  favor  of  a  new 
tribunal.  But  I  have  already  observed  that  there  was  always 
a  dass  of  cases  precisely  of  the  same  kind  as  those  mentioned 
in  the  act  creating  this  tribunal,  tacitly  excluded  from  the  op- 
eration of  those  statutes,  wherein  the  coercive  jurisdiction  of 
the  king's  ordinary  council  had  great  convenience,  namely, 
where  the  course  of  justice  was  obstructed  by  riots,  combina- 
tions of  maintenance,  or  overawing  influence.  And  there  is 
no  doubt  that,  down  to  the  final  abolition  of  the  Court  of  Star 
Chamber  (which  was  no  other  than  the  contilium  ordinarium 

VOL.  II.  ^M.  29 


450  JXTBISDICnON  OF  Nom  to 

nnder  a  different  name),  these  offences  were  cognizable  in  it| 
without  the  regular  forms  of  the  common  law.^ 

"  From  the  reign  of  Edward  IV.  we  do  not  trace  any 
farther  opposition  to  the  authority  either  of  the  chancery  or 
of  the  council.  These  courts  had  become  engrafted  on  the 
constitution ;  and  if  they  excited  fear  or  jealousy,  there  was 
DO  one  who  dared  to  complain.  Yet  additional  parliamen- 
tary sanction  was  not  considered  as  unnecessary  by  Henry 
YIL,  and  in  the  third  year  of  his  reign  an  act  was  passed 
for  giving  the  Court  of  Star  Chamber,  which  had  now 
acquired  its  determinate  name,  further  authority  to  punish 
divers  misdemeanors."     (Palgrave,  p.  97.) 

It  is  really  more  than  we  can  grant  that  the  jurisdiction 
of  the  consilium  ordinarium  had  been  engrailed  on  the  con- 
stitution, when  the  statute-book  was  full  of  laws  to  restrain, 
if  not  to  abrogate  it  The  acts  already  mentioned,  in  the 
reign  of  Henry  VI.,  by  granting  a  temporary  and  limited 
jurisdiction  to  the  council,  demonstrate  that  its  general  exer- 
cise was  not  acknowledged  by  parliament  We  can  only 
say  that  it  may  have  continued  without  remonstrance  in  the 
reign  of  Edward  IV.  I  have  observed  in  the  text  that  the 
Bolls  of  Parliament  under  Edward  IV.  contain  no  com- 
plaints of  grievances.  But  it  is  not  quite  manifest  that  the 
council  did  exercise  in  that  reign  as  much  jurisdiction  as  it 
had  once  done.  Lord  Hale  tells  us  that "'  this  jurisdiction 
was  gradually  brought  into  great  disuse,  though  there  remain 
some  stra<)rgling  footsteps  of  their  proceedings  till  near  3  Hen. 
VII."  (Hist  of  Lords'  Jurisdiction,  p.  38.)  And  the  famous 
statute  in  that  year,  which  erected  a  new  court,  sometimes 
improperly  called  the  Court  of  Star  Chamber,  seems  to  have 
been  prompted  by  a  desire  to  restore,  in  a  new  and  more 
legal  form,  a  jurisdiction  which  was  become  almost  obsolete, 
and,  being  in  contradiction  to  acts  of  parliament,  could  not 
well  be  rendered  effective  without  one.* 

We  cannot  but  discover,  throughout  the  learned  and  lumi- 
nous Essay  on  the  Authority  of  the  King*s  Council,  a  strong 
tendency  to  represent  its  exercise  as  both  constitutional  and 
salutary.  The  former  epithet  cannot,  I  think,  be  possibly 
applicable  in  the  face  of  statute  law ;  for  what  else  determines 
our  constitution  ?     But  it  is  a  problem  with  some,  whether 

>  See  Note  !n  p.  19,  tor  the  statute  81  H.  TI.  fl.  S. 

«  See  CoDBtltntloiua  mstoTT  of  Saglaad,  VOL  i.  p  48.(180.) 


CHAP.Vm.  THE  KING'S  COUNCIL.  451 

the  |X)wers  actually  exerted  by  this  anomalous  court,  admit- 
tinp:  ihem  to  have  been,  at  least  latterly,  in  contravention  of 
many  statutes,  may  not  have  been  rendered  necessary  by  tho 
disorderly  condition  of  society  and  the  comparative  impotence 
of  the  common  law.  This  cannot  easily  be  solved  with  the 
defective  knowledge  that  we  possess.  Sometimes,  no  doubt, 
tlie  ''  might  on  one  side,  and  unmight  on  the  other,"  as  the 
answer  to  a  petition  forcibly  expresses  it,  afforded  a  justifi- 
cation which,  practically  at  least,  the  commons  themselves 
were  content  to  allow.  But  were  these  exceptional  instances 
so  frequent  as  not  to  leave  a  much  greater  number  wherein 
the  legal  remedy  by  suit  before  the  king's  justices  of  assize 
might  have  been  perfectly  effectual  ?  For  we  are  not  con- 
cerned with  the  old  county  courts,  which  were,  perhaps 
tumultuary  and  partial  enough,  but  with  the  regular  admin- 
istration, civil  and  criminal,  before  the  king's  justices  of  oyer 
and  terminer  and  of  gaol  delivery.  Had  not  they,  generally 
speaking,  in  the  reign  of  Edward  I  XL  and  his  successors, 
such  means  of  enforcing  the  execution  of  law  as  lefl  no 
Builicient  pretext  for  recurring  to  an  arbitrary  tribunal? 
Liberty,  we  should  remember,  may  require  the  sacrifice  of 
some  degree  of  security  against  private  wrong,  which  a 
despotic  government)  with  an  unlimited  power  of  restraint, 
can  alone  supply.  If  no  one  were  permitted  to  travel  on 
the  high  road  without  a  license,  or,  as  now  so  usual,  without 
a  passport,  if  no  one  could  keep  arms  without  a  registry,  if 
every  one  might  be  indefinitely  detained  on  suspicion,  the 
evil  doers  of  society  would  be  materially  impeded,  but  at  the 
expense,  to  a  certain  degree,  of  every  man's  freedom  and 
enjoyment.  Freedom  being  but  a  means  to  the  greatest 
good,  times  might  arise  when  it  must  yield  to  the  security  of 
still  higher  blessings ;  but  the  immediate  question  is,  whether 
such  were  the  state  of  society  in  the  fourteenth  and  fifteenth 
centuries.  Now,  that  it  was  lawless  and  insecure,  compara- 
tively with  our  own  times  or  the  times  of  our  fathers  is 
hardly  to  be  disputed.  But  if  it  required  that  arbitrary 
government  which  the  king's  council  were  anxious  to  main- 
tain, the  representatives  of  the  commons  in  parliament, 
knights  and  burgesses,  not  above  the  law,  and  much 
interested  in  the  conservation  of  property,  must  have  com- 
plained very  unreasonably  for  more  than  a  hundred  years. 
They  were  apparently  as  well  able  to  judge  as  our  writers 


452  NA.TURE  OF  THE  MONABCHT.  Notes  to 

can  be ;  and  if  they  reckoned  a  trial  by  jury  at  nisi  prius 
more  likely,  on  the  whole,  to  insure  a  just  adjudication  of  a 
civil  sait,  than  one  before  the  great  officers  of  state  and  other 
constituent  members  of  the  oi^linary  council,  it  does  not  seem 
clear  to  me  that  we  have  a  right  to  assert  the  contrary. 
This  mode  of  trial  by  jury,  as  has  been  seen  in  another 
place,  had  acquired,  by  the  beginning  of  the  fifteenth  century, 
its  present  form  ;  and  considering  the  great  authority  of  the 
judges  of  assize,  it  may  not,  probably,  have  given  very 
frequent  occasion  for  complaint  of  partiality  or  corrupt 
influence. 

Note  XIL    Page  358. 

The  learned  author  of  the  Inquiry  into  the  Rise  and  Growth 
of  the  Royal  Prerogative  in  England  has  founded  his  histori- 
cal theory  on  the  confusion  whidi  he  supposes  to  have  grown 
up  between  the  ideal  king  of  the  constitution  and  the  personal 
king  on  the  throne.  By  the  former  he  means  the  personifi- 
cation of  abstract  principles,  sovereign  power,  and  absolute 
justice,  which  the  Law  attributes  to  the  gentis  king,  but  which 
flattery  or  other  motives  have  transferred  to  the  possessor  of 
the  crown  for  the  time  being,  and  have  thus  changed  the  Teu- 
tonic caitiff,  the  flrst  man  of  the  commonwealth,  the  man  of 
the  highest  weregild,  the  man  who  was  so  much  responsible 
that  he  might  be  sued  for  damages  in  his  own  courts  or  de» 
posed  for  misgovernment,  into  the  sole  irresponsible  person 
of  indefeasible  prerogatives,  of  attributes  almost  divine,  whom 
Bracton  and  a  long  series  of  subsequent  lawyers  raised  up  to 
a  height  far  beyond  the  theory  of  our  early  constitution. 

This  is  supported  with  great  acuteness  and  learning ;  nor 
is  it  possible  to  deny  that  the  king  of  England,  as  the  law* 
books  represent  him,  is  considerably  diflerent  from  what  we 
generally  conceive  an  ancient  German  chieflain  to  have  been. 
Yet  I  doubt  whether  Mr.  Allen  has  not  laid  too  much  stress 
on  this,  and  given  to  the  fictions  of  law  a  greater  influence 
tlian  they  possessed  in  those  times  to  which  his  inquiry  re- 
lates ;  and  whether,  also,  what  he  calls  the  monarchical  the- 
ory was  so  much  derived  from  foreign  sources  as  he  appre- 
hends. We  have  no  occasion  to  seek,  in  the  systems  of  civil* 
ians  or  the  dogmas  of  churchmen,  what  arose  from  a  deep- 
eeated  principle  of  human  nature.     A  king  is  a  person ;  to 


Chap.  Yin.         KATUKE  OF  THE  MOKABCHT.  453 

persons  alone  we  attach  the  attributes  of  power  and  wisdom ; 
on  persons  we  bestow  our  affection  or  our  ill-will.  An  ab- 
straction, a  politic  idea  of  royalty,  is  convenient  for  lawyers ; 
it  suits  the  speculative  reasoner,  but  it  never  can  become  so 
familiar  to  a  people,  especially  one  too  rude  to  have  listened 
to  such  reasoners,  as  the  simple  image  of  the  king,  the  one 
man  whom  we  are  to  love  and  to  fear.  The  other  idea  is  a 
sort  of  monarchical  pantheism,  of  which  the  vanishing  point 
is  a  republic  And  to  this  the  prevalent  theory,  that  kingB 
are  to  reign  but  not  to  govern,  cannot  but  lead.  It  is  a  plaus^ 
ible,  and  in  the  main,  perhaps,  for  the  times  we  have  reached, 
a  necessary  theory ;  but  it  renders  monarchy  ultimately  scarce- 
ly possible.  And  it  was  neither  the  sentiment  of  the  Anglo- 
Saxons,  nor  6i  the  Norman  baronage ;  the  feudal  relation  was 
essentially  and  exclusively  personal ;  and  if  we  had  not  enough, 
in  a  more  universal  feeling  of  human  nature,  to  account  for 
loyalty,  we  could  not  mistake  its  inevitable  connection  with 
the  fealty  and  homage  of  the  vassaL  The  influence  of  Ro- 
man notions  was  not  inconsiderable  upon  the  continent ;  but 
they  never  prevailed  very  much  here ;  and  though,  afler  the 
close  alliance  between  the  church  and  state  established  by  the 
Reformation,  the  whole  weight  of  the  former  was  thrown  into 
the  scale  of  the  crown,  the  mediaeval  clergy,  as  I  have  ob- 
served in  the  text,  were  anything  rather  than  upholders  of 
despotic  power. 

It  may  be  very  true  that,  by  considering  the  monarchy  as 
amena/politicid  institution,  ihe  scheme  of  prudent  me^  to 
avoid  confusion,  and  confer  the  minimum  of  personal  author- 
ity on  the  reigning  prince,  the  prindple  of  his  irresponsibiHty 
seems  to  be  better  maintained.  But  the  question  to  which  we 
are  turning  our  eyes  is  not  a  political  one ;  it  relates  to  the 
positive  law  and  positive  sentiments  of  the  English  nation  in 
the  mediaeval  period.  And  here  I  cannot  put  a  few  necessa- 
ry fictions  grown  up  in  the  oourte,  such  as,  the  king  never 
dies,  the  king  can  do  no  wrong,  the  king  is  everywhere,'against 
the  tenor  of  our  constitutionid  language,  which  implies  an  act* 
nal  and  active  personality.  Mr.  Allen  acknowledges  that  the 
act  against  the  Dispensers  under  Edward  II.,  and  recon« 
firmed  after  its  repeal,  for  promulgating  the  doctrine  that  al- 
legiance had  more  regard  to  the  crown  than  to  the  person  of 
the  king^  ^  seems  to  establish,  as  the  deliberate  opinion  of  th6 


454  NATUKE  OF  THE  MONARCHY.  Norw  to 

legislatare,  that  allegiance  is  due  to  the  person  of  the  king 
genemlly,  and  not  merely  to  his  crown  or  politic  capacity,  so 
as  to  be  released  and  destroyed  by  his  misgovemment  of  the 
kingdom  "  (p.  14) ;  which,  he  adds,  is  not  easily  reconcilable 
with  the  deposition  of  Richard  II.  But  that  was  accomplished 
by  force,  with  whatever  formalities  it  may  have  been  thought 
expedient  to  surround  it. 

We  cannot,  however,  infer  from  the  declaration  of  the 
legislature,  that  allegiance  is  due  to  the  king's  person  and  not 
to  his  politic  capacity,  any  such  consequence  as  that  it  is  not, 
in  any  possible  case,  to  be  released  by  his  misgovemment 
This  was  surely  not  in*  the  spirit  of  any  parliament  under 
Edward  II.  or  Edward  III. ;  and  it  is  predsely  because  alle- 
giance is  due  to  the  person,  that,  upon  either  feudal  or  natural 
principles,  it  might  be  cancelled  by  personal  misconduct.  A 
contrary  language  was  undoubtedly  held  under  the  Stuarts ; 
but  it  was  not  that  of  the  medisBval  period. 

The  tenet  of  our  law,  that  all  the  soil  belongs  theoretically 
to  the  king,  is  undoubtedly  an  enormous  fiction,  and  very 
repugnant  to  the  barbaric  theory  preserved  by  the  Saxons, 
that  all  unappropriated  land  belonged  to  the  folk,  and  was 
unalienable  without  its  consent.^  It  was,  however,  but  an 
extension  of  the  feudal  tenure  to  the  whole  kingdom,  and 
rested  on  the  personality  of  feudal  homage.  William  estab- 
lished it  more  by  his  power  than  by  any  theory  of  lawyers ; 
though  doubtless  his  successors  often  found  lawyers  as  ready 
to  shape  the  acts  of  power  into  a  theory  as  if  they  had 
originally  projected  them.  And  thus  grew  up  the  high 
schemes  of  prerogative,  which,  for  many  centuries,  were  in 
conflict  with  those  of  liberty.  We  are  not  able,  nevertheless, 
to  define  the  constitutional  authority  of  the  Saxon  kings ;  it 
was  not  legislative,  nor  was  that  of  William  and  his  suo- 
cessors  ever  such ;  it  was  not  exclusive  of  redress  for  private 
wrong,  nor  was  this  ever  the  theory  of  English  law,  though 
the  method  of  remedy  might  not  be  sufficiently  effective ;  yet  it 
had  certainly  grown  before  the  Conquest,  with  no  help  from 
Roman  notions,  to  something  very  unlike  that  of  the  German 
kings  in  Tacitus. 

1  It  hat  been  mentioned  lo  a  former    fbloland  bud  acqnired  the  appellfttiOB  Nr- 
aoto,  on  Mr.  AUen'i  authority,  that  the    ra  ngis  before  the  Cooqueet. 


Chap.  VIIL       VILI.ENAGE  OF  THE  PEASANTRY.  456 


Note  Xin.    Page  372. 

The  reduction  of  the  free  ceorls  into  villenage,  especially 
if  as  general  as  is  usuallj  assumed,  id  one  of  the  most  re- 
markable innovations  during  the  Anglo-Norman  period ;  and 
one  which,  as  far  as  our  published  records  extend,  we  cannot 
wholly  explain.  Observations  have  been  made  on  it  bj  IVIr. 
Wright,  in  the  Archsoologia  (vol.  xxx.  p.  225).  After 
adverting  to  the  oppression  of  the  peasants  in  Normandy 
which  produced  several  rebellions,  he  proceeds  thus:  — 
^  These  feelings  of  hatred  and  contempt  for  the  peasantry 
were  brought  into  our  island  by  the  Norman  barons  in  the 
latter  half  of  the  eleventh  century.  The  Saxon  laws  and 
customs  continued ;  but  the  Normans  acted  as  the  Franks 
had  done  towards  the  Roman  coloni ;  they  enforced  with 
harshness  the  laws  which  were  in  their  own  favor,  and 
gradually  threw  aside,  or  broke  through,  those  which  were 
in  favor  of  the  miserable  seif." 

In  the  Laws  of  Henry  I.  we  find  the  weregild  of  the 
twyhinder,  or  villein,  set.  at  200  shilling  in  Wessex,  "  quad 
caput  regni  est  et  legum*'  (c  70).  But  this  expression 
argues  an  Anglo-Saxon  source ;  and,  in  fact,  so  much  in  that 
treatise  seems  to  be  copied,  without  regard  to  the  change  of 
times,  from  old  authorities,  mixed  up  with  provisions  of  a 
feudal  or  Norman  character,  that  we  hardly  know  how  to 
distinguish  what  belongs  to  each  period.  It  is  far  from 
improbable  that  villenage,  in  the  sense  the  word  afterwards 
bore,  that  is,  an  absolutely  servile  tenure  of  lands,  not  only 
without  legal  rights  over  them,  but  with  an  incapacity  of  ac- 
quiring either  immovable  or  movable  property  against  the  lord, 
may  have  made  considerable  strides  before  the  reign  of 
Henry  11.^  But  unless  light  should  be  thrown  on  its  history 
by  the  publication  of  more  records,  it  seems  almost  impossible 
to  determine  the  introduction  of  predial  villenage  more  pre- 
cisely than  to  say  it  does  not  appear  in  the  laws  of  England 
at  the  Ck>nquest,  and  it  does  so  in  the  time  of  Glanvil.     Mr. 

t  A  prarampUTe  proof  of  thb  mnj  b«  portion  of  the  three  climiies  of  men  Is  al- 

dmwD  from  »  ehftpter  in  tha  Lnira  of  most  the  only  part  tbnt  appear*  erident. 

Henry  I.  e.  81,  where  the  penalty  paya-  The  cotset,  who  is  often  mentioned  in 

ble  by  a  TiUeln  fbr  certain  petty  oOeoces  Domefidayf  may  thns  have  been  an  inlh- 

In  net  at  thirty  penra ;  that  of  a  eotut  at  rior  rillein,  nearly  similar  to  what  Okn* 

fifteen  ;  and  of  a  theow  at  six.    The  pas-  tU  and  later  law-bo(4u  call  soeli. 
Mffs  U  extramelj  obscure  ;  and  this  pro- 


456  VILLEKAGE  OF  Notes  to 

Wright's  Memoir  in  tlie  Archseologia,  above  quoted,  contams 
some  interesting  matter;  but  he  has  too  much  confounded 
the  theowy  or  Anglo-Saxon  slave,  with  the  cearl;  not  even 
mentioning  the  latter,  though  it  is  indisputable  that  viUamu 
is  the  equivalent  of  cearly  and  serviu  of  theow. 

But  I  suspect  that  Wc  go  a  great  deal  too  far  in  setting 
down  the  descendants  of  these  ceorls,  that  is,  the  whole 
Anglo-Saxon  population  except  thanes  and  burgesses,  as 
almost  universally  to  be  counted  such  villeins  as  we  read  of 
in  our  law-books,  or  in  concluding  that  the  cultivators  of  the 
land,  even  in  the  thirteenth  century,  were  wholly,  or  at  least 
generally,  servile.  It  is  not  only  evident  that  small  free* 
holders  were  always  numerous,  but  we  are,  perhaps,  greatly  de- 
ceived in  fancying  that  the  occupiers  of  villein  tenements  were 
usually  villeins.  T€rre-4enants  en  viUenage  and  tenants  par 
copte,  who  were  undoubtedly  free,  appear  in  the  early  Year* 
books,  and  we  know  not  why  they  may  not  always  have  ex- 
isted.^ This,  however,  is  a  subject  which  I  am  not  sufficiently 
conversant  with  records  to  explore ;  it  deserves  the  attention 
of  those  well-informed  and  diligent  antiquaries  whom  we  pos- 
sess. Meantime  it  is  to  be  observed  that  the  lands  occupied 
by  mllani  or  hordariiy  according  to  the  Domesday  survey, 
were  much  more  extensive  than  the  copyholds  of  the  present 
day  ;  and  making  every  allowance  for  enfranchisements,  we 
can  hardly  believe  that  all  tliese  lands,  being,  in  fact,  by  far 
the  greater  part  of  the  soil,  were  the  vxUenagia  of  Glanvil'a 
and  Bracton's  age.  It  would  be  interesting  to  ascertain  at 
what  time  the  latter  were  distinguished  from  libera  tene- 
menia ;  at  what  time,  that  is,  the  distinction  of  territorial 
servitude,  independent  as  it  was  of  the  personal  state  of  the 
occupant,  was  established  in  England. 


Note  XIV.    Page  374. 

This  identity  of  condition  between  the  villein  regardant 
and  in  gross  appears  to  have  been,  even  lately,  called  in 
question,  and  some  adhere  to  the  theory  which  supposes  an 

1  The  IbllowiDg  paarage  in  tbe  Chroni*  coidAin  AngUco  natione,  gUhm  adsenptOy 

«le  of  Brakelond  does  not  mentloo  any  de  et^as  fidelitato  plenias  conlldebat  qute 

manumfanlon  of  the  ceorl  on  whom  abbot  bonus  areola  erat,  et  quia  naidebat  lo« 

Samson   conferral  a   manor  :  —  Unum  qui  QalUoe.    p.  2i. 
tolom  maDeriom  oarta  aoa  oonfirmaTit 


Chat.  VUL        THE  PEASANTBT.  457 

inferiority  in  the  latter.     Tlie  following  considerations  will 
prove  that  I  have  not  been  mistaken  in  rejecting  it :  — 

I.  It  will  not  be  contended  that  the  words  ^  re<nirdant  ^ 
and  *^in  gross*'  indicate  of  themselves  any  specific  difierence 
between  the  two,  or  can  mean  anything  but  the  title  by  which 
the  villein  was  held ;  prescriptive  and  territorial  in  one  case, 
absolute  in  the  other.  For  the  proof,  therefore,  of  any  such 
difference  we  require  some  ancient  authority,  which  has  not 
been  given.  II.  The  villein  regardant  might  be  severed 
from  the  manor,  with  or  without  land,  and  would  then  become 
a  villein  in  gross.  If  he  was  sold  as  a  domestic  serf,  he 
might,  perhaps,  be  practically  in  a  lower  condition  than 
before,  but  his  legal  state  was  the  same.  If  he  was  aliened 
with  lands,  parcel  of  the  manor,  as  in  the  case  of  its  descent 
to  coparceners  who  made  partition,  he  would  no  longer  be 
regardant,  because  that  implied  a  prescriptive  dependence  on 
the  lord,  but  would  occupy  the  same  tenements  and  be  in 
exactly  the  same  position  as  before.  ^  Villein,  in  gross,"  says 
Littleton,  ^  is  where  a  man  is  seised  of  a  manor  whereunto  a 
villein  is  regardant,  and  granteth  the  same  villein  by  deed  to 
another;  then  he  is  a  villein  in  gross,  and  not  regardant.** 
(Sect  181.)  IIL  The  servitude  of  all  villeins  was  so  com- 
plete that  we  cannot  conceive  degrees  in  it.  No  one  could 
purchase  lands  or  possess  goods  of  his  own ;  we  do  not  find 
that  any  one,  being  strictly  a  villein,  held  by  certain  services ; 
**  he  must  have  regard,"  says  Coke,  ^  to  that  which  is  com- 
manded unto  him ;  or,  in  the  words  of  Bracton,  *  a  quo  prad- 
standum  servitium  incertum  et  indeterminatum,  ubi  scire  non 
poterit  vespere  quod  servitium  fieri  debet  mane.'"  (Co. 
Lit.  120,  b.)  How  could  a  villein  in  gross  be  lower  than  this  ? 
It  is  true  that  the  villein  had  one  inestimable  advantage  over 
the  American  negro,  that  he  was  a  freeman,  except  relatively 
to  his  lord;  possibly  he  might  be  better  protected  against 
personal  injury ;   but  in  his  incapacity  of  acquiring  secure 

froperty,  or  of  refusing  labor,  he  was  just  on  the  same  footing, 
t  may  be  conjectured  that  some  villeins  in  gross  were  de- 
scended from  the  serviy  of  whom  we  find  25,000  enumerated 
in  Domesday.  Littleton  says,  *^  If  a  man  and  his  ancestors, 
whose  heir  he  is,  have  been  seised  of  a  villein  and  of  his 
ancestors,  as  of  villeins  in  gross,  time  out  of  memory  of  man, 
these  are  villeins  in  gross."  (Sect  182.) 
It  has  been  often  asserted  that  villeins  in  gross  seem  not  to 


458  VILLENAGE  OF  THE  PEASANTRY.  Notes  t© 

liave  been  a  numerous  class,  and  it  might  not  be  easy  to  ad- 
duce distinct  instances  of  them  in  the  fourteenth  and  fifteenth 
centuries,  though  we  should  scarcely  infer,  from  the  pains 
Littleton  takes  to  describe  them,  that  none  were  left  in  his 
time.  But  some  may  be  found  in  an  earlier  age.  In  the 
ninth  of  John,  William  sued  Ralph  the  priest  for  granting 
awaj  lands  which  he  held  to  Canford  priorj.  Ralph  pleaded 
that  thej  were  his  freehold.  William  replied  that  he  held 
them  in  villenage,  and  that  he  (the  plaintiff)  had  sold  one  of 
Ralph's  sisters  for  four  shillings.  (Blomefield's  Norfolk,  yoL 
iii.  p.  860,  4to  edition.)  And  Mr.  Wright  has  found  in 
Madox's  Formulare  Anglicanum  not  less  than  five  instances 
of  YiUeins  sold  with  their  family  and  chattels,  but  without 
land.  (Archaeologia,  xxx.  228.)  Even  where  they  were 
sold  along  with  land,  unless  it  were  a  manor,  they  would,  as 
has  been  observed  before,  have  been  villeins  in  gross.  I  have, 
however,  been  informed  that  in  valuations  under  escheats  in 
the  old  records  a  separate  value  is  never  put  upon  villeins ; 
their  alienation  without  the  land  was  apparently  not  contem- 
plated. Few  cases  concerning  viUeins  in  gross,  it  has  been 
said,  occur  in  the  Year-books;  but  villenage  of  any  kind 
does  not  furnish  a  great  many ;  and  in  several  I  do  not  per- 
ceive, in  consulting  the  report,  that  the  party  can  be  shown 
to  have  been  regardant.  One  reason  why  villeins  in  gross 
should  have  become  less  and  less  numerous  was  that  they 
could,  for  the  most  part,  only  be  claimed  by  showing  a  writ- 
ten grant,  or  by  prescription  through  descent ;  so  that,  if  the 
title-deed  were  lost,  or  the  descent  unproved,  the  villein  be- 
came free. 

Manumissions  were  often,  no  doubt,  gratuitous;  in  some 
cases  the  villein  seems  to  have  purchased  his  freedom.  For 
though  in  strictness,  as  Glanvil  tells  us,  he  could  not  ^'libei^ 
tatem  suam  suis  denariis  queerere,"  inasmuch  as  all  he  pos- 
sessed already  belonged  to  the  lord,  it  would  have  been  thought 
a  meanness  to  insist  on  so  extreme  a  right.  In  order,  how- 
ever, to  make  the  deed  more  secure,  it  was  usual  to  insert  the 
name  of  a  third  person  as  paying  the  consideration-money 
for  the  enfranchisement.     (Archseologia,  xxx.  228.) 

It  appears  not  by  any  means  improbable  that  regular  mon- 
ey payments,  or  other  fixed  liabilities,  were  often  substituted 
instead  of  uncertain  services  for  the  benefit  of  the  lord  as 
well  as  the  tenant.     And  when  these  had  lasted  a  oonsidera- 


\ 


CiUF.  Vm.  POPULAB  POETRY.  45& 

ble  time  in  any  manor,  the  yillenage  of  the  latter,  ^nthout  any 
manumiasion,  would  have  expired  by  desuetude.  But,  per« 
haps,  an  entry  of  his  tenure  on  the  court-roll,  with  a  copy 
given  to  himself,  would  operate  of  itself,  in  construction  of 
Uiw,  as  a  manumission.    This  I  do  not  pretend  to  determine. 

Note  XV.    Page  379. 

The  public  histoiy  of  Europe  in  the  middle  ages  inade- 
quately represents  the  popular  sentiment,  or  only  when  it  it 
expressed  too  loudly  to  escape  the  regard  of  writers  intent 
sometimes  on  less  important  subjects.  But  when  we  descend 
below  the  surface,  a  sullen  murmur  of  discontent  meets  the 
ear,  and  we  perceive  that  mankind  was  not  more  insensible  to 
wrongs  and  sufferings  than  at  present  Besides  the  various 
outbreakings  of  the  people  in  several  counties,  and  their  com- 
plaints in  parliament,  after  the  commons  obtained  a  represen- 
tation,  we  gain  a  conclusive  insight  into  the  spirit  of  the  times 
by  their  popular  poetry.  Two  very  interesting  collections  of 
this  kind  have  been  lately  published  by  the  Camden  Society^ 
through  the  diligence  of  Mr.  Thomas  Wright ;  one,  the  Po- 
ems attributed  to  Walter  Mapes;  the  other,  the  Political 
Songs  of  England,  from  John  to  Edward  II. 

Mapes  lived  under  Henry  II.,  and  has  long  been  known  as 
the  reputed  author  of  humorous  Latin  verses ;  but  it  seems 
much  more  probable,  that  the  far  greater  part  of  the  oolleo- 
tion  lately  printed  is  not  from  his  hand.  They  may  pass,  not 
for  the  production  of  a  single  person,  but  rather  of  a  class, 
during  many  years,  or,  in  general  words,  a  century,  ending 
with  the  death  of  Henry  III.  in  1272.  Many  of  them  are 
professedly  written  by  an  imaginary  Grolias. 

'^They  are  not  the  expressions  of  hostility  of  one  man 
against  an  order  of  monks,  but  of  the  indignant  patriotism 
of  a  considerable  portion  cf  the  English  nation  against  the 
encroachments  of  civU  and  ecclesiastical  tyranny."  (Intro- 
duction to  Poems  ascribed  to  Walter  Mapes,  p.  21.)  The 
poems  in  this  collection  reflect  almost  entirely  on  the  pope 
and  the  higher  clergy.  They  are  all  in  rhyming  Latin,  and 
chiefly,  though  with  exceptions,  in  the  loose  trochaic  metre 
called  Leonine.  The  authors,  therefore,  must  have  been 
derks,  actuated  by  the  spirit  which,  in  a  church  of  great  in- 
equality in  its  endowments,  and  with  a  very  numerous  body 


460  POPULAR  POETBT.         Norw  10 

of  poor  clergy,  is  apt  to  gain  strength,  but  certainly,  as  eode- 
siastical  liistoiy  bears  witness,  not  one  of  mere  envions  ma- 
lignity towards  the  prelates  and  the  court  of  Rome.  These 
deserved  nothing  better,  in  the  thirteenth  century,  than  biting 
satire  and  indignant  reproof,  and  the  poets  were  willing  enough 
to  bestow  both. 

But  this  popular  poetry  of  the  middle  ages  did  not  confine 
itself  to  the  church.  In  the  collection  entitled  'Political 
Songs'  we  have  some  reflecting  on  Henry  III.,  some  on  the 
general  administration.  The  famous  song  on  the  battle  of 
I^ewes  in  1264  is  the  earliest  in  English ;  but  in  the  reign  of 
Edward  I.  several  occur  in  that  language.  Others  are  in 
French  or  in  Latin ;  one  complaining  of  the  taxes  is  in  an 
odd  mixture  of  these  two  languages ;  which,  indeed,  is  not 
without  other  examples  in  mediaeval  poetry.  These  Latin 
songs  could  not,  of  course,  have  been  generally  understood. 
But  what  the  priests  sung  in  Latin,  they  said  in  English ; 
the  lower  clergy  fanned  the  flame,  and  gave  utterance  to 
what  others  felt.  It  may,  perhaps,  be  remarked,  as  a  proof 
of  general  sympathy  with  the  democratic  spirit  which  was 
then  fermenting,  that  we  have  a  song  of  exultation  on  the 
great  defeat  which  Philip  IV.  had  just  sustained  at  Gourtrai^ 
in  1302,  by  the  burgesses  of  the  Flemish  cities,  on  whose 
liberties  he  had  attempted  to  trample  (p.  187).  It  is  true 
that  Edward  L  was  on  ill  terms  with  France,  but  the  politi- 
cal interests  of  the  king  would  not,  perhaps,  have  dictated  the 
popular  ballad. 

It  was  an  idle  exaggeration  in  him  who  said  that,  if  he 
could  make  the  ballads  of  a  people,  any  one  might  make 
their  laws.  Ballads,  like  the  press,  and  especially  that  por- 
tion of  the  press  which  bears  most  analogy  to  them,  generally 
speaking,  give  vent  to  a  spirit  which  has  been  at  work  before. 
But  they  had,  no  doubt,  an  influence  in  rendering  more  de* 
terminate,  as  well  as  more  active,  that  resentment  of  wrong, 
that  indignation  at  triumphant  oppression,  that  belief  in  the 
vices  of  the  great,  which,  too  oflen  for  social  peace  and  their 
own  happiness,  are  cherished  by  the  poor.  In  comparison, 
indeed,  with  the  efficacy  of  the  modem  press,  the  power  of 
ballads  is  trifling.  Tbeur  lively  sprightluiess,  the  humorous 
lone  of  their  satire,  even  their  metrical  form,  sheathe  the 
sting ;  and  it  is  only  in  times  when  political  bitterness  is  at 
its  height  that  any  considerable  influence  can  be  attached  to 


Chap.  VUL  POPULAR  POETRY.  461 

them,  and  then  it  becomes  undistinguishable  from  more  en* 
ergetic  motives.  Those  which  we  read  in  the  collection 
above  mentioned  appear  to  me  rather  the  signs  of  popular 
discontent  than  greatly  calculated  to  enhance  it.  In  that 
sense  they  are  very  interesting,  and  we  canpot  but  desire  to 
see  the  promised  continuation  to  the  end  of  Richard  II/s 
reign.^  They  are  said  to  have  become  afterwards  less  fre- 
quent, though  the  wars  of  the  Roses  were  likely  to  bring 
them  forward. 

Some  of  the  political  songs  are  written  in  France,  though 
relating  to  our  kings  John  and  Henry  III.  Deducting  these, 
we  have  two  in  Latin  for  the  former  reign ;  seven  in  Latin, 
three  in  French  (or  what  the  editor  calls  Anglo-Norman, 
which  is  really  the  same  tiling),  one  in  a  mixture  of  the  two, 
and  one  in  English,  for  the  reign  of  Henry  III.  In  the 
reigns  of  Edwai'd  I.  and  Edward  II.  we  have  eight  in  Latin, 
three  in  French,  nine  in  English,  and  four  in  mixed  lan- 
guages; a*  style  employed  probably  for  amusement.  It  must 
be  observed  that  a  large  proportion  of  these  songs. contain 
panegyric  and  exultation  on  victory  rather  than  satire ;  and 
that  of  the  satire  much  is  general,  and  much  falls  on  the 
church;  so  that  the  animadversions  on  the  king  and  the 
nobility  are  not  very  frequent,  though  with  considerable  bold- 
ness ;  but  this  is  more  shown  in  the  Latin  than  the  English 
poems. 

1  Mr.  Wright  hai  girm  %  ftir  sped-  nay  reckon  Pfan  Ptowman  an  iDitanoa 

nraa  in  Kimnja  on  eha  Uteraturs  and  of  popular  fatirti  Uioiigh  tu  tuparior  to 

Popular  Superstition  of  Bnglaod  in  tiM  kho  rart 
AfM,  ToL  i.  p.  267.   In  Im4  w» 


462  INTRODUCTION.  Chap.  IX.  Paw  L 


CHAPTER  rSJ 

ON  THE  8TATB  OF  80CIETT  IN  BUROPB  DUKING  THB 

MIDDLE  AGES. 


PART  L 


EDtrodoetlan — DeeHiM  of  Lltemture  io  the  Utter  Period  of  the  Hobuiii  Bmplve-* 
Ite  CaoMe — Oormptioii  of  the  Letin  Language  —  Means  by  whleh  It  was  dlacted 

—  FormatloD  of  new  Languages  —  Oeneral  Tgnonnce  of  the  Dark  Ages — Siaarci^ 
of  Books — Causes  that  prevented  the  total  Extinction  of  Learning —  Pxevalence 
<tf  Superstition  and  Fanaticism  —  Geueral  Corruption  of  Religion  —  Monasteries 

—  their  BlTects-  Pilgrimages— Loto  of  FieM  Sports  — State  of  Agricultmre — 
of  Internal  and  Foreign  Trade  down  to  the  Bnd  of  the  Blerenth  Century  —  fm- 
provement  of  Europe  dated  from  that  Age. 

It  has  been  the  object  of  every  preceding  chapter  of  this 
work,  either  to  trace  the  civil  revolutions  of  states  during  tlie 
period  of  the  middle  ages,  or  to  investigate,  with  rather  more 
minute  attention,  their  political  institutions.  There  remains 
a  large  tract  to  be  explored,  if  we  would  complete  the  circle 
of  historical  information,  and  give  to  our  knowledge  that 
copiousness  and  clear  perception  which  arise  from  compre- 
hending a  subject  under  numerous  relations.  The  philosophy 
of  history  embraces  far  more  than  the  wars  and  treaties,  the 
factions  and  cabals  of  common  political  narration ;  it  extends 
to  whatever  illustrates  the  character  of  the  human  species  in 
a  particular  period,  to  their  reasonings  and  sentiments,  their 
arts  and  industry.  Nor  is  this  comprehensive  survey  merely 
interesting  to  the  speculative  philosopher;  without  it  the 
statesman  would  form  very  erroneous  estimates  of  events, 
and  find  himself  constantly  misled  in  any  analogical  applica- 
tion of  them  to  present  circumstances.  Nor  is  it  an  uncom- 
mon source  of  error  to  neglect  the  general  signs  of  the  times, 

1  The  sulOoet  of  the  present  ehapter,  so  the  Introduction  to  the  History  of  Liter- 

fhr  as  it  relates  to  the  condition  of  Utera-  ature  In  the  Fifteenth,  Sixteenthf  and 

ture  in  the  middle  ages«  has  been  again  Seventeenth  Centuries.   Some  thingn  will 

treated  by  me  in  the  first  and  second  be  Ibund  In  It  more  exaeUy  stated,  otheci 

■hayters  of  a  work,  published  in  1886  new^  supplied  from  reoent  sonroes. 


State  of  Socisnr.  DJTBODUCTION.  463 

and  to  dedace  a  prognostio  from  some  partial  coincidence 
with  past  events,  where  a  more  enlarged  comparison  of  all 
the  facts  that  ought  to  enter  into  the  combination  would 
destroy  the  whole  paralleL  The  philosophical  student,  how- 
ever, will  not  follow  the  antiquary  into  his  minute  details ; 
and  though  it  is  hard  to  say  what  may  not  supply  matter  for 
a  reflecting  mind,  there  is  always  some*  danger  of  losing 
sight  of  grand  objects  in  historical  disquisition,  by  too  labori- 
ous a  research  into  trifles.  I  may  possibly  be  thought  to 
furnish,  in  some  instances,  an  example  of  the  error  I  con- 
demn* But  in  the  choice  and  disposition  of  topics  to  which 
the  preseni  chapter  relates,  some  have  been  omitted  on 
account  of  their  comparative  insignificance,  and  others  on 
account  of  their  want  of  connection  with  the  leading  subject. 
Even  of  those  treated  I  can  only  undertake  to  give  a 
transient  view ;  and  must  bespeak  the  reader's  candor  to 
remember  that  passages  which,  separately  taken,  may  often 
appear  superficial,  are  but  parts  of  the  context  of  a  single 
chapter,  a««  the  chapter  itself  is  of  an  entire  work. 

The  Middle  Ages,  according  to  the  division  I  have 
adopted,  comprise  about  one  thousand  years,  from  the  invasion 
of  France  by  Clovis  to  that  of  Naples  by  Charles  VIII. 
This  period,  considered  as  to  the  state  of  society,  has  been 
esteemed  diark  through  ignoitmce,  and  barbarous  through 
poverty  and  want  of  refinement  And  although  this  character 
is  much  less  applicable  to  the  last  two  centuries  of  the 
period  than  to  those  which  preceded  its  commencement,  yet 
we  cannot  expect  to  feel,  in  respect  of  ages  at  best  imper- 
fectly civilized  and  slowly  progressive,  that  interest  which 
attends  a  more  perfect  development  of  human  capacities,  and 
more  brilliant  advances  in  improvement  The  first  moiety 
indeed  of  these  ten  ages  is  almost  absolutely  barren,  and 
presents  little  but  a  catalogue  of  evils.  The  subversion  of 
the  Roman  empire,  and  devastation  of  its  provinces,  by  bar* 
barous  nations,  either  immediately  preceded,  or  were  coinci- 
dent with  the  commencement  of  4he  middle  period.  We 
begin  in  darkness  and  calamity;  and  though  the  shadows 
grow  fainter  as  we  advance,  yet  we  are  to  break  off  oar 
pursuit  as  the  morning  breathes  upon  us,  and  the  twilight 
reddens  into  the  lustre  of  day. 

No  circumstance  is  so  prominent  on  the  first  survey  of 
society  during  the  earlier  centuries  of  this  period  as  the 
depth  of  ignorance  in  which  it  was  immersed ;  and  as  from 


464  DECLINE  OF  LEABNING      Chap.  DL  Pabi  L 

this,  more  than  any  single  cause,  the  moral  and 

Decline  of  •   i        •!        i  •  -i     S  •  j 

learning  In  social  cvils  which  those  agcs  expcnenccd  appear 
^™JJ  to  have  been  derived  and  perpetuated,  it  deserves 

to  occupy  the  first  place  in  the  arrangement  of 
our  present  subject  We  must  not  altogether  ascribe  the 
ruin  of  literature  to  the  barbarian  destroyers  of  the  Roman 
empire.  So  gradual,  and,  apparently,  so  irretrievable  a 
decay  had  long  before  spread  over  all  liberal  studies,  that  it 
is  impossible  to  pronounce  whether  they  would  not  have 
been  almost  equally  extinguished  if  the  august  throne  of  the 
Caesars  had  been  lefl  to  moulder  by  its  intrinsic  weakness. 
Under  the  paternal  sovereignty  of  Marcus  Aurelius  the 
approaching  declension  of  learning  might  be  scarcely  per- 
ceptible to  an  incurious  observer.  There  was  much  indeed 
to  distinguish  his  times  from  those  of  Augustus ;  much  lost 
in  originality  of  genius,  in  correctness  of  taste,  in  the  masterly 
conception  and  consummate  finish  of  art,  in  purity  of  the 
Latin,  and  even  of  the  Greek  language.  But  there  were 
men  who  made  the  age  famous,  grave  lawyers,  judicious  his- 
torians, wise  philosophers ;  the  name  of  learning  was  honor- 
able, its  professors  were  encouraged;  and  along  the  vast 
surface  of  the  Roman  empire  there  was  perhaps  a  greater 
number  whose  minds  were  cultivated  by  intellectual  discipline 
than  under  the  more  brilliant  reign  of  the  first  emperor. 

It  is  not,  I  think,  very  easy  to  give  a  perfectly  satisfactory 
solution  of  the  rapid  downfall  of  literature  between 

cansei.      ^^^  ^^^^  ^^  Antonine  and  of  Diocletian.     Perhaps 

the  prosperous  condition  of  the  empire  from  Trajan  to  Marcus 
Aurelius,  and  the  patronage  which  those  good  princes  be* 
stowed  on  letters,  gave  an  artificial  health  to  them  for  a 
moment,  and  suspended  the  operation  of  a  disease  which  had 
already  begun  to  undermine  their  vigor.  Perhaps  the  intel- 
lectual energies  of  mankind  can  never  remain  stationary; 
and  a  nation  that  ceases  to  produce  original  and  inventive 
minds,  born  to  advance  the  landmarks  of  knowledge  or  skill, 
will  recede  from  step  to  step,  till  it  loses  even  the  secondary 
merits  of  imitation  and  industry.  During  the  third  century, 
not  only  there  were  no  great  writers,  but  even  few  names  of 
indifferent  writers  have  been  recovered  by  the  diligence 
of  modern  inquiry.*     Law  neglected,  plulosophy  perverted 

1  The  authors  of  Illstoire  Litt^ndre  de  aathority  ;  two  of  whom  are  now  lost. 

1ft  France,  1. 1.,  can  only  find  three  writ-  In  the  preceeding  centuiy  tlia  noiabtt 

era  of  Qaul,  no  Inconsidornble  part  of  WM  eoniidtf^lj  greater. 
tlM  Uomaa  Empire,  mentioned  upon  aoj 


9TATB  OF  SociSTT.   IN  THE  ROMAN  EBCPIBB.  465 

till  it  became  contemptible,  bistoiy  nearly  silent,  the  liatin 
tongue  growing  rapidly  barbarous,  poetry  rarely  and  feebly 
attempted,  art  more  and  more  vitiated ;  such  were  the  symp- 
toms by  which  the  age  previous  to  Constantine  announced 
the  decline  of  the  human  intellect.  If  we  cannot  fully 
account  for  this  unhappy  change,  as  I  have  observed,  we 
must,  however,  assign  much  weight  to  the  degradation  of 
Rome  and  Italy  in  the  system  of  Severus  and  his  successors, 
to  the  admission  of  barbarians  into  the  military  and  even 
civil  dignities  of  the  empire,  to  the  discouraging  influence  of 
provincial  and  illiterate  sovereigns,  and  to  the  calamities 
which  fbllowed  for  half  a  century  the  first  invasion  of  the 
Groths  and  the  defeat  of  Decius.  To  this  sickly  condition  of 
literature  the  fourth  century  supplied  no  permanent  remedy. 
If  under  the  house  of  Constantine  the  Roman  world  suffered 
rather  less  from  civil  warfare  or  barbarous  invasions  than  in 
the  preceding  age,  yet  every  other  cause  of  decline  just 
enumerated  prevailed  with  aggravated  force ;  and  the  fourth 
century  set  in  storms,  sufficiently  destructive  in  them- 
selves, and  ominous  of  those  calamities  which  humbled  the 
majesty  of  Rome  at  the  commencement  of  the  ensuing  pe- 
riod, and  overwhelmed  the  Western  Empire  in  absolute 
and  final  ruin  before  its  termination. 

The  diffusion  of  literature  is  perfectly  distinguishable  from 
its  advancement ;  and  whatever  obscurity  we  may  find  in  ex- 
plaining the  variations  of  the  one,  there  are  a  few  simple 
causes  which  seem  to  account  for  the  other.  Knowledge  will 
be  spread  over  the  surface  of  a  nation  in  proportion  to  the 
facilities  of  education ;  to  the  free  circulation  of  books ;  to 
the  emoluments  and  distinctions  which  literary  attainments 
are  found  to  produce ;  and  still  more  to  the  reward  which 
they  meet  in  the  general  respect  and  applause  of  society. 
This  cheering  incitement,  the  genial  sunshine  of  approbation, 
has  at  all  times  promoted  the  cultivation  of  literature  in  small 
republics  rather  than  large  empires,  and  in  cities  compared 
with  the  country.  J£  these  are  the  sources  which  nourish 
literature,  we  should  naturally  expect  that  they  must  have 
become  scanty  or  dry  when  learning  languishes  or  expires. 
Accordingly,  in  the  later  ages  of  the  Roman  empire  a  gen- 
eral indifference  towards  the  cultivation  of  letters  became  the 
characteristic  of  its  inhabitants.  Laws  were  indeed  enacted 
by  Constantine,  Julian,  Theodosius,  and  other  emperors,  for 

VOL.1].  —  K.  80 


466  DECLINE  OF  LEABNINa    Chap.  IX.  Pavt  L 

the  encouragement  of  learned  men  and  the  promotion  of  lib- 
eral  education.  But  these  laws,  which  would  not  perhaps 
have  been  thought  necessary  in  better  times,  were  unavailing 
to  counteract  the  lethargy  of  ignorance  in  which  even  the 
native  citizens  of  the  empire  were  contented  to  repose.  This 
alienation  of  men  from  their  national  literature  may  doubtless 
be  imputed  in  some  measure  to  its  own  demerits.  A  jargon 
of  mystical  philosophy,  half  fanaticism  and  half  imposture,  a 
barren  and  inflated  eloquence,  a  frivolous  philology,  were  not 
among  those  charms  of  wisdom  by  which  man  is  to  be  diverted 
from  pleasure  or  aroused  from  indolence. 

In  this  temper  of  the  public  mind  there  was  little  probabil- 
ity that  new  compositions  of  excellence  would  be  produced, 
and  much  doubt  whether  the  old  would  be  preserved.  Since 
the  invention  of  printing,  the  absolute  extinction  of  any  con- 
siderable work  seems  a  danger  too  improbable  for  apprehen- 
sion. The  press  pours  forth  in  a  few  days  a  thousand  vol- 
umes, which,  scattered  like  seeds  in  the  air  over  the  republic 
of  Europe,  could  hardly  be  destroyed  without  the  extirpation 
of  its  inhabitants.  But  in  the  times  of  antiquity  manuscripts 
were  copied  with  cost,  labor,  and  delay ;  and  if  the  diffusion 
of  knowledge  be  measured  by  the  multiplication  of  books,  no 
un&ir  standard,  the  most  golden  ages  of  ancient  learning  could 
never  bear  the  least  comparison  with  the  last  three  centuries. 
The  destruction  of  a  few  libraries  by  accidental  fire,  the  des- 
olation of  a  few  provinces  by  unsparing  and  illiterate  barba- 
rians, might  annihilate  every  vestige  of  an  author,  or  leave  a 
few  scattered  copies,  which,  from  the  public  indifference,  there 
was  no  inducement  to  multiply,  exposed  to  similar  casualties 
in  succeeding  times. 

We  are  warranted  by  good  authorities  to  assign  as  a  col- 
lateral cause  of  this  irretrievable  revolution  the  neglect  of 
heathen  literature  by  the  Christian  church.  I  am  not  versed 
enough  in  ecclesiastical  writers  to  estimate  the  degree  of  this 
neglect ;  nor  am  I  disposed  to  deny  that  the  mischief  was  be- 
yond recovery  before  the  accession  of  Constantino.  From 
the  primitive  ages,  however,  it  seems  that  a  dislike  of  pagan 
learning  was  pretty  general  among  Christians.  Many  of  the 
&thers  undoubtedly  were  accomplished  in  liberal  studies,  and 
we  are  indebted  to  them  for  valuable  fragments  of  authors 
whom  we  have  lost  But  the  literary  character  of  the  church 
b  not  to  be  measured  by  that  of  its  more  illustrious  leaders. 


r    1 


Stats  of  Societt.    IN  THE  ROliAN  EMPIBE.  467 

Proscribed  and  persecuted,  the  early  Christians  had  not  per- 
haps access  to  the  public  schools,  nor  inclination  to  studies 
which  seemed,  very  excusably,  uncongenial  to  the  character 
of  their  profession.  Their  prejudices,  however,  survived  the 
establishment  of  Christianity.  The  fourth  council  of  Car- 
thage in  898  prohibited  the  reading  of  secular  books  by  bish- 
ops. Jerome  plainly  condemns  the  study  of  them  except  for 
pious  ends.  All  physical  science  especially  was  held  in 
avowed  contempt,  as  inconsistent  with  revealed  truths.  Nor 
do  there  appear  to  have  been  any  canons  made  in  favor  of 
learning,  or  any  restriction  on  the  ordination  of  persons  abso- 
lutely illiterate.'  There  was  indeed  abundance  of  what  is 
called  theological  learning  displayed  in  the  controversies  of 
the  fourth  and  fifth  centuries;  and  those  who  admire  such 
disputations  may  consider  the  principal  champions  in  them  as 
contributing  to  the  glory,  or  at  least  retarding  the  decline,  of 
literature.  But  I  believe  rather  that  polemical  disputes  will 
be  found  not  only  to  corrupt  the  genuine  spirit  of  religion, 
but  to  degrade  and  contract  the  faculties.  What  keenness 
and  subtlety  these  may  sometimes  acquire  by  such  exercise  is 
more  like  that  worldly  shrewdness  we  see  in  men  whose  trade 
it  is  to  outwit  their  neighbors  than  the  dear  and  cahn  dis- 
crimination of  philosophy.  However  this  may  be,  it  cannot 
be  doubted  that  the  controversies  agitated  in  the  church  during 
these  two  centuries  must  have  diverted  studious  minds  fix>m 
profane  literature,  and  narrowed  more  and  more  the  circle  of 
that  knowledge  which  they  were  desirous  to  attain. 

The  torrent  of  irrational  superstitions  which  carried  all  be- 
fore it  in  the  fifth  century,  and  the  progress  of  ascetic  enthu- 
siasm, had  an  influence  still  more  decidedly  inimical  to  learn- 
ing. I  cannot  indeed  conceive  any  state  of  society  more  ad- 
Terse  to  the  intellectual  improvement  of  mankind  than  one 
which  admitted  of  no  middle  line  between  gross  dissoluteness 
and  fanatical  mortification.  An  equable  tone  of  public  mor- 
als, social  and  humane,  verging  neither  to  voluptuousness  nor 
austerity,  seems  the  most  adapted  to  genius,  or  at  least  to  let- 
ters, as  it  is  to  individual  comfort  and  national  prosperity. 
After  the  introduction  of  monkery  and  its  unsocial  theory  of 


1  IfMhoim,  O^nt.  4.     Tinbowhl  •n-  ops  la  the  gsoenl   connellB  of  Sph*. 

dMTOM  to  el«ntto  hfgbor  the  toaming  of  fUfl  and  Chsloadoa  eould  not  wrlto  tndf 

tlMflarlyChriaJaiu,  LU.  p.  828.   Jortfn,  nunes.    Bomarks  on  Konlwriiuit.     Hltt. 

hofPVTw,  MMTtt  that  nuaur  of  tho  bUb-  toL  ii.  p.  417. 


468  DECLINE  OF  LEABNING.    Crap.  IX.  Past  t 

duties,  the  serious  and  reflecting  part  of  mankind,  on  whom 
science  most  relies,  were  turned  to  habits  which,  in  the  most 
fiivorable  view,  could  not  quicken  the  intellectual  energies ; 
and  it  might  be  a  difficult  question  whether  the  cultivators 
and  admirers  of  useful  literature  were  less  likely  to  be  found 
among  the  profligate  citizens  of  Bome  and  their  barbarian 
conquerors  or  the  melancholy  recluses  of  the  wilderness. 

Such  therefore  was  the  state  of  learning  before  the  subvei^ 
sion  of  the  Western  Empire.  And  we  may  form  some  notion 
how  little  probability  there  was  of  its  producing  any  excel- 
lent fruits,  even  if  that  revolution  had  never  occurred,  by 
considering  what  took  place  in  Greece  during  the  subsequent 
ages;  where,  although  there  was  some  attention  shown  to 
preserve  the  best  monuments  of  antiquity,  and  diligence  in 
compiling  from  them,  yet  no  one  original  writer  of  any  supe- 
rior merit,  arose,  and  learning,  though  plunged  but  for  a  short 
period  into  mere  darkness,  may  be  said  to  have  languished 
in  a  middle  region  of  twilight  for  the  greater  part  of  a 
thousand  years. 

But  not  to  delay  ourselves  in  this  speculation,  the  final 
settlement  of  barbarous  nations  in  Gaul,  Spain,  and  Italy  con- 
summated the  ruin  of  literature.  Their  first  irruptions  were 
uniformly  attended  with  devastation  ;  and  if  some  of  the 
Grothic  kings,  after  their  establishment,  proved  humane  and 
civilized  sovereigns,  yet  the  nation  gloried  in  its  original 
rudeness,  and  viewed  with  no  unreasonable  disdain  arts  which 
had  neither  preserved  their  cultivators  from  corruption  nor 
raised  them  from  servitude.  Theodoric,  the  most  famous  of 
the  Ostrogoth  kings  in  Italy,  could  not  write  his  name,  and  is 
said  to  have  restrained  his  countrymen  from  attending  those 
schools  of  learning  by  which  he,  or  rather  perhaps  his  minis- 
ter Cassiodorus,  endeavored  to  revive  the  studies  of  his  Ital- 
ian subjects.-  Scarcely  one  of  the  barbarians,  so  long  as  they 
continued  unconfused  with  the  native  inhabitants,  acquired 
the  slightest  tincture  of  letters ;  and  the  praise  of  equal  igno- 
rance was  soon  aspired  to  and  attained  by  the  entire  mass  of 
the  Roman  laity.  They,  however,  could  hardly  have  divested 
themselves  so  completely  of  all  acquaintance  with  even  the 
elements  of  learning,  if  the  language  in  which  books  were 
written  had  not  ceased  to  be  their  natural  dialect.  Tliis  re- 
markal  le  change  in  the  speech  of  France,  Spain,  and  Italy 
is  most  intimately  connected  with  the  extinction  of  learning ; 


State  of  Socdett.    CORRUPTION  OF  LATIN.  469 

and  there  is  enough  of  obscuritj  as  well  as  of  interest  in  Um 
subject  to  deserve  some  discussion. 

It  is  obvious,  on  the  most  cursory  view  of  the  French  and 
Spanish  languages,  that  they,  as  well  as  the  Ital-  cormpticm 
ian,  are  derived  from  one  common  source,  the  Lat-  of  the  Latin 
in.  That  must  therefore  have  been  at  some  period,  **"«"*«•• 
and  certainly  not  since  the  establishment  of  the  barbarous  na- 
tions in  Spain  and  Gaul,  substituted  in  ordinary  use  for  the 
original  dialects  of  those  countries  which  are  generally  sup- 
posed to  have  been  Celtic,  not  essentially  differing  from  those 
which  are  spoken  in  Wales  and  Ireland.  Rome,  says  Augus- 
tin,  imposed  not  only  her  yoke,  but  her  language,  upon  con- 
quered nations.  The  success  of  such  an  attempt  is  indeed 
very  remarkable.  Though  it  is  the  natural  effect  of  con- 
quest, or  even  of  commercial  intercourse,  to  ingrafl  fresh 
words  and  foreign  idioms  on  the  stock  of  the  original  lan- 
gQAg^i  yet  the  entire  disuse  of  the  latter,  and  adoption  of  one 
radically  different,  scarcely  takes  place  in  the  lapse  of  a  &,r 
longer  period  than  that  of  the  Roman  dominion  in  GauL 
Thus,  in  part  of  Britany  the  people  speak  a  language  which 
has  perhaps  sustained  no  essential  alteration  from  the  revolu- 
tion of  two  thousand  years ;  and  we  know  how  steadily  an- 
other Celtic  dialect  has  kept  its  ground  in  Wales,  notwith- 
standing English  laws  and  government,  and  the  long  line  of 
contiguous  frontier  which  brings  the  natives  of  that  princi- 
pality into  contact  with  jplnglishmen.  Nor  did  the  Romans 
ever  establish  their  language  (I  know  not  whether  they  wished 
to  do  so)  in  this  island,  as  we  perceive  by  that  stubborn  Brit- 
ish tongue  which  has  survived  two  conquests.^ 

In  Gaul  and  in  Spain,  however,  they  did  succeed,  as  the 
present  state  of  the  French  and  peninsular  languages  renders 
undeniable,  though  by  gradual  changes,  and  not,  as  the  Ben* 


s  Gibbon  roundly  iihimitN  Chat  "the  color  to  Gibbon's  aaaertlon  if  one   in 

kngnagB  of  Virgil  and  Giooro,  though  trliioh  Agrloola  is  said  to  liaTo  eneonr- 

with  some  ineyitable  mixture  of  corrnp-  aged  the  children  of  British  chieftains 

tfon,  wss  so  aniTsrsallj  adopted  in  Africa,  to  acquire  a  taste  Ibr  liberal  studies,  and 

Spain,  Gaul,  Great  Britain,  and  Pannonia,  to  hare  succeeded  so  much  br  judicious 

that  the  fidnt  traces  of  the  Ponie  or  commendation  of  their  abilities,  ut  qui 

Celtic  idioms  were  pwiserred  only  in  the  modolinguamRomaDamabnuebant,  elo- 

mountains  or  among  the  peasants."    I)e-  quentiam  concnpiscerent.  (c.  21.)  This, 

clioe  and  Vali,  toL  i.  p.  OO,  (Sto.  edit.)  it  is  suflkiently  obrions,  is  Tery  dlfliueni 

For  Britain  he  quotes  Tftcltos's  Lift  of  from  the  national  adcntion  of  Latin  as  • 

AgricoU  as  hisyoucher.    But  the  only  mother-tongae. 
passage  in  this  work  that  glTes  the  leasl 


470  ANCIENT  LATIN  Cbap.  IX.  Past  L 

edidine  authors  of  the  Histoire  Litt^ndre  de  la  France  seem 
to  imagine,  bj  a  sudden  and  arbitrary  innovation.^  This  is 
neither  possible  in  itself,  nor  agreeable  to  the  testimony  of 
Irenseus,  bishop  of  Lyons  at  the  end  of  the  second  centuryi 
who  laments  the  necessity  of  learning  Celtic^  But  although 
the  inhabitants  of  these  provinces  came  at  length  to  make  use 
of  Latin  so  completely  as  their  mother-tongae  that  few  ves- 
tiges of  their  original  Celtic  could  perhaps  be  discovered  in 
their  common  speech,  it  does  not  follow  that  they  spoke  with 
the  pure  pronunciation  of  Italians,  far  less  with  Uiat  conform- 
ity to  the  written  sounds  which  we  assume  to  be  essential  to 
the  expression  of  Latin  words. 

It  appears  to  be  taken  for  granted  that  the  Romans  pro- 
Aneient  nounced  their  language  as  we  do  at  present,  so  far 
Lfttin  pro-  at  least  as  the  enunciation  of  all  the  consonants, 
Biineistioa  however  we  may  admit  our  deviations  iix)m  the 
classical  standard  in  propriety  of  sounds  and  in  measure  of 
time.  Yet  the  example  of  our  own  language,  and  of  French, 
might  show  us  that  orthography  may  become  a  very  inade- 
quate representative  of  pronunciation.  It  is  indeed  capable 
of  proof  that  in  the  purest  ages  of  Latinity  some  variation 
existed  between  these  two.  Those  numerous  changes  in 
spelling  which  distinguish  the  same  words  in  the  poetry  of 
Ennius  and  of  Virgil  are  best  explained  by  the  supposition 
of  their  being  accommodated  to  the  current  pronunciation. 
Harsh  combinations  of  letters,  softened  down  through  delicacy 
of  ear  or  rapidity  of  utterance,  gradually  lost  their  place  in 
the  written  language.  Thus  exfregit  and  adrogamt  assumed 
a  form  representing  their  more  liquid  sound ;  and  audor  was 
latterly  spelled  atUWy  which  has  been  followed  in  French  and 
Italian.  Autor  was  probably  so  pronounced  at  all  times ;  and 
the  orthography  was  afterwards  corrected  or  corrupted,  which- 
ever we  please  to  say,  according  to  the  sound.  We  have  the 
best  authority  to  assert  that  the  final  m  was  very  faintly  pro- 
nounced, rather  it  seems  as  a  rest  and  short  interval  between 
two  syllables  than  an  articulate  letter;  nor  indeed  can  we 
conceive  upon  what  other  ground  it  was  subject  to  elision  be- 
fore a  vowel  in  verse,  since  we  cannot  suppose  that  the  nice 


1 1.  tIL  invfttoa.  fhat  Celtlo  wm  ipdlwn  In  Gftid,  or  •! 

•  It  app«an,  br  •  Twangs  quoted  from  IcMt  parti  of  It,  m  mil  m  Pimte  in 

lbs   digest  by  If.    Bonamy,    Mto.  ds  Africa. 
PAead.  das  Inacripttons,  t.  zxir.  p.  68d, 


BT4TB  OF  SodBTT.         PBONUNGIATIOK.  471 

ears  of  Rome  would  have  submitted  to  a  capricioas  role  of 
poetry  for  which  Greece  presented  no  analogy.^ 

A  decisive  proof,  in  mj  opinion,  of  the  deviation  which 
took  place,  through  the  rapidity  of  ordinary  elocution,  from 
the  strict  laws  of  enunciation,  may  be  found  in  the  metre  of 
Terence.  His  verses,  which  are  absolutely  refractory  to  the 
common  laws  of  prosody,  may  be  readily  scanned  by  the  appli- 
cation of  this  principle.  Thus,  in  the  first  act  of  the  Heauton- 
tlmorumenos,  a  part  selected  at  random,  I  have  found:  I.  Vow* 
els  contracted  or  dropped  so  as  to  shorten  the  word  by  a  syl- 
lable ;  in  rei^  vid,  diutius^  ei,  soHiiSy  earn,  uniuSf  suamy  dmtitu^ 
$enex,  voluptatem^  illiusj  semel.  11.  The  proceleusmatic  foot, 
or  four  short  syllables,  instead  of  the  dactyl ;  seen.  i.  v.  59, 
73,  76, 88, 109  ;  seen.  ii.  v.  36.  III.  The  elision  of  « in  words 
ending  with  us  or  f>  short,  and  sometimes  even  of  the  whole 
syllable,  before  the  next  word  beginning  with  a  vowel ;  in 
seen.  i.  v.  30, 81, 98, 101, 116, 119  ;  seen.  ii.  v.  28.  IV.  The 
first  syllable  of  t^  is  repeatedly  shortened,  and  indeed  nothing 
is  more  usual  in  Terence  than  this  license;  whence  we  may  col- 
lect how  ready  this  word  was  for  abbreviation  into  the  French 
and  Italian  articles.  V.  The  last  letter  of  aptid  is  cut  off, 
seen.  i.  v.  120 ;  and  seen.  ii.  v.  8.  YL  Hodie  is  used  as  a 
pyrrhichius,  in  seen.  iL  v.  11.  VH.  Lastly,  there  is  a  clear 
instance  of  a  short  syllable,  the  antepenultimate  of  imptderimj 
lengthened  on  account  of  the  accent  at  the  113th  verse  of  the 
first  scene. 

These  licenses  are  in  all  probability  chiefly  colloquial,  and 
would  not  have  been  adopted  in  public  harangues,  ,^  «,_--. 
to  which  the.  precepts  of  rhetorical  writers  com-  Uoa  b^ 
monly  relate.     But  if  the  more  elegant  language  p^*''*^* 
of  the  Romans,  since  such  we  must  suppose  to  have  been 
copied  by  Terence  for  his  higher  characters,  differed  so  much 
in  ordinary  discourse  from  their  orthography,  it  is  probable 
that  the  vulgar  went  into  much  greater  deviations.     The 
popular  pronunciation  errs  generally,  we  might  say  per- 
haps  invariably,  by  abbreviation  of  words,  and  by  lique- 
fying consonants,  as  is  natural  to  the  rapidity  of  colloquial 
speech.'    It  is  by  their  knowledge  of  orthography  and  ety- 

1  AtqtM  oidem  ilia  ntera,  qvoClw  nl-  NeqiM  enim  •ziinitar,  s«d  obwnnttiir.  el 
tima  wt,  et  Tocalam  rmtii  wqaeDtts  Ito  tenUm  aliqus  inter  daos  ToealM  tmiiI 
eontinglt,  m  in  «ain  tranaire  pottrit,  etimiii  nota  e«t,  ne  IpMB  eoennt.  QniDtilian,  In- 
ri  terlbitiir.  tomen  parnm  exprimltar,  nt'  lUkvit.  1.  ix.  e.  4,  p.  686.  edit.  Capperonier. 
Jftfiivm  itU,  et  Quantum  erat :  adoo  nt  *  Thefbllowing  passage  of  Quintilian  it 
pane o^Joadara  norm litaxwaonam reddat.    as  cfrldanoa  both  ni  tha  omlaaloii  ni baak 


472  COKEUPnON  OF  Chap.  IX.  Pabt  h 

mology  that  the  more  edacated  part  of  the  couununity  is 
preserved  from  these  corrupt  modes  of  pronanciation.  There 
is  always  therefore  a  standard  hj  which  common  speech  maj 
be  rectified ;  and  in  proportion  to  the  diffusion  of  knowledge 
and  politeness  the  deviations  from  it  will  be  more  slight  and 
and  the  gradual.  But  in  distant  provinces,  and  especiallj 
proTinciais.  nvherc  the  language  itself  is  but  of  recent  intro- 
duction, many  more  changes  may  be  expected  to  occur. 
£ven  in  France  and  Englsuid  there  are  provindal  dialects^ 
which,  if  written  with  all  their  anomalies  of  pronunciation 
as  well  as  idiom,  would  seem  strangely  out  of  unison  with 
the  regular  language ;  and  in  Italy,  as  is  well  known,  the 
varieties  of  dialect  are  still  more  striking.  Now,  in  an 
advancing  state  of  society,  and  especially  with  such  a  vigor- 
ous political  circulation  as  we  experience  in  England,  lan- 
guage will  constantly  approximate  to  uniformity,  as  provincial 
expressions  are  more  and  more  rejected  for  incorrectness  or 
inelegance.  But,  where  literature  is  on  the  decline,  and 
public  misfortunes  contract  the  circle  of  those  who  are  solici- 
tous about  refinement,  as  in  the  last  ages  of  the  Roman 
empire,  there  will  be  no  longer  any  definite  standard  of 
living  speech,  nor  any  general  desire  to  conform  to  it  if  one 
could  be  found ;  and  thus  the  vicious  corruptions  of  the  vulgar 
will  entirely  predominate.  The  niceties  of  ancient  idiom 
will  be  totally  lost,  while  new  idioms  will  be  formed  out  of 
violations  of  granmiar  sanctioned  by  usage,  which,  among  a 
civilized  people,  would  have  been  proscribed  at  their  ap- 
pearance. 

Such  appears  to  have  been  the  progress  of  corruption  in 
the  Latin  language.  The  adoption  of  words  from  tlie  Teu- 
tonic dialects  of  the  barbarians,  which  took  place  very  freely, 
would  not  of  itself  have  destroyed  the  character  of  that  lan- 
guage, though  it  sullied  its  purity.  The  worst  Law  Latin  of 
the  middle  ages  is  still  LEitin,  if  its  barbarous  terms  have 
been  bent  to  the  regular  infiections.    It  is  possible,  on  the 


0r  Bvperfluous  letters  bv  the  best  speak-  numerare  lltezas,  molestmn  et  odlosnm. 

eTi,  and  of  the  eorrupt  abbreriations  ustt-  —  Nam  et  Tocales  frequeDtSssime  ooennt, 

al  with  the  wont.     IMluclda  rero  erit  et  consonanUum  qaa»dain  insequeute  y^ 

pronuneiatio  primom,  si  yerba  totaexe-  caU  dJssimulantar ;  utxiusqae  exemplum 

gerlt,  quorum  pars  derorari,  pars  destitui  posnimus  ;  MultumiUe  et  terris.  Vitatar 

•olet,  plerisque  extremas  sjllabas  non  pro-  etiam  duriorum  inter  se  congresstis,  nnda 

fereotibus,  dum  priorum  sono  indulgent.  peUexU  et  coikfgit^  et  qoss  luio  looo  diete 

Ut  est  autem  necessaria  Terborum  expla-  sunt.  1.  U.  c.  Z%  p.  896 
uatio,  ita  ooin«i  oompatan  et  velat  ad- 


Btaxk  of  SodBiT.     LATIN  PRONUNCIATION.  473 

Other  hand,  to  write  whole  pages  of  Italian,  wherein  eveiy 
word  shall  be  of  unequivocal  Latin  derivation,  though  the 
character  and  personality,  if  I  may  so  say,  of  the  language  be 
entirely  dissimilar.  But,  as  I  conceive,  the  loss  of  literature 
took  away  the  only  check  upon  arbitrary  pronunciation  and 
upon  erroneous  grammar.  £ach  people  innovated  through 
caprice,  imitation  of  their  neighbors,  or  some  of  those  inde- 
scribable causes  which  dispose  the  organs  of  different  nations 
to  different  sounds.  The  French  melted  down  the  middle 
consonants;  the  Italians  omitted  the  finaL  CoiTuptions 
arising  out  of  ignorance  were  mingled  with  those  of  pronun- 
ciation. It  would  have  been  marvellous  if  illiterate  and 
semi-barbarous  provincials  had  preserved  that  deUcate  pre- 
cision in  using  the  inflections  of  tenses  which  our  best  scholars 
do  not  clearly  attain.  The  common  speech  of  any  people  whose 
language  is  highly  complicated  will  be  full  of  solecisms. 
The  French  inflections  are  not  comparable  in  number  or 
delicacy  to  the  Latin,  and  yet  the  vulgar  confuse  their  most 
ordinary  forms. 

But,  in  all  probability,  the  variation  of  these  derivative 
languages  from  popular  Latin  has  been  considerably  less 
than  it  appears.  In  the  purest  ages  of  Latinity  the  citizens 
of  Rome  itself  made  use  of  many  terms  which  we  deem 
barbarous,  and  of  many  idioms  which  we  should  reject  as 
modem.  That  highly  complicated  grammar,  which  the  best 
writers  employed,  was  too  elliptical  and  obscure,  too  deficient 
in  the  connecting  parts  of  speech,  for  general  use.  We  can- 
not indeed  ascertain  in  what  degree  the  vulgar  Latin  differed 
from  that  of  Cicero  or  Seneca.  It  would  be  highly  absurd 
to  imagine,  as  some  are  said  to  have  done,  that  modem 
Italian  was  spoken  at  Rome  under  Augustus.^  But  I  believe 
it  may  be  asserted  not  only  that  much  the  greater  part  of 
those  words  in  the  present  language  of  Italy  which  strike 
us  as  incapable  of  a  Latin  etymology  are  in  fact  derived 
from  those  current  in  the  Augustan  age,  but  that  very  many 
phrases  which  offended  nicer  ears  prevailed  in  the  same  ver- 
nacular speech,  and  have  passed  from  thence  into  the  modem 
French  and  Italian.     Such,  for  example,  was  the  frequent 

1  Tlmbosetai  (Storia   dell.   Lett.  Ital.    belleTe  that  either  of  them  ooald  toMht' 
t.  Hi.  pr^kee,  p.  t.)  imputes  this  parodox    tain  it  in  a  literal  Moae. 
%»  Bembo  and  Quadiio ;  bat  I  can  hardly 


474  COBRUPnON  OF  Chap.  IX.  Paw  1 

nse  of  prepositions  to  indicate  a  relation  between  two  parts 
of  a  sentence  which  a  classical  writer  would  have  made  to 
depend  on  mere  inflection.^ 

From  the  difficulty  of  retaining  a  right  discrimination  of 
tense  seems  to  have  proceeded  the  active  auxiliary  verb.  It 
is  possible  that  this  was  borrowed  from  the  Teutonic  lan- 
guages of  the  barbarians,  and  accommodated  both  by  them 
and  by  the  natives  to  words  of  Latin  origin.  The  passive 
auxiliary  is  obtained  by  a  very  ready  resolution  of  any  tense 
in  that  mood,  and  has  not  been  altogether  dispensed  with 
even  in  Greek,  while  in  Latin  it  is  used  much  more  fre- 
quently. It  is  not  quite  so  easy  to  perceive  the  propriety  of 
the  active  habeo  or  teneo,  one  or  both  of  which  all  modem 
languages  have  adopted  as  their  auxiliaries  in  conjugating 
the  verb.  But  in  some  instances  this  analysis  is  not  im- 
proper; and  it  may  be  supposed  that  nations,  careless  of 
etymology  or  correctness,  applied  the  same  verb  by  a  rude 
analogy  to  cases  where  it  ought  not  strictly  to  have  been 
employed.^ 

Next  to  the  changes  founded  on  pronunciation  and  to  the 
substitution  of  auxiliary  verbs  for  inflections,  the  usage  of 
the  definite  and  indefinite  articles  in  nouns  appears  the  most 
considerable  step  in  the  transmutation  of  Latin  into  its  deriva- 
tive languages.  None  but  Latin,  I  believe,  has  ever  wanted 
this  part  of  speech ;  and  the  defect  to  which  custom  recon- 
ciled the  Romans  would  be  an  insuperable  stumbling-block 
to  nations  who  were  to  translate  their  original  idiom  into 
that  language.  A  coarse  expedient  of  applying  unuSj  ipsey  or 
ills  to  the  purposes  of  an  article  might  perhaps  be  no  unfre- 
quent  vulgarism  of  the  provincials;  and  afler  the  Teutonic 
tribes  brought  in  their  own  grammar,  it  was  natural  that  a 
corruption  should  become  universal,  which  in  &ct  supplied  a 
real  and  essential  deficiency. 

That  the  quantity  of  Latin  syllables  is  neglected,  or  rather 

1  M.  Bonuny,  In  an  MMy  printed  In  Tlew  that  I  hafe  seen  of  the  fimrmn  of 

tf^m.  de  TAcad^mie  des  Inscriptions,  t.  transition  by  which  Latin  was  durnged 

zxiT.,  has  produced  seTeml  prooft  of  this  into  French  and  Italian.    Add  however, 

from  the  classical  writers  on  agricultare  the  preikoe  to  Tiraboeeht's  third  TOlnme 

and  other  artR,  though  some  of  his  in-  and  the  thlrty<eecond  dissertation  of  Ua* 

■tances  are  not  in  point,  as  any  schoolboy  ratori. 

would  haTe  told  him.    This  essay,  which  <  See  LansifSacglo  della  UnguaEtraa- 

by  some  accident  had  escaped  my  notice  ca,  t.  i.  e.  481;  Him.  de  l'Aoa4.  des  In* 

tUi  I  had  nearly  flniiihed  the  obserrations  scrip,  t.  xxlT.  p.  682. 
m  my  text,  oontaina,  I  think:,  Um  best 


0TATB  or  Soouerr.    LATIN  PRONUKCIATION.  475 

lost,  in  modem  pronunciation,  seems  to  be  generaUj  pronunob' 
admitted.      Whether,  indeed,  the  ancient  Romans,  ^^on  no 
in  their  ordinary  speaking,  distinguished  the  meas-  ngSiIted 
ure  of  syllables  with  such  uniform  musical  ac-  *^  qa*n'S^- 
curacy  as  we  imagine,  giving  a  certain  time  to  those  termed 
long,  and  exactly  half  that  duration  to  the  short,  might  very 
reasonably  be  questioned;  though  this  was  probably  done,  or 
attempted  to  be  done,  by  eyeiy  reader  of  poetry.     Certainly, 
however,  the  laws  of  quantity  were  forgotten,  and  an  ac- 
centual pronunciation  came  to  predominate,  before  Latin  had 
ceased  to  be  a  living  language.    A  Christian  writer  named 
Commodianus,  who  lived  before  the  end  of  the  third  century 
according  to  some,  or,  as  others  think,  in  the  reign  of  Con« 
stantine,  has  left  us  a  philological  curiosity,  in  a  series  of 
attacks  on  the  pagan  superstitions,  composed  in  what  are 
meant  to  be  verses,  regulated  by  accent  instead  of  quantity, 
exactly  as  we  read  Virgil  at  present.^ 

It  is  not  improbable  that  Commodianus  may  have  written 
in  Africa,  the  province  in  wMch  more  than  any  the  purity  of 
Latin  was  debased.  At  the  end  of  the  fourth  century  St 
Augustin  assailed  his  old  enemies,  the  Donatists,  with  nearly 
the  same  arms  that  Commodianus  had  wielded  against  hea- 
thenism. But  as  the  refined  and  various  music  of  hexame- 
ters was  unlikely  to  be  relished  by  the  vulgar,  he  prudently 
adopted  a  different  measure.'   All  die  nations  of  Europe  seem 

1  No  deaeription  am  f^hn  ao  adeqoatoft  ninneiatlon,  withoat  fho  tnmnuury  nilfls 

notion  of  this  eztmoidinarif  poiibmuuieo  of  f  *rooiiutes;  as  ibr  Instance^ 

M  »  short  specimen.     Tkice  Uie  Intro-  Pantos  ad  epulas.  at  refUgifloers  pno- 

dnetory  lines ;  which  really,  pn^udioes  oepta :  or,  CaplUos  Infloltis,  ocnloe  (Ull- 

of  edueatkm  apart,  are  by  no  maaas  in-  gine  vsUnitis. 

harmonioas :  •—  It  must  be  owned  that  this  text  Is 

ir.»f»rtjL  tiMi*^  «i.m  «*Mn*i  i1m«im.     •xo^edlnglj  eormpt,  and  I  should  not 
PnsT^  nostra  Tlam  onanti  demon-    ^^^  ^'eeelngi  truly  critical  editor, 

»>«!.nfrJiL»«.    Km.««.    m«».  --^Ht    unsornpulous  as  his  firaternlty  are  apt  to 
^SiSflSL  ^^    ^1  Improre  hU  lines  Into  i^blemtehed 

iBfcernom  MLqnod dinnednnt insda   »»•»»•*•"•    ™ *"■**"•  *"*T: ****''' 
oorfa.^^^^^^^^^^^^^^^    •^"'\^'   mnst  consider  him  either  at 

K**^i!Ii?.!!iX*  ^SSS^bSl^^^  w^^taS'^S^i^SLTthlT^thJ^iSp^ 

^oSr^^^  pMWntlbns  inseils    ^^  ^^  addressed  did  not  obseJre  them 

AiiJi^m*  ft^«ii.m  i»ii>  Ummw^AA  <u    *»  Speaking.    Commodlanos  Is  publlthed 

£L        ^^  lndo,letondo  do    ^^  Kwes  atthe  end  of  his  ^Ition  of 

tr^muSSl  -iVMninnM    juo^  »mK  t  M.  Mlnoclus  Fellx.     Some  specimens  art 

^^♦„?Jr^      •  *^  ^^'  qtto««*  »«>  Harris's  PhiloloJS  Inquiries. 

•  _7?**  *°r^  ..>                ^  ■  Aiohnolooia,  toI.  xir.  p.  188.    Tha 

lnsotequodpndlt,pe>|ensdeosqni».  f,nii^^B!^lSBtUu^?:-         ™ 

rereTanos.  " 

ObeapetdoctosIgnorotfaistraoTsrum.  Abundantia  peooatorum  solet  fratm 

Ooanmodianus  howofvr  did  not  keef^  oontorbare; 

np  tliis  exeaUenoo  in  ewry  part.    Soma  Propter  hoe  Dominns  noster  folnit  nos 

tr  hisUnaaarsnotrsdneibla  toany  pro-  pnsmonerB, 


476        NOT  REGULATED  BY  QCANTrTT.      Chap.  EL  Pabt  1. 

to  love  the  trochaic  verse ;  it  was  frequent  on  the  Greek  and 
Roman  stage ;  it  is  more  common  than  any  other  in  the 
popular  poetrj  of  modem  huiguages.  This  proceeds  from 
its  simplicity,  its  liveliness,  and  its  ready  accommodation  to 
dancing  and  music  In  St  Austin's  poem  he  united  to  a 
trochaic  measure  the  novel  attraction  of  rhyme. 

As  Africa  must  have  lost  all  regard  to  the  rules  of  measure 
in  the  fourth  century,  so  it  appears  that  Gaul  was  not  more 
correct  in  the  next  two  ages.  A  poem  addressed  by  Aus- 
picius  bishop  of  Toul  to  count  Arbogastes,  of  earlier  date 
probably  than  the  invasion  of  Clovis,  is  written  widi  no  regard 
to  quantity.^  The  bishop  by  whom  this  was  composed  is 
mentioned  by  his  contemporaries  as  a  man  of  learning. 
Probably  he  did  not  chose  to  perplex  the  barbarian  to  whom 
he  was  writing  (for  Arbogastes  is  plainly  a  barbarous  name) 
by  legitimate  Roman  metre.  In  the  next  century  Gregory 
of  Tours  informs  us  that  Chilperic  attempted  to  write  lAtin 
verses ;  but  the  lines  could  not  be  reconciled  to  any  division 
of  feet ;  his  ]gnoi*anoe  having  confounded  long  and  short 
syllables  together.^  Now  Chilperic  must  have  learned  to 
speak  Latin  like  other  kings  of  the  Franks,  and  was  a  smat- 
terer  in  several  kinds  of  literature.  If  Chilperic  therefore 
was  not  master  of  these  distinctions,  we  may  conclude  that 
the  bishops  and  other  Romans  with  whom  he  conversed  did 
not  observe  them ;  and  that  his  blunders  in  versification  arose 
from  ignorance  of  rules,  which,  however  fit  to  be  preserved  in 
poetiy,  were  entirely  obsolete  in  the  living  Latin  of  his  ag€. 
Indeed  the  frequency  of  false  quantities  in  the  poets  even  of 
the  fiflh,  but  much  more  of  the  sixth  century,  is  palpable. 
Fortunatus  is  quite  full  of  them.  This  seems  a  decisive 
proof  that  the  ancient  pronunciation  was  lost     Avitus  tells 

Gompanas  reg^am  oodoroin  ntienlo  AoBpielat,   qui    dIUgo,  Mlotem  dieo 

mino  in  marei  plarimun. 

Oougreganti  maltos  pboes,  omne  genut  Vbtfpua  oaelesU  Domino  npendo  oonlo 

hinc  et  iade,  natiu 

QaoA  cum  tnxlasent  ad  littus,  tuno  Quod  te  Tullensl  prozinw  magimin  in 

oceperunt  separare,  urbe  Tidimos. 


BonotinTaaaiiiJMruat,reUqaogiDalos  Multis    me  tola  artibns  tetlfieabM 

Id  mare.  antea, 

TI>l.tnud>l.m.ehM<>wth.kml<>r  Mu^^MMmM^wo  «»  <a«U», 

Augastin;  but  it  oould  not  have  been  "^ 

bter  than  his  age.  *  Chllpericiu  rex oonfteift 

1  Reoueil  dee  Htstorlens,  t,  I.  p.  814;  dnos  Ubroe,  quonim  Terilcnli  deblles  nol- 

It  begins  In  the  Ib'.towing  manner :  —  Us  pedlbus  snbsistere  poesant :  In  qalbna, 

dum  non  intelligebat.  pro  longis  syllafaas 

PraoelBO   ezpeetabUi   his    Arbogasto  brevee  poeuit,  et  pro  DreTibos  loogas  ste- 

comiti  (nebat.    L  tL  c.  40. 


State  op  Socistt.     LATIN  BECOMES  BOMANCE.  477 

us  that  few  preserved  the  proper  measure  of  syllables  in 
singing.  Yet  he  was  bishop  of  Vienne,  where  a  purer  pronun- 
ciation might  be  expected  than  in  the  remoter  parts  of  Gaul.' 

Defective,  however,  as  it  had  become  in  respect  of  pro- 
nunciation, Latin  M^as  still  spoken  in  France  during  chunge  of 
the  sixth  and  seventh  centuries.     We  have  com-  Latin  into 
positions  of  that  time,  intended  for  the  people,  in    **"*■"*•• 
grammatical  language.     A  song  is  still  extant  in  rhyme  and 
loose  accentual  measure,  written  upon  a  victory  of  Chlotaire 
II.  over  the  Saxons  in  622,  and  obviously  intended  for  circu 
lation  among  the  people.*     Fortunatus  says,  in  his  Life  of 
St.  Aubin  of  Angers,  that  he  should  take  care  not  to  use  any 
expression  unintelligible  to  the  people.*     Baudemind,  in  the 
middle  of  the  seventh  century,  declares,  in  his  Life  of  St. 
Amand,  that  he  writes  in  a  rustic  and  vulgar  style^  that  the 
reader  may  be  excited  to  imitation.^    Not  that  these  legends 
were  actually  perused  by  the  populace,  for  the  very  art  of 
reading  was  confined  to  a  few.     But  they  were  read  publicly 
in  the  churches,  and  probably  with  a  pronunciation  accommo 
dated  to  the  corruptions  of  ordinary  language.     Still   the 
Latin  syntax  must  have  been  tolerably  understood ;  and  we 
may  therefore  say  that  Latin  had  not  ceased  to  be  a  living 
language,  in  Gaul  at  least,  before   the   latter  part  of  the 
seventh  century.     Faults  indeed  against  the  rules  of  gram- 
mar, as  well  as  unusual  idioms,  perpetually  occur  in  the  best 
writers   of  the  Merovingian   period,   such  as   Gregory  of 
Tours;  while   charters  drawn   up  by  less  expert  scholars 
deviate  much  further  from  purity.* 

The  corrupt  provincial  idiom  became  gradually  more  and 
more  dissimilar  to  gmmmatical  Latin ;  and  the  lingua  lio- 
mana  rustica,  as  the  vulgar  pcUais  (to  borrow  a  wonl  that  I 
cannot  well  translate)  had  been  called,  acquired  a  distinct 

1  Mtei.  d»   rAcadimte   des    Inflcrip-  Qui  iTi  pugnare  onm  geote  SAzoDiim, 

Uont,  t.  xvil.  Ulst.  LIttiraIre  de  la  Qaam  graTitor  proTeninat  minlB  Sax- 
Fianee,  t.  il.  p.  28.  It  seeins  r&tber  prob-  onum, 

able  that  the  poetry  of  Avitos  belongt  HI  oon  fliisfiet  incUtm  Faro  d«  genta 
to  th«  fifth  ceatury,  though  not  rory  far  Burgundioaum. 

trwn  lU  t«rmiQatlon.    II«  was  the  cor-  ,  Pr«caTenduin  eat,  na  ad  aurw  po- 

SS,!  »«^:/£i  ^UJf^TJ  ™1S^    »««'•    M«m.derAcad.t,;Til.p.712. 
Me^y  to  bare  been  written  rather  early       4  j^„,jj^  ^^  p,^j^j^  ^^^^  ^^^^^ 

s  rfl-  •*..»  **  *ki.  .A..  -*ii  .»iii^  *M  •»mplam  et  liuitatioDem.    Id.  ibid. 
.h««  ^r?f£  f^nl   u^lJJiL  iSnS       •  »»**•  Wttoralre  de  la  France,  t.  Ul.  p. 

SiZ.55!i  f^*  ^^  language  was  yet  5     3,^^  ^  I'Acadeoiie,  t.  xxJr.  p.  617. 

nenangea .  —  Nouveau  Tralt6  d»  Diplomatique,  t.  i% 

De  Clotado  ••!  oanare  nfge  Ftanoorum,  p.  486. 


478  ITS  CORRUPTIOK  IN  ITALY.    Chjlp.  IX.  Piiter  1. 

character  as  a  new  language  in  the  eighth  centnrj.^  Latiii 
orthography,  which  had  been  hitherto  pretty  well  maintained 
in  books,  though  not  always  in  charters,  gave  way  to  a  new 
spelling,  conformably  to  Uie  current  pronunciation.  Thua 
we  find  lui,  for  illius,  in  the  Formularies  of  Marculfus ;  and 
Tu  lo  juva  in  a  liturgy  of  Charlemagne's  age,  for  Tu  ilium 
juva*  When  this  barrier  was  once  broken  down,  such  a 
deluge  of  innovation  poured  in  that  all  the  characteristics  of 
Latin  were  effaced  in  writing  as  well  as  speaking,  and  the 
existence  of  a  new  language  became  undeniable.  In  a 
council  held  at  Tours  in  813  the  bishops  are  ordered  to  have 
certain  homilies  of  the  fathers  translated  into  the  rustic 
Roman,  as  well  as  the  German  tongue.'  After  this  it  is 
unnecessary  to  multiply  proofs  of  the  change  which  Latin 
had  undergone. 

In  Italy  the  progressive  corruptions  of  the  Latin  language 
iti  eomip-  were  analogous  to  those  which  occurred  in  France, 
tion  in  luiy.  though  we  do  not  find  in  writings  any  unequivocal 
specimens  of  a  new  formation  at  so  early  a  period.  But  the 
old  inscriptions,  even  of  the  fourth  and  fifth  centuries,  are 
full  of  solecisms  and  corrupt  orthography.  In  legal  instru- 
ments under  the  Lombard  kings  the  Latin  inflections  are  indeed 
used,  but  with  so  little  regard  to  propriety  that  it  is  obvious  the 
writers  had  not  the  slightest  tincture  of  grammatical  knowl- 
edge. This  observation  extends  to  a  very  large  proportion  of 
such  documents  down  to  the  twelfth  century,  and  is  as  ap- 
plicable to  France  and  Spain  as  it  is  to  Italy.  In  these 
charters  the  peculiar  characteristics  of  Italian  orthography 
and  gramniar  frequently  appear.  Thus  we  find,  in  the  eighth 
century,  di veatis  for  debeatis,  da  for  de  in  the  ablative,  avendi 
for  habendi,  dava  for  dabat,  cedo  a  deo,  and  ad  ecclesia, 
among  many  similar  corruptions.'  Latin  was  so  changed, 
it  is  said  by  a  writer  of  Charlemagne's  age,  that  scarcely 
any  part  of  it  was  popularly  known.  Italy  indeed  had  suf- 
fered more  than  France  itself  by  invasion,  and  was  reduced 

)  mst.  LittAmIt*  de  h  FruiM,  t.  tU.  pie,  while  sermont  were  praftobed,  and 

8. 12.    The  editon  say  that  It  to  men-  tolerably   comprehended,   In   a    puree 

oned  by  name  even  In  the  MTenth  oen-  grammar, 

tury,  which  to  very  natural,  as  the  oor>  *  Hem.  de  PAcad.  dee.  Inee.  t.  xfJL 

ruption  of  Latin  had  then  become  strik-  See  two  memoir*  In  thto  volume  by  da 

lug.  It  to  fkmiliarly  known  that  Illiterate  Cloe  and  le  Boeaf,  eepecially  the  latter, 

perwne  undtrskuut  a  mora  oorcect  bin-  as  well  an  that  already  meutiooed  In  1 

Kiafpe  than  they  uee  themeelvee ;  eo  that  zxir.  p.  682,  by  M.  Bonamy. 

e  oormption  of  Latin  might  have  gone  *  Muratoii,  xMeieit.  i.  aiui  slUl. 
to  a  conildeiable  length  among  the  peo- 


Statb  of  Socibtt.     GENEBAL  IGNOKANCK  479 

to  a  lower  state  of  barbarism,  though  probably,  from  the 
greater  distinctness  of  pronunciation  habitual  to  the  Italians, 
thej  lost  less  of  their  original  language  than  the  Frendi.  I 
do  not  find,  however,  in  the  writers  who  have  treated  this 
subject,  any  express  evidence  of  a  vulgar  language  distinct 
from  Latin  earlier  than  the  close  of  the  tenth  century,  when 
it  is  said  in  the  epitaph  of  Pope  Gregory  V.,  who  died  in 
999,  that  he  instructed  the  people  in  three  dialects  —  the 
Prankish  or  Grerman,  the  vulgar,  and  the  Latin.^ 

When  Latin  had  thus  ceased  to  be  a  living  language,  the 
whole  treasury  of  knowledge  was  locked  up  from 
the  eyes  of  the  people.  The  few  who  might  have  conSJSSnt 
Imbibed  a  taste  for  literature,  if  books  had  been  J^^^J**"* 
accessible  to  them,  were  reduced  to  abandon  pur- 
suits that  could  only  be  cultivated  through  a  kind  of  education 
not  easily  within  their  reach.  Schools,  confined  to  cathedrals 
and  monasteries,  and  exclusively  designed  for  the  purposet 
of  religion,  afforded  no  encouragement  or  opportunities  to 
the  laity.'  The  worst  effect  was,  that,  as  the  newly-formed 
languages  were  hardly  made  use  of  in  writing,  Latin  being 
still  preserved  in  all  legal  instruments  and  public  corre^ 
spondence,  the  very  use  of  letters,  as  well  as  of  books,  was 
forgotten.  For  many  centuries,  to  sum  up  the  account  of 
ignorance  in  a  word,  it  was  rare  for  a  layman,  of  whatever 
rank,  to  know  how  to  sign  his  name.*  Their  charters,  till 
the  use  of  seals  became  general,  were  subscribed  with  the 
mark  of  the  cross.  Still  more  extraordinary  it  was  to  find 
one  who  had  any  tincture  of  learning.  Even  admitting 
every  indistinct  commendation  of  a  monkish  biographer 
(with  whom  a  knowledge  of  church-music  would  pass  for 
literature^),  we  could  make  out  a  very  short  list  of  scholars. 

1  Ufiu  FranclKl,    Tulgarl,   et  Tooe    p.  877),  nor  John  king  of  Bohemia  In  th« 

LatinA.  middle  of  the  fourteenth  century  (Sls- 

Instltttlt  populofl  eloqoio  tripid.  mondl,  t.  t.  p.  206),  ncr  Philip    the 

Vontanini  dell'  Eloquen»  Italians,  p.    S!^Vt"?LSf  ^.1w»  t^^l^^^"" 
IB.    Muratori,  DU-ert.  Mxli.      ^  "^     ^t.«ti^^lJ  S^Ji:^^  f^JS^iL 

U.P419.    ThUb««ne,tLedito?.i^^  hT  l-rne'd '^%?^rt^^^^^^^^ 

much  leM  nnuRual  about  the  end  of  the  j        iiT.*.^r^    i^wT^rn.*",  uviuimw 

Mli*f!L»*K !!.»»,»!, .  r«^»»„  1  Jftl  «*li«!i  •  Q "Od  '•x  IllIteratuB  est  aeinna  eoronatus. 

thirteenth  wntury;  a  pretty  Ute period.  Jeita  Oomitum  Andegavenilnm.    In  tha 

turL"«Sr  «^^  M?Vj*^i'"tii;  ~«  ^"^  Geoffwy.Tther  of  our  He^^ 
fourteenth  century :  in  ttie  next  they    n.,  i«  said  to  be  optime  Uteiatua ;  which 

lS£S'SrrLa'"iuld""nr'S3  ff'^  «»Port.  mtle  mon,  liarninS 
SSSf^cS!^!^^^^^    rt    »h»nhi«ance.torFulkpcMeMed. 


480  IGNORANCE  CONSEQUENT  ON    Chap.  K.  Part  L 

None  certainly  were  more  distingnished  as  such  than  Charle- 
magne and  Alfred.  But  the  former,  unless  we  reject  a  very 
plain  testim6ny,  was  incapable  of  writing ;  ^  and  Alfred  found 
difficulty  in  making  a  translation  from  the  pastoral  instruc- 
tion of  St  Gregory,  on  account  of  his  imperfect  knowledge 
of  Latin.' 

Whatever  mention,  therefore,  we  find  of  learning  and  the 
learned  during  these  dark  ages,  must  be  understood  to  relate 
only  to  such  as  were  within  the  pale  of  clergy,  which  indeed 
was  pretty  extensive,  and  comprehended  many  who  did  not 
exercise  the  offices  of  religious  ministry.  But  even  the 
clergy  were,  for  a  long  period,  not  very  materially  superior, 
as  a  body,  to  the  uninstructed  laity.  A  cloud  of  ignorance 
overspread  the  whole  face  of  the  church,  hardly  broken  by 
a  few  glimmering  lights,  who  owe  much  of  their  distinction 
to  the  surrounding  darkness.  In  the  sixth  century  the  best 
writers  in  Latin  were  scarcely  read ;  •  and  perhaps  from  the 
middle  of  this  age  to  the  eleventh  there  was,  in  a  general 
view  of  literature,  little  diffigrence  to  be  discerned.  If  we 
look  more  accurately,  there  will  appear  certain  gradual 
shades  of  twilight  on  each  side  of  the  greatest  obscurity. 
France  reached  her  lowest  point  about  the  beginning  of  the 
eighth  century ;  but  England  was  at  that  time  more  respecta- 
ble, and  did  not  fall  into  complete  degradation  till  the  middle 
of  the  ninth.    There  could  be  nothing  more  deplorable  than 

1  The  pMsago  In  SJgftih&rd,  which  has  of  their  gennlnencn  ?    The  great  dUB- 

oocaeioned  so  mnch  dupute,  spealcs  for  calty  to  to  get  over  the  words  which  I 

Itself:  TentiiUat  et  eoribere,  tabuluque  hare  quoted  i>om  Bginhard.  M.  Ampere 

et    codiciUoB  ad  hoe   in  lectlcala   sub  ingeniously  conjectures  that  the  passftii^ 

oerricalibus  cironmferre  solcbat^  u^  cum  does  not  relate  to  simple  common  writ- 

yacuum  tempus  esset,  manum  efflgtandis  ing,  but  to  calligraphy  ;  the  art  ofdelin- 

Uteris  assuefaceret ;  sed  parum  prosper^  eating  characters  in  a  beautifbl  manner, 

iuccessit  labor  prscposterus  ao  Ber6  in-  practised  by  the  copyists,  and  of  which  a 

ehoatus.  contemporaneous  specimen  may  be  seen 

Many  are  still    unwilling  to   believe  in  the  well-known  Bible  of  the  British 

that  Charlemagne  could  noc  write.    M.  Museum.    Yet  it  must  be  remembered 

Ampere  observes  that  the  emperorasserts  that  Charlemagne's  early  life  passed  in 

himself  to  have  been  the  author  of  the  the  depths  of  ignorance ;  and  Ggiuhard 

Libri  Carolinl,  and  Is  said  by  some  to  gives  a  fair  reason  why   he   fidled   in 

have  coDiposvd  verses,    llldt.  Litt.  de  la  acquiring  the  art  of  writing,   that  he 

France,  ili.  87.  But  did  not  Henry  VIII.  began  too  late.    Fingers  of  fifty  are  not 

claim  a  book  against  Luther,  which  was  made   for  a  new  skill.    It   is  not,    of 

not  written  by  himself  ?     Qui  /aeit  per  course,  implied  by  the  words  that  h« 

o/tum,  faeit  per  se,  in  in  all  cases  a  royal  could  not  write  his  own  name;  but  that 

prerogative.     Even    if   the    book   were  he  did  not  acquire  such  a  Itedlit/  as  he 

Charlemagne's  own,  might  he  not  have  desired.    (1S481 

dictated  it  ?    I  liave  been  informed  that  *  Spelman,  Vit.  Alflred.  Append, 

there  is  a  manuscript  at  Vienna  with  *  lUst.  Litttealr*  de  la  Fnnoe,  t.  ^ 

autograph  notes  of  Charlemagne  in  the  p.  6. 
margin.    But  is  there  sufficient  evidence 


tirt ATE  o¥  SooiBTT.    THE  DISCJSE  OF  LATIN.  43 X 

the  state  of  letters  in  Italy  and  In  England  during  the  sno- 
ceeding  centurj ;  but  France  cannot  be  denied  to  have  been 
uniform)/,  though  very  slowly,  progressive  from  the  time  of 
Charlemagne.^ 

Of  this  pH^vailing  ignorance  it  is  easy  to  produce  abun- 
dant testimony.  Contracts  were  made  verbally,  for  want  of  . 
notaries  capable  of  drawing  up  charters ;  and  these,  when 
written,  were  frequently  barbarous  and  ungrammatical  to  an 
incredible  degree.  For  some  considerable  intervals  scarcely 
any  monument  of  literature  has  been  preserved,  except  0  few 
jejune  chronicles,  the  vilest  legends  of  saints,  or  verses  equally 
destitute  of  spirit  and  metre.  In  almost  every  council  the 
ignorance  of  the  clergy  forms  a  subject  for  reproach.  It  is 
asserted  by  one  held  in  992  that  scarcely  a  single  person  was 
to  be  found  in  Rome  itself  who  knew  the  first  elements  of 
letters.'  Not  one  priest  of  a  thousand  in  Spain,  about  the 
age  of  Charlemagne,  could  address  a  common  letter  of  salu- 
tation to  another.*  In  England,  Alfred  declares  that  he 
could  not  recollect  a  single  priest  south  of  the  Thames  (the 
most  civilized  part  of  England),  at  the  time  of  his  accession, 
who  understood  the  ordinary  prayers,  or  could  translate  Latin 
into  his  mother-tongue.^  Nor  was  this  better  in  the  time  of 
Dunstan,  when,  it  is  said,  none  of  the  clergy  knew  how  to 
write  or  translate  a  Latin  letter.*    The  homilies  which  they 

1  These  fbnr  dark  oentnrles,  the  eighth,  Teny  wlih  the  Sancens.    But,  an  thia  la 

ninth,  tenth,  and  elerenth,  occnpy  fire  not  rery  credible,  we  maj  rest  with  the 

large  quarto  rolumefl  of  the  Uterary  main  ftct  that  they  conid  write  no  La,tln. 

History  of  France,  by  the  fathers  of  St.  *  Spehnan,  Vlt.  Alfred.  Append.     The 

Maur.    But  the  moat  ueenil  part  will  whole  drift  of  Alfred's  prefiice  to  this 

be  found  In  the  general  Tiew  at  the  com-  translation  is  to  defend  the  expediency 

meneement    of  each  Tolume;    the    re>  of  rendering  boolcs  into  English,  on  ho- 

mainder  Is  taken  np  with  biographies,  count  of  the  general  ignorance  or  Latin. 

Into  which  a  reader  may  dive  at  random.  The  aeal  which    this    excellent   prince 

and  SMnetlmes  bring  up  a  curious  flict.  shows  for  literature  Is  delightful.    Let 

I  may  refer  also  to  the  14th  Toiume  of  us  endeaTor,  he  says,  that  all  the  Bng- 

Leber,  Collections  Kelatires  &  Pllistoire  lish  youth,  especially  the    children   of 

tfe  France,  where  some  learned  disserta-  those  who  are  free-born,  and  can  educate 

lions  by  the  Abbte  Lebeuf  and  Goiijet,  a  them,  may  learn  to  read  English  before 

Bttle  before  the  middle  of  the  last  cen-  they  take  to  any  employment.    After- 

tury,  an  reprinted.    [Noti  I.]  wards  such  as  please  may  be  instructed 

Tfiabosohi,  Storia   della  Letteratura,  In  Latin.    Before  the  Danish  InTSsIon 

t  iii.,  and  Muratori's  forty-third  Disser-  Indeed,  he  tells  us,  churches  were  wel 

tation,  are  good  authorities  for  the  con-  furnished  with  books;  but  the  priesta 

dilion  of  letters  In  Italy  ;  but  I  cannot  cot  little  good  from  them,  being  written 

^f^^J  give  references  to  aU  the  books  in  a  foreign  language  which  they  could 

Which  I  hare  eonsultad.  not  understand. 

*  Tiraboechi,  t.  ill.  p.  196.  »  MaUUon,  Be  Re  Biplomatlcft,  p.  66. 

*  UaUUon,  Be  Re  Diplomatloft,  p.  56.  Ordericus  Vitalls,  a  more  candid  judge  of 
The  reason  all^ped.  Indeed,  Is  that  they  our  unfortunate  ancestors  than  other 
were  wholly  occupied  with  studying  contemporary  annalists,  says  that  tha 
▲nUo,  In  order  to  oany  on  a  oontro-  BngUsh  were,  at  the  Oon^oeft.  mds  ami 

VOL.  II.  ~~  X.  SI 


482  SCABdTT  OF  BOOKS.      Chap.  IZ.  Pabt  L 

preached  were  compiled  for  their  use  by  some  bishops 
from  former  works  of  the  same  kind,  or  the  writings  of  the 
fathers. 

This  universal  ignorance  was  rendered  unavoidable,  amon(|f 
Scareity  of  Other  causcs,  bj  the  scarcity  of  books,  which  could 
*>~'^-  only  be  procured  at  an  immense  price.     From  the 

conquest  of  Alexandria  by  the  Saracens  at  the  beginning  of 
the  seventh  century,  when  the  Egyptian  papyrus  almost 
ceased  to  be  imported  into  Europe,  to  the  close  of  the  elev- 
enth, about  which  time  the  art  of  making  paper  from  cotton 
rags  seems  to  have  been  introduced,  there  were  no  materials 
for  writing  except  parchment,  a  substance  too  expensive  to  be 
readily  spared  for  mere  purposes  of  literature.^  Hence  an 
unfortunate  practice  gained  ground,  of  erasing  a  manuscript 
in  order  to  substitute  another  on  the  same  skin.  This  occa- 
sioned the  loss  of  many  ancient  authors,  who  have  made  way 
for  the  legends  of  saints,  or  other  ecclesiastical  rubbish. 

If  we  would  listen  to  some  literary  historians,  we  should 
believe  that  the  darkest  ages  contained  many  indi- 
eminent  viduals,  uot  Only  distinguished  among  their  contem- 
menia  porarics,  but  positively  eminent  for  abilities  and 

knowledge.  A  proneness  to  extol  every  monk  of 
whose  production  a  few  letters  or  a  devotional  treatise  sur- 
vives, every  bishop  of  whom  it  is  related  that  he  composed 
homilies,  runs  through  the  laborious  work  of  the  Benedic- 

ftlmoct  illiterate^  which  he  aaerlbeB  to       Manusmripta  written  on  papyrus,  aa 

the  Danish  inranion.    Du  Cheene,  Hist,  may  he  supposed  ftom  the  fnsjj^lity  of 

Norm.  Script,  p.  618.    Howerer,  Insulftia  the  material,  as  well  as  the  difflcalty  of 

tells  us  that  the  library  of  Croylandeon-  proourinK  It.  are  of  extreme  rarity.  That 

tained  above  three    hundred  volumes,  in  the  British  Museum,  being  a  oharter 

till  the  unibrtunate  fire  that  destroyed  to  a  church  at  Ravenna  in  672,  is  in 

that  abbey  in  1091.  Gale,  XV  Seriptores,  erery  respeet  the  most  carious :  and  in- 

t.  i.  dS.    Such  a  library  was  very  ex-  deed  both  HabiUon  and  Muratori 


traordinary  in  the  eleventh  century,  and  noTer  to  have  seen  anything  written  oa 

could  not  have  been  equalled  for  some  papyrus,  though  they  trace  its  occadmal 

ages  afterwards.    Ingulfus  mentions  at  use  down  to  the  eleventh  or  twelfth  oen 

the  same  tim^  a  nadir,  as  he  calls  it,  or  turies.    BlabUlon,  De  He  Diplomatic^,  L 

?Umeciirium,  executed  in  Tuious  metals.  U.  ;  Muratori,  Antichlt4  Italiane,  Db- 

hls  had  been  presented  to  abbot  Tur»  sert.  xliii.  p.  002.    But  the  authors  «t 

ketul  In  the  tenth  century  by  a  king  of  the  Nouveau  Traits    de    Dfplomatiqno 

France,  and  wss,  I  make  no  doubt,  of  speak  of  several  manuscripts  on  this 

Arabian  or  Gre)k  manofiicture.  material  as  extant  la  ITranoe  and  Italy. 

1  Parchment  was  so  scarce  that  none  1. 1,  p.  4B8. 
eould  bs    procured  about  1120  for  an       As  to  the  general  aearcity  and  high 

Illuminated  copy  of  the  Bible.    Warton's  price  of  books  in  the  middle  agee,  Rob- 

mst.  of  English  Poetry,  Dissert.  II.    I  ertson   (Introduction    to  Uist.  Cbcrlae 

suppose  the  deficiency  was  of  skins  bean-  Y.  note  z.),  and  Warton  in  the  above- 


Hful  enouch  for  thb  purpose ;  it  cannot  dted  disnrtatlon,  not  to  quote  author* 
be  meant  that  there  was  no  paroliment  less  aooeesible,  have  collected  some  of  the 
forlsaal  Instrumenti.  leading  fhets;  to  whom  I  vafor  the  raadav 


flTATB  OF  SociBTY.    WANT  OF  LITERABY  EMINENCB.         483 

tine8  of  St.  Maur,  the  Literary  History  of  France,  and,  in  a 
less  degree,  is  observable  even  in  Tirab()schi,  and  in  most 
books  of  this  class.  Bede,  Alcuin,  Hincmar,  Raban,  and  a 
number  of  inferior  names,  become  real  giants  of  learning  in 
their  uncritical  panegyrics.  But  one  might  justly  say  that 
ignorance  is  the  smallest  defect  of  the  writers  of  these  dark 
ages.  Several  of  them  were  tolerably  acquainted  with  books ; 
but  that  wherein  they  are  uniformly  deficient  is  original  argu- 
ment or  expression.  Almost  every  one  is  a  compiler  of 
scraps  from  the  fathers,  or  from  such  semi-classical  authors  as 
Boethius,  Cassiodorus,  or  Martianos  Capella.^  Indeed  I  am 
not  aware  that  there  appeared  more  than  two  really  consider- 
able men  in  the  republic  of  letters  from  the  sixth  to  the  mid- 
dle of  the  eleventh  century  —  John,  sumamed  Scotus  or 
£rigena,  a  native  of  Ireland ;  and  Gerbert,  who  became 
pope  by  the  name  of  Silvester  IL  :  the  first  endowed  with  a 
bold  and  acute  metaphysical  genius ;  the  second  excellent,  for 
the  time  when  he  lived,  in  mathematical  science  and  mechan- 
ical inventions.' 

1  Lett  I  Bhoold  Mem  to  have  ipoken  had  not  the  repntatton  of  nnblemtohed 

too  peremptorily,  I  wish  it  to  be  under*  orthodoxy,  the  drift  of  his  philoeophj 

stood  (but  I  pretend  to  hardly  any  direct  was  not  understood  in  that  barbarouf 

acquaintance  with    these   writers,  and  period.    He  might.  Indeed,  hare  excited 

found  my  censure  on  the  authority  of  censure  by  his  intrepid    preference   of 

others,  ehit>fly  indeed  on  the  admiiwions  reason  to  authority.    "  Authority,"  ho 

of  thoee  who  are  too  disposed  to  fkll  Into  says,  "  springs  from  reason,  not  reason 

a    strain    of    panegyric.    See    Iliatoire  ftom  authority  —  true  reason  needs  not 

Litt^raira  de  La  France,  t.  it.  p.  281  et  be  confirmed    by  any  authority.''    La 

alibi.  T6ritable    importance    historique,   saya 

*  John  ScotOB,  who,  It  Is  almost  need-  AmpAre,  de  Scot  Erigdne  n^est  done  pas 

leas  to  say,  must  not  be  confounded  with  dans  ses  opinions  ;  celles-ci  n'ont  d^antro 

the    still    more   funous  metaphysician  int^rdt  que  leur  date  et  le  lieu  ou  elJes 

Duns  Scotus,  lived  under  Ctiarles  the  apparaiasent.    Sans  doute,  U  est  piquant 

Bald,  In  the  middle  of  the  ninth  century,  et  biaarre  de  Toir  cea  opinions  orientales 

It  admits  of  no  doubt  that  John  Scotus  et  alexandrines  surgir  an  IX«  sitele,  4 

was,  in  a  literary  and  philosophical  sense,  I^rla,  k  la  cour  de  Charles  le  ChauTo: 

the  most  remaricable  man  of  the  dark  mais  ce  qui  n*eat  pas  seulement  piquant 

ages ;  nc  one  else  had  his  boldness,  his  et  blaure,  ce  qui  intiresse  le  d^Teloppe- 

•ubtlety  In  threading  the  labyrinths  of  ment  de  Pesprit  humaln.  o^est  que  la 

BietaphTsical  speculations  which,  in  the  question  alt  iU  pos^e,  dte  lors.  si  nette- 

west  of  Burope,  had  been  utterly  disre-  ment  entre  I'autoritA  et  la  ralson,  et  si 

garded.     But   it   is    another  question  Anergiqoement  r6eolue  en  &Teur  de  la 

whether  he  can  be  reckoned  an  original  seconde.    Bn  un  mot,  par  ses  id4es«  Scot 

writer;  those  who  liaTe  attended  most  to  Brigdne  est  encore  an  philosophe  de  I'an- 

his  treatise  De   DiTistooe  Naturae,  the  tiqultA  Orecque;  et  par  lUndApendance 

Dostabetrujie  of  his  works,  consider  it  as  hautement  aoouste  de  son  point  de  Tue 

the  dcTelopment  of  an  oriental  philos-  philosopbique,  11  est  d^Jk  an  d^Tancier 

ophy,  acquired  daring  his  residence  in  de  la  philosophle  modeme.    Hist.  Litt. 

ureeee,  and  nearly  coinciding  with  some  lii.  146. 

ofthelaterPlatonism  of  the  Alexandrian  Silveeter  11.  died  In  1006.    Whether 

ashool,    bat  with  a  mors   unequiTOcal  be  first  brought  the  Arabic  numeration 

tendsney  to  pantheism.    This  manltets  Into  Barope,  as  has  been  commonly  said. 

Itself  in  some  extracts  which  have  lat-  seems  uncertain;   it  was  at   least  not 

thri/  bran  mal9  firom  the  treatise  Do  much  practised  for  some  centuries  aflst 

Natum;  bat  thoagh  Seotoa  his  death. 


INtmoim 


484  CAUSES  OF  THE  Chai*.  Dl.  Pabt  1 

If  it  bo  demanded  by  what  cause  it  happened  that  a  few 

sparks  of  ancient  learning  survived  throughout  thia 

SramTHdo^  long  winter,  we  can  only  ascribe  their  preservation 

—  **iiEto*     to  the  establishment  of  Christianity.   Religion  alone 

^  '^'  made  a  bridge,  as  it  were,  across  the  chaos,  and  has 
linked  the  two  periods  of  ancient  and  modem  civilization. 
Without  this  connecting  principle,  Europe  might  indeed  have 
awakened  to  intellectual  pursuits,  and  the  genius  of  recent  , 
times  needed  not  to  be  invigorated  by  the  imitation  of  antiq- 
uity. But  the  memory  of  Greece  and  Rome  would  have 
been  feebly  preserved  by  tradition,  and  the  monuments  of. 
those  nations  might  have  excited,  on  the  return  of  civilization, 
that  vague  sentiment  of  speculation  and  wonder  with  which 
men  now  contemplate  Persepolis  or  the  Pyramids.  It  is  not, 
however,  from  religion  simply  that  we  have  derived  this  ad- 
vantage, but  from  religion  as  it  was  modified  in  the  dark  ages. 
Such  is  the  complex  reciprocation  of  good  and  evil  in  the  dis- 
pensations of  Providence,  that  we  may  assert,  with  only  an 
apparent  paradox,  that,  had  religion  been  more  pure,  it  would 
have  been  less  permanent,  and  that  Christianity  has  been  pre- 
served by  means  of  its  corruptions.  The  sole  hope  for  lit- 
erature depended  on  the  Latin  language ;  and  I  do  not  see 
why  that  should  not  have  been  lost,  if  three  circumstances  in 
the  prevailing  religious  system,  all  of  which  we  are  justly 
accustomed  to  disapprove,  had  not  conspired  to  maintain  it  — 
the  papal  supremacy,  the  monastic  institutions,  and  the  use  of 
a  Latin  liturgy.  1.  A  continual  intercourse  was  kept  up,  in 
consequence  of  the  first,  between  Rome  and  the  several  na- 
tions of  £urope  ;  her  laws  were  received  by  the  bishops,  her 
legates  presided  in  councils ;  so  that  a  common  language  was 
as  necessary  in  the  church  as  it  is  at  present  in  the  diplo- 
matic relations  of  kingdoms.  2.  Throughout  the  whole  course 
of  the  middle  ages  there  was  no  learning,  and  very  little  regu- 
larity of  manners,  among  the  parochial  clergy.  Almost  every 
distinguished  man  was  either  the  member  of  a  chapter  or  of 
a  convent.  The  monasteries  were  subjected  to  strict  rules 
of  discipline,  and  held  out,  at  the  worst,  more  opportunities 
for  study  than  the  secular  clergy  possessed,  and  fewer  for 
worldly  dissipations.  But  their  most  important  service  was 
as  secure  repositories  for  books.  All  our  manuscripts  have 
been  preserved  in  this  manner,  and  could  hardly  have  de- 
scended to  us  by  any  other  channel ;  at  least  there  were  in* 


Statb  of  Socibtt.    preservation  OF  LEARNING.  485 

tenrals  when  I  do  not  conceive  that  any  royal  or  private 
libraries  existed.^  8.  Monasteries,  however,  would  probably 
have  contributed  very  little  towards  the  preservation  of  learn- 
ing, if  the  Scriptures  and  the  liturgy  had  been  translated  out 
of  Latin  when  that  language  ceased  to  be  intelligible*  Every 
rational  principle  of  religious  worship  called  for  such  a  change ; 
but  it  would  have  been  made  at  the  expense  of  posterity. 
One  might  presume,  if  such  refined  conjectures  were  con- 
sistent with  historical  caution,  that  the  more  learned  and 
sagacious  ecclesiastics  of  those  times,  deploring  the  gradual 
corruption  of  the  Latin  tongue,  and  the  danger  of  its  absolute 
extinction,  were  induced  to  maintain  it  as  a  sacred  language, 
and  the  depository,  as  it  were,  of  that  truth  and  that  science 
which  would  be  lost  in  the  barbarous  dialects  of  the  vulgar. 
But  a  simpler  explanation  is  found  in  the  radical  dislike  of 
innovation  which  is  natural  to  an  established  clergy.  Nor 
did  they  want  as  good  pretexts,  on  the  ground  of  convenience, 
as  are  commonly  alleged  by  the  opponents  of  reform.  They 
were  habituated  to  the  Latin  words  of  the  church-service, 
which  had  become,  by  this  association,  the  readiest  instru- 
ments of  devotion,  and  with  the  majesty  of  which  the  Ro- 
mance jargon  could  bear  no  comparison.  Their  musical 
chants  were  adapted  to  these  sounds,  and  their  hymns  de- 
pended, for  metrical  effect,  on  the  marked  accents  and  power- 
ful rhymes  which  the  Latin  language  affords.  The  vulgate 
Latin  of  the  Bible  was  still  more  venetable.  It  was  like 
a  copy  of  a  lost  original ;  and  a  copy  attested  by  one  of  the 

1  CharlemapM  had  a  Ubnryat  Aix>  of  Cfoero  was  probably  the  spnrioas  boolu 

la-CbapeUe,  which  h«  direetod  to  be  sold  Ad  HereDuiam.  But  other  librariea  musl 

afc  hlfl  death  for  the  benefit  of  the  poor,  have  been  eomewhat    better  ftimisbed 

His  ion  Looia  is  said  to  have  coileoted  than  this  ;  else  the  Latin  authors  would 

some  books.    But  this  rather  oonllnns,  hare  been  still  less  known  in  the  ninth 

on  the  whole,  my  supposition  that,  in  century  than  they  actually  were, 

■ome  periods,  no  royal  or  prirate  Ubnuries  In  the  gradual  progress  of  learning,  a 

existed,    since  there   were   not  alwsys  yery  small  number  of  princes  thought  it 

princes  or  nobles  with  the  spirit  of  Char-  honorable  to  collect  books.    Perhaps  no 

lemogne,  or  eren  Louis  the  Debonair.  earlier  Instance  can  be  mentioned  than 

"  We  possess   a   catalogue,"  says  M.  that  of  a  mo8t  respectable  man,  William 

Amptee  (quoting  d'Achery's  Spleilegium,  III.,  Duke  of  Outenne,  in  the  first  part 

li.  810),  ''  of  the  library  in  the  abbey  of  of  the  eleyenth  century.    Fuit  dux  iste, 

Bt.  Riquler,  written  in  881 ;  it  consists  says  a  contemporary  writer,  a  pueritia 

of  256  TOlumes.  some  containing  sereral  dootus  Uteris,  et  saUs  noUtiam  Scrip* 

works.    ChristUn  writers   are   in  great  turarum  habnit ;    librorum  copiam  in 

m^rity ;  but  we  find  also  tht  Eclogues  palatio  sno  servavit ;   et  si  fbrte  a  fte- 

of  Vlr^,  the  Rhetorlo  of  Cicero,  the  quentia  eausarnm  et  tumnltu  Taearei, 

History  of  Homer,  that   is,  the  worlcs  lectioni  per  seipsum  operam  dabat  longi* 

■scribed  to  Dictys  and  Dans."    Amp(ftre,  oribns  noctibus  elueubrans    in    Ubris, 

ttl.  280.    Can  anything  be  lower  than  donee  sonuio  Tinoeretur.    Bee.  dss  lUsI 

Ihis,  If  nothing  is  omitted  more  taluable  z.  166. 
than  what  is  mentioMd  *     The  Khetozk 


48^  STJPEBSTmOKS.  Chap.  IZ.  Past  t 

most  eminent  fathers,  and  by  the  general  consent  of  the 
church.  These  are  certainly  no  adequate  excuses  for  keep- 
ing the  people  in  ignorance ;  and  the  gross  corruption  of  the 
middle  ages  is  in  a  great  degree  assignable  to  this  policy. 
But  learning,  and  consequently  religion,  have  eventually  de- 
rived from  it  the  utmost  advantage. 

In  the  shadows  of  this  universal  ignorance  a  thousand 
Snpmti-  superstitions,  like  foul  animals  of  night,  were  prop- 
ttou.  agated  and  nourished.    It  would  be  very  unsatis- 

factory to  exhibit  a  few  specimens  of  this  odious  brood,  when 
the  real  character  of  those  times  is  only  to  be  judged  by 
their  accumulated  multitude.  In  every  age  it  would  be  easy 
to  select  proofs  of  irrational  superstition,  which,  separately 
considered,  seem  to  degrade  mankind  from  its  level  in  the 
creation;  and  perhaps  the  contemporaries  of  Swedenborg 
and  Southcote  have  no  right  to  look  very  contemptuously 
upon  the  fanaticism  of  their  ancestors.  There  are  many 
books  from  which  a  sufficient  number  of  instances  may  be 
collected  to  show  the  absurdity  and  ignorance  of  the  middle 
ages  in  this  respect  I  shall  only  mention  two,  as  affording 
more  general  evidence  than  any  local  or  obscure  supersti- 
tion. In  the  tenth  century  an  opinion  prevailed  everywhere 
that  the  end  of  the  world  was  approaching.  Many  charters 
begin  with  these  words,  ^  As  the  world  is  now  drawing  to  its 
close."  An  army  marching  under  the  emperor  Otho  I.  was 
so  terrified  by  an  eclipse  of  the  sun,  which  it  conceived  to 
announce  this  consummation,  as  to  disperse  hastily  on  all 
sides.  As  this  notion  seems  to  have  been  founded  on  some 
confused  theory  of  the  millennium,  it  naturally  died  away 
when  the  seasons  proceeded  in  the  eleventh  century  with 
their  usual  regularity.^  A  far  more  remarkable  and  perma- 
nent superstition  was  the  appeal  to  Heaven  in  judicial  con- 
troversies, whether  through  the  means  of  combat  or  of  ordeaL 
The  principle  of  these  was  the  same ;  but  in  the  former  it 
was  mingled  with  feelings  independent  of  religion  —  the  nat- 
ural dictates  of  resentment  in  a  brave  man  unjustly  accused, 
and  the  sympathy  of  a  warlike  people  with  the  display  of 
skill  and  intrepidity.  These,  in  course  of  time,  almost  oblit- 
erated the  primary  character  of  judicial  combat,  and  ulti- 
mately changed  it  into  the  modem  duel,  in  which  assuredly 

1  Robertaon,  Introdnotlon    to  HSst.    Allemands,  t.  II.  p.  (80;  Hift.  UttAiaiM 
OharlM  V.  note  IB;  SohmidU  Hist,  das    d»  1ft  VzMiee,  i.  Ti. 


Atatb  of  Sooobtt.  superstitions.  487 

there  is  no  mixture  of  superstition.^  But,  in  the  Torious 
tests  of  innocence  which  were  called  ordeals,  this  stood  un- 
disguised and  unqualified.  It  is  not  necessary  to  describe 
what  is  so  weU  known  —  the  ceremonies  of  trial  bj  handling 
hot  iron,  by  plunging  the  arm  into  boiling  fluids,  by  floating 
or  sinking  in  cold  water,  or  by  swallowing  a  piece  of  conse- 
crated bread.  It  is  observable  that,  aid  the  interference  of 
Heaven  was  relied  upon  as  a  matter  of  course,  it  seems  to 
have  been  reckoned  nearly  indifferent  whether  such  a  test 
was  adopted  as  must,  humanly  considered,  absolve  all  the 
guilty,  or  one  that  must  convict  all  the  innocent.  The  or- 
deals of  hot  iron  or  water  were,  however,  more  commonly 
used ;  and  it  has  been  a  perplexing  question  by  what  dex- 
terity these  tremendous  proofs  were  eluded.  They  seem  at 
least  to  have  placed  the  decision  of  all  judicial  controversies 
in  the  hands  of  the  clergy,  who  must  have  known  the  secret, 
whatever  that  might  be,  of  satisfying  the  spectators  that  an 
accused  person  had  held  a  mass  of  burning  iron  with  impu- 
nity. For  several  centuries  this  mode  of  investigation  was 
in  great  repute,  though  not  without  opposition  from  some 
eminent  bishops.  It  does  discredit  to  the  memory  of  Charle- 
magne that  he  was  one  of  its  warmest  advocates.'  But  the 
judicial  combat,  which  indeed  might  be  reckoned  one  species 
of  ordeal,  gradually  put  an  end  to  the  rest ;  and  as  the  church 
acquired  better  notions  of  law,  and  a  code  of  her  own,  she 

1  IhMlUos,  in  th«  modflm  MOfle  of  the  tlon  if  »  flgnrc  of  Oluurlet  VU.  t.  iiL 

votd.,  exclnd-ra  of  euoal  ft»j8  and  singls  pi.  47. 

comlMt  during  war,  was  anknowo  belbro  *  Balmll  Oaplfealaria,  p.  444.    It  was 

the  Bixteonth  eantuiy.    Bot  wa  find  ono  prohiUtod  bj  LonJj  the  Debonair;  a  man, 

anecdote  whteh  seeme  to  illnetrate  its  as  I  have  noticed  In  another  place,  not 

derirafelon  fH»n    the  Jndieial  eombat.  inlteior,  as  a  leglBlator,  to  his  Ikther. 

The  dukes  of  lAneastar  and  Brunswick,  Ibid.  p.  668.    **The  spirit  of  party,'* 

haring  some  dilfcrsnces,  agreed  to  decide  says  a  late  writer,  **  has  often  aeerued 

them  by  duel  belbrs  John  king  of  France,  the  church  of  liarlng  derised  theee  bar- 

The  lists  were  prepared  with  the  solem-  barons  methods  of  diaeorering  truth  — 

nity  of  a  leal  trial  by  battle;  but  the  the  duel  and  the  ordeal ;  nothing  can  be 

king  loterfined  to  prevent  the  engage*  more  ni^ust.    Neither  one  nor  the  other 

ment.    Vlllaret,  t.  iz.  p.  71.    The  bar-  is  derived  from  Christianity  ;  they  existed 

barons  praetiee  of  wearing  swords  as  a  long  before  in  tbe  Qermanlc  usages." 

part  of  domestic  drees,  which    tended  Ampere,  ffist.  Litt.  de  la   France,  lii. 

feiy  much  to  the  freoueney  of  duelling,  180.    Any  one  must  hare  been  very  i^- 

was  not  introduced  till  the  Utter  part  of  norant  who  attributed  the  luTentlon  of 

Ihe  16th  century.    I  can  only  find  one  ordeals  to  the  church.    But  during  the 

print  in  Montfliucon^s  Monuments  of  the  dark  ages  they  were  always  sanctioned. 

French  monarchy  where  a  sword  is  worn  Agobard,  from  whom  M.  Ampere  dfes  a 

without   annor    befors    the    reign    of  quotation,  in  the  reign  of   Louis   the 

Charles  VIII. :  though  a  Ibw,  as  eariy  Debonair  wrote  strong  against  them ; 

as  the  reign  of  Charles  VI.,  have  short  but  this  was   the    remonstrance  of   a' 

daigfian   in    their  girdles.    Tbe  exeep-  superior  man  in  an  age  that  was  VH^ 

IneliMd  to  liear  him. 


488  ENTHUSIASTIC  RISINGS.     Chap.  IX.  PAjger  t 

atrenaouslj*  exerted  herself  against  all  these  barbarous  super- 
stitions.^ 

But  the  religious  ignorance  of  the  middle  ages  sometimes 
Bnthiuiaaae  burst  out  in  ebuUitions  of  epidemical  enthusiasm, 
v^Qs*-  more  remarkable  than  these  superstitious  usages, 
though  proceeding  in  fact  from  similar  causes.  For  enthu- 
siasm is  little  else  than  superstition  put  in  motion,  and  is 
equally  founded  on  a  strong  conviction  of  supernatural  agency 
without  any  just  conceptions  of  its  nature.  Nor  has  any  de- 
nomination of  Christians  produced,  or  even  sanctioned,  more 
fiinaticism  than  the  church  of  Rome.  These  epidemical 
frenzies,  however,  to  which  I  am  alluding,  were  merely 
tumultuous,  though  certainly  fostered  by  the  creed  of  per- 
petual miracles  which  the  clergy  inculcated,  and  drawing  a 
legitimate  precedent  for  religious  insurrection  from  the  cru- 
sades. For  these,  among  other  evil  consequences,  seem  to 
have  principally  excited  a  wild  fanaticism  that  did  not  sleep 
for  several  centuries.' 

The  first  conspicuous  appearance  of  it  was  in  the  reign  of 
Philip  Augustus,  when  the  mercenary  troops,  dismissed  frx>m 
the  pay  of  that  prince  and  of  Henry  U.,  committed  the 
greatest  outrages  in  the  south  of  France.  One  Durand,  a 
carpenter,  deluded  it  is  said  by  a  contrived  appearance  of  the 
Virgin,  put  himself  at  the  head  of  an  army  of  the  populace, 
ip  order  to  destroy  these  marauders.  His  followers  were 
styled  Brethren  of  the  White  Caps,  from  the  linen  coverings 
of  their  heads.     They  bound  themselves  not  to  play  at  dice 

1  Ordeals  were  not  Mttully  ftboltohed  known,  that  protect  the  tdcf  n  to  a  eertaln 
in  France,  notwithstanding  the  law  of  degreeagainst  the  effect  of  Are.  This  pho- 
Louis  aboTe-mentloned,  so  late  aa  the  nomenon  would  pass  fbr  mliaenlous,  and 
eleTonth  century  (Bouquet,  t.xi.  p.  480),  form  the  hasis  of  those  exaggerated 
nor  in  England  till  the  reign  of  Henry  stories  in  monkish  books, 
ni.  Some  of  the  stories  we  read,  where-  >  The  most  singular  effect  of  this  era- 
in  accused  persons  haTe  passed  trlum-  sading  spirit  was  witnessed  in  1211,  when 
phancly  through  these  seTere  prooft,  are  a  multitude,  amounting,  as  some  saj,  to 
perplexing  enough;  and  perhaps  it  is  90,000,  chiefly  composed  of  children, and 
safer,  as  well  as  easier,  to  deny  than  to  commanded  by  a  child,  set  out  for  the 
explain  them.  For  example,  a  writer  in  purpose  of  lecoTerlng  the  Holy  Land, 
the  Archttologia  (toI.  xt.  p.  172)  has  They  came  for  the  most  part  from  Gtor- 
phown  that  Emma,  queen  of  Edward  the  many,  and  reached  Genoa  without  harm. 
Confessor,  did  not  perform  her  trial  .by  But,  finding  thereanobetaele  which  their 
stepping  betweeH^  as  Blaekstone  imagines,  imperfect  knowledge  of  geography  had 
but  wpon  nine  red-hot  ploughshares.  But  not  anticipated,  they  soon  cUsporsed  In 
he  seems  not  aware  that  the  whole  story  various  directions.  '  Thirty  ihouaand  ar- 
ts unsupported  by  any  contemporary  or  rlTed  at  Marseilles,  where  part  wen  ma1^ 
stren  respectable  testimony.  A  similar  dered,  part  probably  starred,  and  the 
aneciote  Is  related  of  Cunegnnda,  wilb  rest  sold  to  the  Saracens.  Annall  di  Mu 
of  Uie  emperor  Henxy  n..  which  proba-  ntoil,  a.  n.  1211 ;  Vally,  Hist  ds Fimocs^ 
bly  gsTs  rise  to  that  of  Emma.  There  t.  It.  p.  206. 
■n,  hoKeter,  medicaments,  as  Is  well 


8TATB  OF  SociXTT.     ENTHUSIASTIC  RISINGS.  489 

nor  frequent  taverns,  to  wear  no  affected  clothing,  to  avoid 
perjury  and  vain  swearing.  After  some  successes  over  the 
plunderers,  thej  went  so  far  as  to  forbid  the  lords  to  take 
anj  dues  from  their  vassals,  on  pain  of  incurring  the  indigo 
nation  of  the  brotherhood.  It  may  easily  be  imagined  that 
they  were  soon  entirely  discomfited,  so  that  no  one  dared  to 
own  that  he  had  belonged  to  them.^ 

During  the  captivity  of  St.  Louis  in  Egypt,  a  more  exten- 
sive and  terrible  ferment  broke  out  in  Flanders,  and  spread 
from  thence  over  great  part  of  France.  An  impostor  de- 
clared himself  commissioned  by  the  Virgin  to  preach  a  cru- 
sade, not  to  the  rich  and  nol^le^  who  for  their  pride  had  been 
rejected  of  Grod,  but  the  poor.  His  disciples  were  called 
Pastoureaux,  the  simplicity  of  shepherds  having  exposed 
them  more  readily  to  this  delusion.  In  a  short  time  they 
were  swelled  by  the  confluence  of  abundant  streams  to  a 
moving  mass  of  a  hundred  thousand  men,  divided  into  com- 
panies, with  banners  bearing  a  cross  and  a  lamb,  and  com- 
manded by  the  impostor^s  lieutenants.  He  assumed  a  priestly 
character,  preaching,  absolving,  annulling  marriages.  At 
Amiens,  Bourges,  Orleans,  and  Paris  itself,  he  was  received 
as  a  divine  prophet.  Even  the  regent  Blanche,  for  a  time, 
was  led  away  by  the  popular  tide.  His  main  topic  was  re- 
proach of  the  clergy  for  their  idleness  and  corruption — a 
theme  well  adapted  to  the  ears  of  the  people,  who  had  long 
been  uttering  similar  strains  of  complaint.  In  some  towns 
bis  followers  massacred  the  priests  and  plundered  the  monas- 
teries. The  government  at  length  began  to  exert  itself;  and 
the  public  sentiment  turning  against  the  authors  of  so  much 
confusion,  this  rabble  was  put  to  the  sword  or  dissipated.^ 
Seventy  years  afterwards  an  insurrection,  almost  exactly 
parallel  to  this,  burst  out  under  the  same  pretence  of  a  cru- 
sade. These  insurgents,  too,  bore  the  name  of  Pastoureaux, 
and  their  short  career  was  distinguished  by  a  general  mas- 
sacre of  the  Jews.* 

But  though  the  contagion  of  fanaticism  spreads  much 
more  rapidly  among  the  populace,  and  in  modern  times  is  al- 
most entirely  confined  to  it,  there  were  examples,  in  the  middle 

1  Tally,  t.  HI.  p.  286 ;  Da  Ouig»,  t.  *  Vellj,  Hist,  da  Tmnoe,  t.  Tin.  p.  99. 

CkpQcUa.  The  eontinuator  of  Nangia  nayi,  sieut 

'Velljf  RIflt.  de  FruMM,  t.  t.  p.  7;  ftimiu  BubitdeTanalttotaiUaoommoUo. 

IhiCanga,  T  PictOKlU.  Spiolkglam,  t.  Ui.  p.  77. 


490  ENTHUSUSTIC  BISH^GS.     Chaf.  H.  Par  L 

ages,  Off  an  epidemical  r^li^ous  lunacj,  firom  which  no  class 
was  exempt  One  of  these  occurred  about  the  year  1260, 
when  a  multitude  of  every  rank,  age,  and  sex,  marching  two 
bj  two  in  procession  along  the  streets  and  public  roads, 
mingled  groans  and  dolorous  hymns  with  the  sound  of 
leathern  scourges  which  they  exercised  upon  their  naked 
bacLs.  From  this  mark  of  penitence,  which,  as  it  bears  at 
least  nil  the  appearance  of  sincerity,  is  not  uncommon  in  the 
church  of  Rome,  they  acquired  the  name  of  Flagellants. 
Their  career  began,  it  is  said,  at  Perugia,  whence  they  spread 
over  the  rest  of  Italy,  and  into  Germany  and  Poland.  As 
this  spontaneous  fanaticism  met  with  no  encouragement  from 
the  church,  and  was  prudently  discountenanced  by  the  civil 
magistrate,  it  died  away  in  a  very  short  time.^  But  it  is  more 
surprising  that,  afler  almost  a  century  and  a  half  of  continual 
improvement  and  illumination,  another  irruption  of  popular 
extravagance  burst  out  under  circumstances  exceedingly 
similar.'  '^In  the  month  of  August  1399,"  says  a  contem- 
porary historian,  *^  there  appeared  all  over  Italy  a  description 
of  persons,  called  Bianchi,  from  the  white  linen  vestment 
that  they  wore.  They  passed  from  province  to  province, 
and  from  city  to  city,  crying  out  Misericordia !  with  their 
faces  covered  and  bent  towards  the  ground,  and  bearing 
before  them  a  great  crucifix.  Their  constant  song  was,  Stabat 
Mater  dolorosa.  This  lasted  three  months ;  and  whoever  did 
not  attend  their  procession  was  reputed  a  heretic"*  Almost 
every  Italian  writer  of  the  time  takes  notice  of  these  Bianchi ; 
and  Muratori  ascribes  a  remarkable  reformation  of  manners 
(though  certainly  a  very  transient  one)  to  their  influence.^ 
Nor  were  they  confined  to  Italy,  though  no  such  meritorious 
exertions  are  imputed  to  them  in  other  countries.  In  France 
their  practice  of  covering  the  face  gave  such  opportunity  to 
crimes  as  to  be  prohibited  by  the  government ;  *  and  we  have 
an  act  on  the  rolls  of  the  first  parliament  of  Henry  lY.,  for- 

1  Velly,  i.  T.  p.  279 ;   Dn  Gange,  t.  oommon  unonff  IndiTiduals,  that  m  eao. 

Verbentio.  not  be   surpmed  at   Uieir  iioinetlmea 

•a  Something  of  a  similar  kind  if  men-  becoming  in  a  manner  national.    Aaa- 

tioned   by  Q-  Vitlani,  under  the  year  xios,  a  chronicler  of  Milan,  after  deirrib* 

1810.    I.  viil.  e.  122.  ing  the  almost  incredible  dtsnoluteneea 

s  Annal.  Medlolan.  In  Murat.  Script,  of  E*aTia,  gires  an  account  of  an  Instan- 

Rer.  Ital.  t.  ztI.  p.  882;  O.  Stella.  Ann.  taneous   reformation    wron^t   by    tha 

Oennena.  t.  xrii.  p.  1072 ;  Chron.  Foro-  preaching  of  a  certain  friar.    Tluf  wai 

dvienee,  t.  ziz.  _p.  Si4 ;   Ann.  Bonln-  aboat  1^.    Script.  Rer.  Ital     t.  srt. 

eontrl,  t.  zxi.  p.  79.  p.  875. 

«  Diaaert.  76.    SnddeA  traoidtions  from  t  Villaxet,  t.  xU  p.  827. 
profligate  to  anitere  aoaimen  were  m 


Stats  of  Socivtt.     PKETEND£D  MIRACLES.  491 

bidding  an j  one,  ^  under  pain  of  forfeiting  all  his  woi*lh,  to 
receive  the  new  sect  in  white  clothes,  pretending  to  great 
sanctity,"  which  had  recently  appeared  in  foreign  parts.^ 

The  devotion  of  the  multitude  was  wrought  to  this  feverish 
height  by  the  prevailing  system  of  the  clergy.  In  pr«t«nded 
that  singular  polytheism,  which  had  been  grafted  on  "'i'*®**- 
Christianity,  nothing  was  so  conspicuous  as  the  belief  of  perpet- 
ual miracles — if  indeed  those  could  properly  be  termed  mir- 
acles  which,  by  their  constant  recurrence,  even  upon  trifling 
occasions,  might  seem  within  the  ordinary  dispensations  of 
Providence.  These  superstitions  arose  in  what  are  called 
primitive  times,  and  are  certainly  no  part  of  popery,  if  in  that 
word  we  include  any  especial  reference  to  the  Roman  see. 
But  successive  ages  of  ignorance  swelled  the  delusion  to  such 
an  enormous  pitch,  that  it  was  as  difficult  to  trace,  we  may  say 
without  exaggeration,  the  real  religion  of  the  Gospel  in  the 
popular  belief  of  the  laity,  as  the  real  history  of  Charle- 
magne in  the  romance  of  Turpin.  It  must  not  be  supposed 
that  these  absurdities  were  produced,  as  well  as  nourished, 
by  ignorance.  In  most  cases  they  were  the  work  of  deliber- 
ate imposture.  Every  cathedral  or  monastery  had  its  tutelar 
saint,  and  every  saint  his  legend,  fabricated  in  order  to  enrich 
the  churches  under  his  protection,  by  exaggerating  his  vir- 
tues, his  miracles,  and  consequently  his  power  of  serving 
those  who  paid  liberally  for  his  patronage.'  Many  of  those 
saints  were  imaginary  persons;  sometimes  a  blundered  in- 
scription added  a  name  to  the  calendar,  and  sometimes,  it  is 
said,  a  heathen  god  was  surprised  at  the  company  to  which 
be  was  introduced,  and  the  rites  with  which  he  was  honored.* 

It  would  not  be  consonant  to  the  nature  of  the  present 
work  to  dwell  upon  the  erroneousness  of  this  re- 
ligion ;  but  its  effect  upon  the  moral  and  intellect-  Ulriri^g^ 
u^  character  of  mankind  was  so  prominent,  that  &<>»  ^^on. 
no  one  can    take    a    philosophical  view  of  the  "**" 
middle  ages  without  attending  more  than  is  at  present  fash- 
ionable to  their  ecclesiastical  ^history.    That  Uie  exclusive 
worship  of  saints,  under  the  guidance  of  an  artful  though 

iKot.  Pari.  T.  m.  p.428.  *  MMdleton's  Lett«r  from  Boms.    If 

*  Thii  Is  eoofeaied  by  the  antbon  cf  iome  of  oar  eloquent  eoQntr7inaii*a  po* 

Htetolra  UtUnan  de  la  Pranoa,  t.  li.  p.  4,  aitions  ibonld  be  dlaputed,  tbere  are  stO] 

aod  Indeed  bj  many  eatbolie  writers.    I  abandant  eatboUo  teatlmonles  that  iinag* 

need  not  quote  Moehelm,  who  more  than  Inaiy  lalnts  haTt  been  canontawl. 
eonflrma  vnrj  word  of  my  text. 


492  MISCHIEFS  OF  SUPERSTITION.    Chaf.  DL  Pabc  L 

illiterate  priesthood,  degraded  the  understanding  and  b^ot  a 
stupid  credulity  and  fanaticism,  is  sufficientlj  evident  But 
it  was  also  so  managed  as  to  loosen  the  bonds  of  religion  and 
pervert  the  standard  of  morality.  If  these  inliabitants  of 
heaven  had  been  represented  as  stem  avengers,  accepting  no 
slight  atonement  for  heavy  offences,  and  prompt  to  interpose 
their  control  over  natural  events  for  the  detection  and  pun- 
ishment of  guilt,  the  creed,  however  impossible  to  be  recon- 
ciled with  experience,  might  have  proved  a  salutary  check 
upon  a  rude  people,  and  would  at  least  have  had  die  only 
palliation  that  can  be  offered  for  a  religious  imposture,  its 
political  expediency.  In  the  legends  of  those  times,  on  the 
contrary,  they  appeared  only  as  perpetual  intercessors,  so 
good-natured  and  so  powerful,  that  a  sinner  was  more  em- 
phatically foolish  than  he  is  usually  represented  if  he  failed 
to  secure  himself  against  any  bad  consequences.  For  a  little 
attention  to  the  saints,  and  especially  to  the  Virgin,  with  due 
liberality  to  their  servants,  had  saved,  he  would  be  told,  so 
many  of  the  most  atrocious  delinquents,  that  he  might 
equitably  presume  upon  similar  luck  in  his  own  case. 

This  monstrous  superstition  grew  to  its  height  in  the  twelfth 
century.  For  the  advance  that  learning  then  made  was  by 
no  means  sufficient  to  counteract  the  vast  increase  of  monas- 
teries, and  the  opportunities  which  the  greater  cultivation  of 
modem  languages  afforded  for  the  diffusion  of  legendary 
tales.  It  was  now,  too,  that  the  veneration  paid  to  the 
Virgin,  in  early  times  very  great,  rose  to  an  almost  exclusive 
idolatry.  It  is  difficult  to  conceive  the  stupid  absurdity  and 
the  disgusting  profaneness  of  those  stories  which  were  in- 
vented by  the  monks  to  do  her  honor.  A  few  examples  have 
been  thrown  into  a  note.^ 

1  Le  Orand  d^Aiuqr  hM  tfimn  w,  In  Itot  ^*  witli  lier  white  huidi,**  and  thu 

Ch«  fifth  Tolnme  of  hla  Fablinaz,  Miwiml  kept  him  allTe  two  dajs,  to  thm  do  rdwU 

of  the  religious  tAles  by  which  the  monks  surprise  of  the  executioner,  who  et- 

endeeTored  to  withdrew  the  people  fh>m  tempted   to  oomplete    his   work    with 

romances   of  chiTelry.     The   foUowiof  strokes  of  a  sword.    But  the  same  In- 


specimens  will  abundantty  confirm  mj  Tirible  liand  turned  aside  the  weapon, 

assertions,  which  maj  perhaps  appear  and  the  executioner  was  compelled   to 

harsh  and  extravagant  to  the  reader.  release  his  victim,  acknowledging   the 

There  was  a  man  whose  occupation  miracle.    The  thief  retired  into  a  mon> 

was  highway  robbery  ;  but  whenever  he  astery,  which  is  always  the  terminatlaa 

set  out  on  any  such  expedition,  he  was  of  these  deliverances, 

careful  to  addrsss  a  prayer  to  the  VIridn.  At  the  monastery  of  St  Peter,  near 

Taken  at  lust,  he  was  sentenced   to  be  Oologne,  lived  a  monk  perftctly  dlsfoluto 

hanged.    While  the  cord  was  round  his  and  irreligious,  but  very  devout  toward! 

neek  he  made  his  usual  prayer,  nor  was  the   Apoetle.    Unluckily  he   died  sud- 

UlnelbctiiaL    The  Vixsin  supported  his  deoly  without  oontesfcon.    The  fiendl 


State  of  Socixtt.     KOT  UNMIXED  WITH  GOOD. 


493 


Whether  the  saperstition  of  these  dark  ages  had  actaally 
passed  that  point  when  it  becomes  more  injurious 
to  public  morals  and  the  welfare  of  society  than  aitog«thex 
the  entire  absence  of  all  religious  notions  is  a  JJjJj'fJ^ 
▼erj  complex  question,  upon  which  I  would  bj  no 
means  pronounce  an  afi&rmatiye  decision.^    A  salutary  in- 
fluence, breathed  from  the  spirit  of  a  more  genuine  religion. 


mm»  at  usual  to  niaa  hli  Mral.  St.  Pto- 
ter,  Tex«d  at  lodng  ao  ftithfiil  a  TOtarf, 
boaought  God  to  admit  tha  monk  into 
Paradue.  HIa  prayar  waa  raftxaed ;  and 
thonglx  tba  whola  body  of  aainta,  apoa- 
tlea,  angala,  and  martyra  joinad  at  bia 
Kqaaat  to  maka  Ititereat,  it  waa  of  no 
avail.  In  thla  aztremity  ha  bad  raeouno 
to  tha  Mothar  of  Ood.  '*  Fair  lady,"  he 
aaid,  "  my  monk  ia  loat  If  you  do  not 
interfere  for  him ;  bat  what  U  Impoaaible 
for  na  will  be  bat  aport  to  yon,  If  yoa 
pleaaa  to  aaaiat  oa.  Yoar  Son,  if  you  but 
apeak  a  word,  mnat  yield,  ainee  it  is 
In  yonr  power  to  command  him.**  The 
Queen  Hotlier  aaaented,  and,  followed  by 
all  the  ▼Ixgina,  mored  towards  her  Son. 
He  who  had  tumaelf  fdTen  the  precept, 
Honor  thy  tbther  and  thy  mother,  no 
sooner  saw  his  own  parent  approach 
than  he  roes  to  recelTe  her ;  and  taking 
her  by  the  hand  inquired  her  wish«i. 
The  rest  may  be  easily  coxOeetured. 
•Compare  the  gross  stnpldlty,  or  nther 
the  atrodoos  impiety  of  this  tale,  with 
the  pure  theism  of  the  Arabian  Nights, 
and  Judge  whether  the  Deity  waa  better 
worahlpped  at  Cologne  or  at  Bagdad. 

It  ia  unneeeaaary  to  multiply  ioatancea 
orthis  kind.  In  one  tale  the  Viigin 
takes  tlM  shape  of  a  nun,  who  had 
sloped  ftom  the  conTent,  and  performs 
her  duties  ten  yean,  till,  tired  of  a  liber- 
tine life,  she  returns  unsuspected.  This 
was  in  consideration  of  her  having  never 
omitted  to  say  an  Ave  as  she  passed  the 
Tirgin^s  Image.  In  another,  a  gentle- 
man. In  love  with  a  handsome  widow, 
eonsentB,  at  the  Instigation  of  a  sorcerer, 
to  renounce  Qod  and  the  saints,  but 
cannot  be  penuaded  to  give  up  the 
Yligin,  well  knowing  that  if  he  kept 
her  his  friend  be  should  obtain  pardon 
through  her  means.  Accordingly  she  in- 
spirad  his  mistress  with  so  much  passkm 
that  he  married  her  within  a  few  days. 

There  tales.  It  may  be  sold,  wen  the 
vroduction  of  Ignorant  men,  and  cireu- 
lated  among  the  populace.  Certainly 
they  would  have  excited  contempt  and 
Indignation  In  the  more  enlightened 
elaigy.  But  I  am  concerned  mth  the 
general  ehaneter  of  religious  notkms 
tmong  the  people :  and  for  this  It  Is  bet- 


ter to  take  such  popular  compositions, 
adapted  to  what  the  laity  already  b*> 
lieved,  than  the  writings  of  oompaiatlTely 
learned  and  reflecting  men.  However, 
stories  of  the  same  eaat  are  frequent  in 
the  monklah  historiana.  Matthew  Paris, 
one  of  the  most  respectable  of  that  class, 
and  no  friend  to  the  covetousnesa  or  r^ 
lazed  nves  of  the  priesthood,  tells  us  of  a 
knight  who  was  on  the  point  of  bring 
damned  for  frequenting  tournaments,  but 
saved  by  a  donation  he  had  formerly 
made  to  the  Virgin,    p.  290. 

i  This  hesitatton  about  so  important  a 
question  Is  what  I  would  by  no  means 
repeat.  Beyond  every  doubt,  the  evils 
of  aupentltion  in  the  middle  agea,  though 
aaparetely  oonaidered  veiy  aerious,  are 
not  to  be  weighed  againat  the  benefits 
of  the  rrilglon  with  which  they  were  so 
mingled.  The  foshion  of  the  eighteenth 
century,  among  protestants  especially, 
was  to  exaggerate  the  crimes  and  follies 
of  medisBVaTages  —  perhaps  I  have  fiUlea 
into  it  9  little  too  much ;  in  the  present, 
we  seem  more  In  danger  of  extenuating 
them.  We  still  want  an  Inflexible  Impar- 
tiality in  all  that  borden  on  eeeleelaatical 
hiatory,  which,  I  believe,  baa  never  been 
lUaplayed  on  an  extensive  acale.  A  more 
captivating  book  can  hardly  be  named 
than  the  Moraa  Catholici  of  Mr.  Digby: 
and  it  contains  certainly  a  great  deal  of 
truth  ;  but  the  general  eflbet  is  that  of  a 
mirage f  which  confuaea  and  deludea  the 
sight.  If  thoae ''  agea  of  liilth  "  were  as 
noble,  as  pure,  as  full  of  human  kind- 
ness, as  he  has  delineated  them,  we  have 
luid  a  bad  exchange  in  the  centnriea 
ainee  the  Reformation.  And  thoae  who 
case  at  Mr  Oigby's  enchantments  will 
do  well  to  vonsider  how  they  can  better 
escape  this  conaeqnenoe  than  he  lias 
done.  Dr.  Maitland'a  Latten  on  the 
Dark  Agea,  and  a  great  deal  more  thai 
cornea  from  the  paeudo-Angllean  or  An- 
^o-cathollo  preaa,  converge  to  the  aame 
end ;  a  atrong  aympathy  with  the  raed- 
i«val  chureh,  a  great  Indulgence  to  Its 
errors,  and  indeed  a  reluctance  to  admit 
them,  with  a  corraeponding  eatmnge- 
ment  from  all  that  haa  passed  in  the  last 
three  eenturlas.    [1S«8.] 


494  EFFECTS  OF  SUPERSTITION.    Chaf.  IX.  Pabt  I. 

often  displayed  itself  among  the  corraptions  of  a  degenerate 
superstition.  In  the  original  principles  of  monastic  orders, 
and  the  rules  bj  which  they  ought  at  least  to  have  been 
governed,  there  was  a  character  of  meekness,  self-denial,  and 
charity  that  could  not  wholly  be  effaced.  These  virtues, 
rather  than  justice  and  veracity,  were  inculcated  by  the  re« 
ligious  ethics  of  the  middle  ages ;  and  in  the  relief  of  indi- 
gence it  may,  upon  the  whole,  be  asserted  that  the  monks  did 
not  fall  short  of  their  profession.^  This  eleemosynary  spirit 
indeed  remarkably  distinguishes  both  Christianity  and  Mo- 
hammedanism from  the  moral  systems  of  Greece  and  Rome, 
which  were  very  deficient  in  general  humanity  and  sympathy 
with  suffering.  Nor  do  we  find  in  any  single  instance  during 
ancient  times,  if  I  mistake  not,  those  public  institutions  for 
the  alleviation  of  human  miseries  which  have  long  been 
scattered  over  every  part  of  Europe.  The  virtues  of  the 
monks  assumed  a  still  higher  character  when  they  stood  for* 
ward  as  protectors  of  the  oppressed.  By  an  established 
law,  founded  on  very  ancient  superstition,  the  precincts  of  a 
church  affoixled  sanctuary  to  accused  persons.  Under  a  due 
administi-ation  of  justice  this  privilege  would  have-  been 
simply  and  constantly  mischievous,  as  we  properly  consider 
it  to  be  in  those  countries  where  it  stiU  subsists.  But  in  the 
rapine  and  tumult  of  the  middle  ages  the  right  of  sanctuary 
might  as  often  be  a  shield  to  innocence  as  an  inmiunity  to 
crime.  We  can  hardly  regret,  in  reflecting  on  the  desolating 
violence  which  prevailed,  that  Uiere  should  have  been  some 
green  spots  in  the  wilderness  where  the  feeble  and  the 
persecuted  could  find  refuge.  How  must  this  right  have 
enhanced  the  veneration  for  religious  institutions  I  How 
gladly  must  the  victims  of  internal  warfare  have  turned  their 
eyes  from  the  baronial  castle,  the  dread  and  scourge  of  the 
neighborhood,  to  those  venerable  walls  within  which  not  even 

>  I  am  ineliMd  to  aeqnletoe  in  thk  Plen  Plownutn  la  Indeed  a  mClrlit ; 

fsneiml  opinion ;  jet  an  aeoount  of  ei-  but  he  plaioljr  eha>t«  the  nonki  with 

penaes  at  Bolton  Abbej,  about  the  reign  want  of  eharitr. 
of  Kdward  H.,  published  in  Whltaker'a 

Hifltory  of  Ciaven,  p.  61,  makes  a  Teiy  Little  had  lordes  to  do  to  gito  laad« 

■canty  show  of  alinsgiTiog  in  this  opu-  ftt>m  their  heiras 

km  moDaatery.     Much,  however,  was  To  religious  that  have  no  ratho  thom^ 

no  doubt  giren  In  vlctnala.    But  it  la  a  it  ralne  on  thdr  aultrea ; 

strange  error  to  eonceire  that  English  In  maojr  places   then  the   parsons  bi 

monaateriea  before  the  diaMlution  fed  the  themaelf  at  eaae, 

InOlgeotpart  of  the  nation,and  caTo  that  Of  the  poor  Uiey  ha^  no  pitit  and  thai 

general  relief  whioh  the  poor-laws  an  is  their  poor  chaiiOe. 
Intended  to  aflbvd. 


Stats  of  Society.     VICES  OF  MONKS  AND  CLERGY.        495 

the  clamor  of  arms  oould  be  heard  to  disturb  the  chant  of 
holy  men  and  the  sacred  service  of  the  altar !  The  pro* 
tection  of  the  sanctuary  was  never  withheld.  A  son  of 
Chilperic  king  of  France  having  fled  to  that  of  Tours,  his 
father  threatened  to  ravage  all  the  lands  of  the  church  unless 
they  gave  him  up.  Gregory  the  historian,  bishop  of  the 
city,  replied  in  the  name  of  his  clergy  that  Christian?  could 
not  be  guilty  of  an  act  unheard  of  among  pagans.  The 
king  was  as  good  as  his  word,  and  did  not  spare  the  estate 
of  the  church,  but  dared  not  infringe  its  privileges.  He  had 
indeed  previously  addressed  a  letter  to  St.  Martin,  which 
was  laid  on  his  tomb  in  the  church,  requesting  permission 
to  take  away  his  son  by  force ;  but  the  honest  saint  returned 
no  answer.* 

The  virtues  indeed,  or  supposed  virtues,  which  had  induced 
a  credulous  generation  to  enrich  so  many  of  the  y,^j^  ^  ^^ 
monastic  orders,  were  not  long  preserved.     We  monka  And 
must  reject,  in  the  excess  of  our  candor,  all  testi-  **"^' 
monies  that  the  middle  ages  present,  from  the  solemn  decla- 
ration of  councils  and  reports  of  judicial  inquiry  to  the  casual 
evidence  of  common  fame  in  the  ballad  or  romance,  if  we 
would  extenuate  the  general  corruption  of  those  institutions. 
In  vain  new  rules  of  discipline  were  devised,  or  the  old  cor- 
rected by  reforms.    Many  of  their  worst  vices  grew  so 
naturally  out  of  their  mode  of  life,  that  a  stricter  discipline 
could  have  no  tendency  to  extirpate  them.     Such  were  the 
frauds  I  have  already  noticed,  and  the  whole  scheme  of  hypo- 
critical austerities.     Their  extreme  lioenUousness  was  some 
times  hardly  concealed  by  the  cowl  of  sanctity.     I  know 
not  by  what  right  we  should  disbelieve  the  reports  of  the 
visitation  under  Henry  VTH.,  entering  as  they  do  into  a 
multitude  of  specific  charges  both  probable  in  their  nature 
and    consonant  to  the    unanimous  opinion  of  the   world.' 
Doubtless,  there  were  many  communities,  as  well  as  indi- 

X  Sehmldt,  ffist  dat  Altanaadi,  t.  L  nd  VmMris  exeennda  prastibalA,  nd 
p<  874.  ImtdTomm  at  Itnpndieoniin  jaTanum  ad 

*Sm  Fotbrooka^a  Britiah  Monaehlam  Ubidlneaexplaodaareeaptaealaf  nt  Idan 
rrol.  i.  p.  127,  ftod  toI.  U.  p.  8)  Ibr  a  ait  hodie  poeUam  Telara,  quod  at  pubUoA 
Burago  of  aTidaocft  afalnat  tba  monka.  ad  aoortandnm  axponere.  William  Prni. 
Clamangla,  a  ffreneh  thaoIogiaQ  of  con-  na,  fhmi  whosa  recorda  (toI.  ii.  p.  229)  I 
aidaiabla  aaaloanee  at  tlia  baginnin^s  of  hara  taken  thia  paaaaga,  quotaa  it  on 
tha  fiflaanth  eantury,  apaaka  of  nnnnar-  oceaaion  of  a  ehartar  of  kiog  John*  ban- 
Im  in  thalbUowing  tarma: — Qnidalind    lahing  thirty  nana  of  Ambrasboiy  into 

dilbient  oonranta,  propCar  TitaB  anao  tor 
loam 


•ant  hoo  tampova  pnaHacnm  monaataila,    dilbiez 
■M  qmdan  mm  dlao  Dai  aanotnaria,    pitndii 


496  VICES  OF  THE  Chap.  H.  Paw  *. 

viduals,  to  whom  none  of  these  reproaches  would  applj.  In 
the  very  best  view,  however,  that  can  be  taken  of  monas* 
teries,  their  existence  is  deeply  injurious  to  the  general 
morals  of  a  nation.  Thej  withdraw  men  of  pure  conduct 
and  conscientious  principles  from  the  exercise  of  social 
duties,  and  leave  Uie  common  mass  of  human  vice  more 
unmixed.  Such  men  are  always  inclined  to  form  schemes 
of  ascetic  perfection,  which  can  only  be  fulfilled  in  retire- 
ment ;  but  in  the  strict  rules  of  monastic  life,  and  under  the 
influence  of  a  grovelling  superstition,  their  virtue  lost  all  its 
usefulness.  They  fell  implicitly  into  the  snares  of  crafty 
priests,  who  made  submission  to  the  church  not  only  the 
condition  but  the  measure  of  all  praise.  ''He  is  a  good 
Christian,"  says  Eligius,  a  saint  of  the  seventh  century, 
^  who  comes  frequently  to  church ;  who  presents  an  oblation 
that  it  may  be  offered  to  God  on  the  sdtar ;  who  does  not 
taste  the  fruits  of  his  land  till  he  has  consecrated  a  part  of 
them  to  Grod;  who  can  repeat  the  Creed  or  the  Lord's 
Prayer.  Redeem  your  souls  from  punishment  while  it  is  in 
your  power;  offer  presents  and  tithes  to  churches,  light 
candles  in  holy  places,  as  much  as  you  can  afford,  come  more 
frequently  to  church,  implore  the  protection  of  the  saints ; 
for,  if  you  observe  these  things,  you  may  oome  with  security 
at  the  day  of  judgment  to  say,  Give  unto  us,  Lord,  for  we 
have  given  unto  thee."  * 

1  Moiheiin,  eent.  tU.  e.  &  Robertson  oonseqnenee,  the  eeren  note  which  Rob- 
baa  quoted  this  paasage,  to  vhom  per>  ertson  has  copied.  I  have  aeen  tha 
bape  I  am  Immediately  indebted  for  it.  whole  paiwiige  in  d^Achery'i  Spieil^nm 
Hist.  Charles  V.,  vol.  i.  note  11.  (vol.  t.  p  218,  4to.  eilit.),  and  can  tMttiy 

I  leave  thie  paasage  as  it  stood  in  that  Dr.  Linfsard  is  perfectly  correct 
fimner  editions.  But  it  is  due  to  justice  Upon  the  whole,  this  is  a  striking  proof 
that  thU)  extract  from  Eligins  should  how  dangerous  it  is  to  take  any  author- 
never  be  quoted  in  future,  as  the  trans-  ifies  at  second-hand.  —  Note  to  Fourth 
latorof  Mosheim  has  induced  Robertson  Edition.  Much  clamor  has  been  mads 
and  many  others,  as  well  as  myself,  to  do.  about  the  mistake  of  Haclaine,  which  was 
Dr.  Uogard  has  pointed  out  that  it  is  a  innocent  and  not  unnatunJ.  It  has 
very  imperfect  repreeentatioa  of  what  been  commented  upon,  particularly  by 
Bllgins  lias  written ;  for  though  he  has  Dr.  Arnold,  as  a  proof  of  the  risk  we  mn 
dwelled  on  these  devotional  practices  as  of  misrepresenting  authors  by  quoting 
parts  of  the  definition  of  a  good  Chris-  them  at  second-hand.  And  this  is  per^ 
tian,  he  certainly  adds  a  great  deal  more  fectly  true,  and  ought  to  be  constantly 
to  which  no  one  could  object.  Yet  no  remembered.  But,  so  long  as  we  a^ 
one  is,  in  fiict,  to  blame  fDr  this  mlsrep-  knowledge  the  immediate  sonree  of  our 
resen tattoo,  which,  being  contained  In  quotation,  no  censure  is  due.  since  in 

C»pular  books,  has  gone  rorth  so  widely,  works  of  considerable  extent  this  use  of 

oeheim,  as  will  appear  on  referring  to  secondary  authorities  is  absolutely  Indis- 

him,  did  not  quote  the  passage  as  con-  pensable,  not  to  mention  the  flrequent 


taining   a   complete    definition   of    the    difficulty  of  procuring  aoceas  to  ocigiiial 
Christian    character.      Uls    translator,    anthoia.  [ISiS.] 
Uaelainei  mistook  this,  and  wrote,  In 


BtAvm  OF  SocixTT.     MONKS  AND  CLERGY.  497 

Witli  such  a  definition  of  tlie  Christian  character,  it  is  not 
surprising  that  bjij  fraud  and  injustice  became  honorable 
when  it  contributed  to  the  riches  of  the  clergy  and  glory  of 
their  order.  Their  frauds,  however,  were  less  atrocious  than 
the  savage  bigotry  with  which  they  maintained  their  own 
system  and  infected  the  laity.  In  Saxony,  Poland,  Lithuania, 
and  the  countries  on  tlie  Baltic  Sea,  a  sanguinary  persecu- 
tion extirpated  the  original  idolatry.  The  Jews  were  every- 
where the  objects  of  popular  insult  and  oppression,  frequently 
of  a  general  massacre,  though  protected,  it  must  be  confessed 
by  the  laws  of  the  church,  as  well  as  in  general  by  temporal 
princes.^  Of  the  crusades  it  is  only  necessary  to  repeat 
that  they  began  in  a  tremendous  eruption  of  fanaticism, 
and  ceased  only  because  that  spirit  could  not  be  constantly 
kept  alive.  A  similar  influence  produced  the  devastation  of 
Languedoc,  the  stakes  and  scafiblds  of  the  Inquisition,  and 
rooted  in  the  religious  theory  of  Europe  those  maxims  of 
intolerance  which  it  has  so  slowly,  and  still  perhaps  so  im- 
perfectly, renounced. 

From  no  other  cause  are  the  dictates  of  sound  reason  and 
the  moral  sense  of  mankind  more  confused  than  by  this 
narrow  theological  bigotry.  For  as  it-  must  oflen  happen 
that  men  to  whom  the  arrogance  of  a  prevailing  faction  im- 
putes religious  error  are  exemplary  for  their  performance  of 
moral  duties,  these  virtues  gradually  cease  to  make  their 
proper  impression,  and  are  depreciated  by  the  rigidly  ortho- 
dox as  of  little  value  in  comparison  with  just  opinions  in 
Bpeculative  points.  On  the  other  hand,  vices  are  forgiven  to 
those  who  are  zealous  in  the  faith.  I  speak  too  gently,  and 
with  a  view  to  later  times ;  in  treating  of  the  d^k  ages  it 
would  be  more  correct  to  say  that  crimes  were  commended. 
Thus  Gregory  of  Tours,  a  saint  of  the  church,  after  relating 
a  most  atrocious  story  of  Clovis  —  the  murder  of  a  prince 

1  Mr.  TaniMr  hM  eoUeetod  many  en-  151.    At  Balers  another  usage  prerall 

rloQS  fhcts  relatlTe  to  the  condition  of  ed,  that  of  attacking  the  Jews*  houses 

the  Jews,  especially  In  England.    Hist,  with  stones  from  Palm  Sunday  to  Baster. 

of  England,  toI.  ii.  p.  95.    Others  may  No  other  weapon  was  to  be  used  ;  but  it 

be  Ibund  dispersed  in  Velly^s  History  of  generally  produced  bloodshed.    The  pop- 

rranoe;    and   many    in    the    Spanish  uiaoe  were  regularly  instigated  to  the 

writers,  Mariana  and  Zurita.    The  fol-  assault  by  a  sermon  from  the  bishop, 

lowing  are  from  Vaissette's  History  of  At  length  a  prebito  wiser  than  the  reel 

I^nguedoe.    It  was  the  custom  at  TDn-  abolished  this  andent  practice,  bat  nol 

louse  to  gire  a  blow  on  the  ftce  to  a  Jew  without  reoelring  a  good  sum  from  th« 

ereiy  Bsstsr ;  this  was  commuted  In  Um  Jem.    p.  485. 
tiraUlh  osntauy  tat  a  tribate.    t.  tt.  p. 

VOL.  II.  ^-  M.  82 


498  COMMUTATION  OF  PENANCES.     Chap.  IX.  Part  I. 

whom  bo  had  previouslj  instigated  to  parricide  —  continnes 
the  sentence :  ^  For  Grod  dailj  subdued  his  enemies  to  his 
handy  and  increased  his  kingdom ;  because  he  walked  before 
him  in  uprightness,  and  did  what  was  pleasing  in  his  ejes."  ^ 
It  is  a  frequent  complaint  of  ecclesiastical  writers  that  the 
commatft-  rigorous  penaui^es  imposed  by  the  primitive  canons 
tion  of  upon  delinquents  were  commuted  in  a  laxer  state 

penanow.  ^  discipline  for  less  severe  atonements,  and  ulti- 
mately indeed  for  money.*  We  must  not,  however,  regret 
that  the  clergy  should  have  lost  the  power  of  compelling 
men  to  abstain  fifleen  years  from  eating  meat,  or  to  stand 
exposed  to  public  derision  at  the  gates  of  a  church.  Such 
implicit  submissiveness  could  only  have  produced  superstition 
and  hypocrisy  among  the  laity,  and  prepared  the  road  for  a 
tyranny  not  less  oppressive  than  that  of  India  or  ancient 
Egypt.  Indeed  the  two  earliest  instances  of  ecclesiastical 
interierence  with  the  rights  of  sovereigns  —  namely,  the 
deposition  of  Wamba  in  Spain  and  that  of  Louis  the  Debo* 
nair  —  were  founded  upon  this  austere  system  of  penitence^ 
But  it  is  true  that  a  repentance  redeemed  by  money  or  per- 
formed by  a  substitute  could  have  no  salutary  effect  on  the 
sinner;  and  some  of  the  modes  of  atonement  which  the 
church  most  approved  were  particularly  hostile  to  public 
morals.  None  was  so  usual  as  pilgrimage,  whether  to  Jeru- 
salem or  Rome,  which  were  the  great  objects  of  devotion ; 
or  to  the  shrine  of  some  national  saint  —  a  James  of  Com- 
postella,  a  David,  or  a  Thomas  k  Becket  This  licensed 
vagrancy  was  naturally  productive  of  dissoluteness,  especially 
among  the  women.  Our  English  ladies,  in  their  zeal  to 
obtain  the  spiritual  treasures  of  Rome,  are  said  to  have  re- 
laxed the  necessary  caution  about  one  that  was  in  their  own 

1  Greg.  Tnr.  1.  U.  c.  40.    Of  Theode-  eheat  blm  of  an  estate,  which  !•  told 

bert,  grandflOQ  of  CloTiR,  the  same  hia-  with  much  approbatioo.    Qale.  Script 

torlan  says,  Magnum  ne  et  In  omnl  bon-  Anglic,  t.  i.  p.  441.    Walter  de  Hemlnff- 

Itate  pnBclpiiam  reddidit.    In  the  next  Ibrd  recouDts  with  excesalTe  delight  th« 

paragraph  we  find  a  story  of  his  having  well-known  story  of  the  Jews  who  wen 

two  wires,  and  looking  so  tenderly  on  persuaded  by  the  captain  of  their  Teasel 

the  daughter  of  one  of  them,  that  her  to  walk  on  the  sands  at  low  water,  UU 

mother  tossed  her  over  a  bridge  into  the  the  rising  tide  drowned  them  ;  and  adds 

river.    1.  ill.  c.  25.    This  indeed  Is  a  that  the  captain  was  both  pardoned  and 

trifle  to  the  passage  in  the  text.    There  rewarded  for  it  by  the   king,  gratiam 

are  continual  prooft  of  immorality  in  the  promeruit  et  pra»nilnm.    This  is  a  mis* 

monkish  historians.    In  the  history  of  take,  inasmuch  as  he  was  hanged;  bat 

Bamsey  Abbey,  one  of  our  best  doeu-  It  exhibits  the  character  of  the  historian 

ments  for  Anglo-Saxon  times,  we  hava  Eeminc^rd.  p.  21 
an  anecdote  of  a  bishop   who  made  a       *  Vleury,  TroisUme  IMaeoim  fur  l*Bli 

Danish  nobleman  drirnk,  that  ha  might  toln  Boeltelastiqaa. 


8TATB  OF  SOCIBTT  WANT   OF  LAW.  499 

custody.*  There  is  a  capitulary  of  Charlemagne  directed 
against  itinerant  penitents,  who  probably  considered  the  iron 
chain  around  their  necks  an  expiation  of  future  as  well  as 
past  offences.* 

The  crusades  may  be  considered  as  martial  pilgrimages 
on  an  enormous  scale,  and  their  influence  upon  general  mo- 
rality seems  to  have  been  altogether  pernicious.  Those  who 
served  under  the  cross  would  not  indeed  have  lived  very 
virtuously  at  home ;  but  the  confidence  in  their  own  merits, 
which  the  principle  of  such  expeditions  inspired,  must  have 
aggravated  the  ferocity  and  dissoluteness  of  their  ancient 
habits.  Several  historians  attest  the  depravation  of  morals 
which  existed  both  among  the  crusaders  and  in  the  states 
formed  out  of  their  conquests.' 

While  religion  had  thus  lost  almost  every  quality  that 
renders  it  conducive  to  the  good  order  of  society,  Want  of 
the  control  of  human  law  was  still  less  e£Scacious.  ^^' 
But  this  part  of  my  subject  has  been  anticipated  in  other 
passages  of  the  present  work ;  and  I  shall  only  glance  at 
the  want  of  regular  subordination,  which  rendered  legis- 
lative and  judicial  edicts  a  dead  letter,  and  at  the  incessant 
private  warfare,  rendered  legitimate  by  the  usages  of  most 
continental  nations.  Such  hostilities,  conducted  as  they  must 
usually  have  been  with  injustice  and  cruelty,  could  not  fail 
to  produce  a  degree  of  rapacious  ferocity  in  Uie  general  dis- 
position of  a  people.  And  this  certainly  was  among  the 
characteristics  of  every  nation  for  many  centuries. 

It  is  easy  to  infer  the  degradation  of  society  during  the 
dark  ages  from  the  state  of  religion  and  police.  D^gmiatioii 
Certainly  there  are  a  few  great  landmarks  of  moral  **'  =»«»^' 
distinctions  so  deeply  fixed  in  human  nature,  that  no  degree 
of  rudeness  can  destroy,  nor  even  any  superstition  remove 
them.  Wherever  an  extreme  corruption  has  in  any  par- 
ticular society  defaced  these  sacred  archetypes  that  are  given 
to  guide  and  correct  the  sentiments  of  mankind,  it  is  in  the 
course  of  Providence  that  the  society  itself  should  perish  by 
internal  discord  or  the  sword  of  a  conqueror.     In  the  worst 

>  Hrary.  mit.  of  Xnglftnd.Tol.  11.  e.  7.  uno  loco  pennaneant  labonntM  et  Mr- 

*  Du    Cange,  ▼.    Peragrtnatio.    Non  Tientes  et  poenltentiain  agentM,  Meu» 

rinantnr  Tagari  Istl  nndi  cam  ferro,  qui  dam  qnod  caoonloA  Ui  iinpaeitam  alt. 

dteant  M  datft  poeidtentlt  In  Tagantes.  *  I.    d»  Vltriaco,   In  Getta   Del  p«i 

IfoUtti  Tidatnr,  vt  ti  allqnod  inconsno-  Txmnooa,  i.  I, ;  VlUuil,  1.  ill.  o.  IM. 

tem  ot  oapltalM  orimm  oonuBlMrlat,  la 


500  DEGBADATIOK  OF  MORALS.      Chap.  IX.  Past  L 

ages  of  Earope  there  must  have  existed  the  seeds  of  sodal 
virtues,  of  fidelitj,  gratitude,  and  disinterestedness,  sufficient 
a«  least  to  preserve  the  public  approbation  of  more  elevated 
principles  than  the  public  conduct  displayed.  Without  these 
imperishable  elements  there  could  have  been  no  restoration 
of  the  moral  energies ;  nothing  upon  which  reformed  faith, 
revived  knowledge,  renewed  law,  could  exercise  their  nour- 
ishing influences.  But  history,  which  reflects  only  the  more 
prominent  features  of  society,  cannot  exhibit  the  virtues  tliat 
were  scarcely  able  to  struggle  through  the  general  deprava- 
tion. I  am  aware  that  a  tone  of  exaggerated  declamation  is 
at  all  times  usual  with  those  who  lament  the  vices  of  their 
own  time ;  and  writers  of  the  middle  ages  are  in  abundant 
need  of  idlowance  on  this  score.  Nor  is  it  reasonable  to 
found  any  inferences  as  to  the  general  condition  of  society  on 
single  instances  of  crimes,  however  atrocious,  especially  when 
committed  under  the  influence  of  violent  passion.  Such 
enormities  are  the  fruit  of  every  age,  and  none  is  to  be 
measured  by  them.  They  make,  however,  a  strong  impres- 
sion at  the  moment,  and  thus  find  a  place  in  contemporary 
annals,  from  which  modem  writers  are  commonly  gl^  to 
extract  whatever  may  seem  to  throw  light  upon  manners. 
I  shall,  therefore,  abstain  from  producing  any  particular  cases 
of  dissoluteness  or  cruelty  from  the  records  of  the  middle 
ages,  lest  I  should  weaken  a  general  proposition  by  offering 
an  imperfect  induction  to  support  it,  and  shall  content  myself 
with  observing  that  times  to  which  men  sometimes  appeal, 
as  to  a  golden  period,  were  far  inferior  in  every  moral  com- 
parison to  those  in  which  we  are  thrown.^  One  crime,  as 
more  universal  and  characteristic  than  others,  may  be  par- 
ticularly noticed.  All  writers  agree  in  the  prevalence  of  ju« 
dicial  perjury.    It  seems  to  have  almost  invariably  escaped 

1  Henry  bu  takm  pftlni  In  drawing  %  notioed  m  their  Ineolenee.    VId.  Order* 

pietnre,  not  rerj   fliTorabla*  of  Anglo-  icns  VitaUa.  p.  002 ;  Jchann.  Sarlsbu- 

Sexon    manners.     Book    It.  ehap.   7.  riensis  Polienileas,  p.  194  ;  Velly,  Hiet. 

This  perhapf  is  the  best  chapter,  as  the  de  France,  t.  lU.  p.  69.    The  state  of 

Tolume  is  the  best  TOlnme,  of  his  un«  manners  in  France  mnder  the  first  two 

equal  work.    His  account  of  the  Anglo-  races  of  kings,  and  in  Italy  both  nn* 

Saxons  is  derired  In  a  great  d^ree  from  der  the  Lombards  and  the  subsequent 

William  of  Malmsbury,  who  does  not  dynasties,  may  be  collected  from  their 

•pare  them.    Their  civil  history,  Indeed,  faiBtories,  their  laws,  and  thoee  misoel- 

And  their  laws,  speak  sufficiently  agidnst  laneous  frets  which  books  of  every  de- 

the  character  of  that  people.    But  the  seriptlon   contain.    Ndther   Velly,  noi 

Mormans  had  little  more  to  boast  of  in  Monttori,  Dissert.  28,  an  so  satiaflMtovy 

Nspect  of  moral  oorreotnees.    Their  lux-  aji  we  might  deelxe. 
cttons  and  dissoluto  haUti  an  as  mnoh 


Statb  of  SodXTT.    LOYE  OF  FI£\D  SPOBTS.  501 

human  panishment ;  and  the  harriers  of  superstition  were  in 
this,  as  in  every  other  instance,  too  feeble  to  prevent  the  com- 
mission of  crimes.  Many  of  the  proofs  bj  ordeal  were  ap- 
plied to  witnesses  as  well  as  those  whom  they  accused  ;  and 
undoubtedly  trial  by  combat  was  preserved  in  a  considerable 
degree  on  account  of  the  difficulty  erperienced  in  securing  a 
just  cause  against  the  perjury  of  witnesses.  Robert  king  of 
France,  perceiving  how  frequently  men  forswore  themselves 
upon  the  relics  of  saints,  and  less  shocked  apparently  at  the 
crime  than  at  the  sacrilege,  caused  an  empty  reliquary  of 
crystal  to  be  used,  that  those  who  touched  it  might  incur 
less  guilt  in  fact,  though  hot  in  intention.  Such  an  anecdote 
characterizes  both  the  man  and  the  times.^ 

The  &vorite  diversions  of  the  middle  ages,  in  the  intervals 
of  war,  were  those  of  hunting  and  hawking.  The  loto  of 
former  must  in  all  countries  be  a  source  of  pleas-  ^'^  •?«*■• 
ure ;  but  it  seems  to  have  been  enjoyed  in  moderation  by  the 
Greeks  and  the  Romans.  With  the  northern  invaders,  how- 
ever, it  was  rather  a  predominant  appetite  than  an  amuse- 
ment ;  it  was  their  pride  and  their  ornament,  the  theme  of 
their  songs,  the  object  of  their  laws,  and  the  business  of  their 
lives.  Falconry,  unknown  as  a  diversion  to  the  ancients, 
became  from  the  fourth  century  an  equally  delightful  occu- 
pation.' From  the  Salic  and  other  barbarous  codes  of  the 
Mh  century  to  the  close  of  the  period  under  our  review, 
every  age  would  fumi^  testimony  to  the  ruling  passion  for 
these  two  species  of  chase,  or,  as  they  were  sometimes  called, 
the  mysteries  of  woods  and  rivers.  A  knight  seldom  stirred 
finom  his  house  without  a  falcon  on  his  wrist  or  a  greyhound 
that  followed  hinu  Thus  are  Harold  and  his  attendants  rep- 
resented, in  the  famous  tapestry  of  Bayeuz.  And  in  the 
monuments  of  those  who  died  anywhere  but  on  the  field  of 
battle,  it  is  usual  to  find  the'  greyhound  lying  at  their  feet,  or 
the  bird  upon  their  wrists.  Nor  are  the  tombs  of  ladies 
without  their  falcon  ;  for  this  diversion,  being  of  less  danger 
and  fatigue  than  the  chase,  was  shared  by  the  delicate  sex.* 

1  VeUjf  Hist.  d»  Tnmee,  t.  tt.  p.  885.  eiwed  panon  had  a  mostobvioiu  teniten- 

U  hu  bMn  obserrad,  that  Quid  mores  oy  to  increase  peijnry. 

riiM   legibus  T  is  as  jost  a  quastion  m  *  Muratorl,  Dissert.  28,  t.  i.  p.  806 

that  of  Horaos  ;  and  that  bad  laws  must  (Italian);   Beckman's   Hist,    of  InTen- 

produos  bad  morals.    The  Strang*  prao-  tlons,  toI.  i.  p.  819 ;  Vie  prirte  des  Vran- 

ties  of  requiring  numerous  eompurga-  ^^^tt.  ii.  p.  1. 

Ion  to  pror*  the  innooenee  of  a»  ao-  *  vie  priTte  des  Viaiiads,  t.  L  p.  890i 

i.il.p.11.  ^^ 


502  LOVE  OF  FIELD  SPORTS.       Chap.  IX.  Part  L 

It  was  impossible  to  repress  the  eagerness  with  which  the 
clergy,  especiallj  afler  the  barbarians  were  tempted  by  rich 
bishoprics  to  take  upon  them  the  sacred  functions,  rushed 
into  these  secular  amusements.  Prohibitions  of  oouncils, 
however  frequently  repeated,  produced  little  effect  In  some 
instances  a  particular  monastery  obtained  a  dispensation. 
Thus  that  of  St.  Denis,  in  774,  represented  to  Charlemagne 
that  the  flesh  of  hunted  animals  was  salutary  for  sick  monks, 
and  that  their  skins  would  serve  to  bind  the  books  in  the  li- 
brary.^ Reasons  equally  cogenty  we  may  presume,  could  not 
be  wanting  in  every  other  case.  As  the  bbhops  and  abbots 
were  perfectly  feudal  lords,  and  oflen  did  not  scruple  to  lead 
their  vassals  into  the  field,  it  was  not  to  be  expected  that 
they  should  debar  themselves  of  an  innocent  pastime.  It 
was  hardly  such  indeed,  when  practised  at  the  expense  of 
others.  Alexander  III.,  by  a  letter  to  the  clergy  of  Berk- 
shire, dispenses  with  their  keeping  the  archdeacon  in  dogs 
and  hawks  during  his  visitation.*  This  season  gave  jovial 
ecclesiastics  an  opportunity  of  trying  different  countries.  An 
archbishop  of  York,  in  1321,  seems  to  have  carried  a  train  of 
two  hundred  persons,  who  were  maintained  at  the  expense  of 
the  abbeys  on  his  road,  and  to  have  hunted  with  a  pack  of 
hounds  from  parish  to  parish.*  The  third  council  of  Lateran, 
in  1180,  had  prohibited  this  amusement  on  such  journeys, 
and  resti'icted  bishops  to  a  train  of  forty  or  fifty  horses.^ 

Though  hunting  had  ceased  to  be  a  necessary  means  of 
procuring  food,  it  was  a  very  convenient  resource,  on  which 
the  wholesomeness  and  comfort,  as  well  as  the  luxury,  <^ 
the  table  depended.  Before  the  natural  pastures  were  im- 
proved, and  new  kinds  of  fodder  for  cattle  discovered,  it  was 
impossible  to  maintain  the  summer  stock  during  the  cold  sea- 
son. Hence  a  portion  of  it  was  regularly  slaughtered  and 
salted  for  winter  provision.  We  may  suppose  that,  when  no 
alternative  was  offered  but  these  salted  meats,  even  the  lean- 
est venison  was  devoured  with  relish.  There  was  somewhat 
more  excuse  therefore  for  the  severity  with  which  the  lords 
of  forests  and  manors  preserved  the  beasts  of  chase  than  if 
they  had  been  considered  as  merely  objects  of  sport.  The 
laws  relating  to  preservation  of  game  were  in  every  country 

1  Ibid.  1. 1,  p.  824.  •  Whitaker^  Hist,  of  CmTBO,  p.  9¥^ 

•  Byinflr,  t.  i.  p.  61  Md  of  WhaU«y,  p.  171. 

«  VoUjr,  HIat.  do  Fruaoe,  t.  itt.  p.  289. 


8T4TE  OP  Socnmr.    BAD  STATE  OF  AGRlCDLnJKB.  503 

onoommonlj  rigorous.  Thej  formed  in  England  that  odious 
system  of  forest  laws  which  distinguished  the  tyranny  of 
our  Norman  kings.  Capital  punishment  for  killing  a  stag  or 
wild  boar  was  frequent,  and  perhaps  warranted  by  law,  until 
the  charter  of  John.^  The  French  code  was  less  severe, 
but  even  Henry  IV.  enacted  the  pain  of  death  against  the  re- 
peated offence  of  chasing  deer  in  the  royal  forests.  The 
privilege  of  hunting  was  reserved  to  the  nobility  till  the 
reign  of  Louis  IX.,  who  extended  it  in  some  degree  to 
persons  of  lower  birth.* 

This  excessive  passion  for  the  sports  of  the  field  produced 
those  evils  which  are  apt  to  result  from  it — a  strenuous  idle- 
ness which  disdained  all  useful  occupations,  and  an  oppreft> 
sive  spirit  towards  the  peasantry.  The  devastation  commit- 
ted under  the  pretence  of  destroying  wild  animals,  which 
had  been  already  protected  in  their  depredations,  is  noticed 
in  serious  authors,  and  has  also  been  the  topic  of  popular  bal- 
lads.* What  effect  this  must  have  had  on  agriculture  it  is 
easy  to  conjecture.  The  levelling  of  forests,  the  draining  of 
morasses,  and  the  extirpation  of  mischievous  animals  which 
inhabit  them,  are  the  first  objects  of  man's  labor  in  reclaim- 
ing the  earth  to  his  use;  and  these  were  forbidden  by  a 
landed  aristocracy,  whose  control  over  the  progress  of  agri- 
cultural improvement  was  unlimited,  and  who  had  not  yet 
learned  to  sacrifice  their  pleasures  to  their  avarice. 

These  habits  of  the  rich,  and  the  miserable  servitude  of 
those  who  cultivated  the  land,  rendered  its  fer- Bad  state  or 
tility  unavailing.     Predial   servitude  indeed,  in  •«*«**"'•» 
some  of  its  modifications,  has  always  been  the  great  bar  to 
improvement     In  the  agricultural  economy  of  Rome  the  la- 
boring husbandman,  a  menial  slave  of  some  wealthy  senator, 

1  Jobs  of  Salliibary  tovrigfat  agatnst  181.    Thb  oonttnnM  to  bo  Mt  in  TnuKso 

tho  guiM-lawi  of  hia  age,  with  an  odd  down  to  tho  reTolntion,  to  which  it  did 

tranddon  from  the  Gospel  to  the  Pan-  not  perhape  a   little   eontribnto.    (See 

deets.    Nee  veriti  sunt  homlnem  pro  an&  Toong^a  Trarela  in  France.)    The  mon- 

bestlolft  perdere,  oaem   nnigenitaa  Dd  strona   prlTllcfce   of  free-warren    (mon- 

Fillasnncnine  rodemitauo.    Qun  lbr«  stroiu,   I  mean,   when   not  oiiginallj 

natnrB  sunt,  et  de  Jure  oecupantium  ibunded  npon  the  property  of  the  eoil) 

flnoi,  ilbi  aadet  hnmana  tomerltaa  Tin-  is  reeogniaed  bv  oar  own  laws ;  though, 

dieare,  fte.    Poljcratlcon,  p.  18.  In  thi«  age,  it  u  not  often  that  a  court 

*  Le  Oiand,  Vie  prlT^e  des  Fmncals,  t.  and  Jury  will  woPtain  its  exercise.    Sir 

t.  p.  8S&.  Walter  Scott's  ballad  of  the  Wild  Hunts- 

s  For  the  iiOurlea  which  this  people  man,  from  a  German  original,  is  well 

sustained  flt>m  the  seigniorial  rights  of  Icnown ;  and,  I  beUeve,  there  are  sereral 

the  chase,  in  the  eleventh  oentury,  see  others  in  that  ooontiy  not  ilsslmilar  fm 

the  Reeueil  des  Historiens,  in  the  Talu-  sut|)eoi. 
Able  prslSMe  to  the  eleTontb  volume,  p. 


504  BAD  STATE  OF  AGRlCULTUIffi,    C&ap.  EC.  Pabt  I. 

had  not  even  that  qualified  interest  in  the  soil  which  the 
tenure  of  villenage  afforded  to  the  peasant  of  feudal  ages. 
Italy,  therefore,  a  country  presenting  many  natural  impedi- 
ments, was  but  imperfectly  reduced  into  cultivation  before  the 
irruption  of  the  barbarians.^  That  revolution  destroyed  ag» 
riculture  with  every  other  art,  and  succeeding  calamities  dur- 
ing five  or  six  centuries  lefl  the  finest  regions  of  Europe  un- 
fruitful and  desolate.  There  are  but  two  possible  modes  in 
which  the  produce  of  the  earth  can  be  increased ;  one  by  ren* 
dering  fresh  land  serviceable,  the  other  by  improving  the 
fertility  of  that  which  is  already  cultivated.  The  last  is  only 
attainable  by  the  application  of  capital  and  of  skill  to  agri- 
culture, neither  of  which  could  be  expected  in  the  ruder  ages 
of  society.  The  former  is,  to  a  certain  extent,  always  prac* 
ticable  while  waste  lands  remain ;  but  it  was  checked  by  laws 
hostile  to  improvement,  such  as  the  manorial  and  com- 
monable rights  in  England,  and  by  the  general  tone  of  man- 
ners. 

Till  the  reign  of  Charlemagne  there  were  no  towns  in 
Gennany,  except  a  few  that  had  been  erected  on  the  Rhine 
and  Danube  by  the  Romans.  A  house  with  its  stables  and 
farm-buildings,  surrounded  by  a  hedge  or  enclosure,  was 
called  a  court,  or,  as  we  find  it  in  our  law-books,  a  curtilage ; 
the  toil  or  homestead  of  a  more  genuine  English  dialect 
One  of  these,  with  the  adjacent  domain  of  arable  fields  and 
woods,  had  the  name  of  a  villa  or  manse.  Several  manses 
composed  a  march ;  and  several  marches  formed  a  pagus  or 
district'  From  these  elements  in  the  progress  of  population 
arose  villages  and  towns.  In  France  undoubtedly  there  were 
always  cities  of  some  importance.  Ck>untry  parishes  con- 
tained several  manses  or  farms  of  arable  lands,  around  a  com- 
mon pasture,  where  every  one  was  bound  by  custom  to  feed 
his  cattle.' 

1  Mumtori.  Dissert.  21.    This  disser-  a  Tfllaffs,  so  called  ftom  the  small  talU 

tation  contains  ample  eridence  of  the  of  maple,  e'm,  ash,  and  other  wood.  wiUi 

wretched  state  of  culture  in  Italj,  at  which    dwelling-houses   were   anclentlj 

least  in  the  northern  parts,  both  before  OTerhnng.    B?en  now  It  is  impossible  to 

the  irruption  of  the  barbarians,  and,  in  enter  Craven  without  being  struck  with 

a  much  greater  degree,  under  the  Lom-  the  insulated  homesteads,   surrounded 

bard  kiogs.  by  their  little  garths,  and  overhung  with 

*  Schmidt,  Hist,  dee  AUem.  t.  i.  p.  406.  tufts  of  trees.    These  are  the  genulna 

The  following  passage  seems  to  illustrate  tofts  and  crofts  of  our  ancestprs,  with 

Schmidt's  account  of  Oerman  Tillages  In  the  substitution  only  of  stone  for  th« 

the  ninth  century,  though  relating  to  a  wooden  crocks  and  thntched  roofkof  aa-> 

didereut  age  and  country.    *'  A  toft."  tiauity."    Hist,  of  CraTeo,  p.  880. 

lays  Dr.  Whitakor,  *'  is  a  hopestaad  in  •  It  is  laid  down  in  the  Speculum  Sax 


Stata  of  Societt.    and  OF  INTERNAL  TRADE.  505 

The  condition  even  of  internal  trade  was  hardly  prefera- 
ble to  that  of  agriculture.  There  is  not  a  vestige  of  intecnai 
perhaps  to  be  discovered  for  several  centuries  of  *'•*'•» 
anj  considerable  manufacture ;  I  mean,  of  working  up  arti- 
cles of  common  utility  to  an  extent  beyond  what  the  necessi- 
ties of  an  adjacent  district  required.^  Rich  men  kept  domestic 
artisans  among  their  servants ;  even  kings,  in  the  ninth  cen- 
tury, had  their  clothes  made  by  the  women  upon  their  farms;  * 
but  the  peasantry  must  have  been  supplied  with  garments 
and  implements  of  labor  by  purchase ;  and  every  town,  it 
cannot  be  doubted,  had  its  weaver,  its  smith,  and  its  currier. 
But  there  were  almost  insuperable  impediments  to  any  ex- 
tended traffic —  the  insecurity  of  movable  wealth,  and  diffi- 
culty of  accumulating  it ;  the  ignorance  of  mutual  wants ; 
the  peril  of  robbery  in  conveying  merchandise,  and  tlie  cer- 
tainty of  extortion.  In  the  domains  of  every  lord  a  toll  was 
to  be  paid  in  passing  his  bridge,  or  along  his  highway,  or  at 
his  market'  These  customs,  equitable  and  necessary  in  their 
principle,  became  in  practice  oppressive,  because  they  were 
arbitrary,  and  renewed  in  every  petty  territory  which  the 
road  might  intersect.  Several  of  Charlemagne's  capitularies 
repeat  complaints  of  these  exactions,  and  endeavor  to  abol- 
ish such  tolls  as  were  not  founded  on  prescription.^  One  of 
them  rather  amusingly  illustrates  the  modesty  and  nuxlera- 
tion  of  the  landholders.  It  is  enacted  that  no  one  shall  be 
compelled  to  go  out  of  his  way  in  order  to  pay  toll  at  a  pai'tic- 
ular  bridge,  when  he  can  cross  the  river  more  conveniently  at 
another  place.*  These  provisions,  like  most  others  of  that 
age,  were  unlikely  to  produce  much  amcndmenU  It  was 
only  the  milder  species,  however,  of  feudal  lords  who  were 
content  with  the  tribute  of  merchants.  Tlie  more  ravenous 
de:5cended  from  their  fortresses  to  pillage  the  wealthy  travel- 
ler, or  shared  in  the  spoil  of  inferior  plunderers,  whom  they 

•aicQin,  a  eolleetion  of  ftendal  eiutonii  Enj^land  and  other  parts.    He  qnotes  no 

wbich  prPTalled  over  most  of  Oennanj,  aurhority,  but  I  am  satisfled  that  he  hat 

that  no  ooe  might  hare  a  separate  pea-  not  a<lranced  the  fact  gratuitously, 

tura  for  his  cattle  unless  he  posseived  *  Schmidt.  1. 1,  p.  411 ;  t  ii.  p.  146. 

three   nwanst.    Du  Ckoge,    t.  Maosua.  *  Du   Cange^  Pedagium.  Pontatlcom, 

There  set^ms  to  have  been  a  price  paid,  I  Telonenm,  Mereatum,  Stallagium,  Lu> 

suppose  lo  tho  lord,  for  agistment  in  the  tagium,  &c. 

eomrooo  pasture  *  Bulus.  Cspit.  p.  621  et  alibi. 

1  The  only  mention  of  a  manufketare,  *  Ut  nuUus  cogatur  ad  pontem  ire  sd 

M  early  as  the  ninth  or  tenth  centuries,  flnrium   trsnseundum    propter   t4flonel 

that  I  remember  to  hsTe  met  with,  is  in  caums  qnando  ille  In  alio  loco  eoniptni' 

flehmidt,  t.  U.  p.  140,  who  says  that  dlosius  illud  flomen  tntaairo  potest  p 

■loths  were  exported  from  Vrieuand  to  764  et  alibi. 


606  STATE  OF  INTERNAL  TRADE,     Chap.  IX.  Part  1. 

bot^  protected  and  instigated.  Proofs  occur,  even  in  the 
later  periods  of  the  middle  ages,  when  government  had  re- 
gained its  energy,  and  civilization  had  made  considerable  prog- 
ress, of  public  robberies  systematically  perpetrated  by  men 
of  noble  rank.  In  the  n^ore  savage  times,  before  the  twelfth 
century,  they  were  probably  too  frequent  to  excite  much  at- 
tention. It  was  a  custom  in  some  places  to  waylay  travel- 
lers, and  not  only  to  plunder,  but  to  sell  them  as  slaves,  or 
compel  diem  to  pay  a  ransom.  Harold  son  of  Godwin,  hav- 
ing been  wrecked  on  the  coast  of  Ponthieu,  was  imprisoned 
by  the  lord,  says  an  historian,  according  to  the  custom  of 
that  territory.^  Germany  appears  to  have  been,  upon  the 
whole,  the  country  where  downright  robbery  was  most  un- 
scrupulously practised  by  the  great.  Their  castles,  erected 
on  almost  inaccessible  heights  among  the  woods,  became  the 
secure  receptacles  of  predatory  band^  who  spread  terror  over 
the  country.  From  these  barbarian  lords  of  the  dark  ages, 
as  from  a  living  model,  the  romances  are  said  to  have  drawn 
their  giants  and  other  disloyal  enemies  of  true  chivalry.  Rob- 
bery, indeed,  is  the  constant  theme  both  of  the  Capitularies 
and  of  the  Anglo-Saxon  laws ;  one  has  more  reason  to  wonder 
at  the  intrepid  thirst  of  lucre,  which  induced  a  very  few  mer- 
chants to  exchange  the  products  of  different  regions,  than  to 
ask  why  no  general  spirit  of  commercial  activity  prevailed. 
Under  all  these  circumstances  it  is  obvious  that  very  little 
Md  of  oriental  commerce  could  have  existed  in  these  west- 

tmiga  em  countries  of  Europe.  Destitute  as  they  have 
eonuneroe.  ]yQ^j^  created,  Speaking  comparatively,  of  natural 
productions  fit  for  exportation,  their  invention  and  industry  are 
the  great  resources  from  which  they  can  supply  the  demands 
of  the  East  Before  any  manufactures  were  established  in 
Europe,  her  commercial  intercourse  with  Egypt  and  Asia 
must  of  necessity  have  been  very  trifling ;  because,  whatever 
inclination  she  might  feel  to  enjoy  the  luxuries  of  those  ge- 
nial regions,  she  wanted  the  means  of  obtaining  them.  It  is 
not  therefore  necessary  to  rest  the  miserable  condition  of  ori- 
ental commerce  upon  the  Saracen  conquests,  because  the 
poverty  of  Europe  is  an  adequate  cause  ;  and,  in  fact,  what 
little  traffic  remained  was  carried  on  with  no  material  incon- 
venience through  the  channel  of   Constantinople.     Venice 

1  BmIumt  apad  BfleneD  det  Hlfftoiiena    rita  ilUna  lod,  a  domino  t«m»  eaptlfilk* 
Am  GkbolM,  t.  xi.  pnhet^  p.  1S2.    Pro    ti  addidtttr. 


State  of  Socistt.    AND  OF  FOBEIGN  COMMERCE.  507 

took  tbe  lead  in  trading  with  Greece  and  more  eastern  coun« 
tries.^  Amalfi  had  the  second  place  in  the  commerce  of 
tho<«e  dark  ages.  These  cities  imported,  besides  natural  pro- 
ductions, the  fine  clothes  of  Constantinople  ;  yet  as  this  traffic 
seems  to  have  been  illicit,  it  was  not  probablj  extensive.' 
Their  exports  were  gold  and  silver,  by  which,  as  none  was 
likely  to  return,  the  circulating  money  of  Europe  was  pn>ba* 
biy  less  in  the  eleventh  century  than  at  the  subversion  of  the 
Roman  empire ;  furs,  which  were  obtained  from  the  Sclaro- 
nian  countries;  and  arms,  the  sale  of  which  to  pagans  or  Sar^ 
acens  was  vainly  prohibited  by  Charlemagne  and  by  the 
Holy  See.'  A  more  scandalous  traffic,  and  one  that  still 
more  fitly  called  for  prohibitory  laws,  was  carried  on  in 
slaves.  It  is  an  humiliating  proof  of  tlie  degradation  of 
Christendom,  that  the  Venetians  were  reduced  to  purchase 
the  luxuries  of  Asia  by  supplying  the  slave-market  of  the 
Saracens.^  Their  apology  would  perhaps  have  been,  that 
these  were  purchased  from  their  heathen  neighbors ;  but  a 
slave-dealer  was  probably  not  very  inquisitive  as  to  the  faith 
or  origin  of  his  victim.  This  trade  was  not  peculiar  to  Yen- 
ice.  In  England  it  was  Very  common,  even  after  the  Con- 
quest, to  export  slaves  to  Ireland,  till,  in  the  reign  of  Henry 
II.,  the  Irish  came  to  a  non-importation  agreement,  which 
put  a  stop  to  the  practice.' 

• 

1  Heeren  bai  ftvqnently  nkmd  to  %  •  Balm.  GafrftnL  p.  776.  Oim  of  tb* 
work  pablished  In  1789,  by  Uariiri.  en-  main  adrantagea  which  the  Christian 
titled,  Storia  elTlle  e  poUtioa  del  Oom-    natiooe  poeMeeed  OTer  the  SaraceoB 


inenio  da*  Veneiiftni,  which  eaete  a  new  the  ooat  of  mail,  and   other  dcfensiTe 

Ught  upon  the  early  relatione  of  Venice  armor ;   so  that   this    prohibition    waa 

with  the  Best.    Of  this  book  I  know  founded  npon  very  good  political  reasoiw. 

nothing ;  but  a  memoir  by  de  Oulgnes,  <  Schmidt,  Hist,  dee  Allem.    t.  11.  p. 

In   the   thirty-eerenth    Tolnme  of  the  146;  Heeren,  for  rinfluence  dee  Crda- 

Aeademy  of  Infcriptione,  on  the  com-  ados,  p.  816.    In  Baluae  we  find  a  law 

meree  of  Fimnee  with  the  Bast  belbre  the  of  Carloman,  brother  to   Charlemagne : 

ernaadea,  is  singularly  nnprodnetlTe ;  Um  Ut  manclpia  Christiana  peganis  non  ven- 

Ikuk  of  the  subjeot,  not  of  the  author,  dantur.    Gapitularia,  t.  1.  p.  160,  Tide 

*  There  is  an  odd  passage    in  Lint-  quoque,  p.  881. 

nmnd^s  relation  of  his  embMsy  from  the  »  William  of  Malmsbury  acensee  the 

Emperor  Otho  to  Nioephoms   Phocaa.  Anglo-Saxon  nobility  of  selling  their  A- 

The  Greeks  making  a  display  of  their  male  serfants,  even  when  pr^nant  by 

dress,  he  told  them  that  in  I^ombardy  them,  as  slaves  to  foreigners,    p.  102.    I 

the  common  people  wore  as  good  clothes  hope  there  were  not  many  of  these  Tari- 

as  they.    How,  they  said,  can  you  pro-  coes ;  and  shonld  not  perhaps  have  given 

cure  them  ?    Through  the  Venetian  and  credit  to  an  historian  rather  pngudieed 

Amalfltan  dealers,  he  replied,  who  gain  against  the  English,  if  I  had  not  found 

their  snbsistenoe  by  seUiog  them  to  us.  too  much  authority  for  the  general  prao- 

Tbe  foolish  Greeks  were  veiy  angry,  and  tice.    In  the  canons  of  a  coancil  at  Lon 

declared  that  any  dealer  prpsuming  to  don  In  1102  we  read.   Let  ^o  one  from 

export    their    fine    clothes  should   be  henceforth   presume  to  cany  on  that 

Bogged.    TJntprandi  Opera,  p  156,e^t«  wicked  tralBo  by  which  men   of  Sng- 

Antweip,  1640.  land  have  hitherto  been  aold  lika  bruta 


508  GENERAL  IMPROVEMENT.     Chap.  IX   Pabt  L 

From  this  state  of  degradation  and  poverty  all  the  coun- 
tries of  Europe  have  recovered,  with  a  progression  in 
some  respects  tolerably  uniform,  in  others  more  unequal; 
and  the  V;ourse  of  their  improvement,  more  gradual  and  less 
dependent  upon  conspicuous  civil  revolutions  than  their  de- 
cline, affords  one  of  the  most  interesting  subjects  into  which  a 
philosophical  mind  can  inquire.  The  commencement  of  this 
restoration  has  usually  been  dated  from  about  the  close  of  the 
eleventh  century ;  though  it  is  unnecessary  to  observe  that 
the  subject  does  not  admit  of  anything  approximating  to 
chronological  accuracy.  It  may,  therefore,  be  sometimes  not 
improper  to  distinguish  the  first  six  of  the  ten  centuries  which 
the  present  work  embraces  under  the  appellation  of  the  dark 
ages ;  an  epith<it  which  I  do  not  extend  to  the  twelfth  and 
three  following.  In  tracing  the  decline  of  society  from  the 
subversion  of  the  Roman  empire,  we  have  been  led,  not 
without  connection,  from  ignorance  to  superstition,  from  super- 
stition to  vice  and  lawlessness,  and  from  thence  to  general 
rudeness  and  poverty.  I  shall  pursue  an  inverted  order  in 
passing  along  the  ascending  sc^e,  and  class  the  various 
improvements  which  took  place  between  the  twelfth  and 
fifteenth  centuries  under  three  principal  heads,  as  they  relate 
to  the  wealth,  the  manners,  or  the  taste  and  learning  of  Eu- 
rope. Different  arrangements  might  probably  be  suggested, 
equally  natural  and  convenient ;  but  in  the  disposition  of 
topics  that  have  not  always  an  unbroken  connection  with 
each  other,  no  method  can  be  prescribed  as  absolutely  more 
scientific  than  the  rest  That  which  I  have  adopted  appears 
to  me  as  philosophical  and  as  little  liable  to  transitions  as  any 
other. 

■niamli.    WlUdni^  Oonellia,  t  I.  p.  888.  hi  a  natioDftl  synod,  SfTPaed  to  omanei* 

And  Gintdas  CMnbrensLi  Mtyn  that  tlie  pata  all  the  Bnglbh  tlarM  In  the  king- 

Bnglteh  before  the  Conqaeet  were  gen-  dom.    Id.  p.  4<1.    This  Momt  to  hat* 

erally  in  the  habit  of  aelUng  their  ehll"  been  detlgued  to  take  away  all  pretext 

dren  and  other  ivlattona  to  be  slaves  in  Ibr  the  threateied  Invsaioii  d  Hieniy  II 

Ireland,  without  having  even  the  pre-  I^tte  ton,  vol.  dL  p.  70. 
text  of  distress  or  (kmias,  ttU  ttie  Irish, 


Statv  of  Socmrr.   WOOLLEN  MANUFACTUBB.  509 


PART  n. 

PiufiMB  of  OomiiMrelal  ImproyemenC  in  Gwrmaoj,  FUodtn,  and  England — in  ttM 
Nortti  of  Karopo — In  the  Gonntrlea  upon  the  Haditormne&n  8oa  —  Maritima 
Laws  —  Usnrj  —  Banking  Companies  —  Proffress  of  KeflnenMot  In  Manners  — 
BomestiG  Architecture  —  Becle^iastleal  Arehltectan  —  State  of  Agriculture  In 
England  —  Value  of  Money  —  Improvement  of  the  Moral  Character  of  Society  — 
its  Causes —  Police— Changes  in  Kellglous  Opinion  —  Various  Sects — ChiTalry  — 
its  Progress,  Character,  and  Influence  —  Causes  of  the  Intellectual  Improfement 
of  European  Society  — 1.  The  Study  of  Civil  Law  — 2.  Institution  of  UnlTersitieB 

—  their  Celebrity  —  Scholastic  Philosophy  —  8.  Cultivation  of  Modern  Languages 

—  Provencal  Poets  — Norman  Poets  —  French  Prom  Writers  — Italian— early 
Poets  in  that  Language  —  Dante  —  Petrarch  —  English  Language  —  its  Progress 

—  Chaucer— 4.  Revival  of  Classical  Lsaming  —  Latin  Writera  of  the  Twelfth 
Century  —  Literature  of  the  Fourteenth  Century  —  Oiedc  Uteratnie — its  Bea- 
toration  in  Italy  —  Invention  of  Printing. 

Tsra  geographical  position  of  Europe  naturally  divides  its 
maritime  commerce  into  two  principal  regions  —  saropean 
one  comprehending  those  countries  which  border  oommeroe. 
on  the  Baltic,  the  German  and  the  Atlantic  Oceans ;  another, 
those  situated  around  the  Mediterranean  Sea.  During  the 
four  centuries  which  preceded  the  discovery  of  America,  and 
especially  the  two  former  of  them,  this  separation  was  more 
remarkable  than  at  present,  inasmuch  as  their  intercourse, 
either  by  land  or  sea,  was  extremely  limited.  To  the  first 
region  belonged  the  Netherlands,  the  coasts  of  France,  Ger- 
many, and  Scandinavia,  and  the  maritime  districts  of  Eng- 
land. In  the  second  we  may  class  the  provinces  of  Valencia 
and  Catalonia,  those  of  Provence  and  Languedoc,  and  the 
whole  of  Italy. 

1.  The  former,  or  northern  division,  was  first  animated  by 
the  woollen  manufacture  of  Flanders.     It  is  not 
easy  either  to  discover   the  early  beginnings  of  m^aflM. 
this,  or  to  account  for  its  rapid  advancement.    The  JJJJ^^ 
fertility  of  that  province  and  its  facilities  of  in- 
terior navigation  were  doubtless  necessary  causes ;  but  there 
must  have  been  some  temporary  encouragement  from  the 
personal  character  of  its  sovereigns,  or  other  accidental  cir- 
cumstances.    Several  testimonies  to  the  flourishing  condition 
of  Flemish  manufactures  occur  in  the  twelfth  century,  and 


510  WOOLLEN  OF  FLAm)EBS.    Chap.  IX.  Pabt  IL 

Bome  migbt  perhaps  be  found  even  earlier.*  A  writer  of  the 
thirteenth  asserts  that  all  the  world  was  clothed  from  English 
wool  wrought  in  Flanders.*  This,  indeed,  is  an  exaggerated 
vaunt ;  but  the  Flemish  stuffs  were  probably  sold  wherever 
the  sea  or  a  navigable  river  permitted  them  to  be  carried. 
Cologne  was  the  chief  trading  city  upon  the  Rhine  ;  and  its 
merchants,  who  had  been  considerable  even  under  the  em- 
peror Henry  IV.,  established  a  factory  at  London  in  1220. 
The  woollen  manufacture,  notwithstanding  frequent  wars  and 
the  impolitic  regulations  of  magistrates,'  continued  to  flourish 
in  the  Netherlands  (for  Brabant  and  Hainault  shared  it  in 
some  degree  with  Flanders),  until  England  became  not  only 
capable  of  supplying  her  own  demand,  but  a  rival  in  all  the 
marts  of  Europe.  ^'  All  Christian  kingdoms,  and  even  the 
Turks  themselves,"  says  an  historian  of  the  sixteenth  century, 
^  lamented  the  desperate  war  between  the  Flemish  cities  and 
their  count  Louis,  that  broke  out  in  1380.  For  at  that  time 
Flanders  was  a  market  for  the  traders  of  all  the  world.  Mer- 
chants from  seventeen  kingdoms  had  their  settled  domiciles 
at  Bruges,  besides  strangers  from  almost  unknown  countries 
who  repaired  thither."^  During  this  war,  and  on  all  other 
occasions,  the  weavers  both  of  Ghent  and  Bruges  distin- 
guished themselves  by  a  democratical  spirit,  the  consequence, 
no  doubt,  of  their  numbers  and  prosperity.^  Ghent  was  one 
of  the  largest  cities  in  Europe,  and,  in  the  opinion  of  many, 
the  best  situated/    But  Bruges,  though  in  circuit  but  half 


1  Haoph^non**  Annals  of  OommerM,  English  goodf  irwe  Jost   eoming  Into 

vol.  1.  p.  270.    Meyer  ascrlbea  the  origin  competltfon. 

of  Fleminh  trade  to  Baldwin  count  of  *  Terrft  mariqne  mercakura,  renunqiM 

Flanders  in  968,  who  established  markets  eommereia  et  qucestus  peribakit.    Non 

at  Bruges  and  other  cities.    Exchanges  solum  totius  Europse  meroatores,  Temm 

were  in  that  age,  he  says,  chiefly  effected  etiam  ipsi  Turese  aliaeque  seposltaB  n»> 

by  barter,  little  money   circulating  In  tlones  ob  helium  Istud  FlandrUe  magno 

Flanders.     Annales   Fliandrici,   fi>l.    18  afflciebantor  dolors.    Srat  nempe  Flan- 

(edit.  1661).  dria  totins  prope  orbis  stabile  mereatorl- 

>  Matthew  Westmonast.    apnd   Mae-  bus  emporium.    Septemdecim  regncraia 

phersoD^s  Annals  of  Commerce,  toI.  1.  negotiatores  turn  Brugls  sua  oerta  hab- 

p.  415.  nere  domicilla  ae  sedes^  praeter  complunt 

*  Such  regulations  scared  away  those  incognitas  psene  gentes   qua   undSqoe 


Flemish  weaTers  who  brought  their  art  eonfluebant.    Meyer«  fol.  206,  ad  aan. 

Into  England  under  Edward  III.    Mae-  1886 

Sherson,  p.  467,  491,646.    SeTcral  years  *  Meyer;  Frolssart;  Oomines. 

iter  the  magistoatee  of  Ghent  are  said  *  It  contained,  according  to  Ludorlco 

by  Meyer  (Annates  FlandriCi,  fol.  166)  to  Qniccianllni,  85,000  hoiwes,  and  the  elfw 

have   imposed   a  tax   on   CTery    loom,  cuit  of  its  walls  was  45,640  Roman  feet. 

Though  the  seditions  spirit  of  the  Wear-  Description  des  Pais  Bas,  p.  8G0,  kc, 

ers*  Company  had  perhaps  JusUy  proTok-  (edit.  1609).    Fart  of  this  enckMurs  wac 

•d  them,  such  A  tax  on  their  staple  man-  not    buUt   upon.     The  popnlatkm  of 

Bftetun  WM  a  flaea  of  madnew,  when  Ofaant  la  nokoaad  by  Qnioetavdlni  aft 


BxATB  OF  SooDBTT.   WOOL  TRADE  OF  ENGLAND.  511 

the  former,  was  more  splendid  in  its  buildings,  and  the  seat 
of  far  more  trade ;  being  the  great  staple  both  for  Mediter- 
ranean and  northern  merchandise.^  Antwerp,  which  early 
in  the  sixteenth  century  drew  away  a  large  part  of  this  com- 
merce from  Bruges,  was  not  considerable  in  the  preceding 
ages ;  nor  were  the  towns  of  Zealand  and  Holland  much 
noted  except  for  their  fisheries,  though  those  provinces  ao 
quired  in  the  fifteenth  century  some  share  of  the  woollei 
manufacture. 

For  the  first  two  centuries  after  the  Conquest  our  Eng 
lish  towns,  as  has  been  observed  in  a  different  g^.^^  ^ 
place,  made  some  forward  steps  towards  improve-  wool  fw>m 
ment,  though  still  very  inferior  to  those  of  the  *°8^***- 
continent  Their  commerce  was  almost  confined  to  the  ex- 
portation of  wool,  the  great  staple  commodity  of  Englani, 
upon  which,  more  than  any  other,  in  its  raw  or  manufactured 
state,  our  wealth  has  been  founded.  A  woollen  manufacture, 
however,  indisputably  existed  under  Henry  IL  ;*  it  is  noticed 
in  regulations  of  Richard  I. ;  and  by  the  importation  of  woad 
under  John  it  may  be  inferred  to  have  still  fiourished.  The 
disturbances  of  the  next  reign,  perhaps,  or  the  rapid  eleva- 
tion of  the  Flemish  towns,  retarded  its  growth,  ^ough  a  re- 
markable law  was  passed  by  the  Oxford  parliament  in  1261, 
prohibiting  the  export  of  wool  and  the  importation  of  eloth. 
This,  while  it  shows  the  deference  paid  by  the  discontented 
'Aarons,  who  predominated  in  that  parliament,  to  their  con 
federates  the  burghers,  was  evidently  too  premature  to  be 
enforced.  We  may  infer  from  it,  however,  that  cloths  were 
made  at  home,  though  not  sufficiently  for  the  people's  con- 
sumption.* 

90,000,  but  In  lib  time  it  h»A  grmJOw  i  Blomeltold,  the  Uil.iria]i  of  Norlblk. 

declined.    It  to  eertainlj,  howvrer,  miieh  thinks  that  a  colony  of  flemlngB  tettlea 

exaggerated  bj  earlier  historiaDfl.    And  ai  early  aa  this  reign  at  Woistod,  a  tU- 

I  entertain  eome  doobte  ai  to  Qnioelar-  kge  in  that  county,  and  immortaliied 

dini-i  eatiniate  of  the  nomber  of  hontee.  Its  nune  by  their  mannihetnre.    It  eoon 

If  at  least  he  was  aocnrato,  mora  than  reached  Norwich,  thoorii  not  eonsplo- 

half  of  the  city  moat  since  haTe  been  nous  till  the  reign  of  Edward  I.    Ilist 

demolished     or    become    uninhabited,  of  Norfolk,  toI.iI.    Macphenon  speaks 

which  Its  present  appearance  does  not  of  it  for  the  fixet  time  in  1S27.    Tbpzy» 

indicate;  for  Ghent,  though  not  irery  were  several  guilds  of  weaTcis  In  the 

flourishittg,  by  no  means  presento  the  time  of  Henry  II.    I^ttelton,    ?ol.  ii. 

decay  and  dilapidation  of  sereral  Italian  p.  174. 

towns.  *  Uacphereon's  Annals  of  Oommeree^ 

1  Quiedardlnl,  p.  862  ;  Mtei.  ds  Go-  vol.  i.  p.  412.  frOM  Walter  Heminglhrd. 

mines,  1.  t.  e.  17 ;  Meyer,  fol.  864 ;  Use-  I  am  considerably  indebted  to  this  labo 

pherson*s  Annals  of  OommnM,  vol.  L  rlous  and  nseftil  pnb^leatton,  which  has 

p.  647, 861r  superseded  that  of  indexson. 


512  ITS  WOOLLEN  MANUTACTUBE.     Chap.  DL  Pari  IL 

Prohibitions  of  the  same  nature,  though  with  a  different 
object,  were  frequently  imposed  on  the  trade  between  England 
and  Flanders  bj  Edward  I.  and  his  son.  As  their  political 
connections  fluctuated,  these  princes  gave  full  liberty  and  set- 
tlement to  the  Flemish  merchants,  or  banished  them  at  once 
from  the  country.*  Nothing  could  be  more  injurious  to  Eng- 
land than  this  arbitrary  vacillation.  The  Flemings  were  in 
every  respect  our  natural  allies ;  but  besides  those  connections 
with  France,  the  constant  enemy  of  Flanders,  into  which 
both  the  Edwards  occasionally  fell,  a  mutual  alienation  had 
been  produced  by  the  trade  of  the  former  people  with 
Scotland,  a*  trade  too  lucrative  to  be  resigned  at  the  king  of 
England's  request^  An  early  instance  of  that  conflicting 
selfishness  of  belligerents  and  neutrals^  which  was  destined  to 
aggravate  the  animosities  and  misfortunes  of  our  own  time.* 
A  more  prosperous  era  b^gan  with  Edward  in.,  the  father, 

as  he  may  almost  be  called,  of  English  commerce, 
woollen  a  ^itie  not  indeed  more  glorious,  but  by  which  he 
Buna&o-       may  perhaps  claim  more  of  our  gratitude  than  as 

the  hero  of  Crecy.  In  1331  he  took  advantage  of 
discontents  among  the  manufacturers  of  Flanders  to  invite 
them  as  settlers  into  his  dominions.^  They  brought  the  finer 
manufacture  of  woollen  cloths,  which  had  been  unknown  in 
England.  The  discontents  alluded  to  resulted  from  the  mo* 
nopolizing  spirit  of  their  corporations,  who  oppressed  all  arti- 
sans without  the  pale  of  their  community.  The  history  of 
corporations  brings  home  to  our  minds  one  cardinal  truth,  that 
political  institutions  have  very  frequently  but  a  relative  and 
temporary  usefulness,  and  that  what  forwarded  improvement 
during  one  part  of  its  course  may  prove  to  it  in  time  a  most  per- 
nicious obstacle.  Corporations  in  England,  we  may  be  sure, 
wanted  nothing  of  their  usual  character ;  and  it  cost  Edward 
no  little  trouble  to  protect  his  colonists  from  the  selfishness  and 


1  Rymer.  t.  il.  p.  82,  60,  737,  949, 966 ;  they  should  fted  on  Ikt  beef  and  mutton, 

t.  Hi.  p.  6Sd,  1106,  et  aUbi.  till   nothing  but   their  fulnen  thould 

>  Rymer,    t.   iii.  p.  769.    A  Flemish  stinfc  their  stomachs ;  their  beds  should 

flictory  was  established  at  Berwidc  about  be  good,  and  their  iNMlfellows  better,  se«- 

1286.    MacpherMon.  Ing  the  richest  yeomen  in  Bngland  vonld 

'  In  1296  Kdward  T.  made  masters  of  not  diMlain  to  marry   their   daughters 

neutral  ships  in  English  ports  find  seen-  unto  them,  and  such  the  English  beau* 

rlty  not  to  trade  with  France.    Kymer,  ties  that  the  most   envious   foreigners 

t.  u.  p.  679.  could  not  bat  rommend  them."    Ful* 

*  Kymer,    t.  It.  p.   491,   &e.    Fuller  ler's  Church  History,  quoted  In  Blonia 

draws  a  notable  picture  of  the  induce-  fleld^s  Uist.  of  Norfolk. 
UAOts  held  out  to  the  Flemings.    *^  Ears 


State  of  Sooixtt.     ENGLISH  COMMERCE.  513 

from  the  blind  nationalitj  of  the  vulgar.^  The  emigration  of 
Flemish  weavers  into  England  continued  during  this  reign, 
and  we  find  it  mentioned,  at  intervals,  for  more  than  a  century. 
Commerce  now  became,  next  to  liberty,  the  leading  object 
of  parliament  For  the  greater  part  of  our  statutes  incrfwe  of 
from  the  accession  of  Edward  III.  bear  relation  to  Kngiuh 
this  subject ;  not  always  well  devised,  or  liberal,  °**°*™*'*** 
or  consistent,  but  by  no  means  worse  in  those  respects  than 
such  as  have  been  enacted  in  subsequent  ages.  The  oct^u- 
pation  of  a  merchant  became  honorable ;  and,  notwithstanding 
the  natural  jealousy  of  the  two  classes,  he  was  placed,  in 
some  measure,  on  a  footing  with  landed  proprietors.  By  the 
statute  of  apparel,  in  37  Edw.  III.,  merchants  and  artificers 
who  had  five  hundred  pounds  value  in  goods  and  chattels 
might  use  the  same  dress  as  squires  of  one  hundred  pounds  a 
year.  And  those  who  were  worth  more  than  this  might 
dress  like  men  of  double  that  estate.  Wool  was  still  the 
principal  article  of  export  and  source  of  revenue.  Subsidies 
granted  by  every  parliament  upon  this  article  were,  on  ac- 
count of  the  scarcity  of  money,  commonly  taken  in  kind.  To 
prevent  evasion  of  this  duty  seems  to  have  been  the  principle 
of  those  multifarious  regulations  which  fix  the  staple,  or  mar* 
ket  for  wool,  in  certain  towns,  either  in  England,  or,  more 
commonly,  on  the  continent.  To  these  all  wool  was  to  be 
carried,  and  the  tax  was  there  collected.  It  is  not  easy, 
however,  to  comprehend  the  drift  of  all  the  provisions  re- 
lating to  the  staple,  many  of  which  tend  to  benefit  foreign  at 
the  expense  of  English  merchants.  By  degrees  the  exporta- 
tion of  woollen  cloths  increased  so  as  to  diminish  that  of  the 
raw  material,  but  the  latter  was  not  absolutely  prohibited 
during  the  period  under  review ;  *  although  some  restrictions 
were  imposed  upon  it  by  Edward  IV.  For  a  much  earlier 
statute,  in  the  11th  of  Edward  III.,  making  the  exportation 
of  wool  a  capital  felony,  was  in  its  terms  provisional,  until  it 
should  be  otherwise  ordered  by  the  council ;  and  the  king 
almost  immediately  set  it  aside.* 

t  RyiMr,  t.  ▼.  p.  1S7, 490, 640.  looi  ihoiild  be  aAmtttod  fnto  Cogland 

•  In  1409  wooUen  elothg  ftmned  gtmk   27  H.  VI.  e.  1.    The  syitem  of  prohibit* 
part  of  oor  •xporto,  and  wvra  oztnuiTO-    log  (ho  import  of  Ibrelgn  wrought  goodf 


nr  used  orer  Spain  and  Italy.    And  in  was  acted  apon  my  axtensivaly  in  Kd* 

1448.  Bngliah  elotha  haviig  batn  prohib-  ward  IV.*i  ralgn. 

Ited  by  th«  duka  of  Burgundy,  it  was  «  Stat.  11  S.   m.  a.  1.    Blaekntono 

•naeted  tlial,  until  ha  ahouid  repeal  Uiia  aaya  that  traoiporting  wool  out  of  the 

crdinaoM,  nomaitthaiidiae  of  hlf  domla*  fcingdom,  to  tiie  detilmeat  of  oor  alaple 

VOL.  II.  — M. 


614         CONTINENTAL  BiANUFACTUKES.     Chap.  IXtPabt  n 

A  manufacturing  district,  as  we  see  in  our  own  country 

sends  out,  as  it  were,  suckers  into  all  its  neigh- 

tai^Sr       borhood.      Accordingly,  the  woollen  manufacture 

France  and    spread  from  Flanders  along  the  banks  of  the  Rhine 

"°*°^*  and  into  the  northern  provinces  of  France.*  I  am 
not,  however,  prepared  to  trace  its  history  in  these  regions. 
In  Germany  the  privileges  conceded  by  Henry  V.  to  the 
free  cities,  and  especially  to  their  artisans,  gave  a  soul  to 
industry;  though  the  central  parts  of  the  empire  were,  for 
many  reasons,  very  ill-calculated  for  conmiercial  enterprise 
during  the  middle  ages.^  But  the  French  towns  were  never 
BO  much  emancipated  from  arbitrary  power  as  those  of  Grer- 
many  or  Flanders ;  and  the  evils  of  exorbitant  taxation,  with 
those  produced  by  the  English  wars,  conspired  to  retard  the 
advance  of  manufactures  in  France.  That  of  linen  made 
some  little  progress ;  but  this  work  was  still,  perhaps,  chiefly 
confined  to  the  labor  of  female  servants.* 

The  manufactures  of  Flanders  and  England  found  a  mar- 
Baitio  ket,  not  only  in  these  adjacent  countries,  but  in  a 

*n<i«*  part  of  Europe  which  for  many  ages  had  only 

• 

maDaftctacef  wu  forbidden  at  common  Ibid.  p.  639.    But  the  tapeTloritT  of 

law  (Tol.  iT.  c.  19)f  not  reeolleeUng  that  BngUsh  wool,  even  as  late  as  148B,  li 

we  had  no  staple  mannfiusturei  in  the  proved  by  the  laws  of  Barcelona  forbid- 

ages  when  the  common  law  was  formed,  diog  its  adalteration.  p.  654.    Another 

and  that  the  export  of  wool  was  almost  exportation  of  English  sheep  to  Spain 

the  only  means  by  which  this  country  took  place  about  1465,  in  consequence 

procured  silTer,  or  any  other  article  of  of  a  commercial  treaty.    Rymer,  t.  zl. 

which  it  stood  in  need,  firom  the  conti-  p.  684  et  alibi.    In  return,  Spain  snp- 

nent.    In  fiu;t,  the  Undholders  were  so  plied  England  with  horns,  her  breed  of 

fiur  trcm  neglecting  this  source  of  their  which  was  reckoned  the  best  in  Europe  ; 

wealth,  that  a  mioimum  was  fixed  upon  so  that  the  exehanse  was  tolerably  lair, 

it,  by  a  statute  of  li848  (repealed  indeed  Macpherson,  p.  696.    The  best   horsst 

the  next  year,  18  B.  III.  e.  8),  below  had  been  yexy  dear  in  England,  bring 

which  price  it  was  not  to  be  sold ;  ftom  Imported  from  Spain  and  Italy.    Ibid, 

a  laudable  apprehension,  as  it  seems,  ^  Schmidt,  t.  !▼.  p.  18. 

that  fordgners  were  getting  it  too  eheap.  *  Conaideimble  woollen  manuflMtnres 

And  this  was  reriTMl  in  the  82d  of  H.  (^Pp«v  to  have  existed  in  Picardy  about 

VI.,  though  theact  is  not  printed  among  18l5.     Macphersou    ad    annum.     Oap- 

the  statutes.    Rot.  Pari.  t.  r.  p.  275.  many,  t.  iii.  part  8,  p.  151. 

The  exportation  of  sheep  was  prohibited  *  The  sheriffli  of  Wiltshire  and  Sussex 

in  1888  — Rymer,  t.  ▼.  p.  88;  and  by  act  are  directed  in  1268  to  purchase  for  the 

of  Parliament  in  1425  —  8  II.  VI.  c.  2.  king  1000  ells  of  fine  linen,  llneiB  telsi 

But  this  did  not  prevent  our  importing  pulchrsB  et  delicate.    This  Maephersoa 

the  wool  of  a  foreign  country,  to  our  supposes  to  be  of  domestic  manufketura, 

own  loss.    It  b  worthy  of  notice  that  which,  however,  is  not   demonstrable. 

English  wool  was  superior  to  ai^  other  Linen  was  made  at  that  time  in  Fbm- 

for  fineness  during  these  ages.    Henry  ders ;  and  as  late  as  1417  the  fine  Unen 

II.,  in  his  p8.»nt  to  the  Weavers'  Com-  used  in  England   was   Imported  tntm 

pany,  directs  that,  If  any  weaver  mln-  France  and  the  Low  Countries.    Mae* 

gled  Spanish  wool  with  English,  it  should  phemon,    firom   Rymer,   t.  Ix.  p.  884. 

be  burned  by  the  lord  mayor.    Maepher-  Velly's  history  is  defoctive  In  giving  no 

son,  p.  882.    An  English  flock  transport-  aooount  of  the  French  oommeroe  and 

ed  Into  Spain  about  1848  is  said  to  have  manuftetures,  or  at  least  none  thai  It 

been  thesouroe  of  tlie  fine  Spanish  wool  at  ail  t^tigtu^OKj. 


Statb  or  Soonrr.  BALTIC  TRADE.  515 

been  known  enough  to  be  dreaded.  In  the  middle  of  the 
eleventh  century  a  native  of  Bremen,  and  a  writer  much  su- 
perior to  most  others  of  his  time,  was  almost  entirely  ignorant 
of  the  geography  of  the  Baltic ;  doubting  whether  any  one 
had  reached  Russia  by  that  sea,  and  reckoning  Esthonia  and 
Courland  among  its  islands.^  But  in  one  hundred  years 
more  the  maritime  regions  of  Mecklenburg  and  Pomerania, 
inhabited  by  a  tribe  of  heathen  Sdavonians,  were  subdued 
by  some  Grerman  princes ;  and  the  Teutonic  order  some  time 
afterwards,  having  conquered  Prussia,  extended  a  line  of  at 
least  comparative  civilization  as  far  as  the  gulf  of  Finland. 
The  first  town  erected  on  the  coasts  of  the  Baltic  was  Lubec, 
which  owes  its  foundation  to  Adolphus  count  of  Holstein,  in 
1140.  After  several  vicissitudes  it  became  independent  of 
any  sovereign  but  the  emperor  in  the  thirteenth  century. 
Hamburg  and  Bremen,  upon  the  other  side  of  the  Cimbric 
peninsula,  emulated  the  prosperity  of  Lubec;  the  former  city 
purchased  independence  of  its  bishop  in  1225.  A  colony 
from  Bremen  founded  lUga  in  Livonia  about  1162.  The 
city  of  Dantzic  grew  into  importance  about  the  end  of  the 
following  century.  Konigsberg  was  founded  by  Ottocar  king 
of  Bohemia  in  the  same  age. 

But  the  real  importance  of  these  cities  is  to  be  dated  from 
their  famous  union  into  the  Hanseatic  confederacy.  The 
origin  of  this  is  rather  obscure,  but  it  may  certainly  be  nearly 
referred  in  point  of  time  to  the  middle  of  the  thirteenth  cen- 
tury,' and  accounted  for  by  the  necessity  of  mutual  defence, 
which  piracy  by  sea  and  pillage  by  land  had  taught  the  mer- 
chants of  Germany.  The  nobles  endeavored  to  obstruct  the 
formation  of  this  league,  which  indeed  was  in  great  measure 
designed  to  withstand  their  exactions.  It  powerfully  main- 
tained  the  influence  which  the  free  imperial  cities  were  at  this 
time,  acquiring.  Eighty  of  the  most  considerable  places  con- 
stituted the  Hanseatic  confederacy,  divided  into  four  colleges, 
whereof  Lubec,  Cologne,  Brunswick,  and  Dantzic  were  the 
leading  towns.  Lubec  held  the  chief  rank,  and  became,  as  it 
were,  the  patriarchal  see  of  the  league ;  whose  province  it 
was  1o  preside  in  all  general  discussions  for  mercantile,  po- 
litical, or  military  purposes,  and  to  carry  them  into  execution. 

1  Adam  BmneBrif,  d»  SItti  Daate,  p.    p.  8B9.    Thie  Utttr  writtr  thlnki  th^ 
18.   (BiMTfr  tdit.)  WW  not  koonni  by  tbt  bum  of  Hadm 

•  Schmidt,  t.  It.  p.  8.    llMphMMa,    m  «ar]y. 


516  PROGRESS  OF  EI^QLISH  TRADE.    Chai  IX.  Past  IL 

The  league  had  four  principal  factories  in  foreign  parts,  at 
London,  Bruges,  Bergen,  and  Novogorod ;  endowed  bj  the 
sovereigns  of  those  cities  with  considerable  privileges,  to 
which  every  merchant  belonging  to  a  Hanseatic  town  was 
entitled.^  In  England  the  Grerman  guildhall  or  factory  was 
established  by  concession  of  Henry  III. ;  and  in  later  periods 
the  Hanse  traders  were  favored  above  many  others  in  the 
capricious  vacillations  of  our  mercantile  policy.'  The  Eng- 
lish had  also  their  factories  on  the  Baltic  coast  as  far  as 
Prussia  and  in  the  dominions  of  Denmark.' 

This  opening  of  a  northern  market  powerfully  accelerated 
.  the  growth  of  our  own  commercial  opulence,  es- 

progren  of  pecially  aflcr  the  woollen  manu&cture  had  begun 
^Jf*^  to  thrive.  From  about  the  middle  of  the  four- 
teenth  century  we  find  continual  evidences  of  a 
rapid  increase  in  wealth.  Thus,  in  1363,  Ficard,  who  had 
been  lord  mayor  some  years  before,  entertained  Edward  ILL 
and  the  Black  Prince,  the  kings  of  France,  Scotland,  and 
Cjrprus,  with  many  of  the  nobility,  at  his  own  house  in  the 
Vintry,  and  presented  them  with  handsome  gifls.^  Philpot, 
another  eminent  citizen  in  Richard  IL's  time,  when  the  tiade 
of  England  was  considerably  annoyed  by  privateers,  hired 
1000  armed  men,  and  despatched  them  to  sea,  where  they 
took  fifteen  Spanish  vessels  with  their  prizes.*  We  find 
Richard  obtaining  a  great  deal  from  private  merchants  and 
trading  towns.  In  1379  he  got  5000/.  from  London,  1000 
marks  from  Bristol,  and  in  proportion  from  smaller  places. 
In  1386  London  gave  4000/.  more,  and  10,000  marks  in 
1397.'  The  latter  sum  was  obtained  also  for  the  coronation 
of  Henry  VLJ  Nor  were  the  contributions  of  individuab 
contemptible,  considering  the  high  value  of  money.  Hinde, 
a  citizen  of  London,  lent  to  Henry  IV.  2000/.  in  1407,  and 
Whittington  one  half  of  that  sum.  The  merchants  of  the 
staple  advanced  4000^1  at  the  same  time.'  Our  commerce 
continued  to  be  regularly  and  rapidly  progressive  during  the 
fifteenth  century.  The  famous  Canynges  of  Bristol,  under 
Henry  YI.  and  Edward  IV.,  had  ships  of  900  tons  burden.* 

1  PfcflU,  t.  I.  p.  448;  Schmidt,  t.  It.       »  Walringhftm,  p.  211. 
p.  18;  t.  ▼.  p.  612;  Xaeplienoii^t  An-       •  RTinar,  I.  viL  p.  210|  Ml;    t. 

aalfl.  ▼ol.  i.  p.  688.  p.  9. 

*  MAcphenon,  vol.  I.  rimliB.  T  Rymer,  t.  z.  p.  481. 

■  RYmer,  t.  riU.  p.  S^a  t  Rrmer,  t.  TiU.  p.  488. 

«  Ukcphenon  (who  qvotet  Btow),  p.       •  BuophaEton,  p.  667. 


Htatk  op  Socibtt.     commercial  INTERCOUBSE.  517 

The  trade  and  even  the  internal  wealth  of  England  reached 
60  much  higher  a  pitch  in  the  reign  of  the  last-mentioned 
king  than  at  anj  former  period,  that  we  may  perceive  the 
wars  of  York  and  Lancaster  to  have  produoied  no  very 
serious  effect  on  national  prosperity.  Some  battles  were 
doubtless  sanguinary ;  but  the  loss  of  lives  in  battle  is  soon 
repaired  by  a  flourishing  nation ;  and  the  devastation  occa- 
sioned by  armies  was  both  partial  and  transitory. 

A  commercial  intercourse  between   these  northern  and 
southern  regions  of  £urope  began  about  the  early 
part  of  the  fourteenth  century,  or,  at  most,  a  little  with  the 
sooner.     Until,  indeed,  the  use  of  the  magnet  was  guropef 
thoroughly  understood,  and  a  competent  skill  in 
marine  architecture,  as   well  as  navigation,  acquired,  the 
Italian  merchants  were  scarce  likely  to  attempt  a  voyage 
perilous  in  itself  and  rendered  more  formidable  by  the  im- 
aginary difficulties  which  had  been  supposed  to  attend  an  ex- 
pedition beyond  the  straits  of  Hercules.     But  the  English, 
accustomed  to  their  own  rough  seas,  were  always  more  in- 
trepid, and  probably  more  skilful  navigators.     Though  it  was 
extremely  rare,  even  in  the  fifteenth  century,  for  an  English 
trading  vessel  to  appear  in  the  Mediterranean,^  yet  a  famous 
military  armament,  that  destined  for  the  crusade  of  Richard 
I.,  displayed  at  a  very  early  time  the  seamanship  of  our 
countrymen.    In  the  reign  of  Edward  II.  we  find  mention  in 
Bymer's  collection  of  Genoese  ships  trading  to  Flanders  and 
England.    His  son  was  very  solicitous  to  preserve  the  friend- 
jship  of  that  opulent  republic ;  and  it  is  by  his  letters  to  his 

1  Richard  m.,  in  1485,  appointed  a  acainet  all  Oenoeee  propertj.  BTmer, 
norentlne  merchant  to  be  SaglUh  oon-  t.  TiU.  p.  717,  778.  Thou(^  it  Is  not 
■ul  at  Ciaa,  on  the  ground  that  tome  of  perfaape  erideot  that  the  Teiaela  were 
hla  Butjeets  intended  to  trade  to  Italy.  Siwtieh,  the  drcnmBtaneea  render  it 
Macphereon,  p.  706,  tram  Rymer.  Per-  highly  probable.  The  bad  sncoese,  how- 
hapa  we  cannot  poiittvely  prove  the  exist-  evw,  or  thie  attempt,  might  prevent  Its 
•nee  of  a  Mediterranean  trade  at  an  Imitation.  A  Oreek  author  about  the 
•arUer  time :  and  even  this  iostrument  beginning  of  the  fifteenth  century  reek- 
Is  not  eonclualTe.  But  a  eonaiderable  ona  the  lyyX^uoi  among  the  nationa  who 
praaumptioD  arbee  from  two  documents  ^^^  to  a  port  in  the  Archipelago. 
In  Rymer,  of  the  year  1412,  which  in-  Qi^y^j^  ^ol.  5i.  p.  62.  put  theJTelfu- 
•S?  ^  '  great  shipment  of  wool  and  n^eratiofui  v»  generally  swelled  by  ranity 
^^ *°*i°;t^'S^  !?*"•  =»«»«»>»«»'*. ^  or  the  lovTorexaggemUon ;  ai^  a  few 
London  tor  the  Mediterranean,    under  KngUsh  sailors  on  board  a  foreten  Teasel 

E!l!f;r'^V''*i??**  "  ****^f  °!IJf«'  woSld  JuatUy  the  assertion.  Swijamln 
^''^i"^"**:.  *iSl  S"*Ll*'*"^ifii-'^^:  of  Tudela,  a  Jewish  traTeller,  pretends 
mended  to  the  Genoese  ^Pttblte.    But    ^^  ^^^*^  ^f  Alexandria,  afcout  USO, 

^^  iTfif;  S"^Sj.~*5rl-S/2?;    oontainedVessels  not  only  from  England! 

their  earvMS  i  which  induced  the  king    warrfa'a  VoTsna  toI  1  n.  664. 
^  gnnl  ttie  owne-t  lettwrs  of  raprisia    "«™^  voyages,  toi.  x.  p.  ooft. 


51d  COMHEBCE  OF  THE       Chap.  IX.  Par  H 

senate,  or  by  royal  orders  restoring  ships  unjustly  seized,  thai 
we  eome  by  a  knowledge  of  those  facts  which  historians  neg- 
lect to  relate.  Pisa  shared  a  little  in  this  traffic,  and  Venice 
more  considerably  ;  but  Genoa  was  beyond  all  competition  at 
the  head  of  Italian  commerce  in  these  seas  during  the  four- 
teenth century.  In  the  next  her  general  decline  lefl  it  more 
open  to  her  rival ;  but  I  doubt  whether  Venice  ever  maic^ 
tained  so  strong  a  connection  with  England.  Through  London 
and  Bruges,  their  chief  station  in  Flanders,  the  merchants 
of  Italy  and  of  Spain  transported  oriental  produce  to  the 
farthest  parts  of  the  north.  The  inhabitants  of  the  Baltic 
coast  were  stimulated  by  the  desire  of  precious  luxuries  which 
they  had  never  known  ;  and  these  wants,  though  selfish  and 
frivolous,  are  the  means  by  which  nations  acquire  civilizatioc, 
and  the  earth  is  rendered  fruitful  of  its  produce.  As  the  car- 
riers of  this  trade  the  Hanseatic  merchants  resident  in  Eng* 
land  and  Flanders  derived  profits  through  which  eventually 
of  course  those  countries  were  enriched.  It  seems  that  the 
Italian  vessels  unloaded  at  the  marts  of  London  or  Bruges, 
and  that  such  parts  of  their  cargoes  as  were  intended  for  a 
more  northern  trade  came  there  into  the  hands  of  the  Gier- 
man  merchants.  In  the  reign  of  Henry  VI.  England  car^ 
ried  on  a  pretty  extensive  traffic  with  the  countries  around 
the  Mediterranean,  for  whose  oommodities  her  wool  and  wool- 
len cloths  enabled  her  to  pay. 

The  commerce  of  the  southern  division,  though  it  did  no^ 
Oommeiw  I  think,  produce  more  extensively  beneficial  effects 
Meditor-  ^pou  the  progTOss  of  socicty,  was  both  earlier 
xanflln  and  more  splendid  than  that  of  England  iind  the 
MontriM.  neighboring  countries.  Besides  Venice,  which  has 
been  mentioned  already,  Amalfi  kept  up  the  commercial  in 
tercourse  of  Christendom  with  the  Saracen  ooun- 
^°*"^"         tries  before  the  first  crusade.*    It  was  the  singular 

1  The  Amalfltana  are  thus  described  ]Regis  et  Antloehl.    H«e  [ettem?]  fteta 
l»7  WlUkuQ  of  Apalia,  apad  Moratorl,  plarima  transie. 

DlMeiri.  SO.  Hlo  Arabes,  ludl,  Sioali  noeeantnr,  et 

AfH 

^'^*.irj!f T  °P""»  populoqoe  re.  jj^      ;  „^  ^tttm  piope  nobUitate 

fertaTldetur,  oerorbem 

Nulla  magfa  locaplee  aisento,  Teetibos,  jj^  aJTreanda  tirwB,  et  amana  meroata 

refarre 
Partlbus  innnmerls  ao  plurlmua  urbe 

moratur  [There  mnat  be,  I  enepect,  wme  ezac 

Hautaf  maxie  ccelique  whu  aperlre  p«*  oeratloa  about  the  commeroe  and  opn- 

rltui.  Mooe  of  Amalfi,  in  the  only  age  whev 

Hno  et  Aleycandri  diTersa  ftmntur  ab  ahe  poeseaeed  any  at  all.    The  cUj  could 

vbe,  nerer  hafe  been  eraaideiahle,  as  we  may 


Staib  of  Socxbtt.    MEDITEBBANEAN  COUNTRIES.  519 

fate  of  this  city  to  have  filled  up  the  interval  between  two 
periods  of  civilization,  in  neither  of  which  she  was  destined 
to  be  distinguished.  Scarcely  known  before  the  end  of  the 
sixth  century,  Amalfi  ran  a  brilliant  career,  as  a  free  and 
trading  republic,  which  was  checked  by  the  arms  of  a  con- 
queror  in  the  middle  of  the  twelfth.  Since  her  subjugation 
by  Roger  king  of  Sicily,  the  name  of  a  people  who  for  a 
while  connected  Europe  with  Asia  has  hardly  been  repeate<l, 
except  for  two  discoveries  falsely  imputed  to  them,  those  of 
the  Pandects  and  of  the  compass. 

But  the  decline  of  Amalfi  was  amply  compensated  to  the 
rest  of  Italy  by  the  constant  elevation  of  Pisa,  ^^ 
Gknoa,  and  Venice  in  the  twelfth  and  ensuing  OeDo*, 
ages.  The  crusades  led  immediately  to  this  grow-  ^^°^' 
ing  prosperity  of  the  commercial  cities.  Besides  the  profit 
accruing  from  so  many  naval  armaments  which  they  supplied, 
apd  the  continual  passage,  of  private  adventurers  in  their 
vessels,  they  were  enabled  to  open  a  more  extensive  channel 
of  oriental  traffic  than  had  hitherto  been  known.  These 
three  Italian  republics  enjoyed  immunities  in  the  Christian 
principalities  of  Syria ;  possessing  separate  quarters  in  Acre, 
Tripoli,  and  other  cities,  where  they  were  governed  by  iheir 
own  laws  and  magistrates.  Though  the  progress  of  com- 
merce must,  from  the  condition  of  European  industry,  have 
been  slow,  it  was  uninterrupted ;  and  the  settlements  in  Pal- 
estine were  becoming  important  as  factories,  an  use  of  which 
Godfrey  and  Urban  litUe  dreamed,  when  they  were  lost 
through  the  guilt  and  imprudence  of  their  inhabitants.^  Vil- 
lani  laments  the  injury  sustained  by  commerce  in  consequence 
of  the  capture  of  Acre,  ^  situated,  as  it  was,  on  the  coast  of 
the  Mediterranean,  in  the  centre  of  Syria,  and,  as  we  might 
say,  of  the  habitable  world,  a  haven  for  all  merchandise, 
both  from  the  East  and  the  West,  which  all  the  nations  of 
the  earth  frequented  for  this  trade."  '     But  the  loss  was  soon 

}adge    from    Its  position    fanmedlatelr  prewnt  shs  lias,  I  beUors,  no  Ibrelgn 

under  a  steep  mountain  ;  and  what  Is  txmde  at  all.    1848.] 

sail  mon  material,    has   a   very  small  i  The  Inhabitants  of  Acre  mn  noted, 

port.    According  to  our  notions  of  trade,  In  an  age  not  Tery  pnre,  fi>r  the  excess 

she  could  never  have  enjoyed  much ;  the  of  their  vices.    In  1291  they  plundered 

lines  quoted  ttcm  William  of  Apulia  are  some  of  the  snttjects  of  a  neighboring 

to  be  taken  as  a  poet*s  panegyrio.    It  is  Mohammedan  prince,  and,  refusing  rep- 

of  course  a  question  of  degree  ;  Amalfi  aratlon,  the  city  was  besieged  and  takon 

«M  no  doubt  a  commercial  republic  to  by  storm.    Mnratori,  ad  aan.  CHbbon< 

Abe  extent  of  her  capacity ;  but  thOM  c.  69. 

«ho  have  ever  been  oc  the  coast  must  >  VlUani,  1.  tU.  o.  1M. 
ks  »wut  hot  limited    that  was.    At 


520  COMMERCE  OF  THE  Chap.  IX.  Pjuct  IL 

retrieved,  not  perhaps  by  Pisa  and  Grenoa,  but  by  Venice, 
who  formed  connections  with  the  Saracen  governments^ 
and  maintained  her  commercial  intercourse  with  Syria  and 
Egypt  by  their  license,  though  subject  probably  to  heavy  ex- 
actions. Sahuto,  a  Venetian  author  at  the  beginning  of  the 
fourteenth  century,  has  left  a  curious  account  of  the  Levant 
trade  which  his  counuymen  carried  on  at  that  time.  Their 
imports  it  is  easy  to  guess,  and  it  appeajrs  that  timber,  brass, 
tin,  and  lead,  as  well  as  the  precious  metals,  were  exported 
to  Alexandria,  besides  oil,  saffron,  and  some  of  the  productions 
of  Italy,  and  even  wool  and  woollen  cloths.^  The  Europeaa 
side  of  the  account  had  therefore  become  respectable. 

The  commercial  cities  enjoyed  as  great  privileges  at  Con- 
stantinople as  in  Syria,  and  they  bore  an  eminent  part  in  the 
vicissitudes  of  the  Eastern  empire.  After  the  capture  of 
Constantinople  by  the  Latin  crusaders,  the  Venetians,  having 
been  concerned  in  that  conquest,  became,  of  course,  tlie  fa- 
vored traders  under  the  new  dynasty ;  possessing  tlieir  own 
district  in  the  city,  with  their  magistrate  or  podesta,  ap- 
pointed at  Venice,  and  subject  to  the  parent  republic.  When 
the  Greeks  recovered  the  seat  of  their  empire,  the  Greno- 
ese,  who,  from  jealousy  of  their  rivals,  had  contributed  to 
that  revolution,  obtained  similar  immunities.  This  powerful 
and  enterprising  state,  in  the  fourteenth  century,  sometimes 
the  ally,  sometimes  the  enemy,  of  the  Byzantine  court,  main- 
tained its  independent  settlement  at  Pera.  From  thence  she 
spread  her  sails  into  the  Euxine,  and,  planting  a  colony  at 
Caffa  in  the  Crimea,  extended  a  line  of  commerce  with  the 
interior  regions  of  Asia,  which  even  the  skill  and  spirit  of 
our  own  times  has  not  yet  been  able  to  revive.' 

1  Mftcphenon.  p.  490.  eller  with  %  eonple  of  interpreters  aad  • 

t  Capm&nj,  MemoriM    Hlstorlcu.   t.  servant.     The  Venetians  had  also  a  set 

fit.  preface,  p.  11 ;  and  part  2,  p.  131.  tlement  in  the  Crimeaf  and  appear,  by 

ms  authority  Is  Baldueci  P^alottl,  a  a  passage  in  Petraroh-s  letters,  to  hava 

Florentine  writer  upon  commerce  aboat  possessed    some  of  the  trade    through 

1910,  wbo.ne  wnrk  T  ham  nerer  seen.    It  Tartary.    In  a  letter  written  from  Vea- 

appears  from  Baldueci  that  the  route  to  ioe,  after  extolling  in  too  rhetorical  a 

China  was  from  Asoph  to  Astralean,  and  manner  the  commerce  of  that  republic, 

thence,  by  a  variety  of  places  which  can-  he  mentions  a  particular  ship  that  had 

not  be  found  in  modern  maps,  to  Cam-  Just  sailed  for  the  ~*laolc  Sea.    Kt  ipsa 

iMiu,  probably  Pekin,  the  capital  city  quidem  Tanalm  it  idsuia,  aostri  enim 

of  China,  which  he  describes  as  being  maris  narigatio    non    ultra    tenditur ; 

one   hundred   miles   in   circumference,  eorum  Tero  aliqui,  quos  hnc  fert,  Ulie 

The  Journey  was  of  rather  mora  than  iter  [instituent]  earn  egressuri.  ncc  antea 

eight  months,  going  and  returning ;  and  substituri,  quim  Qange  et  Caucaso  sa* 

he  assures  us  it  was  perfectly  secure,  not  perato,  ad  Indos  atque  eztremos  Seres  et 

only  Ibr  earavaas,  but  Ibr  a  single  trar-  Orlentalam  perreniatur  OMaaam.    &a 


SiATB  OF  SocuBTT.    MEDITERRANEAN  COUNTRIES.  621 

The  French  provinces  which  border  on  the  Mediterranean 
Sea  partook  in  the  advantages  which  it  offered.  Not  onlj 
Marseiilesy  whose  trade  had  continued  in  a  certain  degree 
throughout  the  worst  ages,  but  Narbonne,  Nismes,  and  espe* 
dally  Montpelier,  were  distinguished  for  commercial  pros- 
perity.^ A  still  greater  actiyity  prevailed  in  Catalonia. 
From  the  middle  of  the  thirteenth  century  (for  we  need  not 
trace  the  rudiments  of  its  history)  Barcelona  began  to  emu- 
late the  Italian  cities  in  both  the  branches  of  naval  energy, 
war  and  commerce.  Engaged  in  frequent  and  severe  hos* 
tilities  with  Grenoa,  and  sometimes  with  Constantinople,  while 
their  vessels  traded  to  every  part  of  the  Mediterranean,  and 
even  of  the  English  Channel,  the  Catalans  might  justly  be 
reckoned  among  the  first  of  maritime  nations.  The  com- 
merce of  Barcelona  has  never  since  attained  so  great  a  height 
as  in  the  fifleenth  century.' 

The  introduction  of  a  silk  manufacture  at  Palermo,  by 
Roger  Guiscard  in  1148,  gave  perhaps  the  ear-  ^.^^ 
liest  impulse  to  the  industry  of  Italy.     Nearly  manniho 
about  the  same  time  the  Genoese  plundered  two  '"**" 
Moorish  cities  of  Spain,  from  which  they  derived  the  same 
art     In  the  next  age  this  became  a  staple  manufacture  of 
the  Lombard  and  Tuscan  republics,  and  the  cultivation  of 
mulberries  was  enforced  by  their  laws.*     Woollen  stuffs, 
though  the  trade  was  perhaps  less  conspicuous  than  that  of 
Flanders,  and  though  many  of  the  coarser  kinds  were  im- 
ported from  thence,  employed  a  multitude  of  workmen  in 
Italy,  Catalonia,  and  the  south  of  France.^    Among  the  trad- 
ing companies  into  which  the  middling  ranks  were  distrib' 
uted,  those  concerned  in  silk  and  woollens  were  most  numer- 
ous and  honorable.* 

f  no  ardeoi  et  Io«xpIebiIls  h&bendl  sltU  *  The  history  of  Italian  statos,  and 

noiaiaum     mentes     rapit!      Petrarcs  especially  Florence,  will  speak  for  the 

Opera.  Senll.  I.  H.  ep.  8,  p.  700  edit.  1581.  first  country ;  Capmany  atteats  the  wool- 

1  lltst.  de  Lanpiedoe,  t.  iU.  p.  631;  (.  len  manufacture  of  the  second — Mem. 

It.  p.  617.    M6m.  de  TAcad.  das  Insorip-  Hist,  de  Bareel.  t.  i.  part  8,  p.  7,  fro.: 

tions,  t.  xxxYii.  and  Vaissette  tlaat  or  Careasscnne  and 

*  Capmany.  Hemorias  Hlstorleas  de  its  rlcinity  —  Hist,  de  Lang.  t.  It.  p.  617. 
Barrelona,  1. 1.  part  2.  See  particularly  *  None  were  admitted  to  the  rank  of 
p.  89.  burgesses  in  the  town  of  Aragon  who 

•  Muratorif  dissert.  80.    Denina,  Biro-  used  any  manual  trade,  with  the  ezoep- 
Iniione  d^Italla,  1.  ziv.  c.  11.    The  Utter  tion  of  dealers  in  flue  cloths.    The  wool- 
writer  is  of  ODinioit  that  mulberries  were  len  manufacture  of  ^  pain  did  not  at  any 
not  cultiTated  as  an   important  object  lime  become  a  considerable  article  of  ex 
till  after  1800,  nor  eren  to  any  great  ex-  port,  nor  eren  supply  the  internal  cob 
tent  till  after  1600 ;  the  Italian  manufiio-  sumpHon,  as  Capmany  has  well  shown 
turers  buTing  most  of  their  silk  from  Memoriae    Hlstorleas,  t.  iii.  p.  825  el 
Spain  or  the  Lerant  seq.,  and  £dinbuxgh  BeTlew,  toI.  z. 


522  THE  MARINER'S  COMPASS.     Chaf.  IX.  Pabt  O. 

A  property  of  a  natural  substance,  long  oTcrlooked  even 
though  it  attracted  observation  by  a  different  peculiarity,  has 
influenced  by  its  accidental  discovery  the  fortunes 
of  ^e  of  mankind  more  than  all  the  deductions  of  phi-  . 

uftriner*!  losophy.  It  18,  perhaps,  impossible  to  ascertain 
the  epoch  when  the  polarity  of  the  magnet  was 
first  known  in  Europe.  The  common  opinion,  which  ascribes 
its  discovery  to  a  citizen  of  Amalfi  in  the  fourteenth  century, 
18  undoubtedly  erroneous.  Guiot  de  Provins,  a  French  poet, 
who  lived  about  the  year  1200,  or,  at  the  latest  under  St. 
Louis,  describes  it  in  the  most  unequivocal  language.  James 
de  Vitry,  a  bishop  in  Palestine,  before  the  middle  of  the  thir- 
teenth century,  and  Guido  Guinizzelli,  an  Italian  poet  of  the 
same  time,  are  equally  explicit.  The  French,  as  well  as  Ital- 
ians, claim  the  discovery  as  their  own  ;  but  whether  it  were 
due  to  either  of  these  nations,  or  rather  learned  from  their 
intercourse  with  the  Saracens,  is  not  easily  to  be  ascertained.^ 
For  some  time,  perhaps,  even  this  wonderful  improvement  in 
the  art  of  navigation  might  not  be  universally  adopted  bj 
vessels  sailing  within  the  Mediterranean,  and  accustomed  to 
their  old  system  of  observations.  But  when  it  became  more 
established,  it  naturally  inspired  a  more  fearless  spirit  of  ad- 

1  Boacher,  the  Trench  traoRlator  of  wnll  known  In  tba  thirtemtii  eentarj  i 

n  CoDBoUto  del  Mare,  cays  that  lidriasi,  and  puts  an  end  altogether  to  the  pre- 

a  Saracen  geographer  who  Ured  aboot  tensionfl  of  Flario  Oiqja,  if  sneh  a  person 

1100,  glvee  an  acooant,  thongh  in  a  con-  erer  exiittM.    See  also  Macpherson's  An- 

fhsed  manner,  of  the  polarity  of  the  nals,  p.  884  and  418.    if  is  proTokIng  to 

magOAt.  t.  il.  p.  280.    However,  ttie  lines  find  an  historian  like  Robertson  awwrt- 

of  Ouiot  de  Proving  are  deciAire.    These  log,  without  hesitation,  that  this  eltiaea 

are  quoted    in    Hist.  Litt6raire   de   U  of  Amalfl  was  the  inventor  of  the  com* 

Franoe,  t.  iz.  p.  199;  M6m.  de  TAcad.  pass,  and  thus  accrediting  an  error  which 

dee  Inscrlpt.  t.  xxi.  p.  192 ;  and  several  had  already  been  detected, 

other  works.    QuinlaelU  has  the  follow-  It  is  a  singular  circumstance,  and  oolj 

lug  passage.  In  a  canione  quoted  by  Oin-  to  be  explained  by  the  obstinacy  with 

SuonA,  UJst.  litt^ralre  de  rltalie,  1. 1,  p.  which  men  are  apt  to  reject  Improve- 

13: —  ment,  that  the  magnetic  needle  was  not 

In  quelle  parU  sotto  tnmontana,  fonerally  adopted  in  navigation  «»_jeiy 

Bono  n  monti  della  calamita^^ '  »^°P  »"•'  ^^e  d  scoverj-  of  t^  proiP«rttoa, 

Che  dan  virtute  alF  aere   ^  "^  S!!"  "^^  ,^*l5'  ^"'^*.™'***'^?J! 

Di  trarre  11  ferro ;  ma  pereh6  lontana,  J"^  ,^'; J**^'  .'fi    IS!.  "^l^TLn  Si 

Vole  dl  simll  pietra  avS  aita,      ^  ly^Jffr'^*  f^  «Si«    ^•nTnn^?-.^ 

A  for  la  adoperare,  P^^^^J'^  of  the  needle,  "«»««»  •^*'» 

We  cannot  be  diverted,  by  the  nonsensl-  ment  till  1408,  and  does  not  believe  thai 

eal  theory  these  lines  contain,  from  per*  It  was  frequently  on  board  Medlterra- 

eeiving  the  positive  testimony  of  the  last  ncan  ships  at  the  latter  part  of  the  pre- 

Terse  to  the    poet's  knowledge  of  the  coding  age.    Memoriae  Historieas,  t.  iil. 

polarity   of    the   magnet.    But  If  any  p.  70.    Perhaps  however  he  has  infrrred 

doubt  conld  remain,  Tirebosehl  (t.  iv.  p.  too  much  fVom  his  negative  proof;  anA 

171)  has  fully  established,  from  a  series  this  subjject  seems  open  to  fturther  1b> 

of  passages,  that  this  phenomenon  was  quixy. 


\ 


STiirM  OF  SociBTT.         MABTIIHE  LAWS.  523 

Tenture.  It  was  not^  as  has  been  mentioned,  till  the  begin- 
ning of  the  fourteenth  centnrj  that  the  Genoese  and  other 
nations  around  that  inland  sea  steered  into  the  Atlantic  Ocean 
towards  £ngland  and  Flanders.  This  intercourse  with  the 
northern  countries  enlivened  their  trade  with  the  Levant  by 
the  exchange  of  productions  which  Spain  and  Italy  do  not 
supply,  and  enriched  the  merchants  by  means  of  whose  capi- 
tal the  exports  of  London  and  of  Alexandria  were  conveyed 
into  each  other's  harbors. 

The  usual  risks  of  navigation,  and  those  incident  to  commer* 
dal  adventure,  produce  a  variety  of  questions  in  ev-  MwitiiiM 
ery  system  of  jurisprudence^  which,  though  always  '"^ 
to  be  determined,  as  far  as  possible,  by  principles  of  natural 
justice,  must  in  many  cases  depend  upon  established  cus- 
toms. These  customs  of  maritime  law  were  anciently  reduced 
into  a  code  by  the  Rhodians,  and  the  Roman  emperors  pre- 
served or  reformed  the  constitutions  of  that  republic  Jt  would 
be  hard  to  say  how  far  the  tradition  of  this  early  jurisprudence  . 
survived  the  decline  of  commerce  in  the  darker  ages ;  but 
afier  it  began  to  recover  itself,  necessity  suggested,  or  recol 
lection  prompted,  a  scheme  of  regulations  resembling  in  some 
degree,  but  much  more  enlarged  than  those  of  antiquity. 
This  was  formed  into  a  written  code,  H  Consolato  del  Mare, 
not  much  earlier,  probably,  than  the  middle  of  the  thirteenth 
century;  and  its  promulgation  seems  rather  to  have  pro- 
ceeded from  the  citizens  of  Barcelona  than  from  those  of 
Pisa  or  Venice,  who  have  also  claimed  to  be  the  first  legisla- 
tors of  the  sea.^  Besides  regulations  simply  mercantile,  this 
system  has  defined  the  mutual  rights  of  neutral  and  belhger- 
ent  vessels,  and  thus  laid  the  basis  of  the  positive  law  of  na- 
tions in  its  most  important  and  disputed  cases.    The  king  of 


1  Boncbcr  anppoMN  Ife  to  have  been  ougbt  periiapt  to  ontirdgh  erery  othor 

oomplMl  At  Buoelon*  aboat  900;  but  Mserti  and  aeems  to  prore  tb«m  to  hurt 

hit  raMonlngi  aiv  InconelaaiTe,  i.  I.  p.  been  enaeted  by  the  mercantile  magia 

72 ;  and  'fautoed  Bareelona  at  that  time  trates  of  Bareelona,  under  the  rrign  of 

was  little,  if  at  all,  better  than  a  flahlngo  Jamei  the  conqueror  which  i«  much  the 

town.    Some  arignments  might  be  drawn  same  period.    Codigo  de  las  Coetumbraa 

in  &TDr  of  Pin  fVom  the  expreesions  llaritiinas  de  Barcelona,  Bfadrid,  1791. 

of  Henry  IV. '8  charter  granted  to  that  But,  by  whateTer  naUon  they  were  re- 

city  In  lOSl.    Oonsnetndinee.  quas  ha-  dneed  into  their  present  fbrm,  these  laws 

bent  de  marl,  sic  lis  obeerrabnnus  slont  were  certainly  the  ancient  and  estabUsh- 

Ulorum  est  consuetndo.    Muratorl,  Ms-  ed  usages  of  the  Mediterranean  states: 

lert.  4ft.    Olannone  seems  to  think  the  and  Pin  may  Tery  probably  have  taken 

ooUection  was  compiled  about  the  rrign  a  great  share  In  first  practising  what  a 

tt  Louis  IX.  1.  zl.  e.  6.    Capmany,  &e  oentuiy  or  two  afterwards  was  rendered 

last   Spanish  editor,    whose  authority  more  predse  at  Baroekina. 


524  PIRA.CT.  GBiLT.  IX.  Past  H 

France  and  count  of  Provence  solemnly  acceded  to  this 
maritime  code,  which  hence  acquired  a  binding  force  within 
the  Mediterranean  Sea ;  and  in  most  respects  the  law  mer* 
chant  of  Europe  is  at  present  conformable  to  its  provisions. 
A  set  of  regulations,  chiefly  borrowed  from  the  Consolato, 
was  compiled  in  Fiance  under  the  reign  of  Louis  IX.,  and 
prevailed  in  their  own  country.  These  have  been  denomi- 
nated the  laws  of  Oleron,  from  an  idle  story  that  they  were 
enacted  by  Richard  I.,  while  his  expedition  to  the  Holy  Land 
lay  at  anchor  in  that  island.^  Nor  was  the  north  without  its 
peculiar  code  of  maritime  jurisprudence ;  namely,  the  Ordi- 
nances of  Wisbuv,  a  town  in  the  isle  of  Gothland,  princi- 
pally compiled  from  those  of  Oleron,  before  the  year  1400^ 
by  which  the  Baltic  traders*  were  governed  * 

There  was  abundant  reason  for  establishing  among  mari- 
FfMueiM^  time  nations  some  theory  of  mutual  rights,  and  for 
of  pinoy.  securing  the  redress  of  injuries,  as  far  as  possible, 
by  means  of  acknowledged  tribunals.  In  that  state  of  bar- 
barous anarchy  which  so  long  resisted  the  coercive  authority 
of  civil  magistrates,  the  sea  held  out  even  more  temptation 
and  more  impunity  than  the  land ;  and  when  the  laws  had 
regained  their  sovereignty,  and  neither  robbery  nor  private 
warfare  was  any  longer  tolerated,  there  remained  that  great 
common  of  mankind,  unclaimed  by  any  king,  and  the  liberty 
of  the  sea  was  another  name  for  the  security  of  plunderers. 
A  pirate,  in  a  well-armed  quick-sailing  vessel,  must  feel,  I 
suppose,  the  enjoyments  of  his  exemption  from  control  more 
exquisitely  than  any  other  freebooter;  and  darting  along  the 
bosom  of  the  ocean,  under  the  impartial  radiance  of  the 
heavens,  may  deride  the  dark  concealments  and  hurried 
flights  of  the  forest  robber.  His  occupation  is,  indeed,  ex- 
tinguished by  the  civilization  of  later  i^s,  or  confined  to  dis- 
tant climates.  But  in  the  thirteenth  and  fourteenth  centu- 
ries, a  rich  vessel  was  never  secure  from  attack ;  and  neither 
restitution  nor  punishment  of  the  criminals  was  to  be  ob- 
tained from  governments  who  sometimes  feared  the  plunderer 

1  UacphttiMn,  p.  868.    Boaehtr  rap-  by  a  mtU  tfll  1288,  a  proof  that  H  eonld 

pons  them  to  oe  rogisten    of  aotiial  not  haTo  been  preTtooaly  a  town  of  maeh 

aeoMons.  fanportanee.    It  flourished  ehlefly  In  tbt 

s  I  haTS  only  tho  anthority  of  Bon-  first  part  of  the  fourteenth  eentnry,  and- 

eher  for  reftrring  the  Ordinanoee  of  Wis-  was  at  that  time  an  Independent  repnb- 

buy  to  the  year  1400.    Beokman  Imag-  Uc,  but  fell  under  the  yoke  of  Denmaxk 

Ines  tlimn  to   be  older  than  those  of  before  the  end  of  th«  aamo  afs. 
Oleron.    But  Wlabuy  mm  not  enclosed 


8TATB  OF  SociXTT       LAW  OF  REPBISALS.  625 

and  sometimes  connived  at  the  offence.^  Mere  piracy,  how« 
ever,  was  not  the  only  danger.  The  maritime  towns  of  Flan- 
ders, France,  and  England,  like  the  free  republics  of  Italy, 
prosecuted  their  own  quarrels  by  arms,  without  asking  the 
leave  of  their  respective  sovereigns.  This  prac-  ijiw  of 
tice,  exactly  analogous  to  that  of  private  war  "P'**^- 
in  the  feudal  system,  more  than  once  involved  the  kings  of 
France  and  England  in  hostility.^  But  where  the  quarrel 
did  not  proceed  to  such  a  length  as  absolutely  to  engage  two 
opposite  towns,  a  modification  of  this  ancient  right  of  rc« 
venge  formed  part  of  the  regular  law  of  nations,  under  the 
name  of  reprisals.  Whoever  was  plundered  or  injured  by 
the  inhabitant  of  another  town  obtained  authority  from  his 
own  magistrates  to  seize  the  property  of  any  other  person 
belonging  to  it,  untU  his  loss  should  be  compensated.  This 
law  of  reprisal  was  not  confined  to  maritime  places ;  it  pre- 
vailed in  Lombardy,  and  probably  in  the  German  cities. 
Thus,  if  a  citizen  of  Modena  was  robbed  by  a  Bolognese,  he 
complained  to  the  magistrates  of  the  former  city,  who  rep- 
resented tlie  case  to  those  of  Bologna,  demanding  redi-ess. 
If  this  were  not  immediately  granted,  letters  of  reprisals 
were  issued  to  plunder  the  territory  of  Bologna  till  the  in- 
jured party  should  be  reimbursed  by  sale  of  the  spoil.'  In 
the  laws  of  Marseilles  it  is  declared,  "  If  a  foreigner  take 
anything  from  a  citizen  of  Marseilles,  and  he  who  has  juris- 
diction over  the  said  debtor  or  unjust  taker  does  not  cause 
right  to  be  done  in  the  same,  the  rector  or  consuls,  at  the  pe- 
tition of  the  said  citizen,  shall  grant  him  reprisals  upon  all  the 
goods  of  the  said  debtor  or  unjust  taker,  and  also  upon  the 
goods  of  others  who  are  under  the  jurisdiction  of  him  who 
ought  to  do  justice,  and  would  not,  to  the  said  citizen  of 
Marseilles/' 4  Edward  III.,  remonstrates,  in  an  instrument 
published  by  Rymer,  against  letters  of  marque  granted  by 
the  king  of  Aragon  to  one  Berenger  de  la  Tone,  who  had 
been  robbed  by  an  English  pirate  of  2000/.,  alleging  that,  in 

1  nugh  DenpeiiMr  sebed  a  G«iioMe  tbem  eonflleto,  and  «f  UKwe  with  Cb* 

tfimiil  Talued  at  14^900  marks,  fbr  which  marioen    of    Norway    antl    Btnmark. 

no  raititatioa  wan  ever  made.    Rym.  t.  Somettmei  mutual  en?y  produe«Ml  frajn 

hr.  p.  701.    UaephersoOf  a.  d.  1388.  betwcvo  dllfertot  Knglinh  towiw.    Thus, 

i  Th«  Cinque  Forts  and  other  tiaiUng  in  12&ft    the    U'inchetaea   marlneni   at* 

towns  of  Kngland  were  in   a  eonstant  tasked  a   Yarmouth  icalley,  and  killed 

Kate   of    hostility   with  their  opposite  some  of  her  men.    Uatt.  Fiunb,  apod 

fteighbon  during  the  reigns  of  Bdward  I.  Haepherson. 

a&d  II.    One  might  quote  almost  half  *  Muratori,  Dissert.  68. 

ttke  instnunanti  In  Rymar  In  proof  of  *  Da  Oaoge,  too.  Landnm. 


526  LUBILITY  OF  ALIENS.      Chap.  DL  Paat  IL 

asmuch  as  he  had  always  been  ready  to  give  redress  to  the 
party,  it  seemed  to  his  counsellors  that  there  was  no  just 
cause  for  reprisals  upon  the  king's  or  his  subjects'  property.* 
This  passage  is  so  far  curious  as  it  asserts  the  existence  of 
a  customary  law  of  nations,  the  knowledge  of  which  was  al- 
ready a  sort  of  learning.  Sir  £.  Coke  speaks  of  this  right 
of  private  reprisals  as  if  it  still  existed ;  *  and,  in  fact,  there 
are  instances  of  granting  such  letters  as  late  as  the  reign  of 
Charles  L 

A  practice,  founded  on  the  same  principles  as  reprisal,  though 
Litbtiitj  rather  less  violent,  was  that  of  attaching  the  goods 
«tf  aiieu  or  persons  of  resident  foreigners  for  the  debts  of 
other's  their  countrymen.     This  indeed,  in  England,  waa 

debts.  QQ^  confined   to   foreigners   until  the  statute  of 

Westminster  I.  c  23,  which  enacts  that  ^'  no  stranger  who 
is  of  this  realm  shall  be  distrained  in  any  town  or  market 
for  a  debt  wherein  he  is  neither  principal  nor  surety." 
Henry  III.  had  previously  granted  a  charter  to  the  burgesses 
of  Lubec,  that  they  should  ^  not  be  arrested  for  the  debt  of 
any  of  their  countrymen,  unless  the  magistrates  of  Lubeo 
neglected  to  compel  payment."'  But  by  a  variety  of 
grants  fram  Edward  II.  the  privileges  of  English  subjects 
under  the  statute  of  Westminster  were  extended  to  most 
foreign  nations.^  This  unjust  responsibility  had  not  been 
confined  to  civil  cases.  One  of  a  company  of  Italian  mer- 
chants, the  Spini,  having  killed  a  man,  the  officers  of  justice 
seized  the  bodies  and  effects  of  all  the  rest* 

If  under  all  these  obstacles,  whether  created  by  barbarous 
Q,^i  manners,  by  national  prejudice,  or  by  the  frandu- 

pr^ot  lent  and  arbitrary  measures  of  princes,  the  mer- 
^"^  cliants  of  different  countries  became  so  opulent  as 

almost  to  rival  the  ancient  nobility,  it  must  be  ascribed  to  the 
greatness  of  their  commercial  profits.     The  trading  com* 

Eanies  possessed  either  a  positive  or  a  virtual  monopoly,  and 
eld  the  keys  of  those  eastern  regions,  for  the  luxuries  of 

1  Rnner,  t  ir.  p.  57S.     VIdetar  sft-  •  Rjmer,  1 1,  p.  889. 

plsntlbus  ot  perltls.  qood  causa,  de  Jure,  *  Idem,  t.  iii.  p.  tfS,  647, 678,  et  Inft*. 

DOD  subfuit  niareham  sen  reprisaUiiui  in  See  too  the  ordinanees  of  the  staple,  ia 

nostris,  seu  subditorum  nostrorum,  bo-  27  Kdv.  HI.,  which  eonflrm  this  amoof 

nis  concedendi.    See  too  a  case  of  neu-  other  privilt^ies,  and  contain  manifola 

tnd  goods  on  board  an  enemy's  Tesnd  eTldenoe  of  the  regard  paid  to  oommerot 

claimed  by  the  owners,  and  a  legal  dis«  in  that  reign. 

Unction  taken  in  Ikror  of  the  captors.  •  Rymer,  t  tt.  p.  891.    Madox,  IIMi 

t.  tl  p.  14.  Xzeheauer,  o.  zziL  s.  7. 

«  2f  X.  III.  stot.  U  0.  17.  2  Inst.  p. 
106. 


Stat»  of  Soowtt.    high  RATE  OF  INTEREST.  627 

which  the  progressive  refinement  of  manners  produciid  an 
increasing  demand.  It  is  not  easy  to  determine  the  average 
rate  of  profit;^  but  we  know  that  the  interest  of  ^^^y-i^ 
money  was  exceedingly  high  throughout  the  mid- rate  of 
die  ages.  At  Verona,  in  1228,  it  was  fixed  by  law  *"'""**• 
at  twelve  and  a  half  per  cent ;  at  Modena,  in  1270,  it  seems 
to  have  been  as  high  as  twenty.'  The  republic  of  Genoa, 
towards  the  end  of  the  fourteenth  century,  when  Italy  had 
grown  wealthy,  paid  only  from  seven  to  ten  per  cent  to  her 
creditors.*  But  in  France  and  England  the  rate  was  far 
more  oppressive.  An  ordinance  of  Philip  the  Fair,  in  131 L, 
allows  twenty  per  cent  afler  the  first  year  of  the  loan.^  Un- 
der Henry  III.,  according  to  Matthew  Paris,  the  debtor  paid 
ten  per  cent  every  two  months ;  ^  but  this  is  absolutely  in* 
credible  as  a  general  practice.  This  was  not  merely  owing 
to  scarcity  of  money,  but  to  the  discouragement  which  a 
strange  prejudice  opposed  to  one  of  the  most  useful  and  le- 
gitimate branches  of  commerce.  Usury,  or  lending  money 
for  profit,  was  treated  as  a  crime  by  the  theologians  of  the 
middle  ages ;  and  though  the  superstition  has  been  eradica- 
ted, some  part  of  the  prejudice  remains  in  our  legislation. 
This  trade  in  money,  and  indeed  a  great  part  of  inland  trade 
in  general,  had  originally  fallen  to  the  Jews,  who  uoney 
were  noted  for  their  usury  so  early  as  the  sixth  deaUni,'*  of 
century.*  For  several  subsequent  ages  they  con- 
tinued to  employ  their  capital  and  industry  to  the  same  ad- 
vantage, with  little  molestation  from  the  clergy,  who  always 
tolerated  their  avowed  and  national  infidelity,  and  of\en  with 
some  encouragement  from  princes.  In  the  twelfth  century 
we  find  them  not  only  possessed  of  landed  property  in  Lan- 
guedoc,  and  cultivating  the  studies  of  medicine  and  Rabbinical 
literature  in  their  own  academy  at  Montpelier,  under  the  pro- 
tection of  the  count  of  Toulouse,  but  invested  with  civil 
ofilccs.^  Raymond  Roger,  viscount  of  Carcasonne,  directs  a 
writ  '*  to  his  bailiffs.  Christian  and  Jewish." '    It  was  one  of 

1  In  tlM  remarkable   ipeeeh   of  the  aniraal  Interest  of  moner,  wee  ten  per 

D09B  Mocenlgo.  quoted  in  another  plaee,  cent,  at  liaroelona  !n  Iw.    Capmaiiy, 

vol.  i  p.  466,  the  annual  proflta  made  by  1. 1,  p.  209. 

Venice  on  her  meraiotile  capital  In  reek-  «  Du  Canfte,  ▼.  Uiura. 

Oned  at  forty  per  cent.  •  Mnratorl,  Diae.  16. 

*  Maratori.  Diwert.  16.  •  Oreg.  Turon.  1.  It. 

•  Biourri,  Ulet.  0«Buens.  p.'  797.    The  V  nidt.  de  Languedoc,  t  tt.  p.  617  ;1 
sate  of  discount  on  bills,  which  may  not  Hi.  p.  681. 

hB?a  exactly  oocnspooded  to  the  averace       •  Id.  t.  ilL  p.  12L 


528  MONET  DEALINGS         Chap.  IX.  Past  H 

the  conditions  imposed  by  the  church  on  the  count  of  Tou- 
louse, that  he  should  allow  no  Jews  to  possess  magistracy  in 
his  dominions.^  But  in  Spain  they  were  placed  by  some  of 
the  municipal  laws  on  the  footing  of  Christians,  with  respect 
to  the  composition  for  their  lives,  and  seem  in  no  other  Eu- 
ropean country  to  have  been  so  numerous  or  considerable.* 
The  diligence  and  expertness  of  this  people  in  all  pecuniary 
dealings  recommended  them  to  princes  who  were  solicitous 
about  the  improvement  of  their  revenue.  We  find  an  article 
in  the  general  charter  of  privileges  granted  by  Peter  III.  of 
Aragcn,  in  1283,  that  no  Jew  should  hold  the  office  of  a 
bayle  or  judge.  And  two  kings  of  Castile,  Alonzo  XI.  and 
Peter  the  Cruel,  incurred  much  odium  by  employing  Jewish 
ministers  in  their  treasury.  But,  in  other  parts  of  Europe, 
their  condition  had,  before  that  time,  begun  to  change  for  the 
worse  —  partly  from  the  fanatical  spirit  of  the  crusades, 
which  prompted  the  populace  to  massacre,  and  partly  from 
the  jealousy  which  their  opulence  excited.  Kings,  in  order 
to  gain  money  and  popularity  at  once,  abolished  the  debts 
due  to  the  children  of  Israel,  except  a  part  which  they  re- 
tained as  the  price  of  their  bounty.  One  is  at  a  loss  to  con- 
ceive the  process  of  reasoning  in  an  ordinance  of  St.  Louis, 
where,  "  for  the  salvation  of  his  own  soul  and  those  of  his 
ancestors,  he  releases  to  all  Christians  a  third  part  of  what 
was  owing  by  them  to  Jews."  •  Not  content  with  such  edicts, 
the  kings  of  France  sometimes  banished  the  whole  nation 
from  their  dominions,  seizing  their  effects  at  the  same  time ; 
and  a  season  of  alternative  severity  and  tolei'ation  continued 
till,  under  Charles  VI.,  they  were  finally  expelled  from 
the  kingdom,  where  they  never  afterwards  possessed  any 
legal  settlement*  They  were  expelled  from  England  under 
Edward  I.,  and  never  obtained  any  legal  permission  to  reside 
till  the  time  of  Cromwell.  This  decline  of  the  Jews  was 
owing  to  the  transference  of  their  trade  in  money  to  other 
handS.  In  the  early  part  of  the  thirteenth  century  the  mer- 
chants of  Lombardy  and  of  the  south  of  France^  took  up  the 

1  milt,  dfl  IiiQ|[uedoe,  t.  Ui.  p.  163.  mod«ra  depftrtmeot  of  the  Lot,  prodacad 

s  Marina,  Eiiaayo  lUstorioo-Critloo,  p.  a  tribn  of  uioney-dealen.    Th«  Otuniiil 

148.  are  almost  as  oft«a  notioad  as  the  Loia- 

>  Martenne  Thesaurus  Anecdotomm,  bards.    See  the  article  in  Da  Oange.    In 

t.  i.  p  984.  Lombardy,  Asti,  a  city  of  no  gnaat  note 

*  Volly,  t.  ly.  p.  186.  in  other  respects,  was  fiunoiu  tat  tb* 

*  The  city  of  Gabon,  in  Qoercy,  the  sum  department  of 


Statb  of  Soozstt.  of  THE  JEWS.  529 

basiness  of  remitting  money  by  bills  of  exchange*  and  of 
maicing  profit  upon  loans.  The  utility  of  this  was  found  so 
great,  especially  by  the  Italian  clergy,  who  thus  in  an  easy 
manner  drew  the  income  of  their  transalpine  benefices,  that 
in  spite  of  much  obloquy,  the  Lombard  usurers  established 
themselves  in  every  country,  and  the  general  progress  of 
commerce  wore  off  the  bigotry  that  had  obstructed  their  re- 
ception. A  distinction  was  made  between  moderate  and  ex- 
orbitant interest ;  and  though  the  casuists  did  not  acquiesce 
in  this  legal  regulation,  yet  it  satisfied,  even  in  superstitious 
times,  the  consciences  of  provident  traders.*  The  Italian 
bankers  were  frequently  allowed  to  farm  the  customs  in  Eng- 
land, as  a  security  perhaps  for  loans  which  were  not  very 
punctually  repaid.*  In  1345  the  Bardi  at  Florence,  the 
greatest  company  in  Italy,  became  bankrupt,  Edward  III. 
owing  them,  in  principal  and  interest,  900,000  gold  fiorins. 
Another,  the  Peruzzi,  failed  at  the  same  time,  being  creditors 
to  Edward  for  600,000  florins.  The  king  of  Sicily  owed 
100,000  fiorins  to  each  of  these  bankers.  Their  failure  in- 
volved, of  course,  a  multitude  of  Florentine  citizens,  and  was 
a  heavy  misfortune  to  the  state.^ 

I  There  were  three  speolee  of  iMiper  denee,  hM  been  employed    to  ireeken 

credit  In  the  dealings  of  merchants  :  1.  pilncipleii  that  ought  nerer  to  hare  been 

General  letters  of  eredlt,  not  directed  to  acknowledged. 

any  one,  which  are  not  nnoommon  in  One  species  of  nsnry,  and  that  of  the 

the  Lerant :  2.  Orders  to  p^  money  to  highest   importance  to  commerce,  was 

a  partioalar  person :  8.  Bills  of  exchange  always  permitted,  on  aooonnt  of  the  risk 

regolarly  negotiable.-  Boucher,  t.  ii.  p.  that  attended  it.    This  was  marine  in 

621.     Instances  of  the  first  are  men-  sorance,  which  conid  not  hare  existed, 

tioned  by  Macpherson  about  1200,  p.  8S7.  nntil  monsTb  was  considered,  in  itself,  ss 

The  second  species  was  introduced  by  a  source  of  profit.    The  earliest  regula- 

the  Jews,  about  1188  (Capmany,  t.  i.  p.  tions  on  the  subject  of  insurance  are 

S87);  but  it  may  be  doubtful  whether  those  of   Barcelona  in  1438;    but  the 

the  last  stage  of  Uie  progress  was  reached  practice  was,  of  course,    earlier    than 

nearly  so  soon.    An  instrument  in  By>  these,  though  not  of  i;^«at  antiquity. 

Der,  howerer,  of  the  year  1884  (t.  tI.  p.  It  is  not  mentioned  in  the  Consolato  del 

4B6),  mentions  literse  oambitori»,  which  Mare,  nor  In  any  of  the  Uanseatie  laws  of 

seem   to  have    been    negotiable   bills;  the  fourteenth  century.     Beckman,Tol. 

and  by  1400  they  were  drawn  in  sets,  I.  p.  888.    This  author,  not  being  aware 

and  worded  exaoUy  as  at  present.    Mao-  of  the  Barcelonese  laws  on  this  subject 

pherson,  p.  614,  and  Beckman,  Ulstory  published  by  Capmany,  supposes  the  first 

of  luTenaons,  Tol.  111.  p  480,  f^Te  from  provisions  regulating  marine  assurance 

Otpmany  an  actual  precedent  of  a  bill  to  have  been  made  at  Florence  in  1528. 

d^ted  in  1404.  *  l^Iocpherson,  p.  487,  et  alibi.    They 

*  Usury  was  looked  npon  with  horror  had  probably  excellent  bargains :  in  18SS 

by  our  English  divines  long  after  the  the  Bardi  fiirmed  all  the  customs  in  Bng- 

Belbrmatlon.    Fleurv,   In   his   Institu-  land  for  20/.  a  day.    But  in  1282  the  ens* 

Mons  an  Droit  BeclAsiastique,  t.  U.  p.  129,  toms  had  produced  8411i.,  and  half  acen- 

has  shown  the  subterftiges  to  which  men  tury  of  groat  improvement  had  elapsed. 

had  reeourse  in  order  to  evade  this  pro-  *  ViUani,  1.  xii.  c.  66,  87.    He  calif 

hlbltion.    It  Is  an  unhappy  truth,  that  these  two  banking-houses   the   plllarf 

great  part  of  the  attention  devoted  to  which  sustained  great  part  of  the  eook- 

ue  best  of  seienoea,  ethks  and  jorlspni-  meree  of  Chxistendoai. 

VOL.  II.  —  U.  84 


580       BANKS  OF  GENOA  AND  OTHERS.    Chap.  DC  Past  U 

Tlie  earliest  bank  of  deposit,  instituted  for  the  aocommodi^ 
Banks  of  ^^^  ^^  private  merchants,  is  said  to  have  been 
ckanoaand  that  of  Barcelona,  in  1401.^  The  banks  of  Venice 
othen.  ^^^  Genoa  were  of  a  different  description.     Al- 

though the  former  of  these  two  lias  the  advantage  of  greater 
antiquity,  having  been  formed,  as  we  are  told,  in  the  twelfth 
centurj,  yet  its  early  history  is  not  so  clear  as  that  of  Grcnoa, 
nor  its  political  importance  so  remarkable,  however  similar 
might  be  its  origin.^  During  the  wars  of  Genoa  in  the  four- 
teenth century,  she  had  borrowed  large  sums  of  private  citi- 
zens, to  whom  the  revenues  were  pledged  for  repayment. 
The  republic  of  Florence  liad  set  a  recent,  though  not  a  very 
encouraging  example  of  a  public  loan,  to  defray  the  expense 
of  her  war  against  Mastino  della  Scala,  in  1336.  The  chief 
mercantile  firms,  as  well  as  individual  citizens,  furnished 
money  on  an  assignment  of  the  taxes,  receiving  fifteen  per 
cent  interest,  which  appears  to  have  been  above  the  rate  of 
private  usury.*  The  state  was  not  unreasonably  considered 
a  worse  debtor  than  some  of  her  citizens,  for  in  a  few  years 
these  loans  were  consolidated  into  a  general  fund,  or  maiUe^ 
with  some  deduction  fix>m  the  capital  and  a  great  diminution 
of  interest ;  so  that  an  original  debt  of  one  hundred  fiorins 
sold  only  for  twenty-five.^  But  I  have  not  found  that  these 
creditors  formed  at  Florence  a  corporate  body,  or  took  any 
part,  as  such,  in  the  affairs  of  the  republic.  The  case  was 
different  at  G^noa.  As  a  security,  at  least,  for  their  interest, 
the  subscribers  to  public  loans  were  permitted  to  receive  the 
produce  of  the  taxes  by  their  own  collectors,  paying  tiie  ex- 
cess into  the  treasury.  The  number  and  distinct  classes  of 
these  subscribers  becoming  at  length  inconvenient,  they  were 
formed,  about  the  year  1407,  into  a  single  corporation,  called 
tlie  bank  of  St.  George,  which  was  from  that  time  the  sole 
national  creditor  and  mortgagee.  The  government  of  this 
was  intrusted  to  eight  protectors.  It  soon  became  almost  in- 
dependent of  the  state.  Every  senator,  on  his  admission, 
swore  to  maintain  the  privileges  of  the  bank,  which  were 
confirmed  by  the  pope,  and  even  by  the  emperor.  The  bank 
interposed  its  advice  in  every  measure  of  government,  and 
gienerally,  as  is   admitted,  to    the  public  advantage.      It 

1  Oapmany,  1. 1,  p.  218.  •  G.  VlUanl.  1.  il.  e.  49. 

•  Macphmon,  p    841.  from  Samito.       «  Hatt.  VllUni,  p.  227  (in  MmatoM, 
Stas  bank  of  Venioa  it  rafrrrad  to  Un.       Seript.  A«r.  ItaL  t.  xlr.). 


Statb  op  Socdett.     domestic  EXPENDITURE.  531 

equipped  annaments  at  its  own  expense,  one  of  which  sub- 
dued the  island  of  Corsica ;  and  this  acquisition,  like  those 
of  our  great  Indian  corporation,  was  long  subject  to  a  com- 
pany of  merchants,  without  any  interference  of  the  mother 
country.* 

The  increasing  wealth  of  Europe,  whether  derived  from 
internal  improvement  or  foreign  commerce,  dis- j,j„j^,^  ^^ 
played  itself  in  more  expensive  consumption,  and  domMtio 
greater  refinements  of  domestic  life.  But  these  ef-  "p*"****"*^ 
fects  were  for  a  long  time  very  gradual,  each  generation 
making  a  few  steps  in  the  progress,  which  are  hardly  discern- 
ible except  by  an  attentive  inquirer.  It  is  not  till  the  latter 
half  of  the  thirteenth  century  that  an  accelerated  impulse  ap- 
pears to  be  given  to  society.  The  just  government  and 
suppression  of  disorder  under  St.  Louis,  and  the  peaceful 
temper  of  his  brother  Alfonso,  count  of  Toulouse  and  Poitou, 
gave  France  leisure  to  avail  herself  of  her  admirable  fertil- 
ity. England,  that  to  a  soil  not  greatly  inferior  to  that  of 
France  united  the  inestimable  advantage  of  an  insular  posi- 
tion, and  was  invigorated,  above  all,  by  her  free  constitution 
and  the  steady  industriousness  of  her  people,  rose  with  a 
pretty  uniform  motion  from  the  time  of  Edward  I.  Italy, 
though  the  better  days  of  freedom  had  passed  away  in  most 
of  her  republics,  made  a  rapid  transition  from  simplicity  to 
refinement  ^  In  those  times,"  says  a  writer  about  the  year 
1300,  speaking  of  the  age  of  Frederic  II.,  ^the  manners  of 
the  Italians  were  rude.  A  man  and  his  wife  ate  off  the  same 
plate.  There  was  no  wooden-handled  knives,  nor  more  than 
one  or  two  drinking  cups  in  a  house.  Candles  of  wax  or 
tallow  were  unknown ;  a  servant  held  a  torch  during  supper* 
The  clothes  of  men  were  of  leather  un lined :  scarcely  any 
gold  or  silver  was  seen  on  their  dress.  The  common  people 
ate  fiesh  but  three  times  a  week,  and  kept  their  cold  meat  for 
supper.  Many  did  not  drink  wine  in  summer.  A  small  stock 
of  com  seemed  riches.  The  portions  of  women  were  small ; 
their  dress,  even  after  marriage,  was  simple.  The  pride  of 
men  was  to  be  well  provided  with  arms  and  horses ;  that 
of  the  nobility  to  have  lofty  towers,  of  which  all  the  cities 
in  Italy  were  full.  But  now  frugality  has  been  changed 
for  sumptuousness ;  everything  exquisite  is  sought  afler  in 

1  BininL  Oft.  Qwwiii.  p.  7B7(ABtiitrp,  1679);  MMhJftTtUl,  Stcrto flomtlini 
l>  vlli- 


1 


584         DOMESTIC  1CANNEB8  OF  ITALT.    Chap.  DC.  Past  It 

lar  tenor  of  domestic  economy,  in  an  Italian  citj  rather  than 
a  mere  display  of  individual  magnificence,  as  in  most  of  the 
facts  collected  by  our  own  and  the  French  antiquaries.  But 
it  is  much  too  long  for  insertion  in  this  place.^  No  other 
country,  perhaps,  could  exhibit  so  fair  a  picture  of  middle 
life :  in  France  the  bux^hers,  and  even  the  inferior  gentry, 
were  for  the  most  part  in  a  state  of  poverty  at  this  period, 
which  they  concealed  by  an  affectation  of  ornament ;  while 
our  English  yeomanry  and  tradesmen  were  more  anxious  to 
invigorate  their  bodies  by  a  generous  diet  than  to  dwell  in 
well  furnished  houses,  or  to  find  comfort  in  cleanliness  and 
elegance.'  The  German  cities,  however,  had  acquired  with 
liberty  the  spirit  of  improvement  and  industry.  From  the 
time  that  Henry  Y.  admitted  their  artisans  to  the  privileges 
of  free  burghers  they  became  more  and  more  prosperous ; ' 
while  the  steadiness  and  frugality  of  the  German  character 
compensated  for  some  disadvantages  arising  out  of  their  in- 
land  situation.  Spire,  Nuremberg,  Ratisbon,  and  Augsburg 
were  not  indeed  like  the  rich  markets  of  London  and  Bruges, 
nor  could  their  burghers  rival  the  princely  merchants  of 
Italy;  but  they  enjoyed  the  blessings  of  competence  diffused 
over  a  large  class  of  industrious  freemen,  and  in  the  fifteenth 
century  one  of  the  politest  Italians  could  extol  their  splen- 
did and  well  furnished  dwellings,  their  rich  apparel,  their 
easy  and  afi9[uent  mode  of  living,  the  security  of  their  rights 
and  just  equality  of  their  laws.^ 

1  Muntorl,    Antichitli  Italiane,  Dto-  Uberot,  bl  potinlm&m    nrrlant,  fhp« 

Mrt.  S8.  t.  i.  p.  826.  Venedu  JoKpocteS)  siTe  Florendam  aut 

t  u  Td«m  KngUsh,*'  said  the  Spaofaurdi  Csnas.  In  qaibns  elTes,  pneter  paneoi 

who  cam«  orer  with  Philip  II.,  **  haTt  qui  reUquot  ducuot,  loco  maDclploram 

their  hoQM0  made  of  sticks  and  dirt,  taabentur.    Com  nee  rebus  sab  utl,  ut 

but  they  tun  commonly  so  well  as  the  llbet.  vel  flui  qusB  yellnt,  et  graTlssiiniB 

king.**    Harrison *s  Description  of  Brit-  oppnmnntur  pecunlartun  ezactiontbas. 

aln.  prefixed  to  Uolingshed,  toI.  i.  p.  815  Apud  Qennanos  omnia  Iseta  sant,  omnia 

(edit.  1807).  Jnoan<U;    nemo    sols    priTatur  bonis. 

>  Pfeffel,  1. 1.  p.  298.  Salvo  enlqne  sna    hSBreditas  est,  nuUi 

*  MaemM  Sylrius,  de  Horibns  Qerma-  nisi  nocenU  magistxatos  noceot.     Nee 

nomm.     This  treatise  Is  an  amplified  apud  eos   Ihetiones    sicut  apud  Italaa 

panegyric  upon  Germany,  and  contains  urbes   grassantur.    Sunt  antem   supra 

several  curious  passages:  they  must  be  centum  eiritates  hio  libertaie  fruentaa 

fesken  perhaps  with  some  allowance ;  fbr  p.  1068. 

the  drift  of  the  whole  is  to  pemuade  the       In  another  part  of  his  work  (p.  719) 

Germans,  that  so  rich  and  noble  a  conn-  he  g^ves  a  specious  account  of  Vienna, 

try  could  afford  a  little  money  flMr  the  The  houses,  he  says,  had  glass  windows 

poor  pope.    ClTitates  quae  Tooant  lib*-  and    iron    doors.     Fenestras   undique 

ras,  cum  Imperatori  solam  sulijiciuntur,  Titrea    perloeent,  et  ostia   plemmqoe 

ei^us  jugum  est  instar  libertatis ;  nee  Ibrrsa.     In  domlbus  molta  et  munda 

protect^  usqnam  gentium  tanta  Hbertas  supellez.     Altss    dmnus    magnific»qua 

est,  quanti  fruuntur  hcjuscemodi  dvi-  Tisuntnr.    Unum  id  dedecori  est,  quod 

latss.    Nam  populi  quoa  Itali  vocant  tecta  plemmque  tlguo  eontagant,  i>auM 


Statb  of  Soonrr.    CIVIL  ABCHITECTUBE.  535 

No  chapter  in  the  historj  of  national  manners  would  illus- 
trate so  well,  if  duly  executed,  the  progress  of  social  life  as 
that  dedicated  to  domestic  architecture.  The  fashions  of 
dress  and  of  amusements  are  generally  capricious  GiTii  anhi- 
and  irreducible  to  rule ;  but  every  change  in  the  *^*»"' 
dwellings  of  mankind,  from  the  rudest  wooden  cabin  to  the 
stately  mansion,  has  been  dictated  by  some  principle  of  con- 
venience, neatness,  comfort,  or  magnificence.  Tet  this  nlost 
interesting  field  of  research  has  been  less  beaten  by  our  anti- 
quaries than  others  comparatively  barren.  I  do  not  pretend 
to  a  complete  knowledge  of  what  has  been  written  by  these 
learned  inquirers ;  but  I  can  only  name  one  book  in  which 
the  civil  architecture  of  our  ancestors  has  been  sketched, 
loosely  indeed,  but  with  a  superior  hand,  and  another  in 
which  it  is  partially  noticed.  I  mean  by  the  first  a  chapter  in 
the  Appendix  to  Dr.  Whifaker's  History  of  Whalley  ;  and 
by  the  second  Mr.  Ejng's  Essays  on  Andent  Castles  in  the 
ArcluBologia.^  Of  these  I  shall  make  free  use  in  the  follow 
ing  paragraphs. 

The  most  ancient  buildings  which  we  can  trace  in  this 
island,  after  the  departure  of  the  Romans,  were  circular 
towers  of  no  great  size,  whereof  many  remain  in  Scotland, 
erected  either  on  a  natural  eminence  or  on  an  artificial  mound 
of  earth.  Such  are  Conisborough  Castle  in  Yorkshire  and 
Castleton  in  Derbyshire,  built,  perhaps,  according  to  Mr. 
King,  before  the  Conquest'    To  the  lower  chambers  of  those 

Utor*.  C»feera  ledifiela  mnro  tepldeo  ywsIoq  of  the  Saxons  to  Ohibttanity; 
eoDdfftunt.  PieUe  domus  et  ezteriaa  ei  but  In  this  he  nTS  ths  rains,  as  usoaU 
interios  sptendent.  CfTitatls  populas  to  his  Imafflnanon,  whieh  as  much  ex- 
60,000  eommimieantHim  credltnr.  I  eeedcid  his  Teamlnc,  m  the  latter  did  his 
suppose  this  gives  at  least  doable  for  the  Jadgmenl.  Ooolsoorough  should  snoi, 
total  population.  He  proceeds  to  rep-  by  the  name,  to  have  been  a  royal  reel- 
resent  the  manners  of  the  city  in  a  less  denee.  which  It  certainly  ncTer  was  after 
fiiToiable  point  of  Tiew,  chufiiog  the  the  Conquest.  Bnt  if  the  engraTings 
dtiaens  with  gluttony  and  libertinism,  of  the  dreoratlTe  P^rts  in  the  Archie- 
the  nobility  with  oppression,  the  Judges  ologla,  toI.  vi.  p.  ^,  are  not  remark- 
with  corruption,  &c.  Vienna  probably  ably  inaccurate,  the  architecture  is  too 
bad  the  rices  of  a  flourishing  city ;  but  elegant  for  the  Danes,  much  more  for 
the  love  of  aniplifloatlon  In  so  rhetorical  the  unconrerted  Saxons.  Both  these 
a  writer  as  Jlneas  Sylrlus  weakens  the  castles  are  enclosed  by  a  court  or  bal 
value  of  his  testimony,  on  whiebeTer  Hum,  with  a  fortiSed  entrance,  like 
side  it  is  ciTen.  thorn  erected  by  the  Normans. 
1  Vols. It.  and  ▼!.  (No  doubt  Is  now  entertained  bnt  that 
s  Mr.  Lysons  reiVfis  Castleton  to  the  age  Gonisboroogfa  was  built  late  in  the  Nor- 
of  William  the  Oooqueror,  but  without  man  period.  Mr.  King's  authority, 
giving  any  raasons.  Lysons's  Derby-  which  I  followed  for  want  of  a  better,  la 
ahirs,  p.  ecxxxTi.  Mr.  King  had  sat-  by  no  means  to  be  depended  upon. 
Isfled  himself  that  It  was  built  during  IMS.] 
Um  Heptarchy,  and  evan  before  the  con- 


536  PROGBESS  OF  Cbap.  IX.  Pabt  IL 

gloomj  keeps  there  vras  no  admission  of  light  or  air  except 
through  long  narrow  loop-holes  and  an  aperture  in  the  roof. 
Regular  windows  were  made  in  the  upper  apartments.   Were 
it  not  for  the  vast  thickness  of  the  wails,  and  some  marks  of 
attention  both  to  convenience  and  decoration  in  these  struo 
tures,  we  might  be  induced  to  consider  them  as  rather  in- 
tended for  security  during  the  transient  inroad  of  an  enemj 
than  for  a  chieflain's  usucd  residence.    They  bear  a  close  re- 
semblance, except  by  their  circular  form  and  more  insulated 
situation,  to  the  peels,  or  square  towers  of  three  or  four  sto- 
ries, which  are  still  found  contiguous  to  ancient  mansion 
houses,  themselves  far  more  ancient,  in  the  northern  coun- 
ties,^ and  seem  to  have  been  designed  for  places  of  refuge. 
In  course  of  time,  the  barons  who  owied  these  castles 
began  to  covet  a  more  comfortable  dwelling.    The  keep  was 
either  much  enlarged,  or  altogether  relinquished  as  a  place 
of  residence  except  in  time  of  siege ;  while  more  convenient 
apartments  were  sometimes  erected  in  the  tower  of  entrance, 
over  the  great  gateway,  which  led  to  the  inner  ballium  or 
court-yard.     Thus  at  Tunbridge  Castle,  this  part  of  which  is 
referred  by  Mr.  King  to  the  beginning  of  the  thirteenth  cen- 
tury, there  was  a  room,  twenty-eight  feet  by  sixteen,  on  each 
side  of  the  gateway ;  another  above  of  the  same  dimensions, 
with  an  intermediate  room  over  the  entrance ;  and  one  large 
apartment  on  the  second  floor  occupying  the  whole  space, 
and  intended  for  state.    The  windows  in  this  class  of  castles 
were  still  little  better  than  loop-holes  on  the  basement  story, 
but  in  the  upper  rooms  often  large  and  beautifully  orna- 
mented, though  always  looking  inwards  to  the  court.     Ed- 
ward I.  introduced  a  more  splendid  and  convenient  stylo  of 
castles,  containing  many  habitable  towers,  with  communi- 
cating apartments.     Conway  and  Carnarvon  will  be  familiar 
examples.     The  next  innovation  was  the  castle-palace  —  of 
which  Windsor,  if  not  quite  the  earliest,  is  the  most  magnifi- 
cent instance.      Alnwick,    Na  worth.  Hare  wood,   Spofforth, 
Kenil worth,  and  Warwick,  were  all  built  upon  this  scheme 
during  the  fourteenth  century,  but  subsequent  enlargements 
have  rendered  caution  necessary  to  distinguish  their  original 
remains.     "  The  odd  mixture,"  says  Mr.  King,  "  of  conven- 
ience and  magnificence  with  cautious  designs  for  protection 

I  Wtaltaker^B  Hbt.  of  Whallqr ;  T^fmoM^  Oiimbtrluid,  p.  oetL 


State  of  ^ooibtt.    CIVIL  ABCHITECTUBE.  637 

and  defence,  and  with  the  inconveniences  of  the  former  con- 
fined plan  of  a  close  fortress,  is  very  striking."  The  provi- 
sions for  defence  became  now,  however,  little  more  than 
nugatory ;  large  arched  windows,  like  those  of  cathedrals, 
were  introduced  into  halls,  and  this  change  in  architecture 
manifestly  bears  witness  to  the  cessation  of  baronial  wars 
and  the  increasing  love  of  splendor  in  the  reign  of  Edward 

ni. 

To  these  succeeded  the  castellated  houses  of  the  fifteenth 
century,  such  as  Herstmonceux  in  Sussex,  Haddon  Hall  in 
Derbyshire,  and  the  older  part  of  Knowle  in  Kent.^  They 
resembled  fortified  castles  in  their  strong  gateways,  their  tur- 
rets and  battlements,  to  erect  whidi  a  royal  license  was  ne- 
cessary ;  but  their  defensive  strength  could  only  have  availed 
against  a  sudden  affray  or  attempt  at  forcible  dispossession. 
They  were  always  built  round  one  or  two  court-yards,  the 
circumference  of  the  first,  when  they  were  two,  being  occu- 
pied by  the  offices  and  servants'  rooms,  that  of  the  second 
by  the  state-apartments.  Regular  quadrangular  houses,  not 
castellated,  were  sometimes  built  during  the  same  age,  and 
under  Henry  YIL  became  universal  in  the  superior  style  of 
domestic  architecture.'  TThe  quadrangular  form,  as  well 
from  security  and  convenience  as  from  imitation  of  conven- 
tual houses,  which  were  always  constructed  upon  that  model, 
was  generally  preferred  —  even  where  the  dwelling-house, 
as  indeed  was  usual,  only  took  up  one  side  of  the  enclosure, 
and  the  remaining  three  contained  the  offices,  stables,  and 
farm-buildings,  with  walls  of  communication.  Several  very 
old  parsonages  appear  to  have  been  built  in  this  manner.'  It 
is,  however,  not  very  easy  to  discover  any  large  fragments 
of  houses  inhabited  by  the  gentry  before  the  reign,  at  soon- 
est, of  Edward  III.,  or  even  to  trace  them  by  engravings  in 
the  older  topographical  works,  not  only  from  the  dilapidations 
of  time,  but  because  very  few  considerable  mansions  had 
been  erected  by  that  class.  A  great  part  of  England  af- 
fords no  stone  fit  for  building,  and  the  vast  though  unfortu- 
nately not  inexhaustible  resources  of  her  oak  forests  were 
easily  applied  to  less  durable  and  magnificent  structures.     A 

1  Tho  mills  af  H«ntmoDoeiix  an,  I    Haddon   HiU  It  of  tho  JUtsonUi  eon 
bollere,  tolerably  aathentio  remalna  of    iaxj. 
BonjCT  VI.'f  aca,  bat  onJj  a  part  of       >  Arohaeologia,  toI.  t1. 

*  Blomeflald'i  Nozfi>lk,  toL  IIL  p  Ml 


538  PB06BESS  OF  Crap.  IX.  Past  IL 

frame  of  massire  timber,  independent  of  walls  and  resem- 
bling the  inverted  hull  of  a  large  ship,  formed  the  skeleton, 
as  it  were,  of  an  ancient  hall  —  the  principal  beams  spring- 
ing from  the  ground  naturally  curved,  and  forming  a  Gothic 
arch  overhead.  The  intervals  of  these  were  filled  up  with 
horizontal  planks ;  but  in  the  earlier  buildings,  at  least  in 
some  districts,  no  part  of  the  walls  was  of  stone.^  Stone 
houses  are,  however,  mentioned  as  belonging  to  citizens  of 
London,  even  in  the  reign  of  Henry  IL  ; '  and,  though  not 
often  perhaps  regularly  hewn  stones,  yet  those  scattered  over 
the  soil  or  dug  from  flint  quarries,  bound  together  with  a 
very  strong  and  durable  cement,  were  employed  in  the  con- 
struction of  manorial  houses,  especially  in  the  western  coun- 
ties and  other  parts  where  that  material  is  easily  procured.* 
Gradually  even  in  timber  buildings  the  intervals  of  the  main 
beams,  which  now  became  perpendicular,  not  throwing  off 
their  curved  springers  till  they  reached  a  considerable  height,' 
were  occupied  by  stone  walls,  or  where  stone  was  expensive, 
by  mortar  or  plaster,  intersected  by  horizontal  or  diagonal 
beams,  grooved  into  the  principal  piers.*  This  mode  of 
building  continued  for  a  long  time,  and  is  still  familiar  to  our 
eyes  in  the  older  streets  of  the  metropolis  and  other  towns, 
and  in  many  parts  of  the  country.^  Early  in  the  fourteenth 
century  the  art  of  building  with  brick,  which  had  been  lost 
since  the  Roman  dominion,  was  introduced  probably  from 
Flanders.  Though  several  edifices  of  that  age  are  con- 
structed with  this  material,  it  did  not  come  into  general  use 
till  the  reign  of  Henry  VL*  Many  considerable  houses  as 
well  as  public  buildings  were  erected  with  bricks  during  his 
reign  and  that  of  Edward  IV.,  chiefly  in  the  e&stem  counties, 
where  the  deficiency  of  stone  was  most  experienced.  Few, 
if  any,  brick  mansion-houses  of  the  fifteenth  century  exist, 
except  in  a  dilapidated  state ;  but  Queen's  College  and  Clare 
Hall  at  Cambridge,  and  part  of  Eton  College,  are  subsisting 

1  Whitekor's  Hist  of  WhaU^.  jet,  and  Ibr  the  mo«t  part,  of  strong 

*  Lyttelton,  t.  It.  p.  180.  timber,  In   fVamlog    whereof  oar    ear- 

*  narrison  saya,  that  few  of  the  honses  pentem  have  been  and  are  worthily  pro- 
of the  commonalty,  except  here  and  ferred  befora  thoee  of  like  vcience  among 
there  in  the  west  country  towns,  were  all  other  naUons.  Howbeit  «uch  as  are 
made  of  stone,  p.  S14.  This  was  about  lately  builded  are  either  of  brick  or  hard 
1670.  stone,  or  both."    p.  816. 

«  Hist,  of  Whalley.  •  Arohnologia,  toI.  L  p.  148;  Tol.  Ir 

*  **  The  ancient  manors  and  houses  of    p.  91. 
our  gentlemen,"   says  Harrison,  **ars 


Btatb  of  Socmr.    CIVIL  ABGHrTECTURE.  539 

witnesses  to  the  durabilitj  of  the  material  as  it  was  then  em- 
ployed. 

Il  is  an  error  to  suppose  that  the  English  gentry  were 
lodged  in  stately  or  even  in  well-sized  houses. 
Generally  speaking,  their  dwellings  were  almost  as  of^^imuj 
inferior  to  those  of  their  descendants  in  capacity  f^^JJJjJj"*' 
as  they  were  in  convenience.  The  usual  arrange- 
ment consisted  of  an  entrance-passage  running  through  the 
house,  with  a  hall  oh  one  side,  a  parlor  beyond,  and  one  or 
two  chambers  above,  and  on  the  opposite  side,  a  kitchen, 
pantry,  and  other  offices.^  Such  was  the  ordinary  manor- 
house  of  the  fifteenth  and  sixteenth  centuries,  as  appears  not 
only  from  the  documents  and  engravings,  but  as  to  the  latter 
period,  from  the  buildings  themselves,  sometimes,  though  not 
very  frequently,  occupied  by  families  of  consideration,  more 
often  converted  into  farm-houses  or  distinct  tenements. 
Larger  structures  were  erected  by  men  of  great  estates  dur- 
ing the  reigns  of  Henry  IV.  and  Edward  IV.;  but  very 
few  can  be  traced  higher ;  and  such  has  been  the  effect  of 
time,  still  more  through  the  advance  or  decline  of  families 
and  the  progress  of  architectural  improvement,  than  the  nat- 
ural decay  of  these  buildings,  that  I  should  conceive  it  diffi- 
cult to  name  a  house  in  England,  still  inhabited  by  a  gentle- 
man and  not  belonging  to  the  order  of  castles,  the  principal 
apartments  of  which  are  older  than  the  reign  of  Henry  VIL 
The  instances  at  least  must  be  extremely  few.^ 

France  by  no  means  appears  to  have  made  a  greater  prog- 
ress than  our  own  country  in  domestic  architecture.  Ex- 
cept fortified  castles,  I  do  not  find  in  the  work  of  a  very 
miscellaneous  but  apparently  diligent  writer,*  any  considera- 
ble dwellings  mentioned  before  the  reign  of  Charles  VII., 
and  very  few  of  so  early  a  date.^    Jacques  Coeur,  a  famous 

1  Hte^.  of  Whallej.    In  Strntt's  View  •  M«Uu«w  tirte  d'nno  gmnde  biblt- 

of  Mannen  we  bave    an  InTentorv  of  oth^ue,  par  M.  de   Paulniy,  t.  ill.  et 

fyjrnltnre  In  the  boose  of  Mr.  Richard  zxxi.    It  to  to  be    regretted    that  Le 

Fermor,  anoHHtor  of  the  earl  of  Pomfret,  Grand  d^AoMjr  nerer    eompleted    that 

at  Kuton  In  Northamptonfihiie,  and  an-  part  of  hto  Vie  prlrte  dee  Fran^als  which 

other  in  that  of  3tr  Adrian  roekewe.  was  to  have  comprehended  tlie  history 

Both  them  houses  appear  to  hare  been  of  ciTll  arcliiteetare.    VUIaret  has  sHeht- 

crf   the    dimensions    and    arrangement  ly  noticed  Its  state  abont  1880.    t.  il.  p 

mentioned.  141. 

*  Single    rooms,  windows,  door-ways.  *  Cbendnceanx  in  Touralne  was  bull* 

Ito.,  of  an  earlier  date  may  perhap*  not  by  a  nephew  of  CtianceUor  Duprat ;  Gail« 

nnfrequenUy  be  found ;   but  such  In-  Ion  in  the  department  of  Eure  by  Car* 

Btences  are  always  to  be  rerifled  by  their  dioal  Amboise  ;  both  at  the  beginning  of 

Intrtnide  eTidence.  not  by  ttie  tradition  the  sixteenth  century.    These  are  now 

9l  tiie  place.    [Non  II.]  oonsldered,  in  their  rulnt,  as  among  Uit 


540  INVENTION  OF  CHIMNEYS  Chap    EX.  PAirr  IL 

merchant  unjustly  persecuted  by  that  prince,  had  a  hand- 
some house  at  Paris,  as  well  as  another  at  Bourges.^  It  ia 
obvious  that  the  long  calamities  which  France  endured  be* 
fore  the  expulsion  of  the  English  must  have  retarded  thia 
eminent  branch  of  national  improvement 

Even  in  Italy,  where  &om  the  size  of  her  cities  and  so- 
cial refinements  of  her  inhabitants,  greater  elegance  and 
splendor  in  building  were  justly  to  be  expected,  the  domes- 
tic architecture  of  the  middle  ages  did  not  attain  any  per- 
fection. In  several  towns  the  houses  were  covered  with 
thatch,  and  suffered  consequently  from  destructive  fires. 
Costanzo,  a  Neapolitan  historian  near  the  end  of  the  six- 
teenth century,  remarks  the  change  of  manners  that  had  oc- 
curred since  the  reign  of  Joanna  IL  one  hundred  and  fifty 
years  before.  The  great  families  under  the  queen  expend^ 
all  their  wealth  on  their  retainers,  and  placed  their  chief 
pride  in  bringing  them  into  the  field.  They  were  ill  lodged, 
not  sumptuously  clothed,  nor  luxurious  in  their  tables.  The 
house  of  Caracciolo,  high  steward  of  that  princess,  one  of  the 
most  powerful  subjects  that  ever  existed,  having  fallen  into 
the  hands  of  persons  incomparably  below  his  station,  had 
been  enlarged  by  them,  as  insufficient  for  their  accommoda- 
tion.' If  such  were  the  case  in  the  city  of  Naples  so  late 
as  the  beginning  of  the  fifteenth  century,  we  may  guess  how 
mean  were  the  habitations  in  less  polished  parts  of  Europe, 
The  two  most  essential  improvements  in  architecture  dur- 
ing this  period,  one  of  which  had  been  missed  by 
of^mMyi  the  sagacity  of  Greece  and  Rome,  were  chimneys 
win<towa?  *°*^  glass  windows.  Nothing  apparently  can  be 
more  simple  than  the  former ;  yet  the  wisdom  of 
ancient  times  had  been  content  to  let  the  smoke  escape  by 
an  aperture  in  the  centre  of  the  roof;  and  a  discovery,  of 
which  Vitruvius  had  not  a  glimpse,  was  made,  perhaps  in 

most  andent  hoaaet  In  Fraaoe.    A  wofk  prosperity    and    downfltU   of   Jaoquea 

hj  Duceroeau  (Les  plus  exoellens  Bad-  CoBur,  aee  VUlarat,  t.  xfl.   p.  11 ;  but 

mens   de  Ftanoe.  1807)  gives  accurate  more  espedaUj  Mten.  de  TAoad.  des  In- 

engravings  of  thirty  haums ;  but  with  script,  t.  xx.  p.  609.    His  mansion  at 

ODe  or  two  exceptions,  they  seem  all  to  Bourges  still  exists,  and  is  well  known 

have  been  built  in  the  sixteenth  century,  to  the    curious    in    architectural    an- 

Bven  In  that  age,  defence  was  naturally  tiqulty.    In  former  editions  I  have  men- 

an  object  in  couptrueting  a  French  man-  tinned  a  house  of  Jacques  Oosur  at  Beau- 

•ioD-house ;  and  where  defence  is  to  be  mont-surOlse ;  but  ttdn  was  probably 

regarded,   splendor    and     convenience  by  mijitake,  as  I  do  not  recoUeot,  not 

must  give  way.    The  name  of  eklUeau  can  find,  any  authority  Ibr  it. 

was  not  retained  without  meaning.  <  GiaonoQet  1st.  dl  NapoU.  t.  iiL  f 

I  lUlanges  tii^,  fro.  t.  itt.    For  the  280. 


8TA1B  OF  SociKTT.    AND  GLASS  WINDOM'S.  541 

this  country,  by  some  forgotten  semibarbarian.  About  the 
middle  of  the  fourteenth  century  the  use  of  chimneys  is  dis- 
tinctly mentioned  in  England  and  in  Italy ;  but  they  are 
found  in  several  of  our  castles  which  bear  a  much  older 
date.^  This  country  seems  to  have  lost  very  early  the  art 
of  making  glass,  which  was  preserved  in  France,  whence 
artificers  were  brought  into  England  to  furnish  the  windows 
in  some  new  churches  in  the  seventh  century.*  It  is  said 
that  in  the  reign  of  Henry  III.  a  few  ecclesiastical  buildings 
had  glazed  windows.*  Suger,  however,  a  century  before, 
had  adorned  his  great  work,  the  abbey  of  St.  Denis,  with 
windows,  not  only  glazed  but  painted;^  and  I  presume  that 
other  churches  of  the  same  class,  both  in  France  and  Eng- 
land, especially  afler  the  lancet-shaped  window  had  yielded 
to  one  of  ampler  dimensions,  were  generally  decorated  in  a 
similar  manner.  Yet  glass  is  said  not  to  have  been  em- 
ployed in  the  domestic  architecture  of  France  before  the  four- 

1  Muratori,  Antteh.  Ital.  IHnert.  2&,  w»U;  the  flaea,  howermr, /^  only  a  tbw 
p.  8B0.  Beckman,  in  his  History  of  In-  ftet  up  ia  the  thickness  oi"  the  wall,  and 
rentions,  vol.  i.,  a  work  of  yenr  great  are  then  turned  out  at  the  back,  the 
researeh,  cannot  trace  any  explicit  men-  apertures  being  small  oblong  holes.  At 
tion  of  chimnevs  beyond  the  writings  the  castle,  Hodlngham,  Bftsex,  which  Is 
of  John  Vilianl,  wherein  howerer  they  of  about  the  same  date,  there  are  fire- 
are  not  noticed  as  a  new  inTention.  places  and  chimneys  of  a  similar  kind. 
Piers  Plowman,  a  Ibw  years  later  than  A  few  years  later,  the  improTement  of 
Villani,  speaks  of  a  **  chambre  with  a  carrying  the  flue  up  the  whole  height  of 
ehimney  "  in  which  rich  men  usually  the  wall  appears ;  as  at  Christ  Church, 
dined.  But  in  the  account-book  of  Bol-  Hants ;  the  keep  at  Newc&stle  ;  8ber- 
ton  Abbey,  under  the  year  1311,  there  is  borne  Castle,  &c.  The  early  chlmney- 
a  charge  pro  fiudendo  camino  in  the  reo-  shafts  are  of  considerable  height,  and 
tory-house  of  Ghugnve.  Whitaker's  similar ;  afterwards  they  assuniwl  a  great 
Hist,  of  CraTen,  p.  881.  This  may,  I  rariety  of  forms,  and  during  the  Ibur- 
think,  liaye  been  only  an  Iron  stove  or  teenth  century  they  are  fbequeatly  Tery 
fire-pan ;  though  Dr.  W.  without  hes-  short."  Glossary  of  Ancient  Arehiteo- 
itation  translates  it  a  diimney.  How-  ture,  p.  100,  edit.  1S46.  It  is  said,  too, 
erer,  Mr.  King,  in  his  obserTations  on  here  that  chimneys  were  seldom  ustNi  in 
ancient  castles.  Arctueol,  toI.  ▼!.,  and  halls  till  near  the  end  of  the  fifte«oth 
Mr.  Strutt,  in  his  View  of  Manners,  toI.  century  ;  the  smoke  took  its  course.  If 
i.,  describe  chimneys  in  castles  of  a  Tery  It  pleased,  through  a  hole  in  the  roof, 
old  construction.  That  at  Conlsbor-  Chimneys  are  still  more  modern  in 
ough  in  Yorluhire  is  peculiarly  worthy  France ;  and  seem,  according  to  Paulmy, 
of  attention,  and  carries  back  this  im-  to  liaye  come  into  common  use  since  the 
portant  Invention  to  a  remote  antiquity,  middle    of    the    serenteenth   century. 

In  a  recent  work  of  some  reputation,  Jadis  nos  p6res  n'avolent  qu^un  uniqna 

!t  is  said :  —  "  There  does  not  appear  to  ehauffoir,   qui    itoit   commun    <L  touts 

be  any  STideoee  of  the  nse  of  chimney-  nne  fiuniUe,  et  quelquefois  &  plusieurs. 

shafts  in  Bngland  prior  to   the  twelfth  t.  ill.  p.  188.    In  another   place,  how- 

eentxuy.    In  liooheeter  Castle,  which  is  erer,  lie  says :  II  parait  que  les  tuyanx 

in  all  probability  the  work  of  William  de  chemintes  6taient  d^l  trte  en  usage 

Gorbyl,  about  1180,  there  are  complete  en  Prance,  t.  zxxi.  p.  2SB. 

fireplaces  with  semlcirenlar  Imcks,  and  *  Da  Cange,  ▼.    Vitreie;  Bentham't 

a  sliafl  in  each  jamb,  supporting  a  semi-  History  of  Bly,  p.  22. 

eireular  areh  over  the  opening,  and  that  *  Blatt.  Paris ;  Vitn  Abbatum  St.  kXk. 

Is  enrielMd  with  the  sigsag  moulding ;  122. 

of  these  prqject  slighUy  from  the  «  Bscueil  des  Hist.  t.  Zli.  p.  101. 


542  FUBNITUBE  OF  HOUSES.    Chai*.  IX.  Past  H. 

teenth  century ;  ^  and  its  introduction  into  England  was  prob- 
ably by  no  means  earlier.  Nor  indeed  did  it  come  into  gen- 
eral use  during  the  period  of  the  middle  ages.  Glazed  win- 
dows were  considered  as  movable  furniture,  and  probably 
bore  a  high  price.  When  the  earls  of  Northumberland,  aa 
late  as  the  reign  of  Elizabeth,  left  Alnwick  Castle,  the  win- 
dows were  taken  out  of  their  frames,  and  carefully  laid  by.* 
But  if  the  domestic  buildings  of  the  fifteenth  century 
Furaitare  would  not  sccm  Ycry  spacious  or  convenient  at 
of  houmi.  present,  far  less  would  this  luxurious  generation 
be  content  with  their  internal  accommodations.  A  gentle- 
man's house  containing  three  or  four  beds  was  extraordina- 
rily well  provided ;  few  probably  had  more  than  twa  The 
walls  were  commonly  bare,  without  wainscot  or  even  plaster ; 
except  that  some  gi-eat  houses  were  furnished  with  hangings, 
and  that  perhaps  hardly  so  soon  as  the  reign  of  Edward  IV. 
It  is  unnecessary  to  add,  that  neither  libraries  of  books  nor 
pictures  could  have  found  a  place  among  furniture.  Silver 
plate  was  very  rare,  and  hardly  used  for  the  table.  A  few 
inventories  of  furniture  that  still  remain  exhibit  a  miserable 
deficiency.'  And  this  was  incomparably  greater  in  private 
gentlemen's  houses  than  among  citizens,  and  especially  for- 
eign merchants.  We  have  an  inventory  of  the  goods  be- 
longing to  Contarini,  a  rich  Venetian  trader,  at  his  house  in 
St  Botolph's  Lane,  a.d.  1481.  There  appear  to  have  been 
no  less  than  ten  beds,  and  glass  windows  are  especially  no- 
ticed as  movable  furniture.  No  mention  however  is  made 
of  chairs  or  looking-glasses.^     If  we  compare  this  account, 

1  Paalmy,  t.  ill.  p.  182.  Villaret,  t.  zl.  but  at  ona  or  two  shllUngti,  they  had,  I 

p.  141.    MiicpherHon,  p.  679.  fuppom,  but  a  little  sflrer  on  the  rim. 

s  Northumberland  Household    Book,  *  Nicholla  Illustrations,  p.  119.     Id 

preface,  p.  16.   BUhop  Percy  says,  on  the  this  work,  among  seTeral  interesting  fiieta 

authority  of  UarrisoUf  that  glass  was  not  of  the  same  oiaM,  we  hare  another  in- 

eommoiily  used  in  the  leign  of  Henry  ventoryof  the  goods  of  *^  John  Port,  late 

VIII.  the  king's    serrantf"  who  died  about 

>  See  some  curious  raluations  of  fur-  1324 :  he  seems  to  have  l>een  a  man  of 
nlture  and  stock  in  trade  at  Colchester  some  coaslderation  and  probably  a  mer- 
In  1396  and  1801.  Ifiden's  Introduct.  to  chant.  The  house  consisted  of  a  hall^ 
B^te  of  the  Poor,  p.  '20  and  25.  from  the  parlor,  buttery,  and  kitchen,  with  two 
Soils  of  Parliament.  A  carpenter's  stock  ehambers,  and  one  smaller,  on  the  floor 
was  valued  at  a  shilling,  and  consisted  of  above;  a  napery,  or  linen  room,  and 
five  tools.  Other  tradesmen  were  almost  three  garrets,  beside  a  shop,  which  was 
aa  poor;  but  a  tanner's  stock,  if  there  is  probably  detached.  There  were  five  bed- 
no  mistake,  was  worth  9/.  Is.  1(W.,  more  stead-s  in  the  house,  and  on  the  whole  a 
than  ten  times  any  other.  Tanners  were  great  deal  of  furniture  fl  r  those  times ; 
principal  tnulesmen,  the  chief  part  of  much  more  than  I  have  seen  in  any  oth- 
druM  being  made  of  leather.  A  few  sil-  er  inventory.  His  plate  is  valued  at  94^. ; 
▼er  cups  and  spoons  an  the  only  articlea  his  jewels  at  23^. ;  his  funeral  expense! 
•f  plate ;  and  as  the  former  are  Talued  oome  to  73<.  6i.  Sd.  p.  119. 


Btatb  or  SocuRT.     FASM-H0U8ES  AND  COTTAGES*         543 

however  trifling  in  our  estimation,  with  a  similar  inventory 
of  furniture  in  Skipton  Castle,  the  great  honor  of  the  earls 
of  Cumberland,  and  among  the  most  splendid  mansions  of 
the  north,  not  at  the  same  period,  for  I  have  not  found  any 
inventory  of  a  nobleman's  furniture  so  ancient,  but  in  1572, 
after  almost  a  century  of  continual  improvement,  we  shall 
be  astonished  at  the  inferior  provision  of  the  baronial  resi* 
dence.  There  were  not  more  than  seven  or  eight  beds  in 
this  great  castle  ;  nor  had  any  of  the  chambers  either  chairs, 
glasses,  or  carpets.^  It  is  in  this  sense,  probably,  that  we 
must  understand  iEneas  Sylvius,  if  he  meant  anything  more 
tlian  to  express  a  traveller's  discontent,  when  he  declares 
that  the  kings  of  Scotland  would  rejoice  to  be  as  well  lodged 
as  the  second  class  of  citizens  at  Nuremberg.'  Few  burgh- 
ers of  that  town  had  mansions,  I  presume,  equal  to  the  pal- 
aces of  Dumferlin  or  Stirling,  but  it  is  not  unlikely  that 
they  were  better  furnished. 

In  the  construction  of  farm-houses  and  cottages,  especially 
the  latter,  there  have  probably  been  fewer  changes ;  v^rm-hoiuiM 
and  those  it  would  be  more  difficult  to  follow.  No  ■"**  oott««^ 
building  of  tliis  class  can  be  supposed  to  exist  of  the  antiq- 
uity to  which  the  present  work  is  confined ;  and  I  do  not 
know  that  we  have  any  document  as  to  the  inferior  architec- 
ture of  England,  so  valuable  as  one  which  M.  de  Paulmy  has 
quoted  for  that  of  France,  though  perhaps  more  strictly  appli- 
cable to  Italy,  an  illuminated  manuscript  of  the  fourteenth 
century,  being  a  translation  of  Crescentio's  work  on  agricul- 
ture, illustrating  the  customs,  and,  among  other  things,  the 
habitations  of  the  agricultural  class.  According  to  Paulmy, 
there  is  no  other  difference  between  an  ancient  and  a  mod- 

1  WUteker*i  lUrt.  of  Cistwd,  p.  289.  ftad  a  few  gobleti  and  ale  pott.     Sir 

A  bettor  notton  of  tbe  acoonunodaUone  Adrian  Foekewe'i  opulence  appears   to 

Vfnal  in  the  rank  Inunedtateiy  below  hare  been  greater ;  he  had  a  eerrice  of 

may  be  collected  fi?om  two  Inventoriea  filTer  plato,  and  hb  parlor  wai  famished 

publiahed  by  Strati,  one  of  Mr.  Fermor'e  with  hangings.    This  was  In  1639 ;  it  is 

house  at  Esstoo,  tbe  other  Sir  Adrian  not  to  be  inugined  that  a  knight  of  the 

Foskewe's.  I  have  mentioned  the  sise  of  shire  a  hundred  years  before  wonld  hare 

these  gentlemen's  houses  already.     In  riralled  eren  this   scanty  pnnrision  of 

the  former,  the  parlor  had  wainseot,  a  morables.     Strntt's  View  of  Manners, 

table  and  a  few  chairs;  the  chambers  toI.  iii.  p.  68.    These  details,  trifling  as 

aboTB  had  two  best  beds,  and  there  was  they  may  appear,  are  absolutely  neoes- 

one  senrant's  bed ;  but  the  inferior  ser-  sary  in  order  to  give  an  idea  with  some 

tants  had  only  mattresses  on  the  floor.  precLdou  of  a  state  of  national  wealth  so 

Tbe  best  ehambers  had  window  shutters  totally  dlfiereot  ttom  the  present, 

and  curtains.    Mr.  Fermor,  being  a  mer-  *  Cuperent  tam  egregii  Seotorum  rms 

ehant,  was  probably  better  supplied  than  qnim  mediocres  Nuremben^M  ciTes  haot 

tbe  nelghbonng  gentiy.    Bis  plate  how-  tare.    ^.n.  S.>  W.  spud  Schmidt,  Uist.  des 

•oailatad  only  of  sixteen  spoons,  Alieio.  t  t.  p  610. 


544        ECCLESIASTICAL  ARCHITECTURE.     Chap.  IX.  Pakt  XL 

em  farm-house  than  arises  from  the  introduction  of  tiled 
roofs.*  In  the  original  work  of  Crescentio,  a  native  of  Bo- 
logna, who  composed  this  treatise  on  rural  affairs  about  the 
year  1300,  an  Italian  farm-house,  when  built  at  least  accord- 
ing to  his  plan,  appears  to  have  been  commodious  both  in  size 
and  arrangement.^  Cottages  in  £ngland  seem  to  have  gen- 
erally consisted  of  a  single  room  without  division  of  stories. 
Chimneys  were  unknown  in  such  dwellings  till  the  early  part 
of  Elizabeth's  reign,  when  a  very  rapid  and  sensible  im- 
provement took  place  in  the  comforts  of  our  yeomanry  and 
cottagers.' 

It  must  be  remembered  that  I  have  introduced  this  disad- 
Scoieeiuticai  vantagcous  representation  of  civil  architecture,  as 
architecture.  ^  proof  of  general  poverty  and  backwardness  in 
the  refinements  of  life.  Considered  in  its  higher  depart- 
ments, that  art  is  the  principal  boast  of  the  middle  ages. 
The  common  buildings,  especially  those  of  a  public  kind, 
were  constructed  with  skill  and  attention  to  durability.  The 
castellated  style  displays  these  qualities  in  great  perfection  ; 
the  means  are  well  adapted  to  their  objects,  and  its  imposing 
grandeur,  though  chiefly  resulting  no  doubt  fi*om  massiveness 
and  liistorical  association,  sometimes  indicates  a  degree  of 
architectural  genius  in  tlie  conception.  But  the  most  re- 
markable works  of  this  art  are  the  religious  edifices  erected 
in  the  twelfth  and  three  following  centuries.  These  struc- 
tures, uniting  sublimity  in  general  composition  with  the  beau- 
ties of  variety  and  form,  intricacy  of  parts,  skilful  or  at  least 
fortunate  effects  of  shadow  and  light,  and  in  some  instances 
with  extraordinary  mechanical  science,  are  naturally  apt  to 
lead  those  antiquaries  who  are  most  conversant  with  them 
into  too  partial  estimates  of  the  times  wherein  they  were 
founded.  They  certainly  are  accustomed  to  behold  the  fair- 
est side  of  the  picture.  It  was  the  favorite  and  most  hon- 
orable employment  of  ecclesiastical  wealth,  to  erect,  to  en- 
large, to  repair,  to  decorate  cathedral  and  conventual  churches. 
An  immense  capital  must  have  been  expended  upon  these 

1 1.  iii.  p.  127.  neys  irere  not  uaod  in  the  fiurm-honMt 

*  Crescentius  in  Commodnm  Rnraliam.  of  Cheshire  till  within  forty  yean  of  the 

(LoTaoin,  aboque  anno.)     This  old  edi>  publication  of  King's  Vale-royal  (1666); 

tlon  contains  many  coanw  wooden  cute,  the  fire  was  in  the  midst  of  the  hoose, 

possibly  taken  from   the  illuminations  against  a  hob  of  clay,  and  the  oxen  Uwd 

which  Paulmy  found  in  his  manuscript,  nnder  the  same  roof.  Whitaker's  GtsTen, 

»  Harrison's  account  of  Bngland.  pre-  p.  8M. 
fixed  to  Uollingshed's  Chronioies.  Ghim- 


Statk  oi  SociKTT.     ECCLESIASTICAL  ARCHITECTURK      545 

buildings  in  England  between  the  Conquest  and  the  Refor- 
mation. And  it  is  pleasing  to  observe  how  the  seeds  of  gen- 
ius, hidden  as  it  were  under  the  frost  of  that  dreaiy  winter, 
began  to  bud  in  the  first  sunshine  of  encouragement.  In  the 
darkest  period  of  the  middle  ages,  especially  aft^r  the  Scan- 
dinavian incursions  into  France  and  England,  ecclesiastical 
architecture,  though  always  far  more  advanced  than  any  other 
art,  bespoke  the  rudeness  and  poverty  of  the  times.  It  be- 
gan towards  the  latter  part  of  the  eleventh  century,  when 
tranquillity,  at  least  as  to  former  enemies,  was  restored,  and 
some  degree  of  learning  reappeared,  to  assume  a  more  noble 
appearance.  The  Anglo-Norman  cathedrals  were  perhaps  as 
much  distinguished  above  other  works  of  man  in  their  own  age, 
as  the  more  splendid  edifices  of  a  later  period.  The  science 
manifested  in  them  is  not,  however,  very  great ;  and  their 
style,  though  by  no  means  destitute  of  lesser  beauties,  is 
upon  the  whole  an  awkward  imitation  of  Roman  architec- 
ture, or  perhaps  more  immediately  of  the  Saracenic  buildings 
in  Spain  and  those  of  the  lower  Greek  empire.*  But  about 
the  middle  of  the  twelfth  century,  this  manner  began  to  give 
place  to  what  is  improperly  denominated  the  Grothic  archi- 
tecture ; '  of  which  the  pointed  arch,  formed  by  the  segments 

1  Tb«  Siumeenlr  aretaltoetnn  mM  onM  tkm  but  ttiat  of  the  iltignlar  horaaghot 

eonoelred  to  hare  been  the  parent  of  the  anh,  by  the  Moon  of  Spain. 

Qothio.    But  the  pointed  arch  does  not  T  i«  Oothio,  or  pointed  aroh,  tbon^ 

oocar,  I  believe,  in  any  Moorieh  build-  very  uncommoD  in  the  genuine  Saiaceo- 

IngM ;  while  the  great  mosque  of  Gordo-  ic  of  Spain   and  the  Lerantf  may  be 

Ta.  built  in  the  eighth  century,  resem-  found  in  some  prints  ftom  Eastern  bnild- 

blee,  except  by  its  superior  beauty  and  ings ;  and  is  particularly  striking  in  the 

magiilflcenoe,  one  of  our  oldest  cathe-  flM^e  of  the  grtMit  luosque  at  Lucknow, 

drals;   the  nare  of  Olouoester,  Ibr  ex-  in  Salt's  designs  for  Lord  Valentla'sTra?- 

ample,  or  Durham.    Bren  the  Taulting  els.    The  pointed  arch  buildings  in  the 

is  similar,  and  seems  to  indicate  some  Uoly  Laud  hare  all  been  traced  to  the 

Imitation,  though  perhaps  of  a  common  age  of  the  Crusades.     Some  arch«8,  If 

model.    Oomoare  Arcbaeologia,  toI.  xtU.  they  deaerre  the  name,  that  hate  been 

plate  1  and  2,  with  Bf  urphy*s  Arabian  referred  to  this  class,  are  not  pointed  by 

Antlquitiea,  plate  6.    The  pillars  indeed  their  construction,  but  rendered  sueh  by 

ftt  Cordofa  are  of  the  Corinthian  order,  cutting  off  and  hollowing  the  projection* 

perfectly  ezeeuted.  if  we  may  trust  the  of  hozuontal  stones, 

•ngraying,  and  the  work.  I  presume,  of  >  Qibbon  has  asserted,  what  might  Jufr* 

Christian  architects ;  while  those  of  our  tify  this  appellation,  that  '*  the  image 

Anglo-Norman  cathedrals  are  generally  of  Theodorio*s  palace  at  Verona,  still  ex- 

an  Imitation  of  the  Tuscan  shaft,  the  taut  on  a  coin,  repreeents  the  oldest  and 

builders  not   Tenturing  to  trust  their  most  authentic  model  of  Gothic  urchi 

roof^  to  a  more  slender  support,  though  tecture,"  toI.  yii.  p.  88.    For  this  he  re 

Corinthian  foliage  is  common  in  the  cap-  ftrs  to  Maflei,  Verona  Illustrata,  p.  81. 

Itals,  eapecially  those  of  smaller  oma-  where  we  ilnd  an  engraTlug,  not  Indeed 

mental  columns.     In  fkct,  the  Roman  of  a  coin,  but  of  a  seal ;  the  building 

architecture  is  uniTersally  acknowledged  represented  on  which  is  in  a  totally  dis- 

to  ha?e  produced  what  we  call  the  Saxon  similar  style.    The  following  passages  in 

or  Norman ;  but  it  is  remarkable  that  it  Cassiodorus,  for  which  I  am  indebted  to 

fhoold  haT«  been  adopted,  with  no  Taria-  M.  Glngoen*,  Hist.  Uttte.  de  Pltalie,  1. 1 

VOL.  II. — M.  86 


546 


ECCLESIASTICAL  ARCHTTECTUBK    ChjlP.  EL  Pabt  IL 


of  two  interaecdDg  semicircles  of  equal  radius  and  described 
about  a  common  diameter,  has  generally  been  deemed  the 
essential  characteristic  We  are  not  concerned  at  present  to 
inquire  whether  this  style  originated  in  France  or  Grennany« 
Italy  or  England,  since  it  was  certainly  almost  shnultaneous 
in  all  these  countries;^  nor  from  what  source  it  was  derived 
-—  a  question  of  no  small  difficulty.  I  would  only  venture 
to  remark,  that  whatever  may  be  thought  of  the  origin  of 
the  pointed  arch,  for  which  there  is  more  than  one  mode  of 
accounting,  we  must  perceive  a  very  oriental  character  in 


p.  66,  would  b«  mora  to  the  pvrpoM: 
Quid    dlcamna    colainn«rum    junceam 

Sroceritstem  ?  moles  111m  fublimlnsiaias 
kbricarum  qua«l  quibusdam  erectts  has- 
tilibus  contlneri.  TheM  columns  of 
reedy  slenderness,  so  well  described  bj 
Juocea  prooeritas,  are  said  to  be  found 
In  the  cathedral  of  Montreal  In  Sicily, 
built  In  the  eii^bth  century.  Knight's 
Principles  of  Taste,  p.  1^.  They  are 
not  howcTer  snfllcinnt  to  Justify  the  de- 
nomination of  Qothie,  which  b  usually 
confined  to  the  pointed  arch  style. 

1  The  famous  abbot  8  user,  minL^ter 
of  ]>ouis  VI..  rebuilt  St.  Denis  about 
1140.  The  cathedral  of  Iaoh  is  said  to 
have  been  dedicated  in  1114.  Hist,  lit- 
t6raire  de  la  France,  t.  iz.  p.  220.  I  do 
not  know  in  what  style  the  latter  of 
these  churches  is  built,  but  the  former 
Is,  or  rather  was,  Qothic.  Notre  Dame 
at  Paris  was  begun  soon  after  the  mid- 
dle of  the  twelfth  century,  and  com- 
pleted under  St.  Louis.  Melanges  tir^ 
d'une  grande  bibliothique,  t.  zxxi.  p. 
108.  In  England,  the  earliest  specimen 
I  have  seen  of  pointed  arches  is  in  a 
print  of  St.  Botolphe's  Priory  at  Colches- 
ter, said  by  Strutt  to  have  been  built  in 
1110.  View  of  Manners,  vol.  1.  plate  80. 
These  are  apertures  formed  by  excavat- 
ing the  space  contained  by  the  intersec- 
tion of  semicircular,  or  Saxou  arches; 
which  are  perpetually  disposed,  by  way 
of  omainont,  on  the  outer  as  well  as  in- 
ner surface  of  old  churches,  so  as  to  cut 
each  other,  and  consequently  to  pro- 
duce the  figure  of  a  Qothic  arch ;  and  if 
there  is  no  mistake  in  the  date,  they  are 
probably  among  the  most  ancient  of  that 
style  in  Europe.  Those  of  the  church 
of  St.  Cross  near  Winchester  are  of  the 
reign  of  Stephen ;  and  generelly  speak- 
ing, the  pointed  stylo,  especially  in  vault- 
ing, the  most  Important  oUeet  In  the 
eonst ruction  of  a  building,  is  n«t  eon- 
ilderod  as  older  than  Henry  II.  The 
nave  of  Canterbury  cathedral,  of  the 
erection  of  which  by  a  French  architect 
about  1176  we  hare  a  ta\i  account  tn 


Gervue  (Twyaden,  Decern  Seriptores,  ool. 
1289).  and  the  Temple  chureh,  dedicated 
in  11S3.  are  the  most  ancient  Engllah 
buildings  altogether  in  the  Gothic  man- 
ner. 

The  sul^Jeet  of  ecclesiastical  architec- 
ture in  the  middle  ages  has  been  so  fulij 
dlMsussed  by  intellifrent  and  observaot 
writers  since  these  pages  were  first  pub- 
lished, that  they  require  some  correctioii. 
The  oriental  theory  for  the  origin  of  th« 
pointed  arehitecture,  though  not  given 
up,  has  not  generally  stood  its  ground; 
there  seems  more  renson  to  believe  that 
it  was  first  adopted  in  Oormany,  as  Mr. 
Hope  has  shown ;  but  at  fiiwt  in  single 
arches,  not  in  the  construction  of  the 
entire  building. 

The  circular  and  pointed  forms,  in- 
stead of  one  having  at  once  supplanted 
the  other,  were  concurrent  in  the  same 
building,  through  Germany,  Italy,  and 
SwitierUind,  for  some  centuries.  I  will 
just  add  to  the  instances  mentioned  by 
Mr.  Hope  and  others,  and  which  every 
traveller  may  corroborate,  one  not  very 
well  known,  perhaps  as  early  as  any,  — 
the  crypt  of  the  cathedral  at  Basle,  boiU 
under  the  reign  of  the  emperor  Henry 
II.,  near  the  cMnmeneement  of  the 
eleventh  century,  where  two  pointed 
with  three  circular  arches  stand  togeth- 
er, evidently  tnm  want  of  space  enough 
to  preserve  Uie  same  breadth  with  the 
necessary  height.  The  same  cireum- 
staoce  will  be  found,  I  think,  in  the 
crypt  of  St.  Denis,  near  Paris,  which, 
however,  is  not  so  old.  The  writings  of 
Hope.  Rickman,  Whewell,  and  Willis  an 

Brominent  among  many  that  have  thromi 
ght  on  this  sul^t.  The  beauty  and 
magnificence  of  the  pointed  stvle  is  ao> 
knowledged  on  all  sides;  peraaps  the 
imitation  of  It  has  been  too  serrile,  and 
with  too  much  forgetfiilness  of  some 
very  important  changes  tn  our  reUglovu 
aspect  rendering  that  simply  ornamental 
which  was  once  directed  to  a  great  Ob* 
Ject.    [1848.] 


8TA.TB  OF  SooiBTT.     PROGRESS  OF  AGRICULTURE.  547 

the  vast  profusion  of  ornament,  especially  on  the  exterior 
surface,  which  is  as  distinguishing  a  mark  of  Grothic  build- 
ings as  their  arches,  and  contributes  in  an  eminent  degree 
both  to  their  beauties  and  to  their  defects.  This  inde^  is 
rather  applicable  to  the  later  than  the  earlier  stage  of  archi- 
tecture, and  rather  to  continental  than  English  churches. 
Amiens  is  in  a  far  more  florid  style  than  Salisbury,  though 
a  contemporary  structure.  The  Gothic  species  of  architec- 
ture is  thought  by  most  to  have  reached  its  perfection,  consid- 
ered as  an  object  of  taste,  by  the  middle  or  perhaps  the  close 
of  the  fourteenth  century,  or  at  least,  to  have  lost  some- 
thing of  its  excellence  by  the  corresponding  part  of  the 
next  age  ;  an  effect  of  its  early  and  rapid  cultivation,  since, 
arts  appear  to  have,  like  individuals,  their  natural  progress 
and  decay.  The  mechanical  execution,  however,  continued 
to  improve,  and  is  so  far  beyond  the  apparent  intellectual 
powers  of  those  times,  that  some  have  ascribed  the  principal 
ecclesiastical  structures  to  the  fraternity  of  freemasons,  de- 
positaries of  a  concealed  and  traditionary  science.  There  is 
probably  some  ground  for  this  opinion ;  and  the  earlier 
archives  of  that  mysterious  association,  if  they  existed,  might 
illustrate  the  progress  of  Gothic  architecture,  and  perhaps 
reveal  its  origin.  The  remarkable  change  into  this  new^  style, 
that  was  almost  contemporaneous  in  every  part  of  Europe, 
cannot  be*  explained  by  any  local  circumstances,  or  the  ca- 
pricious taste  of  a  single  nation.^ 

It  would  be  a  pleasing  task  to  trace  with  satisfactory  ex- 
actness the  slow,  and  almost   perhaps  insensible 
progress  of  agriculture  and  internal  improvement  in  Mua^ 
during  the  latter  period  of  the  middle  acres.     But  «^^  F*^ 
DO  diligence  could  recover  the  unrecorded  history 
of  a  single  village ;  though  considerable  attention  has  of  lata 
been  paid  to  this  interesting  subject  by  those  antiquaries, 
who,  though  sometimes  affecting  to  despise   the  lights  of 

>  The  eariooi  snt^t  of  tmmtuaonrj  to  th«  ttatota  of  laboreni  and  tneb 

has  unfortunately  been  treated  only  by  ehaptora   are   ooneeqnently  probibitod. 

iNinegyriefee  or  calnmnbtora,  both  equal*  This  i«  their  first  peneontion ;  they  haTe 

ly  niendadoue.    I  do  not  wteh   to  pry  idnoe  underipone  others,  and  are  perhaps 

Into  the  mysteries  of  the  craft ;  but  ft  n»>ryed  for  ttin  more.    It  Is  remark- 

would  be  interesting  to  know  more  of  able,  that  masons  were  nerer  legally  In- 

their  history  during  the  period  when  corpoiated,  like   other    tradent ;    their 

tbey  were  literally  arehitecte.    They  ars  bond  of  union  being  stronger  than  any 

•hsAfysd  by  an  aet  of  pariiamont,  8  H.  charter.     The  article   Mawmry  in  tbi 

TI.  0.  t.,  with  flzins  th«  pr^ce  of  thoir  Encyelop«dia  Britaanlea  is  worth  read 

libor  In  th^  annuu  obaptais,  eontnuy  log. 


548  PROGRESS  OF  AGRICULTURE.     Chap.  DC  Part  H. 

modem  philosophy,  are  unconsciously  guided  by  their  efful- 
gence. I  have  already  adverted  to  the  wretched  conditioa 
of  agriculture  during  the  prevalence  of  feudal  tenures,  as 
well  as  before  their  general  establishment^  Yet  even  in  the 
least  civilized  ages,  there  were  not  wanting  partial  encourage- 
ments to  cultivation,  and  the  ameliorating  principle  of  human 
industry  struggled  against  destructive  revolutions  and  barba- 
rous disorder.  The  devastation  of  war  from  the  fiflh  to  the 
eleventh  century  rendered  land  the  least  costly  of  all  gifls, 
though  it  must  ever  be  the  most  truly  valuable  and  perma- 
nent. Many  of  the  grants  to  monasteries,  which  strike  us  as 
enormous,  were  of  districts  absolutely  wasted,  which  would 
probably  have  been  reclaimed  by  no  other  means.  We  owe 
the  agricultural  restoration  of  great  part  of  Europe  to  the 
monks.  They  chose,  for  the  sake  of  retirement,  secluded  re- 
gions which  Uiey  cultivated  with  the  labor  of  their  hands.* 

1  I  cannot  resist  the  pleasure  of  tran-  This  proportion,  however,  would  by  ao 

scribing  a  lively  and  eloquent  passage  means  hold  in  tlie   counties  south  of 

from  Dr.  Whitalcer.    *'  Could  a  curious  Trent. 

obncrrer  of  the  present  day  carry  him-  *  "  Of  the  Anglo-Saxon  huabandry  wa 

self  nine  or   ten  centuries   back,  and  may  remark,"  says  Mr.  Turner,  **that 

ranging  the  summit  of  Pendle  survey  Domesday  Survey  gives  us  some  indica- 

the  forked  vale  of  Calder  on  one  side,  tion  that  the  cultivation  of  the  church 

and  the  bolder  margins  of  Ribble  and  lands  was  much  superior  to  that  of  any 

Hadder  on  the  other,  instead  of  popu-  other  order  of  society.    They  tiave  much 

lous  towns  and  villages,  the  castle,  the  less  wood  upon  them,  and  lees  oommoB 

old  tower-built  house,  the  eli^aut  mod-  of  pasture :  and  what  they  had  appean 

em  mansion,  the  artificial   plantation,  often  in  smaller   and   more    irregular 

the  indoaed  parii  and  pleasure  ground :  pieces  ;  whiltf  their  meadow  was  mora 

instead     of    uninterrupted     iucloeures  abundant,  and  in  more  numerous  dlstri- 

which  have  driven  sterility  almost  to  buttons."    Hist,  of  Anglo-Saxons,  Tol. 

the  summit  of  the  fells,  how  great  must  ii.  p.  187. 

then  have  been  the  contrast,  when  rang-  It  was  the  glory  of  St.  Benedict's  m- 

Ing  either  at  a  distance,  or  immediately  form,  to  have  substituted  bodily  labor 

beneath,  his  eye  roust  have  caught  vast  for  the  supine  indolence  of  oriental  as- 

traets  of  forest  ground  stagnating  with  oeticism.    In  the  East  it  was  more  dilB- 

bog  or  darkened  by  native  woods,  where  cult  to  succeed  in  such  an  endeavor, 

the  wild  ox,  the  roe,  the  stag,  and  the  though  it  had  been  made.    **  The  Bene- 

wolf,  had  scarcely  learned  the  supremacy  dictines  liave  l^een,"  says  Ouisot,  **  tha 

of  man,  when,  directing  his  view  to  the  great  clearers  of  land  in  Europe.    A  ool- 

Intermediate  spaces,  to  the  windings  of  ony,  a  little  swarm  of  monks,  settled  In 

the  valleys,  or  the  expanse  of  plains  be-  pUces  nearly  uncultivated,  often  in  tha 

neath.  he  cxiuld  only  have  distinguished  midst  of  a  pagan  population,  in  Q«ir- 

a  Ibw  insulated  patches  of  culture,  each  many,  for  example,  or  in  Britany ;  there, 

encircling  a  village  of  wretolied  cabins,  at  once  missionaries  and  laborers,  they 

among  which  would  still  be  remarkea  accomplish  their  double  service  through 

one    rude    mansion  of  wood,  scarcely  peril  and  fktigue."    Givilis.  en  France, 

equal  in  comfort  to  a  modern  cottage,  Le^n  14.    The  northeastern  parts   of 

yet  then  rising  proudly  eminent  above  France,  as  fiir  as  the  Lower  Seine,  were 

the  rest,  where  the    Saxon  lord,  sui^  reduced  into  cultivation  by  the  disciples 

rounded  by  his  fidthfal  cotarii,  epjoyed  of  St.  Columban,  in  the  sixth  and  seventh 

a  rude  and  solitary  Independence,  own-  centuries.    The  jprooft  of  this  are  in  Ma- 

Ing    no  superior   but    lus    sovereign."  billon's   Acta    Mntorum    Ord.    Bened. 

Hist,  of  Whalley .  p.  188.    About  a  four-  See  Mfem.  de  I'Acad.  des  Sdenoes  MoraJet 

teenth  partot  Uiis  parish  of  WhaUey  was  et  Politiques,  ill.  708. 

•ttltlvated  a«   the    time  of  Domeisda/  Qulaot  baa  appreciated  tha  rub  oflM. 


State  o»  Socivtt.     PBOGBESS  OF  AGBICULTUBE.  549 

Several  charters  are  extant,  granted  to  convents,  and  some* 
times  to  laymen,  of  lands  which  they  had  recovered  from  a 
desert  condition,  afler  the  ravages  of  the  Saracens.^  Some 
districts  were  idlotted  to  a  body  of  Spanish  colonists,  who 
emigrated,  in  the  reign  of  Louis  the  Debonair,  to  live  under 
a  Christian  sovereign.^  Nor  is  this  the  only  instance  of  agri- 
cultural colonies.  Charlemagne  transplanted  part  of  his  con* 
quered  Saxons  into  Flanders,  a  country  at  that  time  almost 
unpeopled ;  and  at  a  much  later  period,  there  was  a  remark- 
able reflux  from  the  same  country,  or  rather  from  Holland  to 
the  coasts  of  the  Baltic  Sea.  In  the  twelfth  century,  great 
numbers  of  Dutch  colonists  settled  along  the  whole  line  be- 
tween the  Ems  and  the  Vistula.  They  obtained  grants  of 
uncultivated  land  on  condition  of  fixed  rents,  and  were  gov* 
emed  by  their  own  laws  under  magistrates  of  their  own  eleo 
tion.' 

There  cannot  be  a  more  striking  proof  of  the  low  condi 
tion  of  English  agriculture  in  the  eleventh  century,  than  is 
exhibited  by  Domesday  Book.    Though  almost  all  England 
had  been  partially  cultivated,  and  we  find  nearly  the  same 

Benedfet  with  that  oandid  and  frTonbl*  In  8S4,  to  %  penon  and  his  brother,  of 
■pirit  which  h«  always  has  brooght  to  Unds  which  their  father,  ab  eremo  in 
the  history  of  the  ehnich :  anxlons,  as  SeptlmanlA  trahenSf  had  possessed  hj  a 
it  seems,  not  only  to  escape  the  imputa-  charter  of  Charlemagne.  See  too  p.  778, 
tlon  of  Protestant  prelodioea  by  otoers,  and  other  places.  Du  Gauge,  t.  Sremns, 
but  to  combat  them  in  liis  own  mind ;  gires  also  a  few  instances, 
and  aware,  also,  that  the  partial  misrep-  *  Du  Cange,  t.  Aprlrio.  Balnae,  Oa- 
resentations  of  Voltaire  had  sunk  into  pitnlaria,  t.  i.  p.  54d.  They  were  per- 
the  minds  of  many  who  were  listening  mitted  to  decide  petty  suits  among 
to  his  lectures.  Compared  with  the  themselres,  but  for  more  important 
writers  of  the  eighteenth  eentary.  who  matters  were  to  repair  to  the  county- 
were  too  much  alienated  by  the  fltnlte  of  court.  A  liberal  policy  runs  through 
the  clergy  to  aelEnowledge  any  redeem-  the  whole  charter.  See  more  on  the 
jng  Tirtnes,  or  OTen  with  Sismondi,  who,  same  snk^Jeet,  id.  p.  £69. 
eoming  in  a  moment  of  reaction,  feared  *  I  owe  this  Cut  to  H.  Heeren,  Essal 
the  returning  influence  of  medicBral  rar  rinfluence  des  Groisades,  p.  226. 
pr^ndiees,  Gniaot  stands  forward  as  an  An  inundation  in  their  own  country  is 
equitable  and  indulgent  arbitrator.  In  supposed  to  hare  immediately  produced 
this  spirit  he  says  of  the  rule  of  SL  Ben-  this  emigration;  but  it  was  probably 
edict — La  penste  morale  et  la  discipline  sucoessiTe,  and  connected  with  political 

S&n^rale  en  sont  sArdres ;  male  dans  le  as  well  as  physical  causes  of  greater  per- 
itail  de  la  Tie  elle  est  humalne  et  mod-  manence.  The  flnt  instrument  in  which 
4rte  ;  plus  humalne,  plus  modArie  que  they  are  mentioned  Is  a  irnint  tnm  the 
Iss  lols  barbares,  que  les  meeun  gta^  bishop  of  Hamburgh  in  1106.  This  col- 
ales  do  temps ;  et  Je  ne  doute  pas  que  ony  has  affected  the  local  usages,  as  well 
lee  Ar^res,  renfermds  dans  IMnt^rleur  as  the  denominations  of  things  and 
d'un  monastdre,  n'y  ftissent  gouTerute  places  along  the  northern  eoast  of  Oer- 
par  une  autorit6,  i  tout  prendre,  et  plus  many.  It  must  be  presumed  that  a 
xalsonnable,  et  d*une  mani^re  molns  large  proportion  of  the  emigrants  were 
dure  quMU  ne  Teusaent  4tA  dans  la  so-  diverted  from  agriculture  to  people  the 
eiAt6  ciTile.  commercial  cities  which  grew  up  in  tht 

1  Thna,  In  Harea  HIspanica,  Appendix,  twelfth  century  upon  that  eoait. 
^  770|  «•  haT»  a  grant  ftom  Lothairs  L 


550  LOW  CONDITION  OF       Chap.  IX.  Part  It 

manors,  except  in  the  north,  which  exist  at  present,  jet  the 
value   and  exUmt  of  cultivated   ground  are  inconceivably 
small.     With  every  allowance  for  the  inaccuracies  and  par- 
tialities of  those  by  whom  that  famous  survey  was  completed,' 
we  are  lost  in  amazement  at  the  constant  recurrence  of  two 
or  three  carucates  in  demesne,  with  other  lands  occupied  by 
ten  or  a  dozen  villeins,  valued  altogether  at  forty  shillings,  as 
the  return  of  a  manor,  which  now  would  yield  a  competent 
income  to  a  gentleman.     If  Domesday  Book  can  be  consid* 
ered  as  even  approaching  to  accuracy  in   respect  of  these 
estimates,  agriculture  must  certainly  have  made  a  very  mate 
rial  progress  in  the  four  succeeding  centuries.    This  however 
is  rendered  probable  by  other  documents.     Ingulfus,  abbot  of 
Croyland  under  the  Conqueror,  supplies  an  early  and  inter- 
esting evidence  of  improvement^  Richard  de  Rules,  lord  of 
Deeping,  he  tells  us,  being  fond  of  agriculture,  obtained  per- 
mission from  the  abbey  to  inclose  a  large  portion  of  marsh 
for  the  purpose  of  separate  pasture,  excluding  the  Welland 
by  a  strong  dike,  upon  which  he  erected  a  town,  and  render- 
ing those  stagnant  fens  a  garden  of  Eden.*    In  imitation  of 
this  spirited  cultivator,  the  inhabitants  of  Spalding  and  some 
neighboring  villages  by  a  common  resolution  divided  their 
marshes  amongst  them ;  when  some  converting  them  to  til- 
lage, some  reserving  them  for  meadow,  others  leaving  them 
in  pasture,  they  found  a  nch  soil  for  every  purpose.     The 
abbey  of  Croyland  and  viUages  in  that  neighborhood  followed 
this  example.^    This  early  instance  of  parochial  inclosure  is 
not  to  be  overlooked  in  the  history  of  social  progress.     By 
the  statute  of  Merton,  in  the  20th  of  Henry  III.,  the  lord  is 
permitted  to  approve,  that  is,  to  inclose  the  waste  lands  of 
his  manor,  provided  he  leave  sufficient  common  of  pasture 
for  the  freeholders.     Higden,  a  writer  who  lived  about  the 
time  of  Richard  II.,  says,  in  reference  to  the  number  of  hydes 

1  Iii|:ttlfiM  tells  at  that  th«  commiB-  totiui  terra  Intefcri  eondneote ;  that  li, 

doners  were  pious  enough  to  fkror  Croy-  it  was  m  feneral  and  couelu>i?«  at  th* 

land,  rwturDlDg  its  poneesions  innccu-  last  judgment  will  be. 
rately,    both    as  to    measurement   and       >  This  of  course  is  subject  to  ttiedOQbl 

▼alue;  noo  ad  verum  pretiam,  neo  ad  as  to  the  authenticity  of  I ngulfba. 
Teram  spatium  nostrum   monasterium       *  I  Qale,  XV.  Script,  p.  77. 
librabant  misericorditer,  prsocaTentes  in       *  Commuiii  pleblncito  Tlritim  inter  sa 

Aitutum  regis    exactlonibus.  p.   79.    I  dlfiserunt,   et    quidam  suas    portiones 

may  Juat  observe  by  the  way,  that  In-  agricolantes,  quidam  ad  Iteoum  eoosei> 

fulftts  gires  the  plain  meaning  of  the  Tant<«,  quidain   ut  prius  ad  pastunuo 

word  Domesday,  which  has   Imcu  dis-  suorum   animallum,   separaliter  Jaeer 

pnted.    The  book  was  so  called,  he  says,  permittentes,  terram  pingttem  et  ubCRUn 

vro  suft  generalitate  omnia  tenements  repererant.  p.  9i. 


Stafa  of  Socibtt.    A6RICULTT7BE  IN  ENGLAND.  551 

and  vills  of  England  at  the  Conquest,  that  by  ^clearing  of 
woe  ds,  and  ploughing  up  wastes,  there  were  manj  more  of 
each  in  his  age  than  formerly.^  And  it  might  be  easily  pre* 
Bumed,  independently  of  proof,  that  woods  were  cleared, 
marshes  drained,  and  wastes  brought  into  tillage,  during  the 
long  period  that  the  house  of  Plantagenet  sat  on  the  throne. 
From  manorial  surveys  indeed  and  similar  instruments,  it 
appears  that  in  some  places  there  was  nearly  as  much  ground 
cultivated  in  the  reign  of  Edward  III.  as  at  the  present  day, 
1  be  condition  of  different  counties  however  was  very  &r 
from  being  alike,  and  in  general  the  northern  and  western 
parts  of  England  were  the  most  backward.* 

The  culture  of  arable  land  was  very  imperfect  Fleta 
remarks,  in  the  reign  of  Edward  I.  or  11.,  that  unless  an 
acre  yielded  more  than  six  bushels  of  com,  the  farmer  would 
be  a  loser,  and  the  land  yield  no  rent*  And  Sir  John  Cul- 
lum,  from  very  minute  accounts,  has  calculated  that  nine  or 
ten  bushels  were  a  full  average  crop  on  an  acre  of  wheat. 
An  amazing  excess  of  tillage  accompanied,  and  partly,  I 
suppose,  produced  this  imperfect  cultivation.  In  Hawsted, 
for  example,  under  Edwani  I.,  there  were  thirteen  or  four- 
teen hundred  acres  of  arable,  and  only  forty-live  of  meadow 
ground.  A  similar  disproportion  occurs  almost  invariably  in 
every  account  we  possess.^  This  seems  inconsistent  with  the 
low  price  of  cattle.  But  we  must  recollect  that  the  common 
pasture,  often  the  most  extensive  part  of  a  manor,  is  not  in- 
cluded, at  least  by  any  specific  measurement,  in  these  surveys. 
The  rent  of  land  differed  of  course  materially ;  sixpence  an  acre 
seems  to  have  been  about  the  average  for  arable  land  in  the 
thirteenth  century,*  though  meadow  was  at  double  or  treble 
that  sum.  But  the  landlords  were  naturally  solicitous  to 
augment  a  revenue  that  became  more  and  more  inadequate 
to  their  luxuries.  They  grew  attentive  to  agricultural  con- 
cerns, and  perceived  that  a  high  rate  of  produce,  against 
which  their  less  enlightened  ancestors  had   been  used  to 

1  1  Oft]*.  XV.  Script,  p.  201.  *  Callnm,  p.  lOOj^.    Edtn^s  State  of 

*  A  (nod  deal  of  Information  upon  the  Poor,  fro.  p.  48.    whitaker*t  Cravan,  p. 

•«nn«r  state  of  a|{ricalttti«  will  be  found  45,  836. 

In  Cullum's  History  of  flawnted.  Blome-  &  I  infer  this  ftrom  a  number  of  pama- 

fleld^s  Norfolk  Is  in  this  respect  amon^  gee  in    Blomefleld,  OoUam,  and  other 

the  toTBt  Taluab'o  of  our  local  histories,  writers.    Heame  says,  that  an  acre  wa4 

Sir  FreJerio  Bdea.  in  the  first  part  of  his  often  called  SoUdata  terrss ;  because  the 

•zeellent  work  on  the  poor,  lias  collected  yearlv  rent  of  one  on  the  best  land  was  n 

•ereial  interestinf  feoti  shilUjic.    Uh  Nig.  Seaoe.  p.  81. 
«  L  U.  c.  8. 


552  AGBICULTUBE  IN        Ghaf.  DL  Part  U. 

clamor,  would  bring  much  more  into  their  coffers  than  it 
took  awaj.  The  exportation  of  corn  had  b^en  absolutely 
prohibited.  But  the  statute  of  the  15th  Henry  VI.  c  2,  re- 
citing that  ''on  this  account,  farmers  and  odiers  who  use 
hu-sbandry,  cannot  sell  their  corn  but  at  a  low  price,  to  the 
great  damage  of  the  realm,"  permits  it  to  be  &ent  anywhere 
but  to  the  king's  enemies,  so  long  as  the  quarter  of  wheat 
shall  not  exceed  6<.  ScL  in  value,  or  that  of  barley  3«. 

The  price  of  wool  was  fixed  in  the  thirty-second  year  of 
the  same  reign  at  a  minimum,  below  which  no  person  was 
Bifffered  to  buy  it,  though  he  might  give  more  ;  ^  a  provision 
neither  wise  nor  equitable,  but  obviously  suggested  by  the 
same  motive.  "Whether  the  rents  of  land  were  augmented 
in  any  degree  through  these  measures,  I  have  not  perceived  ; 
their  great  rise  took  place  in  the  reign  of  Henry  VIIL,  or 
rather  afterwards.^  The  usual  price  of  land  under  Edward 
IV.  seems  to  have  been  ten  years'  purchase.* 

It  may  easily  be  presumed  that  an  English  writer  can 
ita  oondiuoa  furnish  very  little  information  as  to  the  state  of 
in  France  agriculture  in  foreign  countries.  In  such  works 
"*  '*'*  relating  to  France  as  have  fallen  within  my 
reach,  I  have  found  nothing  satisfactory,  and  cannot  pre- 
tend to  determine,  whether  the  natural  tendency  of  mankind 
to  ameliorate  their  condition  had  a  greater  influence  in  pro- 
moting agriculture,  or  the  vices  inherent  in  the  actual  order 
of  society,  and  those  public  misfortunes  to  which  that  king- 
dom was  exposed,  in  retarding  it.^  The  state  of  Italy  was 
fai*  different ;  the  rich  Lombard  plains,  still  more  fertilized 
by  irrigation,  became  a  garden,  and  agriculture  seems  to  have 
reached  the  excellence  which  it  still  retains.  The  constant 
warfare  indeed  of  neighboring  cities  is  not  very  favorable  to 
industry ;  and  upon  this  account  we  might  incline  to  place 
the  greatest  territorial  improvement  of  Lombardy  at  an  era 
rather  posterior  to  that  of  her  republican  government ;  bat 
from  this  it  primarily  sprung ;  and  without  the  subjugation 
of  the  feudal  aristocracy,  and  that  perpetual  demand  upon 

1  Rot.  Pari.  TOl.  r.  p.  276.  ymx.    It  is  not  f  urprMns  that  he  Hved 

*  A  pasMfe  in  Bishop  Latimer'f  mt-  m  plentifully  aa  hit  aon  oeaexibea. 

mona,  boo  often  quoted  to  require  repeti-  >  Rymer,  t.  xii  p.  20i. 

Moo,  shows  Uuit  land  was  much  underlet  *  Veliv  and  ViUaret  scsroely  mentloii 

about  the  end  of  the  fifteenth  century.  thissulQect;  and  Le  Orand  merely  telle 

His  fiither,  he  saye,  kept  half  a  dozen  us  that  it  was  entirely  neilacted;  bat 

husbandmen,  and  milked   thirty  eows,  the  details  of  such  an  art,  even  in  it« 

•o  a  turn  of  three  or  Ibur  pounds  a  state  of  neglect,  might  le  InterBsUng. 


6TATB  ov  SoooTT.     FRANCE  AND  ITALT.  553 

the  fertility  of  the  earth  which  an  increasing  population  of 
citizens  produced,  the  valley  of  the  Po  would  not  have  yielded 
more  to  human  lahor  than  it  had  done  for  several  preceding 
centuries.^  Though  Lomb<irdy  was  extremely  populous  in 
the  thirteenth  and  fourteenth  centuries,  she  exported  large 
quantities  of  com.'  The  very  curious  treatise  of  Crescent ius 
exhibits  the  full  details  of  Italian  husbandry  al)Out  1300,  and 
might  afford  an  interesting  comparison  to  those  who  are 
acquainted  with  its  present  state.  That  state  indeed  in  many 
parts  of  Italy  displays  no  symptoms  of  decline.  But  what* 
ever  mysterious  influence  of  soil  or  climate  has  scattered  the 
seeds  of  death  on  the  western  regions  of  Tuscany,  had  not 
manifested  itself  in  the  middle  ages.  Among  uninhabitable 
plains,  the  traveller  is  struck  by  the  ruins  of  innumerable 
castles  and  villages,  monuments  of  a  time  when  pestilence 
was  either  unfelt,  or  had  at  least  not  forbade  the  residence  of 
mankind.  Volterra,  whose  deserted  walls  look  down  upon 
that  tainted  solitude,  was  once  a  small  but  free  republic; 
Siena,  round  whom,  though  less  depopulated,  the  malignant 
influenite  hovers,  was  once  almost  the  rival  of  Florence.  So 
melancholy  and  apparently  irresistible  a  decline  of  culture 
and  population  through  physical  causes,  as  seems  to  have 
gradually  overspread  that  portion  of  Italy,  has  not  perhaps 
been  experienced  in  any  other  part  of  Europe,  unless  we 
except  Iceland. 

The  Italians  of  the  fourteenth  century  seem  to  have  paid 
some  attention  to.  an  art,  of  which,  both  as  related  ^^ 
to  cultivation  and  to  architecture,  our  own  fore- 
fathers were  almost  entirely  ignorant  Crescentius  dilates 
apon  horticulture,  and  gives  a  pretty  long  list  of  herbs  both 
esculent  and  medicinal.*  His  notions  about  the  ornamental 
department  are  rather  beyond  what  we  should  expect,  and  I 
do  not  know  that  his  scheme  of  a  flower-garden  could  be 
much  amended.  His  general  arrangements,  which  are 
minutely  detailed  with  evident  fondness  for  the  subject,  would 
of  course  appear  too  formal  at  present ;  yet  less  so  than 
those  of  subsequent  times;  and  though  acquainted  with 
what  is  called  the  topiary  art,  that  of  training  or  cutting 
trees  into  regular  figures,  he  does  not  seem  to  run  into  its 
extravagance.     Regular  gardens,  according  to  Paulmy,  wore 

1  M nntori,  BlMtrt.  81.  •  DsniDft.  L  zL  o.  7. 

•  DaaliM,  L  ▼!. 


554  CHANGES  IN  THE      Chap.  IX.  Pabt  IL 

Dot  made  in  France  till  the  sixteenth  or  even  seventeenth 
centurj;^  jet  one  is  said  to  have  existed  at  the  Louvre,  of 
much  older  construction.^  England,  I  believe,  had  nothing 
of  the  ornamental  kind,  unless  it  were  some  trees  regularly 
disposed  in  the  orchard  of  a  monastery.  Even  the  common 
horticultural  art  for  culinary  purposes,  though  not  entirely 
negl?cted,  since  the  produce  of  gardens  is  sometimes  men- 
tioned in  ancient  deeds,  had  not  been  cultivated  with  much 
attention.*  The  esculent  vegetables  now  most  in  use  were 
introduced  in  the  reign  of  Elizabeth,  and  some  sorts  a  great 
deal  later. 

I  should  leave  this  slight  survey  of  economical  history 
Changes  in  ®^^^^  more  imperfect,  were  I  to  make  no  obser- 
Taiue  of  vation  on  the  relative  values  of  money.  Without 
^^'°^'  something  like  precision  in  our  notions  upon  this 
subject,  every  statistical  inquiry  becomes  a  source  of  con- 
fusion and  error.  But  considerable  difficulties  attend  the 
discussion.  These  arise  principally  from  two  causes;  the 
inaccuracy  or  partial  representations  of  historical  writers,  on 
whom  we  are  accustomed  too  implicitly  to  rely,  and  the 
change  of  manners,  which  renders  a  certain  command  over 
articles  of  purchase  less  adequate  to  our  wants  than  it  was 
in  former  ages. 

The  first  of  these  difficulties  is  capable  of  being  removed  by 
a  circumspect  use  of  authorities*  When -this  part  of  statistical 
history  began  to  excite  attention,  which  was  hardly  perhaps 
before  the  publication  of  Bishop  Fleetwood's  Chronicon  Pre- 
ciosum,  so  few  authentic  documents  had  been  published  with 
respect  to  prices,  that  inquirers  were  glad  to  have  recourse 
to  historians,  even  when  not  contemporary,  for  such  facts  as 
they  had  thought  fit  to  record.  But  these  historians  were 
sometimes  too  distant  from  the  times  concerning  which  they 
wrote,  and  too  careless  in  their  general  character,  to  merit 
much  regard ;  and  even  when  contemporary,  were  often  cred- 
ulous, remote  from  the  concerns  of  the  world,  and,  at  the  best, 
more  apt  to  register  some  extraordinary  phenomenon  of 
scarcity  or  cheapness,  than  the  average  rate  of  pecuniary 
dealings.  The  one  ought,  in  my  opinion,  to  be  absolutely 
rejected  as  testimonies,  the  other  to  be  sparingly  and  diffi- 
dently admitted.^     For  it  is  no  longer  necessary  to  lean  upon 

1  t.  m.  p.  146;  t.  zxxi.  p.  2S8.  *  Eden'i  State  of  Poor,  toI.  i.  p.  51. 

•  IH '    Uara,  TnUtA  de  U  Folloe,  t.  lU.       *  Sir  V.  Bden,  whose  table  of  prices, 
p  9^  Ihoosh  capable  of  some  improremc nt,  Is 


Stats  of  Socibtt.      VALUE  OF  MONEY.  555 

such  uncertain  witnesaea.  During  the  last  century  a  very 
laudable  industry  has  been  shown  by  antiquaries  in  the  puV 
lication  of  accountrbooks  belonging  to  private  persons,  regis- 
ters of  expenses  in  convents,  returns  of  markets,  valuations 
of  goods,  tavern-bills,  and  in  short  every  document,  however 
trifling  in  itself  by  which  this  important  subject  can  be  il- 
lustrated. A  sufficient  number  of  ouch  authorities,  proving 
the  ordinary  tenor  of  prices  rather  than  any  remarkable  de- 
viations from  it,  are  the  true  basis  of  a  tidble,  by  which  all 
changes  in  the  value  of  money  should  be  measured.  I  have 
little  doubt  but  that  such  a  table  might  be  constructed  from 
the  data  we  possess  with  tolerable  exactness,  sufficient  at 
least  to  superaede  one  often  quoted  by  political  economists, 
but  which  appears  to  be  founded  upon  very  superficial  and 
erroneous  inquiries.^ 

It  is  by  no  means  required  that  I  should  here  offer  such 
a  table  of  values,  which,  as  to  every  country  except  Eng- 
land, I  have  no  means  of  constructing,  and  which,  even  as  to 
England,  would  be  subject  to  many  difficulties.^    But  a  reader 

perhaiM  the  best    thst  bu  appeared,  and  partly  to  blunders  of  tranwrlben. 

wooldf  I  think,  have  aeted  better,  by  Annate  of  Gommeroe,  rol.  I.  p.  tiS. 

omitting  all  rewrenoee  to  mere  hlsto-  >  The  table  of  comparatiTe  Talues  by 

lians,  and  relylog  entirely  on  regnlar  Sir  George  ShackbnrBh(  Phlloeopb.Tran* 

doeumente.    I  do  not  however  include  aaet.  Ibr  1796,  p.  196)  li  etmngely  Ineom- 

loeal  historiee,  tnch  aa  the  Anoals  of  patible  with  eveir  result  to  which  my 

Ihinataple,  when  they  record  the  market-  own  reading  has  led  mel*.    It  Is  the  hasty 

prkee  of  their  neighborhood,  in  rwpecfe  attemptof  a  man  accustomed  to  different 

of  which  the  book  last  mentioned  is  al-  etudies ;  and  one  can  neither  pardon  the 

most  in  the  nature  of  a  register.    Dr.  presumption  of  obtruding  such  a  sloven- 

Whltekor  remarks    the  inexactness  of  ly  performance  on  a  subject  where  the 

Btowe,  who  says  that  wheat  sold  in  Lon-  utmost  diligence  was  required,  nor  the 

don,  A.P.  1614,  at  30s.  a  quarter:  where-  effentation  with  which  he  apologises  ft>r 


as  it  appears  to  have  been  at  9s.  In  Lan-  "desoending  fkom  the  dignity  of  philos- 

eeshire,  where  it  was  always  dearer  than  ophy." 

In  the  metropolis.    Hist,  of  Whalley,  p.  >  M .  OuArard,  editor  of  ^  Paris  sous 

07.    It  is  an  odd  mistake,  into  which  Sir  Philippe    le    Bel,"    in    the    Docnmens 

f .  Bden  has  flUlen,  wheo  he  asserts  and  InMits  (1841,  p.  S66),  after  a  compari- 

argues  on  the  supposition,  that  the  price  son  of  the  prices  of  com,  oonelndee  that 

of  wheat  fluctuated  In  the  thirteenth  the  Talue  of  rilrer  has  declined  since 

eentucy,  from  1j.  to  6^.8*.  a  quarter,  Tol.  that  reign,  in  the  ratio  of  ilre  to  one. 

i.  p.  18.    Certainly,  if  any  chronicler  had  This  is  much  less  than  we  allow  in  Bng> 

mentioned  such  a  price  as  the  latter,  land.    M.  Leber  (H£m.  de  TAcad.  dea 

equivalent  to  IfiOf.  at  present,  we  should  Inacrlpt.  NooTelle  Sirie,  xIt.  280)calcu- 

elther  suppose  that  his  text  was  corrupt,  lates  the  power  of  silrer  under  Charle- 

or  ngeot  It  aa  an  absurd  exaggeration,  magna,  compared  with  the  present  day. 

But,  in  Ibct,  the  author  has,  through  to  hare  been  aa  nearly  elcTen  to  one.    It 

baste,  mistaken  6s.  Bd.  for  6/.  8j.,  aa  will  fell  afterwarda  to  eight,  and  eontinned  to 

appear  by  referring  to  hia  own  table  of  alok  during  the  middle  ages;  the  aTerage 

pricee,  where  it  is  set  down  rightly.    II  of  prices  during  the  fourteenth  and  tlf- 

M  ofaaerred  by  Mr.  Maepheraon,  a  Teiy  teenth  centuries,  taking   com  as    the 

eompetebt  Judge,  that  the  arithmetical  standard,  was  six  to  one;  the  eompHriiion 

•tatementa  of  the  best  historians  of  the  Is  of  course  only  for  France.    This  is  an 

middle  ages  are  seldom  correct,  owing  interesting   paper,  and  contsina  tablal 

partly  to  theii  ne^eet  of  examination,  worthy  of  being  consulted. 


556  CHANGES  m  THE  Chap.  IX.  Past  IL 

unaccustomed  to  these  investigations  ought  to  have  some  as- 
sistance in  comparing  the  prices  of  ancient  times  with  those 
of  his  own.  I  will  therefore,  without  attempting  to  ascend 
very  high,  for  we  have  really  no  sufficient  data  as  to  the'pe- 
riod  immediately  subsequent  to  the  Conquest,  much  less  that 
which  preceded,  endeavor  at  a  sort  of  approximation  for  the 
thirteenth  and  fifteenth  centuries.  In  the  reigns  of  Henry  III 
and  Edward  L,  previously  to  the  first  debasement  of  the  coin 
by  the  latter  in  1301,  the  ordinary  price  of  a  quarter  of  wheat 
appears  to  have  been  about  four  shillings,  and  that  of  barley 
and  oats  in  proportion.  A  sheep  was  rather  sold  high  at  a 
shilling,  an  ox  might  be  reckoned  at  ten  or  twelve.^  The 
value  of  cattle  is,  of  course,  dependent  upon  their  breed  and 
condition,  and  we  have  unluckily  no  early  account  of  butch- 
er's meat ;  but  we  can  hardly  take  a  less  multiple  than  about 
thirty  for  animal  food  and  eighteen  or  twenty  for  com,  in  or- 
der to  bring  the  prices  of  the  thirteenth  century  to  a  level 
with  those  of  the  present  day.'  Combining  the  two,  and  set- 
ting the  comparative  deamess  of  cloth  against  the  cheapness 
of  fuel  and  many  other  articles,  we  may  perhaps  consider 
any  given  sum  under  Henry  III.  and  Edward  I.  as  equiva- 
lent in  general  command  over  commodities  to  about  twenty- 
four  or  twenty-five  times  their  nominal  value  at  present 
Under  Henry  YI,  the  coin  had  lost  one  third  of  its  weight 
in  silver,  which  caused  a  proportional  increase  of  money 
prices;*  but,  so  far  as  I  can  perceive,  there  had  been  no 


1  Blomefleld^B  History  of  Norfolk,  and  merclal  fi>r  the  application  of  tbli 

Sir  J.  Cullom's  of  H&wsted.  famish  oantile   principle.     Bnt   tiie  eztenriTt 

teveral  pieces  even  at  this  early  period,  dealings  of  the  Jewish    and  Lombard 

Most  of  them  are  collected  by  Sir  F.  usurers,  who  had  many  debtors  in  al* 

Bden.     Vleta   reckons  is.  the  average  most  all  parts  of  the  country,  would  of 

price  of  a  quarter  of  wheat  in  his  time,  itself  introduce  a  knowledge,  toat  silTsr, 

L  U.  c.  84.    This  writer  has  a  digression  not  its  stamp,  was  the  measure  of  Taloe. 

on  agriculture,  whence  howerer  less  is  I  haTe  mentioned  in  another  place  (vol.  1. 

to  be  collected  than  we  should  expect.  p.  211)  the  heavy  discontents  excited  by 

9  The  fluctuations  of  price  have  un-  this  debasement  of  the  coin  in  France ; 

Ibrtunately  been  so  great  of  late  years,  but  the  more  gradual  enhancement  of 

that  it  is  almost  as  dimcult  to  determine  nominal  prices  in  England  seems  to  have 

one  side  of  our  equation  as  the  other,  prevented  any  strong  manifestations  of 

Any  reader ,  however,  has  it  in  his  power  a  eimilar  spirit  at  the  successive  redne- 

to  correct  my  proportions,  and  adopt  a  tions  In  value  which  the  coin  experienced 

greater  or  less  multiple,  according  to  his  from  the  year  IdOO.     The  connection 

own  estimate  of  current  prices,  or  the  however  between  commodities  and  silv«c 

ehanges  that  mav  teke  place  from  the  was  well  understood.    Wykes,  an  annal- 

4ime  when  this  is'writton  [1816].  1st  of  Bdward  I.'s  age,  tells  us,  that  the 

*  I  have  sometimes  been  surprised  at  Jews  cUpped  our  coin,  till  It  retained 

the  (hciUty  with  which  prices  adjusted  hardly  half  Ite  due  weight,  theelfcet  of 

themselves  to  the  quantity  of  silver  con-  which  was  a  general  enhancement  of 

tained  in  the  current  otrin,  in  ages  which  prices,  and  decline   ot  foreign   trade : 

appear  too  Ignorant  and  too  little  oom-  llereatorestrantmaiinioam  meroimonHt 


STirx  OP  SociXTT.       VALUE  OF  HOKET. 


557 


diminution  in  the  value  of  that  metal.  We  have  not  much 
information  as  to  the  fertility  of  the  mines  which  supplied 
Europe  during  the  middle  ages ;  but  it  is  probable  that  the 
drain  of  silver  towards  the  East,  joined  to  the  ostentatious 
splendor  of  courts,  might  fullj  absorb  the  usual  pnxluce. 
By  the  statute  15  H.  YL,  c  2,  the  price  up  to  which  wheat 
might  be  exported  is  fixed  at  6«.  ScLy  a  point  no  doubt 
above  the  average ;  and  the  private  documents  of  that  period, 
which  are  sufficiently  numerous,  lead  to  a  similar  result.' 
Sixteen  will  be  a  proper  multiple  when  we  would  bring  the 
general  value  of  money  in  this  reign  to  our  present  standard.' 
[1816.] 

But  after  ascertaining  the  proportional  values  of  money  at 
different  periods  by  a  comparison  of  the  prices  in  several  of 
the  chief  articles  of  expenditure,  which  is  the  only  fair  pro- 
cess, we  shall  sometimes  be  surprised  at  incidental  facts  of 
this  class  which  seem  irreducible  to  any  rule.  These  diffi- 
culties  arise  not  so  much  from  the  relative  scarcity  of  partic- 
ular commodities,  which  it  is  for  the  most  part  easy  to  ex- 
plain, as  from  the  change  in  manners  and  in  the  usual  mode 


fills  icgnam  Anglto  mlniu  tollto  fre- 
quentalMUit;  nmoon  qaod  omoimodA 
▼eniiUum  geneim  iocompambiliter  solito 
Aierunt  earior*.  2  Oatof  XV.  Script,  p. 
107.  Another  chronicler  of  the  aame 
age  oomplalo:!  of  bed  foreign  money,  aU 
loyed  with  copper ;  nee  erat  in  qoatnor 
aut  qulnqne  ex  ila  pondoe  nnlns  denarii 

argeotil Bratqoe   peesimum 

necttlum  pro  tali  moEiet&,  et  6ebant 
eommutationee  plurlmn  in  emptlone  et 
tenditione  renim.  Bdward,  at  the  his- 
torian Informs  ns,  bought  in  this  bad 
money  at  a  rate  below  its  value,  in  or- 
der to  make  a  profit :  and  fined  some  per- 
sons  who  interfered  with  his  traflto.  W. 
Hemingford,  ad  ann.  1299. 

1  These  will  chiefly  be  found  In  Sir  V. 
Bden*fl  table  of  prices ,  the  folloiring  may 
be  added  firom  the  aooount-book  of  a 
eouTent  between  Ulfi  and  1425.  Wheat 
Tarled  trom  4s.  to  Off.  —  barley  from  8s. 
2d.  to  4s.  lOd  —  oats  from  Is.  Sd.  to  2f . 
4d. — oxen  from  12s.  to  16s. —  sheep 
tnm  Is.  2(1  to  Is.  4<l. -abutter  Id.  per 
lb.  —  ^ggs  twenty >fiTe  for  I'i. — cheese 
M.  per  lb.  Lansdowne  MSS.,  toI.  I. 
No.  28  and  29.  These  prices  do  not 
always  sgree  with  thoee  given  in  other 
documents  of  equal  authority  In  the 
mxuB  period ;  but  the  value  of  provisions 
varied  In  diflinent  counties,  and  still 
mors  so  In  dUbcunl  seasons  of  the  year. 


*  I  insert  the  following  eomparativa 
table  of  Bagllsh  money  from  Sir  Fred- 
erick Kden.  The  unit,  or  present  value 
refers  of  course  to  that  of  the  shilling 
before  the  last  coinage,  which  reduced  it. 


Value  of 

pound 

Propor- 

sterling, 

tton. 

present 

money. 

£    s.    d. 

Oonqnest, 

1006 

2   18  li 

2.906 

28  8.1. 

1800 

2   17  6 

2.871 

18K.  m 

1844 

2   12   5i 

2.622 

20  B.  III. 

1846 

2   11   8 

2.688 

27  B.  III. 

1858 

2     6   6 

2825 

18U.  IV. 

1412 

1   18   9 

1.087 

4  B.  IV. 

1464 

1    11   0 

1.66 

18  H.  VIII 

.1627 

17   6} 

1.878 

84  II.  VIII 

.1548 

18  8) 

1.168 

86  11.  VIII 

.1546 

0  18  11 

0.696 

87  11.  VIIL  1546 

0     9    8 

0.406 

6B.  VI. 

1561 

0     4    7 

0.282 

6  B.  VI. 

1662 

10    6} 

1.028 

IMaiy 

1668 

10    6) 

1.024 

2B1IZ. 

1600 

10    8 

1.088 

48BUX. 

1601 

10   0 

1.000 

558  VALUE  OF  MONET.       Chap.  IX.  Part  II 

of  living.  We  hare  reached  in  this  age  so  high  a  pitch  of 
luxury  that  we  can  hardly  believe  or  comprehend  the  frugal- 
ity of  ancient  times ;  and  have  in  general  formed  mistaken 
notions  as  to  the  habits  of  expenditure  which  then  prevailed. 
Accustomed  to  judge  of  feudal  and  chivalrous  ages  by  worka 
of  fiction,  or  by  historians  who  embellished  their  writings  with 
accounts  of  occasional  festivals  and  tournaments,  and  some- 
times inattentive  enough  to  transfer  the  manners  of  the  sev- 
enteenth to  the  fourteenth  century,  we  are  not  at  all  aware  of 
the  usual  simplicity  with  which  the  gentry  lived  under  £d- 
waixl  I.  or  even  Henry  VL  They  drank  little  wine ;  they  had 
no  foreign  luxuries ;  they  rarely  or  never  kept  male  servants 
except  for  husbandry ;  their  horses,  as  we  may  guess  by  the 
price,  were  indiiferent ;  they  seldom  travelled  beyond  their 
county.  And  even  their  hospitality  must  have  been  greatly 
limited,  if  the  value  of  manors  were  really  no  greater  than 
we  find  it  in  many  surveys.  Twenty-four  seem^4  a  sufficient 
multiple  when  we  would  raise  a  sum  mentioned  by  a  writer 
under  Edward  I.  to  the  same  real  value  expressed  in  our 
present  money,  but  an  income  of  lOL  or  20^  was  reckoned  a 
competent  estate  for  a  gentleman ;  at  least  the  lord  of  a  sin- 
gle manor  would  seldom  have  enjoyed  more.  A  knight 
who  possessed  150Z.  per  annum  passed  for  extremely  rich.' 
Yet  this  was  not  equal  in  command  over  commodities  to  40002. 
at  present  But  this  income  was  comparatively  free  from 
taxation,  and  its  expenditure  lightened  by  the  services  of  his 
villeins.  Such  a  person,  however,  must  have  been  among 
the  most  opulent  of  country  gentlemen.  Sir  John  Fortes- 
cue  speaks  of  ^ve  pounds  a  year  as  '^  a  fair  living  for  a  yeo- 
man," a  class  of  whom  he  is  not  at  all  inclined  to  diminish 
the  importance.*  So,  when  Sir  William  Drury,  one  of  the 
richest  men  in  Suffolk,  bequeaths  in  1493  fifty  marks  to  each 
of  his  daughter's,  we  must  not  imagine  that  this  was  of  greater 
value  than  four  or  ^ve  hundred  pounds  at  this  day,  but  re- 
mark the  family  pride  and  want  of  ready  money  which  in- 
duced country  gentlemen  to  leave  their  younger  children  in 
poverty.*  Or,  if  we  read  that  the  expense  of  a  scholar  at  the 
university  in  1514  was  but  five  pounds  annually,  we  should 
err  in  supposing  that  he  had  the  liberal  accommodation  which 

1  lfa«phenon*8  Annalfl,  p.  424,  froa       *  IMffnrenoe  of  limited  and  Abtchili 
lUtt.  Paris  Monarchy,  p.  188. 

•  mat.  of  Hawsted,  p.  14L 


Btatb  of  Socistt.      pay  OF  LABOBERS.  559 

the  present  age  deems  indispensable,  but  consider  how  much 
could  be  afforded  for  about  sixty  pounds,  which  will  be  not 
far  from  the  proportion.  And  what  would  a  modem  lawyer 
say  to  the  following  entry  in  the  churchwarden's  accounts  of 
St.  Margaret,  Westminster,  for  1476 :  ^  Also  paid  to  Roger 
Fylpott,  learned  in  the  law,  for  his  counsel  giving,  Ss,  ScL, 
with  fourpence  for  his  dinner "f^  Though  fiS^en  times  the 
fee  might  not  seem  altogether  inadequate  at  present,  five 
shillings  would  hardly  furnish  the  table  of  a  barrister,  even  if 
the  fastidiousness  of  our  manners  would  admit  of  his  accept- 
ing such  a  dole.  But  this  fastidiousness,  which  considers 
certain  kinds  of  remuneration  degrading  to  a  man  of  liberal 
condition,  did  not  prevail  in  those  simple  ages.  It  would 
seem  rather  strange  that  a  young  lady  should  learn  needle- 
work and  good  breeding  in  a  family  of  superior  rank,  paying 
for  her  board ;  yet  such  was  the  laudable  custom  of  the 
fifteenth  and  even  sixteenth  centuries,  as  we  perceive  by  the 
Paston  Letters,  and  even  later  authorities.' 

There  is  one  very  unpleasing  remark  which  every  one 
who  attends  to  the  subject  of  prices  will  be  in- 
duced  to  make,  that  the  laboring  classes,  espe-  better  paid 
cially  tho^  engaged  in  agriculture,  were  better  ******  J* 
provided  with  the  means  of  subsistence  in  the  ^ 
reign  of  Edward  III.  or  of  Henry  VI.  than  they  are  at  pres- 
ent.    In  the  fourteenth  century  Sir  John  CuUum  observes  a 
harvest  man  had  fourpence  a  day,  which  enabled  him  in  a 
week  to  buy  a  comb  of  wheat ;  but  to  buy  a  comb  of  wheat 
a  man  must  now  Q784)  work  ten  or  twelve  days.*     So,  un- 
der Henry  VL,  if  meat  was  at  a  farthing  and  a  half  the 
pound,  which  I  suppose  was  about  the  truth,  a  laborer  earn- 
ing threepence  a  day,  or  eighteen-pence  in  the  week,  could 
buy  a  bushel  of  wheat  at  six  shillings  the  quarter,  and  twen- 
ty-four pounds  of  meat  for  his  family.     A  laborer  at  present, 
earning  twelve  shillings  a  week,  can  only  buy  half  a  bushel 
of  wheat  at  eighty  shillings  the  quarter,  and  twelve  pounds 

'  >  Mleholls'f  niaitimtlons,  p.  2.     Oim  qoMtfon  to  the  euMf  that  tfato  wai  one  or 

ftet  of  thlf  cImi  did,  I  own,  wUkggn  me.  manr  letten  addratsed  to  the  adheientt 

The  gnat  eari  of  Warwick  writes  toa  pri-  of  Wanriek,  hi  order  to  raiae  by  their 

v»te  centlemanf  Sir  Thomas  Tudeoham,  oontribatiooa  a  eonsidovable  aam.    It  to 

begging  the  loan  ot  ten  or  twenty  ponoda  enriona,  in  this  light,  aa  an  UloatraHoa 

to  make  np  a  anm  he  had  to  pay.    Pas-  of  manners 

ton  Letters,  toI.  1.  p.  84.    What  way  t  paston  Letters,  t61.  i.  p.  224;  Gnl 

ahall  we  make  thto  commensurate  to  the  lnm*s  Hawsted,  p.  i82. 

present  Talae  of  money  ?     But  an  in-  *  Htot.  of  Hawsted,  p.  288. 
tenlons  fUrad  soggasted,  what  I  do  not 


560 


PAY  OF  LABORERS.       Chap.  n.  Pakt  fl. 


of  meat  at  seven-pence.*  Several  acts  of  parliament  regu- 
late the  wages  that  might  be  paid  to  laborers  of  different 
kinds.  Thus  the  statute  of  laborers  in  1350  fixed  the  wages 
of  reapers  during  harvest  at  threepence  a  day  without  diet, 
equal  to  five  shillings  at  present ;  that  of  23  H.  VL,  c  1 2, 
in  1444,  fixed  the  reapers'  wages  at  five-pence  and  those  of 
common  workmen  in  building  at  3id^  equal  to  65.  SeL  and 
4«.  8rf. ;  that  of  11  H.  VII.,  c.  22,  in  1496,  leaves  the  wages 
of  laborers  in  harvest  as  before,  but  rather  increases  those  of 
ordinary  workmen.  The  yearly  wages  of  a  chief  hind  or 
shepherd  by  the  act  of  1444  wern  IZ.  4«.,  equivalent  to  about 
20/.,  those  of  a  common  servant  in  husbandry  ISs.  4d^  with 
meat  and  drink ;  they  were  somewhat  augmented  by  the  stat- 
ute of  1496.^  Yet,  although  these  wages  are  regulated  as  a 
maximum  by  acts  of  parliament,  which  may  naturally  be  sup- 
posed to  have  had  a  view  rather  towards  diminishing  than 
enhancing  tlie  current  rate,  I  am  not  fully  convinced  that 
they  were  not  rather  beyond  it ;  private  accounts  at  least  do 
not  always  correspond  with  these  statutable  prices.*  And  it 
is  necessary  to  remember  that  the  uncertainty  of  employ- 
ment, natural  to  so  imperfect  a  state  of  husbandry,  must  have 
diminished  the   laborers'  means  of  subsistence.    'Extreme 


1  Mr.  Malthas  obserrefl  on  this,  that  I 
**haTe  overlooked  the  distlnctloa  be- 
tween the  reiffofl  of  Edward  III.  and 
Henry  VIII.  (perhaps  a  misprint  for  VI.), 
with  regard  to  the  state  of  the  laboring 
claii9e9.  The  two  periods  appear  to  have 
been  e<wentially  different  in  tills  respect.*' 
Principles  of  Political  Economy,  p.  293, 
1st  edit.  He  conceives  that  the  earnings 
of  the  laborer  in  com  were  unnsually 
low  in  the  latter  years  of  Edward  III., 
which  appears  to  have  been  effected  by 
the  statute  of  laborers  (25  E.  III.),  im- 
ntediHtely  after  the  great  pestilence  of 
1850,  though  that  mortality  ought,  in 
the  natural  conixe  of  things,  to  have 
considerably  riiised  tlie  real  wages  of 
labor.  The  result  of  his  researches  is 
that,  in  the  reign  of  Edward  III.,  the 
laborer  could  not  purchase  half  a  peck 
of  wheat  with  a  day^s  labor;  fV>om  that 
of  Richard  II.  to  the  middle  of  that  of 
Henry  VI.,  he  could  purchase  nearly  a 
peck  ;  and  from  thence  to  the  end  of  the 
century,  nearly  two  pecks.  At  the  time 
when  tlie  pawiage  in  the  text  was  written 
[1816],  the  laborer  could  rarely  have  pur* 
chai^eu  more  than  a  pock  with  a  day's 
labor,  and  firquently  a  good  deal  less. 
In  some  parts  of  England  this  is  the  case 
at  present  L18461 ;  but  In  many  counties 


the  real  wages  of  agrloaltnral  laborers 
are  conslden&bly  higher  than  at  that 
time,  though  not  by  any  means  so  high 
as,  according  to  Malthus  himself,  they 
were  in  the  latter  half  of  the  fifteenth 
century.  The  excessive  fluctuations  in 
the  price  of  com,  even  taking  avenges 
of  a  long  term  -of  years,  which  we  find 
through  the  middle  a^,  and  indeed 
much  later,  acconnt  more  than  any  oth- 
er assignable  cause  for  those  in  real 
wages  of  labor,  which  do  not  regulate 
themselves  very  promptly  by  that  stand- 
ard, especially  when  coercive  meaanres 
are  adopted  to  restndn  them. 

>  See  these  rates  more  at  length  In 
Eden's  State  of  the  Poor.  vol.  i.  p  32, 
&c. 

>  In  the  Archnologia,  vol.  xviii  p. 
281,  we  have  a  bailifTs  acconnt  ot  ex- 
penses in  1387,  where  it  appears  that  a 
ploughman  had  sixpence  a  week,  and  fiv* 
shillings  a  year,  with  an  allowance  of 
diet;  which  seems  to  have  been  onlj 
pottage.  These  wages  are  certainly  not 
more  than  fifteen  shillings  a  week  in 
pnwent  value  (1816];  which,  though 
materially  abo^e  the  average  rate  of  agrf* 
cultural  labor,  is  less  so  than  some  of  tba 
statutes  would  lead  ns  to  expect.  Other 
fiMto  may  be  found  of  a  dmilar  naturt. 


STAra  OF  Socncrr.    DIPROVEMENT  JS^  CHABACTEB.  561 

dearth,  not  more  owing  to  adverse  seasons  than  to  improvi- 
dent consumption,  was  frequently  endured.*  But  after  every 
allowance  of  this  kind  I  should  find  it  ditHcult  to  resist  the 
conclusion  that,  however  the  lahorer  has  derived  benefit  from 
the  cheapness  of  manufactured  commodities  and  from  many 
inventions  of  common  utility,  he  is  much  inferior  in  ability 
to  support  a  family  to  his  ancestors  three  or  four  centuries 
ago.  I  know  not  why  some  have  supposed  that  meat  was  a 
luxury  seldom  obtained  by  the  laborer.  Doubtless  he  could 
not  have  procured  as  much  as  he  pleased.  But,  from  the 
greater  cheapness  of  cattle,  as  compared  with  com,  it  seems 
to  follow  that  a  more  considerable  portion  of  his  ordinary 
diet  consisted  of  animal  food  than  at  present  It  was  re- 
marked by  Sir  John  Fortescue  that  the  English  lived  far 
more  upon  animal  diet  than  their  rivals  the  French ;  and  it 
was  natural  to  ascribe  their  superior  strength  and  courage  to 
this  cause.'  I  should  feel  much  satisfaction  in  being  con- 
vinced that  no  deterioration  in  the  state  of  the  laboring  class- 
es has  really /taken  place ;  yet  it  cannot,  I  think,  appear  ex- 
traordinary to  those  who  reflect,^  that  the  whole  population 
of  England  in  the  year  1377  did  not  much  exceed  2,300,000 
souls,  about  one  fifth  of  the  results  upon  the  last  enumeration, 
an  increase  with  which  that  of  the  fruits  of  the  earth  cannot 
be  supposed  to  have  kept  an  even  pace.' 

The  second  head  to  which  I  referred,  the  improvements  of 
European  society  in  the  latter  period  of  the  mid-  impror*- 
dle  ages,  comprehends  several  changes,  not  always  °**^*J1^ 
connected  with  each  other,  which  contributed  to  Mter  of 
inspire  a  more  elevated  tone  of  moral  sentiment,  *"">p*- 
or  at  least  to  restrain  the  commission  of  crimes.      But  the 
general  effect  of  these  upon  the  human  character  is  neither 
80  distinctly  to  be  traced,  nor  can  it  be  arranged  with  so  much 
attention  to  chronology,  as  the  progress  of  commercial  wetdth 

>  8m  chat  singTiUir  bookfPiers  Plough-  beliere  that  they  were  a  wt  of  beggarly 

man'!  VUlon,  p.  146  ( Whitaker'a  edition),  slaTwi. 

fcr  the  different  modes  of  IWing  before  *  Besides  the  books  to  which  I  haTe 

and  alter  harreet.    The  passage  may  be  occasionally    referred.  Mr.  Ellis's  Speci 

tauad  in  KlUs's  Specimens,  toI.  i.  p.  161.  mens  of  English  Poetry,  toI.  i.  chap.  13 

'  Fortescue's  Difference  between  Abe.  contain  a  short  digression,  but  from  well 

and  Lim.  Monarohy,  p.  19.  The  paas^es  selected  materials,  on  the  private  life  of 

in  Fortescue.  wliich  bwron  his  fkyorite  the  English  in  the  middling  and  lower 

theme,  the  liberty  and  eonsequent  liap-  ranks  about  the  fifteenth  eentury.    [I 

pin«ss  of  the  Bnsiish,  are  rery  impor-  leave  the  foregoing  pages  with  little  alter- 

tant,  and    triumphanUy  refkite    those  ation,  but  •they  may  probably  contain 

roperflcial  writera  who  would  make  us  expressions    which   I  would    not   now 

adopt.    I860.] 

VOL.  II. -^M.  86 


I 


562       MORAL  CHABA.CTER  OF  EUROPE.     Chap.  IX.  Pabt  IL 

or  of  the  arts  that  depend  upon  it  We  cannot  from  any  past 
experience  indulge  the  pleasing  vision  of  a  constant  and  par- 
allef  relation  between  the  moral  and  intellectual  energies,  the 
virtues  and  the  civilization  of  mankind.  Nor  is  any  problem 
connected  with  philosophical  history  more  difficult  than  to 
compare  the  relative  characters  of  different  generations,  es- 
pecially if  we  include  a  'large  geographical  8ur£eu;e  in  our 
estimate.  Refinement  has  its  evils  as  well  as  barbarism ;  the 
virtues  that  elevate  a  nation  in  one  century  pass  in  the  next 
to  a  different  region  ;  vice  changes  its  form  without  losing  its 
essence ;  the  marked  features  of  individual  character  stand 
out  in  relief  from  the  surface  of  history,  and  mislead  our 
judgment  as  to  the  general  course  of  manners;  while  political 
revolutions  and  a  bad  constitution  of  government  may  always 
undermine  or  subvert  the  improvements  to  which  more  favor- 
able circumstances  have  contributed.  In  comparing,  there- 
fore, the  fifteenth  with  the  twelfth  century,  no  one  would 
deny  the  vast  increase  of  navigation  and  manufactures,  the 
superior  refinement  of  manners,  the  greater  diflttion  of  liter- 
ature. But  should  I  assert  that  man  had  raised  himself  in 
the  latter  period  above  the  moral  degradation  of  a  more  bar- 
barous age,  I  might  be  met  by  the  question  whether  history 
bears  witness  to  any  greater  excesses  of  rapine  and  inhuman- 
ity than  in  the  wars  of  France  and  England  under  Cliarles 
YII.,  or  whether  the  rough  patriotism  and  fervid  passions  of 
the  Lombards  in  the  twelfth  century  were  not  better  than  the 
systematic  treachery  of  their  servile  descendants  three  hun- 
dred years  afterwards.  The  proposition  must  therefore  be 
greatly  limited  ;  yet  we  can  scarcely  hesitate  to  admit,  upon 
a  comprehensive  view,  that  there  were  several  changes  dur- 
ing the  last  four  of  the  middle  ages,  which  must  naturaUy 
have  tended  to  produce,  and  some  of  which  did  unequivocal- 
ly produce,  a  meliorating  effect,  within  the  sphere  of  their 
operation,  upon  the  moral  character  of  society. 

The  fii^t  and  perhaps  the  most  important  of  these,  was  the 
Btovfttkn  of  g^ual  elevation  of  those  whom  unjust  systems  of 
the  lowur  polity  had  long  depressed ;  of  the  people  itself  as 
'^'^'  opposed  to  the  small  number  of  rich  and  noble,  by 

the  abolition  or  desuetude  of  domestic  and  predial  servitude, 
and  by  the  privileges  extended  to  corporate  towns.  The  con- 
dition of  slavery  is  indeed  perfectly  consistent  with  the  ob- 
servance of  moral  obligations;  yet  reason  and  experience 


State  of  Socibtt.  POLICE.  568 

will  justify  the  sentence  of  Homer,  that  he  who  loses  his  lib- 
erty loses  half  his  virtue.  Those  who  have  acquired,  or  maj 
hope  to  acquire,  property  of  their  own,  are  most  likely  to  re- 
S[)ect  that  of  others ;  those  whom  law  protects  as  a  parent 
are  most  willing  to  yield  her  a  filial  obedience ;  those  who 
have  much  to  gain  by  the  good-will  of  their  fellow-citizens 
are  most  interested  in  the  preservation  of  an  honorable  char- 
acter. I  have  been  led,  in  different  parts  of  tlie  present  work, 
to  consider  these  great  revolutions  in  the  order  of  society  un« 
der  other  relations  than  that  of  their  moral  efficacy;  and  it  will 
therefore  be  unnecessary  to  dwell  upon  them ;  especially  as 
this  efficacy  is  indeterminate,  though  I  think  unquestionable, 
and  rather  to  be  inferred  from  general  reflections  than  capa- 
ble of  much  illustration  by  specific  facts. 

We  may  reckon  in  the  next  place  among  the  causes  of 
moral  improvement,  a  more  regular  administration  ^^ 
of  justice  according  to  fixed  laws,  and  a  more  effec- 
tual police.    Whether  the  courts  of  judicature  were  guided 
by  the  feudal  customs  or  the  Roman  law,  it  was  necessary  for 
them  to  resolve  litigated  questions  with  precision  and  uniform- 
ity.    Hence  a  more  distinct  theory  of  justice  and  good  faith 
was  gradually  apprehended;  and  the  moral  sentiments  of 
mankind  were  corrected,  as  on  such  subjects  they  oden  re- 
quire to  be,  by  dearer  and  better  grounded  inferences  of 
reasoning.    Again,  though  it  cannot  be  said  that  lawless 
rapine  was  perfectly  restrained  even  at  the  end  of  the  fif- 
teenth century,  a  sensible  amendment  had  been  everywhere 
experienced.     Private  warfare,  the  licensed  robbery  of  feu- 
dal manners,  had  been  subjected  to  so  many  mortifications  by 
the  kings  of  France,  and  especially  by  St.  Louis,  that  it  can 
hardly  be  traced  beyond  the  fourteenth  century.   In  Grermany 
and  Spain  it  lasted  longer ;  but  the  various  associations  for 
maintaining  tranquillity  in  the  former  country  had  considera- 
bly diminished  its  violence  before  the  great  national  measure 
of  public  peace  adopted  under  Maximilian.*   Acts  of  outrage 

1  Baddei  the  0«nnaa  blgtorlant,  Mt  war  ftom  robbery  except  by  Its  aoale; 

Dq  Cange,  t.  Qanerbtam,  ft>r  the  eon-  and  where  this  wu  ao  oonelderably  re- 

fbderactee  in  the  empire,  end  Qennanda-  dooed,  the  two  modee  of  iqJoTy  almoil 

turn  for  thoee  In  GesHle.    Theae  eppeer  eotnelde.    In  Anigon,  there  wu  a  die. 

lo  hate  been  merely  Toluntaiy  aaeoela-  tinet  Inctltation  for  the  maintenance  of 

tlons,  and  perliape  directed  as    mnoh  peace,  the  kinffdcnn  being  divided  lnt« 

towards  the  preTcntlon  of  robbery,  as  of  nnlons  or  Juntas,  with  a  chief  olBcer 

what  Is  strictly  called  private  war.    But  called  Sapn^unctarlos,  at  thslr  head. 

W*  vuuk  eaa  easily  distinguish  olbnsiTe  Da  Oaoge  ▼  Juneta. 


564  RELIGIOUS  SECTS.         Chap.  IX.  Past  H 

committed  by  powerful  men  became  less  frequent  aa  tbe  ex« 
ecutive  government  acquired  more  strength  to  chastise  them 
We  read  that  St.  Louis,  the  best  of  French  kings,  imposed  a 
fine  upon  the  lord  of  Vernon  for  permitting  a  merchant  tc 
be  robbed  in  his  territory  between  sunrise  and  sunset.  For 
by  the  customary  law,  though  in  general  ill  observed,  the  lord 
was  bound  to  keep  the  roads  free  from  depredators  in  the 
daytime,  in  consideration  of  the  toll  he  received  from  pas- 
sengers.* The  same  prince  was  with  diflSculty  prevented  ^m 
passing  a  capital  sentence  on  Enguerrand  de  Coucy,  a  baron 
of  France,  for  a  murder.'  Charles  the  Fair  actually  put  to 
death  a  nobleman  of  Languedoc  for  a  series  of  robberies, 
notwithstanding  the  intercession  of  the  provincial  nobility.* 
The  towns  established  a  police  of  their  own  for  internal  se- 
curity, and  rendered  themselves  formidable  to  neighboring 
plunderers.  Finally,  though  not  before  the  reign  of  Louia 
XL,  an  armed  force  was  established  for  the  preservation  of 
police.*  Various  means  were  adopted  in  Fngland  to  prevent 
robberies,  which  indeed  were  not  so  frequently  -perpetrated 
as  they  were  on  the  continent,  by  men  of  high  condition. 
None  of  these  perhaps  had  so  much  efficacy  as  the  frequent 
sessions  of  judges  under  commissions  of  gaol  delivery.  Bat 
the  spirit  of  this  country  has  never  brooked  that  coercive 
police  which  cannot  exist  without  breaking  in  upon  personal 
liberty  by  irksome  regulations,  and  discretionary  exercise  of 
power ;  the  sure  instrument  of  tyranny,  which  renders  civil 
privileges  at  once  nugatory  and  insecure,  and  by  which  we 
should  dearly  purchase  some  real  benefits  connected  with  its 
slavish  discipline. 

I  have  some  difiiculty  in  adverting  to  another  source  of 
Reiigioufl  moral  improvement  during  this  period,  the  growth 
■ect*'  of  religious  opinions  adverse  to  those  of  the  estab- 

lished church,  both  on  account  of  its  great  obscurity,  and 
because  many  of  .these  heresies  w^re  mixed  up  with  an 
excessive  fanaticism.     But  they  fixed  themselves  so  deeply 

1  Henanlt,  AbrtoA  Chronol.  k    Pan.  •  Velly,  t.  t.  p.  182,  wh«rt  thla  hxd^ 

1266.    The  institutionB  of  Louis  DC.  aod  d«nt  is  told  in  an  intereating  nianiwr 

his  sacoesson  relating  to  police  form  a  flrom  William  de  Nangis.  BoulahtTilUex* 

part,  though  rather  a  smaller  part  than  has  taken  an  eztraonlinary  Tiew  of  Um 

we  should  expect  ftt>m  the  title,  of  an  king's  beharior.    Hist,  de  TAnelen  OoO' 

Immense  work,  replete  with  miscellane-  vernement,  t.  U.  p.  26.      In  his  oyei 

ons  information,  by  Delamare,  Traits  da  princes  and  plebeians  were  made  lo  b« 

la  Police,  4  vols,  in  folio.    A  sketch  ot  the  slaves  of  a  feudal  aristoctaoj. 

them  may  be  fonnd  in  VaUy,  t.  r.  p.  848,  •  VeUy,  t.  tUI.  p.  182. 

i.  XTiii.  p.  487.  «  Id.  ZTiii.  p.  487. 


0TATX  or  SociBTT.        KEUGIOUS  SECTS.  565 

In  the  hearts  of  the  inferior  and  more  numerous  clashes,  they 
bore,  generally  speaking,  so  immediate  a  relation  to  the  state 
of  manners,  and  they  illustrate  so  much  that  more  visible 
and  eminent  revolution  which  ultimately  rose  out  of  them  in 
the  sixteenth  century,  that  I  must  reckon  these  among  the 
mqst  interesting  p&enomena  in  the  progress  of  European 
society. 

Many  ages  elapsed,  during  which  no  remarkable  instance 
occurs  of  a  popular  deviation  from  the  prescribed  line  of 
belief;  and  pious  Catholics  consoled  themselves  by  reflecting 
that  their  forefathers,  in  those  times  of  ignorance,  slept  at 
least  the  sleep  of  orthodoxy,  and  that  their  darkness  was  in- 
terrupted by  no  false  lights  of  human  reasoning.^  But  from 
the  twelfth  century  this  can  no  longer  be  their  boast  An  in- 
undation of  heresy  broke  in  that  age  upon  the  church,  which 
no  persecution  was  able  thoroughly  to  repress,  till  it  finally 
overspread  half  the  surface  of  £urope.  Of  this  religious  in- 
novation we  must  seek  the  commencement  in  a  different  part 
of  the  globe.  The  Manicheans  afford  an  eminent  example 
of  that  durable  attachment  to  a  traditional  creed,  which  so 
many  ancient  sects,  especially  in  the  East,  have  cherished 
through  the  vicissitudes  of  ages,  in  spite  of  persecution  and 
contempt  Their  plausible  and  widely  extended  system  had 
been  in  early  times  connected  with  the  name  of  Christianity, 
however  incompatible  with  its  doctrines  and  its  history.  Af- 
ter a  pretty  long  obscurity,  the  Manichean  theory  revived 
with  some  modification  in  the  western  parts  of  Armenia,  and 
was  propagated  in  the  eight  and  ninth  centuries  by  a  sect 
denominated  Paulidans.  Their  tenets  are  not  to  be  col- 
lected with  absolute  certainty  from  the  mouths  of  their 
adversaries,  and  no  apology  of  their  own  survives.  There 
seems  however  to  be  sufiicient  evidence  that  the  Paulicians, 
though  professing  to  acknowledge  and  even  to  study  the 
apostoli<»l  writings,  ascribed  the  creation  of  the  world  to  an 
evil  deity,  whom  they  supposed  also  to  be  the  author  of  the 
Jewish  law,  and  consequently  rejected  all  the  Old  Testament 
Believing,  with  the  ancient  Gnostics,  that  our  Saviour  was 
clothed  on  earth  with  an  impassive  celestial  body,  they  denied 
the  reality  of  his  death  and  resurrection.^     These  errors  ex- 

i  nrary,  8»*  maemm  wot  VWat,  Eo-    Panlidans  to  fband  in  a  Uttle  trntfae  U 

tfite.  PetnM  Slculvs,  who  lived  about  870l  nn- 

•  TlM  BiMt  aathoDt&B  aooount  of  tb*    dar  BmU  Um  Mawtdrwriian.    Hahad 


566  SEU6I0US  SECTS.        Crap.  IX.  Pabt  D 

posed  them  to  a  long  and  crael  persecntaon,  duriDg  whidi  a 
colony  of  exiles  was  planted  bj  one  of  the  Greek  emperors 
in  Bulgaria.^  From  this  settlement  thej  silently  promulgaC* 
ed  their  Manichean  creed  over  the  western  regions  of  Chris- 
tendom. A  large  part  of  the  commerce  of  those  countries 
with  Constantinople  was  carried  on  for  several  centuries  by 
the  channel  of  the  Danube.  This  opened  an  immediate  in* 
tercourse  with  the  Paulicians,  who  may  be  traced  up  that 
river  through  Hungary  and  Bavaria,  or  sometimes  taking 
the  route  of  Lombariy  into  Switzerland  and  France.*    In  the 

employed  on  an  ombaMy  to  Tephiica,  leniency  with  which  Proteataot  willuti 

the  principal  town  of  these  hereUos,  so  have  treated  it,  wm  always  more  oocmpi 

tiiat  he  might  easily  be  well  informed :  ai^  more  intolerant  than  the  Latin, 

and,  though  he  is  sufficiently  bigoted,  I  i  Gibbon,  o.  M.    This  chapter  of  ttM 

do  not  see  any  reason  to  question  the  historian  dT  the  Decline  and  Vkll  upon 

general  truth  of  his  testimony,  especial-  the  Panlicians  appears  to  be  accurate,  as  > 

ly  as  it  tallies  so  well  with  what  we  learn  well  as  luminous,  and  is  at  least  tu  an- 

of  the  predecessors  and  successors  of  the  perior  to  any  modern  work  on  the  sab- 

Paulleians.     They  had  rejected  seTeral  jeet. 

of  the  Bftanichean  doctrines,  thoee,  I  be-  <  It  is  generally  agreed,  that  the  Uan- 

lleve,  which  were  borrowed  ftom    the  ieheana  ftom  Bulgaria  did  not  penetxata 

Oriental,  Onoatic,  and  Cabbalistic  phi-  into  the  west  of  Surope  before  the  yeair 

loBophy  of  emanation ;    and  therefore  1000 ;  and  they  seem  to  buTe  been  In 

readily  condemned   Biaoes,  vpOfdvuuQ  small  numbers  till  about  1140.    We  find 

ava&eiMTUfiVffi  Mainrra,  But  they  ^«"'  **®^^''  !^^^J°  '5f»*teP?* 
•ai-ir.irhir««rif-i  ^!jLv.r       *.  century.    Under  the  reign  of  Robert  In 

2.^S^h„  nnSi^J^ifS  ^  tm    1W7  several  heretics  were  burned  at  Or- 

2SH^«^;Ji?,o«S."*2*^K^'5"^:S  Manichean.    Velly,  t.  ii.  p.  &)7.    These 

^^  £?^Rf^S!i/®  ^^^  '^^^  are  said  to  have'^'been  imported  ftxMn 

£S?4iLh!iSl?^^'^^°'*"Ti!?'*;  It-Jy;  »nd  the  heresy  beg^  to  strike 

SS^1^£S«I^^«  I' iM*'®^*?**"***'S?  »oot in  that  country  aliutthe  same  time. 

SS  t^^i^J  i7  •i1?**~\i****S"'  !?*»  Muretori,  I>lssert.  k  ( Antlchiti  Italiane, 

and  the  creator^  this  world ;  the  other  ^  yj,      j^^^     ^he  Italian  BtanicheaZS 

good,  called  varf^p  knavpavtoq,  the  au-  ^^  generally  called  Paterini,  the  mean- 
tiior  of  that  which  Is  to  come.  2.  They  ing  of  which  word  has  never  been  ex- 
refused  to  wonhip  the  Virgin,  and  as-  plained.  We  find  few  traces  of  them  ia 
serted  that  Christ  breught  hu  body  from  France  at  this  time ;  but  about  the  b«> 
heaven.  8.  They  rgected  the  Lord's  Sup-  ginning  of  the  twelfth  century.  Ouibert, 

r'.    4.  And  the  adoration  of  the  cross,  bishop  of  Soissons,  describes  the  heratJkai 

They  denied    the  authority  of  the  of  that  city,  who  denied  the  reality  of 

Old  Testament,  but  admitted  the  New,  the  death   and    resurrection  of  Jeeiu 

except  the  epistles  of  St.  Fetor,  and.  Christ,  and    rqiected   the  sacramenta 

perhaps,  the  Apocalypse.    6.  They  did  Hist.  litteraire  de  Ui  Fnnee,  t.  x.  p.  451. 

not  acknowledge  the  order  of  priests.  before   the   middle  of    that    age,  th« 

There  seems  every  reason  to  suppose  Gathari,  Henricians,  Petrobusrians,  and 

that  the    PauUcians,    notwithstanding  others  appear,  and  the  new  opinions  at> 

their  mistakes,  were  endowed  with  sin-  tracted  universal  notice.    Some  of  tbeaa 

cere  and  aealous  piety,  and  studious  of  wctaries,  however,  were  not  Manicheaaa. 

the    Scriptures.     A    Pauliclan  woman  Mosheim,  vol.  ill.  p.  116. 

asked  a  young  man  if  he  had  read  the  The  acts  of  the  inquisition  of  Toulouse, 

Gospels:  he  replied  that   laymen  were  published  by  Limboreh,  from  an  ancient 

not  permitted  to  do  so.  but  only  the  manuscript,   contain    many  additional 

clergy:  ciiK  i^eoTtv  ^fuv  role  KOafU-  proolk  that  the  Albigenaea  held  the  Hani* 

KOtc  oiai  ravra  iamytvCMKav,  d  u^  c^«»n  doctrine.     limboreh  himself  will 


CSS'"?*S'?S3?.J"T''T*;SS???™  «nong  the  heretics  of  the  twelfth  cen- 
bWden  in  the  Greek  ohnrch,  wWch  I  am  ^^^  ^  „  ^rong  (for  I  hava  confined 
IncHnod  to  bellere,  notwithstanding  the        '  "  ^ 


S  FATS  OF  SOOXBTT. 


EELI6I0US  SECTS. 


667 


last  country,  and  especially  in  its  southern  and  eastern  prov- 
inces, they  became  conspicuous  under  a  variety  of  names ; 
such  as  Cktharists,  Ficardsy  Paterins,  but  above  aU,  Albigen- 
ses.  It  is  beyond  a  doubt  that  many  of  these  sectaries  owed 
their  origin  to  the  Paulicians ;  the  appellation  of  Bulgarians 
was  distinctively  bestowed  upon  them;  and,  according  to 
some  writers,  they  acknowledged  a  primate  or  patriarch  resi- 
dent in  that  country.^  The  tenets  ascribed  to  them  by  all 
contemporary  authorities  coincide  so  remarkably  with  those 
held  by  the  Paulicians,  and  in  earlier  times  by  the  Maniche- 
ans,  that  I  do  not  see  how  we  can  reasonably  deny  what  is 
confirmed  by  separate  and  uncontradicted  testimonies,  and 
contains  no  intrinsic  want  of  probability.* 


myself  to  thoM  of  Laogaedoo,  and  eonld 
easily  bxn  broaght  other  tevtlmony  aa 
to  the  Cathui),  that  Ishonid  nererhave 
thought  of  argaing  the  point,  but  for 
the  confldenoe  of  aome  modern  eccleal- 
astical  writera. — What  aan  m  think  of 
one  who  aaya,  **  It  waa  not  unnaual  to 
stigmatiae  new  aecta  with  the  odioua 
name  of  Uanicheea,  though  I  huno  no 
tvidenu  that  thexe  were  any  real  remaina 
of  that  ancient  seot  in  the  twelfth  cen- 
tury "  ?  Miloer^a  Hiatoiy  of  the  Oharch, 
▼ol.  ill.  p.  880.  Though  thia  writer  waa 
by  no  meana  learned  enough  for  the  taak 
he  undercook,  lie  eonid  not  be  ignorant 
of  foeta  related  by  Moahelm  and  other 
common  hiatoriana. 

I  will  only  add,  in  order  to  obyiate 
eaTilllng.  that  I  uae  the  word  Albigenaee 
for  the  Manlebeaa  aecta,  without  pro- 
tending to  aaaert  that  thdr  doetrlnea 
preTailed  more  In  the  neighborhood  of 
AIM  than  elaewhere.  The  main  poaition 
Is,  that  a  huge  part  of  the  lAuguedociaa 
heretica  againat  whom  the  cruaade  waa 
directed  had  imbibed  the  Panlician  opin- 
fcma.  If  any  one  ohooaea  rather  to  call 
them  Oathariata,  it  wiU  not  be  material. 

i  M.  Paria,  p.  907.  (a.b.  1228.)  Ciroa 
diee  iatoa,  hmretlei  Alblgenaea  oonatftu- 
erunt  ribi  Antipapam  in  flnibna  Bulga- 
rorum ,  Groatte  at  DalmatiaBf  nomine  Bai^ 
tholomaeum.  fce.     We  are  aaaured  by 

E)d  authoritiaa  that  Boania  waa  ftill  of 
nieheana  and  Ariana  aa  lata  aa  the 
middle  of  the  fifteenth  eentury.  .£neaa 
ByMua,  p.  407:  Spondanua,  ad  an. 
1400;  Moahelm. 

s  There  haa  been  ao  prevalent  a  dla- 
poeitlon  among  Sngliah  diTlnca  to  ▼indi- 
cate not  only  the  morale  and  sincerity, 
bat  the  orthodox  of  theae  Alblgenaea, 
that  I  deem  it  neoeaaary  to  eonflrm  what 
I  hare  aald  In  the  text  by  aome  author* 
Haa,  eapedal^  a«  few  readan  have  it 


in  their  power  to  examine  thia  vary  ob- 
acure  auqjeet.  Petrua  Honachua,  a  Ola- 
terclan  monk,  who  wrote  a  hiatory  of 
the  cruaadea  againat  the  Alblgenaea, 
glvea  an  account  of  the  teneta  main- 
tained by  the  diOerent  heretltol  aecta. 
Many  of  them  aaaerted  two  princlplea  or 
creative  beinga:  a  good  one  for  thlnga 
Invialble,  an  evil  one  for  thing!  visible ; 
the  former  author  of  the  New  Teata- 
ment,  the  latter  of  the  Old.  Novum 
Teatamentum  benlgno  deo.  vetna  vero 
maligno  attrlbuebant ;  et  lilnd  omnlnA 
repndlabant,  prater  quaadam  auetorl- 
tatea,  quao  de  Veterl  Teatamento  Novo 
aunt  inaertas,  quae  ob  Novl  reveren- 
tiam  Teatamenn  redpere  dignum  lestl* 
mabant.  A  vaat  number  of  atrange  er- 
rora  are  imputed  to  them,  moat  of  which 
are  not  mentioned  by  Alanua,  a  more 
diapaaaionate  writer.  i)u  Cheene,  Scrlp- 
torea  Franeorum,  t.  t.  p.  666.  Thia 
Alanua  de  InauUa^  whoae  treatlae  againat 
heretica,  written  about  1200,  waa  pnb- 
Uabed  by  Maaaon  at  Lyona.  in  1612,  haa 
left,  I  think,  concluaive  evidence  of  the 
Maniehdam  of  the  Alblgenaea.  Heatatea 
their  argument  upon  every  diaputed 
point  aa  fldrly  aa  poaaible,  though  hia 
reftitation  la  ct  course  more  at  length. 
It  appears  that  f^reat  dlacrepanelea  of 
opioion  exiBted  among  those  heretica, 
but  the  general  tenor  bf  their  doctrinea 
la  evidently  Hanichean.  Alunt  haeretici 
temporia  uoatri  quod  duo  aunt  prindpla 
rerum,  principium  lucia  et  pifnclplum 
tenebrarum,  &c.  Thia  opinion,  atrange 
aa  we  may  think  It,  waa  supported  by 
Scriptural  tezta ;  so  inanfflclent  la  a  mere 
acquaintance  with  the  aacred  writlnn  to 
aeeure  unlearned  and  prejudiced  minda 
from  the  wildest  perveralona  of  their 
meaoing?  Some  denied  the  reality  of 
Christie  body ;  others  his  being  the  Son 
of  Ood;  many  the  resurrection  of  tba 


568 


WALDENSES. 


Chap.  IX.  Part  U. 


But  though  the  derivation  of  these  heretics  called  Albl- 
genses  from  Bulgaria  is  sufficiently  proved,  it  is  bj  no  meana 
to  be  concluded  that  all  who  incurred  the  same  imputation 
either  derived  their  faith  from  the  same  country,  or  had 
adopted  the  Manichean  theory  of  the  Paulicians.  From  the 
very  invectives  of  their  enemies,  and  the  acts  of  the  Inquisi« 
lion,  it  id  manifest  that  almost  every  shade  of  heterodoxy  waa 
found  among  these  dissidents,  till  it  vanished  in  a  simple 
protestation  against  the  wealth  and  tyranny  of.  the  clergy. 
Those  who  were  absolutely  free  from  any  taint  of  Maniche- 
ism  are  properly  called  Waldenses ;  a  name  per- 
petually confounded  in  later  times  with  that  of 
Albigenses,  but  distinguishing  a  sect  probably  of  separate 
origin,  and  at  least  of  different  tenets.  These,  according  to 
the  majority  of  writers,  took  their  appellation  from  Peter 
Waldo,  a  merchant  of  Lyons,  the  parent,  about  the  year  1160, 
of  a  congregation  of  seceder^  from  the  church,  who  spread 
very  rapidly  over   France   and   Germany.*     According  to 


WuHenmt. 


body :  some  eren  of  a  future  state. 
They  asserted  in  general  the  Mosaic  law 
to  have  proceeded  from  the  deTil.  prov- 
ing this  bj  the  crimes  committed  during 
its  dispensatioUf  and  by  the  words  of  St. 
Paul,  **  the  law  entered  that  sin  might 
abound."  They  r^ected  iniSiQt  baptism, 
but  were  divided  as  to  the  reason ;  some 
saying  that  iofiints  could  not  sin,  and 
did  not  need  baptism ;  others,  that  they 
could  not  bf  saved  without  faith,  and 
consequently  that  it  was  useless.  They 
held  sin  afcer  baptism  to  be  irrcmissible. 
It  does  not  appear  that  they  rgected 
either  of  the  sacraments.  They  laid 
great  stress  upon  the  imposition  of 
hands,  which  seems  to  have  been  their 
distinctive  rite. 

One  circumstance,  which  both  Alanua 
and  Robertus  Mnoachus  mention,  and 
which  other  authorities  oonflrm,  is  their 
divi:«ion  into  two  classes;  the  Perfect 
and  the  Crpdentes,  or  Oonsolati,  both  of 
which  appellations  are  used.  The  former 
abstained  from  animal  food,  and  {h>m 
larriage.  and  led  in  every  respect  an 
ustere  life  The  latter  were  a  kind  of 
lay  brethren,  living  in  a  secular  manner. 
This  distinction  is  thoroughly  Hani- 
cbean,  and  leaves  no  doubt  as  to  the 
origin  of  the  Albigenses.  See  Bean- 
•obre,  Hist,  du  Manich<U8me,  t.  U.  p.  762 
and  777.  This  candid  writer  represents 
the  early  Manlcheans  as  a  harmless  and 
anitere  set  of  enthusiasts,  exactly  what 
the  Paulicians  and  Albigenses  appear  to 
hava  been  in  iuoooeding  ages.    As  many 


calumniM  were  vented  against  oim  •• 
the  other. 

The  long  battle  as  to  the  Bfanielielnn 
of  the  Albigensian  sectaries  has  been 
renewed  since  the  publication  of  this 
work,  by  Dr.  Maitland  on  one  side,  and 
Bfr.  Faber  and  Dr.  Qilly  on  the  other ; 
and  it  is  not  likely  to  reach  a  termina- 
tion ;  being  conducted  by  one  party  with 
fikr  less  re^&rd  to  the  weight  of  evidence 
than  to  the  bearing  it  may  have  on  the 
theological  hypotheses  of  the  writers.  I 
have  seen  no  reason  for  altering  what  is 
said  in  the  text. 

The  chief  strength  of  the  argument 
seems  to  me  to  lie  in  the  independent 
testimonies  as  to  the  Hanicheism  of  the 
Paulicians,  in  /Petrus  Siculus  and  Pho- 
tius,  on  the  one  hand,  and  as  to  that  of 
the  Langnedocian  heretics  in  the  Latio 
writers  of  the  twelfth  and  thirteenth 
centuries  on  the  other ;  the  connection 
of  the  two  sects  through  Bulgaria  being 
established  by  history,  but  the  latter 
class  of  writers  being  unacquainted  with 
the  former.  It  is  certain  that  the  prob- 
ability of  general  truth  in  these  concur* 
rent  testimonies  Is  greatly  enhanced  hjr 
their  independence.  And  it  will  be  found 
that  those  who  deny  any  tfnga  of  Manl- 
eheism  in  the  Albigenses,  are  equally 
confident  as  to  the  orthodoaj  erf  the 
Paalicians.  [1848.] 

I  The  oontemporarv  writers  ■eem  iini> 
formly  «u  represent  Waldo  as  the  founder 
of  the  Waldenses;  and  I  am  not  aware 
that  they  lefer  the  loeaUty  of  thai  net  to 


Btata  of  Socixtt.  WALDENSES.  569 

othei*8,  the  original  Waldenses  were  a  race  of  uncorrupted 
shepherds,  who  in  the  valleys  of  the  Alps  had  shaken  off,  or 
perhaps  never  learned,  the  system  of  superstition  on  which 
the  Catholic  church  depended  for  its  ascendency.  I  am  not 
certain  whether  their  existence  can  be  distinctly  traced  beyond 
the  preaching  of  Waldo,  but  it  is  well  known  that  the  proper 
seat  of  the  Waldenses  or  Vaudois  has  long  continued  to  be  in 
certain  valleys  of  Piedmont.  These  pious  and  innocent  sec- 
taries, of  whom  the  very  monkish  historians  speak  well, 
appear  to  have  nearly  resembled  the  modern  Moravians. 
They  had  ministers  of  their  own  appointment,  and  denied 
the  lawfulness  of  oaths  and  of  capital  punishment.  In  other 
respects  their  opinions  probably  were  not  far  removed  from 
those  usually  called  Protestant.    A  simplicity  of  dress,  and 

the  ▼mlleya  of  Piedmont,  between  BxHee  Che  fii  icritta  loro  qne  len  al  deriet 

and  Pigiieroi  (nee  Legvr's  map),  which  temp. 

have  no  long  been  dlstinKnished  as  the  Eleren  hundred  jeart  are  now  gone 

native  country  of  the  Vaudols.    In  the  and  patt,  

acta  of  the  Inquinltion,  we  And  Walden-  Since  thu«  it  was  written ;  Theee  nmea 

MS.  tArt  pauperes  de  Lugdnno,  uwd  as  are  the  last. 

eqnivalent  terms;  and  it  can  hardly  be  Sm  Literatnre  of  Europe  in 
doubCf^  that  the  poor  men  of  Lyons  16th,  16th.  and  lith  Oenturies, 
were  the  diwlples  of  Waldo.  Alanus,  chap.  1,  (  33. 
the  second  boq|c  of  whose  treatise  against  j  ^^^  ^^^^  however  a  passage  In  a  late 
hereUcs  is  an  attack  upon  the  Waldenses,  ^^^  ^^Ich  remarkably  illnstrates  the 
expressly  derives  them  from  Waldo,  antiquity  of  Alpine  protestontism,  if  we 
Petrus  Monachus  does  the  same.  These  niay  depend  on  the  date  It  assigns  to  the 
seem  strong  authorities,  as  it  te  not  easy  quotaUon.  Mr.  PUnta's  Ulntory  of  Swlt- 
to  perceive  what  advantage  they  could  i^^^nd^  p.  q^  410.  edit.,  contains  the  fol- 
derive  flpom  misrepresentation.  It  has  ]^,^„«  note:  —  *'  A  curious  pussage,  sin- 
been  however  a  position  aealously  main-  -«u,iy  dtwcriptivo  of  the  character  of 


had  prencrved  a  pure  aith  R)J  *»▼«»;    ^hlch   appears   to   have   been  written 
ages  before  the  appearance  of  ^v^Wo-    j    about    the    beginning   of  the   twelfth 


have  read  what  is  advanced  on  this  head  century.     Rellgionem  nostram,  et  om- 

by  LegerfHIstoiredesBgllsesVaudoises)  njum    Latln»   ecclesiw   Chrintlanornm 

and  by  Allix  (Remarks  on  the  JBccle-  j^^^^  ,^|  ^^  au*rii,  SuicW,  ct  BavariA 

■iastical   History  of  the  Ghnrches   of  |ju„,|i|arovoluerant;  homines  seductlab 

Piedmont),  but  without  finding  any  su^  antlquJL  progenle  simpllclum  homlnum, 
llcient  proof  fbr  this  supposition,  which        j  ^^       ^j  ylclniam  habitont,  et  semper 

nevertheless  to  not  to  be  n^ted  as  abso-  Jmant  antlqua.    In  Suavlam,  Bavariam 

lutely  Improbable.    Their  best  argument  ^^  itallam  borealem  stepe  Intrant  lUorum 

is  deduced  flrom  an  ancient  poem  called  .^^  Sulcil)  mercatores,  qui  biblU  edis- 

La  Noble  liol^on.  an  original  manuscript  J.^^^  memoriter.  et  ritus  ecclesln  avet^ 

of  which  is  in  the  public  library  of  Cam-  3^0 tur,  quoscredunt  esse  novos.  NolunI 

bridge,  and  another  in  that  of  Geneva,  imarfnea  venerari,  rellquias  sanctorum 

•  This  poem  to  alleged  to  bear  date  in  IIW,  averaintur.  olera  comeUunt,  rar*  mastl- 

mors  than  half  a  century  before   the  mantes  camem,  alU  nunquam.     Appel- 

appearance  of  Waldo.    But  the  lines  that  ^j^^^  ^os  IdcircA  Manlchcos.    Ilorum 

contain  the  date  are  loosely  expressed,  q^j^nj  ab  Hungaril  ad  eos  convenerunt, 

and  may  very  w*ll  suit  with  any  epoch  ]^^ „    u  j,  a  pity  that  the  quotation 

belbre  the  termination  of  the  tw«lAb  ^^  ^Men  broken  off,  as  It  might  have 

nntarj.  illustrated  the  connection  of  tfie  Bui 

Ben  ha  mil  at  oant  aos  eompU  anfekr-  gariant  with  these  leotailef 
amenl. 


570  WIDE  DIFFUSION  Chap  EL  Part  H 

especially  the  use  of  wooden  sandals,  was  affected  hy  tliig 
people.* 

I  have  already  had  occasion  to  relate  the  severe  persecu- 
tion which  nearly  exterminated  the  Albigenses  of  Langu(;doo 
at  the  close  of  the  twelfth  century,  and  involved  the  counts 
of  Toulouse  in  their  ruin.  The  Catharists,  a  fraternity  of 
the  same  Faulidan  origin,  more  dispersed  than  the  Albi- 
genses, had  previously  sustained  a  similar  trial.  Their 
belief  was  certainly  a  compound  of  strange  errors  with 
truth;  but  it  was  attended  by  qualities  of  a  far  superior 
lustre  to  orthodoxy,  by  a  sincerity,  a  piety,  and  a  self-devotion 
that  almost  purified  the  age  in  which  they  lived.'    It  is  al- 

1  The  Waldenses  w«re  alwiyi  consid-  but  I  bsve  not  Immediato  aeoen  to  IIm 

•red  as  much  less  erroneoot  in  their  book.    I  believe  that  proof  will  be  found 

tenets    than  the   Albigenses,  or  Mani-  of  the  distinction  between  the  Waldensaa 

eheans.     Erant  prseterea  alii  hsereticl,  and  Albigenses  io  t.  iii.  p.  44d.    But  I 

says   Robert  Monachus  in  the   passage  am  satisfied  that  no  one  who  has  looked 

above  quoted,  qui  Waldensee  direbantur,  at  the  original  authorities  will  dispute  th« 

a  quodam  Waldio  nomine  Lugdunensi.  proposition.  These  Benedictine  historians 

Hi  quidem  mall  erant,  sed  comjMiratlone  represent  the  Ilenricians,  an  early  set  of 

aliorum  hseretlcorum  longi  minus  per-  reformers,  condemned  by  the  council  of 

Tersi ;  in  multis  enim  nobiscum  conve-  Lombez,  in  1165,asManichee8.  Moshelu 

niebant  jn  quibusdam  dissentiebant.  The  considers  them  as  of  the  A'audois  school, 

only  faults  he  seems  to  impute  to  them  They  appeared  some  time  before  Waldo, 
are  the  denial  of  the  lawfulness  of  oaths        8  The  general  testimony  of  their  ene- 

and  capital  punishment,  and  the  wearing  mles  to  the  purity  of  morals  among  the 

wooden  shoes.    By   this  peculiarity  of  Langoedocian  and  Lyonese  sectarlea  is 

wooden  sandals  (sabots)   they  got   the  abundantly  sufficient.  One  a^^ier,  who 

name  of  Sabbatati  or  Insabbatati.    (Ihi  had  lived  among  them,  and  became  afler- 

Cango.)    William  dn  Puy,  another  his-  wards  an  inquiidtor,  does  them  justice  ia 

torlan  of  the  same  time,  makes  a  similar  this  respect.    See  Turner^s  History  of 

distinction.    Erant  quidam  Ariani,  qui-  England  for  several  other  proofs  of  this, 

dam  Manichiei,  quidam  etiam  Waldensea  It  must  be  confessed  that  the  Catiutrists 

sive  Lugdunenses,  qui  licet  inter  se  dis-  are  not  firee  from  the  imfyitation  of  pro> 

sidentes,  omnes  tamen  in  animarum  per^  miscuous   licentiousness.    But  whether 

niciem  contra  flcli>m  Catholicam  conspira-  this  was  a  mere    calumny,   or   partly 

bant;  et  llli  quidem  Waldenses  contra  founded  upon  truth,  I  cannot  determine, 

alios  acutissim^  disputant.    Du  CheMne,  Their  prototypes,  the  ancient  Gnostics, 

t.  T.  p.  666.    Alanus,  in  hi.«  second  book,  are  said  to  have  been  divided  into  two 

where  he  treats  of  the  Waldcn.«ea',  charges  parties,  the  austere  and  the  relaxed ;  both 

them  principally  with  di^crccarding  the  condemning  marriage  for  opposite  re«« 

authority  of  the  church  and  preaching  sons.    Alanus,  in  the  book  above  quoted, 

without  a  regular  mission.     It  ia  evident  seems  to  hare  taken  up  seTeral  vulgar 

however  from  the  acts  of  the  Inqnl.«ition,  prvjudices  Mgninst  the  Catbarl.    lie  gives 

that  they  denied  the  existence  ot  purga-  an  etjmology  of   their   name  di  cat  to; 

tory  ;  and  I  should  suppose  that,  even  at  quia  OMrulantur  posCerlora  catti ;  in  cujos 

that  time,  they  had  thrown  off  most  of  S}iecie,  ut  aiunt.  appnrervt  lis  Lurifer.  p. 

the  popinh  system  of  doctrine,  which  in  146.    This  notable  chiirge  was  brought 

iu  nearly  connected  with  clericu&l  wealth  afterwards  against  the  Templars, 
and    power.     The   diAtreoce    made   in        As  to  the  U'aldenses,  their  innocence 

these  records  between  the  Waldenses  and  is  out  of  all  doubt.    No   iKmk  can  be 

the  Manichean  sects  shows  that  the  im-  written  in  a  more  edifying  manner  than 

rtutations  cast  upon  the  latter  were  not  La  Noble  Loi^'on,  of  which  large  extracts 

ndi.<<criminate  calumnies.  SceLlmborch,  are  giveti  by  L«gcr.  in  hix  Uistoire  dea 

p.  201  and  228.  Kglii«es  Vaudol^HM.    Four  lines  are  quoted 

Tiie  History  of  Langnedoc,  by  Vais*  by  Voltaire  (Hist.  Univervelle,  o.  09),  a« 

lette  and  Vich,  contains  a  yery  good  a  specimen  of  the  Provencal  language, 

account  of  the  sectaries  in  tliat  country ;  though  they  belong  rather  to  the  patoii 


Statb  or  SoouBTT.     OF  THE  NEW  SECTS.  571 

ways  important  to  peroeive  that  these  high  moral  excellences 
have  no  necessary  connection  with  speculative  truths ;  and 
upon  this  account  I  have  been  more  disposed  to  state  ex- 
plicitly the  real  Manicheism  of  the  Albigenses ;  especially  as 
Protestant  writejrs,  ocSnsidering  all  the  enemies  of  Rome  as 
their  friends,  have  been  apt  to  place  the  opinions  of  these 
sectaries  in  a  very  false  light.  In  the  course  of  time,  un- 
doubtedly, the  system  of  their  Paulician  teachers  would  have 
yielded,  if  the  inquisitors  had  admitted  the  experiment,  to  a 
more  accurate  study  of --the  Scriptures,  and  to  the  knowledge 
which  they  would  have  imbibed  from  the  church  itself.  And, 
in  fact,  we  find  that  the  peculiar  tenets  of  Manicheism  died 
away  afler  the  middle  of  the  thirteenth  century,  although  a 
spirit  of  dissent  from  the  established  creed  broke  out  in  abun- 
dant instances  during  the  two  subsequent  ages. 

We  are  in  general  deprived  of  explicit  testimonies  in  tra- 
cing the  revolutions  of  popular  opinion.  Much  must  therefore 
be  left  to  conjecture ;  but  I  am  inclined  to  attribute  a  very 
extensive  effect  to  the  preaching  of  these  heretics.  They 
appear  in  various  countries  nearly  during  the  same  period, 
in  Spain,  Lombardy,  Germany,  Flanders,  and  England,  as 
well  as  France.  Thirty  unhappy  persons,  convicted  of  deny- 
ing the  sacraments,  are  said  to  have  perished  at  Oxford  by 
cold  and  famine  in  the  reign  of  Henry  II.  In  every  coun- 
try the  new  sects  appear  to  have  spread  chiefly  among  the 
lower  people,  which,  while  it  accounts  for  the  imperfect  notice 
of  historians,  indicates  a  more  substantial  influence  upon  the 
moral  condition  of  society  than  the  conversion  of  a  few  nobles 
or  ecclesiastics.^ 

of  tbe  vmlleTi.    Bat  m  h»  has  not  eoplad  toriei.    BeiidM  Mosbelin,  wfio  hwi  paid 

them  vtghtlr,  and  as  they  iUustnite  the  eonsldevable  attention  to  the  inhjeet,  I 

•nliijeet  of  this  notOjI  shall  xepeat  them  would  mention  some  arUcles  in  Du  Cange 

here  from  Leger,  p.  28.  which  supply  gleanings ;  namely.  B«^ 

Que  sel  se  troba  alenn  bon  que  Tollia    Sfff^f^SSuiJ^il       '  ^^^"^  "^ 

On'r^o^^iirSai^^'^MU   nl  bV!»o'th;aMrif  the  Waldensesand 

^^  S  ^®*"*  *»»««"«»»  nl  itt»»  n»  Albigeoses   genemlly,  I  haTe    borrowed 

w«°^?^i*r...   nl  *«M«   «i  «•«••  A^  "ome  light  from  Mr.  Turner's  History  of 

IWra^*        ^^^        ^  England,  Tol.il.  p.  877, 8W.  This  leaded 

VI  w^^t^L  <!•  II  .Ia  .nn«»u  writer  has  seen  some  books  that  have  not 

Ti  i^SSn !ImS  •.  v^Jil  *  Iwn.  d.  «">•» «»«« "y  "^^ ?"<*  ^  "° Indebted  to 

^1^     ^       ^    •  ^  •  ^"^  Wm  Ibr  a  knowledge  of  Alanns's  treatise, 

^^"''  which  I  have  since  read.    At  the  same 

I  It  would  be  difllcnlt  to  specUy  all  time  I  must  obeenre,  that  Mr.  Turner 

the  dispersed  authorities  which   attest  has  not  perceived  the  essential  distino- 

tbe  existence  of  the  sects  derived  ttoax  tion  between  the  two  leading  sects. 

the  Waldenses  «nd  Paulldans    In    the  The  name  of  Albigenses  doen  not  fre 

twelfth,  thittcwnth,  and  fourteenth  oso-  quently  occur  after  (he  middle  of  the 


572  TRANSLATIONS  OF        Chap.  IX  Part  XL 

But  even  where  men  did  not  absolutely  enlist  under  the 
banners  of  anj  new  sect,  they  were  stimulated  by  the  temper 
of  their  age  to  a  more  zealous  and  independent  discussion  of 
their  religious  system.  A  curious  illustration  of  this  is  fur- 
nished by  one  of  the  letters  of  Innocent  III.  He  had  been 
informed  by  the  bishop  of  Metz,  as  he  states  to  the  clergy 
of  the  diocese,  that  no  small  multitude  of  laymen  and  women, 
having  procured  a  translation  of  the  gospels,  epistles  of  St. 
Paiul,  the  psalter.  Job,  and  other  books  of  Scripture,  to  be 
m;ide  for  them  into  French,  meet  in  secret  conventicles  to 
hear  them  read,  and  preach  to  each  other,  avoiding  the  com- 
pany of  those  who  do  not  join  in  their  devotion,  and  having 
been  reprimanded  for  this  by  some  of  their  parish  priests, 
have  withstood  them,  alleging  reasons  from  the  Scriptures, 
why  they  should  not  be  so  forbidden.  Some"  of  them  too 
deride  the  ignorance  of  their  ministers,  and  maintain  that 
their  own  books  teach  them  more  than  they  can  learn  from 
the  pulpit,  and  that  they  can  express  it  better.  Although  the 
desire  of  reading  the  Scriptures,  Innocent  proceeds,  is  rather 
praiseworthy  than  reprehensible,  yet  they  are  to  be  blamed 
for  frequenting  secret  assemblies,  for  usurping  the  office  of 
preaching,  deriding  their  own  ministers,  and  scorning  the 
company  of  such  as  do  not  concur  in  their  novelties.  He 
presses  the  bishop  and  chapter  to  discover  the  author  of  this 
translation,  whidi   could  not  have  been   made  without  a 

thirteenth  oentnrj ;  but  the  WaldeoMSf  prison ;   so    that   no  peraon   in   Amm 

or  sects  bearing  that  denomioationf  were  thonght  himself  safe.     It  was  bdieved 

diaperm^  orer  Barope.    As  a  term  of  that  many  were  accused  for  the  sake  of 

different  reproach  was  derived  firom  the  their  possessions,  which  were  confiscated 

word  Bulgarian,  so  vautUru^  or  the  pro-  to  the  use  of  the  church.    At  length  th« 

Ibssion  of  the  Vaudois,  was  sometimes  duke  of  BurJfUndy  interfored,  and  pat  a 

applied  to  witchcraft.    Thus  In  the  pro-  stop  to  the  persecutions.     The  whola 

eeedinn  of  the   Ohambre  Brulante  at  narrative  In  Dn  Clercq  Is  interesting,  as 

Arras,  in  1469,  against  persons  accused  a  curious  document  of  the  tyraanj  of 

of  sorcery,  their  crime  is  denominated  bigots,  and  of  the  fiictlity  with,  which  Ifc 

vawterie.  The  (tiUest  account  of  this  re-  la  turned  to  private  ends, 
markable  story  is  found  in  the  Memoirs       To  return  to  the  Waldenses :  the  prin- 

of  Du  Cieroq,  first  published  in  the  gen-  clpal  course  of  their  emigration  Is  said  to 

nal  collection  of  Historical  Memoirs,  t.  have  been  into  Bohemia,  where.  In  th« 

ix.  p.  680,  471.     It  exhibits  a  complete  fifteenth  century,  the  name  was  borne  by 

parallel  to  the  events  that  happened  In  one  of  the  seceding  sects.    By  their  pro- 

1682  at  Salem  in  New  England.    A  ftw  Ibssion  of  fkith,  presented  to  Ladialaus 

obscure  persons  were  aocuMKl  of  vaiMferie,  Posthumus,  it  appears    that    they  ae- 

or  witchcraft.  After  their  condemnation,  knowledged  the  corporal  presence  in  tha 

which  was  founded  on  confessions  ob-  eucharist,   but  rejected  purgatorv  and 

talned  by  torture,  and  afterwards  retrao-  other  Romish  doctrines.    See  It  In  tha 

ted,  an  epidemical  contagion  of  super-  Fksdcnlus  Kerum  expetendaram  etfti* 

stinous  dread  was  diffused  all  around,  glendarum,  a  collection  of  treatises  llloa- 

Numbers  were  arrested,  burned  alive  by  tratlng  the  origin  of  the  Raformatloa, 

order  of  a  tribunal  Instituted  for  the  de-  originally  published  at  Colocne  in  1686, 

tsction  of  this  ofibnoe,  or  detained  In  and  repxintad  at  London  In  1690. 


State  of  Socix.tt.         THE  SCBIPTURES.  673 

knowledge  of  letters,  and  what  were  his  intentions,  and  what 
degree  of  orthodoxy  and  respect  for  the  Holy  See  those  who 
used  it  possessed.  This  letter  of  Innocent  III.,  however, 
considering  the  nature  of  the  man,  is  sufficiently  temperate 
and  conciliatory.  It  seems  not  to  have  answered  its  end ;  for 
in  another  letter  he  complains  that  some  members  of  this  little 
association  continued  refractory  and  refused  to  obey  either  the 
bishop  or  the  pope.^ 

In  the  eighth  and  ninth  centuries,  when  the  Vulgate  had 
ceased  to  be  generally  intelligible,  there  is  no  reason  to  sus- 
pect any  intention  in  the  church  to  deprive  the  laity  of  the 
Scriptures.  Translations  were  freely  made  into  the  vernac- 
ular languages,  and  perhaps  read  in  churches,  although  the 
acts  of  saii^ts  were  generally  deemed  more  instructive. 
Louis  the  Debonair  is  said  to  have  caused  a  German  version 
of  the  New  Testament  to  be  made.  Otfrid,  in  the  same  cen- 
tury, rendered  the  gospels,  or  rather  abridged  them,  into 
German  verse.  This  work  is  still  extant,  and  is  in  several 
r&<ipects  an  object  of  curiosity.*  In  the  eleventh  or  twelfth 
century  we  find  translations  of  the  Psalms,*  Job,  Kings,  and 
the  Maccabees  into  French.*  But  afler  the  diifusion  of  he- 
retical opinions,  or,  what  was  much  the  same  thing,  of  free 
inquiry,  it  became  expedient  to  secure  the  orthodox  faith  from 
lawless  interpretation.  Accordingly,  the  council  of  Toulouse 
in  1 229  prohibited  the  laity  from  possessing  the  Scriptures ; 
and  this  precaution  was  frequently  repeated  upon  subsequent 
occasions.* 

1  Operm  Innoeeot.  HT.  p.  468.  687.    A  which  ImpUM  an  anthorbed  tnumliitloii. 

tmwlatioD  of  the  BSbl«  had  been  omde  And  w«  may  adopt  In  a  grant  meiMura 

by  direction  of  Peter  Waldo;  but  wheth*  Lappenberg*s  proposition,  which  follows 

•r  this  used  In  Lorraine  waa  the  aame,  the  aboTe  punge :  *'  The  numerouit  Ter^ 

doee  not  appear.     Metx  waa  ftaU  of  the  alone  and  paraphraaee  of  the  Old  and 

Vaodolii,  aa  we  find  by  other  authoritSea.  New  TeetHment  made  thooe  booka  known 

*  Schilteii  Tlieaaurua  Antiq.  Teutonic  to  the  hdty  and  more  fluniUar  to  the 
eorum.  elergy.*' 

s  M6m  de  TAcad.  dea  Inacript.  t.  zrll.  We  have  aeen  a  Httle  aboTe,  that  the 

p.  720  laity  were  not  permitted  by  the  Greek 

*  The  Anfflo-Sazon  vendona  are  deaerr-  Church  <rf'  the  ninth  century,  and  prolv 
ing  of  parneular  remark.  It  haa  been,  ably  belbre,  to  read  the  Scripturea,  even 
•aid  tliat  onr  church  malntain<*d  the  In  the  original.  Thia  ahowa  how  much 
priTilege  of  having  part  of  the  dally  aer-  mora  honeat  and  plona  the  Weatem 
▼ice  in  the  mother  tongue.  **  Even  the  Church  was  before  ahe  became  corrupted 
maaa  itself^"  aaya  Lappenberg.  **  waa  not  by  ambition  and  by  the  capttTating  hope 
tead  entirely  in  Latin."  lUnt.  of  Eng-  of  keeping  the  laity  in  aerritude  by  means 
flftnd,  TOl.  1.  p.  202.     Thia,  however,  la  of  ignorance.  The  tranalation  of  the  four 

•denied  by  Llngard,  whoae  authority  Is  Books  of  Klnga  Into  French  haa  been 

probably  anpeiior.     Uiat.  of  Ang.-Sax.  publiahed  in  the  Collection  da  Doeumena 

Church,  I.  ftiT.    But  he  allows  that  the  InMlta,  1841.   It  la  In  a  northern  dialect, 

l^istla  and  Qcspd  ware  rsad  in  English,  but  ttaa  aga  ssami  not  satSafiMtuxUy  aa 


574  LOLLABDS.  Chap.  DC.  Pabt  n 

The  ecclesiastical  history  of  the  thirteenth  or  fourteenth 
centuries  teems  with  new  sectaries  and  schismatics,  various  in 
their  aberrations  of  opinion,  but  all  concurring  in  detestation 
of  the  established  church.^  Thej  endured  severe,  persecu- 
tions with  a  sincerity  and  firmness  which  in  any  cause  ought 
to  command  respect.  But  in  general  we  find  an  extravagant 
fanaticism  among  them ;  and  I  do  not  know  how  to  look  for 
any  amelioration  of  society  from  the  Franciscan  seceders,  who 
quibbled  about  the  property  of  things  consumed  by  use,  or 
from  the  mystical  visionaries  of  difierent  appellations,  whose 
moral  practice  was  sometimes  more  than  equivocal.  Those 
who  feel  any  curiosity  about  such  subjects,  which  are  by  no 
means  unimportant,  as  they  illustrate  the  history  of  the 
human  mind,  will  find  them  ti*eated  very  fully  by  Moslieim. 
But  tlie  original  sources  of  information  are*  not  always 
accessible  in  this  country,  and  the  research  would  perhaps  be 
more  fatiguing  than  profitable. 

I  shall,  for  an  opposite  reason,  pass  lightly  over  the  great 
lAiianifl  of  revolution  in  religious  opinion  wrought  in  England 
KugUud.  i^y  Wicliffe,  which  will  generally  be  familiar  to  the 
reader  from  our  common  historians.  Nor  am  I  concerned  to 
treat  of  theological  inquiries,  or  to  write  a  history  of  the 
church.  Considered  in  its  effects  upon  manners,  the  sole 
point  which  these  {>ages  have  in  view,  the  preaching  of  this 
new  sect  certainly  pi'oduced  an  extensive  reformation.  But 
Iheir  virtues  were  by  no  means  free  from  some  unsocial  qual- 
ities, in  which,  as  well  as  in  their  superior  attributes,  the  Lol- 
lards bear  a  veiy  close  resemblance  to  the  Puritans  of 
Elizabeth's  reign ;  a  moroseness  that  proscribed  all  cheerful 
amusements,  an  uncharitable  malignity  that  made  no  distinc- 
tion in  condemning  the  established  clergy,  and  a  narrow 
prejudice  that  applied  the  rules  of  the  Jewish  law  to  modem 
institutions.^    Some  of  their  principles  were  far  more  dan- 

eertnftMd;  the  eloM  of  the  elerench  een-    But  It  maj  be  traced  higher,  and  If  >•- 
tury  Im  the  earlMt  diite  tbnt  can  be  as-    mnrkably  pointed  out  by  I>aute. 

STl'fJu'll'r^'T  iT'^i***  K~\7"     DiTolpai.tore'»ccon«enVan«lteta, 
^  by  (he  W  aJdenrian  or  other  heretice      Q„^n jSToU-I,  chl  slcde  iorraT aeqi, 

u«-ri,.te  of  thoin  are  In  existence  and  *«K^  ^femo,  cant,  xix, 
on«  hai*  been  pubU«hed  by  Dr.  GUIy.  * 
[lStS.1  <  WaMnghaoi,  p.  28S ;  Lewin'a  Lift  of 
1  The  application  of  the  Tiidons  of  the  Pecorii.  p.  65.  Iliiihop  l^ecock-e  annwes 
ApocaiypM  to  the  eorruptiona  of  llome,  to  the  L<ollard«  of  his  time  oontainN  pas- 
ha* commonly  been  said  to  have  been  eages  well  worthy  of  llootcer,  both  An 
int  made  by  the  Vimnolicaa  Moedera.  wdght  of  matter  and  dignity  of  f^lflh 


0TATS  OF  SOCIKTT.-  HUSSITES.  575 

gerous  to  the  good  order  of  society,  and  cannot  justly  be 
ascribed  to  the  Puritans,  though  they  grew  afterwards  out  of 
the  same  soil.  Such  was  the  notion,  which  is  imputed  also  to 
the  Albigenses,  that  civil  magistrates  lose  their  right  to  gov- 
ern by  committing  sin,  or,  as  it  was  quaintly  expressed  in 
the  seventeenth  century,  that  dominion  is  founded  in  grace. 
These  extravagances,  however,  do  not  belong  to  the  learned 
and  politic  WicUffe,  however  they  might  be  adopted  by  some 
of  his  enthusiastic  disciples.^  Fostered  by  the  general  ill-will 
towards  the  church,  his  principles  made  vast  progress  in  Eng« 
land,  and,  unlike  those  of  earlier  sectaries,  were  embraced  by 
men  of  rank  and  civil  influence.  Notwithstanding  the  check 
they  sustained  by  the  sanguinary  law  of  Henry  IV.,  it  is 
highly  probable  that  multitudes  secretly  cherished  them  down 
to  the  era  of  the  Reformation. 

From  £ngland  the  spirit  of  religious  innovation  was  propa- 
gated into  Bohemia ;  for  though  John  Huss  was  Huorites  of 
very  far  from  embracing  all  the  doctrinal  system  Bohemu. 
of  Wicliife,  it  is  manifest  that  his  zeal  had  been  quickened  by 
the  writings  of  that  reformer.*   Inferior  to  the  Englishman  in 
ability,  but  exciting  greater  attention  by  his  constancy  and 
sufferings,  as  well  as  by  the  memorable  war  which  his  ashes 
kindled,  the  Bohemian  martyr  was  even  more  eminently  the 
precursor  of  the  Reformation.     But  still  regarding  these  dis- 
sensions merely  in  a  temporal  light,  I  cannot  assign  any 
beneficial  effect  to  the  schism  of  the  Hussites,  at  least  in  its 
immediate  results,  and  in  the  country  where  it  appeared 
Though  some  degree  of  sympathy  with  their  cause  is  inspired 

wtting  .forth  the  MCMnHty  and  Impor-  Collier^  and  snoh  antlqnariM  aa  Thomaa 

tanoe  of  '*  tha  moral  law  of  kinde,  or  Uearne 

moral    philosophk:."   In    oppoKition    to  i  Lewises  Lil^  of  Wicliffi*,  p.  115 ;  f<en- 

tttom  who  derive  all  morality  from  rev-  flrat,  lilat.  da  Oonclle  de  Comtaooe,  t.  i. 

elation.  p.  213. 

This  preaC  man  frU  afterwards  nnder  *  lluss  does  not  appear  to  have  n^i> 
tlie  diflpleaflure  of  the  church  fbr  propo-  ed  any  of  the  peculiar  tenetn  of  popery 
eitionii,  not  lodeed  heretlnal,  but  repug-  Lenfant,  p.  414.  He  embraced,  like 
nant  to  her  scheme  of  sptritaal  power.  Wicliffe,  the  predestlnarian  system  of 
He  ajworted,  indirectly,  the  rit^ht  of  pri-  Augustin,  without  pausing  at  any  of 
▼ate  Judgment,  and  wrote  on  theological  thoM  inferences,  apparently  dedacible 
inbjects  in  KngUt«h.  which  gave  much  from  it,  which,  in  the  heads  of  enthusi- 
o^uce.  In  fact,  Peoocic  seems  to  have  astn,  may  produce  such  extendve  mis- 
hoped  that  hlM  acute  rsaMnlng  would  chief.  These  were  maintained  by  Hust 
convlnee  the  people,  without  nequiring  an  (id.  p.  828),  though  not  perhapf  so  crudo- 
Implirit  faith.  But  he  greatly  ml^iunder-  ly  as  by  Luther.  Kvery  thing  relative  to 
ttood  the  principle  of  an  infkllible  church,  the  history  and  doctrine  of  Uuss  aud  hia 
Lewis's  Liie  of  Pecock  doe^  Jui}tiee  to  bis  Ibllowers  will  be  found  in  Lenlhnt's  three 
eharacter,  which.  I  need  not  say.  is  nn-  works  on  the  ooancUa  of  Plaa,  Constaoot, 
feirly  raprasented  by  snoh  historiaDf  as  and  Basla 


576  INSTITUTION  OF  CHIVALRT.     -Chap.  IX.  Pabt  VL 

hy  resentment  at  the  ill  faith  of  their  adversaries,  and  by 
the  associations  of  civil  and  religious  liberty,  we  cannot  esti- 
mate the  Taborites  and  other  sectaries  of  that  description  but 
as  ferocious  and  desperate  fanatics.^  Perhaps  beyond  the 
confines  of  Bohemia  more  substantial  good  may  have  been 
produced  by  the  influence  of  its  reformation,  and  a  better 
tone  of  morals  inspired  into  Grermany.  But  I  must  again 
repeat  that  upon  this  obscure  and  ambiguous  subject  I  assert 
nothing  definitely,  and  little  with  confidence.  The  tendencies 
of  religious  dissent  in  the  four  ages  before  the  Reformation 
appear  to  have  generally  conduced  towards  the  moral  improve- 
ment of  mankind ;  and  facts  of  this  nature  occupy  a  far 
greater  space  in  a  philosophical  view  of  society  during  that 
period,  than  we  might  at  first  imagine ;  but  every  one  who  is 
disposed  to  prosecute  this  inquiry  will  assign  their  character 
according  to  the  result  of  his  own  investigatiotis. 

But  the  best  school  of  moral  discipline  which  the  middle 
institatton  agcs  afforded  was  the  institution  of  chivalry.  There 
of  chivalry,  jg  something  perliaps  to  allgw  for  the  partiality  of 
modern  writers  upon  this  interesting  subject;  yet  our  most 
sceptical  criticism  must  assign  a  decisive  influence  to  tliis 
great  source  of  human  improvement  The  more  deeply 
it  is  considered,  the  more  we  shall  become  sensible  of  its 
importance. 

There  are,  if  I  may  so  say,  three  powerful  spirits  which 
have  from  time  to  time  moved  over  the  face  of  the  waters, 
and  given  a  predominant  impulse  to  the  moral  sentiments  and 
energies  of  mankind.  These  are  the  spirits  of  liberty,  of 
religion,  and  of  honor.  It  was  the  principal  business  of 
chivalry  to  animate  and  cherish  the  last  of  these  tliree.  And 
whatever  high  magnanimous  energy  the  love  of  liberty  or 
religious  zeal  has  ever  imparted  was  equalled  by  the  exquisite 
sense  of  honor  which  this  institution  preserved. 

It  appciu's  probable  that  the  custom  of  receiving  arms  at 
the  age  of  manhood  with  some  solemnity  was  of 

^"^^'  imraemorijil  antiquity  among  the  nations  that  over- 
threw the  Iloman  empire.  For  it  is  mentioned  by  Tacitus  to 
have  prevailed  among  their  German  ancestors ;  and  his  ex- 
pressions might  have  been  used  with  no  great  variation  to 

I  Lenfiut,  nisi,  de  la  Gaem  def  HanitM  •%  da  Gonefl*  d*  Baila ;  flohmidi 
Qsi.  4m  AllexuJUi(l5,  t.  t. 


STJkTB  or  SociRT.     OBIGDT  OF  CHIYALRT.  577 

describe  the  actual  ceremonies  of  knighthood.^  There  was 
even  in  that  remote  age  a  sort  of  public  trial  as  to  the  fitness 
of  the  candidate,  which,  though  perhaps  confined  to  his  bodilj 
strength  and  activity,  might  be  the  germ  of  that  refined 
investigation  which  was  thought  necessary  in  the  perfect 
stage  of  chivalry.  Proofs,  though  rare  and  incidental,  might 
be  adduced  to  show  that  in  the  time  of  Charlemagne,  and 
even  earlier,  the  sons  of  monarchs  at  least  did  not  assume 
manly  arms  without  a  regular  investiture.  And  in  the  elev- 
enth century  it  is  evident  that  this  was  a  general  practice.' 

This  ceremony,  however,  would  perhaps  of  itself  have 
done  little  towaixls  forming  that  intrinsic  principle  which 
characterized  the  genuine  chivalry.  But  in  the  reign  of 
Charlemagne  we  find  a  military  distinction  that  appears,  in 
fact  as  well  as  in  name,  to  have  given  birth  to  that  institu- 
tion. Certain  feudal  tenants,  and  I  suppose  also  alodial  pro- 
prietors, were  bound  to  serve  on  horseback,  equipped  with 
the  coat  of  mail.  These  were  called  Caballarii,  from  which 
the  word  chevaliers  is  an  obvious  corruption.*  But  he  who 
fought  on  horseback,  and  had  been  invested  with  peculiar 
arms  in  a  solemn  manner,  wanted  nothing  more  to  render 
him  a  knight.  Chivalry  therefore  may,  in  a  general  sen<%e, 
be  referred  to  the  age  of  Charlemagne.  We  may,  however, 
go  further,  and  observe  that  these  distinctive  advantages 
above  ordinary  combatants  were  probably  the  sources  of  that 
remarkable  valor  and  that  keen  thirst  for  glory,  which 
became  the  essential  attributes  of  a  knightly  character.  For 
confidence  in  our  skill  and  strength  is  the  usual  foundation  of 
courage ;  it  is  by  feeling  ourselves  able  to  surmount  common 
dangers,  that  we  become  adventurous  enough  to  encounter 
those  of  a  more  extraordinary  nature,  and  to  which  more 
glory  is  attached.  The  reputation  of  superior  personal 
prowess,  so  difficult  to  be  attained  in  the  course  of  modem 

1  Nihil  iieqa«  piihUe»  neque  priTataB  etan,  donatum  ehlamyde  eoecloeA,  gem- 

let  niai  annatl  af  unt.    MA  arma  sumere  mato  balteo,  enae  Sazonlco  oum  Taginft 

Bon  aato  caiquam  moiis,  qalm  ciTitas  aareft.    1.  ii.  e.  6.    St.  Palaye  (Mimoiras 

•nflecturam  probaTerit.    Tarn   in  Ipso  sor  la  CheTalerle,  p.  2)  mentionfl  other 

oonciUo,  Tel  principuDi  aliquUi,  vel  pater,  initancOT ;  which  may  also  b«  Ibaod  io 

T»lproplDqaiM,Mutofyaiii^ueJa?eneiii  Da  Canfce'a  GloMary,  t.  Arnia,  and  Ib 

ornant ;  hme  apad  eoa  toga,  hlo  primus  his  22d  disMrtatlon  on  JoinTiUe. 

JorentM  honos;   ante  hoc  domns  pars  *  Comltes  et  ?aMaUI  noetri  qui  bene- 

Tidentar,  mox  relpublka.    De  Moribus  flcia  habere  noacuntur,  et  eabaUarit  om 

Oerman.  e.  18.  nes  ad  placltum  nostrum  venlaBt  bene 

*  William  of  Malmsboiy  nyi  that  prepaxatl.    Capltolaria,  a.d.  BOft^  in  Ite- 

Alfind  oonfemd  knighthood  on  Athel-  luie,  t.  L  p.  400. 

VOL   II.—  M.  87 


578  CmyALBT.  Chap.  DL  Pabi  O. 

warfare,  and  bo  liable  to  erroneous  representations,  was 
always  within  the  reach  of  the  stoutest  knight,  and  waa 
founded  on  claims  which  could  be  measured  with  much 
accuracj.  Such  is  the  subordination  and  mutual  dependence 
m  a  modem  army,  that  every  man  must  be  content  to  divide 
his  glory  with  his  comrades,  his  general,  or  his  soldiers.  But 
the  soul  of  chivalry  was  individual  honor,  coveted  in  so 
entire  and  absolute  a  perfection  that  it  must  not  be  shared 
with  an  army  or  a  nation.  Most  of  the  virtues  it  inspired 
were  what  we  may  call  independent,  as  opposed  to  those 
which  are  founded  upon  social  relations.  The  knights-errant 
of  romance  perform  their  best  exploits  from  the  love  of 
renown,  or  from  a  sort  of  abstract  sense  of  justice,  rather 
than  from  any  solicitude  to  promote  the  happiness  of  man- 
kind. K  these  springs  of  action  are  less  generally  beneficial, 
they  are,  however,  more  connected  with  elevation  of  charac- 
ter than  the  systematical  prudence  of  men  accustomed  to 
social  life.  This  solitary  and  independent  spirit  of  chivalry, 
dwelling,  as  it  were,  upon  a  rock,  and  disdaining  injustice  or 
falsehood  from  a  consciousness  of  internal  dignity,  without 
any  calculation  of  their  consequeuces,  is  not  unlike  what  we 
sometimes  read  of  Arabian  chiefs  or  the  North  American 
Indians.^  These  nations,  so  widely  remote  from  each  other, 
seem  to  partake  of  that  moral  energy,  which,  among  European 
nations  far  remote  from  both  of  them,  was  excited  by  the 
spirit  of  chivalry.  But  the  most  beautiful  picture  that  waa 
ever  portrayed  of  this  character  is  the  Achilles  of  Homer, 
the  representative  of  chivalry  in  its  most  general  form,  with 
all  its  sincerity  and  unyielding  rectitude,  all  its  courtesies  and 
munificence.  Calmly  indifferent  to  the  cause  in  which  he  la 
engaged,  and  contemplating  with  a  serious  and  unshaken  look 
the  premature  death  that  awaits  him,  his  heart  only  beats  for 
glory  and  friendship.  To  this  sublime  character,  bating  tliat 
imaginary  completion  by  which  the  creations  of  the  poet,  like 
those  of  the  sculptor,  transcend  all  single  works  of  nature, 
there  were  probably  many  parallels  in  the  ages  of  chivalry ; 
especially  before  a  set  education  and  the  refinements  of 
society  had  altered  a  little  the  natural  unadulterated  warrior 


I  W«  most  tftk»  fbr  thb   U10  mora  tnetioa  hM  tended  to  aflkMthoMTlrtVM 

fcTonble  repreMntaUons  of  the  Indian  which  poMlbly  were  nther  lamnm^tA 

Bfttione.  A  deteriorating  intercoune  with  bj  earlier  writers. 
Baropeaas,  or  a  zaoe  of  Karopean  «x 


Stats  of  Soczbtt.  CHTVALBY.  579 

of  a  ruder  period.  One  illustrioas  example  from  this  earlier 
age  is  the  Cid  Ruj  Diaz,  whose  history  has  fortunately  been 
preserved  much  at  length  in  several  chronicles  of  ancient 
date  and  in  one  valuable  poem ;  and  though  I  will  not  say 
that  the  Spanish  hero  is  altogether  a  counterpart  of  AchiUes 
in  gracefulness  and  urbanity,  yet  was  he  inferior  to  none,  that 
ever  lived  in  frankness,  honor,  and  magnanimity.^ 

In  the  first  state  of  chivalry,  it  was  closely  connected  with 
the  military  service  of  fiefs.     The  Caballarii  in 
the  Capitularies,  the  Milites  of  the  eleventh  and  nection  nitii 
twelfth  centuries,  were  landholders  who  followed  *^  ■•^ 
their  lord  or  sovereign  into  the  field.     A  certain 
value  of  land  was  termed  in  England  a  knight's  fee,  or  in 
NoiTuandy  feudum  loricse,  fief  de  haubert,  from  the  coat  of 
mail  which  it  entitled  and  required  the  tenant  to  wear ;  a  mil- 
itary tenure  was  said  to  be  by  service  in  chivalry.     To  serve 
as  knights,  mounted  and  equipped,  was  the  common  duty  of 
vassals ;  it  implied  no  personal  merit,  it  gave  of  itself  a  claim 
to  no  civil  privileges.     But  this  knight-service  founded  upon 
a  feudal  obligation  is  to  be  carefully  distinguished  from  that 
superior  chivalry,  in  which  all  was  independent  and  voluntary. 
The  latter,  in  fact,  could  hardly  flourish  in  its  full  perfection 
till  the  military  service  of  feudal  tenure  began  to  decline ; 
namely,  in  the  thirteenth  century.     The  origin  of  this  per- 
sonal chivalry  I  should  incline  to  refer  to  the  ancient  usage 
of  voluntary  commendation,  which  I  have  mentioned  in  a 
former  chapter.    Men  commended  themselves,  that  is,  did 

1  Sloce  this  pMHig«  WM  written*  I  ported,  fo  those  of  Hector  all  hear  n(- 

have  found    a  parallel  drawn   by  Mr.  erence   to  hin  kindred  and  his  country. 

Sharou  Turner,  In  his  Taluable  History  of  The  ardor  of  the  one  might  have  been 

Kngland,  between  Aehllles  and  Richard  extlnKuiBhed  for  want  of  nourishment  in 

Coeur  de  Lion ;  the  superior  justness  of  Thessaly ;  but  that  of  the  other  mighty 

wliich  [  readily  acknowledge.    The  real  we  fancy,  have  never  been  kindled  but 

hero  doe*  not  indeed  excite  so  much  in-  for  the  dangers  of  Troy.     Peace  could 

terest  in  me  as  the  poetical ;  but  the  have  brought  no  delight  to  the  one  but 

marks  of  resemblance  are  very  striking,  from  the  memory  of  war;    war  had  no 

whether  we  consider  their  passions,  their  alleviation  to  the  other  but  from  the 

talents,  tbdr  virtues,  their  vices,  or  tho  images  of  peace.    Compare,  for  example, 

waste  of  their  heroism.  the  two  speeches,  beginning  II.  Z.  441, 

The  two  principal  persons  in  thelUad,  and  11.  11.  49;  or  rather  compare  the 

If  I  may  dlgreni  into  the  observation,  ap-  two  characters  throughout  the  Iliad.  So 

pear  to  me  representatives  of  the  heroic  wonderfully  were  those  two  great  springs 

character  in  its  two  leading  varieties ;  of  of  human  sympathy,  variously  intereet- 

tlie  energy  which  has  its  sole  principle  of  ing  according  to  the  diversity  of  our 

action  within  itself,  and  of  that  which  tempers,  first  touched   by  that  andenl 

borrows  its  Impulse  trcm  external  rela-  patriarch, 

lions ;  of  the  spirit  of  honor,  in  short,  4  quo,  oen  fonts  perenni, 

and  of  patriotism.    As  every  sentiment  Vatnio  Pieriis  ora  rigantur  Minis 
•f  AohiUss  is  indepondiint  and  self-sup- 


580  CHIVALRT  Chap.  El.  Part  n. 

Thto  con-  homage  and  professed  attachment  to  a  prince  Ofr 
Mction  lord ;  geneniUj  indeed  for  protection  or  the  hope  of 
broken.  reward,  but  sometimes  probably  for  the  sake  of  di»- 
tinguishing  themselves  in  his  quarrels.  When  they  received 
pay,  which  must  have  been  the  usual  case,  they  were  literally 
his  soldiers,  or  stipendiary  troops.  Those  who  could  afford  to 
exert  their  valor  without  recompense  were  like  the  knights 
of  whom  we  read  in  romance,  who  served  a  foreign  master 
through  love,  or  thirst  of  glory,  or  gratitude.  The  extreme 
poverty  of  the  lower  nobility,  arising  from  the  subdivision  of 
fiefs,  and  the  politic  generosity  of  rich  lords,  made  this  connec- 
tion as  strong  as  that  of  territorial  dependence.  A  younger 
brother,  leaving  the  paternal  estate,  in  which  he  took  a  slender 
share,  might  look  to  wealth  and  dignity  in  the  service  of  a 
powerful  count  Knighthood,  which  he  could  not  claim  as  his 
legal  right,  became  the  object  of  his  chief  ambition.  It  raised 
him  in  the  scale  of  society,  equalling  him  in  dress,  in  arms, 
and  in  title,  to  the  rich  landholders.  As  it  was  due  to  his 
merit,  it  did  much  more  than  equal  him  to  those  who  had  no 
pretensions  but  from  wealth;  and  the  territorial  knights 
became  by  degrees  ashamed  of  assuming  the  title  till  thej 
could  challenge  it  by  real  desert 

This  class  of  noble  and  gallant  cavaliers  serving  commonljr 
for  pay,  but  on  the  most  honorable  footing,  became  far  more 
numerous  through  the  crusades ;  a  great  epoch  in  the  history 
Kflect  of  the  ^^  European  society.  In  these  wars,  as  all  feudal 
enuadeson  service  was  out  of  the  question,  it  was  necessary 
iuT»uy.  ij^^  ^^  richer  barons  to  take  into  their  pay  as 
many  knights  as  they  could  afford  to  maintain ;  speculating, 
so  far  as  such  motives  operated,  on  an  influence  with  the 
leaders  of  the  expedition,  and  on  a  share  of  plunder,  propor- 
tioned to  the  number  of  their  followers.  During  the  period 
of  the  ciiisades,  we  find  the  institution  of  chivalry  acquire  its 
full  vigor  as  an  order  of  personal  nobility ;  and  its  original 
connection  with  feudal  tenure,  if  not  altogether  effaced,  became 
in  a  great  measure  forgotten  in  the  splendor  and  dignity  of 
the  new  form  which  it  wore. 

The  crusaders,  however,  changed  in  more  than  one  respect 

the  character  of  chivalry.     Before  that  epoch  it 

^DMted      appears  to  have  had  no  particular  reference  to 

jrtg  re-        religion.    Ingulfus  indeed  tells  us  that  the  Anglo- 

^  Saxons  preceded  the  ceremony  of  invostiiare  by  a 


Dtatb  op  SoGisrT.  CHiyALRT.  561 

coufession  of  their  sins,  and  other  pious  riles,  und  thej 
received  the  order  at  the  hands  of  a  priest,  instead  of  a 
knight.  But  this  was  derided  by  the  Normans  as  effeminacj, 
and  seems  to  have  proceeded  from  the  extreme  devotion  of 
the  English  before  the  Conquest^  We  can  hardly  perceive 
indeed  why  the  assumption  of  arms  to  be  used  in  butchering 
mankind  should  be  treated  as  a  religious  ceremony.  The 
clergy,  to  do  them  justice,  constantly  opposed  the  private  wars 
in  which  the  courage  of  those  ages  wasted  itself;  and  all 
bloodshed  was  subject  in  strictness  to  a  canonical  penance. 
But  the  purposes  for  which  men  bore  arms  in  a  crusade  so 
sanctified  their  use,  that  chivalry  acquired  the  character  as 
much  of  a  religious  as  a  military  institution*  For  many  cen« 
turies,  the  recovery  of  the  Holy  Land  was  constantly  at  the 
heart  of  a  brave  and  superstitious  nobility ;  and  every  knight 
was  supposed  at  his  creation  to  pledge  himself,  as  occasion 
should  arise,  to  that  cause.  Meanwhile,  the  defence  of  God's 
law  against  infidels  was  his  primary  and  standing  duty.  A 
knight,  whenever  present  at  mass,  held  the  point  of  his  sword 
before  him  while  the  gospel  was  read,  to  signify  his  readiness 
to  support  it  Writers  of  the  middle  ages  compare  the 
knightly  to  the  priestly  character  in  an  elaborate  parallel, 
and  the  investiture  of  the  one  was  supposed  analogous  to  the 
ordination  of  the  other.  The  ceremonies  upon  this  occasion 
were  almost  wholly  religious.  The  candidate  passed  nights 
in  prayer  among  priests  in  a  church ;  he  received  the  sacra- 
ments ;  he  entered  into  a  bath,  and  was  clad  with  a  white 
robe,  in  allusion  to  the  presumed  purification  of  his  life ;  his 
8woi*d  was  solemnly  blessed ;  everything,  in  short,  was  con- 
trived to  identify  his  new  condition  with  the  defence  of  relig- 
ion, or  at  least  of  the  church.* 

To  this  strong  tincture  of  religion  which  entered  into  the 
composition  of  chivalry  from  the  twelfth  century,  was  added 
another  ingredient  equally  distinguishing.    A  gi'eat  And  with 
respect  for  the  female  sex  had  always  been  a  re-  «*i>*ntry. 
marluible  characteristic  of  the  Northern  nations.     The  Grer- 
man  women  were  high-spirited  and  virtuous ;  qualities  which 

1  Inralfbfl,  in  Oale,  XT.  Scriptores,  t.  aertatkm  on  Jolnrille,  St.  Palaye,  Mtoi. 

I.  p.  70.    William  RaftiSf  howeyer,  wu  but  la  CheTalerie,  part  ii.    A  euiiou 

knighted  by  Archbishop  Luiflcaao,  which  original  illustration  of  this,  ai  well  as  of 

looks  as  if  the  eeremony  was  not  ab«>-  other  chlTalrons  principles,  will  be  found 

lately  repognant  to  the  Norman  prao*  in  I'Ordene  de  ChcTalerie,  a  long  met* 

tiee.  rical  romance  published  in  Barbaam' 

s  9u  Oai«B,  T.  Mikfl,  and  aid  I>l»-  f  abUaux,  t.  i.  p.  68  (edit.  1S06}. 


582  CHIVALRT.  Chap.  IX.  Pabt  n 

might  be  causes  or  consequences  of  the  veneration  with  which 
thej  were  regarded.  I  am  not  sure  that  we  could  trace  very 
minutely  the  condition  of  women  for  the  period  between  the 
subversion  of  the  Roman  empire  and  the  first  crusade ;  but 
apparently  man  did  not  grossly  abuse  his  superiority ;  and  in 
point  of  civil  rights,  and  even  as  to  the  inheritance  of  proper- 
ty, the  two  sexes  were  placed  perhaps  as  nearly  on  a  level  aa 
the  nature  of  such  warlike  societies  would  admit  There 
seems,  however,  to  have  been  more  roughness  in  the  social 
intercourse  between  the  sexes  than  we  find  in  later  periods. 
The  spirit  of  gallantry  which  became  so  animating  a  principle 
of  chivalry,  must  be  ascribed  to  the  progressive  refinement  of 
society  during  the  twelfth  and  two  succeeding  centuries.  In 
a  rude  state  of  manners,  as  among  the  lower  people  in  all 
ages,  woman  has  not  full  scope  to  display  those  fascinating 
graces,  by  which  nature  has  designed  to  counterbalance  the 
strength  and  energy  of  mankind.  Even  where  those  jealous 
customs  that  degrade  alike  the  two  sexes  have  not  prevailed, 
her  lot  is  domestic  seclusion ;  nor  is  she  fit  to  share  in  the 
boisterous  pastimes  of  drunken  merriment  to  which  the  inter- 
course of  an  unpolished  people  is  confined.  But  as  a  taste 
for  the  more  elegant  enjoyments  of  wealth  arises,  a  taste 
which  it  is  always  her  policy  and  her  delight  to  nourish,  she 
obtains  an  ascendency  at  first  in  the  lighter  hour,  and  from 
thence  in  the  serious  occupations  of  life.  She  chases,  or 
brings  into  subjection,  the  god  of  wine,  a  victory  which  might 
seem  more  ignoble  were  it  less  difficult,  and  calls  in  the  aid 
of  divinities  more  propiUous  to  her  ambition.  The  love  of 
becoming  ornament  is  not  perhaps  to 'be  regarded  in  the  light 
of  vanity ;  it  is  rather  an  instinct  which  woman  has  received 
from  nature  to  give  efiect  to  those  charms  that  ai*e  her 
defence ;  and  when  commerce  began  to  minister  more  effect- 
ually to  the  wants  of  luxury,  the  rich  furs  of  the  Korth,  the 
gay  silks  of  Asia,  the  wrought  gold  of  domestic  manufacture, 
illumined  the  halls  of  chivalry,  and  cast,  as  if  by  the  spell  of 
enchantment,  that  ineffable  grace  over  beauty  which  the 
choice  and  arrangement  of  dress  is  calculated  to  bestow. 
Courtesy  had  always  been  the  proper  attribute  of  knight- 
hood ;  protection  of  the  weak  its  legitimate  duty ;  but  these 
were  heightened  to  a  pitch  of  enthusiasm  when  woman 
became  their  object.  There  was  little  jealousy  shown  in  the 
treatment  of  that  sex,  at  least  in  France,  the  fountain  of 


Btats  of  Socirt.  GmVALRT.  583 

chiralrj ;  they  were  present  at  festiYals,  at  tonmaments,  and 
sat  promiscuously  in  the  halls  of  their  castle.  The  romance 
of  Perceforest  (and  romances  have  always  heen  deemed 
good  witnesses  as  to  manners)  tells  of  a  feast  where  eight 
hundred  knights  had  each  of  them  a  lady  eating  cff  his 
plate.^  For  to  eat  off  the  same  plate  was  an  usual  mark  of 
gallantry  or  friendship. 

Next  therefore,  or  even  equal  to  devotion,  stood  gallantry 
among  the  principles  of  knighthood.  But  all  comparison 
between  the  two  was  saved  by  blending  them  together.  The 
love  of  Grod  and  the  ladies  was  enjoined  as  a  single  duty.  He 
who  was  faithful  and  true  to  his  mistress  was  held  sure  of 
salvation  in  the  theology  of  castles  though  not  of  cloisters.' 
Froissart  announces  that  he  had  undertaken  a  collection  of 
amorous  poetry  with  the  help  of  Grod  and  of  love;  and 
Boccace  returns  thanks  to  each  for  their  assistance  in  the 
Decameron.  The  laws  sometimes  united  in  this  general 
homage  to  the  fair.  ^  We  will,"  says  James  II.  of  Aragon, 
**  that  every  man,  whether  knight  or  no,  who  shall  be  in  com- 
pany with  a  lady,  pass  safe  and  unmolested,  unless  he  be  guilty 
of  murder.*'*  Louis  II.,  duke  of  Bourbon,  instituting  the 
order  of  the  Grolden  Shield,  enjoins  his  knights  to  honor 
above  all  the  ladies,  and  not  to  permit  any  one  to  slander 
them, "  because  from  them  after  Grod  comes  all  the  honor 
that  men  can  acquire.*'  ^ 

The  gallantry  of  those  ages,  which  was  very  often  adulter- 
ous, had  certainly  no  right  to  profane  the  name  of  religion  ; 
but  its  union  with  valor  was  at  least  more  natural,  and  became 
BO  intimate,  that  the  same  word  has  served  to  express  both 
qualities.  In  the  French  and  English  wars  especially,  the 
knights  of  each  country  brought  to  that  serious  conflict  the 
spirit  of  romantic  attachment  which  had  been  cherished  in 
the  hours  of  peace.  They  fought  at  Poitiers  or  Verneuil  as 
they  had  fought  at  tournaments,  bearing  over  their  armor 
scarfs  and  devices  as  the  livery  of  their  mistresses,  and 

1  Y  eut  hnit  c«n8  cheralleni  stent  i  layers  M6moirefl  from  the  first  edition  in 

tebto;  et  si  n*y  ru»t  celul  qui  n'eust  une  17&9,  which  is  not  the  best, 

dame  ou  un«  pucelle  4  son  ecuelle.    In  *  StatuimuSf  qaod  omnia  homo,  siye 

lAnnrelot    du    Iac,  a   lady,  who  was  miles  sire  alius  qui  irerit  cam  domioft 

troubled  with  a  JcaJons  husband,  com-  senerosA,  salrus  sit  atque  socums,  nirf 

plains  that  It  was  a  long  time  since  a  fuerit  homirida.    De  Slarca,  Bfaroa  His* 

Knight   had   eaten   off   her  plate.     JLe  panics,  p.  1428. 

Grand,  t.  i.  p.  24.  «  Le  Grand,  t.  i.  p.  120;   St.  Palaye, 

9  Le  Grand  Fabliaux,  t.  iU.  p.  488 ;  t.  i.  p.  13. 184,  221 ;  FabUanx,  Romaneit, 

St.  Palafa,  ft  i.  p.  41.    I  qaoto  St.  P»>  ftc,  passim. 


584  CmVALRT.  Chap.  IZ.  Pabt  IL 

asserting  the  paramount  beauty  of  her  thej  served  in  yaant- 
ing  challenges  towards  the  enemy.  Thus  in  the  middle  of  a 
keen  skirmish  at  Cherbourg,  the  squadrons  remained  motion- 
less, while  one  knight  challenged  to  a  single  combat  the  most 
amorous  of  the  adversaries.  Such  a  defiance  was  soaa 
accepted,  and  the  battle  only  recommenced  when  one  of  the 
champions  had  lost  his  life  for  his  love.^  In  the  first  cam* 
paign  of  Edwai-d's  war  some  young  English  knights  wore  a 
covering  over  one  eye,  vowing,  for  the  sake  of  their  ladiea, 
never  to  see  with  both  till  they  should  have  signalized  their 
prowess  in  the  field.^  These  extravagances  of  chivalry  are 
so  common  that  they  form  part  of  its  general  character,  and 
prove  how  far  a  coui-se  of  action  which  depends  upon  the 
impulses  of  sentiment  may  come  to  deviate  from  common 
sense.  * 

It  cannot  be  presumed  that  this  enthusiastic  veneration, 
this  devotedness  in  life  and  death,  were  wasted  upon  ungrate- 
ful natures.  The  goddesses  of  that  idolatry  knew  too  well 
the  value  of  their  worshippers.  There  has  seldom  been  such 
adamant  about  the  female  heart,  as  can  resist  the  highest  re- 
nown tor  valor  and  courtesy,  united  with  the  steadiest  fidelity. 
**  He  loved,"  says  Froissart  of  Eustace  d*Auberthicourt,  **  and 
afterwards  married  lady  Isabel,  daughter  of  the  count  of 
Juliers.  This  lady  too  loved  lord  Eustace  for  the  great  ex- 
ploits in  arms  which  she  heard  told  of  him,  and  she  sent  him 
horses  and  loving  letters,  which  made  the  said  lord  Eustace 
more  bold  than  befoi^e,  and  he  wrought  such  feats  of  chival- 
ry, that  all  in  his  com))any  were  gainers."'  It  were  to  be 
wished  that  the  sympathy  of  love  and  valor  had  always  been 
as  honorable.  But  the  morals  of  chivalry,  we  cannot  deny, 
were  not  pure.  In  the  amusing  fictions  which  seem  to  have 
besn  the  only  popular  reading  of  the  middle  ages,  there 
reigns  a  licentious  spirit,  not  of  that  slighter  kind  which  is 
usual  in  such  compositions,  but  indicating  a  general  dissolute- 
ness in  the  intercourse  of  the  sexes.  This  has  oAen  been 
noticed  of  Boccaccio  and  tlie  early  It&lian  novelists ;  but  it 
equally  characterized  the  tales  and  romances  of  France, 
whether  metrical  or  in  prose,  and  all  the  poetry  of  the  Trou- 
badours.^   The  violation  of  marriage  vows  passes  in  them 

1  8t  Palaye,  p.  222.  *  The  romtnoM  will  speak  fbr  them* 

>  Froiisart,  p.  88.  m\m ;  and  the  ohaneter  of  the  Pro- 

•  8t.  Paliiye,  p.  268.  rm^  monUty  raaj  te  eoUeeted  fkiNi 


Statb  of  SodXTT.    VIRTUES  OF  CHIVALRT.  585 

for  an  incontestable  privilege  of  the  brave  and  the  fair ;  and 
an  accoraplidhed  knight  seems  to  have  enjoyed  as  undoubted 
prerogatives,  by  general  consent  of  opinion,  as  were  claimed 
by  the  brilliant  courtiers  of  Louis  XY. 

But  neither  that  emulous  valor  which  chivalry  excited,  nor 
the  religion  and  gallantry  which  were  its  animating  principles, 
aUoyed  as  thv^  latter  were  by  the  corruption  of  those  ages, 
could  have  rendered  its  institution  materially  conducive  to 
the  moral  improvement  of  society.  There  were,  however, 
excellences  of  a  very  high  class  which  it  equally  encouraged. 
In  the  books  professedly  written  to  lay  down  the  duties  of 
knighthood,  they  appear  to  spread  over  the  whole  compass  of 
human  obligations.  But  these,  like  other  books  of  morality, 
strain  their  schemes  of  perfection  far  beyond  the  actual  prac- 
tice of  mankind.  A  juster  estimate  of  chivalrous  manners  is 
to  be  deduced  from  romances.  Yet  in  these,  as  in  all  similar 
fictions,  there  must  be  a  few  ideal  touches  beyond  the  simple 
truth  of  character ;  and  the  picture  can  only  be  interesting 
when  it  ceases  to  present  images  of  mediocrity  or  striking 
imperfection.  But  they  referred  their  models  of  fictitious 
heroism  to  the  existing  standard  of  moral  approbation;  a 
rule,  which,  if  it  generally  falls  short  of  what  reason  and  re- 
ligion prescribe,  is  always  beyond  the  average  tenor  of  hu- 
man conduct.  From  these  and  from  history  itself  we  may 
infer  the  tendency  of  chivalry  to  elevate  and  purify  the 
moral  feelings.  Three  virtues  may  particularly 
be  noticed  as  essential  in  the  estimation  of  man-^]^^^^ 
kind  to  the  character  of  a  knight ;  loyalty,  cour-  »ntiai  to 
tesy,  and  munificence.  ^  ' 

The  first  of  these  in  its  original  sense  may  be  defined, 
fidelity  to  engagements ;  whether  actual  promises,  j^^^ 
or  such  tacit  obligations  as  bound  a  vassal  to  his 
lord  and  a  subject  to  his  prince.  It  was  applied  also,  and  in 
the  utmost  strictness,  to  the  fidelity  of  a  lover  towards  the 
lady  he  served.  Breach  of  faith,  and  especially  of  an  ex- 
press promise,  was  held  a  disgrace  that  no  valor  could  re- 
deem. False,  peijured,  disloyal,  recreant,  were  the  epithets 
which  he  must  be  compelled  to  endure  who  had  swerved  from 
a  plighted  engagement  even  towards  an  enemy.  This  is  one 
of  the  most  striking  changes  produced  by  chivalry.     Treach- 

Killot,  mat  dM  TroobAdotin,  pssrim;    t.  i.  p.  179,  &e.    8oe  too  St.  Talajre,  L 
•nd  firom  Slsmondi,  Litt6ntaro  da  Midi,    IL  p.  82  and  09. 


586  CHABACTERISTIC  VIRTUES    Chap.  IX.  Part  XL 

ery,  the  usual  vice  of  eavage  as  well  as  corrupt  nations,  be- 
came infamous  during  the  vigor  of  that  disinpline.  As  })er« 
sonal  rather  than  national  feelings  actuated  its  heroes,  they 
never  felt  that  hatred,  much  less  that  fear  of  their  enemies, 
which  blind  men  to  the  heinousness  of  ill  faith.  In  the  wars 
of  Edward  III.,  originating  in  no  real  animosity,  the  spirit 
of  honorable  as  well  as  courteous  behavior  towards  the  foe 
seems  to  have  arrived  at  its  highest  point.  Though  avarice 
may  have  been  the  primary  motive  of  ransoming  prisoners 
instead  of  putting  them  to  death,  their  permission  to  return 
home  on  the  word  of  honor  in  order  to  procure  the  stipuhited 
sum  —  an  indulgence  never  refused  —  could  only  be  founded 
on  experienced  confidence  in  the  principles  of  chivalry.^ 

A  knight  was  unfit  to  remain  a  member  of  the  order  if  he 
ConrtciT  violated  his  faith;  he  was  ill  acquainted  with  its 
duties  if  he  proved  wanting  in  courtesy.  This 
word  expressed  the  most  highly  refined  good  breeding,  found- 
ed less  upon  a  knowledge  of  ceremonious  politeness,  though 
this  was  not  to  be  omitted,  than  on  the  spontaneous  modesty, 
self-denial,  and  respect  for  others,  which  ought  to  spring  from 
his  heart.  Besides  the  grace  which  this  beautiful  virtue  threw 
over  the  habits  of  social  life,  it  soflened  down  the  natural 
roughness  of  war,  and  gradually  introduced  that  indulgent 
treatment  of  prisoners  which  was  almost  unknown  to  antiqui- 
ty. Instances  of  this  kind  are  continual  in  the  later  period 
of  the  middle  ages.  An  Italian  writer  blames  the  soldier  who 
wounded  Eccelin,  the  famous  tyrant  of  Padua,  afler  he  was 
taken.  ^  He  deserved,"  says  he,  ^  no  praise,  but  rather  the 
greatest  infamy  for  his  baseness ;  since  it  is  as  vile  an  act  to 
wound  a  prisoner,  whether  noble  or  otherwise,  as  to  strike  a 
dead  body."^  Considering  the  crimes  of  Eccelin,  this  senti- 
ment is  a  remarkable  proof  of  generosity.  The  behavior  of 
Edwaixi  III.  to  Eustace  de  Ribaumont,  afler  the  capture  of 
Calais,  and  that,  still  more  exquisitely  beautiful,  of  the  Black 
Prince  to  his  royal  prisoner  at  Poitiers,  are  such  eminent  in- 
stances of  chivalrous  virtue,  that  I  omit  to  repeat  them  only 
because  they  are  so  well  known.  Those  great  princes  too 
might  be  imagined  to  have  soared  far  above  the  ordinary 

1  St.  Palayo,  part  il.  Tel  Ignobllem  oflfendere,  Tet  ferira,  qjakm 

s  Non  laudcm    memit,  sed   stimmfe  gladio  cedere  cadAver.    Rolaadiniu,  !■ 

potlus  opprobrium  Tilitatls  ;  nam  idem  Script.  Bar.  Ital.  t.  viU.  p.  8&1> 

lacinuB  wt  putandam  captiim  oobilam 


SrATS  OF  SocmT.  OF  CHIYALRT.  587 

track  of  mankind.  Bat  in  truth;  the  knights  who  sarrouiided 
them  and  imitated  their  excellences,  were  only  inferior  in 
opportunities  of  displaying  the  same  virtue.  Af^er  the  battle 
of  Poitiers,  '*  the  English  and  Gascon  knights,'*  says  Frois- 
sart,  ^  having  entertained  their  prisoners,  went  home  each  of 
them  with  the  knights  or  squires  he  had  taken,  whom  he  then 
questioned  upon  th^r  honor  what  ransom  they  could  pay 
without  inconvenience,  and  easily  gave  them  credit ;  and  it 
was  common  for  men  to  say,  that  they  would  not  straiten 
any  knight  or  squire  so  that  he  should  not  live  well  and  keep 
up  his  honor.^  Liberality,  indeed,  and  disdain  of 
money,  might  be  reckoned,  as  I  have  said,  among  ^' 

the  essential  virtues  of  chivalry.  All  the  romances  inculcate 
the  duty  of  scattering  their  wealth  with  profusion,  especially 
towards  minstrels,  pilgrims,  and  the  poorer  members  of  their 
own  order.  The  last,  who  were  pretty  numerous,  had  a  con- 
stant right  to  succor  from  the  opulent ;  the  castle  of  every 
lord,  who  respected  the  ties  of  knighthood,  was  open  with 
more  than  usual  hospitality  to  the  traveller  whose  armor  an- 
nounced his  dignity,  though  it  might  also  conceal  his  pov- 
erty.* 

Valor,  loyalty,  courtesy,  munificence,  formed  collectively 
the  character  of  an  accomplished  knight,  so  far  as  was  dis- 
played in  the  ordinary  tenor  of  his  life,  reflecting  these  vir- 
tues as  an  unsullied  mirror.  Yet  something  more  was  re- 
quired for  the  perfect  idea  of  chivalry,  and  enjoined  by  its 
principles ;  an  active  sense  of  justice,  an  ardent 
indignation  against  wrong,  a  determination  of 
coui*age  to  its  best  end,  the  prevention  or  redress  of  injury. 
It  grew  up  as  a  salutary  antidote  in  the  midst  of  poisons, 
while  scarce  any  law  but  that  of  the  strongest  obtained  re- 
gard, and  the  rights  of  territorial  property,  which  are  only 
rights  as  they  conduce  to  general  good,  became  the  means  of 
general  oppression.  The  real  condition  of  society,  it  has 
sometimes  been  thought,  might  suggest  stories  of  knjght- 

1  FralaMiii,  1.  i.  «.  161.    He  remarks  was  the  onstom  In  Oreat  BriMn,  (nys 

tn  another  place   that  all  BajUxh  and  the  romanee  of  Pereeforeet,  epeaklng  of 

French  gentlemen  treat  their  prleooen  course  In  an  Imaginary  hietoiy.)  that 

well ;  not  eo  the  Oermans,  who  put  them  noblemen  and  ladiw  plnced  a  helmet  on 

In   fetters.   In   order   to   extort    more  the  highest  point  of  their  castles,  as  a 

money,  e.  i3S.  sign  that  all  persons  of  such  rank  trav- 

«  St.  Palaye,  part  Ir.  p  812,  9)7.  fte.  elling  that  road  might  boldly  enter  theii 

fie  Grand,  fabliaux,  t.  i.  p.  116, 167.    It  houses  like  their owa.   St.  Palaye,  p.  867. 


588  CHARACTERISTIC  VIRTUES     Chap.  IX.  Part  U. 

errantry,  which  were  wrought  up  into  the  popular  romances 
of  the  middle  ages.  A  baron,  abusing  the  advantage  of  an 
inaccessible  castle  in  the  fastnesses  of  the  Black  Forest  or 
the  Alps,  to  pillage  the  neighborhood  and  confine  travellers 
in  his  dungeon,  though  neither  a  giant  nor  a  Saracen,  was  a 
monster  not  less  formidable,  and  could  perhaps  as  little  be 
destroyed  without  the  aid  of  disinterested  bravery.  Knight- 
errantry,  indeed,  as  a  profession,  cannot  rationally  be  con- 
ceived to  have  had  any  existence  beyond  the  precincts  of  ro- 
mance. Yet  there  seems  no  improbability  in  supposing  that 
a  knight,  journeying  through  uncivilized  regions  in  his  way 
to  the  Holy  Land,  or  to  the  court  of  a  foreign  sovereign, 
might  find  himself  engaged  in  adventures  not  very  dissimilar 
to  those  which  are  the  theme  of  romance.  We  cannot  in- 
deed expect  to  find  any  historical  evidence  of  such  incidents. 
The  characteristic  virtues  of  chivalry  bear  so  much  re- 
semblance  to  those  which  eastern  writers  of  the 
of  ebirairous  same  peHod  extol,  that  I  am  a  little  disposed  to 
mannen?  suspect  Europe  of  having  derived  some  improve- 
ment from  imitation  of  Asia.  Though  the  cru- 
sades began  in  abhorrence  of  infidels,  this  sentiment  wore  off 
in  some  degree  before  their  cessation ;  and  the  regular  inter- 
course of  commerce,  sometimes  of  alliance,  between  the 
Christians  of  Palestine  and  the  Saracens,  must  have  re- 
moved part  of  the  prejudice,  while  experience  of  their  ene- 
my's courage  and  generosity  in  war  would  with  those  gallant 
knights  serve  to  lighten  the  remainder.  The  romancers  ,ex- 
patiate  with  pleasure  on  the  merits  of  Saladin,  who  actually 
received  the  honor  of  knighthood  from  Hugh  of  Tabaria,  his 
prisoner.  An  ancient  poem,  entitled  the  Order  of  Chivalry, 
is  founded  upon  this  story,  and  contains  a  circumstantial  ac- 
count of  the  ceremonies,  as  well  as  duties,  which  the  institu- 
tion required.^  One  or  two  other  instances  of  a  similar  kind 
bear  witness  to  the  veneration  in  which  the  name  of  knight 
was  held  among  the  eastern  nations.  And  certainly  the  Mo- 
hammedan chieftains  were  for  the  most  part  abundantly  qual- 
ified to  fulfil  the  duties  of  European  chivalry.  Their  man- 
ners had  been  polished  and  courteous,  while  the  western 
kingdoms  were  comparatively  barbarous. 

The  principles  of  chivalry  were  not,  I  think,  naturally 

1  TiabUaox  de  Barbasan,  I.  L 


8TATB  OF  SociKTT.  OF  CHTVALBT.  589 

productive  of  manj  evils.  For  it  is  unjust  to  class 
those  acts  of  oppression  or  disorder  among  the  durwi^i^tiM 
abuses  of  knighthood,  which  were  committed  in  ^l^J^JJ 
spite  of  its  regulations,  and  were  only  prevented 
bj  them  from  becoming  more  extensive.  The  license  of 
times  so  imperfectly  civilized  could  not  be  expected  to  yield 
to  institutions,  which,  like  those  of  religion,  fell  prodigiously 
short  in  their  practical  result  of  the  reformation  which  they 
were  designed  to  work.  Man's  guilt  and  frailty  have  nevejr 
admitted  more  than  a  partial  corrective.  But  some  bad  con* 
sequences  may  be  more  fairly  ascribed  to  the  very  nature  of 
chivalry.  I  have  already  mentioned  the  dissoluteness  which 
almost  unavoidably  resulted  from  the  prevailing  tone  of  gal- 
lantry. And  yet  we  sometimes  find  in  the  writings  of  those 
times  a  spirit  of  pure  but  exaggerated  sentiment;  and  the 
most  fanciful  refinements  of  passion  are  mingled  by  the  same 
poets  with  the  coarsest  immorality.  An  undue  thirst  for  mil- 
itary renown  was  another  fault  that  chivalry  must  have  nour- 
ished; and  the  love  of  war,  sufficiently  pernicious  in  any 
shape,  was  more  founded,  as  I  have  observed,  on  personal 
feelings  of  honor,  and  less  on  public  spirit,  than  in  the  cit- 
izens of  free  states.  A  third  reproach  may  be  made  to  the 
character  of  knighthood,  that  it  widened  the  separation  be- 
tween the  different  classes  of  society,  and  confirmed  that 
aristocratical  spirit  of  high  birth,  by  which  the  large  mass  of 
mankind  were  kept  in  unjust  degradation.  Compare  the 
generosity  of  Edward  III.  towards  Eustace  de  Ribaumont 
at  the  siege  of  Calais  with  the  harshness  of  his  conduct 
towards  the  citizens.  This  may  be  illustrated  by  a  story 
from  Joinville,  who  was  himself  imbued  with  the  full  spirit 
of  chivalry,  and  felt  like  the  best  and  bravest  of  his  age. 
He  is  speaking  of  Henry  count  of  Champagne,  who  ac- 
quired, says  he,  very  deservedly,  the  surname  of  Liberal, 
and  adduces  the  following  proof  of  it.  A  poor  knight  im- 
plored of  him  on  his  knees  one  day  as  much  money  as  would 
serve  to  marry  his  two  daughters.  One  Arthault  de  Nogent, 
a  rich  burgess,  willing  to  rid  the  count  of  this  importunity, 
but  rather  awkward,  we  must  own,  in  the  turn  of  his  ar- 
gument, said  to  the  petitioner:  My  lord  has  already  given 
away  so  much  that  he  has  nothing  lefl.  Sir  Villain,  replied 
Heniy,  turning  round  to  him,  you  do  not  speak  truth  in  say- 
ing that  I  have  nothing  left  to  give,  when  I  have  got  your- 


590  SPIRIT  OF  CHIVALRY.     Chap.  IX.  Part  IL 

self.  Here,  Sir  Knight,  I  give  you  this  man  and  warrant 
your  possession  of  him.  Then,  says  Joinviile,  the  poor 
knight  was  not  at  all  confounded,  but  seized  hold  of  the  bur- 
gess fast  by  the  collar,  and  told  him  he  should  not  go  till  he 
had  ransomed  himself.  And  in  the  end  he  was  forced  to  pay 
a  ransom  of  five  hundred  pounds.  The  simple-minded  writer 
who  brings, this  evidence  of  the  count  of  Champagne's  lib-' 
erality  is  not  at  all  struck  with  the  facility  of  a  virtue  that  is 
exercised  at  the  cost  of  others.^ 

There  is  perhaps  enough  in  the  nature  of  this  institution 
and  its  congeniality  to  the  habits  of  a  warlike 
staoMtead.  generation  to  account  for  the  respect  in  which  it 
Jng  to  pro-  was  held  throughout  Europe.  But  several  collat- 
eral circumstances  served  to  invigorate  its  spiriL 
Besides  the  powerful  efficacy  with  which  the  poetry  and  ro- 
mance of  the  middle  ages  stimulated  those  susceptible  minds 
which  were  alive  to  no  other  literature,  we  may  enumerate 
four  distinct  causes  tending  to  the  promotion  of  chivalry. 
The  first  of  these  was  the  regular  scheme  of  education,  ao- 
cordin<r  to  which  the  sons  of  sentlemen  from  the 
aduoittoD  ^^  o^  seven  years,  were  brought  up  in  the  cas- 
hajdr****^  ties  of  superior  lords,  where  they  at  once  learned 
the  whole  discipline  of  their  future  profession, 
and  imbibed  its  emulous  and  enthusiastic  spirit.  This  was 
an  inestimable  advantage  to  the  poorer  nobility,  who  could 
hardly  otherwise  have  given  their  childi*en  the  accomplish- 
ments of  their  station.  From  seven  to  fourteen  these  boys 
were  called  pa^^es  or  varlets ;  at  fourteen  they  bore  the  name 
of  esquire.  They  were  instructed  in  the  management  of 
arms,  in  the  art  of  horsemanship,  in  exercises  of  strength 
and  activity.  They  became  accustomed  to  obedience  and 
courteous  demeanor,  serving  their  lord  or  lady  in  offices  which 
had  not  yet  become  derogatory  to  honorable  birth,  and  striv- 
ing to  please  visitors,  and  especially  ladies,  at  the  ball  or 
banquet.  Thus  placed  in  the  centre  of  all  that  could  awa- 
ken their  imaginations,  the  creed  of  chivalrous  gallantry,  su- 
pdrstition,  or  honor  must  have  made  indelible  impressions. 
Vanting  for  the  glory  which  neither  their  strength  nor  the 
established  rules  permitted  them  to  anticipate,  the  young 
•cions  of  chivalry  attended  their  masters  to  the  toiunament, 

I  JolnTillt  in  OoUeoUon  dM  Itteidnt,  t.  L  p  4S. 


Btats  OF  SociBTT.    ENCOUBAOEMENT  OF  PRINCES  591 

and  even  to  the  battle,  and  riveted  with  a  sigh  the  annor 
they  were  forbidden  to  wear.* 

It  was  the  constant  policj  of  soTereigns  to  encourage  thin 
institution,  which  furnished  them  with  faithful  sup-  xneoanic^ 
ports,  and  counteracted  the  independent  spirit  of  meqtof 
feudal  tenure.  Hence  thej  displayed  a  lavish  $oarn»l 
magnificence  in  festivals  and  tournaments,  which  «»•»'•• 
may  be  reckoned  a  second  means  of  keeping  up  the  tone  of 
chivalrous  feeling.  The  kings  of  France  and  England  held 
solemn  or  plenary  courts  at  the  great  festivals,  or  at  other 
times,  where  the  name  of  knight  was  always  a  title  to  ad- 
mittance ;  and  the  mask  of  chivalry,  if  I  may  use  the  ex- 
pression, was  acted  in  pageants  and  ceremonies  fantastical 
enough  in  our  apprehension,  but  well  calculated  for  those 
heated  understandings.  Here  the  peacock  and  the  pheasant, 
birds  of  high  fame  and  romance,  received  the  homage  of  all 
true  knights.'  The  most  singular  festival  of  this  kind  was 
that  celebrated  by  Philip  duke  of  Burgundy,  in  1453.  In 
the  midst  of  the  banquet  a  pageant  was  introduced,  repre- 
senting the  calamitous  state  of  religion  in  consequence  of  the 
recent  capture  of  Constantinople.  This  was  followed  by  the 
appearance  of  a  pheasant,  which  was  laid  before  the  duke, 
and  to  which  the  knights  present  addressed  their  vows  to 
undertake  a  crusade,  in  the  following  very  characteristic  pre- 
amble :  I  swear  before  Grod  my  Creator  in  the  first  place, 
and  the  glorious  Virgin  his  mother,  and  next  before  the  ladies 
and  the  pheasant*  Tournaments  were  a  still  more  powerful 
incentive  to  emulation.  These  may  be  considered  to  have 
arisen  about  the  middle  of  the  eleventh  century ;  for  though 
every  martial  people  have  found  diversion  in  representing 
the  image  of  war,  yet  the  name  of  tournaments,  and  the 
laws  that  regulated  them,  cannot  be  traced  any  higher.^ 
Every  scenic  performance  of  modem  times  must  be  tame  in 
comparison  of  these  animating  combats.  At  a  toumamenti 
the  space  enclosed  within  the  lists  was  surrounded  by  sov* 
ereign  princes  aud  their  noblest  barons,  by  knights  of  estab- 
lished renown,  and  all  that  rank  and  beauty  had  most  dis- 

1  St.  PatajB,  put  L  feo  haTe  Invented  tonmaments ;  which 

*  Dn  G»tt|{e,  6"»  PI— ttoUou  rar  mnftofconmebenndentoodlnftlfanited 
JolnTiUe.  St.  Palaye,  t.  I.  p.  87,  US.  aenM-  The  Oonnans  Mcribe  them  to 
Le  Grand,  t.  L  p.  14.  Henxy  the  Fowler;  but  thie,  Meordinf  to 

•  St.  Palaye,  1. 1,  p.  191.  Da  Gaage,  ie  on  no  anthoiity.     fl 
«  Godftey  de  Pveoflly,  a  fMneh  knight,    Mrtatioa  tar  JoinTlUe. 

li  Hid  bj  Mveiai  eontenporarf  writan 


592  KNIGHTHOOD.  Chap.  IX.  Pakt  IT 

tingnisbed  among  the  fajr.  Covered  with  steel,  and  known 
only  by  their  emblazoned  shield  or  by  the  favors  of  their 
mistresses,  a  still  prouder  bearing,  the  combatants  rushed  for^ 
ward  to  a  strife  without  enmity,  but  not  without  danger. 
Though  their  weapons  were  pointless,  and  sometimes  only 
of  wood,  though  they  were  bound  by  the  laws  of  tourna- 
ments to  strike  only  upon  the  strong  armor  of  the  trunk,  or, 
as  it  was  called,  between  the  four  limbs,  those  impetuous  con- 
flicts oflen  terminated  in  wounds  and  death.  The  church 
uttered  her  excommunications  in  vain  against  so  wanton  an 
exposure  to  peril;  but  it  was  more  easy  for  her  to  excite 
than  to  restrain  that  martial  enthusiasm.  Victory  in  a  tour- 
nament was  little  less  glorious,  and  perhaps  at  the  moment 
more  exquisitely  felt,  than  in  the  field;  since  no  battle  could 
assemble  such  witnesses  of  valor.  ".Honor  to  the  sons  of 
the  brave,"  resounded  amidst  the  din  of  martial  music  from 
the  lips  of  the  minstrels,  as  the  conqueror  advanced  to  re- 
ceive the  prize  from  his  queen  or  his  mistress;  while  the 
surrounding  multitude  acknowledged  in  his  prowess  of  that 
day  an  augury  of  triumphs  that  might  in  more  serious  con- 
tests be  blended  with  those  of  his  country.* 

Both  honorary  and  substantial  privileges  belonged  to  the 
priTiieges  of  condition  of  knighthood,  and  had  of  course  a  ma- 
knighthood,  Serial  tendency  to  preserve  its  credit.  A  knight 
was  distinguished  abroad  by  his  crested  helmet,  his  weighty 
armor,  whether  of  mail  or  plate,  bearing  his  heraldic  coat,  by 
his  gilded  spurs,  his  horse  barded  with  iron,  or  clothed  in 
housing  of  gold;  at  home,  by  richer  silks  and  more  costly 
furs  than  were  permitted  to  squires,  and  by  the  appropriated 
color  of  scarlet  He  was  addressed  by  titles  of  more  re- 
spect.' Many  civil  offices,  by  rule  or  usage,  were  confined  to 
his  order.  But  perhaps  its  chief  privilege  was  to  form  one 
distinct  class  of  nobility  extending  itself  throughout  great 
part  of  Europe,  and  almost  independent,  as  to  its  rights  and 
dignities,  of  any  particular  sovereign.  Whoever  had  been 
legitimately  dubbed  a  knight  in  one  country  became,  as  it 
were,  a  citizen  of  universal  chivalry,  and  might  assume  most 
of  its  privileges  in  any  other.  Nor  did  he  require  the  act  of 
a  sovereign  to  be  thus  distinguished.     It  was  a  fundamental 

1  St.  Palaye,  part  U.  and  part  iil.  aa  *  St.  PalaTe,  part  Ir.    S«IdeQ*8  Title* 

oommeiicement.    Ba  Cange,  Dissert.  6  of  Honor,  p.  806.    Thore  was  not,  how- 

and  7:  and  Oloaoujr,  t.  Tomeamentom.  enr,  so  much  diatiiietion  in  Engtand  as 

La  Grandf  Fabliaux,  t.  i.  p.  184.  in  Vranoe. 


Statb  of  Socixtt. 


KNIGHTHOOD. 


593 


principle  that  any  knight  might  confer  the  order ;  responsible 
only  in  his  own  reputation  if  he  used  lightly  so  high  a  pre* 
rogative.  But  as  all  the  distinctions  of  rank  might  have  been 
confounded,  if  this  right  had  been  without  limit,  it  was  an 
equally  fundamental  rule,  that  it  could  only  be  exercised  in 
favor  of  gentlemen.* 

The  privileges  annexed  to  chivalry  were  of  peculiar  ad- 
vantage to  the  vavassors,  or  inferior  gentry,  as  they  tended 
to  counterbalance  the  influence  which  territorial  wealth  threw 
into  the  scale  of  their  feudal  suzerains.  Knighthood  brought 
these  two  classes  nearly  to  a  level ;  and  it  is  owing  perhaps 
in  no  small  degree  to  this  institution  that  the  lower  nobility 
saved  themselves,  notwithstanding  their  poverty,  from  being 
confounded  with  the  common  people. 


1  St.  PalA7«,  Tol.  i.  p.  70.  has  fbrgotten 
to  make  this  dlsti action.  It  is,  howeTer, 
capable  of  abundant  proof.  Quntherf  in 
his  poem  called  LigurinuSi  observes  of 
the  Ullanose  republic  : 

Qnoslibet  ex  humill  Tulgo,  qnod  OalUa 

foedum 
Jndieat,  accingi  gladio  ooncedit  eqnes- 

tri. 

Otho  of  Frislngen  ezpremes  the  same  In 
proee.  It  is  said,  in  the  £iitabllshments 
of  St.  Louis,  that  if  any  one  not  being 
a  gentleman  on  the  father's  side  was 
kn^^hted,  the  king  or  baron  in  whose 
territory  ho  reside,  may  iiock  off  his 
spurs  on  a  dunghill,  e.  ISO.  The  count 
die  Nevers,  having  knighted  a  person  who 
was  not  noble  ex  parte  patcml,  was  flned 
in  the  king's  court.  The  king,  however, 
(Philip  III.)  confirmed  the  knighthood, 
baniel.  Hist,  de  la  Milice  Fran^oiae,  p. 
98.     Vuit  jpropositum  (says  a  pasnge 

S noted  by  Daniel)  contra  comitem  Flan- 
riensem,  quod  nnn  poterat,  nee  debebat 
Ikcere  de  viilano  militem,  sine  auctorltate 
r^^.  ibid.  StatuimuH,  says  James  T.  of 
Aragon,  in  1284,  ut  nullus  fociat  militem 
nisi  fillum  mllltis.  Marca  UiKpanica, 
p.  1428.  Selden,  Titles  of  Honour,  p. 
692,  produces  other  evidence  to  the  same 
effect.  And  the  emperor  Sigiamund 
having  conferred  knighthood,  during  his 
stay  in  Paris  in  1415,  on  a  person  incom- 
petent to  receivp  it  for  want  of  nobility, 
the  French  were  indignant  at  his  conduct, 
as  an  assumption  of  sovereignty .  Villaret, 
t.  xiii.  p.  897.  We  are  told,  however,  by 
Giannone,  1.  xx.  c.  8,  that  nobility  was 
not  in  (act  required  for  receiving  chivalry 
at  Naples,  though  it  was  in  Prance. 

The  privilege  of  every  knight  to  assod- 
«tv  qiudlfled  persons  to  the  order  at  hit 

VOL.11.  —  X.  88 


pleasure,  lasted  very  long  in  France . 
certainly  down  to  the  English  wars  of 
Charles  VII.  (Monstrelet,  p&rt  !i.  folio 
60),  and,  if  I  am  not  mlfltaken,  down  to 
the  time  of  Francis  I.  But  in  England, 
where  the  spirit  of  independence  did  not 
prevail  so  much  among  the  nobility,  it 
soon  ceesed.  Selden  mentions  one  re- 
markable instance  in  a  writ  of  the  29th 
year  of  Henry  III.  summoning  tenants  la 
capita  to  come  and  receive  knighthood 
firom  the  king,  ad  recipiendum  a  nobis 
arma  militaria:  and  tenants  of  mesne 
lords  to  be  knighted  by  a-homsoever  they 
pleased,  ad  recipiendum  arma  de  quiSus- 
cnnque  voluerint.  Titles  of  Honor,  p. 
792.  But  soon  after  this  time,  it  be- 
came an  established  principle  of  our 
law  that  no  subject  can  confrr  knight- 
hood except  by  the  king's  authority. 
Thus  Edward  III.  grants  to  a  burgess  of 
LynfJia  in  Ouienne  (T  know  not  what 
place  this  is)  the  privilege  of  receiving 
that  rank  at  the  hands  of  any  knight, 
his  want  of  noble  birth  notwithstanding. 
Rymer,  t.  t.  p.  623.  It  seems,  however, 
that  a  different  law  obtained  iu  some 
places.  Twenty-three  of  the  chief  in- 
habitants of  Beaucaire,  partly  knights, 
partly  burgesses,  certified  in  1298,  that 
the  immemorial  usage  of  Beaucaire  and 
of  Provence  had  been,  for  burgesses  to  re- 
ceive knighthood  at  the  hands  of  noble- 
men, without  the  prince's  permission. 
Vaissette,  Hist,  de  Languedoc,  t.  111.  p 
680.  Burgesses  in  the  great  commercial 
towns,  were  considered  as  of  a  superior 
class  to  the  roturiers,  and  possessed  a 
kind  of  deml-nobility.  Charles  V.  ap. 
pears  to  have  conceded  a  similar  indul- 
gence to  the  eitixens  of  Paris.  Villaret* 
t.  z.  p.  248. 


594  MJLITART  SERVICE.       Chap.  IX.  Part  a 

Lastly,  the  customs  of  chivalrj  were  maintaiDed  by  their 
connection  with  military  service.  After  armies, 
^u^^  which  we  may  call  comparatively  regular,  had 
uurTMTiiise  Superseded  in  a  great  degree  the  feudal  militia, 
princes  were  anxious  to  bid  high  for  the  service 
of  knights,  the  best-equipped  and  bravest  warriors  of  the 
time,  on  whose  prowess  the  fate  of  battles  was  for  a  long 
period  justly  supposed  to  depend.  War  brought  into  relief 
the  generous  virtues  of  chivalry,  and  gave  lustre  to  its  dis- 
tinctive privileges.  The  rank  was  sought  with  enthusiastic 
emulation  through  heroic  achievements,  to  which,  rather  thaa 
to  mere  wealth  and  station,  it  was  considered  to  belong.  In 
the  wars  of  France  and  England,  by  far  the  most  splendid 
period  of  this  institution,  a  promotion  of  knights  followed 
every  success,  besides  the  innumerable  cases  where  the  same 
honor  rewarded  individual  bravery.^  It  may  here  be  men- 
tioned that  an  honorary  distinction  was  made  between  knights- 
bannerets  and  bachelors.'  Tlie  former  were  the 
buic?i«ta  richest  and  best  accompanied.  No  man  could 
fon  **'**^  properly  be  a  banneret  unless  he  possessed  a  cer- 
tain estate,  and  could  bring  a  certain  number  of 
lances  into  the  field.'  His  distinguishing  mark  was  the 
square  banner,  carried  by  a  squire  at  the  point  of  his  lance ; 
while  the  knight-bachelor  had  only  the  coronet  or  pointed 
pendant.  When  a  banneret  was  created,  the  general  cut  off 
this  pendant  to  render  the  banner  square.^  But  this  dis- 
tinction, however  it  elevated  the  banneret,  gave  him  no  claim 
to  military  command,  except  over  his  own  dependents  or 

1  St.  Palaje,  {Mtrt  tU.  puBlm.  epeaks  of  tw0nt]r-flf«  ai  rafleteot ;  and 

*  The  word  bachelor  has  b«eQ  tome-    it  appeart  that,  la  Ikct,  knights-bamiani 
ttmes  (leriTed  from  bas  cheTalier ;  In  op-    (tfleo  did  not  bring  so  many. 

ponition  to  banneret.     But  this  cannot  *  Ibid.    Olivier  de  la  HareheJConM- 

oe  right.    We  do  not  find  any  authority  tion  del  MimofrM.  t.  Tiii.  p.  S8i )  giTca 

for  the  ezprefldon  ba«  chevalier,  nor  any  a  particular  example  of  thie  ;  and  mekea 

equiTalent  In  Latin,  baccalaureua  cer-  a  dtjtioction  between  the  bachelor.  creaU 

tainly  not  suggesting  that  nense ;  and  it  ed  a  banneret  on  account  of  his  catata, 

is  strange  that  the  corruption  should  ob-  and  the  hereditary  banneret,  who  took 

literate  every  trace  of  the  original  term,  a  public  opportunity  of  requesting  the 

Bachelor  is  a  veiy  old  word,  and  is  used  sovereign  to  unfold  his  fiimlly  banner 

In  early  French  poetry  for  a  young  man,  which  he  had  before  borne  wound  round 

M   bacheletta  Is  for  a  girl.    Bo  also  in  his  Unce.   The  first  wss  said  relever  ban* 

Chaucer:  niere;  the  second,  entrer  en  banulera. 

"  A  yonge  Squli*.  ^^1*  difference  is  more  fully  explained 

A  lover,  an4  a  lusty  baduto?"  by  DaoleK  Hii»t.  de  la  MiUce  rnmim, 

p.  116.    Chsndos's  banner  was  unfoMed, 

•  Du  Cange,  Dissertation  9Mi  sar  Join-  not  cut,  at  Navarecte.    We  read 


^Ue.  The  number  of  men  at  arms,  whom    times  of  esquire-bannerets,  that  Is,  of 
a  banneret    ought   to   command,  was    bannoreti  by  dssnsnt,  not  yet  knighfad 
proper^  fll^.    But  OUriar  da  la  Manila 


State  of  Societt.      DECLINE  OF  CHIYALET.  595 

men-at-arms.  Chandos  was  still  a  knight-baclielor  whea  he 
led  part  of  the  prince  of  Wales's  army  into  Spain.  He  first 
raised  his  banner  at  the  battle  of  Navarette ;  and  the  narra- 
tion that  Froissait  gives  of  the  ceremony  will  illustrate  the 
manners  of  chivalry  and  the  character  of  that  admirable 
hero,  the  conqueror  of  Du  Guesdin  and  pride  of  English 
chivalry,  whose  fame  with  posterity  has  been  a  little  over^ 
shadowed  by  his  master's  laurels.^  What  seems  more 
extraordinary  is,  that  mere  squires  had  frequently  the  com- 
mand over  knights.  Proofs  of  this  are  almost  continual  in 
Froissart  But  the  vast  estimation  in  which  men  held  the 
dignity  of  knighthood  led  them  sometimes  to  defer  it  for 
great  part  of  their  Uves,  in  hope  of  signalizing  their  investi- 
ture by  some  eminent  exploit. 

These  appear  to  have  the  chief  means  of  nourishing  the 
principles  of  chivalry  among  the  nobility  of  £u-  DeeUM  or 
rope.  But  notwithstanding  all  encouragement,  it  «w?»iij. 
undenvent  the  usual  destiny  of  human  institutions.  St. 
Palaye,  to  whom  we  are  indebted  for  so  vivid  a  picture  of 
ancient  manners,  ascribes  the  decline  of  chivahry  in  France 
to  tlie  profusion  with  which  the  order  was  lavished  under 
Charles  VI.,  to  the  establishment  of  the  companies  of  ordon- 
nance  by  Charles  VII.,  and  to  the  extension  of  knightly 
honors  to  lawyers,  and  other  men  of  civil  occupation,  by 
Francis  I.*  But  the  real  principle  of  decay  was  something 
different  from  these  three  subordinate  circumstances,  unless 
so  far  as  it  may  bear  some  relation  to  the  second.  It  was 
the  invention  of  gunpowder  that  eventually  overthrew  chiv- 
alry. From  the  time  when  the  use  of  fire-arms  became 
tolerably  perfect  the  weapons  of  former  warfare  lost  their 
efficacy,  and  physical  force  was  reduced  to  a  very  subordinate 
place  in  the  accomplishments  of  a  soldier.  The'  advantages 
of  a  disciplined  iufantry  became  more  sensible ;  and  the  lan- 
cers, who  continued  till  almost  the  end  of  the  sixteenth  century 
lo  charge  in  a  long  line,  felt  the  punishment  of  their  presump- 
tion and  indiscipline.  Even  in  the  wars  of  Edward  III.,  the 
disadvantageous  tactics  of  chiwdry  must  have  been  percepti- 
ble ;  but  the  military  art  had  not  been  sufficiently  studied  to 
overcome  the  prejudices  of  men  eager  for  individual  distinc- 
tion. Tournaments  became  less  frequent;  and,  afler  the 
fiital  accident  of  Henry  11.,  were  entirely  discontinued  in 

i  Wtdmuij  part  L  o.  Ml.  t  nim.  nr  l^  Ohcritoite,  pwt  ▼. 


596  DECLINE  OF  CHIVALBY.     Chap.  IX.  Part  IL 

France.  Notwithstanding  the  convulsions  of  the  rellgioua 
wars,  the  sixteenth  century  was  more  tranquil  than  any  that 
had  preceded ;  and  thus  a  large  part  of  the  nobility  passed 
their  lives  in  pacific  habits,  and  if  they  assumed  the  honors  of 
chivalry,  forgot  their  natural  connection  with  military  prow* 
ess.  This  is  far  more  applicable  to  England,  where,  except 
from  the  reign  of  Edward  III.  to  that  uf  Henry  VI.,  chivalry, 
as  a  military  institution,  seems  not  to  have  found  a  very  con- 
genial soil.^  To  these  circumstances,  immediately  affecting 
the  militaiy  condition  of  nations,  we  must  add  the  progrestr 
of  reason  and  literature,  which  made  ignorance  discreditable 
even  in  a  soldier,  and  exposed  the  follies  of  romance  to  a 
ridicule  which  they  were  very  ill  calculated  to  endure. 

The  spirit  of  chivalry  lefl  behind  it  a  more  valuable  sac-* 
cesser.  The  character  of  knight  gradually  subsided  in  that 
of  gentleman  ;  and  the  one  distinguishes  European  society  in 
the  sixteenth  and  seventeenth  centuries,  as  much  as  the  other 
did  in  the  preceding  ages.  A  jealous  sense  of  honor,  less 
romantic,  but  equally  elevated,  a  ceremonious  gallantry  and 
politeness,  a  strictness  in  devotional  observances,  a  high  pride 
of  bu'th  and  feeling  of  independence  upon  any  sovereign  for 
the  dignity  it  gave,  a  sympathy  for  martial  honor,  though 
more  subdued  by  civil  habits,  are  the  lineaments  which  prove 
an  indisputable  descent  The  cavaliers  of  Charles  I.  were 
genuine  successors  of  Edward's  knights ;  and  the  resemblance 
is  much  more  striking,  if  we  ascend  to  the  civil  wars  of  the 
League.  Time  has  effaced  much  also  of  this  gentlemanly, 
as  it  did  before  of  the  chivalrous  character.  From  the  latter 
part  of  the  seventeenth  century  its  vigor  and  purity  liave  un- 
dergone a  tacit  decay,  and  yielded,  perhaps  in  every  country, 

1  The   prerogative   ezercfeed  by  the  doratood  relatlTely  to    the   two   oUier 

Ungt  of  Sagland  of  compelling  men  suf-  eoantries  aboTe  named ;  for  ehlTalry  wac 

flciently  qualified  in  point  of  estate  to  always  in  high  repute  among  us.  nor  did 

take  on  them  the  honor  of  iLuighthood  any    nation    produce   more    admiiabla 

was  inconsistent  with  the  true  spirit  of  specimens  of  its  excellenoee. 

ehiralry.    This  began,  according  to  Lord  I  am  not  minutely  acquainted  vith 

Lyttelton,   under  Henry  III.    Hist,  of  the  state  of  chiralry  in  Spain,  where  il 

Henry  II.  toI.  ii.  p.  238.    Independently  seems  to  hare  flonriahed  eondderably. 

of  this,  seTeral  eauaes  tended  to  render  Italy,  except  in  Naples,  and    perhapa 

England  lem  under  the  innuenoeof  chlT-  Piedmont,  displayed  little  of  Its  spirit : 

alrous  principles  than  I  ranee  or  Ger*  which  neither  suited  the  free  repubtioa  of 

many ;  such  as,  her  comparatively  peace-  the  twelfth  and  thirteenth,  nor  the  jeal- 

ftil  state,  the  smaller  share  she  took  in  ous  tyrannies  of  the  following  eenturiee. 

the  crusades,  her  Inferiority  in  romanoee  Yet  even  here  we  find  enough  to  furnish 

of  knlght^rrantiy,  but  above  aU,  the  Muratori  with  materiaU  for  hli  53d  I>iii- 

democratical  character  of  her  laws  and  aertatloii. 
government.    Still  thia  Is  oo^  to  be  im- 


State  of  SociBrT. 


LITERATtrBE. 


597 


to  increasing  commercial  wealth,  more  diffused  instruction^ 
the  spirit  of  general  liberty  in  some,  and  of  servile  obse- 
quiousness in  others,  the  modes  of  life  in  great  cities,  and  the 
levelling  customs  of  social  intercourse.^ 

It  is  now  time  to  pass  to  a  very  different  subject.     The 
third  head  under  which  I  classed  the  improve- 
ments of  society  during  the  four  last  centuries  of  ^*'®~*"*' 
the  middle  ages  was  that  of  literature.     But  I  must  apprise 
the  reader  not  to  expect  any  general  view  of  literary  history, 
even  in  the  most  abbreviated  manner.     Such  an  epitome 

1  The  well-known  Memoira  of  St.  Pa- 
laje  are  the  best  repository  of  interesting 
and  llluKtratiTe  fibots  respecting  chiT> 
airy.  PoMlbly  he  may  haye  relied  a 
little  too  much  on  romances,  whose  pic- 
tures will  naturally  be  OTerebarged. 
Vrolssart  himself  has  somewhat  of  this 
IMtrtial  tendency,  and  the  manners  of 
chivalrous  tintes  do  not  make  so  &ir  an 
appearance  in  Monntrelet.  In  the  Me- 
moirs of  la  TremouiUe  (Collect,  des  Utoi. 
t.  xiy.  p.  169),  we  have  perhaps  the  ear- 
liest delineation  from  the  life  of  those 
severe  and  stately  virtues  in  high-bom 
ladies,  of  which  our  own  country  fur- 
nished so  many  examples  in  the  sixteenth 
and  seventeenth  centuries,  and  which 
were  derived  from  the  influence  of  chiv- 
alrous  principles.  And  those  of  Bayard 
In  the  same  collection  (t.  xIt.  and  xv.) 
are  a  beautiful  exhibiUon  of  the  best 
•ffacts  of  that  discipline. 

It  appears  to  me  that  M.  Oulsot,  to 
whose  Judgment  I  owe  all  defbrenoe,  has 
dwelt  rather  too  much  on  the  feudal 
character  of  chival^.  Hist,  de  la  Civili- 
sation en  France,  ua^n  86.  Uence  he 
treats  the  institution  as  in  its  decline 
during  the  Ihurteenth  century,  when,  If 
we  can  trust  either  Froissart  or  the  ro- 
mancers, it  was  at  its  height.  Certainly, 
if  mere  knighthood  was  of  right  both  in 
Kngland  and  the  north  of  France,  a  terri- 
torial dignity,  which  bore  with  it  no 
actual  presumption  of  merit,  it  was 
sometimes  also  conferred  on  a  more 
honorable  principle.  It  was  not  every 
knight  who  possessed  a  fief,  nor  in  prac- 
tice did  every  possemor  of  a  fief  receive 
knighthood. 

Guisot  justly  remarks,  as  Stsmondl  has 
done,  the  disfMuity  between  the  lives  of 
most  knights  and  the  theory  of  chival- 
rous rectitude.  But  the  same  has  been 
seen  in  religion,  and  can  be  no  reproach 
to  either  principle.  Partout  la  penste 
morale  des  hommes  s'61^ve  et  aspire  fort 
au  dessus  de  leur  vie.  Et  gardes  vous 
de  croire  que  parce  qu-elle  ne  gouvemalt 
pM  ImmAdiatement  ks  actions,  paiceqiM 


la  pratique  d^montalt.  sans  eesse  et 
^traogement  la  thtorie,  IMnfluence  de  la 
thterie  tut  nuUe  et  sans  valeur.  C'est 
beauooup  que  le  jugement  des  hommei 
sur  Ics  actions  humaines ;  totou.tard  U 
devient  eflBeace. 

It  may  be  thought  by  many  severe 
Judges,  that  I  have  overvalued  the  efll- 
eacy  of  chivalrous  sentiments  in  elevating 
the  moral  character  of  the  middle  ages. 
But  I  do  not  see  ground  for  withdrawing 
or  modifying  any  sentence.  The  com- 
psrison  is  never  to  be  made  with  an  ideal 
standard,  or  even  with  one  which  a  purer 
religion  and  a  more  liberal  organisation 
of  society  may  have  rendered  effectual, 
but  with  the  condition  of  a  country  where 
neither  the  sentiments  of  honor  nor 
those  of  right  prevail.  And  it  seems  to 
me  that  I  have  not  veiled  the  deflciendea 
and  the  vices  of  chivalry  any  more  than 
its  beneficial  tendencies. 

A  very  Ikscinating  picture  of  chival- 
rous manners  has  been  drawn  by  a  writer 
of  considerable  reading,  and  still  more 
considerable  ability,  Hr.  Kenelm  Dlgby, 
in  his  Broad  Stone  of  Honour.  The 
bravery,  the  courteousness.  the  munifi- 
cence, above  all,  the  deeply  religion! 
character  of  knighthood  and  its  reverence 
for  the  church,  naturally  took  hold  of  a 
heart  so  susceptible  of  these  emotions, 
and  a  Ikncy  so  quick  to  embody  them. 
St.  Palaye  himself  is  a  less  enthusiastio 
eulogist  of  chival^,  because  he  has  seen 
it  more  on  ttie  side  of  mere  romance,  and 
been  less  penetrated  with  the  conviction 
of  its  moral  excellence.  But  the  progress 
of  still  deeper  impression  seems  to  hare 
moderated  the  ardor  of  Mr.  Digby's 
admiration  fbr  the  historical  character  of 
knighthood ;  he  has  dii»covered  enough 
of  human  alloy  to  render  unqualified 
praise  hardly  fitting,  in  his  Judgment, 
for  a  Christian  writer;  and  in  the  Moree 
Catholici,  the  second  work  of  tbisamiabla 
and  gifted  man,  the  colors  in  which  chiv- 
alry appears  are  by  no  meaoi  so  brilUanti 
[1848.] 


598  CIVIL  LAW.  Chap.  EL  Paot  IL 

would  not  only  be  necessarily  superficial,  but  foreign  in  many 
of  its  details  to  the  purposes  of  this  chapter,  which,  attempt- 
ing to  develop  the  circumstances  that  gave  a  new  complexion 
to  society,  considers  literature  only  so  far  as  it  exercised  a 
general  and  poweiful  influence.  The  private  researches, 
therefore,  of  a  single  scholar,  unproductive  of  any  material 
effect  in  his  generation,  ought  not  to  arrest  us,  nor  indeed 
would  a  series  of  biographical  notices,  into  which  literary 
history  is  apt  to  fall,  be  very  instructive  to  a  philosophical 
inquirer.  But  I  have  still  a  more  decisive  reason  against 
taking  a  large  range  of  literary  history  into  the  compass  of 
this  work,  founded  on  the  many  contributions  which  have 
been  made  within  the  last  forty  years  in  that  department, 
some  of  them  even  since  the  commencement  of  my  own  la- 
bor.^ These  have  diffused  so  general  an  acquaintance  with 
the  literature  of  the  middle  ages,  that  I  must,  in  treating 
the  subject,  either  compile  secondary  information  from  well- 
known  books,  or  enter  upon  a  vast  field  of  reading,  with  little 
hope  of  improving  upon  what  has  been  already  said,  or  even 
acquiring  credit  for  original  research.  I  shall,  therefore, 
confine  myself  to  four  points :  the  study  of  civil  law ;  the  in- 
stitution of  universities ;  the  application  of  modem  languages 
to  literature,  and  especially  to  poetry ;  and  the  revival  of 
ancient  learning. 

The  Roman  law  had  been  nominally  preserved  ever  since 
CML  law  *^®  destruction  of  the  empire  ;  and  a  great  portion 
of  the  inhabitants  of  France  and  Spain,  as  well  aa 
Italy,  were  governed  by  its  provisions.  But  this  was  a  mere 
compilation  from  the  Theodosian  code ;  which  itself  contained 
only  the  more  recent  laws  promulgated  after  the  establish- 
ment of  Christianity,  with  some  fragments  from  earlier  col* 
lections.  It  was  made  by  order  of  Alaric  king  of  the  Visi- 
goths about  the  year  500,  and  it  is  frequently  confounded  with 
the  Theodosian  code  by  writers  of  the  dark  ages.'     The 

1  Four  Tei7  reoent  publications  (not  prefer  U,  as  fiur  as  its  subjects  extend,  to 

to  mention  tbat  of  Buhle  on   modern  TimboMhi. 

philoRophy)  enter  mucb  at  large  into  tbe  [A  Rubiieqaent  xrork  of  my  own,  Tntro- 

middle  literature ;  those  of  M.  Glnguend  duction  to  the  Hlatoi^  of  Literature  in 

and  M.  SIsmondl,  the  history  of  Kngtand  the  15tht  16th,  and  l<th  Centuries,  con- 

by  Mr.  Sharon  Turner,  and  the  Literary  tain«,  in  the  flntt  and  racond  ehepten, 

Kstory  of  the  Middle  Ages  by  Mr.  Bi-  some  additional  Illustrations  of  theanta- 

rlngton.    All  of  the«e  contain  more  or  cedent  period,  to  which  the  reader  may 

lem  useful  Informstion  and  Judicious  re-  be  relbrred,  as  complementary  to  th«8a 

marks ;  but  that  of  Qingueni  is  among  pages.    1848.] 

the  mont  learned  and  important  works  of  <  Heineoclus,  Hist.  Juris  QemuA.  0. 1. 

this  century.    I  hare  no  hesitation  to  8.  ^. 


SrATB  OF  SociETT.  CIVIL  LAW.  599 

code  of  Justinian,  reduced  into  system  afler  the  separation  of 
the  tivo  former  countries  from  the  Greek  empire,  never  ob* 
tained  any  authority  in  them ;  nor  was  it  received  in  the  part 
of  Italy  subject  to  Uie  Lombards.  But  that  this  body  of  laws 
was  absolutely  unknown  in  the  West  during  any  period  seems 
to  have  been  too  hastily  supposed.  Some  of  the  more  eminent 
ecclesiastics,  as  Hincmar  and  Ivon  of  Chartres,  occasionally 
refer  to  it,  and  bear  witness  to  the  regard  which  the  Roman 
church  had  uniformly  paid  to  its  decisions.^ 

The  revival  of  the  study  of  jurisprudence,  as  derived  from 
the  laws  of  Justinian,  has  generally  been  ascribed  to  the  dis- 
covery made  of  a  copy  of  the  Pandects  at  Amalfi,  in  1135, 
when  that  city  was  taken  by  the  Pisans.  This  fact,  though 
not  improbable,  seems  not  to  rest  nipon  sufficient  evidence.' 
But  its  truth  is  the  less  material,  as  it  appears  to  be  unequiv- 
ocally proved  that  the  study  of  Justinian's  system  had  recom- 
menced before  that  era.  Early  in  the  twelHh  century  a 
professor  named  Imerius*  opened  a  school  of  civil  law  at 
Bologna,  where  he  commented,  if  not  on  the  Pandects,  yet  on 
the  other  books,  the  Institutes  and  Code,  which  were  suffi- 
cient to  teach  the  principles  and  inspire  the  love  of  that 
comprehensive  jurisprudence.  The  study  of  law,  having  thus 
revived,  made  a  surprising  progress ;  within  fifty  years  Lom- 
bardy  was  full  of  lawyers,  on  whom  Frederic  Barbarossa  and 
Alexander  III.,  so  hostile  in  every  other  respect,  conspired 
to  shower  honors  and  privileges.  The  schools  of  Bologna 
were  preeminent  throughout  this  century  for  legal  learning; 
There  seem  also  to  have  been  seminaries  at  Modena  and 
Mantua ;  nor  was  any  considerable  city  without  distinguished 
civilians.  In  the  next  age  they  became  still  more  numerous, 
and  their  professors  more  conspicuous,  and  universities  arose 
at  Naples,  Padua,  and  other  places,  where  the  Boman  law 
was  the  object  of  peculiar  regard.* 

There  is  apparently  great  justice  in  the  opinion  of  Tira- 
boschi,  that  by  acquiring  internal  freedom  and  the  right  of 
determining  controversies  by  magistrates  of  their  own  elec- 
tion, the  Italian  cities  were  led  to  require  a  more  extensive 
and  accurate  code  of  written  laws  than  they  had  hitherto  pos- 

1  OiannoiM,  1.  ir.  o.  6.    Seldon,  ad  VI*-  man  W  Is  changed  Into  On  by  the  Ital- 

tern,  p.  1071.  lans,  and  occasionally  omitted,  ospeoiallj 

a  Timboschl.  t.  HI.  p.  859.    OingnenA,  in  Ladnlring,  for  the  lake  of  euphony  fm 

Hint.  (iitt.  de  ritalie.  1. 1.  p.  155.  purity. 

*  Irnerius  Is  sometimes  called  Onar-  *  llraboechii  t.  ir.  p.  88 ;  t.  t.  f.  66 
nariuM,  sometimes  Wamezius :  tha  Qev- 


600  CIVIL  LAW.  Chap.  IX.  Part  IL 

eessed.  Thfese  municipal  judges  were  chosen  from  among 
the  citizens,  and  the  succession  to  offices  was  usually  so  rapid, 
that  almost  every  freeman  might  expect  in  his  turn  to  par- 
take in  the  public  government,  and  consequently  in  the  ad- 
ministration of  justice.  The  latter  had  always  indeed  been 
exercised  in  the  sight  of  the  people  by  the  count  and  his 
assessors  under  the  Lombard  and  Carlovingian  sovereigns ; 
but  the  laws  were  rude,  the  proceedings  tumultuary,  and  the 
decisions  perverted  by  violence.  The  spirit  of  liberty  begot  a 
stronger  sense  of  right;  and  right,  it  was  soon  perceived, 
could  only  be  secured  by  a  common  standard.  Magistrates 
holding  temporary  offices,  and  little  elevated  in  those  simple 
times  above  the  citizens  among  whom  they  were  to  return, 
could  only  satisfy  the  suitors,  and  those  who  surrounded  their 
tribunal,  by  proving  the  conformity  of  their  sentences  to  ac- 
knowledged authorities.  And  the  practice  of  alleging  reasons 
in  giving  judgment  would  of  itself  introduce  some  uniformity 
of  decision  and  some  adherence  to  great  rules  of  justice  in 
the  most  arbitrary  tribunals ;  while,  on  the  other  hand,  those 
of  a  free  country  lose  part  of  their  title  to  respect,  and  of 
their  tendency  to  maintain  right,  whenever,  either  in  civil  or 
criminal  questions,  the  mere  sentence  of  a  judge  is  pronounced 
witliout  explanation  of  its  motives. 

The  fame  of  this  renovated  jurisprudence  spread  very  rap- 
idly from  Italy  over  other  parts  of  Europe.  Students  flocked 
from  all  parts  of  Bologna ;  and  some  eminent  masters  of  that 
school  repeated  its  lessons  in  distant  countries.  One  of  these, 
Placentinus,  explained  the  Digest  at  Montpelier  before  the 
end  of  the  twelfth  century ;  and  the  collection  of  Justinian 
soon  came  to  supersede  the  Theodosian  code  in  the  domin- 
ions of  Toulouse.*  Its  study  continued  to  flourish  in  the 
universities  of  both  these  cities ;  and  hence  the  Roman  law, 
as  it  is  exhibited  in  the  system  of  Justinian,  became  the 
rule  of  all  tribunals  in  the  soutliem  provinces  of  France.  Its 
authority  in  Spain  is  equally  great,  or  at  least  is  only  disputed 
by  that  of  the  canonists  ;^  and  it  forms  the  acknowledged 
basis  of  decision  in  all  the  Germanic  tribunals,  sparingly 
modified  by  the  ancient  feudal  customaries,  which  the  jurists 
of  the  empire  reduce  within  narrow  bounds.*    In  the  north- 

1  Tlraboschi,  t.  t.    V^sette,  Hlitt.  de       *  Dnek,  de  Van  Juris  CItUIi,  L  B.  e  6L 
Languedoc,  t.  U  p.  617;  t.  iU.  p.  527;  t.       *  Idem,  1.  ii.  2. 
ir.  p.  6M. 


State  of  Socibtt.  CrVTL  LAW.  601 

em  parts  of  France,  where  the  legal  standard  was  sought  in 
local  customs,  the  civil  law  met  naturally  with  less  regard. 
But  the  code  of  St.  Louis  borrows  from  that  treasury  many 
of  its  provisions,  and  it  was  constantly  cited  in  pleadings  be- 
fore the  parliament  of  Paris,  either  as  obligatory  by  way  of 
authority,  or  at  least  as  written  wisdom,  to  which  great  defer- 
ence was  shown.^  Yet  its  study  was  long  prohibited  in  the 
university  of  Paris,  from  a  disposition  of  the  popes  to  estab- 
lish exclusively  their  decretals^  though  the  prohibition  was 
silently  disregarded.* 

As  early  as  the  reign  of  Stephen,  Yacarius,  a  lawyer  of 
Bologna,  taught  at  Oxford  with  great  success  ;  but  j^,  introdu©- 
the  students  of  scholastic  theology  opposed  them-  lion  into 
selves,  from  some  unexplained  reason,  to  this  new  ^°***°** 
jurbprudence,  and  his  lectures  were  interdicted.*  About  the 
time  of  Henry  III.  and  Edward  I.  the  civil  law  acquired 
some  credit  in  England ;  but  a  system  entirely  incompatible 
with  it  had  established  itself  in  our  courts  of  justice  ;  and  the 
Roman  jurisprudence  was  not  only  soon  rejected,  but  became 
obnoxious.^  Everywhere,  however,  the  clergy  combined  its 
study  with  that  of  their  own  canons ;  it  was  a  maxim  that 
every  canonist  must  be  a  civilian,  and  that  no  one  could  be  a 
good  civilian  unless  he  were  also  a  canonist  In  all  uni- 
versities, degrees  are  gi'anted  in  both  laws  conjointly ;  and 
in  all  courts  of  ecclesiastical  jurisdiction,  the  authority  of 
Justinian  is  cited,  when  that  of  Gregory  or  Clement  is  want* 
ing.» 

I  should  earn  little  gratitude  for  my  obscure  diligence,  were 

I  Duck.  1.  U.  o.  6,  •.  80,  81.    Fleury,  «  Belden,  ubl  «opra«  p.  109&-11M.  Thto 

Hist,  du  Ihtrit  Francois,  p.  "4  (prefixed  ptisna^ce  Is  worthy  of  attotitloti.     Yet, 

to  Arxou,  I  DStitntf  009  au  Droit  Francois,  notwithstanding    Selden*s   authority,! 

edit.  1787),  says  that  it  was  a  great  ques-  ani  not  flati<tft(Ml  that  he  has  not  extenu- 

tlon  among  lawyers,  and  stilt  undecided  ated  the  effect  of  Bracton's  predilection 

(f.  e.  in  16i4),  whether  the  Roman   law  for  the  maxims  of  Roman  juriitprudcnce. 

was  the  common  law  in  the  pays  coutu-  No  early  lawyer  has  contributed  ko  much 

mien,  as  to  thom  points  wherein  their  to  fnnn  our  own  syi^tem  as  Bracton  ;  and 

local  customs  were  silent.    And,  if  I  un-  if  hu  definitions  and  rules  are  sometimes 

der8t.ind  Deuisart,  (Dictionnaire  des  De-  bommed  from  the  civilians,  as  all  admit, 

ciaions,  art.  Drolt-^rit,)  the  affirmative  our  common  law  may  have  indirectly  re 

prevailed.    It  is  plain  at  least   by  the  ceivud  greater  modification  from  that  in 

Causes  C6Ubres,  that  appeal  was  con-  fluence,  than  its  professors  were  ready  to 

tinually  made  to  the  principles  of  the  acknowledge,  or  even  than  they  knew, 
dril  law  in  the  argument  of  JParisian  '  A  full  view  of  this  subject  is  still.  I  think, 

Advocates.  a  desidemtum  in  the  hLitory  of  Kuglisli 

>  Crevier.  ITist.  de  TUnlversitA  de  Pa-  law,  which  it  would  illustrate  in  a  very 

lis.  t.  i.  p.  816;  t.  il.  p.  275.  interesting  manner. 

<  Joban.  SalisburlensiB,  apud  Selden  *  Duck,  De  Usu  Jaria  CiTilie,  1.  i.  e.  87 
Ad  YleCua,  p.  1082 


602  CIVIL  LAW.  ^  CJhap.  DL  Part  U. 

I  to  dwell  on  the  forgotten  teachers  of  a  science 
ri^'2r  that  attracts  so  few.  These  elder  professors  of 
"*nieSr  Ronian  jurisprudence  are  mfected,  as  we  are  told, 
^  with  the  faults  and  ignorance  of  their  time ;  fail- 

ing in  the  exposition  of  ancient  law  through  incorrectness  of 
manuscripts  and  want  of  subsidiary  learning,  or  perverting 
their  sense  through  the  verbal  subtleties  of  scholastic  philoso- 
phy. It  appears  that,  even  a  hundred  years  since,  neither 
Azzo  and  Accursius,  the  principal  civilians  of  the  thirteenth 
century,  nor  Bartolus  and  Baldus,  the  more  conspicuous  lu- 
minaries of  the  next  age,  nor  the  later  writings  of  Aocolti, 
Fulgosius,  and  Panormitanus,  were  greatly  regarded  as  au- 
thorities; unless  it  were  in  Spain,  where  improvement  ia 
always  odious,  and  the  name  of  Bartolus  inspired  absolute 
defereni'e.^  In  the  sixteenth  century,  Alciatus  and  the  great- 
er Gujaiius  became,  as  it  were,  the  founders  of  a  new  and 
more  enlightened  academy  of  civil  law,  from  which  the  latter 
jurists  derived  their  lessons.  The  laws  of  Justinian,  stripped 
of  their  impurer  alloy,  and  of  the  tedious  glosses  of  their 
commentators,  will  form  the  basis  of  other  systems,  and  min- 
gling, as  we  may  hope,  with  the  new  institutions  of  philosoph- 
ical legislators,  continue  to  influence  the  social  relations  of 
mankind,  long  after  their  direct  authority  shall  have  been 
abrogated.  The  ruins  of  ancient  Rome  supplied  the'  mate- 
rials of  a  new  city;  and  the  fragments  of  her  law,  which 
have  already  been  wrought  into  the  recent  codes  of  France 
and  Prussia,  will  probably,  under  other  nameSy  guide  far  dis- 
tant generations  by  the  sagacity  of  Modestinus  and  Ulpian.* 

The  establishment  of  public  schools  in  France  is  owing  to 
Charlemange.  At  his  accession,  we  are  assured  that  no 
means  of  obtaining  a  learned  education  existed  in  his  do- 

1  GxaTina,  Orlglnei  Jorto   Ciyills,  p.  [The  oItA  lawyers  of  the  nwdiffrtf 

196.  period  are  not  at  all  (brKOtten  on   the 

>  Thofie  who  fbel  tome  cariosity  about  continent,  as  the  great  work  of  Savlgny, 

the  clrilianfl  of  the  middle  ages  will  And  Hi!*tory  of  Roman   Law  in  the  Middle 

a  concise  and  elej^nt  account  In  Qravl-  Ages,  sufficiently  prores.    It  Is  certain 

na,  De  Origine  Juris  Cirills,  p.  166-206.  that  the  ciril  law  must  always  be  studied 

(Lips.  170S.)  Tiraboschi  con  tolas  perhaps  In   Europe,  nor   ought  the    new   codes 

more  information ;  but  his  prolixity  is  to    supersede    It,   seeing    they    are    to 

very  wearimme     Besides  tbas  fault,  it  is  great  measure  derired  from  Its  fountain ; 

erident  that  Tiraboschi  knew  Tery  little  though  I  hare  heard  that  it  is  less  ra- 

of  law,  and  had  not  read  the  civilians  of  g&rded  in  France  than  Ibrmeriy.    In  my 

whom  he  treats  ;  whereas  Qrarina  dls-  earlier  editions  I  depreciated  the  study 

cusws  their  merits  not  only  with  legal  of  theciril  law  too  much,  and  with  too 

knowledge,  but  with  an  aoutenera  of  erit-  exoluslre    an  attention  to  Knglish  no> 

Icism  which,  to  say  the  truth,  Tlrabosehl  tlons.] 
neror  shows  except  on  a  date  or  a  name. 


State  of  Socibtt.     PUBLIC  SCHOOLS  IN  FRAKCE.  603 

minions ;'  and  in  order  to  restore  in  some  degree  Pubiio 
the  spirit  of  letters,  he  was  compelled  to  invite  ^^^.^]^  ?: 
strnngei's  from  countries  where  leammg  was  not  chari«- 
so  thoroughly  extinguished.  Alcuin  of  England,  °**«°*- 
Clement  of  Ireland,  Theodulf  of  Germany,  were  the  true 
Paladins  who  repaired  to  his  court.  With  the  help  of  these 
he  revived  a  few  sparks  of  diligence,  and  efitahlished  schools  in 
different  cities  of  his  empire ;  nor  was  he  ashamed  to  be  the 
disciple  of  that  in  his  own  palace  under  the  care  of  Alcuin. 
His  two  next  successors,  Louis  the  Debonair  and  Charles  the 
Bald,  were  also  encouragers  of  letters ;  and  the  schools  of 
Lyons,  Fulda,  Corvey,  Rheims,  and  some  other  cities,  might 
be  said  to  flourish  in  the  ninth  century.'  In  these  were  taught 
the  trivium  and  quadrivium,  a  long-established  division  of 
sciences :  the  first  comprehending  grammar,  or  what  we  now 
call  philology,  logic  and  rhetoric ;  tlie  second,  music,  arith- 
metic, geometry,  and  astronomy.^  But  in  those  ages  scarcely 
anybody  mastered  the  latter  four ;  and  to  be  perfect  in  the 
three  former  was  exceedingly  rare.  All  those  studies,  how- 
ever, were  referred  to  theology,  and  that  in  the  narrowest 
manner ;  music,  for  example,  being  reduced  to  church  chant- 
ing, and  astronomy  to  the  calculation  of  Easter.^  Alcuin  was, 
in  his  old  age,  against  reading  the  poets  ;  *  and  this  discour- 
agement of  secular  learning  was  very  general ;  though  some, 
as  for  instance  Eaban,  permitted  a  slight  tincture  of  it,  as 
subsidiary  to  religious  instruction.' 

1  Ante  Ipflum  dooilnum  Ouolnin  r»-  kwophy,  and  ersn   theology   wei«  ntd 
gmn  iD  Oallia  nullum  fult  studium  liben-  taught,  as  seiencefl,  in  any  of  the  Fruneh 
Bum  artinm.    Honachus  EngoUameneltf  achoole  of  thme  two  centuries ;  and  con* 
•pud  Launoy,  Be  SehoUs  per  occldentem  sequently   those  established  by  Charls* 
iDRtauiatis,  p.  6.    See  too  Uistoire  Lit-  magne  Justly  make  ap  epoch, 
timire  de  la  Fiance,  t.  It.  p.  1.    "  Stu-  *  Id.  Ibid.    There  was  a  sort  of  liter- 
dia  llberalium  artium  *■  in  this  pasnge,  axy  dub  among  them,  where  the  mem- 
must  be  understood  to  exclude  litera-  hers  assumed  ancient  names.    Charla* 
ture,  commonly  so  called,  but  notacer-  magne  was  called  Datld;  Alcuin,  Ilor* 
tain  measure  of  Tery  ordinary  Instrue-  ace ;  another,  Dametas,  fcc. 
UoQ.    For  there  were  episcopal  and  con-  *  Hist.  Uttdraire,  p.  217,  See. 
Tentual  schools  in  the  seventh  and  eighth  *  This  division  of  the  sciences  is  as. 
centuries,  even    in    France,   especially  orlbed  to  St.  Augusdn  ;  and  we  certainly 
Aquitaine ;  we  need  hardly  rapeat  that  in  find  it  established  early  in  the  sixth  ceii> 
England,  the  former  of  these  ages  pro-  tury.    Brucker,  Uistoiia  Critica  Philo- 
duced  Bede  and  Theodore,  and  the  men  sophlsB,  t.  ill.  p.  687. 
tiained  under  them  ;  the   Lives  of  the  a  Schmidt,  Hist,  dee  Allemands,  t.  tt. 
Saints  also  lead  us  to  take  with  some  lim-  p.  126. 

Itation    the  absolute   denial  of  liberal  •  Crevter,  Hist  de  rUniversitA  de  Piu 

studies  befbre  Charlemagne.   See  Guiaot,  lis,  t  i.  p.  2S. 

Hist,  de  la  Civllls.  en  France,  Le^on  16;  '  Brucker,  t.  ilL  p.  612.    Raban  Man* 

and  Ampere,  Hist.  Litt.  de  la  France,  ilL  rus  was  chief  of  the  cathedral  school  at 

».  4.  But,  perhaps,  philology,  logic,  phi-  Fulda,  in  tlie  ninth  eentuzy. 


604  UNIVERSITT  OF  PARIS.   Chap.  IX.  Past  P. 

About  the  latter  part  of  the  eleventh  century  a  greater 
DniTenit/  of  ardor  for  intellectual  pursuits  began  to  show  itself 
'**™-  in  Europe,  which  in  the  twelfth  broke  out  into  a 

flame.  This  was  manifested  in  the  numbers  who  repaired  to 
the  public  academies  or  schools  of  philosophy.  None  of 
these  grew  so  early  into  reputation  as  that  of  Paris.  This 
cannot  indeed,  as  has  been  vainly  pretended,  trace  its  pedi- 
gree to  Charlemagne.  The  first  who  is  said  to  have  read 
lectures  at  Paris  was  Remigius  of  Auxerre,  about  the  year 
900.^  For  the  two  next  centuries  the  history  of  this  school 
is  very  obscure  ;  and  it  would  be  hard  to  prove  an  unbroken 
continuity,  or  at  least  a  dependence  and  connection  of  its  pro- 
fessors. In  the  year  1100  we  find  William  of  Champeaux 
teaching  logic,  and  apparently  some  higher  parts  of  philoso- 
▲beiud  P^^'  ^^^^  much  credit.  But  this  preceptor  was 
eclipsed  by  his  disciple,  aflerwards  his  rival  and 
adversary,  Peter  Abelard,  to  whose  brilliant  and  hardy 
genius  the  university  of  Paris  appears  to  be  indebted  for  itd 
rapid  advancement.  Abelard  was  almost  the  first  who  awa- 
kened mankind  in  the  ages  of  darkness  to  a  sympathy  with 
intellectual  excellence.  His  bold  theories,  not  the  less  at- 
tractive perhaps  for  treading  upon  the  bounds  of  heresy,  his 
imprudent  vanity,  that  scorned  the  regularly  acquired  repu- 
tation of  older  men,  allured  a  multitude  of  disciples,  who 
would  never  have  listened  to  an  ordinary  teacher.  It  is  said 
that  twenty  cardinals  and  fifty  bishops  had  been  among  his 
hearers.'  Even  in  the  wilderness,  where  he  had  erected  the 
monastery  of  Paraclete,  he  was  surrounded  by  enthusiastic 
admirers,  relinquishing  the  luxuries,  if  so  they  might  be 
called,  of  Paris,  for  the  coarse  living  and  imperfect  accom- 
modation which  that  retirement  could  afford.*  But  the  whole 
of  Abelard*s  life  was  the  shipwreck  of  genius ;  and  of  genius, 
both  the  source  of  his  own  calamities  and  unserviceable  to 
posterity.  There  are  few  lives  of  literary  men  more  inter- 
esting or  more  diversified  by  success  and  adversity,  by  glory 
and  humiliation,  by  the  admiration  of  mankind  and  the  per- 
secution of  enemies ;  nor  from  which,  I  may  add,  more  im- 
pressive lessons  of  moral  prudence  may  be  derived.^     One 

1  CreTler.  p.  66.  Fmnee  Amt  the  phflonophy,  •«  w«]]  m  Um 

s  CrBTier,  p.  171 :   Brocktt,  p.  677;  permnal  history  of  AlMlard.  by  the  pab* 

XlnboMhi,  t.  iii.  p.  275.  llcation  of  hb  philoaophkml  vritlnga,  la 

s  Bnicker,  p.  7o0.  1886,  QDder  lo  emlneot  an  editor  as  If. 

*  A,  fvoat  Iniaraat  hat  beoi  rarlTed  in  Oooiin,  and  hj  the  exoaUen  work  of  IL 


Stats  of  Society.  OXFORD.  605 

of  Abelard's  pupils  was  Peter  Lombard,  afterwards  arch- 
bishop of  Paris,  and  author  of  a  work  called  the  Book  of 
Sentences,  which  obtained  the  highest  authority  among  the 
scholastic  disputants.  The  resort  of  students  to  Paris  be-i 
came  continually  greater ;  they  appear,  before  the  year  11G9, 
to  have  been  divided  into  nations ;  ^  and  probably  they  had 
an  elected  rector  and  voluntary  rules  of  discipline  about  the 
same  time.  This,  however,  is  not  decisively  proved ;  but  in 
the  last  year  of  the  twelfth  century  they  obtained  their  ear- 
liest charter  from  Philip  Augustus.' 

The  opinion  which  ascribes  the  foundation  of  the  universi- 
ty of  Oxford  to  Alfred,  if  it  cannot  be  maintained  unirenfty  or 
as  a  truth,  contains  no  intrinsic  marks  of  error.  <>**>"*• 
Ingulfus,  abbot  of  Croyland,  in  the  earliest  authentic  passage 
that  can  be  adduced  to  this  point,'  declares  that  he  was  sent 
from  Westminster  to  the  school  at  Oxford  where  he  learned 
Aristotle,  with  the  first  and  second  books  of  TuU/s  Rhetoric.^ 
Since  a  school  for  dialectics  and  rhetoric  subsisted  at  Oxford, 
a  town  of  but  middling  size  and  not  the  seat  of  a  bishop,  we 
are  naturally  led  to  refer  its  foundation  to  one  of  our  kings, 

de  Ittoitmt,  In  1846,  with  the  title  AM-  totle  at  lo  early  a  period  mif(ht  seem  to 

taurdf  coDtaluing  a  coptooa  acoouat  both  throw  some  suspicion  on  this  passage. 

of  the  lifc  and  writings  of  that  meet  re-  But  it  is  impossible  to  detach  it  from  the 

marlcable  man,  the  fiither,  perhaps,  of  context ;  and  the  works  of  Aristotle  in- 

the  theory  as  to  the  nature  or  uoiTemal  tended  by  Ingulfus  were  translations  of 

ideas,  now  so  generally  known  by  the  parts  of  his  I/igic  by  Boethius  and  Vie 

name  of  etnufptuaHsm.  torin.    Brueker,  p.  678.    A  passage  in- 

1  The  Ikculty  of  arts  in  the  nnlTenrity  deed  in  Peter  of  Blois^s  continuation  of 

of- Paris  was  divided  into  fbur  nations ;  Ingulftis,  where  the  study  of  Averroes  is 

thoseofVrance,  Pioardy,  Normandy,  and  said  to  haTe  taken  place  at  Oambridgt 

Xngland.    These  had  distinct  suflbrsges  some  years  before  he  was  bom,  is  of  a 

In  the  aflkirs  of  the  university,  and  eon-  different  complexion,  and  must  of  couna 

esqnently,  when  united,  outnumbered  be  rejected  as  spurious.    In  the  Oesta 

the  three  higher  faculties  of  theology,  Comltum  Andegarensium,  Fulk,  count 

law,  and  medicine.    In  1160,  Henry  II.  of  Anjon,  who  lived  about  920,  is  said  to 

of  Bngland  otha  to  refer  his  dispute  with  have  been  skilled  Aristotelieis  et  Cioero- 

Becket  to  the  protlnoes  of  the  school  of  nianis  ratiocinationlbua. 
Paris.  [The  authenticity  of  IngnJftis  has  been 

I  Gievler,  1. 1.  p.  279.    The  first  stat-  called  in  question,  not  only  by  Sir  Fran- 

Qte   legnlating    the   discipline  of    the  eis  Palgrave,  but  by  Mr.  Wright.    Blogr. 

university  was  given  by  Robert  de  Oour^  Liter.,  Anglo-Norman  Period,  p.  29.  And 

^n,  legate  of  Honorins  lU.,  In  1215,  id.  this  implies,  apparently,  the  sporiousness 

p,  1S6.  of  the  continuation  ascribed  to  Peter  of 

*  No  one  probably  would  ebocse  to  re-  Blois,  In  which  Uie  passage  about  Aver- 

ly  on  a  pastsage   found  ic  one  mann-  roes  throws  doubt  upon  the  whole.    I 

•eript  of  Asserius,  which  has  all  appear-  have,  in  the  Introduction  to  the  llistory 

anee  of  an  interpolation.    It  is  evident  of  Uteraturs,  retracted    the   degree  of 

from  an  anecdoie  in  Wood's  llistory  of  credence  here  given  to  the  foundation 

Oxford,  •  >1.  i.  p.  28  (Outch^s  edition),  of  the  university  of  Oxford  by  Alfred 

that  Gamlen  did  not  believe  In  the  an-  If  Ingulfus  is  not  genuine,  we  have  no 

tlientlelty  of  this  passage,  though  he  proof  of  its  existence   as  a  school   of 

thought  proper  to  insert  it  In  the  Bri-  learning  helbn  the  middle  of  the  twelfth 

tanaia.  cantuiy.] 

«  1  Gait,  p.  76.    The  mentton  of  Ailf- 


606  BOLOGNiL  Chaf.  IX.  Past  O. 

and  none  who  had  reigned  after  Alfred  appears  likely  to  baTe 
manifested  such  zeal  for  learning.  However,  it  is  evident 
that  the  school  of  Oxford  was  frequented  under  Edward  the 
Confessor.  There  follows  an  interval  of  above  a  centaiy, 
during  which  we  have,  I  believe,  no  contemporary  evidence 
of  its  continuance.  But  in  the  reign  of  Stephen,  Vacarius 
read  lectures  there  upon  civil  law ;  and  it  is  reasonable  to 
suppose  that  a  foreigner  would  not  have  chosen  that  city,  if 
he  had  not  found  a  seminary  of  learning  already  established. 
It  was  probably  inconsiderable,  and  might  have  been  inter- 
rupted during  some  part  of  the  preceding  century.^  In  the 
reign  of  Henry  II.,  or  at  least  of  Richard  I.,  Oxford  became 
a  very  flourishing  university,  and  in  1201,  according  to  Wood, 
contained  3000  scholars.'  The  earliest  charters  were  granted 
by  John. 

If  it  were  necessary  to  construe  the  word  universi^  in  the 
Univenitj  Strict  scnse  of  a  legal  incorporation,  Bologna  might 
of  Bologna.  |j^y  claim  to  a  higher  antiquity  than  either  Paris  or 
Oxford.  There  are  a  few  vestiges  of  studies  pursued  in  that 
city  even  in  the  eleventh  century ;  •  but  early  in  the  next  the 
revival  of  the  Roman  jurisprudence,  as  has  been  already 
noticed,  brought  a  throng  of  scholars  round  the  chairs  of  its 
professors.  Frederic  Barbarossa  in  1158,  by  his  authentic, 
or  rescript,  entitled  Habita,  took  these  under  his  protection, 
and  permitted  them  to  be  tried  in  civil  suits  by  their  own 

judges.     This  exemption  from  the  ordinary  tribu 
m^^Hwi    ntds,  and   even   from   those   of  the  church,  was 
StieB*'^      naturally  coveted    by  other  academies;    it   was 

granted  to  the  university  of  Paris  by  its  earliest 
charter  from  Philip  Augustus,  and  to  Oxford  by  John.  From 
this  time  the  golden  age  of  universities  commenced ;  and  it  is 
hard  to  say  whether  they  were  favored  more  by  their  sover- 
eigns or  by  the  see  of  Rome.  Their  history  indeed  is  full  of 
struggles  with  the  municipal  authorities,  and  with  the  bishops 
of  their  several  cities,  wherein   they  were  sometimes  the 

I  It  may  b«  ramikrkod,  that  John  of  ford,  p.  177.    The  BeimUotines  of  St. 

Salhbnryy  irho  wrote  in  the  first  yean  llaur  say,  that  there  wafl  an  emiDent 

of  Henry  II/r  reign,  since  bis  Polycra-  school  of  canon  law  at  Oxford  about  the 

ttcon   Is  dedicated  to  Bvcket,  before  he  end  of  the  twelfth  century,  to  whhsh 

became  arehbUhop,  makes  no  mention  of  many  students  rvpaired  from  Paris.  Hist. 

Oxford,  which  he  would  probably  have  Utt.  de  la  Prance,  t.  is.  p.  216. 
done  if  it  had  been  an  eminent  seat  of        s  TimboMshi,  t.  iii.  p.  259,  at  aUW 

learning  at  that  time.  Miuatori.  Dissert.  48. 

•  Wood's  Hist,  and  AntiqnitM  of  Oz- 


Btatb  of  Socibtt.    UNIYEBSITIES  ENCOURAGBD.  607 

aggressors,  and  generallj  the  conqoerors.  From  all  parts 
of  Europe  stadents  resorted  to  these  renowned  seats  of 
learning  with  an  eagerness  for  instruction  which  may  aston- 
ish those  who  reflect  how  little  of  what  we  now  deem  useful 
could  be  imparted.  At  Oxford,  under  Henry  III.,  it  is  said 
that  there  were  30,000  scholars;  an  exaggeration  which 
seems  to  imply  that  the  real  number  was  very  great.^  A 
res|>ectable  contemporary  writer  asserts  that  there  were  full 
10,000  at  Bologna  about  the  same  time.^  I  have  not  observed 
any  numerical  statement  as  to  Paris  during  this  age;  but 
there  can  be  no  doubt  that  it  was  more  frequented  than  any 
other.  At  the  death  of  Charles  VIL,  in  1453,  it  is  said  to 
have  contained  25,000  students.'  In  the  thirteenth  century 
other  universities  sprang  up  in  different  countries ;  Padua 
and  Naples  under  the  patronage  of  Frederic  II.,  a  zealous 
and  useful  friend  to  letters,^  Toulouse  and  Montpelier,  Cam- 
bridge and  Salamanca.*  Orleans,  which  had  long  been  dis- 
tinguished as  a  school  of  civil  law,  received  the  privileges  of 
incorporation  early  in  the  fourteenth  century,  and  Angers 
before  the  expiration  of  the  same  age.*  Prague,  the  earliest 
and  most  eminent  of  Grerman  universities,  was  founded  in 
1350 ;  a  secession  from  thence  of  Saxon  students,  in  conse- 
quence of  the  nationality  of  the  Bohemians  and  the  Hussite 
schism,  gave  rise  to  that  of  Leipsic.^  .  The  fifteenth  century 

1  "  But  among  these,"  says  Anthony  Tersitj.  The  student*  are  said  to  have 
Wood,  **  a  company  of  rarlets,  who  pre-  been  about  12|000  before  1480.  Crefier, 
tended  to  be  sehotars,  shuffle  thenuelTes  t.  iy.  p.  410. 
In,  and  did  act  much  Tillany  in  the  uni-  «  Tlraboschl,  t.  It.  p.  48  and  46. 
Terslty  by  thieving,  whoring,  quarrelling,  t  The  earliest  authentic  mention  of 
k>c.  They  lived  under  no  discipline,  Cambridge  as  a  place  of  learning,  if  I 
neither  had  they  tutors;  but  only  for  mistalce  not,  is  in  Matthew  Paris,  who 
ftshion*s  sake  would  sometimes  thrust  informs  us,  that  in  1209.  John  having 
themselves  into  the  schools  at  ordinary  oausMl  three  clerks  of  Oxford  to  be 
lectures,  and  when  they  went  to  perform  hanged  on  suspicion  of  murder,  the 
any  mischief,  then  would  they  be  ao-  whole  body  of  scholars  left  that  city,  and 
oounted  scholars,  that  so  they  might  free  emigrated,  some  to  Cambridge,  some  to 
themselves  from  the  Jurisdiction  of  the  Reading,  in  order  to  carry  ou  their  stud- 
burghers."  p.  a06.  If  we  allow  three  les  tp- 191f  edit.  1684).  But  it  may  bo 
varlcts  to  one  scholar,  the  university  will  conjectured  with  some  probability,  that 
still  have  been  very  fully  frequented  by  they  were  led  to  a  town  so  distant  as 
the  latter.  Cambridge  by  the  previous  establishment 

*  Tiraboechl,  t.  iv.  p.  47.  Anuius,  of  academical  instruction  in  that  place, 
about  the  middle  of  the  fourteenth  oen-  The  incorporation  of  Cambridge  is  in 
tuiy,  says  the  number  was  about  18.000  1281  (15  Hen.  III.),  so  that  there  is  no 
In  his  time.  Muratori,  Script.  Ber.  Ital.  great  dlflprenee  in  tlie  legal  antiquity  of 
%  xvi.  p^^825.  our  two  universities. 

*  Viliaret,  Hist,  de  Franee,  t.  xvi.  p.  •  Crevier,  Hist,  de  rUnlverBltA  de  P^ 
841.     This  may  perhaps  require  to  b«  ris,  t.  ii.  p.  216 ;  t.  ill.  p.  140. 

taken  with  allowance.    But  Paris  owes       '  Pleffel,    Abr4g4    Chronotogique   is 
•  great  part  of  Its   buildings  on  the    FHist.  de  PAUemagne,  p.  660,  Wf. 
•ontbem  buik  of  the  SeiuA  to  the  nni- 


608  UNIYERSITIES  ENCOURAGED.     Chap.  IX.  Part  II. 

prodaced  several  new  academicsd  foundations  in  France  and 
Spain. 

A  large  proportion  of  scholars  in  most  of  those  institutions 
were  drawn  by  the  love  of  science  from  foreign  countries. 
The  chief  universities  had  their  own  particular  departments 
of  excellence.  Paris  was  unrivalled  for  scholastic  theolc^y ; 
Bologna  and  Orleans,  and  afterwards  Bourges,  for  jurispru- 
dence ;  Montpelier  for  medicine.  Though  national  prejudices, 
as  in  the  case  of  Pi^ague,  sometimes  interfered  with  this  free 
resort  of  foreigners  to  places  of  education,  it  was  in  general 
a  wise  policy  of  government,  as  well  as  of  the  universities 
themselves,  to  encourage  it  The  thirty-fifth  article  of  the 
peace  of  Bretigni  provides  for  the  restoration  of  former  privi- 
leges to  students  respectively  in  the  French  and  English  uni- 
versities.^ Various  letters  patent  will  be  found  in  Rymer's 
collection,  securing  to  Scottish  as  well  as  French  natives  a 
safe  passage  to  their  place  of  education.  The  English  nation, 
including  however  the  Flemings  and  Germans,^  had  a  sepa- 
rate vote  in  the  faculty  of  arts  at  Paris.  But  foreign  studenU 
were  not,  I  believe,  so  numerous  in  the  English  academies. 

If  endowments  and  privileges  are  the  means  of  quickening 
a  zeal  for  letters,  they  were  liberally  bestowed  in  the  last 
three  of  the  middle  ages.  Crevier  enumerates  fifteen  col- 
leges founded  in  the  university  of  Paris  during  the  thirteenth 
century,  besides  one  or  two  of  a  still  earlier  date.  -  Two  only, 
or  at  most  three,  existed  in  that  age  at  Oxfoixl,  and  but  one 
at  Cambridge.  In  the  next  two  centuries  these  universities 
could  boast,  as  every  one  knows,  of  many  splendid  founda* 
tions,  though  much  exceeded  in  number  by  those  of  Paris. 
Considered  as  ecclesiastical  institutions  it  is  not  surprising 
that  the  universities  obtained,  according  to  the  spirit  of  their 
age,  an  exclusive  cognizance  of  civil  or  criminal  suits  affect- 
ing their  members.  This  jurisdiction  was,  however,  local  as 
well  as  personal,  and  in  reality  encroached  on  the  regular 
police  of  their  cities.  At  Paris  the  privilege  turned  to  a 
flagrant  abuse,  and  gave  rise  to  many  scandalous  conten- 
tions.* Still  more  valuable  advantages  were  those  relating 
to  ecclesiastical  preferments,  of  which  a  large  proportion  was 
reserved  in  France  to  academical  graduates.  Something  of 
the  same  sort,  though  less  extensive,  may  still  be  traced  in 

1  BjBMT,  t.  tL  p.  292.  *  GvsTicr,  t.  il.  p.  SB6. 

•  Cra?i«r  and  Tlllant,  puiim. 


State  or  Socibtt.    SCHOLASTIC  FHILOSOPHT.  609 

the  rales  respecting  plurality  of  benefices  in  our  English 
church. 

This  remarkable  and  almost  sudden  transition  from  a  total 
indifference  to  all  intellectual  pursuits  cannot  be  o^qms  of 
ascribed  perhaps  to  any  general  causes.  The  their  ۥ- 
restoration  of  the  civil,  and  the  formation  of  the  ^^^^' 
canon  law,  were  indeed  eminently  conducive  to  it,  and  a 
large  proportion  of  scholars  in  most  universities  confined 
themselves  to  jurisprudence.  But  the  chief  attraction  to  the 
studious  was  the  new  scholastic  philosophy.  The  sohoUwtie 
love  of  contention,  especially  with  such  arms  as  the  p^^wo^phy- 
art  of  dialectics  supplies  to  an  acute  understanding,  is  natural 
enough  to  mankind.  That  of  speculating  upon  the  mysterious 
questions  of  metaphysics  and  theology  is  not  less  so.  These 
disputes  and  speculations,  however,  appear  to  have  excited 
little  interest  till,  aAer  the  middle  of  the  eleventh  century, 
Roscelin,  a  professor  of  logic,  revived  the  old  question  of  the 
Grecian  schools  respecting  universal  ideas,  the  reality  of 
which  he  denied.  This  kindled  a  spirit  of  metaphysical  dis- 
cussion, which  Lanfranc  and  Anselm,  successively  archbishops 
of  Canterbury,  kept  alive ;  and  in  the  next  century  Abelard 
and  Peter  Lombard,  -  especially  the  latter,  completed  the 
scholastic  system  of  philosophizing.  The  logic  of  Aristotle 
seems  to  have  been  partly  known  in  the  eleventh  centuryi 
although  that  of  Augustin  was  perhaps  in  higher  estima- 
tion;^ in  the  twelAh  it  obtained  more  decisive  influence. 
His  metaphysics,  to  which  the  logic  might  be  considered  as 
preparatory,  were  introduced  through  translations  from  the 
Arabic,  and  perhaps  also  from  the  Greek,  early  in  the  ensu- 
ing century.^    This  work,  condemned  at  first  by  the  decrees 

1  Bnaeksr,  Hist.  Grit.  Philotophi»,  t.  toUe  ttiat  tt>«  achobtstiei  of  Europe  de- 

i!i.  p.  678.  rlred  from  the  Armbic  languanpe.     His 

>  Id.  Ibid.    Tiiaboeehl  oonoeitee  that  wrifetogs  had  produced  Id  the  tlourkhiDg 

the  translatioDB  of  Arletotle  made  hj  Mohammedan  kingdoma  a  vast  number 

eommand  of  Frederic  II.  were  directly  of  eommentaton,  and  of  motaphjRiclaDi 

from  the  Greek,  t.  It.  p.  145;  and  con-  trained  In  the  aame  Mhool.    Of  theee 

•nree  Bracker  lor  the  oontmry  opinion.  Averroeef  a  native  of  Cordova,  who  died 

Bnhle,  however  (Illst.  de  la  Philoeophie  early  in  the  thirteenth  century,  was  the 

Modeme,  t.  I.  p.  096),  appear*  to  agree  meet  eminent.    It  would  be  enrlona  to 

with  Bmcker.    It  ie  almoet  certain  that  examine  more  minutely  than  has  hitherto 

vereione   were   made   fh>m   the  Arable  been  done  the  original  writings  of  these 

Aristotle :  whieh  itself  was  not  imme-  ftmoos  men,  which  no  doubt  have  suf- 

diately  taken  from  the  Oreek,  but  from  a  ftred  in  tianslation.    A  passage  from  Al 

Syriae  medium.     Olnguen^,  Hist.  litt.  Qaael,  which  Mr.  Turner  has  rendered 

ie  ritalie.  1. 1.  p.  212  (on  the  authority  fttxm  the  Utin,  with  all  the  disadvantage 

«f  M.  Langlte).  of  a  double  remove  from  the  anther's 

It  was  not  oniy  a  knowledge  of  Ail^  irords,  appetH  to  state  the  axgonient  la 

^■OL.  II.— M.  89 


610  SCHOLASTIC  PHILOSOPHY.     Chap.  DC.  Pa«  IL 

of  popes  and  councils  on  account  of  its  supposed  tendency  to 
atheism,  acquired  by  degrees  an  influence,  to  which  even 
popes  and  councils  were  obliged  to  yield.  The  Mendicant 
Friars,  established  throughout  Europe  in  the  thirteenth  cen- 
tury, greatly  contributed  to  promote  the  Aristotelian  philoso- 
phy ;  and  its  final  reception  into  the  orthodox  system  of  the 
church  may  chiefly  be  ascribed  to  Thomas  Aquinas,  the  boast 
of  the  Dominican  order,  and  certainly  the  most  distinguished 
metaphysician  of  the  middle  ages.  His  authority  silenced 
all  scruples  as  to  that  of  Aristotle,  and  the  two  philosophers 
were  treated  with  equally  implicit  deference  by  the  later 
schoolmen.^ 

This  scholastic  philosophy,  so  famous  for  several  ages,  has 
since  passed  away  and  been  forgotten.  The  histonr  of  liter- 
ature, like  that  of  empire,  is  full  of  revolutions.  Our  public 
libraries  are  cemeteries  of  departed  reputation,  and  the  dust 
accumulating  upon  their  untouched  volumes  speaks  as  forci- 
bly as  the  grass  that  waves  over  the  ruins  of  Babylon.  Few, 
very  few,  for  a  hundred  years  past,  have  broken  the  repose 
of  the  immense  works  of  the  schoolmen.  None  perhaps  in 
our  own  country  have  acquainted  themselves  particularly 
with  their  contents.  Leibnitz,  however,  expressed  a 'wish 
that  some  one  conversant  with  modem  philosophy  would  un- 
dertake to  extract  the  scattered  particles  of  gold  which  may 
be  hidden  in  their  abandoned  mines.  This  wish  has  been  at 
length  partially  fulfilled  by  three  or  four  of  those  industrious 
students  and  keen  metaphysicians,  who  do  honor  to  modem 
Grermany.  But  most  of  their  works  are  unknown  to  me 
except  by  repute,  and  as  they  all  appear  to  be  formed  on  a 
very  extensive  plan,  I  doubt  whether  even  those  laborious 
men  could  affoi*d  adequate  time  for  this  ungrateful  research. 
Yet  we  cannot  pretend  to  deny  that  Boscelin,  Anselm,  Abe- 
lard,  Peter  Lombard,  Albertus  Magnus,  Thomas  Aquinas, 

I^Tor  of  that  claas  of  NominMlBtfl,  oaltod  wholMtiiMi ;  an  admtolon  which  ovcrf 

Gooceptualists,  with  more  elearnera  and  reador  will  perceire  to  be  quite  dmom- 

preci«ioa    than    anything  T  have  «een  §ary.    Consequently,  he  glvee  uj  rather 

fh>m  the  Mhoolmen.    Al  Gaael  died  in  a    Terboee    declamation    agalast    their 

1126,  aod  conaeqaently  might  hare  nug-  philosophy  than  any  clear  view  of  its 

jested   this    theory  to  Abelard,  which  character.    Of  the  Taloable  worke  lately 

nowever  is  not  probable.    Turner's  Hist.  publlRhed  in  Germany  on  the  history  of 

of  Engl.  vol.  i.  p.  513.  philosophy.  I  hare  only  seen  that  of 

1  Brucker,    Hist.    Crit.    Philosophla,  Buhle,  whleh  did  not  fkU  into  my  hands 

t.  Hi.    I  have  found  no  better  guide  than  till  I  had  nearly  written    thfcee  pent 

Bmeker.    Bnt  he  eonftsses  himself  not  Tiedemann  and  Tennemaon  ave  I  m 

to  have  read  the  original  wiittofi  of  the  lieva,  itiU  untnudated. 


N 


State  of  Socncrr.    SCHOLASTIC  PHILOSOPHT.  611 

Duns  Scotus,  and  Ockham,  were  men  of  acate  and  even 
profound  undei*standings,  the  giants  of  their  own  generation. 
Even  with  the  slight  knowledge  we  possess  of  their  tenets, 
there  appear  through  the  cloud  of  repulsive  technical  barbar- 
isms rays  of  metaphysical  genius  which  this  age  ought  not  to 
despise.  Thus  in  the  works  of  Anselm  is  found  the  cele 
brated  argument  of  Des  Cartes  for  the  existence  of  a  Deity, 
deduced  from  the  idea  of  an  infinitely  perfect  being.  One 
great  object  that  most  of  the  schoolmen  had  in  view  was,  to 
establish  the  principles  of  natural  theology  by  abstract  rea- 
soning. This  reasoning  was  doubtless  liable  to  great  difficul- 
ties. But  a  modern  writer,  who  seems  tolerably  acquainted 
with  the  subject,  assures  us  that  it  would  be  difficult  to 
mention  any  theoretical  argument  to  prove  the  divine  attri- 
butes, or  any  objection  capable  of  being  raised  against  the 
proof,  which  we  do  not  find  in  some  of  the  scholastic  philos- 
ophers.^ The  most  celebrated  subjects  of  discussion,  and 
those  on  which  this  class  of  reasoners  were  most  divided, 
were  the  reality  of  universal  ideas,  considered  as  extrinsic  to 
the  human  mind  and  the  freedom  of  will.  These  have  not 
ceased  to  occupy  the  thoughts  of  metaphysicians.' 

But  all  discovery  of  truth  by  means  of  these  controversies 
was  rendered  hopeless  by  two  insurmountable  obstacles,  the 
authority  of  Aristotle  and  that  of  the  church.     Wherever 

1  Biih1«,  HUtt.  de  la  Philoa.  Moderne,  and  the  Edinbnrgh  Rorfowvr.     Still  I 

t.  i.  p.  728.    Thia  author  ralaw  upon  the  cannot  bring  myself  to  think  that  there 

whole  a  fkTorable  notion  oC  AnBelm  and  are  four  more  in  this  country  who  can 

Aquinan;  but  he  hardly  noUces  any  other,  say  the  same.    Certain   portions,  how- 

s  Mr.  Turner  has  with  his  character-  erer,  of  his  writings  are  still  read  in  the 

Istic  spirit  of  enterprise  examined  some  course  of  instruction  of  some  Catholic 

of   the  writings    of  our  chief  English  uniTersities. 

■choolmen.  Duns  Scotus   and  Ockham  [I  leare  this  pusege  as  it  was  written 

(Hist,  of  Eng.  vot  i.),  »nd  even  glren  us  about  1814.     But    it    must  be  owned 

■ome  extracts  ftom  them.    They  seem  with  regard  to  the  schoolmen,  as  well  as 

to  me  Tery  friroloujs,  so  Ikr  as  I  can  col-  the  jurists,  that  I  at  that  time  nnder- 

lect    their  meaning.     Ockham    in  par-'  rated,  or  at  least  did  not  anticipate,  the 

tieular  Iklls  very  short  of  what  I  had  ex-  attention  which  their  works   haye  at- 

Sected ;  and  his  nominalism  is  strangely  tracted  in  modern  Europe,  and  that  the 

Ufiar^nt   from    that  of  Berkeley.     We  passage  in  the  text  is  more  applicable  to 

•an  hardly  reckon  a  man  in  the  right,  the  philosophy  of  the  eighteenth  century 

who  is  so  by  accident,  and  through  so-  than  of  the  present.    For  several  years 

phiatical  reasoning.     However,  a   well-  past  the    metaphysicians    of  Germany 

known  article  in  the  Edinburgh  Review,  and  France  have  brushed  the  dust  fh>m 

No.  UU.    p.  3J4,    gives,    from    Tenne-  the  scholastic  TOlnmes ;  Tennemann  and 

mann,  a  more  fkToiable  account  of  Ook-  Bnhle,  Di^rando,  but  more  than  all 

ham.  Cousin  and  lUmusat,  in  their  excellent 

Perhaps-  I  may  have    imagined    the  labors  on   Abelard,  hare   restored    the 

teholastics  to  be  more  forgotten  than  they  mediiBTal  philosophy  to  a  plare  in  tran- 

really  are.    Within  a  short  time  I  have  scendental    metaphTsics,  which,  during 

BM(twith  four  liTtns  English  writers  who  the  preTalenoe  of  Uie  Cartesian  school, 

have  read  parts  of  Thomas  Aquinas:  Mr.  and  those  derived  ftom    it,  had  been 

Tomev,  Mr.  Berington,  Bfr.  Colendge,  rsftaaed.    1848.1 


612  SCHOLASTIC  PHILOSOPHT.     Chap.  DL  Paw  IL 

obeequious  reverence  is  substituted  for  bold  inquiry,  truth,  if 
Bhe  is  not  already  at  hand,  will  never  be  attained.  The 
scholastics  did  not  understand  Aristotle,  whose  original  writ- 
in&cs  they  could  not  read  ;  ^  but  his  name  was  received  with 
implicit  faith.  They  learned  his  peculiar  nomenclature,  and 
fancied  that  he  had  given  them  realities.  The  authority  of 
the  church  did  them  still  more  harm.  It  has  been  said,  and 
probably  with  much  truth,  that  their  metaphysics  were  iujiH 
rious  to  their  theology.  But  I  must  observe  in  return  that 
their  theology  was  equally  injurious  to  their  metaphysics. 
Their  disputes  continually  turned  upon  questions  either  in- 
volving absurdity  and  contradiction,  or  at  best  inscrutable  by 
human  comprehension.  Those  who  assert  the  greatest  an- 
tiquity of  the  Roman  Catholic  doctrine  as  to  the  real  pres- 
ence, allow  that  both  the  word  and  the  definition  of  transub- 
Btantiation  are  owing  to  the  scholastic  vmters.  Their  subtle- 
ties were  not  always  so  well  received.  They  reasoned  at 
imminent  peril  of  being  charged  with  heresy,  which  Bos- 
celin,  Abelard,  Lombard,  and  Ockham  did  not  escape.  In 
the  virulent  factions  that  arose  out  of  their  metaphysical 
quarrels,  either  party  was  eager  to  expose  its  adversary  to 
detraction  and  persecution.  The  Nominalists  were  accused, 
one  hardly  sees  why,  with  reducing,  like  Sabellius,  the  per- 
sons of  the  Trinity  to  modal  distinctions.  The  Realists,  with 
more  pretence,  incurred  the  imputation  of  holding  a  language 
that  savored  of  atheism.'  In  the  controversy  which  the 
Dominicans  and  Franciscans,  disciples  respectively  of  Thom- 
as Aquinas  and  Duns  Scotus,  maintained  about  grace  and 
free-will,  it  was.  of  course  still  more  easy  to  deal  in  mutual 
reproaches  of  heterodoxy.  But  the  schoolmen  were  in  gen- 
eral prudent  enough  not  to  defy  the  censures  of  the  church ; 
and  the  popes,  in  return  for  the  support  they  gave  to  all 
exorbitant  pretensions  of  the  Holy  See,  connived  at  this 
factious  wrangling,  which  threatened  no  serious  mischie/9  as 

1  Roger  Bacon,  by  Ikr  the  truest  pbl-  egregious  erroxt  io  both  reepeete.    And 

loeopher  of  the  middle  ages,  complains  of  there,  is  so  much  misapprehension  and 

the  iguoranoe  of  Aristotle's  translators,  obsourity  in  the  Aristotelian  viitings  as 

Brery  translator,  he  obserres,  ought  to  thus  teanslated.  that  no  one  undetstuidi 

understand  his  author's  subject,  and  tfte  them.    Opus  Msjus,  p  46. 

two  languages  tram  which  and  into  which  *  Bruclcer,  p.  738,  912.     Mr.  Tumev 

he  is  to  render  the  work.    But  none  has  fiillen  into  some  conf^on  as  to  this 

hitherto,  except   Boethius,  have  suffl-  point,  and  supposes  the  nominalist  aye- 

eiently  known  the  languages;  nor  ha«  tern  to  hare  had  a  panthelstloal  tendency, 

one,  except  Robert  Oros tote  (the  flunous  not  dearly  appzeliBBdiiig  ils  chatstotst^ 

bishop  of  Lincoln),  had  a  competent  ao-  istics,  p.  612. 
qwaintanee  with  science.    The  nat  nak* 


gTATB  OP  Socinrr.  SGHOLASTIU  FUILOSOFHT.  613 

it  did  not  proceed  from  any  independent  spirit  of  researclu 
Yet  with  all  their  apparent  conformity  to  the  received  creed, 
there  was,  as  might  be  expected  from  the  circumstances,  a 
great  deal  of  real  deviation  from  orthodoxy,  and  even  of  infi* 
delitj.  The  scholastic  mode  of  dispute,  admitting  of  no 
termination  and  producing  no  conviction,  was  the  sure  cause 
of  scepticism ;  and  the  system  of  Aristotle,  especially  with 
the  commentaries  of  Averroes,  bore  an  aspect  very  unfavor^ 
able  to  natural  religion.^  The  Aristotelian  philosophy,  even 
in  the  hands  of  the  Master,  was  like  a  barren  tree  that  con- 
ceals its  want  of  fruit  by  profusion  of  leaves.  But  the 
Bcholastic  ontology  was  much  worse.  What  could  be  more 
trifling  than  disquisitions  about  the  nature  of  angels,  their 
modes  of  operation,  their  means  of  conversing,  or  (for  these 
were  distinguished)  the  morning  and  evening  state  of  their 
understandings  ?  *  Into  such  follies  the  schoolmen  appear  to 
have  launched,  partly  because  there  was  less  danger  of  run- 
ning against  a  heresy  in  a  matter  where  the  church  had 
defined  so  little  —  partly  from  their  presumption,  which  dis- 
dained all  inquiries  into  the  human  mind,  as  merely  a  part 
of  physics  —  and  in  no  small  degree  through  a  spirit  of  mysti- 
cal fanaticism,  derived  from  the  oriental  philosophy  and  the 
later  Platonists,  which  blended  itself  with  the  cold-blooded 
technicalities  of  the  Aristotelian  schooL'    But  this  unpro- 

t  Pitlnrdi  gHw  s  enrioiis  ftoeooni  of  wberela  all  •ztBmal  pheDomai»,  m  wtltl 

th«  Irraligton  that  preTailed  among  the  aa  all  rabordlnata   mtellecta,  are  ooa- 

leamed  at  Venioe  and  Padaa,  in  con-  sidered  as  emanaiing  from  the  Sapremo 

leqnenee  of  their  unboanded  admiration  Being,  into  whose  essence  they  are  here- 

for  Aristotle  and  Averroes.    One  of  this  after  to  be  absorbed.    This  system,  re- 

■chool,  eonTorslng  trith  him,  aftw  ez-  produced  under  Tarions   modifications, 

pnesiiig  maoh  contempt  for  the  Apostles  and  oomUned  with  Tsxioos  theories  of 

and     nthers.  exclaimed:    Utinam   tn  philosophy  and  religion,  is  perhaps  the 

Averroim  pati  posses,  nt  videres  qnanto  most  congenial  to  the  spirit  of  solitary 

Ule  tois  his  nagatorlbns  m^Jor  sit !  M£m.  speculation,  and  consequently  the  most 

de  Pitrarque,  (.  Hi.  p.  760.     Tlrabosehi,  e\teniiiTely  diffosed  of  any  which  those 

t.  T.  p.  162.  high  themes  have  engendered.    It  orlg> 

s  Brneker,  p.  898.  Inated  no  doubt  in  sublime  conceptions 

*  This  mystical  philosophy  appean  to  of  divine  omnipotence   and    ubiquity. 

have  been  introduced  Into  £urope  by  But  eleamess  of  expression,  or  indeed  of 

John  Seotus,  whom  Buhle  treats  as  the  ideas,  being  not  easily  connected  with 

founder  of   the  seholastie  philosophy ;  mysticism,  the  language  of  philosophers 

though,  as  it  made  no  senstnle  progress  adopting  the    theory  of   emanation    la 

for  two  eentnries  after  his  time,  it  seems  often  hudly  distlnguMiable  from  that  of 

more  natural  to  give  that  eredlt  to  Kne-  the  pantheists.    Brueker,  very  unjustly, 

eelin  and  Anselm.    Scotns  or  Brigena,  aa  I  imagine  from  tt»  passages  he  quotes, 

as  he  is  perhaps  more  frequently  called,  accuses    John    Brigena   of   pantheism, 

took  up,  throi^h  the  medium  of  a  spu*  Hist.  Crlt.  Philos.  p.  620.    The  charge 

rious  work,  ascribed  to  IMonysius  the  would,    however,  be    better    grounded 

Areopadta,    that    remarkable   system,  against  some  whose  style  might  deceive 

wlilcb  has  from  time  immemorial  pre-  an  unaccustomed  reaider.    In  foct,  the 

vailed  in   some  aohoola  of   the  ttst,  phitoeophy  of  emanation  lewto  vwy  nearly 


614  SCHOLASTIC  PHILOSOPHY.     Chap.  IX.  Pabt  11 

ductive  waste  of  the  faculties  could  not  last  forever.  Men 
discovered  that  they  had  given  their  time  for  the  promise  of 
wisdom,  and  been  cheated  in  the  bargain.  What  John  of 
Salisbury  observes  of  the  Parisian  dialecticians  in  his  own 
time,  that,  afler  several  years'  absence,  he  found  them  not  a 
step  advanced  and  still  employed  in  urging  and  parrying  the 
same  arguments,  was  equally  applicable  to  the  period  cf 
centuries.  Afler  three  or  four  hundred  years,  the  scholastics 
had  not  untied  a  single  knot,  nor  added  one  unequivocal  truth 
to  the  domain  of  philosophy.  As  this  became  more  evident, 
the  enthusiasm  for  that  kind  of  learning  declined ;  after  the 
middle  of  the  fourteenth  century  few  distinguished  teachers 
arose  among  the  schoolmen,  and  at  the  revival  of  letters  their 
pretended  science  had  no  advocates  left,  but  among  the  preju* 
diced  or  ignorant  adherents  of  established  systems.  How 
different  is  the  state  of  genuine  philosophy,  the  zeal  for  which 
will  never  wear  out  by  length  of  time  or  change  of  fashion, 
because  the  inquirer,  unrestrained  by  authority,  is  perpetu- 
ally cheered  by  the  discovery  of  truth  in  researches,  which 
the  boundless  riches  of  nature  seem  to  render  indefinitely 
progressive!* 

Yet,  upon  a  general  consideration,  the  attention  paid  in  the 
universities  to  scholastic  philosophy  may  be  deemed  a  source 
of  improvement  in  the  intellectual  character,  when  we  com- 
pare  it  with  the  perfect  ignorance  of  some  preceding  ages. 
Whether  the  same  industry  would  not  haVe  been  more  profit- 
ably directed  if  the  love  of  metaphysics  had  not  intervened, 
is  another  question.  Philology,  or  the  principles  of  good 
taste,  degenerated  through  the  prevalence  of  school-logic 
The  Latin  compositions  of  the  twelHh  century  are  better  than 
those  of  the  three  that  folio  wed — at  least  on  the  northern 
side  of  the  Alps.  I  do  not,  however,  conceive  that  any  real 
correctness  of  taste  or  general  elegance  of  style  was  likely  to 
subsist  in  so  imperfect  a  condition  of  society.  These  quali- 
ties seem  to  require  a  certain  harmonious  correspondence  in 

to  the  docfirineof  an  uaiTtBmil  rabstancM,  (wtthoat  th«  troabla  of  reMUng  the  flztt 

which  begot  the  atheistic  syitem  of  Spi-  book  of  Codworth)  ftom   two  fiunooa 

Doaa,  and  which  appears  to  have  reTlved  passages  of  ViiKil  and  Lacan.    Geoix. 

with  similar  oonsequences  among   the  1.  ir .  t.  219 ;  and  Pharaalia,  1.  riil.  t.  57S. 

metaphysicians  of  Oermany.    How  Tery  i  This  subject,  as  well  as  someothen 

eloady  the  language  of  this  orientel  phi-  In  this  part  of  the  present  chapter,  hai 

loeophy,  or  otho  that  which  r^;ard8  the  been  touched  in  my  Introduction  to  Um 

Deity  as    the  soul  of  the  world,  may  Literature  of  the  16th,  liSth,  and  17tli 

Terge  upon  pantheism,  will  be  pereelred  Centoriei. 


State  of  Society.     SCHOLASTIC  PHILOSOPHT.  615 

the  tone  of  manners  before  they  can  establish  a  prevalent  in* 
fiuence  over  literature.  A  more  real  evil  was  the  diverting 
of  studious  men  from  mathematical  science.  Early  in  the 
twelfth  century  several  persons,  chiefly  English,  had  brought 
into  Europe  some  of  the  Arabian  writings  on  geometry  and 
physics.  In  the  thirteenth  the  works  of  Euclid  were  com* 
mented  upon  by  Campano/  and  Roger  Bacon  was  fully  ao* 
quainted  with  them.'  Algebra,  as  far  as  the  Arabians  knew 
it,  extending  to  quadratic  equations,  was  actually  ia  the  hands 
of  some  Italians  at  the  commencement  of  the  same  age,  and 
preserved  for  almost  three  hundred  years  as  a  secret,  though 
without  any  conception  of  its  importance.  As  abstract  mathe- 
matics require  no  collateral  aid,  they  may  reach  the  highest 
perfection  in  ages  of  general  barbarism  ;  and  there  seems  to 
be  no  reason  why,  if  the  course  of  study  had  been  directed 
that  way,  there  should  not  have  arisen  a  Newton  or  a  La 
Place,  instead  of  an  Aquinas  or  an  Ockham.  The  knowl- 
edge displayed  by  Roger  Bacon  and  by  Albertus  Magnus, 
even  in  the  mixed  mathematics,  under  every  disadvantage 
from  the  imperfection  of  instruments  and  the  want  of  re- 
corded experience,  is  sufficient  to  inspire  us  with  regret  that 
their  contemporaries  were  more  inclined  to  astonishment  than 
to  emulation.  These  inquiries  indeed  were  subject  to  the  or- 
deal of  fire,  the  great  purifier  of  books  and  men ;  for  if  the 
metaphysician  stood  a  chance  of  being  burned  as  a  heretic, 
the  natural  philosopher  was  in  not  less  jeopardy  as  a  magician.' 

1  TirabcMchl,  t.  It.  p.  150.  fbUowing  pam^  :  Duo  rant  modi  C09- 

s  Th«ire  is  a  rery  copioQfi  and  sensible  no^cendl;  scilicet  per  argumentnm  el 

accountofRoger  Bacon  in Wood*s  History  experimentum.    Argumentum  conclndit 

of  Oxford,  Tol.  i.  p.  832  (Gutoh's  edition),  et  facit  noe  concludere  qusestlooem ;  ntd 

I  am  a  little  surprised  that  Antony  sliould  non    certifieat    neque  remoTet  dubit»- 

have  found  out  Bacon's  merit.  tionem,  nt  quieseat  animus  in  Intuitu 

The  resemblance  between  Roger  Bacon  Teritatiii,   nii^i    earn   iuTeniat  Tift  expe- 

and  bis  greater  nameeake  is  Tery  re-  rientise;  quia  multt  babent  argnmenta 

markabie.     Whether  Lord  Bacon  sTer  ad  scibilia,  sed   quia  non  babent  expe- 

read  the  Opus  Mi^us,  1  know  not ;  bnt  it  rientiam,    negUgunt   ea,  neque   Titant 

b  singular,  that  his  IkTorite  quaint  ex-  nociTa  neo  persequuntur  bona.    Si  enim 

pr«ssion,p7-«rogali««8cientiarnm,should  aliqnls  homo,  qui  nunquam  Tldit  ignem. 

be  ftmnd  in  that  work,  though  not  used  probaTit  perargumenta  sufflcientia  quoit 

'  with   Um  same  allusion  to  the  Roman  ignis  comburit  et  Isedit  res  et  destrnit, 

eomitla.    And  whoeTer  reads  the  sixth  nunquam  propter  hoo  qulesceret  aniniua 

part  of  the  Opus  Hajus,  upon  exper-  audientis,  neo  ignem  Titaret  anteqnam 

imental  science,  must  be  struck  by  it  as  poneret  manum  Tel  rem  combnstibilem 

the  procoiype,  in  spirit,  of  the  NoTum  ad    ignem,  ut    per    experlentlam    pro- 

Organnm.     Tlw    same    sanguine    and  baret  quod  argumentnm  edocebat;  sed 

sometimes  rash  oonfldence  in  the  eflsot  asenmptft  experiential  combustionis  oer- 

of  physical  discoTeries,  the  same  fondness  tiflcatur  animus  et  quiescit  in  Ailgort 

for  experiment,  the  same  preference  of  Teritatis,  quo  argumentum  non  suAcit| 

inductive  to  abstract  reasoning,  perTade  sed  experientia.    p.  446. 
ooth  works.    Roger  Bacon's  phiiosoph-       •  See  the  fiite    of  Ceoeo  d^ABCoU  fai 

'  leal   spirit   may  be  iUustxated  by  the  TIraboechi.  t  t.  p.  17i> 


616  THE  ROMANCE  LANGUAGE.     Chap.  IX..  Pai€t  IL 

A  far  more  sufuttantial  cause  of  intcllecrual  improvement 
CnitiTation  ^^  *^®  development  of  those  new  languages  that 
of  the  new  Sprang  out  of  the  corruption  of  Latin.  For  three 
iangua««-  q^  f^^j,  centuries  after  what  was  called  the  Ro- 
mance tongue  was  spoken  in  France,  there  remain  but  few 
vestiges  of  its  employment  in  writing;  though  we  cannot 
draw  an  absolute  inference  from  our  want  of  proof, 
thsRowanoe  and  a  critic  of  much  authority  supposes  ti*ansla- 
SroSaiecS  ^*^°^  ^  have  bccn  made  into  it  for  religious  pur- 
poses from  the  time  of  Charlemagne.^  During  this 
period  the  language  was  split  into  two  very  separate  dialects, 
the  regions  of  which  niay  be  considered,  though  by  no  means 
strictly,  as  divided  by  the  Loire.  These  were  called  the 
Langue  d'Oil  and  the  Langue  d'Oc;  or  in  more  modem 
times,  the  French  and  Provenpal  dialects.  In  the  latter  of 
these  I  know  of  nothing  which  can  even  by  name  be  traced 
beyond  tiie  year  1100.  About  that  time  Gregory  de  Becha- 
da,  a  gentleman  of  Limousin,  recorded  the  memorable  events 
of  the  first  crusade,  then  recent,  in  a  metrical  history  of  great 
length.^  This  poem  has  altogether  perished;  which,  con- 
sidering the  popularity  of  its  subject,  as  M.  Sismondi  justly 
remarks,  would  probably  not  have  been  the  case  if  it  had 
possessed  any  merit  But  very  soon  afterwards  a  multitude 
of  poets,  like  a  swarm  of  summer  insects,  appeared  in  the 
TroQbadoan  southem  provinces  of  France.  These  were  the 
of  Pro?«noe.  celebrated  Troubadours,  whose  fame  depends  far 
less  on  their  positive  excellence  than  on  the  darkness  of  pre- 
ceding ages,  on  the  temporary  sensation  they  excited,  and 
their  permanent  influence  on  the  state  of  European  poetry 
From  William  count  of  Poitou,  the  earliest  troubadour  on 
reconl,  who  died  in  1126,  to  tlieir  extinction,  about  the  end 
of  the  next  century,  there  were  probably  several  hundred  of 
these  versifiers  in  the  language  of  Provence,  though  not 
always  natives  of  France.  Mi  Hot  has  published  tlie  lives  of 
one  hundred  and  forty-two,  besides  the  names  of  many  more' 

1  La    Boenf,    MAm.    da    PAead.    daa  freataTerbapTofbTret,daodaefinainiora.m 

Inacrlpt.  t.  xvii.  p.  711.  tpatium  auper  hoo  opoa  openm  dedtt. 

<  Oregoriua,  coffnomento  Beehada,  da  N«  Ter&  vtleraeret  propter   ▼erbum  tuI- 

Castro  de  Turribua,  profeMione  miles,  gare.  nOD   aine  prserepto  eplaoopl  Eaa- 

attbtUiMimi   ingeuli    vir,  aliquHDtalum  torgii,  et  eonsilio  Oaaberti  Nonnannl, 

imbatuB  Uterliif  borum  geata  praeliorum-  hoc  opua  agj^reaaua  eat.    I  tranacrtbe  thli 

iDatern&  Ungul  rhy  thmo  vulgari,  ut  po-  from  Ueeren'a  Baaat  aar  lea  CrolMUlea,  p 

pittua  pleniter  Intelligent,  ingeus  voiu-  447;  whoae  reference  la  to  L*bb4,  BibU»* 

man  decanter  oompoault,  et  ut  yera  at  theca  nora  M^.  t.  U.  p.  296. 


0TATB  OF  SOCIBTT.  TEOUBADOURS.  SI 7 

whose  history  is  unknown ;  and  a  still  greater  number,  it 
cannot  be  doubted,  are  unknown  by  name.  Among  those 
])oets  are  reckoned  a  king  of  England  (Richard  I.),  two  of 
Aragon,  one  of  Sicily,  a  dauphin  of  Auvergne,  a  count  of 
Foix,  a  prince  of  Orange,  many  noblemen  and  several  ladies. 
One  can  hardly  pretend  to  account  for  this  sudden  and  tran- 
sitory love  of  verse :  but  it  is  manifestly  one  symptom  of  the 
rapid  impulse  which  the  human  mind  received  in  the  twelfth 
century,  and  contemporaneous  with  the  severer  studies  that 
began  to  flourish  in  the  universities.  It  was  encouraged  by 
tlie  prosperity  of  Languedoc  and  Provence,  undisturbed,  com- 
paratively with  other  countries,  by  internal  warfare,  and  dis- 
posed by  the  temper  of  their  inhabitants  to  feel  wfth  voluptu- 
ous sensibility  the  charm  of  music  and  amorous  poetry.  But 
the  tremendous  storm  that  fell  upon  Languedoc  in  the  crusade 
against  the  Albigeois  shook  off  the  flowers  of  Proven9iil 
verse  ;  and  the  final  extinction  of  the  fief  of  Toulouse,  with 
the  removal  of  the  counts  of  Provence  to  Naples,  deprived 
the  troubadours  of  their  most  eminent  patrons.  An  attempt 
was  made  in  the  next  century  to  revive  them,  by  distributing 
prizes  for  the  best  composition  in  the  Floral  Games  of  Tou- 
louse, which  have  sometimes  been  erroneously  referred  to  a 
higher  antiquity.^  This  institution  perhaps  still  remains ;  but 
even  in  its  earliest  period  it  did  hot  establish  the  name  of  any 
Provenyal  poet.  Nor  can  we  deem  these  fantastical  solemni- 
ties, styled  Courts  of  Love,  where  ridiculous  questions  of 
metaphysical  gallantry  were  debated  by  poetical  advocates, 
under  the  presidency  and  arbitration  of  certain  ladies,  much 
calculated  to  bring  forward  any  genuine  excellence.  They 
illustrate,  however,  what  is  more  immediately  my  own  ob- 
ject, the  general  ardor  for  poetry  and  the  manners  of  those 
chivalrous  ages.^ 

The  great  reputation  acquired  by  the  troubadours,  and 
panegyrics  lavished  on  some  of  them  by  Dante  ^^j^     ^^ 
and  Petrarch,  excited  a  curiosity  among  literary  cai  chw. 
men,  which  has  been  a  good  deal  disappointed  by  ^^' 
further  acquaintance.      An  excellent  French  antiquary  of 
the  last  age,  La  Curne  de  St.  Palaye,  spent  great  part  of  his 

1  I>eSade,ViedeP«trarqiie,t.l.p.l56.  Etat  de  la  PoMe  Fno^olm,  p.  94.     I 

Btimoadi.  Uit.  da  Midi,  t.  i.  p.  228.  hare  never  had  patience  to  look  at  th« 

>  For  the  Conrta  of  LoTe,  me  De  Sade,  older  writers  who  have  treated  this  tin- 
Tie  de  Pitrarque,  t.  ii.  note  Id.     Le  aome  sofaijeot. 
Qnuid,  Vabliaax,  1. 1,  p.  270.    Boquefort, 


618  TROUBADOURS.  Chap.  iX.  Paki  11. 

life  in  accumulating  manuscripts  of  Proven9al  poetry,  reiy 
little  of  which  had  ever  been  printed.  Translations  from 
part  of  this  collection,  with  memorials  of  the  writers,  were 
published  by  Millot ;  and  we  certainly  do  not  often  meet  with 
passages  in  his  three  volumes  which  give  us  any  poetical 
pleasure.^  Some  of  the  original  poems  have  since  been  pub- 
lished, and  the  extracts  made  from  them  by  the  recent  histo- 
rians of  southern  literature  are  rather  superior.  The  trou- 
badours chiefly  confined  themselves  to  subjects  of  love,  or 
rather  gallantry,  and  to  satires  (sirventes),  which  are  some- 
times keen  and  spirited.  No  romances  of  chivalry,  and 
hardly  any  tales,  are  found  among  their  works.  There  seems 
a  general  deficiency  of  imagination,  and  especially  of  that 
vivid  description  which  distinguishes  works  of  genius  in  the 
rudest  period  of  society.  In  the  poetry  of  sentiment,  their 
favorite  province,  they  seldom  attain  any  natural  expression, 
and  consequently  produce  no  interest.  I  speak,  of  course,  on 
the  presumption  that  the  best  specimens  have  been  exhibited 
by  those  who  have  undertaken  the  task.  It  must  be  allowed, 
however,  that  we  cannot  judge  of  the  troubadours  at  a  great- 
er disadvantage  than  through  the  prose  translations  of  MilloU 
Their  poetry  was  entirely  of  that  class  which  is  allied  to 
:nusic,  and  excites  the  fancy  or  feelings  rather  by  the  power 
of  sound  than  any  stimulancy  of  imagery  and  passion.  Pos- 
sessing a  flexible  and  harmonious  language,  they  invented  a 
variety  of  metrical  arrangements,  perfectly  new  to  the  na- 
tions of  Europe.  The  Latin  hymns  were  striking,  but  mo- 
notonous, the  metre  of  the  northern  French  unvaried ;  but 
in  Proven9al  poetry,  almost  every  length  of  verse,  from  two 
syllables  to  twelve,  and  the  most  intricate  disposition  of 
rhymes,  were  at  the  choice  of  the  troubadour.  The  can- 
£oni,  the  sestine,  all  the  lyric  metres  of  Italy  and  Spain  were 
borrowed  from  his  treasury.  With  such  a  command  of  poet- 
Veal  sounds,  it  was  natural  that  he  should  inspire  delight  into 
ears  not  yet  rendered  familiar  to  the  artifices  of  verse ;  and 
even  now  the  fragments  of  these  ancient  lays,  quoted  by  M. 
Sismondi  and  M.  Ginguene,  seem  to  possess  a  sort  of  charm 
that  has  evaporated  in  translation.  Upon  this  harmony,  and 
upon  the  facility  with  which  mankind  are  apt  to  be  deluded 
into  an  admiration  of  exaggerated  sentiment  in  poetry,  they 

I  Blfltolie  Utttoire  dm  Troobftdoiun.   PuIb,  1774. 


I*« 


-  ^ 


-* 


i^' 


Btats  of  Socxxtt.        POETBT  AND  PROSE.  619 

depended  for  their  influence.  And  however  vapid  the  songs 
of  Provence,  may  seem  to  our  apprehensions,  Uiey  were  un- 
doubtedly the  source  from  which  poetry  for  many  centuries 
derived  a  great  portion  of  its  habitual  language.^ 

It  has  been   maintained  by  some  antiquaries,  that  the 
northern    Romance,  or  what  we    properly  call 
French,  was  not  formed  until  the  tenth  century,  J^JJJ^ 
the  common  dialect  of  aU  France  having  previous-  poetry  snd 
ly  resembled  that  of  Languedoc.    This  hypothesis  ^'^**' 
may  not  be  indisputable ;  but  the  question  is  not  likely  to  be 
settled,  as  scarcely  any  written  specimens  of  Romance,  even 
of  that  age,  have  survived.'    In  the  eleventh  century,  among 
other  more  obscure  productions,  both  in  prose  and  metre, 
there  appears  what,  if  unquestioned  as  to  authenticity,  would 
be  a  viduable  monument  of  this  language ;  the  laws  of  Wil- 
liam the  Conqueror.     These  are  preserved  in  a  manuscript 
of  Ingulfus's  History  of  Croyland,  a  blank  being  left  in  other 
copies  where  they  should  be  inserted.'    They  are  written  in 
an  idiom  so  far  removed  from  the  Proven9a{,  that  one  would 
be  disposed  to  think  the  separation  between  these  two  species 
of  Romance  of  older  standing  than  is  commonly  allowed. 
But  it  has  been  thought  probable  that  these  laws,  which  in 
fact  were  nearly  a  repetition  of  those  of  Edward  the  Con- 

#  fessor,  were  originally  published  in  Anglo-Saxon,  the  only 

language  intelligible  to  the  people,  and  translated,  at  a  subse- 

^'  quent  period,  by  some  Norman  monk  into  French.^ 

* 

1  Two  ray  modern  French  writers,  M.  ments  of  the  tenth  century:  uid  they 

'                      CHogneni  (Hlfltolte   Litt^rafae  d'ltaUe,  qnote  part  of  a  charter  as  old  as  940  in 

,                      Parte.  1811)  and  M.Si8mondi(Lltttoktnre  Romance,    p.  58.    Bat  that  antiquary, 

dn  Midi  de  TBurope,  Paris,  1818),  h«Te  in  a  memoir  printed  in  the  eerenteenUi 

^                      rcTired  the  poetical  history  of  the  tron-  volume  of  the  Academy  of  Inscriptions, 

badours.    To  them,  still  more  than  to  which  throws  more  light  on  the  inlkncy 

Millot  and  Tirabosohi,  I  would  acknowl-  of  the  French  lansoage  than  anything 

edge  my  obligations  for  the  little  I  have  within  my  knowlei^,  says  only  that  the 

leiuved  in  respect  of  this  forgotten  school  earliest  specimens  of  Terse  in  the  royal 

of  poetry.     Notwithstanding,  howerer.  Ubrary  are  of  the  elerenth  century  am 

the  heaTiness  of  Millot's  work,  a  Ikult  plus  lord.  p.  717.  M.  de  la  Rue  is  said  tc 

not  imputable  to  himself,  though  Ritson,  have  found  some  poems  of  the  elcTenth 

n  I  remember,  calls  him,  in  his  own  century  in  the  British  Museum,  Roqno* 

elit^  style, "  a  blockhead,"  it  will  always  fort,  Btat  de  la  Potele  Francoise,  p.  a)6. 

usikAil  to  the  inquirer  into  the  manners  Le  BoeuTs  fragment  may  be  round  in  this 

and  opinions  of  the  middle  ages,  fttMn  the  work,  p.  879;  it  seems  nearer  to  the 

numerous  illustrations  it  contains  of  two  Proren^  than  the  French  dialect, 

general  fiicts;  the  extreme  dissoluteness  *  Oale,  XV.  Script,  t.  i.  p.  88. 

of  morals  among  the  higher  ranlcs,  and  *  Rltson's    Diraertatlon  on  Romanoi^ 

the  prevailing  animoalty  <tf  all  classes  p.  06.    [The  laws  of  William  the  Con- 

■gaf nst  the  clergy.  queror,  published  In  Ingulfbs,  are  trans- 

■  Htst.  Utt.  de  la  France,  t.  vil.  p.  68.  lated  from  a  Latin  original ;  the  French 

Ls  Boeuf,  according  to  these   Benedio-  is  of  the  thirteen''-h  century.    It  Is  now 

tines,  has  puhlishod  some  poetical  frag-  doubted  whethei  mxj  Ireuch,  except  a 


620  IBENCH  METRICAL  TRANSLATIONS.  Cbat.  DL  Part  a 

The  use  of  a  popular  language  became  more  common  af- 
ter the  year  1 100.  Translations  of  some  books  of  Scripture 
and  acts  of  saints  were  made  about  that  time,  or  even  earlier, 
and  there  are  French  sermons  of  St.  Bernard,  from  which 
extracts  have  been  published,  in  the  royal  library  at  Paris.^ 
In  1126,  a  charter  was  granted  by  Louis  VI.  to  the  city  of 
Beauvais  in  French.*  Metrical  compositions  are  in  general 
the  first  literature  of  a  nation,  and  even  if  no  distinct  proof 
could  be  adduced,  we  might  assume  their  existence  before 
the  twelfth  century.  There  is  however  evidence,  not  to  men- 
tion the  fragments  printed  by  Le  Bceuf,  of  certain  lives  of 
sftints  translated  into  French  verse  by  Thibault  de  Vernon, 
a  canon  of  Rouen,  before  the  middle  of  the  preceding  age. 
And  we  are  told  that  Tai liefer,  a  Norman  minstrel,  recited  a 
song  or  romance  on  the  deeds  of  Roland,  before  the  army  of 
his  countrymen,  at  the  battle  of  Hastings  in  1066.  Philip 
de  Than,  a  Norman  subject  of  Henry  I.,  seems  to  be  the 
earliest  poet  whose  works  as  well  as  name  have  reached  us, 
unless  we  admit  a  French  translation  of  the  work  of  one 
Marbode  upon  precious  stones  to  be  more  ancient.*  This 
De  Than  wrote  a  set  of  rules  for  computation  of  time  and 
an  account  of  different  calendars.  A  happy  theme  for  in- 
spiration without  doubt  1  Another  performance  of  the  same 
author  is  a  treatise  on  birds  and  beasts,  dedicated  to  Ad&^ 
laide,  queen  of  Henry  I.*  But  a  more  famous  votary  of  the 
muses  was  Wace,  a  native  of  Jersey,  who  about  the  begin- 
ning of  Henry  II.'s  reign  turned  Geoffrey  of  Monmouth's 
history  into  French  metre.  Besides  this  poem,  called  le 
Brut  d'Angleterre,  he  composed  a  series  of  metrical  histCH 
ries,  containing  the  transactions  of  the  dukes  of  Normandy, 
from  RoUo,  their  great  progenitor,  who  gave  name  to  the 
Roman  de  Rou,  down  to  his  own  age.  Other  productions 
are  ascribed  to  Wace,  who  was  at  least  a  prolific  versifier, 

fragment  of  a  truitUtioa  of  BoetbliUf  in  NonTeAU  TniU  de  Dlploniatiqne  to  be 

teive,  U  extent  of  en  earlier  age  than  the  translated  from  the  Latin,  t.  ir.  p.  619. 

twelfth.  Introdaetion  to  Hist,  of  Uteiat.  French  ehartere,  they  eaVf  are  not  com- 

8d  edit.  p.  28.]  mon  belbra  the  age  of  fjonla  IX. ;  and 

1  Ubt.  Litt.  t.  ix.  p.  148;   Fabllanx  thin  is  confirmed   by   thoee   published 

G^r  Barbaaan,  toI.  I.  p.  9,  edit.  1808:  in  Martenne^s  Thesaurus  Aneodotonim, 

6m.  dePAcMdtailedesInaer.  t.  XT.and  which  are  Tery  commonly    in    Frenek 

xtH.  p.  714,  Ibfl.  firom  his  rrtgn,  but  liardly  erer  before. 

s  HabUlon  speaks  of  this  as  the  oldest       >  Ravallere,  Khrol.  de  la  Lanm  Fraa 

French  Inntniment  he  had  seen.  But  the  coise,  p.  116,  doubts  the  age  of  this  trai» 

Benedlcttnes  quote  some  of  the  eleTenth  lation. 

centory.    Hist.  Utt.  t.  tU.  p.  69.    This       «  ArehsBclogia,  vols.  xii.  and  xiil. 
oharter  Is  supposed  by  the  authon  of 


f  rAT«  o-  SociBTT.     NOSMAN  ROMANCES  AND  TALES.      621 

and,  if  he  seem  to  deserve  no  higher  title  at  present,  has  a 
claim  to  indulgence,  and  even  to  esteem,  as  having  far  ex« 
celled  his  contemporaries,  without  anj  superior  advantages 
of  knowledge.  In  emulation,  however,  of  his  fame,  several 
Norman  writers  addicted  tliemselves  to  composing  chronicles, 
or  devotional  treatises  in  metre.  The  court  of  our  Normnn 
kings  was  to  the  earlj  poets  in  the  Langue  d'Oil,  what  those 
of  Aries  and  Toulouse  were  to  the  troubadours.  Henry  I. 
was  fond  enough  of  literature  to  obtain  the  surname  of  Beau- 
clerc;  Henry  II.  was  more  indisputably  an  encourager  of 
poetry ;  and  Richard  I.  has  left  compositions  of  his  own  in 
one  or  other  (for  the  point  is  doubtful)  of  the  two  dialects 
Bpoken  in  France.^ 

If  the  poets  of  Normandy  had  never  gone  beyond  histori- 
cal and  religious  subjects,  tliey  would  probably  have  had  less 
claim  to  our  attention  than  their  brethren  of  Provence.  But 
a  different  and  far  more  interesting  species  of  com-  Gorman  it>- 
position  began  to  be  cultivated  in  the  latter  part  of  mancM  and 
the  twelfth  century.  Without  entering  upon  the  ****** 
controverted  question  as  to  the  origin  of  romantic  fictions, 
referred  by  one  party  to  the  Scandinavians,  by  a  second  to 
the  Arabs,  by  others  to  the  natives  of  Britany,  it  is  manifest 
that  the  actual  stories  upon  which  one  early  and  numerous 
class  of  romances  was  founded  are  related  to  the  traditions 
of  the  last  people.  These  are  such  as  turn  upon  the  fable 
of  Aithur ;  for  though  we  are  not  entitled  to  deny  the  exi.>(tr 
ence  of  such  a  personage,  his  story  seems  chiefly  the  creation 
of  Celtic  vanity.  Traditions  current  in  Britany,  though  proba« 
bly  cferived  from  this  island,  became  the  basis  of  Geoffrey  of 
Monmouth's  Latin  prose,  which,  as  has  been  seen,  was  trans- 
fused into  French  metre  by  Wace.*    The  vicinity  of  Nor* 

1  milotsays  that  Richard**  rirreiitei  vol.  i.  p.  56.     KIchard   ateo  comfMiMd 

(satirical  M>ngs)haTe  appeared  Id  French  Terses  in  the  Polt«?ln  dialect,  Rpoken  at 

aa  well  an  l*roTen^*aI,  but  tluit  the  former  that  time  In  Maine  and  At\joa,  which 

Is  probably  a    tmnslatloti.      IlUt.  des  resemble*  the  Lanffue  d'Oe  more  tba« 

TroobadourR,  toI.  i.  p.  G4.    Yet  I  baTe  that  of  northern   France,  though,  e«pe- 

met  with  no  writer  who  quoted  them  in  ctally  in  the  latter  countries,  it  gaTe  way 

the  latter  lanjcuage,  and  M.  Ginguen^,  not  lon^  aft4«rwards.    Id.  p.  77.) 

an  well  as  Lu  Grand  d' Aossy,  considers  *  Thii«  deriyatiou  of  the  romantio  sto- 

Rlchard  us  a  troureur.  ries  of  Arthur,  which  Le  Grand  d'Aussy 

[Kaynooard   has  since  published,  la  ridiculously  attributen   to  the  jealousy 

Pn>Ten5^,  the  sung  of  Rirliard  on  hia  enterbilned  by  the  English   of  the  re- 

eaptirity,  which  had  seveml  times  ap-  nown  of  Charlemagne,  instated  in  a  very 

pMired  in  French.    It  is  not  improbable  perspicuous  and  satiMfitiotory  manner  by 

(hat  he  wrote  it  in  both  dialects.  Leroux  Mr.  Kills,  In  his  Specimens  of  Ifiarfy  Kof* 

ds  Lineyf  Chants  Historiqaes  Fran^als,  Ibb  Matilcal  RomanMS. 


622  ROMAN  D£  LA  ROSE.  Chap.  IX.  Part  U 

mand}  enabled  its  poets  to  enrich  their  narratives  with  othei 
Armoncan  fictions,  all  relating  to  the  heroes  who  had  sur^ 
rounded  the  table  of  the  son  of  Uther.*  An  equally  imagi- 
nary history  of  Charlemagne  gave  rise  to  a  new  family  of 
romances.  The  authors  of  these  fictions  were  called  Trou- 
veurs,  a  name  obviously  identical  with  that  of  Troubadours. 
But  except  in  name  there  was  no  resemblance  between  the 
minstrels  of  the  northern  and  southern  dialects.  The  inven- 
tion of  one  class  was  turned  to  description,  that  of  the  other 
to  sentiment ;  the  first  were  epic  in  their  form  and  style,  the 
latter  almost  always  lyric  We  cannot  perhaps  give  a  better 
notion  of  their  dissimilitude,  than  by  saying  that  one  school 
produced  Chaucer,  and  the  other  Petrarch.  Besides  these 
romances  of  chivalry,  the  trouveurs  displayed  their  powers 
of  lively  narration  in  comic  tales  or  fabliaux,  (a  name  some- 
times extended  to  the  higher  romance,)  which  have  aided 
the  imagination  of  Boccace  and  La  Fontaine.  These  com- 
positions are  certainly  more  entertaining  than  those  of  the 
troubadours ;  but,  contrary  to  what  I  have  said  of  the  latter, 
they  often  gain  by  appearing  in  a  modem  dress.  Their 
versification,  which  doubtless  had  its  charm  when  listened  to 
around  the  hearth  of  an  ancient  castle,  is  very  languid  and 
prosaic,  and  suitable  enough  to  the  tedious  prolixity  into 
which  the  narrative  is  apt  to  fall ;  and  though  we  find  many 
sallies  of  that  arch  and  sprightly  simplicity  which  character- 
izes the  old  language  of  France  as  well  as  England,  it 
requires,  upon  the  whole,  a  factitious  taste  to  relish  these 
Norman  tales,  considered  as  poetry  in  the  higher  sense  of 
the  word,  distinguished  from  metrical  fiction. 

A  manner  very  different  from  that  of  the  fabliaux  was 
Bomaa  da  ift  adopted  in  the  Roman  de  la  Rose,  begun  by  Wil- 
^^^  liam  de  Loris  about  1250,  and  completed  by  John 

de  Meun  half  a  century  later.  This  poem,  which  contains 
about  16,000  lines  in  the  usual  octo-sy liable  verse,  from 
which  the  early  French  writers  seldom  deviated,  is  an  alle- 
gorical vision,  wherein  love  and  the  other  passions  or  qualities 


1  [Though  th«  itoriM  of  Arthur  were  Brittoh  eiown,  and  wm  Intendod, 

BOt  iavented  by  the  English  outof  Jeal-  queutly,  as  a  oouaterpoiso  to  that  of 

ousy  of  Chariflmagne,  it  has  been  ingen-  Turpin,  which  nerar  becaoM  popular  ia 

lously  conjmtared  and  rendered  highly  England.    It  is  doubtftil,  in  my  Jadg- 

profaable  by  Ur.  Sharon  Turner,  that  meni,  whether  Geoffirey  borrowed  aomueh 

the  history  by  Oeoffrey  of  Monmouth  firom  Armorioan  traditiiMui  as  ha  prt^ 

was  oompomsd  with  a  political  yiew  to  dis-  tended.  ] 
play  the  independence  and  dignity  of  tha 


Statb  of  Socibtt.    works  IN  FRENCH  PROSE.  623 

connected  with  it  pass  over  the  stage,  without  the  htterven- 
tion,  I  believe,  of  any  less  abstract  personages.  Though 
Bimilar  allegories  were  not  unknown  to  the  ancients,  and, 
whicli  is  more  to  the  purpose,  may  be  found  in  other  produc- 
tions of  the  thirteenth  century,  none  had  been  constructed  so 
elaborately  as  that  of  the  Roman  de  la  Rose.  Cold  and 
tedious  as  we  now  consider  this  species  of  poetry,  it  originated 
in  the  creative  power  of  imagination,  and  appealed  to  more 
refined  feeling  than  the  common  metrical  narratives  could 
excite.  This  poem  was  highly  popular  in  the  middle  ages, 
and  became  the  source  of  those  numerous  allegories  which 
had  not  ceased  in  the  seventeenth  century. 

The  French  language  was  employed  in  prose  as  well  as  in 
metre.  Indeed  it  seems  to  have  had  almost  an  ^^^^^^  ^^^ 
exclusive  privilege  in  this  respect.  "  The  Ian-  Fwnch 
guage  of  Oil,"  says  Dante,  in  his  treatise  on  vul-  '*"^* 
gar  speech,  '^  prefers  its  claim  to  be  ranked  above  those  of  Oc 
and  Si  (Proven9al  and  Italian),  on  the  ground  that  all  trans- 
lations or  compositions  in  prose  have  been  written  therein, 
from  its  greater  facility  and  grace,  such  as  the  books  com- 
piled from  the  Trojan  and  Roman  stories,  the  delightful 
fables  about  Arthur,  and  many  other  works  of  history  and 
science."^  I  have  mentioned  already  the  sermons  of  Sl 
Bernard  and  translations  from  Scripture.  The  laws  of  the 
kingdom  of  Jerusalem  purport  to  have  been  drawn  up  imme- 
diately afler  the  first  crusade,  and  though  their  language  has 
been  materially  altered,  there  seems  no  doubt  that  they  were 
originally  compiled  in  French.^  Besides  some  charters, 
there  are  said  to  have  been  prose  romances  before  the  year 
1200.'    Early  in  the  next  age  Ville  Hardouin,  seneschal  of 

1  Prose  e  Rime  di  D»nte«  Venei.  1758,  uidateoond  In  1889,  by  ilxteen  eom- 

t.  It.  p.  261.    Daote's  words,  biblia  cum  missionen  ehoMn  bj  the  states  of  tbe 

Trqjanoram    Rommnorumqoe    gestibos  kingdom  of   Cyprus.     Their   language 

eompilata,  seem  to  bear  no  other  mean-  seems  to  be  such  as  might  be  expected 

Ing  than  what  I  have  given.    But  there  ftom  the  time  of  the  former  revision . 

may  be  a  doubt  whether  biblia  is  ever  *  Several  proee  romances  were  written 

used  except  for  the  Scriptures ;  and  the  or  translated  from  the  Latin,  abont  1170, 

Italian  translator  renders  it,  cloA  la  bib-  and    afterwards.     Mr.   £llis    seems  in- 

bia,  i  fiitd  de  i  Trqiani,  e  de  i  Romani.  dined  to  dispute  their  antiquity.    But, 

In  this  cam  something  is  wrong  in  the  besides  the  authorities  of  La  liavalidrs 

original  lAtin,and  Dante  will  have  all  ad-  and  Treesan,  the  latter  of  which  is  not 

ed  to  tlie  timnslatlous  of  parts  of  Scrip-  worth  much,  a  late  very  extensively  in- 

ture  made  Into  French,  as  mentioned  in  formed  writer  seems  to  have  put  this 

the  text.  matter  out  of  doubt.     Roquefort  Fla- 

s  The  Assises  de  Jerusalem  have  un-  mericnurt.  Stat  de  Ui  Potele  Fran^aise 

dsrgooe  two  revisions ;  one,  in  1250.  by  dans  las  12im  efe  18>m  siteles,  Paris,  1816, 

•rdsrof  John  d'Jbelin,  count  of  JaOih  p.  147 


624  SPANISH  LANGUAGE.      Chap.  IX.  Part  a 

CampagQe,  recorded  the  capture  of  Constantinople  in  the 
fourth  crusade,  an  expedition,  the  glory  and  reward  of  w  hich 
he  had  personally  shared,  and,  as  every  original  work  of  prior 
date  has  either  perished  or  is  of  small  importance,  may  be 
deemed  the  father  of  French  prose.  The  Establishments  of 
St.  Louis,  and  the  law  treatise  of  Beaumanoir,  fill  up  the 
interval  of  the  thirteenth  century,  and  before  its  conclusion 
we  must  suppose  the  excellent  memoirs  of  Joinville  to  have 
been  composed,  since  they  are  dedicated  to  Louis  X.  in  1315 
when  the  author  could  hardly  be  less  than  ninety  years  of 
age.  Without  prosecuting  any  further  the  history  of  French 
literature,  I  will  only  mention  the  translations  of  Livy  and 
Sallust,  made  in  the  reign  and  by  the  order  of  John,  with 
those  of  Caesar,  Suetonius,  Ovid,  and  parts  of  Cicero,  which 
are  due  to  his  successor  Charles  V.* 

I  confess  myself  wholly  uninformed  as  to  the  original 
Bpftniiih  formation  of  the  Spanish  language,  and  as  to  the 
language.  epoch  of  its  Separation  into  the  two  principal  dia- 
lects of  Castile  and  Portugal,  or  Gallicia;^  nor  should  I 
perhaps  have  alluded  to  the  literature  of  that  peninsula,  were 
it  not  for  a  remarkable  poem  which  shines  out  among  the 
minor  lights  of  those  times.  This  is  a  metrical  life  of  the 
Cid  Ruy  Diaz,  written  in  a  barbarous  style  and  with  the 
rudest  inequality  of  measure,  but  with  a  truly  Homeric 
warmth  and  vivacity  of  delineation.  It  is  much  to  be 
regretted  that  the  author's  name  has  perished ;  but  its  date 
has  been  referred  by  some  to  the  middle  of  the  twelfth  cen- 
tury, while  the  hero's  actions  were  yet  recent,  and  before  the 
taste  of  Spain  had  been  corrupted  by  the  Proven9al  trouba- 
dours, whose  extremely  different  manner  would,  if  it  did  not 

1  Villnret,  TI{i>t.d«  France,  t.xt.  p.  121 ;  that  country  mnj  nowibly  go  farther 

De  Saile.  Vio  Uu  I'etrarque,  t.  iii.  p.  548.  back.    Another  of  1101  in  publiohtid  la 

Charleii  V.  had  more  loaruing  than  uio«t  Marina^s  Tcoria  de  las  Corteo.  t.  iii.  p.  1. 

priiireii  of  bix  time.    Chrijitiui;  iIb  IMicm,  It  is  In  a  Vidimus  by  Peter  the  Cruel, 

a  lady   who  has  written    memoirs,  or  and   cannot,  I  pmumA,   hare  been  a 

rather  an  eulogy  of  him,  says  that  his  translation  fW>ni  the  Latin.    Yet  the  ed- 

flithcr  le  fi5t  introdin;  en  lettres  mou't  itont  of  NouToau  Tr.dc. Diplom.  mention 

sufRsaqiment,  et  tant  que  coui(M.'toniment  a  charter  of  1243,  as  the  enriiest  they  art 

enteudoit  Hon   Latin,  et  soufHsnmuicnt  acquainted  with  in  the  Spanish  languagv. 

aeavolc  leu  n'gles  de  gnimniitire ;  la  quelle  t.  ir.  p.  525. 

choMe  plcuHt  a  dieu  qii'iiinsi  funt  accou-       Charters  in  the  German  langiuge,  ao 

tuni6e    cntre    l(>s  princes.     Collect,  de  cording  to  the  same  woric,  first  appear 

Hem.  t.  V.  p.  103,  lUO.  &c.  in  the   time  of  the  emperor    Kodolph, 

'•<  The  earliest  SpanL«h  that  I  remember  a(t4>r  1272,  and    became  ui*nal   in  the 

to  have  Keen  is  an  instrument  in  Mar-  next    century,    p.  523.    Bat    StruTius 

tenne,  Thesaurus  Anccdotorum.  t.  1.  p.  mentions  an  instrument  of  1285,  as  th« 

263;  the  date  of  which  is  10(^.    l^)rsons  earliest  is  Qerman.    Corp.  Hilt.  Chun* 

mors  oonyemant  with  the  antiquities  of  p.  457 


Stats  of  Socibtt.     EASLT  ITALIAN  WRITERS.  625 

pervert  the  poet^s  genins,  at  least  have  impeded  his  popular- 
ity. A  very  competent  judge  has  pronounced  the  poem  of 
the  Cid  to  be  "  decidedly  and  beyond  oompai*ison  the  finest  in 
the  Spanish  language."  It  is  at  least  superior  to  any  that 
was  written  in  Europe  before  the  appearance  of  Dante.^ 

A  strange  obscurity  envelops  the  infancy  of  tlie  Italian 
language.  Though  it  is  certain  that  grammatical  ^^j 
Latin  had  ceased  to  be  employed  in  ordinary  dis-  wdten  in 
course,  at  least  from  the  time  of  Charlemagne,  we  ****  ''*^^*°- 
have  not  a  single  passage  of  undisputed  authenticity,  in 
the  current  idiom,  for  nearly  four  centuries  afterwards. 
Though  Italian  phrases  are  mixed  up  in  the  barbarous  jar- 
gon of  some  charters,  not  an  instrument  is  extant  in  that 
language  before  the  year  1200,  unless  we  may  reckon  one  in 
tbe  Sanltnian  dialect  (which  I  believe  was  rather  Proven9al 
than  Italian),  noticed  by  Muratori.'  Nor  is  there  a  vestige 
of  Italian  poetry  older  than  a  few  fragments  of  Ciullo  d'Al- 
camo,  a  Sicilian,  who  must  have  written  before  1193,  since 
he  mentions  Saladin  as  then  living.*  This  may  strike  us  as 
the  more  remarkable,  when  we  consider  the  political  circum- 
stances of  Italy  in  the  eleventh  and  twelfth  centuries.  From 
the  struggles  of  her  spirited  republics  against  the  emperors 
and  their  internal  factions,  we  might,  upon  all  general  rea- 
soning, anticipate  the  early  use  and  vigorous  cultivation  of 
their  native  language.  Even  if  it  were  not  yet  ripe  for 
historians  and  philosophers,  it  is  strange  that  no  poet  should 
have  been  inspired  with  songs  of  triumph  or  invective  by  the 
various  fortunes  of  his  country.  But,  on  the  contrary,  the 
poets  of  Lombardy  became  troubadours,  and  wasted  their 
genius  in  Proven9al  love  strains  at  the  courts  of  princes. 
The  Milanese  and  other  Lombard  dialects  were,  indeed, 
exceedingly  rude ;  but  this  rudeness  separated  them  more 
decidedly  from  Latin :  nor  is  it  possible  that  the  Lombards 
could  have  employed  that  language  intelligibly  for  any  public 
or  domestic  purpose.     And  indeed  in  the  earliest  Italian 

>  An  eztmet  flrom  this  poem  wag  pab-  sagei  in  tfa*  Uilrd  Tolnm^  of  his  Hlstorx 
Ushed  in  1806  by  Mr.  Southej.  at  the  of  SouUiern    literature.    This  popalar 
end  of  his  ^^  Chronicle  of  the  CId,"  the  and  elegant  woric  contains  some  interest- 
materials  of  which  it  partly  supplied,  ing  and  not  very  common  information  ai 
accompanl<Ml  by  an  excellent  yersion  by  to  the  early  Spanish  poets  in  tlie  Pro?en- 
a  genfleman  who  is  distingniiihed,  among  oA  dialect,  as  well  as  these  who  wtdI«  ia 
many  other  taltints,  for  an    unrivalled  Castilian. 
felicity  in  expressing  the  peculiar  manner  *  Dissert.  82. 
Hi  authors  wh'>m  he  translates  or  imi-  *  Tirabosehi,  t.  !▼.  p.  810. 
lates.    M.  Slsmondi  has  given  other  pas* 

VOL.  II.  ^  M.  40 


626  EARLY  ITALIAN  WRTTEBS.     Ghat.  IX.  Past  IL 

compositions  that  have  been  published,  the  new  language  is 
BO  thoroughly  formed,  that  it  is  natural  to  infer  a  very  long 
disuse  of  that  from  which  it  was  derived.  The  Sicihans 
claim  the  glory  of  having  first  adapted  their  own  harmonious 
dialect  to  poetry.  Frederic  U.  both  encouraged  their  art 
and  cultivated  it;  among  the  very  first  essays  of  Italian 
verse  we  find  his  productions  and  those  of  his  chancellor 
Fiero  delle  Vigne.  Thus  Italy  was  destined  to  owe  the  be- 
ginnings of  her  national  literature  to  a  foreigner  and  an 
enemy.  These  poems  are  very  short  and  few ;  those  as- 
cribed to  St.  Francis  about  the  same  time  are  hardly  distin- 
guishable from  prose ;  but  afler  the  middle  of  the  tlurteenth 
century  the  Tuscan  poets  awoke  to  a  sense  of  the  beauties 
which  their  native  language,  refined  from  the  impurities  of 
vulgar  speech,^  could  display,  and  the  genius  of  Italian  liters 
ature  was  rocked  upon  the  restless  waves  of  the  Florentine 
democracy.  Ricordano  Malespini,  the  first  historian,  and 
nearly  the  first  prose  writer  in  Italian,  left  memorials  of  the 
republic  down  to  the  year  1281,  which  was  that  of  his 
death,  and  it  was  continued  by  Giacchetto  Malespini  to  1286. 
These  are  little  mferior  in  purity  of  style  to  the  best  Tuscan 
authors ;  for  it  is  the  singular  fate  of  that  language  to  have 
spared  itself  all  intermediate  stages  of  refinement,  and,  starts 
ing  the  last  in  the  race,  to  have  arrived  almost  instantaneous* 
ly  at  the  goal.  There  is  an  interval  of  not  much  more  than 
half  a  century  between  the  short  fragment  of  CiuUo  d'Alca- 
mo,  mentioned  above,  and  the  poems  of  Guido  Guinizzelli, 
Guitone  d'Arezzo,  and  Guido  Cavalcante,  which,  in  their 
diction  and  turn  of  thought,  are  sometimes  not  unworthy  of 
Petrarch.^ 

1  Dante,  In  his  treatise  De  mlgari  Blc>  wliom  Tusean  ii  the  proper  dsnomlna 
quentlft,  reckons  fourteen  or  fifteen  dla-  tion  of  their  national  tongue, 
lects.  spoken  in  different  parts  of  Italy,  *  Tirahosehi,  t.  ir.  p.  809-^77.  Gin- 
all  of  which  were  delMtsed  by  impure  gnen^f  toI.  i.  o.  6.  The  style  of  the 
modes  of  expression.  But  the  "  noble.  Vita  Nuova  of  Dante,  written  soon  after 
principal,  and  courtly  Italian  idiom,''  the  death  of  his  Beatrice,  which  hap- 
was  that  which  belonged  to  every  dty.  pened  in  1290,  is  liardly  distinguishabloj 
and  seemed  to  belong  to  none,  ana  by  a  fbrelsoer,  f^m  that  of  MacblaTel 
which,  if  Italy  had  a  court,  would  be  the  or  Oastiglione.  Tet  so  recent  was  the 
language  of  that  court,    p.  274, 277.  adoption  of  this  languaoe,  that  the  cele- 

Allowing  for  the  metaphysical  obsou-  brated  master  of  Dante,  Brunetto  Latini. 

flty  in  which  Dante  chooses  to  envelop  had  written  his  Tuoro  in  French ;  and 

the  sul\jeet,  this  might  perhaps  be  said  gives  as  a  reason  for  it,  that  it  was  a 

at  present.    The  Florentine  dialect  haa  more  agreeable  and  useful  language  than 

Its  peculiarities,  which    distinguish  it  his  own.  St  le  aucuiis  demaodoit  pour- 

from    the    general    Italian     language,  quoi  ehis  llyre  est  ecris  en  Romans,  selon 

though  these  are  seldom  discerned  bv  la  laison  de  France,  pour  chose  que  nona 

tan^auu,  nor  always  by  natives,  with  •onimee  YtaUen,  Je  duols  que  ch'est  ponu 


Btatb  of  Sogixtt  DANTE.  627 

But  at  the  beginning  of  the  next  age  arose  a  much  greater 
genius,  the  true  father  of  Italian  poetry,  and  the 
first  name  in  the  literature  of  the  middle  ages. 
This  was  Dante,  or  Durante  Alighieri,  bom  in  1265,  of  a 
respectable  family  at  Florence.  Attached  to  the  Guelf 
party,  which  had  then  obtained  a  final  ascendency  over  its 
rival,  he  might  justly  promise  himself  the  natural  reward  of 
talents  under  a  free  government,  public  trust  and  the  esteem 
of  his  compatriots.  But  the  Gueifs  unhappily  were  split 
into  two  factions,  the  Bianchi  and  the  Neri,  wiUi  the  former 
of  whom,  and,  as  it  proved,  the  unsuccessful  side,  Dante  was 
connected.  In  1300  he  filled  the  office  of  one  of  the  Priori, 
or  chief  magistrates  at  Florence  ;  and  having  manifested  in 
this,  as  was  alleged,  some  partiality  towards  the  Bianchi,  a 
sentence  of  proscription  passed  against  him  about  two  years 
afterwards,  when  it  became  the  turn  of  the  opposite  faction 
to  triumph.  Banished  from  his  country,  and  baffled  in  sev- 
eral efforts  of  his  friends  to  restore  their  fortunes,  he  had  no 
resource  but  at  the  courts  of  the  Scalas  at  Verona,  and  other 
Italian  princes,  attaching  himself  in  adversity  to  the  Imperial 
interests,  and  tasting,  in  his  own  language,  the  bitterness  of 
another's  bread.^  In  this  state  of  exile  he  finished,  if  he  did 
not  commence,  his  great  poem,  the  Divine  Comedy ;  a  rep* 
resentation  of  the  three  kingdoms  of  futurity,  HeU,  Purga- 
tory, and  Paradise,  divided  into  one  hundred  cantos,  and 
containing  about  14,000  lines.     He  died  at  Ravenna  in  1321. 

Dante  is  among  the  very  few  who  have  created  the  na- 
tional poetry  of  their  country.  For  notwithstanding  the  pol- 
ished elegance  of  some  earlier  Italian  verse,  it  had  been 
confined  to  amorous  sentiment;  and  it  was  yet  to  be  seen 
that  the  language  could  sustain,  for  a  greater  length  than  any 
existing  poem  except  the  Iliad,  the  varied  style  of  narration, 
reasoning,  and  ornament.  Of  all  writers  he  is  the  most  un- 
questionably original.  Virgil  was  indeed  his  inspiring  genius, 
as  he  declares  himself,  and  as  may  sometimes  be  perceived  in 
his  diction ;  but  his  tone  is  so  peculiai*  and  characteristic,  that 

ehoM  qa0   noui   bocdidm   en  Fninoe ;  franeeise  oort  panni  Is  moDde,  at  eft  !• 

l*autr»  pour  chose  qtu  la  parUure  en  est  piTia  delltable  a  Ure  et  e  olr  que  nolle 

f^us  tUlilabU  «l  pliu  eomtnutu  atoutu  au(re.    GinffuenA,  vol.  L  p.  884. 

rent     There  la  lald  to  be  e  manueeripfe  ^  Tu  proveral  ai  (aaya  Cecctagulde  te 

niatory  of  Veoioe  down  to  1275,  in  the  him)  come  a4  <U  aale 

Florentine  libraiy,  written  in  French  bj  II  pane  attrui,  e  come  A  doro  eaUe 

Martin  de  Canalef  who  aaya  that  he  has  II  acendere  e  U  aallr  per  altrui  aoaJe. 

th/mn  that  langaage,  paroeque  la  langue  Paiadia.  oanl.  II 


628  DANTE.  Chap.  DL  Pabt  IL 


few  readers  would  be  willing  at  first  to  acknowledge  anj 
Beniblance.  He  possessed,  in  an  extraordinary  degree,  a 
command  of  language,  the  abuse  of  which  led  to  his  obscurity 
and  licentious  innovations.  No  poet  ever  excelled  him  in 
condseness,  and  in  the  rare  talent  of  finishing  his  pictures  by 
a  few  bold  touches ;  the  merit  of  Pindar  in  his  better  hours. 
How  prolix  would  the  stories  of  Francesca  or  of  Ugolino 
have  become  in  the  hands  of  Ariosto,  or  of  Tasso,  or  of  Ovid, 
or  of  Spenser !  This  excellence  indeed  is  most  striking  in 
the  first  part  of  his  poem.  Having  formed  his  plan  so  as  to 
give  an  equal  length  to  the  three  regions  of  his  spiritual 
world,  he  found  himself  unable  to  vary  the  images  of  hope 
or  beatitude,  and  the  Paradise  is  a  continual  accumulation  of 
descriptions,  separately  beautiful,  but  uniform  and  tedious. 
Though  images  derived  from  light  and  music  are  the  most 
pleasing,  and  can  be  borne  longer  in  poetry  than  any  others, 
their  sweetness  palls  upon  the  sense  by  frequent  repetition, 
and  we  require  the  intermixture  of  sharper  flavors.  Yet 
there  are  detached  passages  of  great  excellence  in  tliis  third 
part  of  Dante's  poem  ;  and  even  in  the  long  theological  dis 
cussions  which  occupy  the  greater  proportion  of  its  thirty- 
three  cantos,  it  is  impossible  not  to  admire  the  enunciation 
of  abstract  positions  with  remarkable  energy,  conciseness,  and 
sometimes  perspicuity.  The  first  twelve  cantos  of  the  Pur- 
gatory are  an  almost  continual  fiow  of  sofl  and  brilliant 
poetry.  The  last  seven  are  also  very  splendid  ;  but  there  is 
some  heaviness  in  the  intermediate  parts.  Fame  has  justly 
given  the  preference  to  the  Inferno,  which  displays  through- 
out  a  more  vigorous  and  masterly  conception  ;  but  the  mind 
of  Dante  cannot  be  thoroughly  appreciated  without  a  perusal 
of  his  entire  poem. 

The  most  forced  and  unnatural  turns,  the  most  barbarous 
licenses  of  idiom,  are  found  in  this  poet,  whose  power  of  ex- 
pression is  at  other  times  so  pecuUarly  happy.  His  style  is 
mdeed  generally  free  from  those  conceits  of  thought  which 
discredited  the  other  poets  of  his  country ;  but  no  sense  is  too 
remote  for  a  word  which  he  finds  convenient  for  his  measure 
or  his  rhyme.  It  seems  indeed  as  if  he  never  altered  a  line 
on  account  of  the  necessity  of  rhyme,  but  forced  another,  or 
perhaps  a  third,  into  company  with  it.  For  many  of  his 
faults  no  sufficient  excuse  can  be  made.  But  it  is  candid  to 
rmnember,  that  Daiite,  writing  almost  in  the  infancy  of  a 


-s^ 


Stats  07  Societt.  DANTE.      '  629 

language,  which  he  contributed  to  create,  was  not  to  antici* 
pate  that  words  which  he  borrowed  from  the  Latin,  and  from 
the  provincial  dialects,  would  hj  accident,  or  through  the  ti*> 
midity  of  later  writers,  lose  their  place  in  the  classical  idiom 
of  Italy.  If  Petrarch,  Bembo,  and  a  few  more,  had  not 
aimed  rather  at  purity  than  copiousness,  the  phrases  which 
now  appear  barbarous,  and  are  at  least  obsolete,  might  have 
been  fixed  by  use  in  poetical  language. 

The  great  characteristic  excellence  of  Dante  is  elevation 
of  sentiment,  to  which  his  compressed  diction  and  the  em- 
phatic cadences  of  his  measure  admirably  correspond.  We 
read  him,  not  as  an  amusing  poet,  but  as  a  master  of  moral 
wisdom,  with  reverence  and  awe.  Fresh  from  the  deep  and 
serious,  though  somewhat  barren  studies  of  philosophy,  and 
schooled  in  the  severer  discipline  of  experience,  he  has  made 
of  his  poem  a  mirror  of  his  mind  and  life,  the  register  of  his 
solicitudes  and  sorrows,  and  of  the  speculations  in  which  he 
sought  to  escape  their  recollection.  The  banished  magistrate 
of  Florence,  the  disciple  of  Brunetto  Latini,  the  statesman 
accustomed  to  trace  Uie  varying  fluctuations  of  Italian  fac« 
tion,  is  forever  before  our  eyes.  For  this  reason,  even  the 
prodigal  display  of  erudition,  which  in  an  epic  poem  would 
be  entirely  misplaced,  increases  the  respect  we  feel  for  the 
poet,  though  it  does  not  tend  to  the  reader's  gratification 
Except  Milton,  he  is  much  the  most  learned  of  all  the  greai 
poets,  and,  relatively  to  his  age,  far  more  learned  than  Mil- 
ton. In  one  so  highly  endowed  by  nature,  and  so  consum- 
mate by  instruction,  we  may  well  sympathize  with  a  resent- 
ment which  exile  and  poverty  rendered  perpetually  fresh. 
The  heart  of  Dante  was  naturally  sensible,  and  even  tender; 
his  poetry  is  full  of  simple  comparisons  from  rural  life ;  and 
the  sincerity  of  his  early  passion  for  Beatrice  pierces  through 
the  veil  of  allegory  which  surrounds  her.  But  the  memory 
of  his  injuries  pursues  him  into  the  immensity  of  eternal 
light ;  and,  in  the  company  of  saints  and  angels,  his  unfor- 
giving spirit  darkens  at  the  name  of  Florence.^ 

This  great  poem  was  received  in  Italy  with  that  enthu- 
siastic admiration  which  attaches  itself  to  works  of  genius 
only  in  ages  too  rude  to  listen  to  the  envy  of  competitors,  or 
the  fastidiousness  of  critics.    Almost  every  library  in  that 


I 

1  PandJflo,  camt.  16 


f 


630  •     DANTE.  Chap.  DC  Pabt  H 

country  oontaioB  manuscript  copies  of  the  Divine  Comedy, 
and  an  account  of  those  who  have  abridged  o^  commented 
upon  it  would  swell  to  a  volume.  It  was  thrice  printed  in 
the  year  1472,  and  at  least  nine  times  within  the  fiileenth 
century.  The  city  of  Florence  in  1378,  with  a  magnanimity 
which  almost  redeems  her  original  injustice,  appointed  a  pub- 
lic professor  to  read  lectures  upon  D^te ;  and  it  was  hajndly 
less  honorable  to  the  poet's  memory  that  the  first  person  se- 
lected for  this  office  was  Boccaccio.  The  universities  of  Pisa 
and  Piacenza  imitated  this  example ;  but  it  is  probable  that 
Dante's  abstruse  philosophy  was  oflen  more  regarded  in  their 
chairs  than  his  higher  excellences.^  Italy  indeed,  and  all 
Europe,  had  reason  to  be  proud  of  such  a  master.  Since 
Glaudian,  there  had  been  seen  for  nine  hundred  years  no 
considerable  body  of  poetry,  except  the  Spanish  poem  of  the 
Gid,  of  which  no  one  had  heard  beyond  the  peninsula,  that 
could  be  said  to  pass  mediocrity;  and  we  must  go  much 
further  back  than  Glaudian  to  find  any  one  capable  of  being 
compared  with  Dante.  His  appearance  made  an  epoch  in 
the  intellectual  history  of  modem  nations,  and  banished  the 
discouraging  suspicion  which  long  ages  of  lethargy  tended  to 
excite,  that  nature  had  exhausted  her  fertility  in  the  great 
poets  of  Greece  and  Rome.  It  was  as  if,  at  some  of  the  an- 
cient games,  a  stranger  had  appeared  upon  the  plain,  and 
thrown  his  quoit  among  the  marks  of  former  casts  which  tra- 
dition had  ascribed  to  the  demigods.  But  the  admiration  of 
Dante,  though  it  gave  a  general  impulse  to  the  human  mind, 
did  not  produce  imitators.  I  am  unaware  at  least  of  any 
writer,  in  whatever  language,  who  can  be  said  to  have  fol- 
lowed the  steps  of  Dante :  I  mean  not  so  much  in  his  sub- 
ject as  in  the  character  of  his  genius  and  style.  His  orbit  is 
still  all  his  own,  and  the  track  of  his  wheels  can  never  be 
confounded  with  that  of  a  rival.' 

In  the  same  year  that  Dante  was  expelled  from  FlorenoOi 

Patnuch        *  notary,  by   name  Petracco,  was  involved  in  a 

similar  banishment     Retired  to  Arezzo,  he  there 

became  the  father  of  Francis  Petrarch.    This  great  man 

• 

1  VelU,  Vlte  di  Dante.    Tlnbosohl.  taffloed.    Bat  btsidfls  saYviml  lefandur 

<  The  source  from  which  Dante  d»-  -visions  of  the  12th  and  18th  eentoiles,  it 

tlTed  she  scheme  and  general  idea  of  his  seems  probable  that  he  derived  hints  from 

poem  has  been  a  subject  of  inquiry  in  the  Tesoxetto   of   his  master  in  philn- 

Italy.    To  his  original  mind  one  might  sophical  studies,  Branetto  Latinl.    Glii- 

haTe  thought  the  sixth  ^Sneid  would  hare  gueii«,  t.  U.  p.  8. 


\ 


SrATB  OF  SocisTT.  PETRABCH.  631 

shared  of  course,  during  his  early  years,  in  the  adverse  for 
tune  of  his  family,  which  he  was  invincibly  reluctant  to  re 
store,  according  to  his  father^s  wish,  by  the  profession  of  Ja« 
risprudence.  The  strong  bias  of  nature  determined  him  to 
polite  letters  and  poetry.  These  are  seldom  the  fountains  of 
wealth ;  yet  they  would  perhaps  have  been  such  to  Petrarch, 
if  his  temper  could  have  borne  the  sacrifice  of  liberty  for 
any  worldly  acquisitions.  At  the  city  of  Avignon,  where  his 
parents  had  latterly  resided,  his  graceful  appearance  and  the 
reputation  of  his  talents  attracted  one  of  the  Colonna  family, 
then  bishop  of  Lombes  in  Grascony.  In  him,  and  in  other 
members  of  that  great  house,  never  so  illustrious  as  in  the 
fourteenth  century,  he  experienced  the  union  of  patronage 
and  friendship.  This,  however,  was  not  confined  to  the  Co- 
lonnas.  Unlike  Dante,  no  poet  was  ever  so  liberally  and 
sincerely  encouraged  by  the  great ;  nor  did  any  perhaps  ever 
carry  to  that  perilous  intercourse  a  spirit  more  irritably  inde- 
pendent, or  more  free  from  interested  adulation.  He  praised 
his  friends  lavishly  because  he  loved  them  ardently ;  but  his 
temper  was  easily  susceptible  of  o£fence,  and  there  must  have 
been  much  to  tolerate  in  that  restlessness  and  jealousy  of 
reputation  which  is  perhaps  the  inevitable  failing  of  a  poet.^ 
But  everything  was  forgiven  to  a  man  who  was  the  ac- 
knowledged boast  of  his  age  and  country.  Clement  YI.  con- 
ferred one  or  two  sinecure  benefices  upon  Petrarch,  and 
would  probably  have  raised  him  to  a  bishopric  if  he  had 
chosen  to  adopt  the  ecclesiastical  profession.  But  he  never 
took  orders,  the  clerical  tonsure  being  a  sufficient  qualification 
for  holding  canonries.  The  same  pope  even  afforded  him  the 
post  of  apostolical  secretary,  and  this  was  repeated  by  Inno- 
cent YI.  I  know  not  whether  we  should  ascribe  to.  mag- 
nanimity or  to  a  politic  motive  the  behavior  of  Clement  YI. 

1  There  b  an  ttopleertng  proof  of  this  I  haye  read  in  aome  modem  book,  bnt 

qnalitj  in  a  letter  to  Boccaccio  on  Dante,  know  not  where  to  seek  the  paaaage,  that 

whoee  merit  he  rather  diaingennouiily  ex-  Petrarch  did   not  Intend  to  allude  to 

tennatee;  and  whose  popularity  eridetv^tW  Dante  in  the  letter  to  Boecaoeio  raeu- 

ttnne  him  to  the  quick.    De  Sade,  t.  iil.  tloned  above,  but  rather  to  Zanobi  Sf  rata, 

p.  612.    Yet  we  Judge  80  ill  of  ourselTes,  a  contemporary  Florentine  poet,  vbom. 

tliat  Petrarch  ohone  envy  m  the  Tice  firom  ■  however  forgotten  at  preeent,  tho  baa 

which  of  all  others  he  was  moat  free.    In  taste  of  a  party  In  critlclem  preferred  to 

hit  dialogue  with  St.  AuguetiB,  he  iays:  himself.  —  Matteo  Villaoi  mentions  them 

Quicqnid  Ubuerit,  dicito;  modo  me  non  together  as  the  two  great  ornaments  of 

aocuMS  iuTidisB.    AuQ.  utinam  non  tibi  hb  age.    This  eoQJeotore  seems  probable, 

magis  superbia  quam  invidia  nocniaset :  for  some  expressions  ai«  not  in  the  least 

nam  hoc  crimine,  me  Judice,  liber  es.  applicable  to  Dante.    But  whtcherer  wat 

De   Oontempta   Mnndlt  edit.    1681,  p.  int4>nded,  the  letter  equally  shows  ttH 

8t2  Irritable  humor  of  Petrarch 


/ 


632  PETKABCH.  Chap.  DL  Past  n 

toYrards  Petrarch,  who  had  pursued  a  course  as  vexatious  as 
possible  to  the  H0I7  See.  For  not  only  be  made  the  resi- 
dence of  the  supreme  pontiffs  at  Avignon,  and  the  vices  of 
their  court,  the  topic  of  invectives,  too  well  founded  to  be 
despised,  but  he  had  ostentatiously  put  himself  forward  as  the 
supporter  of  Nicola  di  Rienzi  in  a  project  which  could  evi- 
dently have  no  other  aim  than  to  wrest  the  city  of  Rome 
from  the  temporal  sovereignty  of  its  bishop.  Nor  was  the 
friendship  and  society  of  Petrarch  less  courted  by  the  most 
respectable  Italian  princes ;  by  Robert  king  of  Naples,  hj 
the  Visconti,  the  Correggi  of  Parma,  the  famous  doge  of 
Venice,  Andrew  Dandolo,  and  the  Carrara  family  of  Padua, 
under  whose  protection  he  spent  the  latter  years  of  his  life. 
Stories  are  related  of  the  respect  shown  to  him  by  men  in 
humbler  stations  which  are  perhaps  still  more  satisfactory.' 
But  the  most  conspicuous  testimony  of  public  esteem  was 
bestowed  by  the  city  of  Rome,  in  his  solemn  coronation  as 
laureate  poet  in  the  Capitol.  This  ceremony  took  place  in 
1341 ;  and  it  is  remarkable  that  Petrarch  had  at  that  time 
composed  no  works  which  could,  in  our  estimation,  give  him 
pretensions  to  so  singular  an  honor. 

The  moral  character  of  Petrarch  was  formed  of  disposi- 
tions peculiarly  calculated  for  a  poet.  An  enthusiast  in  the 
emotions  of  love  and  friendship,  of  glory,  of  patriotism,  of 
religion,  he  gave  the  rein  to  all  their  impulses ;  and  there  is 
not  perhaps  a  page  in  his  Italian  writing  which  does  not  bear 
the  trace  of  one  or  other  of  these  affections.  By  far  the  most 
predominant,  and  that  which  has  given  the  greatest  celebrity 
to  his  name,  is  his  passion  for  Laura.  Twenty  years  of  un- 
requited and  almost  unaspiring  love  were  lightened  by  song ; 
and  the  attachment,  which,  having  long  survived  the  beauty 
of  its  object,'  seems  to  have  at  one  time  nearly  passed  from 

^  A  soldsmlth  of  Bergamo,  by  name  imlthSf  as  «»  may  Judge  by  this  InstanM. 
Henry  Capra.  smitten  with  an  enthoM-  were  opulent  persons ;  yet  the  fkrlends  of 
aatie  love  of  letters,  and  of  Petrarch,  Petrarch  dissuaded  him  from  the  Tisii,  m 
earnestly  requested  the  honor  of  a  yisit  derogatory  to  his  own  eleTated  statioou 
from  the  poet.  The  house  of  this  good  De  Sade,  t.  Ui.  p.  496. 
tradesman  was  AiU  of  representations  of  <  See  the  beautiful  sonnet.  Erano  I  oa- 
his  person,  and  of  iDscriptions  with  his  pel  d^oro  all'  aura  spani.  In  a  flunons 
name  and  arms.  No  expense  had  been  passage  o&his  Confessions,  he  savs :  Cor- 
•pared  in  copying  all  his  works  as  they  pus  illod  egregium  morbis  et  crebris  par- 
appeared.  He  was  received  by  Capra  tubus  exhaustum,multumpiistiniviMzfti 
with  a  princely  m  ignifluence ;  lod^  in  amlsit.  Those  who  maintain  the  vir^nitgr 
ft  chamber  hung  with  purple,  and  a  of  Laura  are  forced  to  read  iMrturtafumt- 
•plendid  bed  on  which  no  one  befbre  or  friu,  instead  of  partmbua.  Two  aaau- 
ftAer  him  wa0  permitted  to  sleep.    Gh>ld-  scripts  in  the  royal  libraiy  at  Parli  hftT* 


c 


&TATB  OF  SOOIBTT.  PETEABCH.  633 

the  heart  to  the  fancj,  was  changed  to  an  intenser  feelingi 
and  to  a  sort  of  celestial  adoration,  bj  her  death.  Laura,  be- 
fore the  time  of  Petrarch's  first  accidental  meeting  with  her, 
was  united  in  marriage  with  another ;  a  fact  which,  besides 
some  more  particular  evidence,  appears  to  me  deducible  from 
the  whole  tenor  of  his  poetry.^  Such  a  passion  is  undoubt- 
edly not  capable  of  a  moral  defence ;  nor  would  I  seek  its 
palliation  so  much  in  the  prevalent  manners  of  his  age,  by 
which  however  the  conduct  of  even  good  men  is  generally 
not  a  little  influenced,  as  in  the  infirmity  of  Petrarch's  char* 
acter,  which  induced  him  both  to  obey  and  to  justify  the  emo* 
tions  of  his  heart.  The  lady  too,  whose  virtue  and  prudence 
we  are  not  to  question,  seems  to  have  tempered  the  light  and 
shadow  of  her  countenance  so  as  to  preserve  her  admirer 
from  despair,  and  consequently  to  prolong  his  sufferings  and 
servitude. 

The  general  excellences  of  Petrarch  are  his  command  over 
the  music  of  his  native  language,  his  correctness  of  style, 
scarcely  two  or  three  words  that  he  haQ  used  having  been 
rejected  by  later  writers,  his  exquisite  eleganc'e  of  diction, 
improved  by  the  perpetual  study  of  Virgil ;  but,  far  above 
all,  that  tone  of  pure  and  melancholy  sentiment  which  has 
something  in  it  unearthly,  and  forms  a  strong  contrast  to  the 
amatory  poems  of  antiquity.  Most  of  these  are  either  licen- 
tious or  uninteresting ;  and  those  of  Catullus,  a  ma!li  endowed 
by  nature  with  deep  and  serious  sensibility,  and  a  poet,  in  my 
opinion,  of  greater  and  more  varied  genius  than  Petrarch, 
are  contaminated  above  all  the  rest  with  the  most  degrading 
grossness.  Of  this  there  is  not  a  single  instance  in  the  poet 
of  Vaucluse ;  and  his  strains,  diffused  and  admired  as  they 
have  been,  may  have  conferred  a  benefit  that  criticism  cannot 
estimate,  in  giving  elevation  and  refinement  to  the  imagina- 
tidns  of  youth.  The  great  defect  of  Petrarch  was  his 
want  of  strong  original  conception,  which  prevented  him 
from  throwing  off  the  affected  and  overstrained  manner  of 
the  Proven 9al  troubadours,  and  of  the  earlier  Italian  poets. 
Among  his  poems  the  Triumphs  are  perhaps  superior  to  the 
Odes,  as  the  latter  are  to  the  Sonnets;  and  of  the  latter, 

the  'eonCraetion  ptbut^  which  teATea  the  in  this ;  bat  I  am  clear  that  oorpoa  cz- 

matter  opea  to  controveny.      De  Sade  haostuin    partuboa   fa  much  the  inoxfl 

eontenda  that  **CT«bris -'  la  leaa  applicable  elegant  Latin  exproaaion  of  the  two. 
to  *' perturbationibua  "  than  (o  ''partu-       >  [NoTK  111,] 
boa."    I  do  not  know  that  thure  ia  much 


r 


634  ENGLISH  UlNGUAGE.     Ciiap.  D^  P^bt  II 

those  written  subsequently  to  the  death  of  Laura  are  in  gen- 
eral the  best  But  that  constrained  and  laborious  measure 
cannot  equal  the  graceful  flow  of  the  canzone,  or  the  vigor- 
ous compression  of  the  terza  rima.  The  Triumphs  have  also 
a  claim  to  ^::periorit7,  as  the  only  poetical  composition  of 
Petrarch  that  extends  to  any  considerable  length.  They  are 
in  some  degree  perhaps  an  imitation  of  the  dramatic  Myste- 
ries, and  form  at  least  the  earliest  specimens  of  a  kind  of 
poetry  not  uncommon  in  later  times,  wherein  real  and  al- 
legorical personages  are  intermingled  in  a  mask  or  scenic 
representation.* 

None  of  the  principal  modem  languages  was  so  late  in  its 
BngUsh  iftn-  formation,  or  in  its  application  to  the  purposes  of 
»"■«••  literature,  as  the  English.     This  arose,  as  is  well 

known,  out  of  the  Saxon  branch  of  the  Great  Teutonic  stock 
spoken  in  England  till  aAer  the  Conquest  From  this  mother 
dialect  our  EngUsh  differs  less  in  respect  of  etymology,  than 
of  syntax,  idiom,  and  flection.  In  so  gradual  a  transition  as 
probably  took  place,  and  one  so  sparingly  marked  by  any 
existing  evidence,  we  cannot  well  assign  a  definite  origin  to 
our  present  language.  The  question  of  identity  is  almost 
as  perplexing  in  languages  as  in  individuals.  But,  in  the 
reign  of  Henry  II.,  a  version  of  Wace's  poem  of  Brut,  by 
one  Layamon,  a  priest  of  Emly-upon-Severn,  exhibits  as  it 
were  the  chrysalis  of  the  English  language,  in  a  very  corrupt 
modification  of  the  Anglo-Saxon.^     Very  soon  afterwards  the 

1  [T  leare  thh  as  It  stood.     But   my  idiom  of  dim  part  of  England  not  being 

ffwa  taste  ban  changed.     I  retract  alto-  Mmilar  to  that  of  another  in  grammatical 

gether  the  preference  here  given  to  the  flections.    See  Quarterlj  Bevtew  for  ApxU 

Triumphs  above  the  Canionl,  and  doubt  1848. 

whether  the  latter  are  superior  to  the       The  entire  woric  of  Layamon  contains 

Sonnets.  Thi»  at  least  is  not  the  opinion  a  small  number  of  words  taken  from  th« 

of  Italian  critics,  who  ought  to  be  the  French  ;  about  fifty  in  the  original  text, 

most  competent.    1848.]  and  about  forty  more  in  that  of  a  manu- 

>  A  suRlclent  extract  from  this  work  script,  perhaps  half  a  century  later,  and 

ot  Ijayamon  hits  bt<en  published  by  Mr.  very  considerably  altered  in  consequence 

Kills,  in  his  Specimens  of  Early  Kngliiih  of  the  progress  of  our  language.    Many 

Poetry,  vol.  i.  p.  61.    This  extract  con-  of  these  words  derived  from  tJie  French 

taitis.  he  observes,  no  word  which  we  are  express  new  ideas,  as  admiral,  astronomy, 

under  the  necessity  of  ascribing  to  a  baron,  mantel,  &c.    "  The  language  of 

French  origin.  Layamon,"  says  Sir  Frederick  Msddea, 

[Laynmon.  as  is  now  supposed,  wrote  **  belongs  to  that    transition  period   ia 

in  the  ivign  of  John.    See  Sir  Proderick  which   the  groundwork  of  .^nglo-Saxon 

Ma<lden'iii  edition,  and  Mr.  Wright's  Bio-  phraseology  and  grammar  still  exi!>ted, 

gnphia  Uteraria.   The  best  reason  seems  although  gradually  yielding  to  the  inllu- 

to  be  that  he  speaks  of  Eleanor,  queen  ence  of  the  popular  fonns  of  speech.    We 

of  Henry,  as  then  dead,  which  cook  place  find  in  it.  as  in  the  later  portion  of  th« 

In  1204.    But  it  requires  a  vast  knowl-  Saxon  Chronicle,  marked  indicationsof « 

edge  of  the  language  to  flod  a  date  by  tendency  to  adopt  those  terminaticus  ao4 

the  use  or  disuse  cf  particular  forms  ;  the  sounds  which  ehanoteriae  a  Imagaaca  ia 


SrATB  OP  SociBTT.    ITS  SLOW  PROGRESS.  635 

Dew  fonnation  was  better  developed;  and  some  metrical 
pieces,  referred  bj  critics  to  the  earlier  part  of  the  thirteenth 
century,  differ  but  little  from  our  legitimate  grammar.^  About 
the  beginning  of  Edward  L's  reign,  Robert,  a  monk  of  Glou- 
cester, composed  a  metrical  chronicle  from  the  histoiy  of 
Greoffrej  of  Monmouth,  which  he  continued  to  his  own  time. 
This  work,  with  a  similar  chronicle  of  Robert  Manning,  a 
monk  of  Brunne  (Bourne)  in  Lincolnshire,  nearlj  thirty 
years  later,  stand  at  the  head  of  our  English  poetry.  The 
romance  of  Sir  Tristrem,  ascribed  to  Thomas  of  Erceldoune^ 
sumamed  the  Rhymer,  a  Scottish  minstrel,  has  recently  laid 
claim  to  somewhat  higher  antiquity.'  In  the  fourteenth  cen- 
tury a  great  number  of  metrical  romances  were  translated 
from  the  French.  It  requires  no  small  portion  of  indulgence 
to  speak  favorably  of  any  of  these  early  English  productions. 
A  poetical  line  may  no  doubt  occasionally  be  found ;  but  in 
general  the  narration  is  as  heavy  and  prolix  as  the  versifica- 
tion is  unmusical.*  The  first  English  writer  who  can  be  read 
with  approbation  is  William  Langland,  the  author  of  Piers 
Plowman's  vision,  a  severe  satire  upon  the  clergy.  Though 
his  measure  is  more  uncouth  than  that  of  his  predecessors, 
there  is  real  energy  in  his  conceptions,  which  he  caught  not 
from  the  chimeras  of  knightrcrrantry,  but  the  actual  manners 
and  opinions  of  his  time. 

The  very  slow  progress  of  the  English  language,  as  an 
instrument  of  literature,  is  chiefiy  to  be  ascribed  q^^^  ^f  in 
to  the  effects  of  the  Norman  conquest,  in  degrad-  >iow  pxof- 
ing  the  native  inhabitants  and    transferring  all  "^ 
power  and  riches  to  foreigners.    The  barons,  without  per- 

s  stete  of  ohaoge,  and  whieh  are  appartnt  textt  of  LayamonfComblned  with  tbe  vow* 

also  in  some  other  branches  of  the  Ten-  el-chaoges.  which  are  numerona  though 

Ionic  tongue.    The  uoe  of  a  an  an  article  not  altogether  arbitrary,  will   show,  al 

—  tbe  change  of  the  Anglo-Saxon  ter*  once  the  progress  made  in  two  centuries, 
minations  a  and  an  Into  «  and  en,  as  well  in  departing  from  the  ancient  and  purer 
as  the  disregard  of  inflections  and  genders  grammatical  forms,  as  found  in  Anglo- 

—  the  masculine  fbnns  giyen  to  neuter  Saxon  manuscripts."  Preface,  p.  xxTiil.] 
nouns  in  the  plural  ~  the  neglect  of  the  i  Warton^s  History  of  English  Poetry, 
ftminine  terminations  of  adjectires  and  EUis's  Specimens. 

pronouns,  and  confusion   between  the  *  This  conjecture  of  Scott  has  not  been 

definite  and  indefinite  declensions  —  the  &Torably  received  by  later  critics, 

introduction  of  the  preposition  to  before  *  Warton  printed  copious  extracts  ftom 

infinitives,  and  occasional  use  of  wealc  some  of  these.    Kitson  gkw^  several  of 

preterites  of  verbs  and  participles  instead  them  entire  to  tbe  press.    And  Mr.  Bllli 

of  strong  —  the  constant  recurrence  of  has  adopted  the  only  plan  which  could 

«r  for  or  In  the  plurals  of  verbs  —  together  render  them  palatable,  by  intermingling 

with  the  uncertainty  of  the  rule  for  the  short   passages,  where  the  original    is 

government  of  prepositions— all   these  rather  above  iu  usual  mediocrity,  witk 

variattona.more  or  less  visible  in  the  two  his  own  lively  aoalyiiM. 


636  SLOW  PROGBESS  OF  ENGLISH.    Chap.  EL  PABr  IL 

haps  one  exception,  and  a  large  proportion  of  the  gendy, 
were  of  French  descent,  and  preserved  among  themselves 
the  speech  of  their  fathers.  This  continued  much  longer 
than  we  should  naturally  have  expected ;  even  after  the  loss 
of  Normandj  had  snapped  the  thread  of  French  connections, 
and  they  began  to  pride  themselves  in  the  name  of  English- 
men, and  in  the  inheritance  of  traditionary  Fnglish  privileges. 
Robert  of  Gloucester  has  a  remarkable  passage,  which  proves 
that  in  his  time,  somewhere  about  1290,  the  superior  ranks 
continued  to  use  the  French  language.^  Ralph  Higden,  about 
the  early  part  of  Edward  IIL's  reign,  though  his  expressions 
do  not  go  the  same  length,  asserts,  that  ^  gentlemen's  children 
are  taught  to  speak  French  from  the  time  they  are  rocked  in 
their  cradle ;  and  uplandish  (country)  or  inferior  men  will 
liken  themselves  to  gentlemen,  and  learn  with  great  business 
for  to  speak  French,  for  to  be  the  more  told  of."  Notwith- 
standing, however,  this  predominance  of  French  among  the 
higher-class,  I  do  not  think  that  some  modern  critics  are  war- 
ranted in  Tsonciuding  that  they  were  in  general  ignorant  of 
the  English  tongue.  Men  living  upon  their  estates  among 
their  tenantry,  whom  they  welcomed  in  their  haUs,  and  whose 
assistance  they  were  perpetually  needing  in  war  and  civil 
frays,  would  hardly  have  permitted  such  a  barrier  to  obstruct 
their  intercourse.  For  we  cannot,  at  the  utmost,  presume 
that  French  was  so  well  known  to  the  English  commonalty 
in  the  thirteenth  century  as  English  is  at  present  to  the  same 
class  in  Wales  and  the  Scottish  Highlands.  It  may  be 
remarked  also,  that  the  institution  of  trial  by  jury  must  have 
rendered  a  knowledge  of  English  almost  indispensable  to 
those  who  administered  justice.  There  is  a  proclamation^ of 
Edward  I.  in  Rymer,  where  he  endeavors  to  excite  his  sub- 
jects against  the  king  of  France  by  imputing  to  him  the 
intention  of  conquering  the  country  and  abolishing  the  Eng- 
lish language  (linguam  delere  Anglicanam),  and  this  is  fre- 
quently repeated  in  the  proclamations  of  Edward  IIL^  In 
his  time,  or  perhaps  a  little  before,  the  native  language  had 
become  more  familiar  than  French  in  common  use,  even  with 

1  The  erldenoM  of  Uils  geuentl  em>  GuiterboTy  Tales;  and  by  RltMm,  In  the 

ttloyment  and  gradnal  disum  of  French  preAoe  to  hb  Metrical  Bomaneea,  voL  L 

n  oonTcniaUon  and  writing  are  collected  p.  70. 

by  Tyrwhitt,  in  a  diflnertaUon  on  the  i  Rymer,  t.  T.  p.  490;  t.  tL  p.  M2,  d 

ancient  Bnglieh  language^  prefixed  to  the  alibi, 
ftrurth  Tolume  of  hie  edition  of  Chaooer^s 


Stats  or  Sooebtt.  CHAUCER.  637 

the  court  and  nobilitj.  Hence  the  numerous  translations  of 
metrical  romances,  which  are  chiefly  referred  to  his  reign. 
An  important  change  was  effected  in  1362  by  a  statute,  which 
enacts  that  all  pleas  in  courts  of  justice  shall  be  pleaded, 
debated,  and  judged  in  English.  But  Latin  was  by  this  act 
to  be  employed  in  drawing  the  record ;  for  there  seems  to 
have  still  continued  a  sort  of  prejudice  against  the  use  of 
English  as  a  written  language.  The  earliest  English  instni- 
ment  known  to  exist  is  said  to  bear  the  date  of  1343.^  And 
there  are  but  few  entries  in  our  own  tongue  upon  the  rolls  of 
parliament  before  the  reign  of  Henry  VI.,  after  whose  acces- 
sion its  use  becomes  very  common.'  Sir  John  Mandeyiile, 
about  1356,  may  pass  for  the  father  of  English  prose,  no 
original  work  being  so  ancient  as  his  Travels.  But  the 
translation  of  the  Bible  and  other  writings  by  Wicliffe, 
nearly  thirty  years  afterwards,  taught  us  the  copiousness 
and  energy  of  which  our  native  dialect  was  capable;  and 
it  was  employed  in  the  fifleenth  century  by  two  writers 
of  distinguished  merit,  Bishop  Pecock  and  Sir  John  For 
tescue. 

But  the  principal  ornament  of  our  English  literature  was 
Greoffrey  Chaucer,  who,  with  Dante  and  Petrarch,  nju^n„„ 
fills  up  the  triumvirate  of  great  poets  in  the  middle 
ages.  Chaucer  was  bom  in  1328,  and  his  life  extended 
to  the  last  year  of  the  fourteenth  century.  That  rude  and 
ignorant  generation  was  not  likely  to  feel  the  admiration  of 
native  genius  as  warmly  as  the  compatriots  of  Petrarch ;  but 
he  enjoyed  the  favor  of  Edward  III.,  and  Btill  more  conspic- 
uously of  John  duke  of  Lancaster;  his  fortunes  were  far 
more  prosperous  than  have  usually  been  the  lot  of  poets : 
and  a  reputation  was  established  beyond  competition  in  his 
lifetime,  from  which  no  succeeding  generation  has  withheld 
its  sanction.  I  cannot,  in  my  own  taste,  go  completely  along 
with  the  eulogies  that  some  have  bestowed  upon  Chaucer, 
who  seems  to  me  to  have  wanted  grandeur,  where  he  is  origi* 
nal,  both  in  conception  and  in  language.  But  in  vivacity  of 
imagination  and  ease  of  expression,  he  is  above  all  poets 
of  the  middle  time,  and  comparable  perhaps  to  the  greatest 
of  those  who  have  followed.  He  invented,  or  rather  intro- 
duced from  France,  and  employed  with  facility  the  regulaf 

1  Rltfom,  p.  80.    Than  b  ont  m  Bymer  of  the  ywr  1386. 
•  [Mon  hv 


638  BETIVAL  OF  Chap.  DC.  Pari  IL 

iambic  couplet ;  and  though  it  was  not  to  be  expected  that 
he  should  perceive  the  capacities  latent  in  that  measure, 
his  versification,  to  which  he  accommodated  a  very  licen- 
tious and  arbitrary  pronunciation,  is  uniform  and  harmoni- 
ous.^ It  is  chiefly,  indeed,  as  a  comic  poet,  and  a  minute 
observer  of  manners  and  circumstances,  that  Chaucer  excels. 
In  serious  and  moral  poetry  he  is  frequently  languid  and 
diffuse ;  but  he  springs  like  Antaeus  from  the  earth,  when  his 
subject  changes  to  coarse  satire,  or  merry  narrative.  Among 
his  more  elevated  compositions,  the  Ejiight's  Tale  is  abun- 
dantly sufficient  to  immortalize  Chaucer,  since  it  would  be 
dilRcult  to  find  anywhere  a  story  better  conducted,  or  told 
with  more  animation  and  strength  of  fancy.  The  second 
place  may  be  given  to  his  Troilus  and  Creseide,  a  beautiful 
and  interesting  poem,  though  enfeebled  by  expansion.  But 
perhaps  the  most  eminent^  or  at  any  rate  the  most  character- 
istic testimony  to  his  genius  will  be  found  in  the  prologue  to 
his  Canterbury  Tales ;  a  work  entirely  and  exclusively  his 
own,  which  can  seldom  be  said  of  his  poetry,  and  the  vivid 
delineations  of  which  perhaps  very  few  \*Titers  but  Shak- 
speare  could  have  equalled.  As  the  first  original  English 
poet,  if  we  except  Langland,  as  the  inventor  of  our  most 
approved  measure,  as  an  improver,  though  with  too  much 
innovation,  of  our  language,  and  as  a  faithful  witness  to  the 
manners  of  his  age,  Chaucer  would  deserve  our  reverence, 
if  he  had  not  also  intrinsic  claims  for  excellences,  which  do 
not  depend  upon  any  collateral  considerations. 

The  last  circumstance  which  I  shall  mention,  as  having 
itoTiyai  of  contributed  to  restore  society  from  the  intellectuid 
anoieut  degradation  into  which  it  had  fallen  during  the 
^'  dark  ages,  is  the  revival  of  classical  learning. 
The  Latin  language  indeed,  in  which  all  legal  instruments 
were  drawn  up,  and  of  which  all  ecclesiastics  availed  them- 
selves in  their  epistolary  intercourse,  as  well  as  in  their  more 
solemn  proceedings,  had  never  ceased  to  be  familiar.  Though 
many  solecisms  and  barbarous  words  occur  in  the  writings 
of  wiiat  were  called  learned  men,  they  possessed  a  fluency  of 
expression  in  Latin  which  does  not  often  occur  at  present. 


t  See  Tyrwhltt'R  eany  on  the  tooguagv  Nott,  who  maintalM  the  Teniflcatlon  of 

mod  vcrsifioaiion  of  Clukuc«r.  in  the  fourth  Chaucer  to  have  been  wholly  fi>und«d  on 

voIumA  of  his  edition  of  the  Canterbury  accentual  and  not  syllable  regularity.    I 

Tales.     The   opinion    of  this  eminent  adheve,  howeTer,  to  Tyrwhitt'i  doctrina. 
Mitie  has  lately  been  oontroTerted  by  Dr 


Btatk  op  Socixtt.     ancient  LEARNING.  639 

During  the  dark  ages,  however,  properly  so  called,  or  the 
period  from  the  sixth  to  the  eleventh  century,  we  chiefly 
meet  with  quotations  from  the  Vulgate  or  from  theological 
writers.  Nevertheless,  quotations  from  I  he  Latin  poets  aro 
haitlly  to  be  called  unusual.  Virgil,  Ovid,  Statius,  and  Hor- 
ace, are  brought  forward  by  those  who  aspired  to  some  lit- 
erary reputation,  especially  during  the  better  periods  of  tliat 
long  twilight,  the  reigns  of  Charlemagne  and  his  son  in 
France,  part  of  the  tenth  century  in  Germany,  and  the  elev- 
enth in  both.  The  prose  writers  of  Rome  are  not  so  familiar, 
but  in  quotations  we  are  apt  to  iind  the  poets  preferred;  and 
it  is  certain  that  a  few  could  be  named  who  were  not  igno- 
rant of  Cicero,  Sallust,  and  Livy.  A  considerable  change 
took  place  in  the  course  of  the  twelfth  century,  j^  ^^^ 
The  poUte  literature,  as  well  as  the  abstruser  sci-  twelfth  oen- 
ence  of  antiquity,  became  the  subject  of  cultivation.  "^* 
Several  writei*s  of  that  age,  in  different  parts  of  Europe,  are 
distinguished  more  or  less  for  elegance,  though  not  absolute 
purity  of  Latin  style ;  and  for  their  acqifaintance  with  those 
ancients,  who  are  its  principal  models.  Such  were  John  of 
Salisbury,  the  acute  and  learned  author  of  the  Polycraticon, 
William  of  Malmsbury,  Giraldus  Cambrensis,  Roger  Hove- 
den,  in  England ;  and  in  foreign  couTitries,  Otho  of  Frisingen, 
Saxo  Grammaticus,  and  the  best  perhaps  of  all  I  have  named 
as  to  style,  Falcandus,  the  historian  of  Sicily.  In  these 
we  meet  with  frequent  quotations  from  Livy,  Cicero,  Pliny, 
and  other  considerable  writers  of  antiquity.  The  poets  were 
now  admired  and  even  imitated.  All  metrical  Latin  before 
the  latter  part  of  the  twelfth  century,  so  fur  as  I  have  seen, 
is  of  little  value ;  but  at  tliis  time,  and  early  in  the  succeed- 
ing age,  there  appeared  several  versifiers  who  aspired  to  the 
renown  of  following  the  steps  of  Virgil  and  Statius  in  epic 
poetry.  Joseph  Iscanus,  an  Englishman,  seems  to  have 
been  the  earliest  of  these ;  his  poem  on  the  Trojan  war  con- 
taining an  address  to  Henry  II.  He  wrote  another,  entitled 
Antiocheis,  on  the  third  crusade,  most  of  which  has  perished. 
The  wars  of  Frederic  Barbarossa  were  celebrated  by  Gun- 
ther  in  his  Ligurinus ;  and  not  long  afterwards,  Guillelmus 
Brito  wrote  the  Philippis.  in  honor  of  Philip  Augustus,  and 
Walter  de  Cliatillon  the  Alexandreis,  taken  from  the  popular 
romance  of  Alexander.  None  of  these  poems,  I  believe, 
have  much  intrinsic  merit ;  but  their  existence  is  a  proof  of 


640     REVIVAL  OF  ANCIENT  LEARNING.     Chap.  IX.  Pact  U 

taste  that  oould  relish,  though  not  of  genius  that  oould  emu- 
late antiquity.^ 

In  the  thirteenth  centuiy  there  seems  to  have  been  some 
decline  of  classical  literature,  in  consequence  probably  of  the 
scholastic  philosophy,  which  was  then  in  its  greatest  vigor ; 
at  least  we  do  not  find  so  many  good  writers  as  in  the  pre- 
mueh  mora  Ceding  age.  But  about  the  middle  of  the  four- 
the  four-  tceuth,  Or  perhaps  a  little  sooner,  an  ardent  zeal 
for  the  restoration  of  ancient  learning  began  to 
display  itself.  The  copying  of  books,  for  some  a<]^  slowly 
and  sparingly  performed  in  monasteries,  had  already  become 
a  branch  of  trade  ;  ^  and  their  price  was  consequently  re- 
duced.    Tiraboschi  denies  that  the  invention  of  making  pa- 

inTentfon  P®^  ^"*°*  linen  rags  is  older  than  the  middle  of 
of  linen  that  century ;  and  although  doubts  may  be  justly 
^'*''  entertained  as  to  the  accuracy  of  this  position,  yet 

the  confidence  with  which  so  eminent  a  scholar  advances  it 
is  at  least  a  proof  that  paper  manuscripts  of  an  earlier  date 
are  very  rare.'     Princes  became  far  more  attentive  to  litera- 

1  Warton^s  Htot.  of  BoglUh  Poetry.  xneDtions  a  law  book  which  he  had  pro- 

Tol.  i.    Dissertation  II.    Roij^aefort,  Ktat  cured  a  quodam  publico  mangone  libro- 

do  la  Po^ie  Fran^alw  dn  donzii^Die  Siecle  rum.    Hut.  Litt^raire  de  la  France,  t.  iz. 

p.  18.    The  following  lines  from  the  be-  p.  84.    In  the  thirteenth  century  there 

ginning  of  the  eighth  book  of  the  Philip-  were  many  copylsCs  by  occupation  in  the 

pis  eeem  a  fair,  or  rather  a  fovorable  Italian  uniyeniities.     Tiraboeehi,  i.  It. 

■pecimen  of  these  epics.    But  I  am  T(>ry  p.  72.    The  number  of  these  at  Milan 

•uperflcially    acquainted    with   any  of  before  the  end  of  that  age  is  said  to  ha?« 

them.  been  fifty.    Ibid.    But  a  Tcry  small  pro- 

SolTerat  intexea  lephyrls  meUoribos    ^'^^°  ?^  ^^^  **^'  ^?"l?,  *»*^  ^'^ 
annum  ■"F"j«^»  «.«mwiuu«    ^eyoted  to  purposes  merely  literary.    By 

v*i«»*o  H^nnion  ««i4a  ftonAi.  ^h  i«r.A-    *  Taiiety  of  ordlnauces,  the  first  of  which 
Jngwe  depulso  Terls  tepor,  et  nmo-    ^^^  ^^^  ^^  ^^^  ^^^  booksellers  of 

C«perat  et  ^di  gremio  ju.ene«^    ^^uJ;::.^'^^ZTilT^!2^ 
CumR^i«t.JoTisrideret.doscula    S>%S"s£?u^S^l'ii^SW^S^^ 

Cum  jam  'post  teigmn  Phryx!  Tectoi*    S«  ^PV^n  to  have  been  the  original  of 
relicto  "*/-*»  those  restraints  upon  the  freedom  of  pub- 

SolisAgenotelpnsmeretrotateMaJa-  ^i^^]^^^  7'^^^''^  since  the  invBUtion  of 

*«nrl  *""'•  "*  a   J  printing  have  so  much  retarded  the  dlf- 

^""°''  fhsion  of  truth  by  means  of  that  great 

The  tragedy  of  Ecccrinua  (Eccelin  da  instrument. 
Romano),  by    Albertinus    Mufsatns,    a       *  Tiraboschi,  t.  ▼.  p.  85.    On  the  oon- 

Paduan,  and  author  of  a  respectable  his-  trary  ride  are  Mont&ueon,  MabiUon,aod 

tory,  deserves  some  attention,  as  the  first  Muratori :  the  latter  of  whom  carries  up 

attempt  to  revive  the  regular  traaredy .  It  the  invention  of  our  ordinary  paper  to  the 

was  written  soon  alter  1800.    The  Ian-  yearlUOO.    But  Tiraboschi  contends  that 

guage  by  no  means  wants  animation,  the  paper  used    in  manuscripts  of  so 

Dotwitlistanding  an  unskilful  conduct  of  early  an  age  was  made  from  cotton  rags, 

the  foble.    The  iScceriuus  is  printed  in  and,  apparently  from   the  inferior  dura- 

the  tenth  volume  of  Huratori's  coUeo-  bility  of  that  material,  not  flrequently 

tlon.  employed.    The  editors  of  Nouveau  Trat- 

>  Booksellers  appear  in  the  latter  part  te  de  Diplomatique  are  of  the  same  opin- 

of  the  twelfth  century.    Peter  of  Blols  ionjand  doubt  the  use  of  linen  paper  b« 


St&tb  or  SodSTT.  LIBRARIES.  641 

tare  when  it  was  no  longer  confined  to  metaphysical  theolo- 
gy and  canon  law.  I  have  already  mentioned  the  transla- 
tions from  classical  authors,  made  by  command  of  John  and 
,  Charles  V.  of  France.*  These  French  translations  diffused 
some  acquaintance  with  ancient  history  and  learning  among 
our  own  countrymen.  The  public  libraries  as- 
sumed a  more  respectable  appearance.  Louis  IX. 
had  formed  one  at  Paris,  in  which  it  does  not  appear  that  any 
work  of  elegant  literature  was  found.'  At  the  beginning  of 
the  fourteenth  century,  only  four  classical  manuscripts  exist- 
ed in  this  collection  ;*  of  Cicero,  Ovid,  Lucan,  and  Boethius.* 
The  academical  library  of  Oxford,  in  1300,  consisted  of  a 
few  tracts  kept  in  chests  under  St.  Mary's  church.  That  of 
Glastonbury  Abbey,  in  1240,  contained  four  hundred  vol- 
umes, among  which  were  Livy,  Sallast,  Lucan,  Virgil,  Clau- 
dian,  and  other  ancient  writers.^  But  no  other,  probably,  of 
that  age  was  so  numerous  or  so  valuable.  Richard  of  Bury, 
chancellor  of  England,  and  Edward  IIL,  spared  no  expense 
in  collecting  a  library,  the  first  perhaps  that  any  private  man 
had  formed.  But  the  scarcity  of  valuable  books  was  still  so 
great,  that  he  gave  the  abbot  of  St  Albans  fifly  pounds 
weight  of   silver  for  between  thirty   and  forty   volumes.* 

fbra  ttM  year  1S0O.  t.  i.  p.  617, 621.  Meer^  and   TIatIo  0i<^     But    ttie   material 

man,  well  known  w  a  writer  upon  the  point,  that  paper  was  Tery  little  known 

antiquities  of  printing,  oOered  a  reward  in  Europe  till  the  latter  part  of  the  four- 

ft»r  the  earliest   manuMript  upon  linen  teenth  century,  remains  as  before.    See 

paper,  and,  in  a  treatijw  upon  the  subject,  Introduction  to  History  of  literature,  o. 

fixed  the  date  of  its  inTsntion  between  1.  4  68. 

1270  and  1900.    But  M.  Schwandner  of  1  Warton^a  HisL  of  XngUsh  Poetry, 

Vienna  is  said  to  have  fonnd  in  the  im-  Tol.  il.  p.  122. 

perial  library  a  small  charter  bearing  the  <  Velly,  t.  t.  p.  202 ;  Gierier,  1. 11.  p. 

date  of  1248  on  such  paper.    Macpher-  86. 

ion's  Annals  of  Gommeroe,  vol.  i.  p.  AM.  *  Warton,  toI.  1.;  Dissert.  II. 

Tiraboflchi,  if  he  had  known  this,  would  *  Ibid. 

probably  have  maintained  the  paper  to  *  Warton,  rol.  i.    Dissert.  II.    Fiftr- 

be  made  of  cotton,  which  he  says  it  Is  eight  books  were  transcribed  in  this  ab- 

difflcnlt  to  distinguish.    He  asuigns  the  bey  under  one  i^bot,  about  the  year  IdOO. 

inrentaon  of  linen  paper  to  Pace  da  Fa-  Every    considerable    monastery    had  a 

biano  of  Treriso.    But  mora  than  one  room,   called    Scriptorium,  when  this 


Arabian  writer  asserts  the  manufiicture  work  was  performed.    Bfora  than  eighty 

ef  linen  paper  to  have  been  carried  on  at  were  transcribed  at  St.  Albans  under 

Samarcand  early  in  the  eight  century,  Whethamstede,  in  the  time  of  Henry  VI. 

baring  been  brought  thither  fi-om  China,  ibid.    See  also  Dn  Cange,  V.  Seriptoros. 

And    what  is   more  coocIusIto,  Casiri  NevertheleBS  we  must  remember,  first, 

poaitirely  declares  many  manuscripts  f  n  that  the  fkr  greater  part  of  theee  books 

tlM  Bseurial  of  the  eleventh  and  twelfth  were  mere  monastic  traah,  or  at  least 

eenturies  to  be  written   on  that  sub-  useless  in  our  modern  apprehension; 


•tanee.    Bibliotheca   Arabieo-Hispanica,  ondly,  that  it  depended  upon  the  char- 

1. 11.  p.  9.   This  authority  appears  much  acter  of  the  abbot,  whether  tlie  aeripto- 

to  outweigh  the  opinion  of  Tiraboschi  in  rium  should  be  occupied  or  not.    Sveiy 

fcvor  of  Pace  da  Fabiano,  who  must  per-  head  of  a  monastery  was  not  a  Whetiiam- 

baps  take  his  place  at  the  table  of  (kbu-  stede.    Ignorance  and  jollity,  such  as  w« 

Ions  heroes  with  Bartholomew  Sohwarti  find  in  Bolton  Abb^y,  were  their  moit 
VOL.  II.— M.                           41 


I 


642  MANUSCRIPTS.  Chap.  IX.  Fabx  H 

Charles  Y.  increased  the  royal  library  at  Paris  to  nine  hun- 
dred volumes,  which  the  duke  of  Bedfonl  purchased  and 
transported  to  London.^  His  brother  Humphrey  duke  of 
Gloucester  presented  the  university  of  Oxford  with  six  hun 
dred  books,  which  seem  to  have  been  of  extraordinary  value, 
one  hundred  and  twenty  of  them  having  been  estimated. at 
one^  thousand  pounds.  This  indeed  was  in  1440,  at  which 
time  such  a  library  would  not  have  been  thought  remarkably 
numerous  beyond  the  Alps,'  but  England  had  made  compar- 
atively little  progress  in  learning.  Grcrmany,  however,  was 
probably  still  less  advanced.  Louis,  Elector  Palatine,  be- 
queathed in  1421  his  library  to  the  university  of  Heidelberg, 
consisting  of  one  hundred  and  fifty-two  volumes.  Eighty- 
nine  of  these  related  to  theology,  tw^elve  to  canon  and  civil 
law,  forty-five  to  medicine,  and  six  to  philosophy.* 

Those  who  first  undertook  to  lay  open  the  stores  of  an- 
Tranncrip-  cicnt  learning  found  incredible  difficulties  from  the 
tion  of  manu- scarcity  of  manuscripts.  So  gross  and  supine  was 
•cnpu.  ^^^  ignorance  of  the  monks,  within  whose  walk 

these  treasures  were  concealed,  that  it  was  impossible  to 
ascertain,  except  by  indefatigable  researches,  the  extent  of 
what  had  been  saved  out  of  the  great  shipwreck  of  antiquity. 
To  this  inquiry  Petrarch  devoted  continual  attention.  He 
spared  no  means  to  preserve  the  remains  of  authors,  who 
were  perishing  from  neglect  and  time.  This  danger  wt^ 
by  no  means  past  in  the  fourteenth  century.  A  treatise  of 
Cicero  upon  Glory,  which  had  been  in  his  possession,  waa 
afterwards  irretrievably  lost.*  He  declares  that  he  had  seen 
in  his  youth  the  works  of  Varro ;  but  all  his  endeavors  to  re- 
cover these  and  the  second  Decad  of  Livy  were  fruitless. 
He  found,  however,  Quintilian,  in  1350,  of  which  there  was 
no  copy  in  Italy .^     Boccaccio,  and  a  man  of  less  general 


I                                usual  eharactertotles.    By  tbe  account  hardly  pnbUahed  anything  of  hfo  own ; 

I                                 books  of  this  rich  monaatery,  about  the  bat  earned  a  well  merited  reputation  tj 

banning  of  the    fourteenth   century ,  copying  and  correcting  manuscriptn.  Ti- 

^'                               three  books  only  appear  to  have  been  raboacbl,  t.  vl.  p.  114 ;  Shepherd's  Pog- 

purchaaed  in  forty  yearn.    One  of  thoee  gio.  p.  819.    In  the  preceding  century, 

waa  the  Uber   Sententiarum  of  Peter  CoUuccio  Salutato  had  procuzedasmanr 

Lombard,   which   coet  thirty  shillings,  as  eight  hundred  TOluines.    Ibid.  p.  28. 

equivalent  to  near  forty  pouods  at  pree-  Roscoe^s  Lorenao  de'  llediri,  p.  65. 

•nt.    Whitaker's  Hist,  of  Craven,  p.  880.  *  Schmidt,  Hist,  dee  AlleniandB.  t.  t. 

1  Ibid. ;  ViUaret.  t  xi.  p.  117.  p.  620. 

t  Niceolo  NIccoll,  a  private    scholar,  *  lie  had  lent  it  to  a  needy  man  of 

who  contributed  essentially  to  the  res-  letters,  who   pawned  the   book,  which 

toratlon  of  ancient  learning,  bequeathed  was  never  recovered.    De  Sade,  t.  i.  ^ 

a  librarv  of  eight  hundred  volumes  to  67. 

the  npublie  of  Florwoce.     This  NioeoU  »  TirabOMhi,  p.  89 


Stats  oh  Socixtt.  INDUSTRT.  643 

fame,  Colluocio  Salutato,  were  distingaished  in  the  same  hon- 
orable task.  The  diligence  of  these  scholars  was  not  con- 
fined to  searching  for  manusaipts.  Transcribed  hj  8lo\'enlj 
monks,  or  by  ignorant  persons  who  made  copies  for  sale, 
they  required  the  continual  emendation  of  accurate  critics.^ 
Though  much  certainly  was  left  for  the  more  enlightened  sa- 
gacity of  later  times,  we  owe  the  first  intelligible  text  of  the 
Latin  classics  to  Petrarch,  Poggio,  and  their  contemporary 
laborers  in  this  vineyard  for  a  hundred  years  before  the  in- 
vention of  printing. 

What  Petrarch  began  in  the  fourteenth  century  was  car- 
ried on  by  a  new  generation  with  unabatiug  indus-  loduatpy  of 
try.  The  whole  lives  of  Italian  scholars  in  the  the  fifteenth 
fifteenth  century  were  devoted  to  the  recovery  of  *^'^^^^' 
manuscripts  and  the  revival  of  philology.  For  this  they  sac- 
rificed their  native  language,  which  had  made  such  surpris- 
ing shoots  in  the  preceding  age,  and  were  content  to  trace, 
in  humble  reverence,  the  footsteps  of  antiquity.  For  this  too 
they  lost  the  hope  of  permanent  glory,  which  can  never  re- 
main with  imitators,  or  such  as  trim  the  lamp  of  ancient  sep- 
ulchres. No  writer  perhaps  of  the  fifteenth  century,  except 
Politian,  can  aspire  at  present  even  to  the  second  class,  in  a 
just  marshalling  of  literary  reputation.  But  we  owe  them 
our  respqct  and  gratitude  for  their  taste  and  diligence.  The 
di:^covery  of  an  unknown  manuscript,  says  Tiraboschi,  was 
regarded  almost  as  the  conquest  of  a  kingdom.  The  classi- 
cal writers,  he  adds,  were  chiefly  either  found  in  Italy,  or  at 
least  by  Italians ;  they  were  fii^t  amended  and  first  printed 
in  Italy,  and  in  Italy  they  were  first  collected  in  public  libra- 
ries.^ This  is  subject  to  some  exception,  when  fairly  consid- 
ered ;  several  ancient  authors  were  never  lost,  and  therefore 
cannot  be  said  to  have  been  discovered ;  and  we  know  that 
Italy  did  not  always  anticipate  other  countries  in  classical 
printing.  But  her  superior  merit  is  incontestable.  Poggio 
Bracciolini,  who  stands  perhaps  at  the  head  of  the  p^^^ 
restorers  of  learning,  in  the  earlier  part  of  the  ^"^ 
fifteenth  century,  discovered  in  the  monastery  of  St  Gall, 
among  dirt  and  rubbish  in  a  dungeon  scarcely  fit  for  con- 
demned criminals,  as  he  describes  it,  an  entire  copy  of  Quin- 
tilian,  and  part  of  Valerius  Flaccus.    This  was  in  1414 ;  and 

1  Idem.  t.  ▼.  p.  88:  De  Bade,  t.  i.  p.  88. 
•  Tlimboflchi,  p.  101. 


$44       '  GREEK  LANGUAGE.       Ceap.  IX.  Part  II 

soon  afterwards,  he  rescued  the  poem  of  Silius  Italicas,  and 
twelve  comedies  of  Plautus,  in  addition  to  eight  that  were 
previously  known ;  besides  Lucretius,  Columella,  TertuUian, 
Ammianus  Marcellinus,  and  other  writers  of  inferior  note  ^ 
A  bishop  of  Lodi  brought  to  light  the  rhetorical  treatises  of 
Cicero.  Not  that  we  must  suppose  these  books  to  have  been 
universally  unknown  before ;  Quintilian,  at  least,  is  quoted  bj 
English  writers  much  earlier.  But  so  little  intercourse  pre- 
vailed among  different  countries,  and  the  monks  liad  so  little 
acquaintance  with  the  riches  of  their  conventual  libraries, 
that  an  author  might  pass  for  lost  in  Italy,  who  was  familiar 
to  a  few  learned  men  in  other  parts  of  Europe.  To  the 
name  of  Poggio  we  may  add  a  number  of  others,  distin- 
guished in  this  memorable  resurrection  of  ancient  literature, 
and  united,  not  always  indeed  by  friendship,  for  their  bitter 
animosities  disgrace  their  profession,  but  by  a  sort  of  eom- 
mon  sympathy  in  the  cause  of  learning ;  Filelfo,  Laurentius 
Valla,  Niccolo  Niccoli,  Ambrogio  Traversari,  more  common- 
ly called  II  Camaldolense,  and  Leonardo  Aretino. 

From  the  subversion  of  the  Western  Empire,  or  at  least 
from  the  time  when  Rome  ceased  to  pay  obedience 
cuageua'  ^  ^^^  exarchs  of  Ravenna,  the  Greek  language 
knofmia  and  literature  had  been  almost  entirely  forgotten 
**  *  within  the  pale  of  the  Latin  church.  A  very  few 
exceptions  might  be  found,  especially  in  the  earlier  period  of 
the  middle  ages,  while  the  eastern  emperors  retained  their 
dominion  over  part  of  Italy .^  Thus  Charlemagne  is  said  to 
have  established  a  school  for  Greek  at  Osnaburg.*  John 
Scotus  seems  to  have  been  well  acquainted  with  th^  language. 
And  Greek  characters  may  occasionally,  though  very  sel- 
dom, be  found  in  the  writings  of  learned  men  ;  such  as  Lan- 
franc  or  William  of  Malmsbury.^     It  is  said  that  Roger 

1  TinboMhl,  t.  Tl.  p.  104 ;  and  Shop-  charter  of  948,  pvbliihsd  In  UarteniM, 
herd's  Lift  of  Poggio,  p.  106, 110;  Rot-  Theaauras  Aoeodot.  t.  i.  p.  74.  The  tiUe 
eoe's  Lorenio  de  Bledici,  p.  88.  of  a    treatise  irepl  ^vaeuv  ftepioftov^ 

^  *«?f  **?l^*L5!i!t*  ?*fii  ^*%"J*°<*;'  *:  *}•  »nd  the  word  ^eor6«of ,  occur  la  WilUan 

p.  8i4;  Tirabo«!hl,  t.  111.  p.  124,  et  alibi.  .  u.im.Kn—  •».!  >2L  »•  *«%  A»k.M  i« 

Kde  extols  Theodire  primate  of  Canter-  ?LJJiS?J?S:.SJ2.2!.     iV7.S2?^ 

bury  and  Tobla.  bishop  of  Roohester  t^S^^^^^^J^K^ !^iS^ 

for  their   knowledge  of  Groek.     Hist.  L^C^J^^^T  iTSJ^^^iii ^jj?£ 

Beelee.  o.  9  and  fiT  But  the  former  of  r  ^'^'^^V  about  110^   Utot.  UtL  de 


8TATB  OF  SociXTT.       GREEK  LANGUAGE.  645 

Bacon  understood  Greek ;  and  that  his  eminent  contemporary, 
Robert  Grostete,  Bishop  of  Lincoln,  had  a  sufficient  intimacj 
with  it  to  translate  a  part  of  Suidas.  Since  Greek  waa 
spoken  with  considerable  purity  by  the  noble  and  well  edu 
cated  natives  of  Constantinople,  we  may  wonder  that,  even 
as  a  living  language,  it  w&s  not  better  known  by  the  western 
nations,  and  especially  in  so  neighboring  a  nation  as  Italy. 
Yet  here  the  ignorance  was  perhaps  even  more  complete 
than  in  France  or  England.  In  some  parts  indeed  of  Cala- 
biia,  which  had  been  subject  to  the  eastern  empire  till  near 
the  year  1100,  the  liturgy  was  still  performed  in  Greek ;  and 
a  considerable  acquaintance  with  the  language  wa^  of  course 
preserved.  But  for  the  scholars  of  It£^y,  Boccaccio  posi« 
tively  asserts,  that  no  one  understood  so  much  as  the  Greek 
characters.^  Nor  is  there  probably  a  single  line  quoted  from 
any  poet  in  that  language  from  the  sixth  to  the  fourteenth 
century. 

The  first  to  lead  the  way  in  restoring  Greci«ui  learning  in 
£urope  were  the  same  men  who  had  revived  the 
kindred  muses  of  Latium,  Petrarch,  and  Boccac-  ^^^l^o^T 
cio.     Barlaam,  a  Calabrian  by  birth,  during  an  fourteenth 
embassy  from  the  court  of  Constantinople  in  1335,  ^^  ^^' 
was  persuaded  to  become  the  preceptor  of  the  former,  with 
whom  he  read  the  works  of  Plato.'     Leontius  Pilatus,  a  na- 
tive of  Thessalonica,  was  encouraged  some  years  afterwards 

Greek  psalter  written  In  Latin  charac-  then  borrowed,  as  more  Imposing  Chan 

ters  at  Uilan  in  the  9th  centnxy  was  the    correspondent    Latin.     Thus   the 

sold  some  years  ago  in  London.    John  English  and  other  kings  sometimes  called 

of  Salisbury  is  said  by  Crevier  to  have  themselTcs  Basileus,  instead  of  Rex. 

known  a  Uttle  Greek,  and  he   seTeral  It  will  not  lie  supposed  that  I  haTS 

times  uses  technical  words  in  that  Ian-  professed  to  enumerate  all  the  persons 

gnage.    Tet   he  could    not   hare  been  of  whose  acquaintance  with  the  Greek 

much    more    learned   than   his  neigh-  tongue  some  eTidenee  may   l)e  Ibund; 

bors ;  since,  having    found    the    word  nor  have  I  erer  directed  my  attention  to 

oi'oia  in  St.  Ambrose,  he  was  forced  to  the  sub^t  with  that  Tiew.    Doubtless 

ssk  the  meaning  of  one  John  Sarasln,  S*®*  *S^°**^*  be  more  than  doubled, 

an  BngUshman,  because,  says  he.  none  of  5°*» /  *«°  *»"«  '?«  i?"™*^' ~"''*  ^ 

dur  masters  here  (at  piris)  undentond  S*"^?:  "^  *^^^^^  ***"  ^  entitled  to  say, 

Greek.     Paris,  indeed,  Creyier  thinks,  ^^i^l***  ^f,**^"**  ™  *i°*!f' Ti"*^*""' 

eould  not  fbriilsh  any  Greek  scholar  in  "d  that  it  could  have  had  no  influence 

Ihat  age  except  Abelaid  and    Uelolse,    SBj^^^/S^^^^^^^S.^'f  "'??,V*"'L,^^u^°" 
and    probably    neither  of  them    knew    J^^^.^^n  to  Hist,  of  Literature,  chap. 

much     Uttt.  de  I'UniTers.  de  Paris,  t.  i.    *'  ,♦  ''         .      ,  «  „*  .  .^ 

p  258  Nemo  est  qui  Gneoas  Uteres  nArit; 

Tho'ecclesiftstlcal  language,  it  may  be  "*  «80  In  hoc  LatinltaU  oompatior,  qusi 

observed,  was  ftill  of  Greek  words  W  '^  omninoGrseca  sl^it  studia.  utetiam 

Inlaed.     But    this    process   bad    taken  S?"    ?*!!f*°Vi?   ch»»cter8S    llteranim. 

ptoce  before  the  fifth  century ;  and  most  2!!I!?*^.*  ^Borum,  apud    Hodium  dt 

ofthemwUl  be  found  in  the  Latin  die-  "TSI  ^"*1**5?^' **' *\  .       ^a, 
^ionaries.    A  0;«ek  word   was  now  and  ^*"-  ^  Wtoawi««i  *•  i-  P-  407. 


646  STATE  OF  LEARNING      Chap.  IX.  Pabt  IL 

by  Boccaccio  to  give  public  lectures  upon  Homer  at  Flor* 
ence.^  Whatever  might  be  the  share  of  general  attention 
that  he  excited,  he  had  the  honor  of  instructing  both  these 
great  Italians  in  his  native  language.  Neither  of  them  per- 
haps reached  an  advanced  degree  of  proficiency;  but  thej 
bathed  their  lips  in  the  fountain,  and  enjoyed  the  pride  of 
being  the  first  who  paid  the  homage  of  a  new  posterity  to  the 
father  of  poetry.  For  some  time  little  fruit  apparently  re- 
sulted from  their  example ;  but  Italy  had  imbibed  the  desire 
of  acquisitions  in  a  new  sphere  of  knowledge,  which,  after 
some  interval,  she  was  abundantly  able  to  realize.  A  few 
years  before  the  termination  of  the  fourteenth  century,  Eman* 
uel  Chrysoloras,  whom  the  emperor  John  PalsBologus  had 
previously  sent  into  Italy,  and  even  as  far  as  England,  upon 
one  of  those  unavailing  embassies,  by  which  the  Byzantine 
court  strove  to  obtain  sympathy  and  succor  from  Europe, 
returned  to  Florence  as  a  public  teacher  of  Grecian  litera- 
ture.' His  sohool  was  afterwards  removed  successively  to 
Pavia,  Venice,  and  Rome ;  and  during  nearly  twenty  years 
that  he  taught  in  Italy,  most  of  those  eminent  scholars  whom 
I  have  already  named,  and  who  distinguish  the  first  half  of 
that  century,  derived  from  his  instruction  their  knowledge 
of  the  Greek  tongue.  Some,  not  content  with  being  the  dis- 
ciples of  Chrysoloras,  betook  themselves  to  the  source  of  that 
literature  at  Constantinople ;  and  returned  to  Italy,  not  only 
with  a  more  accurate  insight  into  the  Greek  idiom  than  they 
could  have  attained  at  home,  but  with  copious  treasures  of 
manuscripts,  few,  if  any,  of  which  probably  existed  previously 
in  Italy,  where  none  had  ability  to  read  or  value  them  ;  so 
that  the  principal  authors  of  Grecian  antiquity  may  be  con- 
sidered as  brought  to  light  by  these  inquirers,  the  most  cele- 
brated of  whom  are  Guarino  of  Verona,  Aurispa,  and  Filelfo. 
The  second  of  these  brought  home  to  Venice  in  1423  not 
less  than  two  hundred  and  thirty-eight  volumes.' 

The  fall  of  that  eastern  empire,  which  had  so  long  outlived 

1  Mim.  de  Pitnrqne.  t.  f.  p,  447  ;  t.  *  Hody  places  the  eommeneement  of 

IH.  p.  684.    Hody  de  Oneels  lllust.  p.  3.  Chrywlonu's  teaoblns  aa  early  aa  ISSl. 

Boccace  speaka  modestly  of  Um  own  at-  p.  8.     But  Tinboaeht,  wboae    rweareh 

tidnmenta  Id  Greek :  etal  non  aatb  plend  waa  more  precise,  flxea  it  at  the  end  of 

perteperim.  percepi  taoien  quantum  po-  1896  or  beginoingof  1897,  t.  tU.  p  129. 

tui ;  nee  dublom,  al  permanalaMt  bomo  >  Tlraboaebl,  t.   t1.  p.  102  :  Roaooali 

lUe  vaffus  diutina  penea  noa,  quin  pleniua  Lorenat  de'  Medici,  toI.  i.  p.  4S 
peroepkiem.    id.  f   4. 


Stitb  ov  Sooxxtt.    among  THE  GBEEEb.  647 

all  other  pretensions  to  respect  that  it  scarcely  re-  g^^^  ^ 
tained  that  founded  upon  its  antiquity,  seems  to  i«wnjpgin 
have  been  providentially  delayed  till  Italy  was  ®"~^ 
ripe  to  nourish  the  scattered  seeds  of  literature  that  would 
have  perished  a  few  ages  earlier  in  the  common  catastrophe. 
From  the  commencement  of  the  fifteenth  century  even  the 
national  pride  of  Greece  could  not  blind  her  to  the  signs  of 
approaching  ruin.  It  was  no  longer  possible  to  inspire  the 
European  republic,  distracted  by  wars  and  restrained  by 
calculating  policy,  with  the  generous  fanaticism  of  the  cru- 
sades; aiid  at  the  council  of  Florence,  in  1439,  the  court  and 
church  of  Constantinople  had  the  mortification  of  sacrificing 
their  long-cherished  faith,  without  experiencing  any  sensible 
return  of  protection  or  security.  The  learned  Greeks  were 
perhaps  the  first  to  anticipate,  and  certainly  not  the  last  to 
avoid,  their  country's  destruction.  The  council  of  Florence 
brought  many  of  them  into  Italian  connections,  and  held  out 
at  least  a  temporary  accommodation  of  their  conflicting  opin- 
ions. Though  the  Roman  pontiffs  did  nothing,  and  probably 
oould  have  done  nothing  efiectual,  for  the  empire  of  Constanti- 
nople, they  were  very  ready  to  protect  and  reward  the  learn- 
ing of  individuals.  To  Eugenius  IV.,  to  Nicholas  V.,  to  Pius 
XL,  and  some  other  popes  of  this  age,  the  Greek  exiles  were 
indebted  for  a  patronage  which  they  repaid  by  splendid  ser- 
vices in  the  restoration  of  their  native  literature  throughout 
Italy.  Bessarion,  a  disputant  on  the  Greek  side  in  the  coun- 
cil of  Florence,  was  well  content  to  renounce  the  doctrine  of 
single  procession  for  a  cardinal's  hat — a  dignity  which  he 
deserved  for  his  learning,  if  not  for  his  pliancy.  Theodore 
Gaza,  George  of  Trebizond,  and  Gemistus  Pletho,  might 
equal  Bessarion  in  merit,  though  not  in  honors.  They  all, 
however,  experienced  the  patronage  of  those  admirable  pro- 
tectors of  letters,  Nicholas  V.,  Cosmo  de'  Medici,  or  Alfonso 
king  of  Naples.  These  men  emigrated  before  the  final  de- 
struction of  the  Greek  empire  ;  Lascaris  and  Musurus,  whose 
arrival  in  Italy  was  posterior  to  that  event,  may  be  deemed 
perhaps  still  more  conspicuous ;  but  as  the  study  of  the  Greek 
language  was  already  restored,  it  is  unnecessary  to  pursue 
the  subject  any  further. 

The  Greeks  had  preserved,  through  the  course  of  the  mid- 
dle ages,  their  share  of  ancient  learning  with  more  fidelity  and 
%ttcntior  than  was  shown  in  the  west  of  Europe.     Gkniua 


648  BYZANTINE  WBltERS.    Cbaf.  iX.  Pabt  TL 

indeei,  or  any  original  excellence,  could  not  weU  exist  akm^ 
with  their  cowardly  despotism,  and  their  contemptible  theolo- 
gj,  more  corrupted  by  frivolous  subtleties  than  that  of  the 
Latin  church.  The  spirit  of  persecution,  naturally  allied  to 
despotism  and  bigotry,  had  nearly,  during  one  period,  extin- 
guished the  lamp,  or  at  least  reduced  the  Greeks  to  a  level 
with  the  most  ignorant  nations  of  the  West.  In  the  age  of 
Justinian,  who  expelled  the  last  Platonic  philosophers,  learn- 
ing began  rapidly  to  decline;  in  that  of  Heraclius,  it  had 
reached  a  much  lower  point  of  degradation ;  and  for  two  cen« 
turies,  especially  while  the  worshippers  of  images  were  perse* 
cuted  with  unrelenting  intolerance,  there  is  almost  a  blank  in 
the  annals  of  Grecian  literature.^  But  about  the  middle  of 
the  ninth  century  it  revived  pretty  suddenly,  and  with  con* 
siderable  success.^  Though,  as  I  have  observed,  we  find  in 
very  few  instances  any  original  talent,  yet  it  was  hardly  less 
important  to  have  had  compilers  of  such  erudition  as  PhotiuSy 
Suidas,  Eustathius,  and  Tzetzes.  With  these  certainly  the 
Latins  of  the  middle  ages  could  not  place  any  names  in  com- 
pari(»on.  They  possessed,  to  an  extent  which  we  cannot  pre- 
cisely appreciate,  many  of  those  poets,  historians,' and  orators 
of  ancient  Greece,  whose  loss  we  have  long  regretted  and 
must  continue  to  deem  irretrievable.  Great  havoc,  however, 
was  made  in  the  libraries  of  Constantinople  at  its  capture  by 

1  The  authon  mott  oODTeimnt  with  CedTenas  ipealu  of  H  in  the  followlag 

ByanUne  learning  agree  in  thU.   Never-  terms ;  ineueyj^^  (5e  «ai  T^  *^w  OO- 

theleas,  there  is  one  manifest  difference  ^'^^    /a,,  J/.„  i^  ^A17nu  vnAumi  4m. 

between  the  Greek  writers  of  the  worst  ^^'  '^  ^"^  /*  "^^  a:/WHW  iro- 

period,  such  as  the  eighth  century,  and  papfweiaa,  Kal  npdc  Ty  fOfOtv  dAuf 

those  who  correspond  to  them  in  the  ;((i>p70'a(7a  t^  tuv  Kparovvruv  ftpyi^ 

West.    8yncellus,<br  example,  is  of  great  ^al  auadia)    dtarpiBac   iKuarn  TUV 

use  in  chronology,  because  he  was  ac-  j         >  »^        \T    -     ..^.   'ii,^. 

quainted  with  ^ny  ancient   histories  {^tff"7;z«»'  %¥>«^^.  ^J?' /^  "^^ 

now  no  more.    But  Bede  possessed  noth-  «^   f^^P   *n;;j;c,  7%  o    tirl   naauv 

ing  which  we  hare  lost ;  and  his  oompi-  hroxov  ^iXoao^lag  /car*  airtl  Ta  ^a- 

iltifflrj'hu"  ?h"J*?Ji^S"^  altogether  un-  ^,';^^  ^  ^  Uayvavp^'  Koi  OWTW  i( 

profitable.    The  eighth  centary,  the  Ssm-  ,     .  ^    * r>'     '         <-  i_.^ ?  jl  V 

ulum  leonoclasticum  of  Cave,  low  as  it  ^««vow  (tVTi^aOKeiv  ai  iirujTViiai  Tfp- 

was  in  all  polite  literature,  produced  one  ^avTO.  K.  r.  A.      Uist.  Bysant.  Script, 

man,  John   Damascenus,  who  has  been  (Lutet.)  t.  z.  p.  547.    Bardas  found  out 

deemed  the  founder  of  scholastic  thcol-  and  promoted  Photius,  afterwards  patri- 

ogy,  and  who  at  least  set  the  example  areh  of  Constantinople,  and  equally  ft- 

of  that  style  of  reasoning  in  the  East,  mous  in  the  annals  of  the  church  and 

This  person,  and  Michael  Psellus,  a  phi-  of  learning.    Qibbon  passes  perhaps  too 

losopher  of   the  eleventh  century,  are  rapidly  over  the  Bysantine  Literature, 

the  only  considerable  men,  as  original  chapt.  68.     In  this  as  in  many  other 

writers,  in  the  annals  of  Bysantine  lit*  places,  the  masterly  boldness  and  precis- 

•rature  ion  of  his  outline,  which  astonish  those 

*  The  honor  of  restoring  andent  or  who    have  trodden  parts  ot  the    same 

heathen  literature  is  due  to  the  Ciesar  field,  are  apt  to  escapt  an  nnlnibnnsd 
Banias,  uncle  and  minister  of  Michael  II 


Statb  or  Socvn.     CLASSICAL  LITERATURE. 


649 


the  Latins  —  an  epoch  from  which  a  rapid  decline  is  to  ha 
traced  in  the  literature  of  the  eastern  empire.  Solecisms 
and  barbarous  terms,  which  sometimes  occur  in  the  old 
Byzantine  writers,  are  said  to  deform  the  style  of  the  four- 
teenth and  fifteenth  centuries.^  The  Turkish  ravages  and 
destruction  of  monasteries  ensued ;  and  in  the  cheerless  inter- 
vals of  immediate  terror  there  was  no  longer  any  encourage- 
ment to  preserve  the  monuments  of  an  expiring  language^ 
and  of  a  name  that  was  to  lose  its  place  among  nations.^ 
That  ardor  for  the  restoration  of  classical  literature  which 


1  Dn  Cause,  Pnefttio  ad  QUmar, 
Onedtatis  Medii  £ri.  Anna  Comnsna 
quotes  some  popular  lines,  which  seem 
to  be  the  earliest  specimen  extant  of  the 
Bomaio  dtaUect,  or  something  approach- 
ing it.  as  they  obserre  no  grammatical 
Inflection,  and  bear  about  the  same  re- 
semblance to  ancient  Greek  that  the 
worst  law-charters  of  the  ninth  and 
tenth  centuries  do  to  pure  Latin.  In 
flust.  the  Qreek  language  seems  to  hare 
dflclioed  much  in  the  same  manner  as 
the  Latin  did,  and  almost  at  as  early  a 
period.  In  the  sixth  century,  DamaRci- 
us.  a  Platonic  philosopher,  mentions  the 
ola  language  as  distinct  ftom  that  which 
was  Temaoular,  r^v  apxaiav  yXurr- 
Tov  inrip  rj)v  ISiuttiv  fukcnvau  Du 
Gauge,  Ibid.  p.  11.  It  is  weU  known  that 
ttie  popular,  or  politxeal  rerses  of  Txet- 
les,  a  writer  of  the  twelfth  century,  are 
accentual ;  that  Is.  are  to  be  read,  as  the 
modern  Greeks  do.  bT  treating  erei^  acute 
or  circumflex  syllable  as  long,  without 
regard  to  its  original  quantity.  This  in- 
noratlon,  which  must  have  produced 
■till  greater  conf^ion  of  metrical  rules 
than  it  did  in  Latin,  is  much  older  than 
the  age  of  Tsetses :  if,  at  least,  the  editor 
of  some  notes  snpjolned  to  Meursius's 
edition  of  the  Tbemata  of  Constantine 
Porphymgenltus  (Lugduni,  1617)  is  right 
in  ascribing  certain  poUUeal  verses  to 
that  emperor,  who  died  in  969.  These 
▼erses  are  regular  accentual  troehalcs. 
But  I  belieTe  they  have  since  been  given 
to  Constantine  Slanasses,  a  writer  of  the 
eleventh  century. 

According  to  the  opinion  of  a  modem 
traveller  (Qobhottse's  Travels  in  Albania, 
letter  88)  the  chief  corruptions  which 
<U8tinguish  the  Romaio  tvom  its  parent 
■tock.  especially  the  auxiliary  verbs,  are 
not  older  than  the  capture  of  Constanti- 
nople by  Mahomet  II.  But  It  seems 
difficult  to  obtain  any  satlsflbctory  proof 
of  thU:  and  the  auxiliary  verb  Is  so 
natural  and  convenient,  that  the  ancient 
Cheeks  may  probably,  in  looM  of  tbeir 


local  Idioms,  have  fiillen  Into  the  use  of 
H ;  as  Mr.  11.  admits  they  did  with  re- 
spect to  the  future  auxiliary  i^iAu. 


some  instances  of  this  In  Lesbonax,  Kepi, 
axflfiuTuv^  ad  flnem  Ammonii,  enit 
Valckcnagr. 

s  Photins  (I  write  on  the  authority  of 
M.  Ileeren)  quotes  Theopompus.  Arrian's 
HIstoryof  Alexander's  Succeraoni,  and  of 
Parthia.  Cteslas,  Agatharcides,  the  whole 
of  Dlodorns  Siculus,  Polybius,  and  Diony- 
sins  of  IIaUcamiuisus.'twenty  lost  ora- 
tions of  Demosthenes,  almost  two  hun- 
dred of  Lyclas,  sixty-four  of  Isseus,  about 
fifty  of  Uyperides.  Ileeren  ascribes  tha 
lo»  of  these  works  altogether  to  the  Latin 
capture  of  Constantinople,  no  writer  sub- 
sequent to  that  time  having  quoted  them. 
Bssai  sur  les  Crolsades,  p.  Hd.  It  is  dlfll- 
cult  however  not  to  suppose  that  soma 
part  of  the  destruction  wns  left  for  the 
Ottomans  to  perform.  iBneas  Sylvius 
bemoans,  in  his  speech  before  the  diet  of 
Frankfort,  the  vast  losses  of  literature  bj 
the  recent  subversion  of  the  Greek  em- 
pire. Quid  do  libris  dicam,  qui  llllo 
erant  Innumerahiles,   nondum   Latlnlf 

cognlti  \ Nnne  ergo,  et  Ilomero  et 

Pindaro  ec  Mrnandro  et  omnibus  iUus- 
trioribas  poetis,  secunda  mors  erit.  But 
nothing  can  be  Inferred  fh>m  this  deo- 
lamation,  except,  perhaps,  that  he  did 
not  know  whether  Menander  still  existed 
or  not.  JEn.  Sylv.  Opera,  p.  716;  also 
p.  881.  Harris's  Philological  Inquiries, 
part  111.  c.  4.  It  is  a  remarkable  proo^ 
however,  of  the  turn  which  Europe,  and 
especially  Italy,  was  taking,  that  a  pope'i 
legate  should,  on  a  solemn  occmslon, 
descant  so  seriously  on  the  li^ury  sus- 
tained by  pro&ne  literature. 

An  uaeftil  summary  of  the  lower 
Greek  literature,  taken  chiefly  from  tb« 
Bibllotheca  Grseca  of  Fabriclus,  will  be 
found  In  Berington's  Literary  Ulstory  of 
the  Middle  Ages.  Appendix  I. ;  and  ona 
rather  more  copious  in  8cho<fll.  AbrM 
de  U  Utt^rature  Gricque.  (Paris,  1812^ 


650  CLASSICAL  LITEBATURB.        Chap.  IX.  Part  H. 

,^^    ^  animated  Italy  in  the  first  part  of  the  fifleenth 

not  much      centurj,  was  bj  no  means  common  to  the  rest  of 
TolTi^yT  ^"""OP®-     Neither  England,  nor  France,  nor  Ger- 
many, seemed  aware  of  the  approaching  change. 
We  are  told  that  learning,  by  which  I  believe  is  only  meant 
the  scholastic  ontology,  had  begun  to  decline  at  Oxford  from 
the  time  of  Edward  III.^     And  the  fifteenth  centuiy,  from 
whatever  cause,  is  particularly  barren  of  writers  in  the  Latin 
language.     The   study  of  Greek  was  only  introduced  by 
Grocyn   and   Linacer  under   Henry  VII.,   and  met   with 
violent  opposition  in  the  university  of  Oxford,  where  the 
unlearned  party  styled  themselves  Trojans,  as  a  pretext  for 
abusing  and  insulting  the  scholars.^    Nor  did  any  classical 
work  proceed  from  the  respectable  press  of  Caxton.    France, 
at  the  beginning  of  the  fifteenth  age,  had  several  eminent 
theologians ;  but  the  reigns  of  Charles  VII.  and  Louis  XI. 
contributed  far  more  to  her  political  than  her  literary  renown. 
A  Greek  professor  was  first  appointed  at  Paris  in  1458, 
before  which  time  the  language  had  not  been  publicly  taught, 
and  was  little  understood.'     Much  less  had  Germany  thrown 
off  her  ancient  rudeness,    ^neas  Sylvius,  indeed,  a  deliberate 
flatterer,  extols  every  circumstance  in  the  social  state  of  that 
country ;  but  Campano,  the  papal  legate  at  Ratisbon  in  1471, 
exclaims  against  the  barbarism  of  a  nation,  where  very  few 
possessed  any  learning,  none  any  elegance.^     Yet  the  prog- 
ress of  intellectual  cultivation,  at  least  in  the  two  former 
countries,  was  uniform,  though  silent ;  libraries  became  more 
numerous,  and  books,  after  the  happy  invention  of  paper, 
though  still  very  scarce,  might  be  copied  at  less  expense. 
Many  colleges  were  founded  in  the  English  as  well  as  foreign 
universities  during  the  fourteenth  and  fifteenth  centuries. 
Nor  can  I  pass  over  institutions  tliat  have  so  eminently  con- 
tributed to  the  literary  reputation  of  this  country,  and  that 

1  Wood^s  AnttqoiUM  of  Oxford,  vol.  i.  almost  nnintelligible  by  ezcen  of  cIm* 

p,  687.  sieal  parity.  Biuccio  boaMtn  so  nnrnquam 

s  Rnper^a  TUta  Mori,  ed.  IIcAnM,  p.  75.  dcorum  innnortaHam     toinpla  viollsi«. 

*  Urevier,  t.  St.  p.  213  ;  me  too  p.  46.  Troopn  comutitting  outrageM  In  %  city  aro 

4  IncrcdibiliiiinKuDiorumbarbaritweBt;  acciiwMl  Tirglncfl  rcwtiilM  incestlMe.  In 
nri.<«5imi HteriDt  nAruiit,  nuIli«lo{Fantiam.  th«  ternu*  of  trmtlM  he  eiiipIovM  the  old 
Papl<*afilii  KpixtoUe^  p.  377.  Cainpano's  Iloniaa  foriuji ;  exercitam  trajkrito  —  op- 
notion  of  elrguncewsiM  ridiculous  etioagh.  piibi  pontiflriji  Hiiiito,  Ste.  And  with  * 
Nobody  evvr  carried  further  the  ptidantie  luoKt  absurd  pedantry,  the  ecclo^iaKtioal 
affectation  of  avoiding  niod»rn  terms  la  ntiito  i*  caUAd  Konianum  iuiperinm. 
h\»  liiitinity.  Thun,  in  the  life  of  Braccio  Oampani  Vibi  BraccU,  in  Miuatori  Script 
da  Uoutoue*  be  renders    his   meaning  Ber  Ital.  t.  xlz. 


SrATK  OF  SociETT.    INVENTION  OP  PRINTING  ^5^ 

still  continue  to  exercise  so  con<?picuous  an  influence  over  \|f 
taste  and  knowledge,  as  the  two  great  schools  of  grammalicar 
learning,  Winchester  and  Eton  —  the  one  founded  by  Wil- 
liam of  Wykehara,  bishop  of  Winchester,  in  1373 ;  the  other 
in  1432,  by  King  Henry  the  Sixth.* 

But  while  the  learned  of  Italy  were  eagerly  exploring  their 
recent  acquisitions  of  manuscripts,  deciphered  loTention  of 
with  difficulty  and  slowly  circulated  from  hand  p'*°*^°«' 
to  hand,  a  few  obscure  Germans  had  gradually  perfected  the 
most  important  discovery  recorded  in  the  annsds  of  mankind. 
The  invention  of  printing,  so  far  from  being  the  result  of 
philosophical  sagacity,  does  not  appear  to  have  been  suggest- 
ed by  any  regard  to  the  higher  branches  of  literature,  or  to 
bear  any  other  relation  than  that  of  coincidence  to  their  re- 
vival in  Italy.  The  question  why  it  was  struck  out  at  that 
particular  time  must  be  referred  to  that  disposition  of  un- 
known causes  which  we  call  accident.  Two  or  three  centu- 
ries earlier,  we  cannot  but  acknowledge  the  discovery  would 
have  been  almost  equally  acceptable.  But  the  invention  of 
paper  seems  to  have  naturally  preceded  those  of  engraving 
and  printing.  It  is  generally  agreed  that  playing  cards, 
which  have  been  traced  far  back  in  the  fourteenth  century, 
gave  the  first  notion  of  taking  off  impressions  from  engraved 
figures  upon  wood.  The  second  stage,  or  rather  second 
application  of  this  art,  was  the  representation  of  saints  and 
other  religious  devices,  several  instances  of  which  are  still 
extant  Some  of  these  are  accompanied  with  an  entire  page 
of  illustrative  text,  cut  into  the  same  wooden  block.  This 
process  is  indeed  far  removed  from  the  invention  that  has 
given  immortality  to  the  names  of  Fust,  Schoefier,  and  Gu- 
ienburg,  yet  it  probably  led  to  the  consideration  of  means 
whereby  it  might  be  rendered  less  operose  and  inconvenient. 
Whether  movable  wooden  characters  were  ever  employed  in 
any  entire  work  is  very  questionable  —  the  opinion  that  re* 
ferred  their  use  to  Laurence  Coster,  of  Haarlem,  not  hav 
ing  stood  the  test  of  more  accurate  investigation.  They  ap 
pear,  however,  in  the  capital  letters  of  some  early  printed 

1  A  letter  from  Master  Wlllfam  Paston  differ  from  what  we  denominate   noa 

at  Eton  (PaAton  I^etters,  toI.  1.  p.  290)  aense  Teraee.    Bnt  a  more  material  ob 

provee  that  IjAUnveniflcati in  was  taught  Berration  ia,  that  the  eona  of  countrj 

there  as  early  as  the  Itfginoinf  of  Edward  gentlemen  living  at  a  conidderahle  dw- 

IV. 's  reign.     It  is  true  that  the  upeelmen  taoee  were  already  sent  to  puhlJo  echoolg 

Im  xatber  proudly  exhibits  does  not  much  fi>r  grammatical  eduoattoa. 


65^' 


EARLY  PRINTED  WORKS.     Chap.  IX.  Past  H. 


/ 


^^i^ks.     Bat  no  expedient  of  this  kind  oonid  hare  fulfilled 

^^he  great  purposes  of  this  invention,  until  it  was  perfected 

\  by  founding  metal  types  in  a  matrix  or  mould,  the  essential 

characteristic  of  printing,  as  distinguished  from  other  arts 

that  bear  some  analogy  to  it 

The  first  book  that  issued  from  the  presses  of  Fust  and 
his  associates  at  Mentz  was  an  edition  of  the  Vulgate,  com- 
monly called  the  Mazarine  Bible,  a  copy  having  been  discov- 
ered in  the  library  that  owes  its  name  to  Cardinal  Mazarin  at 
Paris.  This  is  supposed  to  have  been  printed  between  the 
years  1450  and  1455.^  In  1457  an  edition  of  the  Psalter 
appeared,  and  in  this  the  invention  wafl  announced  to  the 
world  in  a  boasting  colophon,  though  certainly  not  unreason- 
ably bold.^  Another  edition  of  the  Psalter,  one  of  an  ecde- 
siastical  book,  Durand's  account  of  liturgical  offices,  one  of 
the  Constitutions  of  Pope  Clement  Y.,  and  one  of  a  popular 
treatise  on  general  science,  called  the  Catholicon,  fillled  up 
the  interval  fill  1462,  when  the  second  Mentz  Bible  proceed- 
ed from  the  same  printers.*  This,  in  the  opinion  of  some,  ia 
the  earliest  book  in  which  cast  types  were  employed  —  those 
of  the  Mazarine  Bible  having  been  cut  with  the  hand.  But 
this  is  a  controverted  point.  In  1465  Fust  and  Schcefier 
published  an  edition  of  Cicero's  Offices,  the  first  tribute  of 
the  new  art  to  polite  literature.  Two  pupils  of  their  school, 
.  Sweynheim  and  Pannartz,  migrated  the  same  year  into  Italy, 
and  printed  Donatus's  grammar  and  the  works  of  Lactantios 
at  the  monastery  of  Subiaco,  in  the  neighborhood  of  Rome.^ 
Venice  had  the  honor  of  extending  her  patronage  to  John  of 
Spira,  the  first  who  applied  the  art  on  an  extensive  scale  to 
the  publication  of  classical  writers.*  Several  Latin  authors 
came  forth  from  his  press  in  1470 ;  and  during  the  next  ten 
years  a  multitude  of  editions  were  published  in  various  parts 
of  Italy.  Though,  as  we  may  judge  from  their  present  scar- 
city, these  editions  were  by  no  means  numerous  in  respect 
of  impressions,  yet,  contrasted  with  the  dilatory  process  of 
copying  manuscripts,  they  were  like  a  new  mechanical  power 

1  I)»  Bare,  t.  I.  p.  80.    BeTsral  ooplM  *  Ttnboochi,  t.  ▼! .  p.  140. 

of  this  book  hftTo  oome  to  ligbt  sinoe  iti  *  Sanuto  oMntioiui   an  order  of  tho 

di«>e9very.  eenate  In  1409,  that  John  of  Splm  shOQld 

*  Id.,  p.  71.  print  the  epistles  of  Tally  and  PUny  for 

*  M6m.  de  PAcad.  dee  IneerlptlonB,  t.  flre  years,  and  that  no  one  else  shoald  d« 
ziT.  p.  266.  Another  edition  of  the  Bible  so.  Script.  Beroa  ItaUo.  t  zzii.  p.  1188 
la  supposed   to  have  been  printed  by 

PlUter  at  Bambeig  in  14S8. 


I 


8tit«  «nr  Sooxett.    BEVIVAL  OF  LEASNINa.  653 

in  macbineiy,  and  gave  a  wonderfally  accelerated  impulse 
to  the  intellectual  cultivation  of  mankind.  From  the  era  of 
these  fii5t  editions  proceeding  from  the  Spiras,  Zarot,  Janson, 
or  Sweynheim  and  Pannartz,  literature  must  be  deemed  to 
have  altogether  revived  in  Italy.  The  sun  was  now  fully 
above  the  horizon,  though  countries  less  fortunately  circum- 
stanced did  not  immediately  catch  his  beams ;  and  the  resto« 
ration  of  ancient  learning  in  France  and  England  cannot  be 
considered  as  by  any  means  effectual  even  at  the  expiration 
of  the  fifteenth  century.  At  this  point,  however,  I  close  the 
present  chapter.  The  last  twenty  years  of  the  middle  ages, 
according  to  the  date  which  I  have  fixed  for  their  termina- 
tion in  treating  of  political  history,  might  well  invite  me  by 
their  brilliancy  to  dwell  upon  that  golden  morning  of  Italian 
literature.  But,  in  the  history  of  letters,  they  rather  apper- 
tain to  the  modem  than  the  middle  period ;  nor  would  it  be- 
come me  to  trespass  upon  the  exhausted  patience  of  my 
readers  by  repeating  what  has  been  so  oflen  and  so  recently 
told,  the  story  of  art  and  learning,  that  has  employed  the 
comprehensive  research  of  a  Tiraboschl,  a  GiniEuen^  and  a 
Bosooe. 


654  TH£  DABK  AGES.  Kvns  «o 


NOTES  TO  CHAPTER  IX. 


NoTB  L    Page  481. 


A  HAPm  decline  of  learning  began  in  the  aixtli  oenturji 
of  which  Gregory  of  Tours  is  both  a  witness  and  an  exam« 
pie.  It  is,  therefore,  properly  one  of  the  dark  ages,  more  so 
by  much  than  the  eleventli,  which  concludes  them;  since 
very  few  were  left  in  the  church  who  possessed  any  ac- 
quaintance with  classical  authors,  or  who'  wrote  with  anj 
command  of  the  Latin  language.  Their  studies,  whenever 
they  studied  at  all,  were  almost  exclusively  theological ;  and 
this  must  be  understood  as  to  the  subsequent  centuries.  By 
theological  is  meant  the  vulgate  Scriptures  and  some  of  the 
Latin  fathers;  not,  however,  by  reasoning  upon  them,  or 
doing  much  more  than  introducing  them  as  authority  in  their 
own  words.  In  the  seventh  century,  and  still  more  at  the 
beginning  of  the  eighth,  very  little  even  of  this  remained  in 
France,  where  we  find  hardly  a  name  deserving  of  remem- 
brance in  a  literary  sense ;  but  Isidore,  and  our  own  Bede^ 
do  honor  to  Spain  and  Britain. 

It  may  certainly  be  said  for  France  and  Germany,  not- 
withstanding a  partial  interruption  in  the  hitter  part  of  the 
ninth  and  beginning  of  the  tenth  century,  that  they  were  grad- 
ually progressive  from  the  time  of  Charlemagne.  But  then 
this  progress  was  so  very  slow,  and  the  men  in  front  of  it  so 
little  capable  of  bearing  comparison  with  those  of  later  times, 
considering  their  writings  positively  and  without  indulgence, 
that  it  is  by  no  means  unjust  to  call  the  centuries  dark  which 
elapsed  between  Charlemagne  and  the  manifest  revival  of 
literary  pursuits  toiar.ls  the  end  of  the  eleventh  century. 
Alcuin,  for  example,  ha^s  left  us  a  good  deal  of  poetry.  This 
is  superior  to  wliat  we  find  in  some  other  writers  of  the  ob- 


Cbap.  IZ  the  DIlXK  ages.  655 

Bcore  period,  and  indicates  both  a  correct  ear  and  a  familiar- 
ity with  the  Latin  poets,  especially  Ovid.  Still  his  verses 
are  not  as  good  as  those  which  school-boys  of  fourteen  now 
produce,  either  in  poetical  power  or  in  accuracy  of  language 
and  metre.  The  errors  indeed  are  innumerable.  Aldhelm, 
an  earlier  Anglo-Saxon  poet,  with  more  imaginative  spirit,  is 
further  removed  from  classical  poetry.  Lupus,  abbot  of  Fer- 
rieres,  early  in  the  ninth  century,  in  some  of  his  epistles 
writes  tolerable  Latin,  though  this  is  far  from  being  always 
the  case;  he  is  smitten  with  a  love  of  classical  literature, 
quotes  several  poets  and  prose  writers,  and  is  almost  as  cu- 
rious about  little  points  of  philology  as  an  Italian  scholar  of 
the  fifteenth  century.  He  was  continually  borrowing  bocks 
in  order  to  transcribe  them  —  a  proof,  however,  of  their  scar- 
city and  of  the  low  condition  of  general  learning,  which  is 
the  chief  point  we  have  to  regard.^  But  his  more  celebrated 
correspondent,  Eginhard,  went  beyond  him.  Both  his  An- 
nals and  the  Life  of  Charlemagne  are  very  well  written,  in  a 
classical  spirit,  unlike  the  church  Latin  ;  though  a  few  words 
and  phrases  may  not  be  of  the  best  age,  I  should  place  Egin- 
hard above  Alcuin  and  Lupus,  or,  as  far  as  I  know,  any  oth- 
er of  the  Caroline  period. 

The  tenth  century  has  in  all  times  borne  the  worst  name. 
Baronius  calls  it,  in  one  page,  plumbeum^  obscurutn,  infelix 
(Annales,  a.  d.  900).  And  Cave,  who  dubs  all  his  centuries 
by  some  epithet,  assigns ym-^um  to  the  tenth.  Nevertheless, 
there  was  considerably  less  ignorance  in  France  and  Ger- 
many during  the  latter  part  of  this  age  than  before  the  reign 
of  Charlemagne,  or  even  in  it;  more  glimmerings  of  ac- 
quaintance with  the  Latin  classics  appear ;  and  the  schools, 
cathedral  and  conventual,  had  acquired  a  more  regular  and 
uninterrupted  scheme  of  instruction.  The  degraded  condi- 
tion of  papal  Rome  has  led  many  to  treat  this  century  rather 
worse  than  it  deserves ;  and  indeed  Italy  was  sunk  very  low 
in  ignorance.  As  to  the  eleventh  century,  the  upward  prog- 
ress was  extremely  perceptible.  It  is  commonly  reckoned 
among  the  dark  ages  tiU  near  its  dose ;  but  these  phrases  are 

1  The  wrltinn  of  Itvpiu   Senratiia,  of  Tonn,  Irat  quite  m  maoh  tnftirfor  to 

•bbot  of  Ferrllrto,  were  pabUsbed  hj  Bldonios  ApolUnaria.    I  havo  obMired 

Balaie ;   and  a  gMKl  account  of  thorn  In  Lupas  quotations  fti>m  Horace,  Vlr- 

vlll  be  found  in  Amp^re'i  Hitt.  Utt  gll,  Martial.  Cicero,  Anlns  GeUina,  and 

hrol.  ill.  p.  287).  as  well  as  in  older  work*.  TrofruR   Pompeloe    (meaning    probablj 

Be  ii  a  nmeh  bettor  wrttor  tbati  Qr^fory  J  uctio ). 


656  THE  DARK  AGES.  Kotbs  to 

of  coarse  used  comparatively,  and  becaase  the  diflTerence 
between  that  and  the  twelfth  was  more  sensible  than  we  find 
in  any  two  that  are  consecutive  since  the  sixth. 

The  state  of  literature  in  England  was  bj  no  means  paral- 
lel to  what  we  find  on  the  continent.  Our  best  age  was  pre- 
cisely the  worst  in  France ;  it  was  the  age  of  the  Heptarchy 
—^  that  of  Theodore,  Bede,  Aldhelm,  Csadmon,  and  Alcuin ; 
to  whom,  if  Ireland  will  permit  us,  we  may  desire  to  add 
Scotus,  who  came  a  little  afterwards,  but  whose  residence  in 
this  island  at  any  time  appears  an  unauthenticated  tale.  But 
we  know  how  Alfred  speaks  of  the  ignorance  of  the  clergy 
in  his  own  age.  Nor  was  this  much  better  afterwards. 
Even  the  eleventh  century,  especially  before  the  Conquest, 
is  a  very  blank  period  in  the  literary  annals  of  England. 
No  one  can  have  a  conception  how  wretchedly  scanty  is  the 
list  of  literary  names  from  Alfred  to  the  Conquest,  who  does 
not  look  to  Mr.  Turner's  History  of  the  Anglo-Saxons,  or  to 
Mr.  Wright's  Biographia  Literaria. 

There  could  be  no  general  truth  respecting  the  past,  as  it 
appeared  to  me,  more  notorious,  or  more  incapable  of  being 
denied  with  any  plausibility,  than  the  characteristic  ignorance 
of  Europe  during  those  centuries  which  we  commonly  style 
the  Dark  Ages.  A  powerful  stream,  however,  of  what,  as  to 
the  majority  at  least,  I  must  call  prejudice,  has  beien  directed 
of  late  years  in  an  opposite  direction.  The  medieval  period, 
in  manners,  in  arts,  in  literature,  and  especially  in  religion, 
has  been  regarded  with  unwonted  partiality ;  and  this  favor- 
able temper  has  been  extended  to  those  ages  which  had  lain 
most  frequently  under  the  ban  of  historical  and  literary 
censure. 

A  considerable  impression  has  been  made  on  the  pre- 
disposed by  the  Letters  on  the  Dark  Ages,  which  we  owe  to 
Dr.  Maitland.  Nor  is  this  by  any  means  surprising;  both 
because  the  predisposed  are  soon  convinced,  and  because  the 
Letters  are  written  with  great  ability,  accurate  learning,  a 
spirited  and  lively  pen,  and  consequently  with  a  success  in 
skirmishing  warfare  which  many  readily  mistake  for  the  gain 
of  a  pitched  battle.  Dr.  Maitland  is  endowed  with  another 
quality,  far  more  rare  in  historical  controversy,  especially  of 
the  ecclesiastical  kind :  I  believe  him  to  be  of  scrupulous 
integrity,  minutely  exact  in  all  that  he  asserts ;  and  indeed 
the  wrath  and  asperity,  which  sometimes  appear  rather  more 


Cbap.  DC  THE  DABK  AGES.  657 

than  enough,  are  onlj  called  out  hj  what  he  conceives  to  be 
wilful  or  slovenly  misrepresentation.  Had  I,  therefore,  the 
leisure  and  means  of  following  Dr.  Maitland  through  hii 
quotations,  I  should  probably  abstain  from  doing  so  from  the 
reliance  I  should  place  on  his  testimony,  both  in  regard  to  his 
power  of  discerning  truth  and  his  desire  to  express  it.  But 
I  have  no  call  for  any  examination,  could  I  institute  it ;  suice 
the  result  of  my  own  reflections  is  that  everything  which 
Dr.  M.  asserts  as  matter  of  fact  —  I  do  not  say  suggests  in 
all  his  language  —  may  be  perfectly  true,  without  affecting 
the  great  proposition  that  the  dark  ages,  those  from  the  sixth 
to  the  eleventh,  were  ages  of  ignorance.  Nor  does  he,  as  far 
as  I  collect,  attempt  to  deny  this  evident  truth ;  it  is  merely 
his  object  to  prove  that  they  were  less  ignorant,  less  dark, 
and  in  all  points  of  view  less  worthy  of  condemnation 
than  many  suppose.  I  do  not  gainsay  this  position ;  being 
aware,  as  I  have  observed  both  in  this  and  in  another  work, 
that  the  mere  ignorance  of  these  ages,  striking  as  it  is  in 
comparison  with  earlier  and  later  times,  has  been  sometimes 
exaggerated ;  and  that  Europeans,  and  especially  Christians, 
could  not  fall  back  into  the  absolute  barbarism  of  the  Esqui- 
maux. But  what  a  man  of  profound  and  accurate  learning 
puts  forward  with  limitations,  sometimes  expressed,  and 
always  present  to  his  own  mind,  a  heady  and  shallow 
retailer  takes  up,  and  exaggerates  in  conformity  with  his 
own  prejudices. 

The  Letters  on  the  Dark  Ages  relate  principally  to  the 
theological  attainments  of  the  clergy  during  that  period, 
which  the  author  assumes,  rather  singularly,  to  extend  from 
▲.D.  800  to  1200;  thus  excluding  midnight  from  his  defini- 
tion of  darkness,  and  replacing  it  by  the  break  of  day.  And 
in  many  respects,  especially  as  to  the  knowledge  of  the  vul- 
gate  Scriptures  possessed  by  the  better-informed  clergy,  he 
obtains  no  -very  difficult  victory  over  those  who  have  imbibed 
extravagant  notions,  both  as  to  the  ignorance  of  the  Sacred 
Writings  in  those  times  and  the  desire  to  keep  them  away  from 
the  people.  This  latter  prejudice  is  obviously  derived  from 
a  confusion  of  the  subsequent  period,  the  centuries  preceding 
the  Beformation,  vrith  those  which  we  have  immediately 
before  us.  But  as  the  word  dark  is  commonly  used,  either 
in  reference  to  the  body  of  the  laity  or  to  the  general  extent 
of  liberal  studies  in  the  church,  and  as  it  involves  a  oompari 

VOL.  II.  —  K.  42 


658  THE  DARK  AGES.  Norn  to 

son  with  prior  or  subsequent  ages,  it  cannot  be  improper  in 
such  a  sense,  even  if  the  manuscripts  of  the  Bible  should 
have  been  as  common  in  monasteries  as  Dr.  Maitland  sup- 
poses ;  and  yet  his  proofs  seem  much  too  doubtful  to  sustain 
that  hypothesis. 

There  is  a  tendency  to  set  aside  the  verdict  of  the  most 
approved  writers,  which  gives  too  much  of  a  polemical  char- 
acter, too  much  of  the  tone  of  an  advocate  who  fights  every 
point,  rather  than  of  a  calm  arbitrator,  to  the  Letters  on  the 
Dark  Ages.  For  it  is  not  Henry,  or  Jortin,  or  Robertson, 
who  are  our  usual  testimonies,  but  their  immediate  mastersy 
Muratori,  and  Fleury,  and  Tiraboschi,  and  Brucker  and  the 
Benedictine  authors  of  the  Literary  History  of  France,  and 
many  others  in  France,  Italy,  and  Germany.  The  latest  who 
has  gone  over  this  rather  barren  ground,  and  not  inferior 
to  any  in  well-applied  learning,  in  candor  or  good  sense,  is 
H.  Ampere,  in  his  Histoire  Litteraire  de  la  France  avant  le- 
douzieme  si^de  (3  vols.  Paris,  1840).  No  one  will  accuse 
this  intelligent  writer  of  unduly  depreciating  the  ages  which 
he  thus  brings  before  us ;  and  by  the  perusal  of  his  volumes, 
to  which  Heeren  and  Eichhom  may  be  added  for  Grermany, 
we  may  obtain  a  clear  and  correct  outline,  which,  considering 
the  shortness  of  life  compared  with  the  importance  of  exact 
knowledge  on  such  a  subject,  will  suffice  for  the  great  major- 
ity of  readers.  I  by  no  means,  however,  would  exclude  the 
Letters  on  the  Dark  Ages,  as  a  spirited  pleading  for  those 
who  have  oflen  been  condemned  unheard. 

I  shall  conclude  by  remarking  that  one  is  a  little  tempted 
to  inquire  why  so  much  anxiety  is  felt  by  the  advocates  of 
the  mediaeval  church  to  rescue  her  from  the  charge  of  igno- 
rance. For  this  ignorance  she  was  not,  generally  speaking, 
to  be  blamed.  It  was  no  crime  of  the  clergy  that  the  Huns 
burned  their  churches,  or  the  Normans  pillaged  their  monas- 
teries. It  was  not  by  their  means  that  the  Saracens  shut  up 
the  supply  of  pap3rru3,  and  that  sheepskins  bore  a  great 
price.  £urope  was  altogether  decayed  in  intellectual  charac- 
ter, partly  in  consequence  of  the  barbarian  incursions,  partly 
of  other  sinister  influences  acting  long  befbre.  We  certainly 
owe  to  the  church  every  spark  of  learning  which  then  glim- 
mered, and  which  she  preserved  through  that  darkness  to 
rekindle  the  light  of  a  happier  age  —  Iwipfta  rrvpdc  ouCbvoo. 
Meantime,  what  better  apology  than  this  ignorance  can  be 


Chap.  DL  DOMESTIC  ABCHTTECTUKE.  659 

made  by  Protestants,  and  I  presmne  Dr.  Maitland  is  not 
among  these  who  abjure  the  name,  for  the  corruption,  the 
superstition,  the  tendency  to  usurpation,  which  they  at  least 
must  impute  to  the  church  of  the  dark  ages  ?  Not  that  in 
these  respects  it  was  worse  than  in  a  less  obscure  period;  for 
the  revei*se  is  true ;  but  the  fabric  of  popery  was  raised  upon 
its  foundations  before  the  eleventh  century,  though  not  dis- 
played in  its  full  proportions  till  afterwards.  And  there  was 
60  much  of  lying  legend,  so  much  of  fraud  in  the  acquisition 
of  property,  that  ecclesiastical  historians  have  not  been  loath 
to  acknowledge  the  general  ignorance  as  a  sort  of  excuse 
[1848.] 

NoTB  IL    Page  539. 

The  account  of  domestic  architecture  given  in  the  text » 
very  superficial ;  but  the  subject  still  remains,  comparatively 
with  other  portions  of  mediaeval  antiquity,  but  imperfectly 
treated.  The  best  sketch  that  has  hitherto  been  given  is  in 
an  article  with  this  title  in  the  Glossary  of  Ancient  Archi- 
tecture (which  should  be  read  in  an  edition  not  earlier  than 
that  of  1845),  from  the  pen  of  'Mr.  Twopeny,  whose  atten- 
tion has  long  been  directed  to  the  subject  ^  There  is  ample 
evidence  yet  remaining  of  the  domestic  architecture  in  this 
country  during  the  twelfth  century.  The  ordinary  manor- 
bouses,  and  even  houses  of  greater  consideration,  appear  to 
have  been  generally  built  in  the  form  of  a  parallelogram,  two 
stories  high,^  the  lower  story  vaulted,  with  no  internal  com- 
munication between  the  two,  the  upper  story  approached  by 
a  flight  of  steps  on  the  outside  ;  and  in  that  story  was  some- 
times the  only  fireplace  in  the  whole  building.  It  is  more 
tlian  probable  that  this  was  the  usual  style  of  houses  in  the 
preceding  century."    Instances  of  houses  partly  remaining 

1  TUf  Ifl  Tftthar  Mairoeal,  bat  It  is  that  the  nyiwiw  does  not  mean  the  aame 

certainly  not  meant  that  there  were  eyer  thing  u   Mr.  Twopeny    hy  the    word 

two  /lom$  above  that  on  the  ground.  «(ory,  which  the  fbrnier  confine*  to  the 

In  the  reriew  of  the  "  Chronicles  of  the  floor  aboTe  that  on  the  ground,  while  the 

Ifayors  and  Sherilb/^  published  In  the  latter  Includes  both.    The  use  of  Ian- 

ArohsDologlcal  Journal  (toI.  ir.  p.  273),  guage,  as  we   know,  supports,  in  some 

we  nsad  —  ^*The  houses  in  Tx>ndon,  of  measure,  either  meaning;  but  perhaps 

whatsrer  material,  seem  ncTer  to  hare  it  is  more  correct,  and  more  common,  to 

exceeded  one  story  in  height."  (p.  232.)  call  the  first  story  that  which  Is  reached 

But,  soon    aftentnurds  —  *^The   ground  by  a   stairoese  from  the  ground-floor, 

ftoor  of  the  Iiondon  housee  at  this  period  The  soler,  or  sleeping-room,  laiied  above 

VM  aptly  enough  called  a  oellar,  the  the  edlar,  was  often  of  wtod 
mpper  stoiy  a  solar.**    It  thus  appeaie 


660  DOMESTIC  ABCHITECTUBE.  Nuns  to 

are  tben  ^ven.  We  maj  add  to  those  mentioned  bj  Mr* 
Twopenj  one,  perhaps  older  than  anj,  and  better  pre- 
served than  some,  in  his  list.  At  Southampton  is  a  Norman 
house,  perhaps  built  in  the  first  part  of  the  twelfUi  century 
It  is  nearly  a  square,  the  outer  walls  tolerably  perfect ;  the 
principal  rooms  appear  to  have  been  on  the  first  (or  upper) 
fioor ;  it  has  in  tlus  also  a  fireplace  and  chimney,  and  four 
windows  placed  so  as  to  indicate  a  division  into  two  apart- 
ments; but  there  are  no  lights  below,  nor  any  appearance 
of  an  interior  staircase.  The  sides  are  about  forty  feet  in 
length.  Another  house  of  the  same  age  is  near  to  it,  but 
much  worse  preserved.* 

The  parallelogram  house,  seldom  containing  more  than 
four  rooms,  with  no  access  frequently  to  the  upper  which  the 
fiunily  occupied,  except  on  the  outside,  was  gradually  re- 
placed by  one  on  a  different  type :  —  the  entrance  was  on  the 
ground,  the  staircase  within ;  a  kitchen  and  other  offices, 
originally  detached,  were  usually  connected  with  the  hall  by 
a  passage  running  through  the  house;  one  or  more  apart- 
ments on  the  lower  fioor  extended  beyond  the  hall ;  Uiere 
was  seldom  or  never  a  third  fioor  over  the  entire  house,  but 
detached  turrets  for  sleeping-rooms  rose  at  some  of  the  an- 
gles. This  was  the  typical  form  which  lasted,  as  we  know, 
to  the  age  of  Elizabeth,  or  even  later.  The  superior  houses 
of  this  class  were  sometimes  quadrangular,  that  is,  including 
a  court-yard,  but  seldom,  perhaps,  with  more  than  one  side 
allotted  to  the  main  dwelling;  offices,  stables,  or  mere  walls 
filled  the  other  three. 

Many  dwellings  erected  in  the  fourteenth  century  may  be 
found  in  England ;  but  neither  of  that  nor  the  next  age  are 
there  more  than  a  very  few,  which  are  still,  in  their  chief 
rooms,  inhabited  by  gentry.     But  houses,  which  by  their 

1  8m  a  foil  daflcription  in  the  Asehm-  dltkm  of  our  fbrefkthart.    The  houM  oi 

ologieal  Journal,  toI.  It.  p.  11.    Those  Cedrio  the  Sajcon  in  iTanhoe,  with  ill 

who  Tisit  Southampton  may  seek  thie  distinct  and  numerous  apartment!,  to 

house  near  a  gate  in  the  weet  wall.    We  jwj  unlike  any  that  remain  or  can  be 

may  add  to  the    contribution    of  Mr.  traced.    This  Is  by  no  means  to  be  oen- 

Twopeny  one  published  in  the  Proceed-  snred  in  the  romancer,  whose  aim  is  to 

ings  of  the  Archnoloelcal  Institute,  by  delight  by  images  more  splendid  than 

Mr.  Hudson  Turner,  Nov.  1847.    This  Is  truth ;  but,  especially  when  prasented 

chiefly  founded  on  documents,  as  that  by  one  who  poesessed  in  some  rsepeets  a 

of  Mr.  Twopeny  is  on  existing  remains,  considerable  knowledge  of  antiquity,  and 

These  give  more  light  where  they  can  be  was  rather  fond  of  displaying  it,  there  Is 

fbund ;  but  the  number  is  Tory  small,  some  danger  lest  the  rsader  should  be 

Upon  the  whole,  it  may  be  hers   ob-  liere  that  hebasafldthAal|detui»b«ftae» 

Mrred,  that  we  are  fluently  misled  by  him. 
wotks  of  Action  as  to  ttie  domeitio  oon- 


Gh^.  IX  F£TBABCH»S  LAX7BA.  661 

marks  of  decoration,  or  by  external  proof,  are  ascertained  im 
have  been  fbrmerlj  occupied  bj  good  families,  though  now 
in  the  occupation  of  small  farmers,  and  built  apparently  from 
the  reign  of  the  second  to  that  of  the  fourth  Edwiu^,  are 
common  in  many  counties.  They  generally  bear  the  name 
of  court,  hall,  or  grange;  sometimes  only  the  surname  of 
some  ancient  occupant,  and  very  frequently  have  been  the 
residence  of  the  lord  of  the  manor. 

The  most  striking  circumstance  in  the  oldest  houses  is  not 
80  much  their  precautions .  for  defence  in  the  outside  stair- 
case, and  when  that  was  disused,  the  better  safeguard  against 
robbery  in  the  moat  which  frequently  environed  the  walls, 
the  strong  gateway,  the  small  window  broken  by  mullionsy 
which  are  no  more  than  wo  should  expect  in  the  times,  as 
the  paucity  of  apartments,  so  that  both  sexes,  and  that  even 
in  high  rank,  must  have  occupied  the  same  room.  The 
progress  of  a  regard  to  decency  in  domestic  architecture  has 
been  gradual,  and  in  some  respects  has  been  increasing  up 
to  our  own  age.  But  the  medueval  period  shows  little  of  it ; 
though  in  the  advance  of  wealth,  a  greater  division  of  apart- 
ments distinguishes  the  houses  of  the  fourteenth  and  fifteenth 
centuries  from  those  of  an  earlier  period. 

The  French  houses  of  the  twelfth  and  thirteenth  centuries 
were  probably  much  of  the  same  arrangement  as  the  Eng^ 
lish ;  die  middle  and  lower  classes  had  but  one  hall  and  one 
chamber ;  those  superior  to  them  had  the  solarium  or  npper 
floor,  as  with  us.  See  Archieological  Journal  (vol.  i.  p.  212), 
where  proofs  are  adduced  firom  the  fabliaux  of  Barbasaik 
[1848.] 

NotbIII.    Page  663. 

The  Abb^  de  Sade,  in  those  copious  memoirs  of  the  life 
of  Petrarch,  which  illustrate  in  an  agreeable  though  rather 
prolix  manner  the  civil  and  literary  history  of  Provence  and 
Italy  in  the  fourteenth  century,  endeavored  to  establish  his 
own  descent  from  Laura,  as  the  wife  of  Hughes  de  Sade, 
and  bom  in  the  family  de  Noves.  This  hypothesis  has  since 
been  received  with  general  acquiescence  by  literary  men ;  and 
Tiraboschi  in  particular,  whose  talent  lay  in  these  petty  bi« 
ographical  researches,  and  who  had  a  prejudice  against  every* 
tfaong  that  came  from  France,  seems  to  consider  it  as  decU 


662  FETRASCH*S  LAURiL  Kom  to 

Bively  proved.  But  it  has  been  called  in  question  in  a 
modem  publication  by  the  late  Lord  Woodhouselee.  (Essaj 
on  the  Life  and  Character  of  Petrarch,  1810.)  I  shall  not 
offer  any  opinion  as  to  the  identity  of  Petrarch's  mistress 
with  Laura  de  Sade ;  but  the  main  position  of  Lord  W.'s 
essay,  that  Laura  was  an  unmarried  woman,  and  the  object 
of  an  honorable  attachment  in  her  lover,  seems  irreconcilable 
with  the  evidence  that  his  writings  supply.  1.  There  is  no 
passage  in  Petrarch,  whether  of  poetry  or  prose,  that  alludes 
to  the  virgin  character  of  Laura,  or  gives  her  the  usual  ap* 
pellations  of  unmarried  women,  puella  in  Latin,  or  donzella 
in  Italian ;  even  in  the  Trionfo  della  Castit^  where  so  obvi- 
ous an  opportunity  occurred.  Yet  this  was  naturally  to  be 
expected  from  so  ethereal  an  imagination  as  that  of  Petrarch, 
always  inclined  to  invest  her  with  the  halo  of  celestial  purity. 
We  know  how  Milton  took  hold  of  the  mystical  notions  of 
virginity ;  notions  more  congenial  to  the  religion  of  Petrarch 
than  his  own : 

Quod  tibl  perpetnos  pador,  et  nine  labe  Javentu 
Pun  fttit,  quod  nulla  tori  libata  voluptas, 
En  etUm  tibi  vizginri  serrantur  honorea. 

Epltaphium  Damonla. 

2.  The  coldness  of  Laura  towards  so  passionate  and  deserv* 
ing  a  lover,  if  no  insurmountable  obstacle  intervened  during 
his  twenty  years  of  devotion,  would  be  at  least  a  mark  that 
his  attachment  was  misplaced,  and  show  him  in  rather  a  ri- 
diculous light.  It  is  not  surprising,  that  persons  believing 
Laura  to  be  unmarried,  as  seems  to  have  been  the  case  with 
the  Italian  commentators,  should  have  thought  his  passioa 
affected,  and  little  more  than  poetical.  But  upon  the  con- 
trary supposition,  a  thread  runs  through  the  whole  of  his 
poetry,  and  gives  it  consistency.  A  love  on  the  one  side, 
instantaneously  conceived,  and  retained  by  the  susceptibility 
of  a  tender  heart  and  ardent  fancy ;  nourished  by  slight  en- 
couragement, and  seldom  presuming  to  hope  for  more;  a 
mixture  of  prudence  and  coquetry  on  the  other,  kept  withia 
bounds  either  by  virtue  or  by  the  want  of  mutual  attachment, 
yet  not  dissatisfied  with  fame  more  brilliant  and  flattery  more 
refined  than  liad  ever  before  been  the  lot  of  woman  —  these 
are  surely  pretty  natural  circumstances,  and  such  as  do  not 
render  the  story  less  intelligible.  Unquestionably  such  a 
passion  is  not  innocent.    Bat  Lord  Woodhouselee,  who  is  so 


Crap.IZ.  FETRABCH'S  LAUBA.  663 

much  scandalized  at  it,  knew  little,  one  would  think,  of  the 
fourteenth  centuiy.  His  standard  is  taken  not  from  Avig- 
non, hut  from  £dinhurgh,  a  much  better  place,  no  doubt,  and 
where  the  moral  barometer  stands  at  a  very  different  altitude. 
In  one  passage  (p.  188)  he  carries  his  strictness  to  an  excess 
of  prudery.  From  all  we  know  of  the  age  of  Petrarch,  the 
only  matter  of  astonishment  is  the  persevering  virtue  of 
Laurai  The  troubadours  boast  of  much  better  success  with 
Proven9al  ladies.     3.  But  the  following  passage  from  Pe-  i 

trarch's  dialogues  with  St.  Augustin,  the  work,  as  is  well 
known,  where  he  most  unbosoms  himself,  will  leave  no  doubt, 
I  think,  that  his  passion  could  not  have  been  gratified  con- 
sistently with  honor.  At  mulier  ista  Celebris,  quam  tibi 
oertissimam  ducem  iingis,  ad  superos  cur  non  hassitantem 
trepidumque  direxerit,  et  quod  easels  fieri  solet,  manu  ap- 
prehensum  non  tenuit,  quo  et  gradiendum  foret  admonuit? 
Petr.  Fecit  hoc  ilia  quantum  potuit.  Quid  enim  aliud  egit, 
cum  nullis  mota  precibus,  nulHs  victa  blanditiis,  muliebrem 
tenuit  decorem,  et  ad  versus  suam  semel  et  meam  setatem, 
ad  versus  multa  et  varia  quae  fiectere  adamantium  spin  turn 
debuissent,  inexpugnabilis  et  firma  permansit  ?  Profecto  an- 
imus iste  foemineus  quid  virum  decuit  admonebat,  pnestabat- 
que  ne  in  sectando  pudicitisB  studio,  ut  verbis  utar  Senecas, 
aut  exemplum  aut  convitium  deesset ;  postremo  cum  lorifra* 
gum  ac  pnecipitem  videret,  deserere  maluit  potius  quhm, 
sequi.  August.  Turpe  igitur  aliquid  interdum  voluisti, 
quod  supra  negaveras.  At  iste  vulgatus  amantium,  vel,  ut 
dicam  verius,  amantium  furor  est,  ut  onuibus  merit6  did 
possit:  volo  nolo,  nolo  volo.  Vobis  ipsis  quid  velitis,  aut 
Dolitis,  ignotum  est.  Pet.  Invitus  in  laqueum  offendi.  Si 
quid  tamen  olim  aliter  forte  voluissem,  amor  a^tasque  coege- 
runt ;  nunc  quid  velim  et  cupiam  scio,  firmavique  jam  tandem 
auimum  labentem ;  contra  autem  ilia  propositi  tenax  et  sem- 
per una  permansit,  quare  constantiam  fccmineam  quo  magia 
intelligo,  magis  admiror :  idque  sibi  consilium  fuisse,  si  un« 
quam  debuit,  gaudeo  nunc  et  gratias  ago.  Auo.  Semel 
falienti,  non  facile  rursus  fides  habenda  est :  tu  prius  mores 
atque  habitum,  vitamque  mutavisti,  quhm  animum  mutasse 
persuadeas ;  mitigatur  forte  si  tuus  leniturque  ignis,  extinctua 
uon  est.  Tu  vero  qui  tantum  dilectioni  tribuis,  non  animad- 
vertis,  iilam  absolvendo,  quantam  te  ipse  condemnas ;  illam 
fiiteri  libet  fuisse  sanctissimam  dum  de  insanum  scelestumque 


664  EABLT  LEGISLATIVE  USE  OF  Noctb  to 

fateare.  —  De   Contemptu  Mundi,  Dialog.  8,  p.  867,  edit 
1581. 


Note  IV.    Page  637. 

The  progress  of  our  language  in  proceedings  of  the  legis« 
lature  is  so  well  described  in  tlie  preface  to  the  authentic  edi- 
tion of  Statutes  of  the  Realm,  published  by  the  Record  Com- 
mission,  that  I  shall  transcribe  the  passage,  which  I  copy 
from  Mr.  Cooper's  useful  account  of  the  Public  Records 
(voL  i.  p.  189)  :  — 

**  The  earliest  instance  recorded  of  the  use  of  the  English 
language  in  any  parliamentary  proceeding  is  in  86  Edw.  IIL 
The  style  of  the  roll  of  that  year  is  in  French  as  usual,  but 
it  is  expressly  stated  that  the  causes  of  summoning  the  par- 
liament were  declared  en  Anglais  ;  and  the  like  circumstance 
is  noted  in  37  and  38  Edw.  111^  In  the  5th  year  of  Rich- 
ard II.,  the  chancellor  is  stated  to  have  made  un  hone  coOo' 
don  en  Engleys  (introductory,  as  was  then  sometimes  the 
usage,  to  the  commencement  of  business),  though  he  made  use 
of  the  common  French  form  for  opening  the  parliament.  A 
petition  from  the  '  Folk  of  the  Mercerye  of  London/  in  the 
10th  year  of  the  same  reign,  is  in  English ;  and  it  appean 
also  that  in  the  17th  year  &e  Earl  of  Arundel  asked  pardon 
of  the  Duke  of  Lancaster  by  the  award  of  the  Eling  and 
Lords,  in  their  presence  in  parliament,  in  a  form  of  English 
words.  The  cession  and  renunciation  of  the  crown  by  Rich- 
ard 11.  is  stated  to  have  been  read  before  the  estates  of  the 
realm  and  the  people  in  Westminster  Hall,  first  in  Latin  and 
afterwards  in  English,  but  it  is  entered  on  the  parliament  roll 
only  in  Latin.  And  the  challenge  of  the  crown  by  Henry 
IV.,  with  his  thanks  after  the  fdlowance  of  his  title,  in  the 
same  assembly,  are  recorded  in  English,  which  is  termed  hia 
maternal  tongue.  So  also  is  the  speech  of  Lord  William 
Thyming,  the  Chief  Justice  of  the  Common  Pleas,  to  the 
late  King  Richard,  announcing  to  him  the  sentence  of  his 
deposition,  and  the  yielding  up,  on  the  part  of  the  people,  of 
their  fealty  and  allegiance.  In  the  6th  year  of  the  reign  of 
Henry  IV.  an  English  answer  is  given  to  a  petition  of  the 
Commons,  touching  a  proposed  resumption  of  certain  grants 

1  RdtoenoM  an  glren  to  tlw  BoUi  of  Fferilanent  thzoni^oiit  Ihli  tocfenol. 


Cbaf.  el  the  ENGLISH  LANGUAGE.  665 

of  the  crown  to  the  intent  the  king  might  live  of  his 
own.  The  English  language  afterwards  appears  occasionallj, 
through  the  reigns  of  Henry  IV.  and  Henry  V.  In  the  first 
and  second  and  subsequent  years  of  Henry  YL,  the  petitions 
or  bills,  and  in  many  cases  the  answers  also,  on  which  the 
statutes  were  afterwards  framed,  are  found  frequently  in 
English ;  but  the  statutes  are  entered  on  the  roll  in  French 
or  Latin.  From  the  23rd  year  of  Henry  YI.  these  petitions 
or  bills  are  almost  universally  in  English,  as  is  also  some- 
times the  form  of  the  royal  assent ;  but  the  statutes  contin- 
ued to  be  enrolled  in  French  or  Latin.  Sometimes  Latin 
and  French  are  used  in  the  same  statute,^  as  in  8  Hen.  YL, 
27  Hen.  YL,  and  39  Hen.  YI.  The  last  statute  wholly  in 
Latin  on  record  is  33  Hen.  YI.  c  2.  The  statutes  of  Ed- 
ward lY.  are  entirely  in  French.  The  statutes  of  Richard 
TIT,  are  in  many  manuscripts  in  French  in  a  complete  stat- 
ute form  ;  and  they  were  so  printed  in  his  reign  and  that  of 
his  successor.  In  the  earlier  English  .editions  a  translation 
was  inserted  in  the  same  form  ;  but  in  several  editions,  since 
1618,  they  have  been  printed  in  English,  in  a  different  form, 
agreeing,  so  far  as  relates  to  the  acts  printed,  with  the  enrol- 
ment in  Chancery  at  the  Chapel  of  the  Rolls.  The  petitions 
and  bills  in  parliament,  during  these  two  reigns,  are  all  in 
English.  The  statutes  of  Henry  YII.  have  always,  it  is  be- 
lieved, been  published  in  English ;  but  there  are  manuscripts 
containing  the  statutes  of  the  first  two  parliaments,  in  his  first 
and  third  year,  in  French.  From  the  fourth  year  to  the  end 
of  his  reign,  and  from  thence  to  the  present  time,  they  are 
universally  in  English.** 

1  All  tiM  UBtM  paM0d  ill  tiM  MUM  Ml-    ftrvooe  of    langiuga  wm  In  Mpanti 
iloa  an  tagaUj  oim  atetato ;  Um  dif-    ehapten  or  aeto. 


INDEX. 


%*  Iht  Ronum  Numerals  refer  to  the  Vclvmes  ~  the  Arabic  Figure*  to  the  Pages  qf 

each  Volmne. 


ABBAS8IDB8. 

Abbassiois.  encoaragement  of  fldenee 
and  art  oy  the,  L  697— progress  of 
their  dynasty,  6d8 — its  decadence,  590. 

Abdalrahnmn  proclaimed  khalif  of  Gor- 
dora,  1.  688. 

Abelard  (Peter),  enthusiasm  excited  by 
the  teachings  of,  U.  604  — his  erratie 
career,  ib. 

Acre,  consequences  to  commence  by  the 
capture  of,  ii.  619  — Tlces  of  its  inhabi- 
tants, ib.  note  K 

AdomI  and  Fregosi  IkeHons,  dismption 
of  Genoa  by  the.  i.  475. 

Adolphas  of  Nawau  elected  emperor  of 
Germany,  i  6<)0. 

Adrian  II.  (pope),  attempts  to  orentwe 
Charles  the  Bald,  i.  645. 

Adrian  IV.  (the  only  English  pope),  in- 
BoJence  of.  towards  Frederic  Barba- 
rossa,  i.  666  —  hia  system  of  mandats, 
ii.  11. 

AdTenturen  (miUtaiy).  Bee  MlUtary 
Systems. 

JBneaa  SylTius  (altemarda  Plus  II.),  In- 
stance of  the  political  ibre«ight  of,  i. 
488  — he  abets  the  war  against  the 
Turks.  612  — specimen  of  his  orato- 
ry, 612,  note  —  his  singular  suggestion 
to  Mahomet  II.,  ib.  mo(«  — he  plays 
into  the  hands  of  the  pope,  ii.  48  —  ha 
obtaina  the  repeal  of  the  Pragmatic 
Banctlon,  50  —  hit  sketch  of  Vtenna* 
634,  ffote«. 

Agriculture,  cause  of  the  low  state  of, 
ii.  603.  64«,  and  note  >  — superior  cul- 
tlTation  of  church  lands,  548  —  exem- 
plary  labors  of  the  Benedietinert,  t6. 
note  >  —  agricuitoral  colonies,  649  and 
notes  *  mad*  —  early  enclosures  and 
clearances,  660— exportation  of  com, 
bow  limited,  662  —  usual  prices  of  land, 
I*.  —  high  state  of  Italian  agrleoltttrei 


ALFONSO  v. 

ib.  — effects  of  pestilence,  658 — excel- 
lence of  the  Italian  gardens,  ib  — neg- 
lect of  horticulture  in  England,  564. 

Alaric.  tolerance  of,  towanLt  hlM  catholio 
subjects,  i.  17,  note*  —  dereated  by  Clo- 
Tis,  17— laws  compiled  by  his  order, 
il  698. 

Albert  I.  of  Germany,  I.  660 — his  rule  in 
Switserland,  583  —  his  expulsion  and 
ajttaflsioatlon,  584  —  the  French  crown 
offered  to  him,  ii.  28. 

Albert  II.  succeed)!  Sigiamund  aa  emper- 
or of  Germany  ,*i.  666. 

Albigeneian  hereby,  spread  of  the,  1. 40— 
massacre  of  the  Albigeois,  i6  ,  41,  notes. 
See  Religious  Sects. 

Albizi,  ascendency  in  Florence  regained 
by  the,  i.  476— Cwmo  de*  Medici  ban- 
ished at  their  instigation,  478  — their 
overthrow,  ib.  —  exclusion  of  their  fluu- 
ily  from  the  magistracy,  478. 

Akuin  teaches  Charlemagne,  U.  603  —  be 
discourages  secular  learning,  ib.—- 
character  of  his  poetry,  654. 

Alexander  II.  (pope),  election  of,  1.  655 
—  he  deposes  the  English  prelates,  U. 
97,  note  >. 

Alexander  III.  (pope),  supports  Thomas 
4  Becket,  i.  6(i6  —  adopts  the  system  of 
mandats,  ii.  11. 

Alexander  V.  elected  pope,  U.  89  — his 
successor,  «6. 

Alexander  IIL  king  of  Scotland,  opposi- 
tion to  papal  domination  by.  ii.  15. 

Alexius  Comnenus  attacks  the  Turks, 
i.  608  —  he  reeoren  the  Greek  territo- 
ries, ib.  and  note  *. 

Alfonso  1.  of  Aragon  bequeaths  his  king- 
dom to  the  Knights  Templan.  i.  4S2 

Alfonso  III.  of  Aragon  compelled  to  apol- 
ogias to  his  people,  1.  526. 

Allbnao  V.  of  Axagon  (the  MagnaolmoiiB), 


668 


IKDEX. 


ALFOVBO  V.  AND  Tl. 

1.  46D  — adopted  by  Jouina  II.  of  Na- 
ples, ib.  —  ihe  rerokes  the  adoption,  470 

—  hl0  accession,  ib.  —  his  impriaonment 
by  the  Genoese,  471  —  his  alliance  with 
Milan,  f6. 472  —  his  Tlrtues  and  patron- 
age of  the  arts,  478  —  his  literary  medi- 
cine, 478,  notf  —  his  lore  of  Naples,  528l 

Alfonso  V.  and  YI.  of  Castile,  towns  in- 
corporated by,  i-  490. 

Alfonso  VII.  of  Castile,  unwise  dirislon 
of  his  dominions  by,  i.  492. 

Alfonso  X.  of  Castile,  scientific  acquire- 
ments and  gOTemmental  deficiencies 
of,  i.  496  —  law  promulgated  by  him,  610 

—  his  election  as  emperor  of  Germany, 
664  — tithes  established  in  his  reign. 
620,  note  ^ — clerical  encroachments  fa* 
▼ored  by  him,  ii.  18,  note  >  —  he  exempts 
the  deivy  from  ciril  jurisdiction,  28. 

Alfonso  XI.  of  Castile  assassinates  his 
cousin,  i.  497  —his  disregard  of  law,  618. 

Alfred  the  Great,  rescue  of  the  Anglo- 
Baxon  monarchy  by,  U.  66  —  his  al- 
}0ged  division  of  the  Icingdom  into 
counties,  &c.,  78  —  ascription  of  trial 

I  by  Jury  to  him,  78  —  his  high  claim 
to  Tcneration,  81  —  extent  of  his  ac- 

Suaintance  with  Latin.  480  — his 
eclaration  of  the  ignorance  of  the 
clergy,  481  —  his  seal  for  learning,  ib. 
note  *. 

Aliens  held  liable  for  each  other's  debts, 
ii.62& 

Alniaman  and  Almansor,  khalifh  of  Bag- 
dad, patronage  of  letters  by,  i.  697. 

Alodial  tenure,  characteristics  of,  i.  160, 
161,  and  notes  —  converted  into  feudal 
tenure,  164  —  except  in  certain  locali- 
ties, 166  and  note  —  causes  of  the  con- 
Tersion,  807  —  alodial  proprietors  evi- 
dently  freemen,  813. 

AlTaro  de  Luna.    See  Luna. 

Amadeus  (duke  of  Savoy),  elected  pope^ 
ii  48. 

Amalfl,  early  commerctal  eminence  of, 
ii.  618  and  note  —  its  decline,  619  —  al- 
leged invention  of  the  mariner's  com- 
pass there,  622  and  n«fe  —  discovery 
of  the  Pandects,  699. 

Amurath  ].,  progresses  of  the  Turkish 
arms  under,  1.  007. 

Amurath  II.,  rout  of  the  Hungarians 
by,  1.  681  —  reunion  of  the  Ottoman 
monarchy  under  him ,  609  —  he  per- 
fects the  institution  of  the  Janiaaries, 
612. 

Anastasius  confers  the  dignity  of  consul- 
ship on  Clovis,  i.  118  —  elucidatory  ob- 
servations thereon,  113, 116. 

AndaluKia,  conquest  of,  by  Ferdinand 
III.,i.  498. 

Andrew  of  Hungary  married  to  Joanna 
of  Naples,  i.  466— hb  murder  Imputed 
to  Joanna,  ib. 


ASAOON. 

Anglo-Nonoaos.    See  England. 

Anglo-Saxons,  divisions  ofBngland  under 
the,  U  64  — their  Danish  assailants, 
66  — Alfred  and  his  suocessorSi  66, 
67 — descent  of  the  <rown,  97  —  in- 
fluence  of   provincial    governors,   68 

—  thanes  and  ceorls,  i6.  —  condition  of 
the  ceorls,  69  —  privileges  annexed  to 
their  possession  of  land,  ib.  —  position 
of  the  socage  tenants,  70  —  condition 
of  the  British  natives,  71  —  absence  of 
British  roots  in  the  English  language, 
fb  and  note  *-  constitution  ^  Uie 
Witenagemot,  72,  161,  166  — admlnls- 
ttation  of  justice,  and  divisions  of  the 
land  for  the  purpose,  78  — hundreds 
and    their   probable    origin,   78y    74, 

166. 167  —  the  ty  thing  man  and  alder- 
man, 76,  note* — the  county  court 
and  its  Jurisdiction,  76 — contempo- 
rary report  of  a  suit  adjudicated  In  the 
reign   of  Canute,  76,  77,  and  note  *■ 

—  trial  by  Jury  and  Its  antecedents, 
78-81  —  Introduction  of  the  law  of 
frankpledge,  81,  82  —  turbulence  of 
the  Anglo-Saxons,  88 —  pnyress  of  the 
syfitem  of  frank  pledges,  84  —  respon- 
sibiUties  and  usee  of  the  tythings,  84, 

86,  and  notes  —  fRobable  existence  ox 
feudal  tenures  before  the   Conquest, 

87,  92, 192,  194— observations  on  the 
change  of  the  heptarchy  into  a  mon- 
archy, 140, 144  —  consolidation  of  tb« 
monarchy,  144, 146  —  condition  of  the 
eorls   and   ceorls  further  elucidated, 

146. 168  —  proportion  of  British  natives 
under  the  Anglo-Saxon  rule,  168, 161 
— judicial  functions  of  the  Anglo-Saxon 
kings,  167  — analogy  between  the 
French  and  Anglo-Saxon  monarchies, 

168. 169  —  peculiar  Jurisdiction  of  tha 
king's  court,  170, 178 

AaJou  (Liouis,  duke  of),  srisure  of 
Charles  V.*s  treasures  by,  i  76—  bis 
cbiim  as  regent,  77  and  note  —  his  at- 
tempt on  the  crown  of  Naples,  and 
death,  lb.    See  Charles  of  Anijou 

Anselm  archbinbop),  cause  of  his  qnar> 
rel  with  William  11.  and  Henry  I..  1. 
664  —  Depcartes's  argament  on  tho 
Deity  anticipated  by  him,  ii.  611. 

Appansges,  effect  of  the  system  of.  1. 96. 

Aquinas  (Thomas),  metaphysical  emi- 
nence of,  ii  610—  ronipantive  obao- 
letenoss  of  his  writings,  611,  note  *. 

Aquitaine,  extent  of  the  dominions  so 
called,  1  121  —  character  of  its  people, 
ib.  —  effect  of  the  wars  of  the  Merovin- 
gian kings,  279. 

Arabia  and  the  Arabs.  Bee  Ifobam- 
med. 

Aragon,  bequest  to  the  Templars  bvAl- 
fonso  I.,  and  reversal  thereof.  I  492  — 
xise  of  me  kingdom  in  political  Impor- 


INDEX. 


669 


ARCHERS. 

taaee,  620 — straggte  for  the  raocenion 

f  to  its  crown,  52(hSs2— points  of  inter- 
est in  its  form  of  goyernmeut,  524  — 
privileges  of  its  noblefl  and  people,  524, 
525  —  its  natural  defects  and  political 
advantages,  525,  526  —  sUtisticit  of  its 
wealth,  population,  &c.,  526,  note*  — 
grant  of  the  "  priTilege  of  union ,^'  527 
—  sapemesslon  thereof,  528  —  the  office 
of  justiciary ,  529  —  instances  of  that  of- 
ficer's integrity  and  courage,  529,  and 
of  the  submisAon  of  kings  to  his  de- 
crees, 588, 584  —  duration  and  responsi- 
bilities of  the  office,  534  —  the  Cortes  of 
Anigon,  586  —  social  condition  of  the 
kiugdom.  538  — its  union  with  Castile, 
ib.  —its  burgesses,  ii.  521,  note ^ 

Archers  (Bngltsh),  inyinclbility  of  the, 
at  Crecy  and  Poitiers,  L  65.  See  Mili- 
tary Systems. 

ArchUecture,  as  lllustratlye  of  domestic 
progress,  ii.  535 — early  castles  in  Eng- 
land, tb.  ~~  improTements  thereon,  58H3 
—early  booses, 587  •—  retiTal  of  the  use 
of  bricks,  538  —  arrangemenr  of  ordi- 
nary mansion-houses,  539— dwellings 
in  Fiance  and  Italy,  538,  540  —  intro- 
duction of  chimneys  and  glass  win- 
dows, 640,  6ti,  and  noiis  —  house  fur 
niture  and  domestic  conyeniences,  542, 
543,  and  notes  —  farmhouses  and  cot- 
tages, 543 — eoclesiasticai  architecture, 
its  grandeur  and  yarieties.  544,  547, 
and  notes  —  domestic  architecture  of 
the  12th  and  14th  centuries,  659,  661. 

Arian  soyereigns,  tolerance  of  the,  4.  17 
and  note  *. 

Aribert  declared  king  of  Aqultalne,  i.  120. 

Aristocracy.    See  Nobility. 

Ari«totle,  writings  of,  how  first  known  in 
£urope,  11.  609  and  note* — Ignorance 
oihiB  translators.  612  and  note  ^ —char- 
acter of  the  Aristotelian  philosophy, 
618— its  influence  on  religion.  f6  ,  notes, 

Armagnac  (count  of)  oppoiies  the  duke 
of  Burgundy,  i.  80  —  luaasacre  of  him- 
self and  partisans,  81— asssMination 
of  a  later  count  of  Annagnnc,  96. 

Armagnacs,  rise  of  the  fhrtion  of  the,  i. 
80  —  tactics  of  the  dauphin  towards 
them,  ib.  —  their  league  with  Henry 
IV.  of  England,  82  — their  defeat  by 
the  Swiss,  687. 

Armorial  bearings,  general  introduction 
of,  i.  190— instances  of  their  earliest 
use,  191,  note. 

Armorican  xepnbUe,  questionable  exist- 
ence of  the,  L 16  —  hypothesis  of  Dubos 
relative  thereto,  t6.,  note  — further  elu- 
cidation thereof,  109 — supposed  extent 
of  its  territories,  100, 110. 

Armor.    See  Military  Systema 

Artois.    See  Robert  of  Artois. 

Arundel  (bishop  and   aichbtsbop),  re- 


BARON8. 

monstrates  with  Richard  U.,  ii.  275  — 
deprived  of,  and  reinvested  with ,  the 
great  seal,  ^  —  his  subsequent  depri- 
vation and  banishment, 284. 

Arundel  (earl  of,  temp.  Richard  II), 
flavored  by  the  parliament,  ii.  272  — 
his  conduct  as  a  lord  appellant,  279  — 
his  breach  with  the  duke  of  Lancaster, 
281  —  refuses  to  aid  in  legitimating 
Lancaster's  children,  282  —  his  decapi- 
tation, 284. 

Aschaflienburg,  concordats  of,  U.  48. 

Athens  (duke  of).    See  Brienne. 

Augustin  (St.),  specimen  of  the  yeiMS  of, 
ii.  475,  note  >. 

Aulic  council,  powers  and  jurisdiction  of 
the,  i  576. 

Auspicius  (bishop  of  Tonl),  character  of 
the  poetry  of,  ii.  476  —  specimen 
thereof,  t6  ,  note 

Austrasia,  characteristics  of  the  people 
of,  i.  122,  128. 

Auxiliary  verb  active,  probable  cause  of 
the,  ii.  474. 

Averroes,  error  relative  to,  II.  605,  nofs^ 
—  his  eminence  as  a  philosopher,  600, 
note  *  —  tendency  of  hu  commentarieB, 
613. 

Avignon,  removal  of  the  papal  court  to, 
ii.  80  —  rapacity  of  its  popes,  83, 85" 
its  abandonment  by  the  popes,  86. 

Asincourt  (battle  of),  i.  88  and  noU, 

Bacon  (Roger),  a  true  philosopher,  IL 
612,  note '  —  his  acquaintance  with 
mathematics,  615  —  parallel  between 
him  and  Lord  Bacon,  t6.,  nott*  —  liis 
knowledge  of  Qreek,  644. 

Bagdad,  celebrity  of  the  early  khallft  of, 
i.  69i— character  of  Its  later  khaUft, 

598  —  ftvquency  of  their  assassination, 

599  —  defection  of  its  provinces,  ib. 
Bi^}aiet,  military  successes  of,  i.  607  — 

defeated  and  captured  by  the  Tartars, 
009. 

Baltic  trade.    See  Trade. 

Banks  and  bankers  of  Italy,  11  580. 

Barbiano  (Alberic  di),  military  emlneooe 
of,  1.455  — his  pupils,  461. 

fttrcelona,  feudal  submission  to  France 
of  the  counts  of,  i.  28,  ntae  — its  early 
commercial  eminence,  ii.  521 — its  code 
of  maritime  laws,  623  and  note  ,*  —  and 
of  marine  insurance,  529,  note*  — its 
bank  of  deposit,  580. 

Bardas,  revival  of  Greek  literators  by, 
ii.  648,  Mocc*. 

Bardi,  Florentine  bankerSjSngUsh  oiu- 
toms  Ihrmed  by  the,  U.  629,  note  >. 

Barons  (in  France),  oocaslooal  assem- 
blages of  the,  i.  21«  —  consequences  of 
their  non.attendance  at  the  rcnral 
council,  219, 220 — tbsy  become  snlQeet 
to  the  monazeh,  220  —  tbeir  privileges 


670 


OfDEX. 


ftAMtlSTES. 

enrtaned  by  Philip  IV.,  224.    8m  No- 
bility. 

Barrfeten'  fees  in  the  15th  ecatoy,  ii. 
660. 

B««Ie,  council  of.    See  ConncO. 

Beeumanolr,  definition  of  the  thxce  eon- 
ditlons  of  men  by,  i.  196-196. 

Bedford  (duke  of)  regent  for  Henry  YI., 
i.  85—  bis  character,  ib.  —  his  raccesees 
in  France,  ib.  —  orerthrow  of  lili  forcef 
by  Joan  of  Are,  87. 

Belgrade,  f^iege  and  relief  of,  i.  682. 

Benedict  XI.  reconciles  Philip  the  Fair 
to  the  holy  nee.  ii.  29—  he  lescinda  the 
bulli  of  Boniface  VIII.,  80. 

Benedict  XIT.,  purport  of  hii  letter  to 
Edward  HI.,  L  61,  no«  —  hit  rapacity, 
il.84. 

Benedict  XIII.  elected  pope  by  the 
Avignon  cardinal*,  ii.  88  —  deposed 
by  Uie  council  of  Piaa,  89  —  Spain  sup- 
ports him.  ib. 

Benedictineti,  exemplary  agricultural  la* 
bora  of  the,  ii.  648,  note  *. 

Benefices,  grants  of  land  so  called,  i.  161 
—  condidons  annexed  to  them.  ib. — 
their  extent,  162  and  note — their  char- 
acter under  Charlemane  and  Louis 
the  Debonair,  808—  Tiews  of  yarions 
writen  concerning  their  nature,  308- 
806  —  character  of  hereditary  bene- 
fices, 810  —  their  regeneretiTe  eflects 
upon  the  French  people,  ib. 

BeneTOlences,  by  whom  fint  leried  in 
England,  ii.  809. 

Berenger  I.  and  II.    See  Italy. 

Bcrmudo  III  (king  of  ieon),  killed  in 
battle,  i.  488. 

Bernard  (grandson  of  Charlemagne),  de- 
prired  <^  sig^t  by  judicial  sentence,  i. 

Berry  (duke  of),  appointed  goardian  of 
Charles  VI.,  i.  74  —  his  character,  77. 

Blanchi.    See  Supentitions. 

Blanchi  and  Ken,  Actions  ot  L  887, 11. 
627. 

Blgod  (Roger,  earl  of  Norfolk),  patriotism 
of,  ii.  214. 

Bills.    See  Parliament 

Birth,  privileges  of.    See  Nobility. 

Bishops.    See  Church,  Clergy. 

Blanchard  (Alain),  uojustifiable  execu- 
tion of,  i.  91. 

Blanche  of  Castile,  acts  as  regent  during 
the  minority  of  Louis  IX.,  i.  42  —  quells 
the  rabelllon  of  the  barons,  tb.  —  in- 
stance of  her  nndoa  influence  over 
Louis.  44. 

Boecacdo,  occasion  of  the  Decamerone 
of,  i.  67,  note"^  —appointed  to  lectttra 
on  Dante,  ii.  680. 

Boccanegra  (Simon),  first  doge  of  Qeaoa, 
story  of  the  election  of,  i.  4ijB3. 

Boetaad.  natan  of,  iL  8^198. 


BUROUITDIANB. 

Bohemia,  nature  of  its  connection  irilh 
Germany,  i.  677  — its  polity,  ib  —  th« 
Hussite  controTsny  and  its  result*. 
678,  679 

Bohun  (Humphrey,  earl  of  Hereford), 
patriotism  of,  ii.  216. 

Boliogbroke  (earl  of  Derby  and  duke 
of  Hereford),  made  lord  apiellant, 
U.  279  —  he  sides  with  the  king.  281  — 
his  quarrel  with  the  duke  of  Norfolk, 
286—  advantage  taken  of  it  by  Mchard 
II  .  286  and  iro«i  — his  sccenion  to 
the  throne,  288.    See  Hrnry  IV. 

Bolognese  law-schools,  ii.  699. 

BonifiicetSt.).    See  Winfiid. 

Boniface  VIII.  suppected  of  fraud  towards 
Celrstine  V.,  ii.  26  — bis  extravagant 
pretensions,  tb.  and  note  —  disregani  of 
his  bulls  by  Edward  I.,  26  — his  dis- 
putes with  Philip  the  Fab',  27.  29  — 
snocefs  of  Philip^s  stratagem  against 
him,  29—  his  death,  tb.  —  recclndment 
of  his  bulls,  80— Ockbam's  dialogue 
against  bhu,  33,  note  i  —  rejectiou  ol  ^b 
supremacy  by  the  EngUf^h  barons,  85 

Boniface  IX  ,  elected  pope,  ii.  8S  — his 
traffic  in  benefices,  41.  42  —  his  rapae- 
ity  in  England  checked,  46,46. 

Books  and  booksetlen.    See  Leamlnc. 

Boroughs.  See  Municipal  Institutions, 
Parliament,  Towns. 

Braccio  di  Montone,  rivalry  of,  with 
Sfor»,i  461,462. 

Brienne  (Walter  de,  duke  of  Athens), 
invested  with  extreme  powen  in  Flor- 
ence, i.  411  —  his  tyranny  and  ex* 
ceases,  412  —  his  overthrow,  ib 

Britany.  origin  of  the  people  of,  I.  106 
and  iioff* — grant  of  the  duchy  to 
Montfort,  ib. — its  annexation  to  the 
crown,  107  —  alleged  existence  of  a 
king  of  Britany,  109  —  right  of  its 
dukes  to  coin  money,  204. 

Brunehaut,  queen  of  Austraria,  i.  19 — 
her  character  and  conduct,  iiol«  19,  20 

—  her  mayor,  Protadius,  120  —  her 
scheme  of  government,  122  —  she  fklla 
into  the  hands  of  ClotsJre  II.,  and  is 
sentenced  to  death,  124—  cause  of  her 
overthrow,  note  169,  286,  8U0  —  pope 
Grpgnry  I.^s  adnlation  towards  her,  I. 
634,  note  \ 

Buchan    (earl  oOi    mads  constable  of 

France,  i.  86. 
Burdett  (Thomas),  cause  of  the  exeeaUon 

of,  ii.  898  and  note  >. 
Burgesses     See  Parliament. 
Bttivesses  of  the  palisades,  origlB  of  tite, 

tiorgnndlans.  Roman  provinces  ocenpied 
by  the,  1. 16  —  their  tolerance.  17,  note* 

—  their  mode  of  dividing  eonqoered 
provinces,  161  —  elncldatoiy  obssrva- 
tioBi  thereon,  868, 271. 


INDEX. 


671 


BUBOUNDT. 

Bmgaady  (Biidts,  dnks  of),  nndertakei 
the  protection  of  hii  niece  Jane,  L  57 

—  he  betnys  her  cause,  i6. 
Borgnndy  (duke  of),  named  goaidlan  of 

Charlee  VL,  i.  74  — loees  his  a«cen« 
dency  over  the  king,  78 — regains  it, 
i».— his  death,  79. 
Burgundy  {John,  duke  of, "  Sans-peur  **). 
assassinates  the  duke  of  Orleans,  1. 79 
— his  supposed  proTocation,  ib. ,  nou  — 
obtains  pirdon  for  the  crime,  80  —  oon- 
sequence  of  his  reconciliation  irith  the 
court,  ib.  —  is  assassinated,  81  and  nole 

—  his  defimt  at  Micopolis,  607,  not*  *. 
Burgundy  ( PAi/tp^uke  df),  allies  him- 
self with  Ilcnry  v. ,  i  83  —  his  Vxeoch 

SredilecUons,  89  —  and  treaty  with 
harles  VII.,  «&.,  97,  96  — splendor  of 
his  court,  98  — jealousy  of  hi^  sulbtjecti 
concerning  taxation,  100,  note  K 
Burgundy  (Charles,  duke  of),  character 
and  ambitions  designs  of;  1.  98  and 
n«l«,  99— his  contumacious  subjects,  99 

—  l&ls  rash  enterprises  and  failures,  100 

—  is  delbated  and  Ullod,  ib.  —  advea* 
tures  of  ids  diamond,  101,  note. 

Burgundy  (itfory.  duchess  of),  defends 
her  rights  ajuinst  Louis  xr.,  i.  100 
and  notes,  102 — marries  MailmilJan  of 
Austria;  her  death,  103. 

CabaUeros  of  Spain,  prltileges  enjoyed  1^ 
the,  1.  491. 

0alal8.ali{jeet  condition  of  the  ciUiens  oi; 
i.  68,  note  ^  —  terms  of  instrument! 
signed  there,  09. 

Callxtins,  tenets  of  the,  I.  679. 

Calixtns  II.  (pope),  oompromlae  cflected 
by,  i.  658  —  he  abolishes  feudal  seirioes 

•  by  bishops,  659. 

CftlTerley(3ir  Hugh),  oliaracteTistic  anee- 
dote  of,  i.  71 

Cambridge  nnlTerslty,  first  mention  of, 
11607,  iMM^ 

Canon  law,  promulgation  of  the,  U.  2 — 
its  study  nude  imperatlTe,  8 

Oapet  (Hugh),  usurnation  of  the  French 
throne  by,  I.  30,  81  —antiquity  of  his 
fkmily,80.iioi«'— state  of  Franoe  at 
his  accession,  85 — opposition  to,  and 
ultimate  reccgnltion  of  his  authority, 
ib.  and  note  *  —  period  of  his  assumption 
of  regal  power,  183 — degree  of  author- 
ity exercised  by  his  immediate  descend- 
ants, 88, 140 —his  sources  of  rerenue, 
907. 

Ctipitulariet,  what  they  were,  i.  218  — 
their  latest  date,  215  and  note. 

Caraeeioll,  fliroriie  of  Joanna  11.  of 
Maples,  i.  469  —his  Msassinatton,  471, 
noie. 

Carloman,  Inheritance  of  the  ehildren 
of,  usurped  by  Charlemagne,  i.  28, 
noUK 


CHABLBKAORB. 

Carioflngian  dynasty,  extinctkn  of  the, 
1.81. 

Carrara  (Francesco  da),  Verona  seised  by, 
i.  446— killed  in  prison,  i6. 

Csjrroccio,  the,  i  448  und  note  *. 

CattiJe  and  Leon  united  into  one  kinc- 
dom,  I.  488  — their  subsequent  redivi- 
sion  and  rennion,49S2,  498— couiposi* 
tlon  and  character  of  the  cortes  of 
Castile  l^see  Cortes],  the  council  and 
Its  fiinctions,515,5l6 — administration 
of  Justice,  610  —  YlohiUons  of  law  by 
the  kings,  517  —  coufedemcies  of  the 
nobility,  618  —  similarity  of  its  polity 
to  that  of  England,  519 — establishment 
of  athes  in  CastLc,  eSO,  note  >. 

Castle,  graphic  description  of  a,  1.  812. 

Castrucdo,  Csstrucani,  succem  of,  1.  896;. 

Catalonia,  character  of  the  people  of,  L 
587  —  severity  of  the  state  of  TiUenage 
there,  tb.^note*. 

Catharists,  religious  tenets  held  by  the, 
ii.  570. 

Catholics,  treatment  of  the,  by  tibeb 
Gothic  conquerors,  1.  17,  note  *. 

Cava  (count  Julian's  daiwhter),  legend 
of  the  seduction  of,  1.  641. 

Oelwtine  V..  bund  of  Boniftoe  VIU.  to- 
wards, 11.  25. 

Champs  de  Mars.    See  Field  of  March. 

Charlemagne,  reunion  of  the  Fmnkish 
empire  under,  1. 28  and  note  ^  —  his  Tk- 
toTies  In  Italy  and  Spain,  28,  24— ob- 
stinate resistance  and  ultimate  sub- 
mission of  the  Saxons  to  his  rule,  24  — 
his  Sclavonian  conquests,  ifr. — extent 
of  his  dominions,  ib.  —  his  coronation 
as  emperor,  25  and  note  *  —  its  conse- 
quences, 26 —  his  intellectual  acquire 
ments  and  dom«>tiG  improTements, 
tb.  and  note  ^  —  his  Tiees,  cruelties,  re- 
ligious edicts,  26  —  his  sons  and  suc- 
cessors, 27  —  his  control  over  the  clergy, 
29 — degeneracy  of  his  deKoendants^O 

—  state  of  the  people  under  his  rule, 
81  —  his  dread  of  the  Normaai,  83  -  his 
alleged  election  by  the  Romans  as  em- 
peror dLsrussed,  123-129  —  question  of 
succession  iuTolTed  in  his  elevation  to 
the  imperial  title,  129,  180  —his  wise 
provisions  relative  to  fugitive serfr,  197, 
note  *  —  his  revenue  how  raised,  W6  — 
peculiarities  of  his  legislative  assem- 
Dlies,  212,218  —French  Ignorance  of 
his  character  In  the  14th  century,  224 

—  his  capitulary  relative  to  tithes, 
619,  620,  note*  —  his  authority  over 
the  popes,  652 — state  of  his  education, 
IL  80  and  note  ^  —  his  library,  86, 
note  —  his  encoungement  of  ordeals, 
87  — his  agricultum]  colonies,  619  — 
public  schools  in  France  due  to  htm, 
602— beoQBMf  %  dlselple  of  Alouin, 
#08. 


672 


INDEX. 


CBASLB8  THB  BAD. 

Charted  the  Bad.    SeeCharleiofNaTana. 

Charles  the  Bald,  nhare  of  empire  allot- 
ted to,  i.  29,  aud  note  on  p.  90  —  ramgM 
of  the  Nomianii  during  his  reign,  84  — 
hla  imhecile  government  and  its  conse- 
quouces,  139  — his  slaTish  sabmisslon 
to  the  church,  029,  680 —  he  disobeys 
pope  Adrian  II.,  64h5. 

Charles  the  Fat,  accession  and  depoeitioa 
of;  i.  80  — position  of  Germany  at  his 
death,  646 — arrogance  of  pope  John 
VIU.  towards  him,  646. 

Charles  the  Simple,  pohcy  of,  towazds  the 
Normans,  i.  34. 

Charles  IV.  (the  Fair),  ascends  the  thxone 
pursuant  to  the  Salic  law.  1.  69 — con- 
duct of  JBdward  UL  of  ^igland  after 
his  death,  ib. 

Charles  V.  (the  Wise),  submits  to  the 
peace  of  Bretignl,  i.  68  —  his  summons 
to  Edward  the  Black  Prince,  72— his 
treaty  with  Henry  of  Castile,  t6. ,  nou* 

[  .—  his  successes  against  4he  Bnglish,  78 
—  his  premature  death  and  character, 

i  74,  75  — seizure  of  his  treasures  by  the 
duke  of  Aqjou,  74— expenses  of  his 
household,  77,  note  <  —  his  conflicts 
with  the  States-General,  227,  228  — he 
is^MMes  taxes  without  Uieir  consent, 

Charles  VI.,  accession  of;  i.  74 —state  of 
France  during  his  reini,  76  —  deltets 
the  citiaens  of  Ghent,  T6  —  misapplica- 
tion of  taxes  during  his  minority,  77 
and  note  ^  —  his  mixure  with  insanity, 
78  -  -  disgraceful  conduct  of  his  queen, 
ib.  and  note  —  his  death,  86  — his  sub- 
mission to  the  remonstrances  of  the 
States-General,  228. 

Charles  VII.,  state  of  France  at  the 
accession  of,  L  86— his  ImpoTerished 
exchequer,  86— his  Scotch  auxiliaries, 
ib.—  his  character  and  choice  of  IkTor- 
Ites,  87  —  change  wrought  in  his  for- 
tunes by  Joan  of  Arr,  87*  88  —  his  con- 
nection with  Agnes  Sorel,  88,nol<ri> — 
restores  Richeniont  to  power,  89  — la 
nHH>ncilod  with  the  duke  of  Burgundy, 
90 — re-conquers  the  proTlnces  c«ded  to 
the  English  crown,  91  —  his  cruelty  to 
English  captives,  92 — consolidation  of 
his  power,  98 —  insurrection  of  Ouienne 
against  taxation,  93  and  note—  his 
conduct  relative  to  the  States-General, 
229  —  he  levies  taxes  of  his  own  will, 
230 — he  enacts  the  Pngmatic  Sanction 
of  Bourges,  ii.  60. 

Charles  VIII  ,  acceB.<ion  of,  1. 104  —  con- 
te<tt  for  the  regency  during  hi«  minor- 
ity, tb.  231  —  marries  Anne  of  Britany, 
106  —  consolidation  of  the  French  mon- 
archy under  his  sway,  107  and  notes — 
£roceedIogs  of  the  States-Qenaral  dux^ 
ig  his  minority,  281, 282. 


CRITALRT. 

ChariM  of  Ai^u  (I.  of  Naples),  sdnre  of 
the  crown  of  Naples  by,  i.  391 — he  puts 
Conradin,  the  heir,  to  death,  392—  ha 
defeats  the  Ghlbeiins  and  governs  Tus- 
cany, ib.  and  note  —  revolt  of  his  sub- 
jects, 896. 

Charlies  II  of  Naples,  war  of  the  Sicilians 
against,  L  466— his  death,  ift. 

Charles  of  Burano  (III.  of  Naples),  im- 
plicated in  the  murder  of  Andrew,  1. 
466,  note^ — puts  queen  Joanna  to 
death,  467  —  his  asasasination,  468. 

Charles  IV.  of  Gemiaoy,  singular  char- 
acter of,  i.  662, 668—  his  Golden  Bull, 
668  and  664  note^—he  alienates  the 
imperial  domalna,  671 — advancement 
of  Bohemia  under  his  rule,  670. 

Charles  Martel,  conquest  of  the  Saracens 
by,  i.  20— die  and  Importance  of  the 
battle,  ib,  ->  Its  ol^eet,  26  —  his  spoll»- 
tion  of  the  church.  621. 

Charles  of  Navarre  (the  Bad)  tumults  In 
Fiance  excited  by,  I.  66  —  his  crimes, 
lb.  —  allies  hhnaelf  with  Edward  UI.,  ib. 

Chartered  towns.  See  Municipal  Inatl- 
tutions,  Towna. 

Chancer  (Geoflngr),  testlniony  borne  I7 
his  writings,  U.  861,  nou — character  of 
his  works,  687, 688. 

Chaucer  (Sir  Thomas),  rebuked  by  Henry 

IV.,  a.  aoi. 

Childebert  (son  of  Clovls),  dominlona  al- 
lotted to, i.  18  and  note* — ht«  propo- 
sal relative  to  Clodomlr's  children,  802, 
note. 

Chitderick  III.,  deporitlon  of,  I.  21. 

Children,  crusade  undertaken  by,  11.  488, 
note*.  ■ 

Chilperfe,  guilty  conduct  ^of  Fredegonde^ 
the  queen  of,  I.  19,  124 — oppressire 
taxes  leried  bv  him,  297  —  tumult 
wliieh  ensued,  t6. —  what  fbllowed  after 
his  death,  f&. — his  attempts  at  poetxy, 
11.  476  — his  attack  on  the  sanctuaiy, 
496. 

Chiumeys.    See  Architecture. 

Chivalry  as  a  school  of  moral  dlsd|>Une, 
ii.  676 —  remoteness  of  its  origin,  16.  — 
individual  honor  Its  keystone,  678  — 
types  of  chivaliy,  679  and  note  >  —  Its 
or^nal  connection  with  feudal  ser- 
vice, 679 — eflect  of  the  crusades,  680 

—  its  connection  with  reHgi<m,  680  681 

—  enthusiasm  Inspired  by  pUbuatxy, 
661,  688— licentiousness  Incident  to 
chivalry, 664 — virtues  inculcated  by  it, 
686 — practice  of  courtesy,  Ubenilty. 
and  Justke,  686,  688  —  obligations  of 
chivair}-  to  the  E^st,  688  —  its  attendant 
evils,  fiB9  — education  preparatory  to 
knighthood,  690— chivalrlo  fcsUvals, 

691  —  tournaments  and  thdr  daugers, 

692  —  privileges  of  knighthood,  w.  — 
who  wm  ndinlHihto  thento,  698^  and 


INDEX. 


673 


CfHRISTlANITT. 

note  —  military  serrice:  kaights  and 
bachelors,  6M  and  notes  —  oatmfl  of  the 
decline  of  chiTalry,  695  —  influences 
by  which  it  was  snperaeded,  598  and 
no(«>. 

Christianity,  impetus  glren  to  the  for- 
nutUon  of  cirie  institutions  by,  i  123  — 
its  beneficial  effect  upon  the  Norman;*, 
140. 

Church,  wealth  of  the,  nnder  the  empire, 
i.  614  —  its  position  after  the  irruption 
of  the  barbarians,  G15  —  source  of  its 
legitimate  wealth,  616— its  religious 
extortions,  617  —  prlrilegej  attached  to 

'  its  property,  618  —  institution  of  tithes, 
618-320  and  notes  -  liability  of  church 
property  to  spoliation,  620  —origin  of 
preeari/B,  620,  note  *  —  extent  of  the 
church's  landed  potjiessions,  621  and 
note^ — it«  participation  in  the  admin- 
istration of  justice,  622  —limitations  in- 
terposed by  Justinian,  628,  624  — its 
political  influence,  626 — source  there  )f, 
626  —  its  subtJeution  to  the  state,  tb.  — 
Oharlemagne^s  edicts  relative  to  ite  af- 
fldrs,  627,  628  and  notes  —  its  assump- 
tion of  authority  over  the  French 
kings,  628,  630  —  obsequiousneM  of 
Sngland  to  Its  pretensions,  631 — inves- 
titure of  ltd  bishops  with  their  tempo- 
ralities, 651— their  simoniaeal  practices, 
652  and  note  *  —  canons  and  chapters, 
661  —  liberties  of  the  Qallican  church, 
U.  51  —  high  church  principles  always 
dangeron^i,  52,  note  «  —  privileges  of 
■anctovyi  494, 495.  See  Clergy,  Mon- 
asteries, Papal  Power. 

Clan  service  not  based  on  feudality,  i. 
183. 

Clarence  (duke  of),  pat  to  death  by  Ed- 
wardIV.,ii.  898. 

Clarendon,  constitutions  of,  iL  19  -~  their 
influence  on  Thomas  Jt  Becket's  quarrel 
with  Henry  XL.  21. 

CIstertLin  monk,  blasphemous  saying  at- 
tributed to  a,  I.  41,  note  K 

Cities  See  Municipal  Institntlons  and 
Towns. 

Civil  Law.    See  Laws. 

Clement  lY.,  effect  of  a  boll  promulgated 
by,  ii.  18  — opposition  of  the  Scotch 
king  to  his  edict,  15. 

Clement  Y.  ratifies  Robertas  claim  to  the 
crown  of  Naples,  1.  465  —  his  maxim 
relative  to  benefices,  Ii.  18^  he  re- 
moTee  the  papal  conrt  to  Arignon,  80 
—  his  contests  with  the  emperor  Louis, 
t6.  —  England  remonstrates  with  him, 
84,  85,  noi^'J  — his  oatmgeoos  edict 
against  Yenlce,  65. 

Clement  VI.  acquits  Joanna  of  Naples  of 
murder,  i.  467  —  his  Ucentiousneas,  U. 
84. 

Clement  YU.,  cironmitanowi  ralatlTS  to 


OLOTIB. 

Us  election  as  pope,  11. 87  —  dlylsSon  of 
the  pap  icy  thereupon ,  83  —  proceedings 
after  his  death.  89,  8^. 
Clergy,  ascendency  of  the  (temp.  Charlee 
the  Bald),  i.  189  —  their  priTileges  under 
the  fbndal  system,  194, 195  — fighUng 
prelates,  194,  note^  —  their  parucipv 
tion  In  legislative  prooeedinga.  211,218 
— 'privileges  of  their  tenants,  807  — 
blahops  In  Lombanly  and  their  tem- 
poralities. 852,  858  and  note  ^  —  sha^^ 
of  the  citinns  in  their  election,  833 
and  note*  —  a  robber  archbishop, 573 

—  immense  territorial  possessions  of 
the  clergy,  621,  622  and  tto<«.9  — their 
acquisition  of  political  power,  625, 626 

—  their  neglect  of  the  rule  of  celibacy. 
647,  648  —  Bulbrings  of  the  married 
denry,  648  and  fiole*  —  lax  morality 
of  the  English  clergy,  640,  650,  notes 

—  practice  of  simony ,  650 — consent  of 
the  l^ty  required  in  the  election  of 
blHhops,  tb.  —  interftrenoe  of  the  sove- 
reigns therein,  651  and  note  s  —  charae« 
ter  of  the  clergy  of  Milan,  657,  note  >  — 
taxation  of  the  clergy  by  the  kings,  ii. 
14  —  tribute  levied  on  them  by  the 

£>pes,  14, 15  —  their  dIsafiSection  towards 
ome,  16  —  their  exemption  teom  tem- 
poral Jurisdiction,  16,  19  —  extortions 
of  Edward  1^26— effects  of  VYicUfT's 
principles,  4i — priests  executed  for 
coining,  ab.,  note  *  —  spiritual  peers  in 
the  English  parliament,  216,  217  — 
their  qualifications,  826  —  clergy  sum- 
moned to  send  representatlTcs,  834  — 
cause  of  their  being  summoned,  835  — 
result  of  their  segregating  themselves 
firom  the  commons,  886  —  Instances 
of  their  parliamentary  existence, 
883,  840  — right  of  bishops  to  be 
tried  by  the  peers,  402, 405  — InedlsBTsi 
clergy  not  supporters  of  despotinn, 
458  —  Iheir  ignorance  of  letters,  480, 
482—  their  monastic  vices,  496— why 
a  bishop  made  a  Danish  nobleman 
drunk,  498,  note  *.  See  Church,  Mon- 
asteries, Papal  Power,  Superstition. 

ClisHon  (constable  de).  Immense  wealth 
amassed  by,  i.  78. 

Clodomir  (son  of  Clovls),  dominSoDS  al- 
lotted to,  i.  18  — proposed  altemative 
relative  to  his  children,  802,  note. 

Clotaire,  portion  of  dominions  allotted  to, 
1. 18  —  union  of  the  whole  under  hfan, 
19  —  redivision  amongst  his  sons,  ib.  — 
criminality  of  his  chsncter,  128L 

Clotaire  II. ,  reunion  of  the  French  do- 
minions under,  I  79 — nature  of  ths 
authority  exercised  by  him,  122. 

Clotilda  converts  her  husband  to  Christi- 
anity, 1.  17  —  her  sons,  18. 

Clovis  Invades  <3aal  and  defeats  Syagrius, 
1. 16— aoospts  ths  titls  of  consol,  ib. 


VOL.  II.  —  M 


48 


674 


vnyBX. 


CL0TI8  n. 

and  noU  *  —  deffMti  the  Akmanni,  16 

—  his  coDTenioD  to  ChiiBtknity,  it  — 
defeats  Alarie,  t6.  —  hi*  last  exploits 
and  sanguinary  policy,  18  and  note  i  — 
dirifilon  of  hia  dominions  amongst  bis 
sons,  18  and  no(e«  — the  last  of  his 
race,  21  —  his  alleged  subjection  to  the 
emperors  dbcossed,  note  111.,  Ill,  117 

—  his  limited  authority :  storv  of  the 
Tase  of  Bolmons,  157  —  theory  built  on 
the  story,  2»2,  298  —  crimes  of  hhnself 
and  his  grandson,  ii.  496  and  note  K 

CloTis  II.,  accession  of.  i.  121 

Cobbam,  lord  {temp.  Richard  II.),  ban- 
Uhed,  ii.  284. 

Coining,  extensive  practice  of,  amongst 
the  French  nobles,  i.  208  —  debawd 
money  issued  by  them,  204  —  sys- 
temaUo  adulteration  of  coin  by  (he 
kings,  208 ,  226 ,  227  —  measures  adopted 
Ibr  remedying  these  ftauds,  2C9,  note  ^ 

—  grant  of  taxes  made  conditional  on 
xestoration  of  the  coin.  226  — priests 
executed  for  coining,  ii.  47,  note*  — 
an  abbot  hanged  for  the  same  ofienee, 
408  —  clipping  of  c<dns  by  the  Jews, 
666,  note  >. 

Cologne,  anUqaity  of  the  municipal  in- 
stitutions of,  i.  888. 

Coloni,  characteristiet  and  pilTileget  of 
the,  i.  816. 

Combat    See  Trial. 

Comines  [Philip  deljeharaeteristic note 
on  taxation  bv,  i.  281. 

Commodianus,  literaTy  remains  of,  ft.  475 
—specimen  thereof,  tfr.,  noU  \ 

Comnenus.    See  Alexius. 

Conrad  (duke  of  Franconla),  eleeted  em- 
peror of  Qermany ,  1.  546. 

Conrad  II.  (the  Salic), important ediot of, 
relatire  to  feuds,  i.  167,  168  and  notes 

—  elected  emperor  of  Germany,  547  — 
hia  ancestry.  t6.,  note  *. 

Conrad  III.  Joins  in  the  second  crusade, 
1.  49 — eleeted  emperor  of  Gkrmany, 
660,561. 

Conrad  IV.,  accession  of,  1.  877  — his 
struggles  for  dominion  in  Italy,  and 
death,  «b.  —  his  difflculties  hi  Germany, 
654. 

Conradin  (son  of  Conrad  IT.  )attanpts  to 
regain  his  inheritance,  i.  891  —  put  to 
death  by  Charles  of  Anjou,  892. 

Constance,  council  of.    See  CoundL 

Constance,  txeatT  of,  i.  864. 

Constantino  T.  dethroned  by  hia  mother. 
1. 127. 

Constantinople,  adTantageous  posltioB 
of,  i.  600— its  resistance  to  the  Moslem 
assaults,  601  —ito  capture  by  the  Lat- 
ins, 604  —  its  magnifleenre  and  popu- 
lousnera,  604,  606  —  Vandalism  of  Its 
conquerors,  605  —  Its  leeantare  by  the 
at«AB8,606— beriiged  l^agiMC,  607, 


CBU8ADB8. 

and  by  Amaiath»  610— attacked  bj 
Mahomet  II.,  t».  — Its  ftll,  i».,6U  — 
unrealised  schemes  for  ita  xeooTeiy, 
612,613. 

Constitution  of  England.  See  Engtiah 
Constitution. 

Cordora  taken  from  the  Moors,  i.  488  — 
its  extent  and  wealth,  t6.,  wife*. 

Com.    See  Agriculture,  Tnide. 

Cortes  of  CawtUe,  original  composition  of 
the,  i.  608  — dwhadUng  down  of  their 
numbers,  5C4  —  their  remonstrance 
against  corruption,  605  —  spiritual  and 
temporal  nobility,  606, 606 and  notet — 
control  of  the  Cortes  over  the  taxes,  607, 
508  — their  resolute  defence  of  their 
righ  t,  6('9 — their  control  over  expendl- 
tuxv,  A.— its  actiTe  exercise,  610 — 
their  forms  of  procedure,  611  —  their 
legislatiTe  rights,  and  attempted  limiti^ 
tions  thereon  by  the  kings,  611-614 — 
thdr  right  to  a  Toke  In  the  disposal  of 
the  crown,  616, 616  —  position  of  the 
clergy  therein,  Ii.  311,  fiete. 

Corrinus  (Matthias)  elected  king  of  Hun- 
gary,  1.  662  —  his  patronage  of  litera- 
ture. 688  and  note  K 

Councu  of  Basle,  enmity  of  the,  townrda 
the  papal  court,  ii.  42,  48— reforms 
eflBwted  b;r  It,  44  and  ael«— ita  indis- 
cretions, c6.  and  46,  nous  *  *. 

Council  of  Constance  condemns  John 
Huss  and  Jerome  of  Prague  to  be 
burned,  i.  579  —  deposes^ohn  XXIII., 
ii.  89 — preponderance  of  Italian  inter- 
ests therein,  40  — French  oppodtktn  to 
the  English  deputies,  f^.,  iio/s^—  tac- 
tics of  the  caidlnals,  42  —  national 
diTisions  In  the  council,  tb.  —  Its  breach 
of  fldth  relatire  to  Uusa  and  Jerosne 
canrassed,  46  and  note. 

Council  of  Frankfort  ccmToked  by  Saint 
Bonilkce,  i.  637  — its  tmportaace  in 
papal  hlstoiy,  ib. 

Council  of  Lyons,  1.  877, 664. 

Council  of  PaTia,  U.  284. 

Council  of  Pisa,  proeeedlnp  at  ttia,  B. 
89. 

Cours  pl^niires.  character  tt  the,  1. 217. 

Courtney  (arehDlshop)^  despoiled  of  hia 
temporalities,  Ii.  273. 

Crecy,  battle  of,  i.  64. 

Creecentius  put  to  death  by  Otho  III.,  I. 
347  and  note. 

Crusades,  origin  of  the,  i.  46  — eDercetSo 
appeals  of  Peter  the  Hermit,  46— 
inducements  otknd  to  those  who 
Joined  In  them,  47  — crimes  and  ml8> 
eriea  attendant  on  them,  48— rcsnltt 
of  the  Arst  crusade,  49— second  cni- 
Bade,  tfr.  — Its  ftilnra,  A  and  notes'— 
ori|^  of  the  third  cmaade,  61  — Ita 
ftmoos  commanders  and  IneoneluriTe 
naoUi,  «6.— eiaaadai  of  St.  Laoia  and 


INDEX 


676 


CTPRTAV. 

their  mltftmble  ending,  62  and  nod  — 
caiMe  of  the  ceeaaUoo  of  enuades,  ii. 
497  —  their  demormllslng  influence,  499. 
Cypr'ai'A  vieirs  relative  to  church  goT* 
eruiuent,  1.  631,  no<«*— further  ob- 
■erTatloiu  thereon,  U.  61, 62. 

Dagobert  f.,  Indgnlflcanee  of  the  tucces- 
aors  of,  I.  20  —  nature  of  the  authority 
exercised' by  him,  124  —  progreM  of  the 
arte  In  his  reign,  126. 

Dagobert  IE.,  name  of,  bow  restored  to 
history,  I.  117. 

Dameneas,  degenerai^  of  the  khalift  ot, 
i   69<5,597. 

Danes,  Kugland  Ant  Infteted  by  the,L 
88 

Dante  Allghierl  expelled  from  TlorencOf 
L  887 -his  birth,  ii.  627  — stvle  of 
his  Vita  NuoTa,  t6.,  note  —  charae- 
terbtics  of  his  ereat  poem,  628,  629— 
•nthusiasm  which  attended  its  pab- 
lieatlon,  639. 

Danphlnft  annexed  to  the  French  crown, 
1. 107  —  Its  origin,  ffr.,  nou  *, 

Defiance,  institution  of  the  right  of,  1. 
673  —  Its  abolition,  678. 

De  la  Hare  (Peter),  opposee  the  doke  of 
Lancaster,  11. 264  —  conduct  of  the  citl- 
aens  on  his  Imprisonment, 265 —elected 
speaker  of  the  commons,  266. 

Delia  Bella  (Uisno),  Improves  the  Floren- 
tine constitution,  1.406 — drifen  Into 
exile,  4091 

Derby  (earl  of).    See  BoUngbroke. 

Diet.    Bee  Council. 

Diet  of  Worms,  important  changes  effect- 
ed by  the,  I.  671  —  abolishes  the  right 
of  defiance,  578  —  establishes  the  Impe- 
rial chamber.  574-676. 

Domesday  Book,  origin  of  the  term,  11. 
660,  «•!« ». 

Domestic  lllb  In  the  middle  ages,  IL  681- 
68&  —  iocome  and  style  of  llTlog,  657. 

Dooiriafi  (eari  of )  aids  Charles  VII..  i.  86. 

Duemoir,  Introduction  of  the  practice  of, 
U.  48i  and  note  K 

Du  Ouesclln  (Bertrand),  proceeds  to  Cas- 
tile, i.  67  — his  character.  78— he 
serTCS  egalnst  Peter  the  cruel,  496  —  Is 
taken  prisoner,  »6. 

Danstan  and  Odo,  and  their  txeatmeot  of 
Bdwy  and  Blglra,  1.  631  —  elucidatoiy 
remarks  relative  thereto,  U.  58-61. 

BsrI,  origin  of  the  title  of,  II.  68,  noU  *. 
Sbroln,  exercise  of  sapreme  power  by, 

1. 39, 119. 125. 
Bocelln  da  Romano,  tyrannic  exercise  of 

C»wer  by,  1. 874  —  pretexts  to  which  his 
famoas  cruelty  gave  birth.  875,  nou  ^ 
—  his  (all,  891. 
Seelesiastieal  jurlsdlctloii.    Bee  Ohvreh, 
OlMgy,  Papal  Powicw 


BKOLAND. 

Edessa,  extent  of  the  principality  a(  L  M 
and  Hott^. 

Sdward  the  Conftssor,  popularity  of  the 
laws  of,  U.  114, 189. 

Edward  L  offends  Philip  IT.  of  Trance^ 
1.  54  and  note — his  brother  Edmnnd 
outwitted  by  PhlUp,  t6.  —  he  curbs  the 
power  of  the  clervyt  Ii  22  —  his  tyrannr 
towards  them,  26  —  his  reign  a  consti- 
tutional enoch,  218  —  his  despotfe  ten- 
di'ncies,  214  —  he  confirms  the  charters, 
215  and  note  *. 

Edward  ll.marriee  Isabel  of  France,  L  66 

—  he  yields  to  the  pope,  Ii.  86. 
Edward  III.  lays  claim  to  the  French 

throne,  L  69  —  its  injustice  shown,  ib, 
and  note  —  his  policy  prior  to  resorting 
to  arms,  60  —  his  chances  of  success, 
'61  — attempt  of  the  pope  to  dissuade 
him  from  the  attempt,  t6.,  note —  prin- 
cipal features  in  his  ctiaracter,  62  —  ex- 
tent of  his  resources,  63,  (M,  and  notes 

—  excellence  of  his  armies.  64  and  note 

—  his  acquisition  after  the  battles  of 
Crecy  and  Poitiers,  65  — his  alliance 
with  Charles  the  Bad,  66  —  conditions 
of  the  peace  of  Bretignl,  68— his  stip- 
ulation reiatire  to  Aquitaine,  71  and 
note  1  —  his  rerersee  and  their  causes, 
71, 72,  and  notes — his  opposition  to  the 
pope,  ii.  85  — progress  of  parliament 
under  him,  261  —  his  attempts  at  en- 
croachment, 258-265 — ascendency  of 
Lsncaster  and  Alice  Perrers  over  nim, 
263  —  ordinance  agsinst  Alice,  264-  re- 
peal thereof,  265 —  revival  of  the  proee- 
cutlon  sgalnst  her,  266  and  note  ^  —  hit 
debts  to  ItaUan  bankers,  629.  ' 

Edward  the  Black  Prince,  character  of, 
1.  62  — his  victory  at  Poitiem,  64  — 
created  Prince  of  Aquitaine,  71  —  his 
Impolitic  conduct  in  Ouienne,  72  — 
summoned  before  the  peers  of  France, 
V6.  and  note  ^  —  machinations  relative 
to  his  heir,  11.  268  and  note  >— his 
Jealousy  of  the  duke  of  Lancaster,  264 

—  his  death,  265. 

Edward  IV.  accepts  a  pension  from 
Louis  XI.,  1. 96— his  mllltiiry  force,  ib. , 
«ef«*  —  Louis's  reasons  for  declining 
a  visit  from  him,  97  —  his  accession  to 
the  throne, , a  846— his  inexcusably 
barbarities,  897  —  popularity  of  his 
government, 898 — his  qrstem  of  benev- 
olences, 889. 

EdwT  and  Elghra.    See  Danstan. 

England,  fint  Inftsted  by  the  Danes,!.  88 

—  Its  neoorces  under  Edward  III.,  68; 
64 —causes  of  the  success  of  its  armies, 
65, 86 — high  payment  to  Its  men-at- 
arms,  85,  noU  *  —  discomfiture  of  its 
troops  by  Joan  of  Are,  88  — impolicy 
tooehing  its  rslatioms  with  France,  60 
— defritfid  €f  Us  Ftnoh  posiesilnni 


676 


INDEX* 


EKOUBH. 

by  Charles  yil.,t6.— Ita  obinnkms- 
nesfi  to  the  hierarchy,  681  —its  op- 
poeitlon  to  eccleniMtical  Jnrifdiction, 
ii.  aO-22  —  its  protest  eninst  the  ezao- 
tioDS  of  the  church,  86  uid  notes—' 
its  share  in  the  coancil  of  Constsooe, 
40  and  lutu  * — enactment  of  the  statute 
of  prsemunbe,  46>-efiiect  of  WicUif's 
principles,  47  —  progress  of  the  coun- 
try under  the  Anglo-Saxons  [see  An- 
glo-Saxons] —  its  state  at  the  period  of 
the  Norman  Conquest,  94,  d6  —  fruit- 
less resistance  of  its  people  to  Norman 
rule,  96  and  notes  —  expulsion  of  its 
prelates  and  maltreatment  of  its  no- 
bles, 97  and  note  — attempted  suppres- 
sion of  its  language,  96  and  note  — 
wholesale  spolis^on  of  property,  100  — 
abject  condition  of  English  occupiers, 
100,  101— Tastnees  of  the  Norman  es- 
tates explained,  101,  102— conquered 
Bngland  compared  with  conquered 
Gaul,  102 — forest  devastations  and  for- 
est laws,  106  and  notes — depopulation 
of  the  towns,  104  —  establishment  of 
fpudal  customs,  106  —  preserratlon  of 
the  public  peace,  106  —  difference  be- 
tween feudalism  in  Bngland  and  in 
trance,  107, 106— hatred  by  the  English 
of  the  Normans,  109  —  oppressions  and 
exactions  of  the  Norman  goTemment, 
109.  Ill  —  nature  of  the  toxes  then  ler- 
ied,  111,  112  —  laws  and  charters  of  the 
Nonnan  kings,  118, 114  —  banishment 
of  Longchamp  by  the  barons,  116, 116 

—  establishment  of  Magna  Charta,  116 

—  diffloulty  of  OTerrating  its  value,  117 

—  odtline  of  its  prorisions,  117, 118  — 
eonflrmadon  thweof  by  Henry  III., 
119  —  constitutional  struggles  between 
hhn  and  his  barons,  121, 124  -  limita- 
tlons  on  the  royal  prerogative,  124, 
126,  and  notes  —  institution  of  the  vari- 
ous courts  of  law,  126, 127  —  origin  of 
the  common  law,  128. 180  —  character 
and  defects  of  the  EngUMh  law,  180, 182 

—  hereditary  right  of  the  crown  estab- 
lished, 182, 184  -  legal  position  of  the 
gentry,  184, 186  -  -  causes  of  civil  equal- 
Ity,  180.  189  —  character  of  its  govern- 
ment, 849  —  prerogativeB  of  its  kings, 
849-^  —  mitigation  of  the  forest  laws, 
862  and  note  —  Jurisdiction  of  its  con- 
stable and  marshal,  853,  %4,  and  notes 

—  spirit  of  independence  exhibited  in 
medlseval  ballads,  460, 461— its customi 
farmed  by  Italian  bankers,  629,  note  *. 

Bnglish  constitotionf  character  of  the, 
ii.  864  —  Sir  John  ForteKue^s  doctrine, 
855, 857  —  Hume's  erroneous  views  r^ 
garding  it,  867. 860  -  causes  tending  to 
its  formation.  860  —  effect  of  the  loss  of 
Normandy ,  862  —  real  source  of  English 
freedom,  868  —  pirfaniplas  involTed  In 


FEUDAIm 

the  relationship  between  lords  and 
their  vassals,  t6.  —  right  of  distress  on 
the  king*s  property,  865  —  feudal 
sources  of  constitutional  liberty,  865 

—  Inflnenoe  of  the  nobility,  866  —  salu- 
tary provisions  of  Edward  I.,  870  —  na- 
ture and  gradual  extinction  of  villenage, 
872,882  —  instances  of  regencies  and 
principles  whereon  they  are  founded, 
888, 888  —  doctrine  of  prerogative.  452, 
464.  See  Anglo-Saxons,  England, 
Feudal  System,  Parliament. 

Erigena.    See  Scotus  (John). 
Ethelwolf,  grant  of,  relative  to  tithes,  1. 

620.  note\  11.  67. 
Budes  elected  king  by  the  Franks,  1. 182 

—  his  qualifications  for  the  dicnity,  ib. 
Budes  (duke  of  Burgundy).     Bee  Bur- 
gundy. 

Eudon  signally  deftats  the  Bancens,  I. 
121  —  receives  aid  from  Charles  MarteL 
122. 

Eogenlus  lY.  (cardinal  Julian)  advises 
Uladislaus  to  break  faith  with  Amu- 
rath,  1. 681  —  its  flttal  consequences,  682 

—  other  instances  of  his  perfidy,  ti.  9, 
note  *  --  his  contests  with  the  councils, 
42  —  his  deposition  by  the  ooundl  of 
Basle,  48  and  note  *. 

Euric,  harsh  treatment  of  his  oattudlo 
subjects  by,  i.  17,  note  ■. 

FUse  Deeretals.    See  Tsldors. 

Famines  in  the  middle  ages,  freqnsD^y 
and  extreme  severity  of,  i.  817. 

Felix  v.  (pope),  election  and  supersession 
of,li  48. 

Ferdinand  confirmed  In  his  snooession  to 
the  crown  of  Naples,  I.  478  —  attempt 
of  John  of  Calabria  to  oust  hhn,  ib.  — 
his  odious  rule,  482  and  note, 

Ferdinand  I.  of  Aragon,  Independmee  of 
the  Catalans  towards,  I.  687. 

Ferdinand  II.  of  Aragon  marries  Xsabella 
of  Castile,  i.  501  -  -  they  succeed  to  the 
Castilian  throne,  ib.  —  Ferdinand  In- 
Tested  with  the  crown  of  Aragon,  628 

—  arrangement  of  the  united  govern- 
ments. 688 ,  589 — eonqnsst  of  Granada, 
689  640. 

Ferdinand  III.  of  Castile,  eaptvrs  of  Cor- 
dova by,  i.  493. 

Ferdinand  IT.  of  Castile,  nrevalenee  of 
civil  diawnslons  in  the  reign  of,  L  496, 
496  —  his  gross  violation  of  justice  and 
remarkable  death,  617. 

Feudal  system,  rise  of  the,  1 .  148  —  nature 
of  allodial  and  salle  lands,  150-163  and 
notes  -  distinction  of  Uws,  168, 154  -> 
origin  of  nobility,  169, 161, 188  —  fiscal 
lands  or  benefices,  their  nature,  condi- 
tion, and  extent,  161, 162  —  Introduc- 
tion of  subinbndation,  168 — origin  of 
feudal  tenures,  164— costom  of  psvsMud 


iin)Ez. 


677 


N 


FEUD0. 

commendation ,  166  —  its  ehacBcter.  t5., 
166 — edict  of  Coond  I  (■ ,  167, 168,  and 
note*  —  principle  of  a  feudal  relation, 
168  —  rights  and  duties  of  TaasalHf  i6.— 
oeremoniee  of  homage,  fealty,  and  in<- 
▼eeUture,  170  —  obligations  of  th«  Tas- 
aal  to  his  lord,  171  —  military  service, 
Its  conditions  and  extent,  172  and  notes 

—  feudal  incidents:  origin  of  relieft, 
178, 174  —of  fines  on  alienation,  174  — 
Ihe  custom  of  frSrage  in  France,  176 
—escheats  and  forfeitures,  177— objeeta 
for  which  aids  were  leried,  ib. — limita- 
tions thereof  by  Magna  Cbarta,  178  ~ 
Institution  of  wardships,  ib.  —  their 
Tezatious  character  in  later  times,  179 

—  extortionate  and  oppressive  prao- 
ticei  relntive  to  manriagee,  179,  180  — 
introduction  of  improper  fends,  181  — 
fieft  of  office,  their  nature  and  variety, 
181,  182,  and  notes  —  feudal  law-books, 
182  — the  Milanese  collection,  188  — 
dliferenee  between  that  and  the  French 
and  Rnglitth  systems.  188,  184  — the 
feudal  system  not  or  Roman  origin, 
185,  186  —  localities  over  which  it  ex- 
tended. 187,  188—  privileges  of  nobility, 
191, 1^  —  diOerenoe  between  a  French 
roturier  and  an  Bnglish  commoner,  191, 
nots^ — condition  of  the  clergy,  194, 
195  —  of  the  classes  below  the  gentry, 
195- assemblies  of  the  baronn,  216  — 
the  eours  pltini^res,  217,  242  — legis- 
lative and  Judicial  assemblies  [see 
Led:«]ation,  States-Oeoeral,  Justice] 
— decline  of  the  feudal  system,  248  — 
its  causes :  increase  of  the  domains  of 
the  crown,  247,  2i8  —  rise  of  the  char- 
isred  towns,  249,  254,  (see  Towns]  — 
commutation  of  milltsjry  service,  WS. 
[see  Military  Systems]— 4ecay  of  feudal 
principles,  261  — influence  of  feudalism 
npon  tlM  Instltntions  of  England  and 
Vtanoe^262  —  civil  freedom  promoted 
by  it,  268-1^  tendency  to  exalt  war- 
like habits,  968,  264  —iu  value  as  an 
element  of  discipline,  264  —  and  as  pro- 
ducing sentiments  of  loyalty,  264,  265 

—  the  mundium,  306,  note  —  essentiaJs 
of  the  feudal  system,  809  — its  princi- 
ples aristocratic  and  exclusive.  811  — 
Guisot's  description  of  a  feudal  eastle, 
812  — laxity  of  feudal  tenures  in  Italv, 
852 — question  of  their  existence  in 
England  prior  to  the  Conquest,  ii.  85, 
98  — feudalism  under  the  Normans, 
105— Innovation  introduced  by  Wil- 
liam I.,  106  —  difleranoe  between  the 
fendal^liey  of  England  and  France, 
107,  109  —  tenure  of  folcland  and  hoc- 
land,  191,194— abuses  of  feudal  righto, 
852. 

feuds,  nature  of,  Md  derivation  of  the 
word,  i.  806. 


TtLXSCE. 

Tieft.    See  Benefices,  Feudal  System. 

Field  of  March  (or  Champ  de  MarsV, 
origin  of  tt.e  assemblies  so  termed,  t. 
210  — their  cuamcter,  210,  211  — not 
attended  by  the  Roman  inhabiianto  of 
Oaul,  275— how  often  held,  299. 

Field  Sports.    See  Sports. 

Fines,  extent  and  singularity  of,  under 
the  Anglo-Norman  kinn,  it  111. 

Fire-arms.    See  Military  Systems. 

Fiscal  lands.    See  Beneflcee. 

Flanders,  fraudulent  conduct  of  Philip 
IV.  towards  the  count  of,  1. 54— success- 
tol  resistance  of  its  people,  55 — large 
capture  of  gilt  spurs  by  them,  ib.^note  * 

—  their  commerce  with  England,  64 — 
their  rebellion  against  count  Louis,  75, 
76,  and  iiofe«  —  their  insubordination , 
99  -  their  resistance  to  taxation,  100 
and  note  —  their  wooUen  mannflicture, 
U.  509.  510  —  their  setUement  in  Eng- 
land,  511.  iu>to>  — Ito  policy  relative 
thereto,  512  and  note  *.    See  Trade. 

Florence,  curtailment  of  the  power  of, 
bv  Frederic  Barbarossa,  1.  404— exclu- 
sion of  the  Ghibelins  flrom  offices  of 
trust,  ib.  —  Dante^s  simile  relative  to 
its  unsettled  state,  i6.— corporations  of 
the  citisens,  405  —  ito  magistracy,  ifr.— 
curious  mode  of  election .  406 — the  con- 
siglio  di  popolo,  407— ueflance  of  law 
by  the  nobility,  408  —  Giano  delta  Bella 
reduces  them  to  obedience,  408,  409  — 
rise  of  the  plebeian  aristocracy,  410— 
Walter  de  Brienne  invested  with  ex- 
traordinary powers,  411— his  tyranny 
and  excesses,  412  —  his  overthrow,  418 

—  singular  ordinances  relative  to  the 
nobles,  418  —machinations  of  the  Gualft 
and  persecutions  of  the  Ghibelins, 
414-416  and  not*  ^ — prostration  of  the 
Guelfs,  417— insurrection  of  the  CiompI 
and  elevation  of  Lando,  418,  419—  his 
Judicious  admloifftration ,  419  —  restora- 
tion of  the  Guelfe,  420  —  comparative 
security  of  the  Florendnes,  421  —  their 
territorial  acquisitions,  revenue,  popu- 
lation, Ac,  422, 428,  and  notes—  Pisa 
bought  by  them,  426  —  fkuther  di»- 
quietndes  In  their  government,  475  — 
rise  of  the  Medici  [see  Medici]  — flrst 
Florentine  voyage  to  Alexandria,  478 
and  note — Florentine  bankers  and  their 
transactions,  ii.  580  and  notes. 

Folcland,  nature  of,  ii.  19L 

Foreigners  invested  with  power  In  Italian 

Btotss,  i.  880, 896,  402, 407,  429. 
Forest  laws  of  the  Anglo-Norman  kings, . 

Ii.  108  — mitigation  of  their  severity, 

868  —  punishmenU  Inflicted,  508. 
Fortescoe  (Sir  John),   on  the  En^Ish 

constitution,  ii.  855. 
France,  policy  observed  in  the  territorial 

dlTlaion  Qt,  1 18,  nete*— indgnifleeiMe 


678 


INDEX. 


FBAKGOVIA. 

of  its  Mrly  mooaxclu,  20  and  note^  — 
Ion  of  the  Engjiiih  poflseflsionB  in,  89 

—  increftM  of  tbt>  French  donuiins,  68- 
66  — itd  state  at  the  commencement 
of  hosUlities  by  Edward  111  ,  61  — Ita 
condition  after  the  battle  of  Poitkn, 
66  —  aaaembly  of  the  Stateft-Oeneral,  66 

—  desolation  of  the  kingdom  by  fiun- 
ine,  67  and  no<«  —  ravaged  by  ban- 
ditti, «b.  — the  Jacquerie  insurrection, 
68  and  no<«i  — state  of  the  conntrj 
under  Charles  V.  and  VI.,  74,  76~ 
under  Charles  TIL ,  86-92— consolida- 
tion of  its  dominions,  107  — ita  his- 
torians, 106,  nou*  —  its  deplorable  state 
under  Charles  the  Bald,  139  —  its  pro- 
Tincial  government  under  the  Mero- 
vingian kings,  166  —  succession  to  its 
monmrchy,  166,  and  214,  note^^lU 
progress  from  weakness  to  strength, 
202  —  revenue  of  its  kings,  how  raised, 
206—  iti  coinage,  2u8, 209  —  Uzation, 
209,  210  —  its  constitution  never  a /r«« 
one,  226,  note  ^  —  designs  of  ita  kings 
upon  Naples,  481  et  seq, 

Franconia,  rice  of  the  Ilouse  of,  1.  647 — 
its  extinction,  660. 

Frankfort,  council  of.    See  Council. 

Franks,  territories  occupied  by  the,  1. 16 
and  note  >  —  their  probable  origin,  Note 
n.  110.  Ill  —  their  position  under  Pe- 

{in,  122. 128  —  their  promise  to  Pepin, 
81,  156  —  character  of  their  church 
dignitaries,  162,  note  > —  increase  of 
the  power  of  Mieir  kings,  167  — 
serfdom  and  villeiiage  amongst  them, 
IW,  199— extent  to  which  they  pai^ 
ticipated  in  legislation,  211  and  noU 

—  origin  of  the  Ripuarian  Franks  and 
Balian  Franks,  271  —  their  numbers 
during  the  reign  of  Clovis,  288,  284— 
presumed  infrequency  of  marriages 
Detwt«n  them  and  the  Romans,  2iS8 
— extent  of  power  possessed  by  their 
kings,  292-800. 

Fredegoode,  queen.    See  Chilperio. 

Fxedene  I.  (Frederic  Barbaroeaa),  third 
crusade  undertaken  by,  i.  61  — title 
conferred  by  him  on  the  archbishop 
of  Lyons,  66 — commencement  of  hia- 
career  in  Italy,  867 — he  besieges  Milan, 
866  —  subjugation  and  second  rise  of  its 
eitiaena,  869 — destruction  of  their  city, 
880  —  laague  of  Lombardy  against  him, 
ib.  —  his  defeat  and  flight,  8i62  —  peace 
of  Constance,  ib.  —  his  policy  relative 
to  Sicily,  864  —  his  response  to  Roman 
oratory,  400  and  note —  his  accession  to 
the  Ootnan  throne,  i.  661  —  Henry  the 
Lion^s  ingratitude  towards  him,  662 
and  note*  — he  Institutes  the  law  of 
defiance,  672— his  forced  submission  to 
pope  Adrian  IV.,  ii.  8  —  his  limitation 
on  tba  aoqalaitton  of  proper^  by  the 


GENOA. 

deigy,  24  — his  intelleetaal  acquiro- 
menta,  479,  note  —  his  patronage  of 
learning,  606. 
Frederic  II.,  position  of,  at  his  accession, 
i.  871  —  cause  of  his  excommunication 
by  Gregory  IX. ,  872  —  rancor  of  papal 
writers  against  him,  ib  ,  note  >  —  resiilt 
of  his  crusade,  878  —  h&B  wars  with  the 
Lombards,  ib.  —  his  successes  and  de- 
feats, 876  —  antmof^ity  of  the  popes  to- 
wards him,  876,  877  —  sentence  of  the 
council  of  Lyons  against  him,  877 —  his 
accession  to  the  German  throne,  671 

—  his  deposition,  672  —  be  restrains  tha 
right  of  defiance,  674 — his  imperial  tri- 
bunal, 676  —  his  poetry,  ii.  &&. 

Frederic  III.  of  Germany,  character  of 
the  reign  of,  i.  666  and  note  —  his  sig- 
nificant motto,  666,»ioteS  — olyectsof 
his  diets,  678, 674 — he  betrays  the  em- 

*  pire  to  the  pope,  ii.  48. 

Freemasonry,  and  its  connection  with 
architecture,  ii.  547,  note  K 

Freemen,  existence  of,  prior  to  the  tenth 
century,  i.  813—  allodial  proprietors 
evidently  of  Uiis  class,  814  —  other  tm- 
men,  ib.  —  consequence  of  their  mar- 
riage with  serfis,  822. 

Freeosi  and  Adorn!  liMtions,  L  475. 

Frobsart,  value  of  the  Chronicles  of,  i.  75, 
note  1. 

Fulk*8  saucy  reproof  of  Loola  IV.,  11. 479, 
note*. 

Gandia  (dnke  of),  claims  the  throne  of 
Aragon ,  i.  621  —  his  death  and  fiulnre  of 
his  son,  622,  fiofei. 

Gaul  invaded  by  Clovis,  1. 16  — condition 
of  its  Roman  natives,  162  —  privilcoea 
of  the  '  *  conviva  regis,"  168,  fiol«  >,  274 
and  fio<e  i  —  retennon  of  their  own  lawa 
by  the  Romans,  274  — their  citie^ 
2i8  —  their  subjection  to  taxation,  280 

—  their  accession  to  high  offices,  284 

—  their  right  to  adopt  the  laws  of 
the  Franks,  286,  286— presumed  infre- 
quency of  marriage  between  the  two 
races,  288. 

Genoa,  early  hlotory  of,  i.  426— herwnia 
with  Pisa  and  Venice,  426, 427— victoiy 
of  her  fleet  over  Pisani ,  428 — insolence 
of  her  admiral  towards  the  Venetian 
ambassadors,  429  —  her  sobraquent  re- 
verses, 429,  490  —  Rurrrader  of  her 
fbrces  to  Veoico,  480  —  decline  of  her 
power,  481  —  her  ^vemment  and  its 
various  changes,  tfr.  —  dissensions  of 
the  Quelfb  and  Ghibelins,  482  — her 
first  doge.  488  — fhsquent  revolntfona 
of  her  citisens,  484—  the  AdomI  and 
Fregosi  factions,  475—  commercial  deal- 
ings of  the  Genoese,  ii.  619  — their  po- 
sition in  Constantinople,  620  — their 
manuikctares,  621— their  money  ttanf- 


INDEX. 


679 


OBBMANT. 

aetkins,  627, 680 — Mate  aeeozlty  takm 
by  their  buken,  680. 

Gennany  conquered  by  Chmriemagne,  t. 
28  —  held  by  Louis  his  gnndBon,  20  — 
passes  away  from  his  fiimily,  80  ~  its 
Hungaiian  aasatlaots.  82  — its  flrrt 
apostles,  12S  —  political  state  of  ancient 
Gennany,  148  —  mode  in  which  kings 
were  chosen,  149  —  lands  in  conquered 
prorinces,  how  divided,  160  —  customs 
respecting  alodial  and  salic  lands,  162 
and  noUt  —  superior  position  of  its 
rulers  as  compared  with  those  of 
France,  202  —  causes  of  the  reversal 
of  this  state  of  things,  t6.  —  degree 
of  reliance  due  to  Tacitus's  accounts  of 
German  insUtutlons,  206-268  —  char- 
acter of  Its  goTemments,  298  —  limited 
power  of  its  kings,  208-296  — Its  posi- 
tion at  the  death  of  Charles  the  Fat, 
646  —election  of  Its  emperors,  in  whom 
Tested,  666-668  —  partitions  of  territory 
amongst  Its  princes^ 661^662- Import 
tanoe  of  Its  tne  cities,  6o7— priTlleges 
oonferred  on  tbein.  t6.  —  their  war&re 
with  the  nobles,  668  —  the  sanctuary  of 
the  palisades,  669  —  league  of  the  cities, 
*fr.  —  polity  of  the  principalities,  670— 
extent  of  the  imperial  domains,  t6.  — 
their  gradual  alienation  by  the  em-  ' 
perors,  %b. — the  diet  of  Worms  and  its 
results,  671, 676  —  limits  of  the  German 
empire  at  nuious  periods,  677  —  ab- 
sence of  towns.  11. 604 —preeminence  of 
its  robber  chleD,  606.  See  Diet,  Justice. 

Ghent,  populousness  and  Impregnability 
of,  1.  9a,  100  —  policy  of  its  people  ret 
atiTe  to  taxation,  100,  note — ita  trading 
eminence,  U.  610 — Ita  hoosei  and  pop- 
ulation, 6lO,  note: 

Ghlbelins,  origin  of  the  word,  1. 661.  8e« 
QueUk. 

Qiofanni  dl  Yioenaa,  singular  moesas 
of  the  ezhorUtions  of,  I  888  —  resott 
of  his  attempts  at  soTerelgnty ,  889. 

Gloucester,  duke  of  {temp.  fUchard  HX 
speaks  for  the  parliament,  11.  276,  iiot«i 
~-  made  tord  appellant,  279 — reinstated 
in  the  oouncll,  280 — his  animositytow- 
axds  the  duke  of  Lancaster,  281-388  — 
bis  seisure  bv  the  king,  :f84  —  his  mur- 
der and  posthumous  attainder,  ib. 

CkKlfrey  of  Boulogne,  eastern  domains 
assigned  to,  i.  49  —  nis  reasons  for  re- 
fusing the  title  of  king,  t6.,  noU  >  —  his 
foats  of  strength,  t&.,  note*. 

Granada.  Ibrtlllty  and  importance  of,  1. 
640  —  Its  unatailing  resistance  to  Fer- 
dinand, t6. 

Gratian,  ehamcter  of  the  Deeretum  oora- 
pUed  by,  II.  2. 

Greek  ehureh,  marriage  of  priests  pw- 
mittwl  by  the.  I.  648. 

Greek  empirs,  asfeneney  of  ths^  L 


QUELFS. 

—  its  theologleal  dissnuloDS,  ib.  — n- 
TlTal  of  its  power,  600  — tactics  of  ita 
emperois,  601  and  note  *— exploits  of 
celebrated  usurpers,  602  — results  of 
the  first  crusade,  608  —  expeditionfl 
of  Alexius  Comnenus,  t6.  — sacking  of 
the  capital,  604,  606— partition  of  the 

~  empire,  606 — Its  declining atate,  607  — 
lukewarmness  of  the  western  Chria* 
tians,  610— fidl  of  the  empire,  ib. — 
the  last  of  the  Csesars,  611  —  Greek 
anti-exportation  anecdote,  11. 607,  mcis  *. 
See  Constantinople. 

Gregory  I. ,  character  of,  1 .  684 — he  estab- 
lishes the  appellant  Jurisdiction,  £&., 
note*. 

Gregory  II.,  design  of,  for  placing  Rome 
under  Charles  Martel's  protection,  1. 
126. 

Gregory  IT.  and  Y.,  submlssioa  of,  to 
imperial  authority,  1.  668. 

Gregory  VII.,  pra|ection  of  the  crusades 
by,  i.  46  — his  obligattons  to  th« 
countess  Matilda,  860  — his  ascend- 
ency over  tile  clergy.  664, 665 — elected 
pope,  666 — his  dUlerences  with,  and 
excommunication  o(  Henry  Iv.  of 
Germany.  666,  666,  and  note  —  rigox^* 
ons  humiliation  imposed  by  him  on 
Henry,  667  —  his  exile  and  death,  668 

—  his  declaration  against  iuYesticures, 
669  — his  inimitable  ambition  and 
arrogance,  062  — his  despotism  tow- 
ards eccleslMtics,  668  —  his  arrogance 
eclipsed  by  Innocent  IIL ,  11.  26. 

Gregory  IX.,  excommunications  of  Fred- 
erie  II.  by,  I.  872,  876  — his  Airther 
designs  sgainst  Frederic,  ib.  —  Decre- 
tals published  by  his  order,  11.  2  — 
his  encroachments  on  the  English 
church,  11  —  his  prstext  for  loTylng 
contributions,  14 . —  immense  sum  ex- 
torted by  him  from  England,  16. 

Gregory  X.,  tax  leried  on  the  church  by, 
«.16. 

Gregory  XI..  reinstates  the  papal  court 
at  Rome,  11. 36. 

Gngory  XII.  aleeted  and  deposed,  iL 

Grimoald,  osuxpation  of  supreme  power 
by.  1.  a. 

Grosstete  (Robert  bishop  of  Lincoln), 
notices  of,  IL  14,  note*,  612,  nou^, 
646. 

Guamleri  (duke),  lystemallc  lery  of  con- 
tributions b^,  i.  462  —  sueosss  of  hii 
operations,  tb. 

Guelfr  and  Ghlbelins,  origin  of  the  rival 
ftetionsof,  i.  869  — their  German  an- 
tecedents, 870  and  note  —  characteiw 
Istlcs  of  the  two  parties,  871  — irra- 
tionality of  the  distinctions,  890  — 
temporary  union  of  the  factions,  891 

—  aspnlnon  of  the  GhibeUni  from 


680 


INDEX. 


GUI. 

Florenee.  892— reTlTsl  of  tbdr  party, 
896— ori|^D  of  the  name  Guelft,  651. 
See  Florence,  Cienoa. 

Ool  de  Lualgnan,  cause  of  bii  flight  from 
Fmnce,  i  47. 

Guienne,  aeixed  hy  Philip  IV.,  i.  64  — 
restorpd  to  Itogland,  66  —  insurrectioii 
of  its  people  against  Charles  VII.,  08 
and  note  —  sns^cioaa  death  of  Charles, 
duke  off  96  and  note. 

Oulscard  (Robert),  territorial  conquests 
ot,  L  860— he  takes  Leo  IX.  prisoner, 
861  —  his  English  opponents  at  Con- 
stantinople,  U.  96. 

Qniscard  (Roger),  conquers  Sicily,  L  860 
— declared  Ring  by  Innocent  II.,  861 

—  he  shelters  Gregory  TIL,  668  — 
he  sutijngates  Amalfi,  II.  619 — he  In- 
troduces silk  BMnuliuturBS  at  Paler^ 
mo,  621. 

Gunpowder.    See  Hilitaiy  Bystema. 

Hair,  length  of,  a  mark  of  nobility,  i.  801 

—  Childebert^s  proporal  relatiTe  to 
Clodomir's  children,  802,  noU, 

Hanse  towns,  conjederacy  of  the,  IL 
616. 

Haroun  Alrasehkl,  magnifleenee  of  the 
rule  of,  L  697  —  African  principalities 
in  his  reign,  698. 

BastingR,  lord  {temp.  Edward  IV.),  r»- 
oeires  bribes  from  Louis  XI.,  1.  97  — 
his  reason  for  refrising  to  glTe  receipts 
for  the  same,  ib.,  noU*. 

Hawkwood  (Sir  John),  military  renown 
acquired  by,  i.  468 — gratitude  of  the 
Florentines  towards  him,  ib.  —  his  skUI 
as  a  general,  464. 

Haxey  (Thomas),  surrendered  by  the 
commons  to  the  Tengeance  of  Richard 
U.,  IL  288, 907  —  important  principles 
iuTolTed  in  his  caae,  283,  notes. 

Henry  II.  of  Castile  rebels  against  Peter 
the  Cruel,  i.  498 —  his  defeat  and  sub- 
sequent yictory .  t6.  —  his  tow  to  pre- 

''  serve  Justice,  618. 

Henry  III.  of  Castile  mantes  John  of 
Gaunt's  daughter,  1.  498. 

Henry  IV.  of  Caatile,  despicable  charac- 
ter of,  1.  600  — depo«<ed  by  a  conspira- 
cy of  nobles,  ib.  >-  flitiie  eflbrts  of  his 
daughter  to  succeed  him,  501 — con- 
tests alter  his  death,  ib.  —  his  reproof 
by  the  Cortex  of  Ocana,  616. 

Henry  I.  of  England,  extortiona  on  the 
church  by,  11.  14. 

Henry  II.  marries  the  repudiated  wife  of 
Louis  VII.,  i.  88  — opposes  the  tyr- 
anny of  the  church  of  Kome,  ii.  20  — 
catise  of  his  dispute  with  Thomas  4 
Becket,  21. 

Henry  III.  allows  Italian  priests  In  Eng- 
lish benefices,  IL  11  —  abets  papal 
faiatinn  on  the  clergy,  16  —  his  sul>- 


HEKBT  IT. 

misrfrenesB,  28— provistons  contained 
in  his  charter,  117, 118—  worthlessneaa 
of  his  character,  119  — his  peijuries. 
120  — his  pecuniary  difltcnltieii  and 
extortions,  l21  —  his  expenslTe  foivign 
prqjects,  122  —  demands  of  the  pope, 
and  resolute  conduct  of  the  barons, 
128 —his  quarrel  with  the  cari  of  Pem- 
bToke,866. 

Henry  iV..  policy  and  Tiews  of,  toward! 
France,  i.  74,  82  —  circumstances  at- 
tending his  succession,  11.  288  — In- 
Talidlty  of  his  hereditary  title,  288— 
bis  tactics  towards  the  parliament,  289 
—  aid  granted  to  him  in  1400,  291  — 
policy  of  the  commons  towards  him, 
292,  298— limitotions  hnpo«d  on  him, 
286, 299 — he  comes  to  terms  with  them, 
290.    See  Bolingbroke. 

Henry  V.,  his  exorbitant  demands 
on  proposing  to  marry  Catharine  of 
France,  i.  88  and  note  >  —  InTBsion  of 
France  by,  ib.  and  note  >  — his  negQ> 
tiations  with  the  duke  of  Burgundy. 
88  —  his  marriage  and  death,  84  —  Ulb 
Bub»idie5  granted  to  him,  ii  298 — im- 
probability of  his  alleged  dissolute- 
ness, 801  —  his  claims  on  popular  afieo* 
tion,  A.  —  his  clemency  to  the  eari  of 
March.  40a 

Henry  VI  ,  parliamentary  policy  during 
the  minority  of,  ii.  808  —  unpopularity 
of  his  marriage,  804 — his  conduct  on 
Suffolk's  impeachment,  804  — state  of 
the  kingdom  during  his  minority,  888 
«—  his  imbecility,  ib.  —  solemnities  ob- 
•erred  in  nominating  a  regency  during 
his  Inlkncy,  2i86,  889  —  proTiMons  In 
consequence  of  his  mental  inflrmitiee, 
889,  m 

Henry  VII.,  conduct  of,  towards  tbo 
memory  of  his  predecessors,  ii.  898 
and  note  *. 

Henry  I.  of  France,  alleged  large  army 
levied  by,  i.  86,  note^  —  extent  <it  au- 
thority exercised  by  him,  141. 

Henrr  I.,  the  Fowler,  elected  emperor 
of  Germany ,  11.  68 — nls  scheme  for  im- 
proTing  his  territories,  A.,  note*. 

Henrr  II.,  of  Bavaria,  elected  emperor 
of  Germany,  i.  646. 

Heni7  III.  or  Germany.  Imperial  infla- 
enoe  extended  by ,  1.  o47  —  instances  of 
his  exercise  of  absolute  power,  648. 
671  —  his  judicious  nomination  of 
popes,  658. 

Henry  IV.  of  Germany,  primary  canaa 
of  the  misfortunes  of,  I-  64A  — con- 
apiracv  against  him  dming  his  InfiuH 
cy,  64o,  iiel«"—  his  abduction  by  Han- 
no,  i6.  —  his  excommunication  and 
its  consequences,  649  and  noU  '  —  hia 
remains  insulted  by  Rome.  660— leal 
of  the  cities  in  his  caaae,  6^ — bi>  con* 


f 


INDEX. 


681 


BSKBT  T. 

tests  with  Gregory  TIL,  656, 667— hii 
humiliation  by  Qregory,  656 —  the  tap 
bleu  tamed,  667— aDimoalty  of  Oreg- 
ory-s   successors    towards    him,   65/, 


Henry  Y.  of  Germany,  accession  and 
death  of.  i.  650  —  privilege  granted  by 
him  to  the  cities,  5(^  —  his  compromise 
with  the  popes,  658 

Henry  YI.  of  Germany,  repudiates  ar- 
rangements between  his  predocesror 
and  the  popeii,  I.  867  —  production  of 
his  alleged  will,  ib,  —  his  ambitious 
project,  658  —  his  death,  ib. 

Henry  YIl.  of  Germany,  acquires  Bo- 
hemia for  his  son,  i.  6S2  — his  opposi- 
tion to  the  papal  power,  ii.  81. 

Henry  the  Proud,  ancestry  and  posses- 
sions of,  i.  660,  551  — consequences  of 
his  disobedience  to  the  emperor's  sum- 
mons, 561. 

Henry  the  Uon  restored  to  his  birth- 
right, 1.  652— &tai  results  of  his  hi- 
gratitude,  ib. 

Hereditary  succession,  how  flkr  observed 
among  the  Franks,  I.  166,  nof<>,  291 
—  disregarded  by  the  Anglo-Saxons,  ii. 
67 — establishment  of  the  principle  in 
England,  182-184  —  elucidatory  note 
upon  the  subject,  209-211. 

Hereford  (earl  and  duke  of).  See  Bohun, 
Bolingbroke. 

Hereward,  brsTe  resistance  of,  to  Wllliam 
the  Conqueror,  ii.  96,  note  *. 

Hilary  deposed  by  Leo  the  Great,  i.  688, 
note*. 

HlUlebrand.    See  Gregory  YIL 

Houorius  IIL,  establishment  of  mendi- 
cant orders  by,  ii.  4  —  refusal  of  his  re- 
quests by  France  and  England,  11. 

Hugh  the  Great  of  France,  procures  the 
election  of  Louis  lY  ,  i.  182. 

Hugh  Capet    See  Capet 

Hungarians,  ravages  in  Europe  by  the, 
i.  w  —  their  ferwity  towardn  the  clergy, 
83,fiole* — their  ronversion  to  Chris- 
tianity, 680  — their  wars  with  the 
Turks,  681-688. 

Hungaiy,  kings  and  chleft  of.  See  An- 
drew, Corvinus,  Hunnlades,  Ladislaus, 
Louis  of  Hungary,  Sigismund,  Uladis- 
laus. 

Huncerford  (Sir  Thomas),  elected  speaker, 

Hunnlades  (John),  herolo  career  of,  i. 
681,682  — his  death,  682 

Huss  (John),  burned  to  death,  I  679  — 
characteristics  of  his  schism  and  his 
followers,  ii.  676  and  note  ',  678. 

Innocent  m.,  persecution  of  tlie  Albl- 
aeots  by,  I.  46 — liis  ambitious  policy, 
886  —  his  significant  production  of  the 
will  of  Henry  YI.  or  Germany,  867  — 


ITALY. 

position  of  the  Italian  cities  towazds 
nim,  ib.  —  use  made  by  him  of  his 
guardianship  of  Frederic  II.,  871  —  in- 
crease of  temporal  authority  under 
him,  401  —  his  accession  to  the  papal 
chair,  665  —  extravagance  of  his  pre- 
tensions, 666  —  Ills  scheme  of  uni- 
versal arbitration,  667  —  his  decrees 
and  interdicts,  6C» — his  Inter&rence 
with  the  German  emperors,  670  —  his 
claim  to  nominate  nii^ops,  IL  10  — 
cause  of  his  anger  with  the  chapter  of 
Poitiers,  11  —  he  levies  taxes  on  the 
clergy,  14  —  his  pretext  for  exercising 
jurisdktion,  17  —  he  exempts  the 
clergy  fh)m  criminal  process,  19  — 
his  arrogance  eclipsed  by  Bonifiue 
YIII.,26. 

Innocent  lY.,  outrageous  proceedings  of, 
against  Frederic  II.,  1.  877  —  his  con- 
duct towards  Frederic's  successors, 
ib.  —  he  quarters  Italian  priests  on 
England,  II.  11— height  of  papal 
tyranny  during  his  ponUficate,  16 — 
his  disposal  of  the  crown  of  Portugal, 
2Sf  not€  i  —  anecdote  of  him,  84, 
note  *. 

Innocent  YI.  elected  pope,  il.  88. 

Interdicts,  L  643,  il.  64,  noU  i,  and  66. 
See  Papal  Power. 

Ireland  a  medissval  slave  depot,  ii.  607 
and  note  *. 

Irene,  dethronement  of  Constantlne  Y. 
by,  I.  127  —  Leo  lll.*s  prqject  of  mar- 
riage between  her  and  Charlemagne, 
ib. 

Isabel  of  Bavaria  (queen  of  Charles  YL), 
infiunous  conduct  of,  towards  her  bus- 
buid,  I.  78  —  her  hatred  of  Armagnao, 
and  its  consequences,  81  — joins  in  the 
treaty  with  Heniy  Y  ,  84 

Isabel  of  France,  marries  Edward  II.  of 
England,  1.  66. 

Isabella  of  Castile.    See  Ferdinand  II. 

Isidore,  publication  of  the  False  Decretals 
d^  i.  683- their  character  and  objert, 
688. 639,  and  notes — authority  accorded 
to  them  by  Gratian,  ii.  2. 

Italy,  occupied  by  the  Ostrogoths,  1. 16 
—  Its  sufajectton  by  the  Lombards,  21, 22 
—conquests  of  Pepin  and  Charlemagne, 
22  — its  king  Bernard,  27  — its  state 
at  the  end  of  the  ninth  century,  848  — 
authorities  referred  to  for  Its  hivtory. 
i6.,  note — its  monarchs  Berenger  I.  ana 
II.,  345  and  note^ — assumption  of 
power  by  Otbo  the  Great,  t^.  —  execu- 
tion of  (Jrcscentius  by  Otho  III.,  347  — 
election  and  subsequent  troubles  of 
Ardoin,  ib.  — condiUon  of  its  people 
nnder  Henry  II.,  ib.  — cause  of  Its  sub- 
jection to  German  princes,  348  —  acces- 
sion of  Conrad  II.,  and  consolidation 
of  Germanic  inflttenoes,  348, 849  — its 


682 


INDEX. 


JACQUERIE. 

Greek  proTinceii,  849, 360  —  IncaTskms 
and  (iucce»«ff  of  th«  Normans.  850, 852 

—  proin«!(K  of  the  Lonibanl  cui«>fi,  {ree 
Loinliards]  —  nrce^vion  of  Frederic  Bar- 
barofwa,  8-37.  [^'ee  Frc«k'iic  1  ]  —  cause 
of  the  flcradeixe  ot  Italy.  8i^8,  Sv^i  — 
Its  domestic  manuers,  ii.  531,  &83. 

Jacqaerie,  iDsarrectloD  of  the,  1.  C8  and 
note^. 

Jamcv  II.  of  Aragon,  Tvnoanres  the  Si- 
cilian rrown,  i.  465—  InTcsfed  wilh  the 
Sardinian  crown,  ii.  28,  notf  >. 

Jane  of  NaTarre,  treaty  entered  fnto  on 
behalf  of.  1  56  -  betrayal  of  her  cauM 
by  the  duke  of  Burgundy,  67  —  she  re> 
covers  Nayarre,  tfc  ,  note  ». 

Janizaries,  institution  of  the,  f.  612. 

Jerome  at  Prague,  burned  to  death, 
i  579. 

Jerusalem,  foundation  of  the  kiufnloin  of^ 
1.  49  — ito  conquest  by  Saladin,  51  — 
restored  to  the  OhriMtians  by  the  9ara* 
cens,  52 — oppreKsiTe  system  of  mar- 
rlageH  there,  under  the  feudal  syFtem, 
180  — title  of  the  kings  of  Naples  to 
aoTereijrnty  OTer  it,  872,  note  >. 

Jews,  wealth  amasaed  and  persecutions 
endured  by  the,  i.  207  —  their  early 
celebrity  as  usurers,  t6.,  note  * — their 
final  expulsion  from  France,  208  and 
itoi<  1  —  ordinances  against  tuem,  219 

—  exorbitant  rates  paid  by  them  in 
England,  ii.  110 —  thdr  massacre  by  the 
pHstourraux,  489  -  their  liability  to 
maltreatment,  497  —  barbarous  cus- 
toms regarding  them,  i&.,  note  —  the 
Jew-drowning  story,  4^,  tio«^  — 
their  early  money  dealingt^,  027  —  toler^ 
ation  vouchsaffHi  to  them,  ib  —  decline 
of  their  trade,  528—  their  addiction  to 
coin-clipping,  566,  note  ^. 

Joan  of  Arc,  character,  successes,  and 
Ikte  of,  i.  87,  88  — her  betrayer,  92. 
note^  —  her  name  and  birthplace,  146 
—  great  merit  of  Southey's  poem,  147. 

Joanna  of  Naples,  married  to  Andrew  of 
Hungary,  i.  40d  ~  her  husband's  mur- 
der imputed  to  ber,  f6.  and  note  ^  —  she 
dies  by  Tiolence,  467. 

Josnnn  II.  of  Naples,  and  her  fkvorltes, 
i.  469  —  her  vacillation  relarivo  to  her 
successors,  470  —  puts  Caraccioli  to 
death,  471.  note. 

John  I.  of  Castile,  accession  of,  i.  498  — 
his  merited  defeat  by  the  Portuguese, 
499. 

John  II.  of  Castile,  wise  government  by 
the  guardians  of.  during  his  infiincy, 
i.  498,  498  —  he  disfnraces  and  destroys 
his  favorite  Alvaro  de  Luna,  499, 506  — 
his  death,  500-  its  resuits,  688. 

John  (king  of  Kngland),  cited  belhrs 
Philip  Augustus,  I  88  —  rstulu  of  his 


JU8TTCB. 

contumacy,  89 —lilngular  fines  levied 
by  him,  if.  Ill  —  his  raparitv,  116  aud 
fiufr  1  —  Magna  Cbarta,  116,  119  — 
cuiious  inotince  of  the  unpopnlincy  of 
*  Li!4  name,  273.  note  <. 
Jolin  I.  of  France,  birth  and  death  of,  I. 

67  and  note  i. 

John  II.  of  France,  character  of,  {.68  — 
taken  )>risoner  at  Foi  tiers.  65  —  bestows 
his  dangbter  on  Charles  of  Navarre, 
C6  —  subuiitB  to  the  iieace  of  Bretigni, 

68  —  his  response  to  the  dtiaens  of 
KocbeUe,  72 

John  of  l^rocida,  designs  of,  on  Sicily,  I. 
468  —  result  of  his  mtrlgues,  464. 

John  VIII.  (pope),  in.«olenre  of,  towards 
Charles  the  Fat,  i  645  —  asrexts  a  right 
to  nominate  the  emperor,  t6. 

John  XXll.  (pope),  claims  Rupremaey 
over  the  empire,  ii.  81  — bis  dispute 
with  liouis  of  Bavaria,  ib.  —  lie  per- 
secutes the  Franciscans,  83— his  im- 
mense treasures,  84  —  hJs  imposts  on 
the  clergy,  ib  ,  ni.le  •. 

John  XXLJj.  (pope),  convokes  and  Is 
deposed  by  the  council  of  Constance, 
II.  89 

Joinville  (the  chronicler),  reftves  to  ao> 
company  St.  Louis  in  his  last  emaads, 
i.  53,  fiofe. 

Judith  of  Bavaria,  .marries  Loida  ths 
Debonair,  1.  29. 

Julian's  betrayal  of  Spain  to  the  Moon: 
credibility  of  the  lo,'end,  L  641-544. 

Jury.    See  Trial  by  Jury. 

Justice,  admini»traiion  of ,  under  Charle- 
ma^e.  i.  233  —  vailous  kinds  of  feudal 
Junsdiction,  284— Judicial  privileges 
assigned  to  the  ownera  of  flefr,  235  — 
cruel  custom  in  ATagon,286  note*  — 
trial  by  combat,  S:S7, 288  and  not^a  — 
the  EsUbllKhments  of  St  Louis,  238  — 
limitations  on  trial  by  combat,  240.  241, 
£42,  note  <  —  ro}al  tribunsls  and  their 
Jurisdiction,  241  —  the  court  of  peers, 
242  —  the  parliament  of  Paris  and  its 
lawyers,  243  —  Jurisdiction  of  ihe  court 
of  the  palace  325. 326  -  its  constitution, 
827  —  imperial  chamber  of  the  empire, 

573  — Its   fhnctions  and  jurisdiction, 

574  — the  six  circles  and  the  Aulie 
council,  575,  576  —  character  of  the 
king's  court  in  England.  11  125, 204,209 

—  importance  of  the  office  of  chief  Jus- 
ticiary, 125,  iio/«s— functions  of  the 
court  of  exchequer,  126  and  note  *,  208 

—  institution  of  justices  of  arsise,  126  — 
establishnient  of  the  court  of  conimon 

fleas,  127  —  orisin  of  the  common  law, 
28—  d  (Terence  between  rhe  Anglo-Sax* 
on  and  Anirln-Nonnan  systems  of  Juris* 
prudence,  128, 119  —  complicated  cbai^ 
acter  of  Koglish  laws,  130  —  nsccssity 
for  a  refonnatlon  of  the  ■tatntO'book, 


mDEX. 


683 


KING. 

181  and  iwfe  —  jarisdletioii  of    the 
king's  coimcil,341, 849,444,462  -  nlb- 

Siiard  for  the  indopendeDce  of  Jndges, 
&4,  note  *  —  rarity  of  instancea  of  Ule- 
gaJ  condemnation,  858,  869  —  origin 
and  jariadiction  of  the  court  of  chan- 
cery, 487,444. 

King's  council  (Bn|^d),inri8diction  of 
the,  ii.  841  —  its  compoeltion,  ib.  —  its 
encroachments,  848  —  limitations  on 
its  power,  844  —  mnonstrancca  of  the 
commons,  t6.  —  its  legisladre  status, 
846  — its  frequent  junction  with  the 
lords'  house,  847, 848,  and  noter  —  Tiews 
of  Sir  r.  PalgraTe  on  the  subject,  444, 
462. 

Knighthood.    See  ChiTalxy. 

Knights  Templars,  institution  of  the 
order  of,  1.  60  —  their  large  poesessiona 
and  rapacity,  ib.  and  note  *  —  question 
of  their  guilt  or  innocence,  142, 148- 
Count  I>urg8tair8  charges  against  them, 
148-146  —  Raynouard's  attempted  ref- 
utation, 146— their  estates  and  remark- 
able influence  In  Spain,  492. 

Koran,  characteristics  of  the,  i.  690-698. 

Laborers,  amount  of  wages  paid  to,  iL 
669,  660  —  difpTM  of  eomlbrt  thereby 
h}dicated,  660,  661. 

Ladialaus  of  Naples,  accession  ofl  i.  468 
~  energy  displayed  by  him,  469  —  hia 
death, 10 

Ladialaus  of  Hungary,  defeat  of  the  par- 
tisans of^  L  681  —  his  accession  to  the 
throne,  tb.  —  his  death,  682  —  suspi- 
cions relative  thereto,  ib. ,  noU. 

Lambertasd  (Imilda  de),  pathetic  stoiy 
of,  1.  887. 

Luacaater  (duke  of),  ascendency  of,  orer 
Bdw.  IlL,  U.  268  -  his  ambitious  prq}- 
acts,  i6.  —  cause  of  his  retirement  from 
court,  266  —  he  curries  fiiTor  with  the 
commons,  272,  278,  and  note  i  —  his 
quarrel  with  Arundel  and  Gloucester, 
aSl  — his  marriage  with  Katherine 
Swineford,  tfr.  —  hw  antenuptial  chil- 
dren by  her,  282 — conduct  of  Bichard 
II.  on  his  death,  287. 

Lancastrians  and  Yorkists,  wan  of  the, 
ii.  893. 

lAndo  (Michel  di\  cause  of  the  eleration 
of,  i.  419  •  -  his  just  exercise  of  power, 
ib,  —  sent  into  exile,  421. 

Landwehr,  antiquity  of  the,  I.  267,  note  >. 

Lanfranc  (archbishop},  arrogant  conduct 
of,  11.  97,  note*. 

Languages,  difllculty  of  accounting  for 
the  change  of,  L  271, 272  —  prindples 
deduclble  from  diflerence  of  language, 
282,  283. 

Languedoc,  tprsad  of  the  AlbigensiaD 
hersay  In,  i.  40  and  note  ->  deTaatation 


JLEAKNINO. 

of  the  country  by  the  papal  ibreea,  40, 
41,  and  notes--  its  cession  to  the  crown 
of  Fiance,  41  -~  its  proTindal  assembly, 
230. 

Latimer  (lord),  impeached  by  the  com- 
mons, ii.  264  —  their  Aurther  tactics  re- 
garding him,  267. 

Latin  tongue,  corruption  of  the,  IL  469. 
See  Learning. 

Laura  (Petrarch's  miatraasl.  See  Pe- 
trarch. 

Laws, characteristics  of,at  certain  periods, 
i.  288  —  study  of  the  tAra  law,  ii.  696  — 
&me  of  the  Bolognese  school,  699  — 
necessity  for  legal  knowledge  in  med- 
iaeval magiatratas,  600— unpopularity 
of  the  Roman  law  in  EnglandLOOl  — 
neglect  of  the  elder  clTilians,  602,  and 
note*.    See  Justice. 

Learning,  causes  of  the  decline  of,  ii. 
464  —  neglect  of  pagan  literature  by 
the  eariy  Christians,  466  —  blighting  in- 
fluence of  superstition  and  aweticum, 
467  —  corruption  of  the  Latin  tongue, 
469  —  rules  observed  in  its  pronuncia- 
tion ,  470, 471  —  errors  of  the  populace, 
471  —  changes  wrought  by  the  Italians 
and  French ,  473. 474  —  neglect  of  quan- 
tity, 476  —  specimens  of  verses  by  St. 
Augustin  and  others,  476, 476,  notes  — 
change  of  Latin  into  Romance,  477  — > 
Italian  corruptions  ot  the  Latin,  478  — 
effect  of  the  duuse  of  Latin ,  479  —  igno- 
rance of  various  sovereigna,  ib. ,  notes  — 
extent  of  Charlemagne'a  and  Alfined'a 
learning,  480  and  note  i  —  ignorance  of 
the  cleiigy.  480^481,  and  notes  —  scarc- 
ity of  booKS,  482  and  note  i  —  erasure 
of  manuscripts^  ib.  —  lack  of  eminent 
learned  men.  i6.  —  John  Scotua  and 
Silvester  II.,  488  and  noU  *  -—  preserva- 
tive effects  of  religion  on  the  lAtin 
tongue,  484,  486  —  non-existence  of 
libraries,  486.  note  —  prevalence  of 
superstitions,  486, 488  —  revival  of  liter- 
ature. 697  —  study  ofdvO  law,  698, 601 

—  establishment  of  public  schools,  608 

—  Abelard  and  the  universiiy  of  Paris, 
604,  606  — Oxford  unlvenl^  and  its 
founders,  606,  606,  and  noUs  —  rapid 
Increaae  of  universities,  606,  606  — 
causes  of  their  celebrity,  609  —  spread 
of  the  scholastic  philosophv,  609  —  its 
eminent  disputants,  610  —  influence  of 
Aristotle  and  of  the  church,  611, 612  — 
nnprofltableneas  of  the  scholastic  dis- 
cussiona,  612.  613  — labors  of  Roger 
Bacon  and  Albertus  Magnus,  616  and 
note  *  —  cultivation  of  the  new  lan- 
guagra,  616  —  the  troubadours  and 
their  productions,  616.  618— origin  of 
the  French  languamj|619 — early  French 
compositions,  ol9, 620  —  Norman  talea 
and  nxnanoes,  ^'  —  the  Rfirwan  de  la 


684 


INDEX. 


LEOTSLATION. 

Bom,  622  —  French  prow  writings,  628, 
624,  and  no'es  —  formatloa  of  the  Span- 
ish language:  the  Cid,  624,  625,  and 
notes  —  rapid  growth  of  the  Italian 
language,  626,  §26  —  cxcuwa  of  Italians 
for  writing  in  French,  626,  note  *  — 
Dante  and  his  Dirine  Comedj,  627, 
680  ~  Petrarch  and  his  writings,  690, 
684 — dawn  of  the  English  tongue,  U>. 

—  Layamon's  Brut,  ib.  and  note*  — 
Robert  of  Gloucester  and  other  metri- 
oal  writers,  636  —  merit  of  Piers  Plow- 
man^s  Vision,  ib.  —  cause  of  the  slow 
progress  of  the  English .  Language,  ib. 

—  earliest  compositions  in  English,  684 

—  preeminence  of  Chaucer,  687T-re- 
▼iral  of  classical  learning,  688  —  emi- 
nent cttltivators  thereof,  689—  inren- 
tion  of  paper^  640  —  tranacribers  and 
booksellers,  i6.,  note  >  —  rarity  and 
deamess  of  books,  641  —  recoTery  of 
classical  manuscripts,  642  —  eminent 
laborers  in  this  field,  642, 643  —  revival 
of  the  study  of  Greek.  644,  646  —  state 
of  learning  in  Greece,  647-  -services  ren- 
dered by  the  mediaeval  Greeks,  647, 648, 
and  notes  —  opposition  to  the  study  of 
Greek  at  Oxford,  660  —  fiune  due  to 
Eton  and  Winchester  schools,  661  — 
invention  of  printing,  ib  —  first  l>ooka 
issued  from  the  press,  662  —  first  print- 
ing presses  in  Italy,  ib.  —  elucidatory 
note  on  the  state  of  learning  in  the 
dark  ages,  664,  666  — Ih-.  Maitland's 
views  thereon,  666-669  —  earliest  use 
of  the  English  language  in  public  docu- 
ments, 664,  666 

Legislation  under  the  early  French  kings, 
1.  210  — the  "Champ  de  Mars"  or 
Field  of  March,  210, 211  —  participation 
of  the  people  in  legislative  proceedings, 
211, 822,826— Charlemagne's  legislative 
assemblies,  212  —  ceiftatiou  of  national 
assemblies,  216  —  assemblies  of  the 
barons,  216  —  the  cours  pl^nieres,  217 
•>  limitation  of  the  kind's  power,  217  — 
substitutes  for  Icgislahve  authority, 
218  —  ecdefdasticaT  councils  and  their 
encroachments,  tfr.  — general  legislsi- 
tion,  when  first  practised,  i6. —  increase 
of  the  l^islative  power  of  the  crown, 
and  its  causes,  219,  220 — convocation 
of  the  States-General.  221  —  constitu- 
tion of  the  Saxon  witenagemot,  ii.  72 

—  Anglo-Norman  legislation,  118, 114, 
and  note  —  prerogatives  of  the  crown, 
194—  custom  of  the  Anglo-Saxon  kings, 
196.  See  Justice,  Parliament,  States- 
General. 

Leo  the  Great  deposes  Hilary,  i.  688, 
nou*. 

Leo  III.  invests  Charlemagne  with  the 
imperial  insignia,  i.  26  —  hb  desien  of 
marrying  Charlemagne  to  Irene,  127  — 


LOVGCRAKP. 

Charlemagne's  authority   over   hbn, 
658. 

Leo  Tin.  confers  on  the  emperor  the 
right  of  nominating  popes,  i.  668  and 
note'. 

Leo  IX.  leads  his  army  in  person,  i.  851 
—  devotion  of  his  conquerors  towards 
him,  i6.    See  Papal  Power. 

Leon,  foundation  of  the  kingdom  of,  i. 
487 -its  king  killed  in  battle,  488  — 
Its  union  with  Castile,  492. 

Leopold  of  Austria  defeated  by  the  Swiss, 
i.686. 

Libraries  in  the  fourteenth  and  fiitecntli 
centuries,  ii.  641, 642,  and  notes. 

Literature.    See  Leamiog. 

Lollards,  rise  of  the,  ii.  674—  thetr  re- 
semblance to  the  Puritans,  674. 

Lombards,  original  settlement  of  the.  I. 
21,22, no/«i— extension  of  their  do- 
minions, 22  — defeated  by  Pepin  and 
Charlemagne,  lA.—  their  mode  of  legis- 
lating, 260  — position  of  their  Roman 
subiJects,  287  —  progress  of  their  citiea, 
861  —  ih^queucy  of  wars  between  them, 
852 — at  quisition  of  territories  by  tliem, 
866  —  democratic  tyranny  of  the  larger 
cities,  866  —  destruction  of  Lodi  by  the 
Milanese,  ib.  and  note* — courage  of 
the  citiaens  of  Como,  857  —  exclusion 
of  royal  palaces  finom  Lombard  cities, 
t&.  —  siege  and  sutyugatlon  of  Milan  by 
Frederic  Barbarossa,  858, 850  —  eflbrts 
of  the  Milanese  to  Kgain  their  freedom, 
369- destrucUon    of    Milan,    860  — 
league  of  the  Lombard  cities,  £6.— defeat 
and  flight  of  Barbarossa,  862  —  peace  of 
Constance,  ib.  —  their  successful  resist- 
ance a  lesson  to  tyrants, 868, 864  —  their 
wars  with  Frederic  II.,  873  —  party  na- 
ture of  these  struggles,  874  —  amn|jEe- 
ment  of  the  Lombard  cities,  874, 87o — 
checkered  results  of  their  conflicts  with 
Frederic,  876  —  their  papal  sunportera, 
t6.— causes  of  their  success,  87o  —  their 
means  of  defence,  880  —  internal  goT- 
emment  of  their  cities j3Bl — revival 
of  the  office  of  podesti,  882  —  poaitioai 
of  ariKtocratic  offenders  amongst  them, 
ib.  —  duties  and  disabilities  of  the  po- 
desti,  888— their  internal  dissensiotts, 
883,  884  — artisan  clubs  and  aristo- 
cratic fortifications,  886  —  Tlndictlve- 
ness  of  conquerors  of  all  classes,  886  •— 
inflammatory  nature  of  priv^e  quar- 
rels, and  their  disastrous  results,  887  — 
eflect  of  Giovanni  di  Vicensa's  exhorta- 
tions, 888, 889  —  moral  dedudble  from 
the  fiOl  of  the  Lombard  republics,  8S2, 
898— the  Vlsconti  in  Lombardy,  445. 
See  Visconti. 
Longchamp   (William,  bishop   of  EIy). 
constitutional  preoedentestablishcd  by 
the  banishment  of,  ii.  116. 


D!n)EX. 


685 


LOKDOK. 

London,  early  election  of  the  magtetntes 
of,  ii.  417  —  its  muoicipal  dirisiona, 
417 — its  first  lord  mayor,  419 — notex- 
elusively  a  city  of  traders,  420  — its  ex  • 
tent  and  popalation,  t6.  — comparison 
with  Paris,  421. 

Loria  (Roger  di  X  naTal  snocesses  of,  i. 
464. 

Lothaire  (son  of  Loals  the  Debonair), 
associated  in  power  with  his  fotber,  i. 

28  — his  Jealousy  of  his  half-broUier, 

29  — territories  allotted  to  him,  29,  80, 
and  notes  *,  > — cause  of  his  excommuni- 
cation, 641, 642. 

Lothaire  (duke  of  Saxony),  elected  em- 

Sror  of  Germany,  i.  660  and  note  i  — 
lure  of  his  scheme  of  succession,  661 
—  the  picture  and  couplet  relatlTe  to 
his  coronation,  066,  note  ^ 

Louis  of  BaTaria,  emperor  of  Germany, 
i.  668  —  his  contest  with  the  popes, 
ii.  80  —he  aidJ>  the  Ylsconti,  81— he  diet 
unabsoWed,  82. 

Louis  I.  (the  Debonair)  succeeds  Charle- 
magne; his  cruelty  to  his  nephew.  1. 
27— his  character,  28  — aMociatea  nis 
sons  In  power  with  him,  f6.— his  second 
marriage  an<f  its  consequences,  29  — 
enmity  of  the  clergy  against  him,  f6.  — 
bis  practice  relative  to  the  hearing  of 
causes,  234,  note  i  —  his  attempted  de- 
position by  the  bishops,  628,  629  — 
he  prohibits  trial  by  ordeal,  U.  487, 
note*. 

Louis  of  Germany  (son  of  the  above), 
made  king  of  Bavaria  by  his  Ikther, 
i.  28  —  share  of  empire  allotted^  him 
on  his  flither's  death,  29. 

Louis  IL  (the  Stammerer),  condition! 
exacted  by  the  French  nobles  flrom,  L 
13L 

Louis  rv.  (**Onti«mer'*)  elected  king, 
L  188  — FuUt's  saucy  retort,  iL  479, 
notn*. 

Louis  v.,  1. 81, 138. 

Louis  YI.,  state  of  Trance  at  the  acces- 
sion of,  L  87  —  his  contests  with  the 
Norman  princes,  f6.  —  his  participation 
in  judicial  matters,  288,  note^. 

Louis  VII.,  untoward  marriage  of,  and 
its  consequences,  i.  88  —  confirms  the 
rights  of  the  clergy,  89— Joins  in  the 
second  crusade,  49— liia  snbmisaiTencss 
to  Rome,  ii.  21. 

Louis  VIII.  opposes  Raymond  of  Tou- 
louse, i.  41  -  issues  an  ordinance  against 
the  Jews,  218. 

Louis  IX.  (Saint  Lonls),  accession  of,  I. 
42  —  rerolt  of  the  barons  against  him, 
tb.  —  exrellenees  of  his  character,  his 
rare  probity,  &c.,  42,  48— undue  in- 
fluence exercised  over  him  by  his 
mother,  44-»his  sui  erstltiou,  i6.  and 
«Ml«-— lie  ombarks  in  tlie  crusades,  46 — 


MAHOMET  II. 

calamitous  results  of  his  first  cmsade, 
62  —  his  second  expedition  and  death, 
ib.  —his  Establishments,  219, 220,  289 
—  his  open-air  administrations  of  Jus- 
tice, 289  —  the  Pracmatic  Sanction  and 
its  provisions,  ii.  12  and  noie>  — his 
submlsKiveneflS  to  the  church,  24  —  his 
restraint  on  the  church  holding  land, 
24  and  note. 

Louis  X.  (Louis  Hutin),  accession  and 
death  ot  i«  66—  treatment  of  his  queen 
and  fiimUy  by  Philip  the  Long,  67—  his 
edict  for  the  abolition  of  serfdcHn,200 — 
he  renounces  certain  taxes,  228. 

Louis  XI.,  accession  of.  i.  94— his  cliar* 
acter'and  policy,  94,  d6  —  bestows  Nor- 
mandy on  his  brother  as  an  appanage, 
96  —  and  then  deprives  him  of  it,  95  — 
grants  pensions  to  the  English  king 
and  his  nobles,  96,  97  — his  contests 
with  Charles  of  Burgundy.  97,  98,  and 
Mol^j— and  with  Maxy  of  Burgundy, 
101,  102,  and  notes  —  his  last  sickness 
and  its  terrors,  108— his  belief  in  rel- 
ics, ib.  and  note  —  court  boast  relative 
to  his  encroachments,  280  —>  civic  liber* 
ty  encouraged  by  him,  246—  he  repeals 
the  Prsgmatie  Sanction,  il.  60  — his 
people  oppose  the  repeal,  ib.  —  his 
treatment  of  cardinal  Balue,  68,  noU*. 

Louis  XII     See  Orleans. 

Louis  of  Hungary  invades  Naples,  i.  466. 

Lonls  of  AnJou  adopted  by  Joanna  of 
Naples,  i.  467  —  his  death,  468. 

Louis  II.,  of  AnJou  and  Naples,  acces- 
sion oi;  i.  468  — subdued  by  Ladls- 
laus,  ib. 

Louis  III.  of  AnJou  and  Naples  called  in 
by  Joanna  II.,  i.  469— his  doubtful 
prospects,  and  death,  470. 

Lucius  II.  (pope),  cause  of  the  death  of, 
i.400. 

Luna  (Alvaro  de).  Influence  cxeretsed 
bv.  i.  499 — disgraced  and  beheaded, 
60(}  —  law  on  which  his  opponents  re- 
lied, 619. 

Luna  (Antonj^  de),  assasdnates  the  arch- 
bishop of  Saragoesa,  i.  622. 

Luna  (Frederic,  count  ofX  elaims  the 
throne  of  Aragoo,  i.  621 — care  taken  of 
his  interests  by  the  court,  622. 

Luna  ( Peter  de ).    See  Benedict  XIIT. 

Lupus  Servatus,  literary  performances 
of,  ii  655,  note  K 

Luxemburg  (John  of),  execution  of  pris- 
oners cf  war  by,  i.  91  —  betrays  Joan 
of  Arc  to  the  English,  92,  nou  K 

Magna  (Htarta.    See  England. 

Mahomet  the  prophet.    See  Mohammed. 

Mahomet  II.  attacks  the  Venetians,  L 
472  —  his  success,  475  —  fiiilure  of  his 
assault  upon  Belgrade,  682 — be  cap- 
torss  Constantinople,  610 — unreaUssd 


686 


INDEX. 


XANDATS. 

iichemes  for  hln  expulskm,  611—- 
hiH  European  rurceMes  and  reTenes, 
61S  —  XueaB  SylTiiu's  odd  pxoposalj 
612,  note. 

MandatB  and  their  abuM»,  II.  11. 

Uanfred,  brare  rpteDtlon  of  the  unperial 
throne  by,  i.  877  —  killed.  8&1. 

MankheuDS.     Bie  Religioui  Sects. 

MannerH.  See  Chivalry,  Domeetio  LUb, 
Learning,  BuperRtition. 

Manufiictures.     See  Trade. 

Manaffcriptn.    8ce  Learning. 

Uarcel  (MngiRtrate  of  Paris),  why  ataat- 
fiinated,i.228. 

Uarrh  (Roger,  earl  of ),  oppop^a  the  duke 
of  Lancanter,  ii.  2G4  —  bla  significant 
policy,  266— his  popularity  with  the 
parliament,  272  —  h\n  exclusion  fhHn 
the  throne,  18B,  893— clemency  of 
Henry  V.  towards  him,  888. 

Margaret  of  Aqjou  married  toHeni^  VI., 
ii  804  —  consequences  of  her  impolicy, 
898,  896.    Sec  Heniy  VI. 

Mariner^a  compass,  tradition  of  the  In- 
vention of  the,  it.  £22,  £28. 

Maritime  laws  of  early  times,  Ii.  £28 — 
prevalence  of  piracy,  £24  —  law  of  re- 
prisals, £25. 

Marriages,  capricious  decrees  of  thepopcc 
concerning,  ii.  6  —  dispenaaUons  and 
their  abuses,  t6. 

Martin  (prince  of  Aragon),  marries  the 
queen  of  Sicily,  1  470  —  his  death ,  ib. 

Martin  (king  of  Aragon),  succeeds  to  his 
son^s  Sicilmn  dominions,  i.  470 — con- 
tests for  the  Aragonese  throne  at  his 
death,  £20. 

Martin  V.  elected  pope,  ii.  42 — he  con- 
vokes the  council  of  Pa  via,  ib.  —his 
anger  at  the  English  statute  of  pnemu- 
nire,  46,  noie»  —  his  concordat  with 
England,  46  —  powers  reserved  to  him 
by  the  German  concordats,  48  —  re- 
jection of  his  coocordnt  by  France,  49. 

Marv  of  Burgundy.    See  Burgundy. 

Mati!da  (countess),  bequeaths  her  domin- 
ions to  Rome,  I.  866.       « 

Matthias  Corvinus.    See  Gorvlnna. 

Maximilian  of  Austria  marries  Mary  of 
Burgundy,  i  102  —  becomes  king  of  the 
Romans,  £71  and  notes — ascends  the 
German  throne,  £72  —  he  extinguishes 
the  robber-nobles,  £78 — institutes  the 
Aalic  council,  £76  —  extent  of  the  em- 
pire at  his  accession,  £77. 

Mavor  of  the  palace,  importance  of  the 
office  of,  I.  20,  119,  120,  159  See 
Charles  Martel,  Pepin  Ileristal,  Ebmin. 

Medici  (Salvestro  de^).  proposes  to  miti- 
gate the  severity  of  the  law  in  Flor- 
ence, I.  417  —  rise  of  his  fiuully,  477  — 
character  of  Giovanni,  ib.  and  note  — 
banishment  and  recall  of  Conuo,  478 — 
hla  death:  hii  aon  Plero,  479— death  of 


VOHAUMBD. 

Julian :  popularity  and  prinoelj 
of  Lorenao,  480  —  hbi  bankmptcv  rv- 
paired  at  the  cost  of  the  state,  48  and 
note  3 — his  title  to  esteem,  482. 
Mendicant  firiars,  first  appearance  of  th«, 
ii.  4  — success  of  their  pirachings,  5 

—  their  extensive  privileges,  i6.,  6,  and 
notes. 

Mercenary  troopa.  See  Militaiy  Sys- 
tems. , 

Merovingian  dynasty,  character  of  the 
times  during  which  it  ruled,  1.  19  — 
chronological  sketch  of  its  career,  128- 
126. 

Middle  ages,  period  comprised  under  tbm 
term,  il.  468. 

Milan,  resolute  conduct  of  the  people  ofl 
in  the  choice  of  a  bishop,  i.  8£8  and 
note  <  —  its  riege  by  Frederic  I. .  860  — 
destruction  of  the  city,  860  —  its  sta- 
tistics in  the  18th  century,  879— its 
public  works,  880  — creation  of  the 
duchy  of  Milan,  897  — lax  conduct  of 
the  Milanese  clergy,  667,  mou  K  Sea 
Lombards. 

Military  systems  of  the  middle  ages, 
character  of  the  Enelish  troops  at 
Crecy ,  Poitiers,  and  Asincourt,  i.  64, 85 

—  disadvantagea  of  feudal  obligatlona 
in  long  campaigns.  266.  266 — substi- 
tution of  mercenaries,  267— Canute's 
soldiers,  and  his  institutes  respecting 
them,  2a8  and  note  *  —  the  mercenaries 
of  the  Anglo-Norman  kings,  258  —  ad- 
vantages of  mercenary  troops,  268  — 
high  rate  of  pay  to  English  soldiers, 
8£a1)d  no«>s,  269- establishment  of  a 
regular  force  by  Charles  VIL.266  — 
military  resources  of  the  Italian  cities, 
448 — importance  of  their  carrocdo,  ib. 
and  note*  —  their  forrign  auxiliaries, 
449 — arms  and  armor,  460  and  note  > — 
citiaens  excused  firom  service,  460  — 
companies  of  adventurers:  Guamleri^ 
systematic  levies,  4£2—  spirited  refusal 
of  tribute  by  Florence.  4U  —  Sir  John 
Hawkwood's  career,  (see  Hawkwood] 

—  eminvnt  Italian  generals  and  their 
services,  4££,  4fi6  —  probable  first  in- 
stance of  half-pay,  466  and  note*  — 
small  losa  of  life  In  mediaeval  warfkre. 
466,  4£7,  and  api^s  — long  bows  and 
cross  bows,  467, 4fi8  —  advantages  and 
disadvantages  of  armor,  468  — intro- 
duction of  gunpowder,  4w— clumsineas 
of  early  artillery  and  fire-arms,  406 —> 
IncreaMd  efficiency  of  infiintry,  461. 

Morenlgo  (doge),  dying  prophecy  of,  i. 
446, 447,  and  note. 

Mogub,  ravages  of  the,  i.  606— their  ex- 
ploits under  limur,  608. 

Mohammed,  advent  of,  i  690  — stats  of 
Arabia  at  the  time,  691  — dearth  of 
mafrhils  fiw  his  hlstoiy,  ib,,  mou^" 


INDEX. 


687 


MONARCHY. 

ebaneterlstlcs  of  his  writings,  601, 688 

—  hi3  knowledge  of  Chriittianity  whence 
derlvoi,  592,  iiote  ^  —  martial  spirit  of 
h\»  system,  O&A,  681  —  career  of  liin  fol- 
lowers. See  Abbaasides,  Moon,  Otto- 
mans, Saracens,  Turiu. 

Monarchy  in  France,  character  of  the,  L 
21 1,  note  —means  by  which  it  became 
absolute,  220  —  its  power  of  enacting 
lawn  unlimited,  226,  note  >. 

MonasterltMi,  cultiration  of  waste  landa 
by.  1. 613  —  loss  pure  sottrre<<  of  income. 
618  —  their  exemption  from  epUicopal 
control,  610  and  note^ — preserration 
of  booki  by  them,  11.  431 — extent  of 
their  charities,  4H  and  note  —rices  of 
their  inmates,  433  —  their  anti-social 
induence,  49 }  —  their  agricultural  ex- 
ertions, 543  and  note. 

Money,  hi2;:i  interest  pUd  for.  ii.  527  — 
eatablUhment  of  piper  credit,  SZd  and 
note  1  —  b&Bka  of  I  taly ,  539  —  securities 
for  public  loan9,«6. —changes  in  the 
Talue  of  money ,  554-557  —  comparative 
table  of  value,  537,  note.    Sue  Coining. 

Montagu  (minbter  of  Charles  VI. ),  arrest 
of,  i.  77,  note^. 

Montfort  (Simon  dc),  heads  the  orosade 
agiinst  the  AlbigcoL<i,  i.  41. 

Moatfort  (Simon  de,  earl  of  Leicester), 
his  writ4  of  summons  to  the  towns  of 
England,  ii.  237. 

Montfort  (ally  of  Edward  III.)  obtains 
the  duchy  of  Britany.  i.  105. 

Moors,  successes  of  the  Spaniards  against 
the,  i.  437— victories  of  Alfonso  y  I  ,488 

—  Cordova  taken  from  them,  493  —  its 
(kbulous  extent  and  weilth  ib.^note^ 

—  cause  of  their  non-expulsion  firom 
Spain,  493,  494. 

Mosheim,  error  of,  relative  to  Louis  IX., 
i.  41.  notfs-K 

Mojrbriy  (earl  of  Nottingham  and  duke 
of  Norfolk),  mvle  lord  appellant,  IL 
279 —  ho  e.<«poums  t*ie  kiag'K  interest, 
281  —  his  quarrel  with  Bolingbrokeand 
it4  results,  286  and  note  >. 

Manicipal  institutions  of  the  Roman 
provincial  cities,  i.  827  —  importan(*e  of 
the  oOlce  of  defbnsor  elvitatin,  329  — 
dudes  appertaining  to  it,  ib.  —  re-ipon-> 
•ibilities  of  the  decurions,  aiO  — the 
senatorial  orders,  33)^2  — cirie  posi- 
tion of  the  Prank  bishops,  333  —  muni- 
cipal government  of  the  Krank  cities, 
3^}!,  3i>— oorpor.ife  towns  of  Spain, 
8^3*1  —of  Prance.  33)  '- their  strug^^les 
for  ftecdom,  83  \  33 f  —  early  indepen- 
dence of  the  Vle'miih  and  Datch  cities, 
Sir  —origin  of  the  French  communes, 
833,  839  —  growth  of  the  burgages,  310 

—  polley  of  Loois  XI.  relative  to  civie 
liberty,  ib.  —  Italian  municipalities, 
811,  m  [iM  Lombttds] — fraa  citlM  of 


KORMANS. 

Gemumy  [see  Germany].  See  PwUft- 
ment.  Towns. 
Murder,  gradation  of  fines  levied  as  pun« 
ishment  for,  amongst  the  Franks,  i.  152, 
153,  and  notis,  197  and  nole*,  274  — 
rates  of  compensation  amongst  tha 
Anglo-Saxons,  U.  (>8,  69. 

Naples  subjugated  by  Roger  Gulseard,  i. 
Sol  —  contest  for  its  crown  betweea 
Manfred  and  Charles  of  Anjoa.  891  ~> 
murder  of  the  rightful  heir  by  iJharles, 
392  —  schemes  relative  to  the  severance 
of  .Sicily,  4'i3,  [see  Sicily]  —  accession  of 
Robert,  465  —  queen  Joanna  and  her 
murdensd  liuslxind,  466  and  note  i  — 
Louis  of  At^u  and  Charles  111.,  467, 
468  —  leign  of  Louis  II.,  468  —ambition 
of  the  young  king  Ladislaus,  499  —  his 
death,  tb.  —Joanna  11.,  her  vices  and 
her  favorites.  469.  470,  and  471,  nott  — 
career  of  Alfonso,  472,  [see  Alfonso  V.l 

—  invasion  of  the  lilngdom  by  John  of 
CUabri  I,  473  —  his  failure,  474  —  Fer- 
dinand secured  on  the  throne,  ib.  — 
his  odious  rule,  482. 

Navarre,  origin  of  the  kingdom  of,  i.  487, 
488. 

Neustria,  extent  of  the  dominions  so 
termed,  i.  20,  note* — its  peculiar  fta> 
tures  as  distinguished  from  Austr&siay 
123  -when  first  erected  into  a  king^ 
dom,  124  and  note  —-destruction  of  ita 
independence,  125. 

Nevil  (lord),  impeached  by  the  commons, 
ii.  261. 

Nicolas  II.  (pope),  innovations  intro- 
duced by,  ii.  175- 

Nobility,  origin  of,  in  France,  i.  159, 160, 
and  note,  idH  —  privileges  conferred  on 
the  class,  191  —  consequences  of  mar- 
riage with  plebeians,  1^2— letters  o( 
nobility  when  first  granted,  193 —dif- 
ferent orders,  and  rights  l)elonging  to 
each,  193  —their  gallows  distinctions, 
t6.,  note  * —  their  right  to  coin  money, 
a08,  204  —  to  levy  private  war,  205  — 
characteristics  of  the  early  Frank  no- 
bility, 800,  8  J8— excesses  of  the  Flor- 
entine nobility,  407,  408  —  tnrbulenco 
of  the  Spanish  nobles,  496  -  contests 
of  the  German  nobles  with  the  cities, 
5'38, 569— rural  nobility,  how sapported, 
571,  572  —  their  career,  how  chocked, 
672  -  source  of  the  intluence  of  tlie  Eng- 
lish nobility,  ii.  3)6  — their  patronage 
of  roblM»rs  8  9  —  German  robber  lords, 
&)5  —  legislative  province  of  the  Eng- 
lish nobility  [see  Parliament]. 

Norfolk  (earl  and  duke  of).  See  Bigod, 
Mowbray. 

Normans,  piratical  porsnits  of  the,  \.  88 

—  their  plan  of  wsjrfore,  84 — sufleringi 
of  the  olMgy  at  tbdr  baodi.  ib.  —  tkmt 


688 


INDEX. 


HOTTINOHAM. 

•ODTiBWton  and  Battlement  in  France, 
tfr.  —  terror  excited  by  their  audacity, 
188,  189  —  beneficial  eflbcts  of  the'ir 
conTersion,  189  —  their  incarslona  into 
Italy,  851  and  note  i  —  Buceeasee  of 
their  leaders,  861  —  tbrtr  inTaeion  of 
England  [see  England]. 
Nottingham  (earl  of).    See  Mowbray. 

Oaths,  papal  dispenaations  from,  ii.  8  — 
notable  instances  thereof,  9,  note  K 

Odo  (archbishop).    See  Dunstan. 

Oleron,  laws  of,  ii.  624. 

Ordeals,  nature  of,  ii.  486,  i87— stories 
of  queens  Emma  and  Cunegnnda,  488, 
note  1  —  instance  of  a  fidlure  of  the 
water  ordeal  and  its  oonsequeQces,  128, 
note  *. 

Orleans  (Louls,dukeof)i  alleged  amooia  of, 
with  queen  Isabel,  i.  78,  note  *  —  loses 
his  popularity,  78  — his  assassination 
and  its  probable  causes,  79  and  notes  — 
commotions  which  ensued,  80,  81. 

Orleans  (liouis,  duke  of.  afterwards  Louis 
XII.)  claims  the  regency  during  the 
minority  of  Charles  VIII. ,  i.  104  — in- 
stigates the  conTocation  of  the  States- 
General,  281. 

Ostrogoths,  occupation  of  Italy,  by  the,  i. 
16  —annihilation  of  their  dominion,  21 

—  Roman  Jurisprudence  adopted  by 
them,  154. 

Othman.     See  Ottomans. 

Otho  I.  (the  great),  benefits  conferred 
upon  Germany  by,  i.  646. 

Otho  II.  and  III.  chosen  emperors  of 
Germany,  1.  646. 

Otho  lY.  aided  by  the  Milanese  i.  868  — 
enmity  of  the  pope  towards  mm,  870  — 
its  consequences,  558  —  obtains  a  dis- 
pensation from  Innocent  III.,  ii.  8  — 
rights  surrendered  by  him  to  Innocent, 
10,  128  and  note  ». 

Ottoman  dynasty ,  founded  by  Othman, 
i.  607  —  tbcir  European  conquests,  «6. 

—  their  nvofKe^.  aud  reTiral  under 
Amnrath,  609,  610  —  they  capture  Con- 
stantinople ,  610  —  European  alarm  ex- 
cited thereby,  (ill  —  institution  of  the 
JanisarieK,  612  —  ruKpension  of  Otto- 
man conquests,  613. 

Oxford  uuiversity.     See  Learning. 

Pagan  superstitions,  cause  of  the  limited 
influence  of,  1.  140 

Palaces  (royal I,  why  e.«cludcd  from  Lom- 
bard cities,  i .  857. 

Palermo,  foundation  ot  rilk  manuiketure 
in,  U.  621. 

Palestine,  commercial  Talae  of  the  settle- 
ments in,  ii.  519.    See  Crusades. 

Pandects,  discoTery  of  the,  ii.  599. 

Papal  power,  first  germ  of  the,  1.  681, 
682  — preceded   by  the  patriaxchi^ 


PAPAL. 

ib  —  obaraeterofGrsgwy  L,684— hla 
wary  proceedings,  i6.  and  notes —  con- 
Tocation of  the  synod  of  Frankfort  by 
Boniface,  687,  688.  and  aetes  — effect 
produced  by  the  False  Decretals,  6^, 
689,  and  noles^  U.  19  —  papal  encroach- 
ments on  the  hierarchy,  i.  689 — ex- 
emption of  monasteries  from  episcopal 
control,  640  and  note^  —  kings  com- 
pelled to  succumb  to  papal  supremacy, 
641  —  origin   of  excommunications,  i6. 

—  helpless  position  of  excommunicated 
persons,  648  —  interdicts  and  their  dis- 
astrous consequences,  ib. — ftirtber  in- 
terference with  regal  rights  by  the 
popes,  646  —  scancUlous  state  of  the 
papacy  in  the  tenth  century,  646  —  Leo 
IX. 's  reformatory  efforts,  648  —  pren^- 
atlTes  of  the  emperors  relatiTe  to 
papal  elections,  662, 668  —  inooTationi 
of  pope  Nicolas  II.,  668  —  election  and 
death  of  Alexander  II  ,  654  —  career  of 
Gregory  VII.  [fee  Gregory  VII.J  — 
contests  of  his  successon  aith  Ilenrj 
1 Y.  and  V.  of  Germany,  668  -  Ca.{xtttB 
II.  and  the  concordat  of  Worms,  tb.  — 

Spal  opposition  to  InTestitures,  651, 
9,  660,  and  notes — abrogation  of  eo- 
clef iaf tical  independence,  6f8  —  papal 
legates  and  their  functions,  664  —  Alex- 
ander III.  and  Thomas  4  Bccket,665 

—  career  of  Innocent  III.  free  Innocent 
III.] —  height  of  the  papal  power  in  the 
18th  century,  ii.  1  —  promulgation  of 
the  canon  law,  2  —  its  analogy  to  the 
Justinian  code,  8  and  notes  —  estab- 
lishment of  the  mendicant   friars,  4 

—  dispensations  of  marriage,  6,  7, 
and  fir»fM  —  dispensations  fkom  oaths, 
8  —  encroachments  on  epiiwopal  eice- 
tions,  9  —  and  on  rights  of  patronage, 
10  — mandats  and  their  abuse,  11  — 
the  Pragmatic  Sanction,  12  and  nots 

—  pretexts  for  taxing  the  clergy,  18, 
14  —  clerical  dlsaffectian  towards  the 
popes,  16  -  propess  of  eorlesisstical 
jurisdiction,  l6, 19  —  opposition  there- 
to by  England,  20  and  nof^s  —  lUnt 
opposition  of  France,  22  —  career  of 
Boniface  Ylll.   [rae   Boniface   VIII. j 

—  decline  of  the  pspacy,  29  —  remoTal 
of  the  papal  court  to  ATignon,  SO—  its 
contests  with  Louis  of  Bavaria,  ib.  — 
growing  resistance  to  the  popes,  32  — 
rapacity  of  the  Arignon  popes.  88  — 
participation  of  the  French  kings  in 
the  plunder,  84  —  independent  con- 
duct of  Englacd.  86  and  notes  ~  return 
of  the  popes  to  Borne,  86  —  contest  be- 
tween Urban  VI.  and  Clement  \n..ib. 

—  tiie  t^'O  pspal  courts,  88  —  three 
contemporaxT  popes,  ib.  —  proceedings 
at  the  councils  of  Pisa,  Constance,  and 
Baito,  89  [see  Councils]  —  rellectioiu 


INDEX. 


689 


PAFBR. 

perdnent  thereto,  44,  47  —  eflbets  of 
the  concordat  of  Aachaflbaburgy  48^ 
papal  eacroachmentii  in  Castile,  48  — 
reatraints  thereon  in   Fmnce,  49,  61 

—  fhrtber  limits  on  ecclesiastical  Juri»- 
dietion,  62,  64,  and  notes  —  decline  of 
papal  Inflaence  in  Italy,  and  its  causes, 
64  —  despicable  nature  of  later  inter- 
dicts, 1*6.,  noteK  See  Chnrch,  Clergy, 
Monasteries. 

Paper  from  linen,  when  Invented,  ii.  640 
and  HoteK 

Paris,  seditions  at,  L  76  —  defeat  and 
harsh  treatment  of  its  citlaens,  76  and 
notts  —  their  fear  of  the  Normans,  188 

—  population  of  the  city  in  early  times, 
U.  421.    See  Parliament  of  Paris. 

Parishes,  origin  of,  i.  618  and  noU*— 
their  slow  growth,  619. 

Parliament  of  England,  constituent  ele* 
ments  of  the,  11.  216  —  right  by  which 
the  spiritual  peers  sit,  216,  2lt,  826— 

*  earls  and  barons,  217  —  theories  of  Sel- 
den  and  Midox,  21S,  221  —  tenants  in 
chief  in  parliament,  ^l,  222— first  germ 
of  representation ,  !£28, 224,  and  note  *  — 
oounty  representatioQ,  223  —  parlia- 
ments of  Henry  III ,  224.  225,  and  notfs 

—  knights  of  the  shire,  how  elected,  226, 
280  —  first  summoning  of  towns  to  par- 
liament, 237  and  note  '  — question  of  an 
earlier  date  discussed,  WS,  23d,  and 
notes— th»  parliament  of  Acton  Bumell, 
240,  note* — the  Barnstaple  petition,  ib. 

—  cause  of  summoning  deputies  from 
boroughs,  244, 216  —  dirision  of  parlia- 
ment into  two  houses,  243  —  proper 
business  of  the  house  of  commons.  248 

—  complaint  of  the  commons  in  1300, 
240 — rights  established  bv  them,  251  — 
their  straggles  with  the  king  relative  to 
tazaUon,  251,  &S5  —concurrence  of  both 
houses  in  legiolation  made  necessary. 
266  —  dtotlnction  between  statutes  and 
ordinances,  258,  261  —  interference  of 

Srllament  hi  matters  of  war  and  peace, 
1,  262  —  right  to  inquire  into  publie 
abuses,  262  —  increaae  of  the  power  of 
the  commons  under  Richard  II.,  266  — 
their  protests  against  larish  expendi- 
ture, 267-269— success  of  their  demands 
for  aceounts,  269  —  boldness  of  their  re- 
monstrances, 270-272  —  they  aid  the 
duke  of  Lancaster,  278,  note  *■  —  their 


PASLIAJfBNT. 

their  constitutional  adranoes  under  the 
house  of  Laneasterji'fr.  —  their  exclnslTe 
right  of  taxation,  290, 292  —  their  right 
of  granting  and  controlling  supplTei^ 
292  — and  to  make  same  depend  on  re- 
dress of  grievanoee,  292, 293  —establish- 
ment of  their  legislatire  righto,  298, 294 

—  &Isifleatiou  of  their  intentions  how' 
accomplished,  234,  296  —  their  first 
petition  in  English,  296  —  introduction 
of  bills,  public  and  private,  297  —  legis- 
latire dirislons  of  king,  lords,  and 
commons,  297,  note*  —  parliamentary 
interference  with  royal  expenditure,  29i8 
— llmitaUons  laid  on  Henry  IV.,  290, 800 
— reestablishment  of  a  good  under- 
standing with  him,  801  —  harmony  be- 
tween Henry  V.  and  the  parliament, 
ib.  —  parliamentary  advice  sought  on 
public  afEtirs,  802  —  their  right  to  im- 
peach ministers,  804— Henry  VI.'s  mode 
of  evading  SuflTollc's  impeachment,  ib, 
— assertion  of  the  privilege  of  parlia- 
ment, 805  —  oases  of  lArk  and  Clerke, 
936  —  principles  Involved  in  Thorpes 
case,  ib.  —  infringemento  on  liberty  of 
speech,  807  — privilege  of  originating 
money-bills.  806, 811  —  the  three  estates 
of  the  realm,  810,  note* — eourse  of 

(>roceeding  on  other  bills,  811,  812  — 
nstanoe  of  excess  of  privilege,  813  — 
contested  elections  and  proceedings 
thereon,  818, 814  —  county  firanchise,  m 
whom  vested,  815  and  note  —  represen- 
tation of  towns,  316. 817  —  partial  omis- 
sion of  boroughs,  817, 818,  and  notes  — 
reluotanoe  of  boroughs  to  tend  mem- 
bers, 819  —  in  whom  the  right  to  vote 
was  vested,  820,  821,  and  note»^ 
status  of  the  members,  821  —  exclusion 
of  lawyers  flrom  the  commons'  house, 
822 —  members  oxjelnally  compelled  to 
be  residentii,  822,  W  —  elecUon  irregu- 
larities and  crown    interference,  WA, 

825  —constitution  of  the  house  of  lords, 
ib.  —  qualification  of  spiritual  barons, 

826  barons  by  writ,  827, 829,  and  notes 

—  distinction  between  barons  and  ban- 
nerets, 829,  882  —  creation  of  peers  by 
statute  and  by  patent,  833,  £84  —  cler- 

a summoned  to  send  representatives, 
,  840  —  remonstrances  of  the  com- 
mons against  the  encroachmento  of  the 
council,  848,  844. 


charges  against  the  earl  of  Suffolk,  274,    Parliament  of  Paris,  constitution  and  sit- 


276  —submission  of  Richard  to  their 
demands.  276, 277 — they  come  to  an  nn- 
derstandlng  with  him,  280, 281  —  ther 
fUl  under  his  displeasure,  282  —  servlL 
Itj  of  their  submission,  288.  284  — 
necessity  for  deposing  Richard,  287—' 
cautious  proceedings  of  parliament 
thereupon,  288, 289— rights  acquired  by 
the  commons  during  Us  raign,  990 — 

YOU  II.— X  44 


tings  of  the,  I.  242 —  progress  of  Its  jn- 
zisdUetion,  244  —  enregistratlon  of  royal 
decrees  confided  to  it,  246 —its  spirited 
conduct  in  reference  thereto,  ib.  —  inter- 
ference of  the  kings  with  Ito  privileges, 
t6.  —  establishment  of  Ito  independrace 
by  Louis  XT.,  246  — Ito  claims  on  the 
respect  of  posterity,  ib.  —  important  int' 
diuance  of  ChariM  Y.,  tt.  864,  iMis  >. 


INDEX. 


691 


POITIBHB. 

Poltien,  buttle  of.    See  EAmrd  lit. 

Poland,  polity  of,  not  baaed  on  feudaUty, 
I.  187. 

Pole  (Michael  de  la,  earl  of  Suffolk ),  rao- 
ceeds  Serope  an  chancellor,  U.  278  — 
refu9al  of  llichard  II  to  dinniag  him, 
274  —  hill  impeachment  and  nentence, 
276  —  Bubfiequent  proceedings  relatire 
to  hfan,  279. 

Porcaro,  revolt  and  death  of.  i.  408. 

Pragmatic  Sanction  of  Bonrgee,  ii.  60  — 
repealed  by  Louis  XI.,  ib,  —its  popu- 
larity with  the  people,  \b.  —  libertlea 
secured  by  it,  51. 

Pragmatic  Sanction  of  St.  Louis,  enact- 
ment of  the,  ii.  12  and  note. 

Pngoe  uniTenity,  opposition  of  the  no- 
bles to  the  inxtitution  of,  1.  578,  noU  * 

—  fiite  of  its  rector,  f  6. 
Precarious,  origin  of  the  a4jeetiTe,  t.  620, 

note*. 

Prerogative  of  the  kings  of  England,  ob- 
nerrations  on  the,  ii.  849, 452, 466.  Bee 
Englinh  Constitution. 

Prices  of  Commodities  U-  665, 667. 

Printing,  invention  of,  ii.  661  —  first  books 
printed,  662  —  Italian  presses,  ib.  See 
Learning. 

Protadius,  oppressive  conduct  of,  1.  120. 

Provence  annexed  to  the  French  domin- 
ions, i.  107  — note  upon  its  history,  ib. 

Public  weal,  origin  of  the  war  of  the,  1. 92 

—  object  of  Its  chleft,  94,  96,  and  nets  *■ 

—  their  fote,  96. 

Punishments,  amongst  the  Franks  for 
murder,  i.  158, 154,  and  note*^  197,  and 
note  >,  274  — amongst  the  Bnrgundlans, 
153  and  note  >. 

Purveyance,  oppressive  operation  of  the 
prerogative  of,  ii.  860,  and  851,  noU. 

Baces,  turbulence  of  the  Carlovingian 
period  ascribed  to  the  antipathy  be- 
tween, 1.188,  188. 

Bachinburgii,  the,  1.  211  —  difference 
between  them  and  the  Scabini,  218, 
note*. 

Bavenna,  conquest  and  reoonqnest  of,  i. 
22. 

Baymond  VI.  (count  of  Toulouse )  excom- 
mnnieated  by  Innocent  III.,  1.  40  — 
reverses  of  his  son  Raymond,  41. 

B^^encles,  rule  in  France  relative  to,  L 
77  and  note  >  —  instances  of  regencies 
in  England,  and  principles  deducibla 
thereflrom,  11.892,898. 

Religious  sects,  moral  Improvement  ac- 
celerated by  the  growth  of,  ii.  604  — 
tenets  of  the  Hanlcheans  and  Pauli- 
cians,  665, 666, 667,  and  notes  —  the  Al- 
blgenses,  and  controversies  respecting 
them ,  668, 669.  and  noU  —  origin  of  the 
Waldenses,669. 570, and  notes — moral- 
ly cT  thair  lUe,670.  noU  ^—Uanichrism 


KOBERT. 

of  the  Albi^iei,  671~peraeeiitionf 
at  Oxford,  ib.  and  note  —  secret  read- 
ings of  the  scriptnres,572 — perMcntlona 
for  witchcraft,  tfr.,  note  —  permissions 
and  prohibitions  concemingtbe  sacred 
writings,  578  —  continued  'spread  of 
heresies,  574  —  strictness  of  LollardiKm, 
574— schism  of  the  Hussites,  575,  576, 
and  note  *. 

Representation  of  the  towns.  See  Parlia- 
ment, Statcft-Ocneral. 

Representative  legislation,  first  germ  of, 
1.218.    See  Parliament 

Revenues  of  the  kings  of  France,  how  de- 
rived, i.  206,  209.    See  Taxation. 

Richard  I.,  non^success  of, against  Philip 
Augustus,  1.  88— Joins  with  Philip  in 
the  crusades,  51  —  his  prowess ;  terror 
excited  by  his  name,  i^.  and  itole  *  — > 
his  reftisal  relative  to  the  right  of  pri- 
vate war.  206,  nou*  —  his  submtasion 
to  the  pope,  666  —  deposition  of  his 
ehanceUor,  11. 115 — enactment  of  the 
laws  of  Oleron  Imputed  to  him,  524  — 
his  character  aa  a  troubadour,  617  and 
note*. 

Richard  II.  loaes  ground  in  France,  i.  78. 
74  —  his  coronation,  11. 266- his  coundi 
during  his  minority,  »b.  —  his  struggles 
with  parliament,  Zi 0-272  —  sketch  of 
his  character,  278  —  his  dependence  on 
flivoritea,  278 — his  refusal  to  dismiss  de 
la  Pole,  duke  of  Suffolk,  274  — deter- 

•  iplned  conduct  of  the  commons  towards 
him,  274,  275  — he  yields  to  their  de- 
mands, 276  —  his  further  attempts  at 
Independent  rule,  280  —  his  complaint 
against  the  commons,  282  —  their  sub- 
mission, 288  —  his  seisure  of  the  duke  of 
Gloucester  and  other  arbitrary  acta, 
283-285  -  necessity  tor.  hlsdeposiUon. 
287 — progieA  OTlUy  CUfulUullon  during 
his  reign,  290  —  eitent  of  his  malprao- 
tlces  relative  to  the  ral>ing  of  money  ,290 
-292  —  his  attack  upon  liaxey.  288. 807. 

Richard  (earl  of  Cornwall),  chosen  em- 
peror of  Germany ,  1. 564  —  absurdity  of 
the  choice,  555. 

Richard  (duke  of  York).    See  York. 

Richer  (a  roedisval  historian),  dcqpnse  of 
value  due  to  the  testimony  of,  1.  184. 

*'  Riding  the  eity ,"  meaning  of  the  phrase, 
1.  412. 

Rlenti  (Nicola  dl),  sudden  aeeesslon  to 
power  ot,  1. 401  —  his  exile,  recall,  and 
death,  402  —  Petrarch's  enthusiasm  to- 
wards him,  ib.,note. 

Robert  of  Artois,  impoUtie  act  of  forgery 
committed  by,  I.  58,  note  *. 

Robert  of  Gloucester,  and  other  metrical 
writers,  11.  685. 

Bobert  of  Naples,  wlas  rule  of.  i.  466  ^ 
lingular  provision  made  by  him,  it  28| 
noU*, 


692 


INDEX. 


ROBERT. 

Robert  (eoniit  palatine)  rapenedee  Wen- 

ceilauj  ae  emperor  of  Geroiaoy,  i.  604. 
BobertaoD  (the  historian),  yalne  of  his 

treatise   on   prirate   warflure,   i.  206, 

note*. 
Bochelle,  patriotinn  of  the  dtisraa  of,  L 

72. 
Bodericic,  the  ]ast  of  the  Ooths,  credibO- 

itv  of  the  legend  reladve  to,  i.  641- 

Bodolph  of  Hapsbuig  elected  emperor  of 

Germany,  L  660— Austria   conferred 
i    upon  hu  eon,  t'A.  —  hia  aaoendency  in 

Switaerland,  688. 
RoUo  of  Normandy,  converrion  of,  i.  84. 
Bomanee  language,  aMendenoy  in  the 

Frank  dominions  of  the,  L  186.    Bee 

Learning. 
Romano  (Eccelin  da).    See  Bccelin. 
Borne,  subTenrion  of  the  empire  of,  i.  16 

—  its  diTision  by  barbarous  races,  t6.— 
portion  which  remained  subject  to  it. 
16  —  partition  of  its  proTinres  amongst 
their  conquerors,  148,  268-270 —Its 
municipal  institutions,  828,  829  —  its 
internal  state  in  the  tenth  century,  846 

—  influnous  conduct  of  candidates  for 
the  papal  chair,  tfr.  —  execution  of  the 
consul  Cresoentius,  847  and  not*  — 
schemes  of  Innocent  III.  for  aggrandis- 
ing the  holy  see,  867, 868 — increase  of 
the  temporal  authority  of  the  popes, 
896  —  the  Roman  orator  and  FriMlerio 
Bsrbarosea,  400  and  note  —  expulsion 
of  popes  by  Che  citiaens,  ib.  —  the 
senators  and  their  jurisdiction,  t6.  — 
mutual  animosities  of  the  nobles,  401 

—  rise  and  fiOl  of  Rienzi,  ib.,  402  — 
transient  reviTal  of  the  republican 
spirit,  402  — miscarriage  of  Porcaro^s 
reTolutionary  prqjects,  408.  See  Papal 
Power. 

Bomeo  and  Juliet,  parallel  to  the  itoxy  o^ 
i.  887  and  noU. 

Saint  Bathllda,  character  of,  i.  118. 

Saint  Ronifoce.    See  Winfrid. 

Saint  Denis,  sum  paid  for  redeeming  the 

abbot  of,  i.  84. 
Saint  John  of  Jerusalem,  kni^tsof,  i.  61 

—  their  saint,  who  he  was,  tb. ,  note  * — 
their  enormous  poeseadons,  ib,  and 
note*. 

Saint  Louis.    See  Louis  IX. 
Saint  Medard,  parentage  of,  I.  288. 
Saint  Pol  (count  of),  anecdote  of,  1. 92, 

note  > — execured  on  the  scaffold,  96— 

anecdote  of  his  distrust  of  Louis  XI., 

108,  no(«*. 
Saint  WUMd,  historical  servloe  rendered 

by,  i.  117. 
Saints,  great  addition  to  the  calendar  o^ 

In  tfaM  time  of  Cloris  and  his  sons,  i. 

U7  —  historical  teIim  of  their  li?ea,«6. 


8FORZA. 

•>-  extent  of  their  title  to  eanonintion, 
117, 118. 
Saladin,  conquest  <tf  Jenuakm  by,  L 
fil 

Salic' Unds,  characteristics  of,  1. 160-162, 

and  note$. 
Salic  law,  clreumstanoes  which  led  to  the 

confirmation  of  the,  i.  67,  68 — date  of 

its  enactment,  271  ^272  —  Its  incom* 

pleteness  as  a  code,  272. 
Sancho  the  Great  bestows  Castile  on  hia 

second   son,  L  488  — he  Ineorpotatea 

Naxara,  490. 
Sancho  IV.  assassinates  Don  Lope,  1.487 

—  clerical  encroachments  encouraged 
by,  ii.  18,  note  *. 

Sanctuary,  institution  of  the  pririlege  of, 
ii.494. 

Saracens,  expulsion  of  the,  from  France, 
1. 20  and  note  *  —  their  inroads  upon 
Italy,  82  and  note*  —  Sudon^s  great 
Tictory  oTer  them.  121  —  their  conflicts 
with  the  Christians  [see  Crusades]  — 
they  conquer  Spain,  486 ~ encroach- 
ments of  the  Christians  on  their  terri- 
tories, 487— mainspring  of  their  hero* 
ism,  £03  —  their  eastern  conquests,  694 

—  their  triumphs  In  the  west^  i^.— cflect 
of  their  successes,  ib.  —  their  internal 
dissensiotts,  696.    See  Crusades,  Moors. 

Saragossa  taken  fkom  the  Moon,  i.  488. 

Sardinia  conquered  by  the  Pisans,  I.  424 
— Its  cession  to  the  king  of  Aragon,  426. 

Saxons,  obstinate  resbtance  to  CbarU- 
magne  by  the,  i.  28 —  enormous  nam* 
ber  beheaded  by  him,  26  —  true  cause 
of  their  wars  with  the  Franks,  126  — 
their  early  kings,  296.  See  Anglo- 
Saxons. 

Scabini,  representative  character  of  the. 
1.  218  —  difference  between  them  ana 
the  Rachimbuigil,  f6.,  note  *  —  their 
functions,  238  and  noteK 

Seanderbeg,  protracted  opposition  to  tba 
Turks  by,  i.  613. 

Scandinaria  and  her  Sea  Kings,  ii.  66. 

SclsTonians,  territories  occupied  by  thai 
1.  8i. 

Scotus  (Duns),  notioea  of,  IL  610,  611, 
fi0ies,612. 

Scotus  (John),  an  exception  to  the  Igno- 
rance of  his  times,  il.  483  and  nou  *  — 
character  of  the  pnllosophy  Introduced 
by  him,  613,  noles. 

Scrope  (lord  steward),  answers  to  the 
commons  by,  Ii.  268  —  cause  of  liis  dis- 
missal from  office,  273. 

Serfdom  and  ▼illenage,  distlnctlTB  ftai- 
uiesof,!.  196, 199.    See  ViUeins. 

Serritude  enforced  upon  the  eultirators 
of  the  soil  In  the  middle  ages,  I.  817, 
818  —  contrary  liypothesb  of  M.  Gu^ 
rard,  819, 820. 

8A>na  Attandolo.  ilis  to  diitlSfBtkni  oil 


INDEX. 


693 


BFORZA. 

1. 461  —  his  taetlcs  ralAMre  to  the  crown 
ofNapleii,469,4T0. 

Bfona  (Francesco),  powerful  poeltion 
•chieTed  bv,  L  462  —  becomes  dake  of 
Milan,  468  —  joins  in  the  quadruple 
leatpie,  472  —  his  policy  towards  Na- 
ples, 473  —  acoeffsioo  and  assassination 
of  his  son  Galeaa»>,  476  — policy  of 
LndoTico  Sfona,  ib.  —  he  directs  the 
Fn*nch  king's  attention  towardMNaples, 
488  —  shortpsiffhtedness  of  his  Tiews, 
484. 

Bheriftf  partiality  of.  in  elections,  li. 
817  ~  how  originally  appointed,  824 
and  note  *. 

GQdly,  conquest  of  by  Roger  Ouiscard, 
i.  860  —  its  subsequent  fortunes,  864, 
866  —  its  rebellion  aoalnst  Charles  of 
Ai^ou,  468  —  the  Sicilian  Vespers.  464 
and  note  —  opposition  of  the  Sicilians  to 
Charles  11.  of  Naples,  466  —settlement 
of  the  crown  on  Frederic,  *b.  -  Sicilian 
possessinns  of  the  Chiaramonti,  470  — 
union  of  Sicily  with  Aragon,  ib. 

8%ismund,  elected  emperor  of  Oennaoy, 
1.  666  and  note  i  —  his  safe-conduct 
violated,  679  — acquires  the  crown  of 
Hungary,  681  — his  conduct  at  the 
council  oi  Constance,  il.  46* 

Silk  mannlhetuxe  established  in  Palermo, 
U.621. 

BilTester  II.  (pope)  sdentifio  acquire- 
ments otj  ii.  488,  note. 

Simony.    See  Church.  Clergy. 

SlsTery,  existence  of,  in  ancient  timet,  i. 

196  —  its  fbatures  amongst  the  Franks, 

197  and  iio<«*  —  Tolnntarlly  submitted 
to  from  superstitious  motives.  198  — 
edicts  for  its  abolition,  200 -submitted 
to  by  the  poor  for  subsistence'  sake.  817 

—  Venetian  and  English  slave-trading, 
ii.  607  and  note  •.' 

Society,  state  of.  See  Architecture,  Chiv- 
alry, Clergy,  Feudal  System,  Learning, 
Superstition,  Trade,  Villenage. 

Borel  (Agnes),  examination  of  the  story 
of,  i.  88,  note  >. 

Soutbey's  Joan  of  Are,  eulogium  of  % 
French  writer  upon,  i.  147. 

Spain,  character  of  the  Visigothie  Iting- 
doms  in,  i.  486  —  its  conquest  by  the 
Saracens,  486  —  kingdoms  of  Leon,  Na- 
varre, Aragon,  and  Castile,  487,  488  — 
reverses  of  the  Saracens,  489  —  char- 
tered towns,  490,491  —establishment  of 
military  orders,  492  —  non-expulsion  of 
the  Moors,  493— its  probable  cause,  494 

—  Alfonso  X.  and  his  shortcomings, 
496  —  frequent  defection^of  the  nobles, 
496  -Peter  the  Cruel, 497— accession  of 
the  Trastamare  line,  498—  disffraee  and 
execution  of  Alvaro  de  Lnna,  489, 60U— 
contests  after  Uenrv  IV.'s  death,  600, 
601  — eoDstitotioaof  the  national  coun- 


SWITZBBLAKD. 

cUs,  601  —composition  of  the  CortM, 
604  -  its  trade  relations  with  England, 
il.  618.    See  Aragon,  Castile,  Cortes. 

Spelman  (Sir  ilenry), remarkable  mistake 
of,  1.  167,  note  >. 

Sports  of  the  field,  popularity  of,  il.  601 

—  addiction  of  the  clergy  thereto,  602 

—  evils  attendant  thereon,  603. 
States-Ckneral  of  France,  memorable  re- 
sistance to  taxation  by  the.  i.  76  — 
convoked  by  Philip  IV.,  221,  222  ~ 
probability  of  their  earlier  convocation 
canvassed,  ib.,  nou  —  Philip's  poiitio 
reasons  for  summoning  them,  228  — 
extent  of  their  rights  as  to  taxation, 
228, 224,  and  notes  —  their  resolute  pro- 
ceedings in  1366  and  1866.  224  -  their 
protest  against  the  debasement  of  the 
coin,  226  and  notes  -  disappointment 
occasioned  by  their  proceedings  in 
1867, 227  —  they  compel  Charles  VI.  to 
revoke  all  illegal  taxes,  228  —effect  of 
their  limited  functions,  229  —  theoreti- 
cal respect  attached  to  their  sanction. 
t6.  —  provincial  estates  and  their  juris- 
dictloo,  280  —  encroachmer/4  of  Louis 
XI  ,  ib,  —  the  States-General  of  Tours, 
281  — means  by  which  their  delibera- 
tions were  Jeopardised,  282  —  unpalat- 
able nature  Of  their  remonstrances, 
ib. 

Stephen  (king),  cruel  treatment  of  the 
people  In  his  reign,  ii.  110,  note  K 

Stratford  (archbishop),  drenmstanoea  at- 
tending the  trial  of,  ii.  408. 

Succession  to  kingly  and  othev  dignitka. 
See  Hereditary  Succession. 

Snevi,  part  of  the  Roman  empire  held 
by  the,  i.  16. 

Suffolk  (duke  of),  impeachment  of^  U.  804. 

Suffolk  (earl  of).    See  Pole. 

Sumptuary  laws,  enactment  and  disre- 
gard of,  ii.  638  and  fiol«. 

Superstition,  learning  discouraged  hy,li. 
467  —  its  universal  prevulence,  486  — 
instances  of  its  results,  487  —  ordeals, 
487,  488,  and  notes  —  fknatieal  gather- 
ings: the  White  (^ps,  488  — the  Pas- 
tourenux,  489  —  the  Flagellants,  490— 
the  Bianehi,  490  —  pretended  miracles, 
and  their  attendant  evils,  491,  492  — 
miracles  ascribed  to  the  Virgin,  4SK2  and 
note  —  redeeming  lisatures  of  the  sys- 
tem, 493 —  penances  and  pilgrimages, 
496,499.    See  Religious  Sects. 

Surnames,  introduction  of,  i.  189. 

Sweden,  semi-feudal  custom  in,  relative 
to  militanr  service,  L  188,  note*, 

Swineford  (Katherine),  proceedings  rel^ 
tive  to  the  marriage  of,  il  281,282. 

Switaerland,  early  history  of,  i.  688  — 
ascendency  of  Rodolph,  tb.  —  expulsion 
and  defeat  of  Albert  and  Leopold,  684, 
686  —  formation  of  the  Swiss  oonfodera- 


!-«-.«_  !„  -V^^ZT't     _  


694 


INDfX 


STAOBIUS. 

tion,  686 — Indomitable  berolmn  of  the 
Swiss,  687  — their  military  excellence, 
A.  —  lUIare  of  MaximiUan^s attempt  to 
Bufajagate  tbem.  688- 
Byagrliu,  Roman  proyincee  goTemed  bj, 
L 16  —  defeated  bj  Ciovb,  ib.  and  12. 

Taboritee,  Iknatidfln  and  connige  of  the, 
i.  579,  ii  676. 

Tacitus,  general  aoenraey  of  the  descrip- 
tions of,  i.  266 — qualifications  neces- 
sary to  be  observed  touching  his  ao- 
count  of  the  Germans,  267. 

Tartars.    9ee  Moguls. 

Taxation,  remarlu  on  the  phllosophj  of, 
1.  76  —  clumsy  substitutefl  for  taxes  in 
the  middle  ages.  206  —  arbitrary  course 
adopted  by  Philip  Augustus,  200— con- 
ditions annexed  by  the  States-Oeneral 
to  a  grant  of  taxes,  226  — Philip  de 
Comincs  on  taxation, 281— taxe^  under 
the  Anglo-Normnn  kinm,  Ii.  112, 118, 
and  notes.    8ee  States-General. 

Temple,  knights  of  the.  See  Knights 
Tnnplars. 

Tenure  of  land  under  the  Anglo-flaxons 
and  Anglo-Normans,  II.  85-^,  191, 194. 
See  Feudal  System. 

Teutonic  knights,  establishment  of  the 
order  of,  1.  61. 

Theodebert,  story  of  the  wife  of,  II.  498, 
note^. 

Theodorie,  disregard  of  learning  by,  Ii. 
468. 

Thierry  (son  of  CIotIs),  tnritorleB  pos- 
sessed by,  1. 18,  note*. 

Timor,  conquering  career  of.  1.  608 

Tlthen,  establishment  of,  I.  618— Charle- 
magne's capitulary  relative  thereto, 
619  and  notes  —  origin  of  lay  impro- 
priators, 621  —  note  relatlTe  to  the  sub- 
ject, H.  67. 

Toledo  taken  from  the  Moors,  I.  488. 

TorrianL    See  Yiscontl. 

Toulouse,  non-sobmL<«ion  of  the  counts 
of,  to  the  king*  of  France,  1. 89  and  note  * 

—  their  fitll.  41.  See  Raymond  VI. 
Towns  and  cities,  earliest  charters  grant- 
ed to,  i.  249  —  considerations  on  the 
causes  of  such  grants,  250, 251  —  privi- 
leges of  incorporated  towns,  2G2— their 
relationship  towards  the  crown,  258, 
254  —  ind<>peodence  of  maritime  towns, 
254  —  chartered  towns  of  Spain,  490  — 
their  prlTlleges  and  duties,  491,  492  — 
cause  of  their  importance,  608  -cities  of 
Germany  [see  Germany]  —  cities  of  Ita- 
ly [see  Florence,  Genoa,  Milan,  Pisa, 
YenloeJ. 

Towns  of  England,  piogieM  of  the,  11. 280 

—  Canterbury,  Lincoln,  and  Stamford. 
281,  «!«(«*  — conversion  of  individnal 
tributes  Into  borough  rents,  282  —  In- 
oorporatlon  of  towns  by  otaiarter,  282 


CSBAN  II. 

andiiorM  — eniloas  bond  relative  to 
Cambridgeshire.  288,  note  *— pronperity 
of  elie  towns,  284  —  early  Importance 
and  populoosness  of  London,  235, 286, 
and  notra  —  participation  of  Its  citlwns 
In  constitutional  struggles,  287  —  fint 
sommonii'g  of  towns  to  narliament, 
ib.  See  Municipal  Institutioas. 
Trade  and  commerce,  mediseval  Don> 
existence  of.  II.  506  —  barriers  to  thdr 
progress,  tft.,  506  — extent  of  foreign 
commerce,  ib.  —  home  traflic  In  slaves, 
607  and  note  *  —  woollen  manufiKturea 
and  vacillating  policy  of  the  EngUsh 
kings  relnttve  thereto.  609,  513,  and 
notes  —  opening  of  the  Baltic  trade,  514 

—  growth  of  English  ccMnmerce,  516  — 
opulence  of  English  merchants.  r'A.,  517 

—  Increase  of  nwritime  tralllc.  517,  518 

—  commertial  eminence  of  the  Itallaa 
statee,  518, 520,  and  notes  —  invention 
of  the  mariner's  compass,  522, 528  — 
compilation  of  maritime  laws,  528  — 
frequency  and  irreprvsslblHty  of  pira- 
cy ,624  —  practice  of  reprisals,  625, 526, 
and  note*  —  liability  of  aliens  for  each 
other's  debts,  526  —  trade  profits  and 
rates  of  Interest,  526,  528— price  of 
com  and  cattle,  556. 

Trial  by  combat,  ceremonials  attending, 
I.  287.  288  and  noCn— abolished  by 
St.  Louis,  289. 

Trial  by  Jury  and  Its  antecedents.  IL  78- 
81  -  early  modes  of  trial,  172-174  — 
abolition  of  trial  by  ordeal,  176  —  dif- 
ference between  ancient  and  modem 
trial  by  J017, 177—  original  functions 
of  Juries,  ib.  —  origin  of  the  modem 
system,  187,  189  — chaiaeter  of  the 
early  system,  190. 

Troubadours  (the),  and  their  productions, 
U.  616,  618. 

Troyes,  conditions  of  the  trmtj  of,  L  84 
and  note. 

Turks,  Ttolian  ftars  of  the,  1.  474  —  tri- 
umphant progress  of  their  arms,  602  — 
their  defcat  by  the  crusaders  and 
Alexius,  608— their  settlement  under 
Othman,  607  —  war  declared  against 
them  at  Frankfort,  611  —  the  Jani»- 
rles,  612.    See  Ottomans. 

Tuscany  (Boolfoee.  marquis  of),  flogged 
for  simony,  i.  652.  note  > 

Tuscany,  league  of  the  cities  of.  I.  868  — 
espousal  of  the  papal  cause.  16.,  875  — 
progress  of  Its  cities.    See  Florence. 

XJladlslauB  crowned  king  of  Hungary,  1. 

581  —  violates  his  treaty  with   tbo 

Turks,  ib.  —  Its  Iktal  results,  ib. 
Urban  II.,  encooragementof  the  cmaadN 

by,  I.  46  — he  succeeds  Gregory  TIL. 

658  — his  connnsinn  to  tine  kinp  of 

OM«tto,182. 


INDEX. 


695 


UBBAH   T. 

Vrbsa  T.  retraosfen  the  paiMl  eonrt  to 
AvignoD,  ii.  86. 

Urban  VI.  aids  Charles  of  Danoso  in  tale 
dedgns  on  Joanna  of  Naples,  I.  467  — 
MtnctJona  peijory  towards  heretics,  H. 
9,  note  1  —  hb  contest  with  Clement 
y  II. ,  S6— Talidity  of  his  election,  87. 

Urgel  (count  of) .  lays  claim  to  the  crown 
of  Aragon,  L  SZl,  622  —  rrjection  of  his 
pretensions,  628  —  consequences  of  his 
unwise  resort  to  arms,  t6. 

Usury  treated  as  a  crime,  ii.  627,  629, 
«iofe*. 

Valencia,  coostttntion  of  the  kingdom 
of,  1.687. 

Valentinian  III. ,  authority  of  the  holj 

see  extended  by«  i.  638. 
.  Tandals,  portions  of  the  Roman  empire 
possessed  by  the,  i.  16. 

Vase  of  Solnons,  story  of  the,  i.  167  — 
principle  inrolTed  in  the  anecdote,  2S2, 
293,  and  note  K 

Vassals  and  Vassalagei  See  Veadal 
System. 

Vavaesors,  priTileges  attaching  to  the 
rank  of,  i.  198  and  no(«>— their  ma- 
norial courts,  216. 

Venice,  conflicts  of,  with  Genoa,  i.  426  — 
defeat  of  her  admiral  by  the  Genoese, 
428  —  insolence  of  the  latter  towards 
her  ambassadors,  429  —  snccessftil  tac- 
tles  of  her  doge,  480  —  triumph  of  her 
fleet,  481  —  her  alleged  early  ind»> 
pendence,  486  —  her  sul]tiection  to  the 
emperors,  i6.  and  not**  —  her  Dal- 
matian and  Lerantine  acquisitions.  488 

—  her  government :  powers  of  the  doge. 
487  —  the  great  council,  488 — criminal 
Jurisdiction,  how  exerrL<«d,  489  — 
checks  ro  undue  Influence  on  the  part 
of  the  doge,  440 — singolsr  complication 
in  ballots  for  thedogBship,441—  Marin 
Falieri's  treason,  4«  —  the  council  of 
ten  and  ltd  secret  proceedings,  442,  4ti 

—  exclusion  of  the  nobles  from  trade, 
443,  note  *  —  Venetian  form  of  gOTem- 
ment  not  entitled  to  high  admiration, 
448, 444,  and  note  —  territorial  acquisi- 
tions of  Venice,  446  —  prophecy  of  the 
doge  Mocenigo,  446,  447,  and  note  — 
Venetian  conquests  under  Carmagnole, 
447  —  wars  of  the  republic  with  Ma- 
homet 11.,  472, 476. 

Verdun,  treaty  of,  L  29  — its  resalt8,80 

and  notes. 
Vexe,  fliTOTitIsm  of  Richard  II.  towards, 

ii.  274  — hisflineTal.281. 
Verona,  seised  by  Francesco  da  Carrara, 

i.446. 
Vienna,  .fineas   SylTins^s  florid  descrlp- 

tion  of,  il.  684,  note*. 
Villani  (John),  fldls  •  Tletlm  to  the  plagoe, 

i.  67,  note. 


WARWICK* 

VUlehis  aod  Tillenage:  eondlUonsof^- 
leins,  i.  196  —  consequences  of  their 
marriage  with  flree  persons,  199  and 
note* — privileges  acquired  by  them, 
199,  WO,  and  noies  — their  obliga- 
tions, 820 — their  legal  position  in  Bng- 
land,  822  —  TlUenage  never  established 
in  Leon  and  Castile,  489  — oncetlon  of 
its  existence  among  the  Anglo-Saxons, 
ii.  70  —  dependence  of  the  villein  on  his 
lord,  872  —  condition  of  his  property 
and  children,  ib.  and  note '  —  legal 
distinctions,  8i8and  notes  —  difllcoldes 
benetting  the  abolition  of  Tillenagejt'fr. 
— gradual  softening  of  its  features,  874. 
976 — merger  of  TiUelns  into  hired 
laborers,  877  — eflbcts  of  the  anti-poll- 
tax  insurrection,  881  —  disappearance 
of  Tillenage,  881,  882— elucldatoiy 
notes  on  the  subject,  466,  469. 

Virgin,  absurd  miraelce  ascribed  to  the, 
11.  492,  note. 

Visconti  and  Torriani  flunillee,  rivalry 
of  the,  i.  894,  896- triumph  of  the 
Visconti,  896  —  their  power  and  un- 
popularity 896— tlieir  marriages  with 
royalty,  897,  and  nols  i  —  tyranny  of 
Bemabo  Visconti,  423  — Giovanni  Vis- 
eond's  brutality,  t6.  —  his  assassina- 
tion, 447 — Filippo  Visconti's  accession, 
ib.  —  his  ingratitude  to  Carmagnola,  ib. 

—  his  mistrust  of  Sfora.  462  —  his  alli- 
ance with  Alfonso,  472 — quarrels  of  the 
flunlly  with  the  popes,  11.  81. 

VMgotbs,  portions  of  the  Roman  prov- 
inces possessed  by  the,  i.  16  —  conduct 
of  their  earlier  rulers  towards  the  Cath- 
olics, 17,  Aol«s  — their  mode  of  divid- 
ing conquered  provinces,  149 — their 
laws,  how  compiled,  158,164,  iio(e*— 
difference  between  the  Frank  monarchy 
and  theirs,  486. 486. 

Voltaire,  limitca  knowledge  of  earij 
French  history  by,  1. 211,  note  >. 

Wages,  Aitnity  of  laws  for  the  legulatioii 

of,  ii.  878.    See  Laborers. 
Waldenses.    See  Religious  Seeti. 
Wales,  causes  of  the  turbulent  state  of, 

ii.  869,  No«>. 
Walworth   and   Phllpot  made  stewards 

of  a  subsidy  {temp.  Richard  II  ),  Ii.  267 

—  allegations  relative  to  their  steward- 
ship, 268. 

Wamba  (king  of  the  Visigoths),  quee- 
tlon  of  his  deposition  discussed,  1.  629, 
noteK 

War,  private,  exercise  of  the  right  of, 
1.  2(j6  — by  whom  cheeked  and  sup- 
pressed, «6.  and  nolc' — Its  prevalence 
amongst  the  German  nobles,  671,  672. 

Wama,  clreumstanecs  whkh  led  to  the 
battle  of,  1. 681. 

Warwick  (earl  olX  popularity  of  the,  fL 


696 


INDEX. 


WATBB-ORDBAL. 

272 — made  a  lord  appellant,  279  — batt> 
iahed  by  Rkhartl  II.,  284. 

Water-Ordeal.    See  Ordeals. 

WenoeeUua,  eonfirmed  in  the  imperial 
Bocoenion,  i.  664  —  hi>  deposition,  t^A.  — 
he  abets  the  league  of  the  Rhine,  670. 

Wer^Id,  or  compensation  for  murder. 
See  Murder. 

Wicliff  (John),  influence  of  the  tenets  at, 
ii.  47,  879,  and  nou  >,  574, 676. 

Widows  in  Burgundy  t  rei^n  for  the 
speedy  remarriage  of.  i.  100,  note, 

Wilfred  (bishop  of  Hexham),  question 
inToWed  in  his  appeal  to  the  pope,  L 
6a6,fMtei. 

William  of  Holland  elected  emperor«af 
Germany,  i  664. 

William  the  Conqueror,  separation  of 
the  eocleeiastical  and  dvil  tribunals 
by,  ii.  19  and  note*  — position  of  Eng- 
land at  its  conquest  by  him,  94  —  his 
considerate  treatment  of  Edgar,  t6.,  note 
—  alleged  inadequacy  of  the  miUtary 
forces  of  the  Saxons,  96,  note — their 
flruitless  rebellions  against  him,  96  and 
notes  —  instances  of  his  oppressire  con- 
duct, 97  —  his  devastating  clearances 
for  forests,  108  —  and  inhuman  forest 
laws,  t6.  and  note  —  his  enormous 
lerenueR,  104  —  his  feudal  innoTstions, 
106 — his  preeerration  of  public  peace 
and  eflbrts  to  learn  English,  106  and 
note  —  policy  of  his  manorial  grants, 
108  —  tyranny  of  his  goTemment, 
109. 

Winchester,  earlv  opulence  and  popu- 
lousness  of.  ii.  422. 

WindMr  castle,  laborers  for  the  erection 
of,  how  procured,  ii  861. 

Winfrid  (St  Bonlftce),  importance  of  the 
ecclesiastical  changes  efliKted  by,  L 
686. 


ZISCA. 

Wlnkelxfed,  the  Swiss  patiioi,  hemlo 
death  of,  i.  687. 

Wisbuy,  ordinances  oi;  iL  624  and 
neu*. 

Witchcraft,  cruel  treatment  of  persona 
chaiged  with,  U.  671,  note  K 

Witikind,  acknowledgment  of  Cbarla- 
magne^s  authority  by,  1.  24. 

Witenagemot,  bishops  appdnted  by  the, 
i.  661  —its  characteristics,  U.  70  —  how 
often  assembled,  196, 196.  See  Anglo- 
Saxons. 

Women,  legal  position  of,  in  Italy  during 
coverture,  i.  164,  note  a  —  perils  attend- 
ing their  marriage  with  shtTca,  199, 
note  1. 

Woollen  manuikctuie  established  In 
FUnders,  U.  609~impo)itie  regula- 
tions respecting  it,  61(),  and  note  *— 
export  of  wool  fh>m  England.  611  — 
English  woollen  manu&cture.  612  — 
policy  adopted  towards  the  Fleminn, 
t6.  and  note  *  —  laws  relative  to  the 
trade,  618  —  relations  of  England  and 
Spain  regardlDg  it,  iA.,  notes. 

Worms,  diet  of.    See  Diet. 

W^keham  (bishop  of  Winchester),  In- 
Tested  with  the  great  ssal,  IL  280. 

Tork  (Richard,  duke  of),  appointed  pxo> 
tector  to  Henry  YI.,  ii.  890  —  his  claim 
to  the  throne,  888  —  his  cautious  pol- 
icy, 894. 

Yorkists  and  Lancastrians,  wan  of  the, 
ii.896. 

Qmisees  (John),  mlUtaiy  exploits  of^  i. 

601. 
Zisca  (John),  the  blind  hero,  victoriea 

of  the  Bohemians  under,  i.  461  —  bla 

exploits }  enthosiaam  of  his  foUowets, 

679. 


THE  END.