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"^^/iaaAiNHJUv"' ..xNllIBRAfiYOr io>^ '■^aojnvDJO'f^ % ,-vOfCAllF0% '4r f ■< 1 ^^!rtE UNIVEW/^ ^lOSANC(lij>, A. ^' . <^tUBRARYQ^ University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Partying Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. )J0>' 0:!0^ ':>! .\WiiNr '■■TJllDNVSm^ 111 Jll' ^M\ ^•TiUDNVSm^^'' 1 i 1 \C % %a2.M NlOSWCElf' ^>^tUBRARY(9/;^ -.time w OFCAIIFOP" ^AFTMIFCID, u:^' w^ K(Pr'i ir I'ktiV'CDr/.. . lAc uTcir*- I ji \i'iii ji» iCIlTT' Tf- »t ' ir>n *n\, , ,\t r* I iCAn, --I I.U1I 1 OU I -.UMU'll J I 1' ^J^^J^tiJKitJf^iJ^.At.^iJ^tJ^tJ^i.^^t^'^ '^ t^f^t'^^i-^^tJ^i-^'^ 'A* VI E W O F SOCIETY IN EUROPE. ^jP>5^jp7ry»T>j(-7 »~)J(^ rij,'! T^ T-i|(Tf r^^-l TY>T^ ^ T^ T~l(^ VIEW O F SOCIETY IN EUROP F, IN ITS PROGRESS FROM RUDENESS TO REFINEMENT: O R, I N Q^ U I R I E S CONCERNING The history of Law, Government, and Manners. By gilbert STUART, I,L. D. Quae prifcis memorata Catonibus arque Cethegis, Nunc flcus iniormis premit, ec deferca vecultas, HoR. EDINBURGH: Printed for JOHN BELL; A N p J. M U H 11 A Y London. M,DCC,LXXVIII p ADVERTISEMENT. IT is ufual to treat law, manners, and governmci-^t, as if they had no connedion with hiftory, or with each other. Law and manners are commonly underflood to be nothing more than colle£tions of ordinances and matters of fa£t ; and government is too often a foundation for mere fpeculation and metaphyfical refinements. Yet law is only a fcience, when obferved in its fpirit and hiftory ; government cannot be comprehended but by attending to the minute fteps of its rife and progreffion ; and the fyftems of manners, which chara£lerife man in all the pe- riods of fociety which pafs from rudenefs to civility, cannot be difplayed without the difcrimination of thefe different fituations. It is in the records of hiftory, in the fcene of real life, not in the conceits and the abftradions of fancy and philofophy, that human nature is to be ftudied. But, while it is in the hiftorical manner that laws, cuftoms, and government, are to be inquired into, it is obvious, that their dependence and connexion are clofe and intimate. They all tend to the fame point, and to the illuftration of one another. It is from the confideration of them all, and in their union, that we are to explain the complicated forms of civil fociety, and the wifdom and accident which mingle in human affairs. After •^1 [ vi ] After this method, 1 have endeavoured to invefligate my fub- jcQ. The to{)ics I canvals in the following Qieets, are various, and conditLite a difficult and iniiportant branch of my underta- king. If 1 am fo fortunate as to obtain the fandlion of the pu- blic approbation, 1 fhall proceed to fill up the pidure I have be- gun, and con "ider, in future publications, civil jurifdiition, no- bility, cjoftitutional law, and cultivated manners. The foundations of a work like this I have attempted, muft be laws of barbarous ages, antient records, and charters. Thefe I could not incorporate, with propriety, in my narrative. This inftrudtive, but taftelefs erudition, did not accord with the tenor of a portion of my performance, which I wifhed to addrefs to men of elegance, as well as to the learned. It confifted, howe- ver, with the fimpler and the colder ftyle of diflertation. My proofs, accordingly, appear by themfelves ; and, in conlequence of this arrangement, 1 might engage in incidental dilcuffions ; I might catch many rays of light that faintly glimmer in obfcure times ; and, I might defend the novelty of my opinions, when I ventured to oppofe eftabliflied tenets, and authors of reputa- tion. Though I have employed much thought and affiduity to give a value to thefe papers, yet I communicate them to the public with the greatefl: diffidence. My materials were buried in the midfl of rubbifli, were detached, and unequal. I had to dig them [ vli ] them up anxloufly, and with patience ; and, when difcovered and colleded, it was ftill more diflicult to digeft and to fafhion them. I had to ftruggle with the darknefs and imperfedion of time and of barbarity. And, from the moft able hiftorians of our own and foreign nations, who might naturally be expected to be intelligent guides for the paths I have chofen, I could de- rive no advantage. They generally prefer what is brilliant to what is ufeful ; and they negled all difquifitions into laws and into manners, that they may defcribe and embellifh the politics of princes, and the fortunes of nations, the fplendid qualities of eminent men, and the luftre of heroic adion. Edinburgh, January 7 I 7 7 C O M- CONTENTS. BOOK I. CHAPTER I. Of the Germans before tliey left their Woods, SECTION I. Page. The Inflitnt'ions, Government-, and Chara^er of the Germa- nic Tribes. ..... I SECTION II. An Idea of the Gervian Women. . . , » 12 SECTION III. Of Marriage and Modejiy. . . , . . 17 b CHAP- CONTENTS. CHAPTER II. The political Eftablifliments of the Barbarians after they had made Conquefts. SECTION I. Page. The Barbaric Conquejis, The Origin of the Domains of the Prince, and of Allodiality, The Lands of the Fife. The Foundations of the Feudal J/fociation, the Rife of the Feudal Grants and the Genius of the Feudal Syfiem. 23 SECTION II. Of the Property of the Wometi, The Doiver, the Alorgen- gabci and the Marriage-portion. The Cotmnunication to them of the Pozvers of Succefjton and Inheritance. The advancement of Manners. , . . 31 SECTION III. The Grandeur confeqtient on Property, and the Poiver of the Nobles. The Prerogative of private War, and its de- ftruclive CONTENTS. xi- Page. Jlnifi'ive Tendency, The Converfton of AUodiality into Tenure. The Extetifton and Univetjality oj Fiefs. , 38 SECTION IV. ArniSt Gallantry, and Devotion. The Origin of Knighthood and the 'Judicial Combat^ of Torneaments and Blazonry. The Sources 0/ Chivalry. . . • .45- SECTION V. The Injlitiitions of Chivalry, the Pre-eminence of Women^ PoltteneJSi arid the Point of Honour. , , . 56 h2 BOOK txll C O N T E M T S. BOOK II. CHAPTER I. Of the Spirit of Fiefs. SECTION I. Page A Difiinciion in the Hi/lory of the Feudal Affoctation. The Ftudal Incidents. Their Advantages in one Situation. Their Dij advantages in another. The Injluence oj thefe different Situations on Society and Manners. . 69 SECTION II. A DiJIin^lion in the Hiflory of Anns and Chivalry. The Sovereign is confidered as the Fountaiji of Honour. The Epoch of the Grandeur of Chivalry. The Decline of Fiefs. The Remedy for their Recovery. The Inventitn oJ Knight- fervice. The Knight^s Fee. The Dijlinclion bettueen the Knight of Tenure and the Knight of Honour. Fiefs un- der Knight-fervice. , . . 82 CHAP- CONTENTS. xili CHAPTER 11. Page. The ProgreJJion of Fiefs. The Benefice^ the Fief and Al- lodiality. Different Opinions on theJeTopics. The Fruits of the Fief. Its Perpetuity. The JEra of Hereditary Fiefs. Knight-fervice. Particular Applications to the Hiflory of England. Doubts concerning the Introduction of the Feudal Laiv into England. A Solution of them. Of Fiefs under M^illiam the Norman. A D'ylinction con- cerning their Condition in the Anglo-Saxon and the An-- glo-Normau times. The repeated Demands for the revi- val of the Laivs of Edivard the Confeffor. An Expla- nation of this Diffuulty. The hitrodudion of Knight- fervicc into England. Of the Nuviber qf Knight-fees there. . • . . . Qi CHAPTER III. Of the Military Power of a Feudal Kingdom. SECTION I. Au Idea of the Feudal Militia. ; » . 107 SEC- sir CONTENTS. Page SECTION II. 7 be Inefficacy of the Feudal Militia. The FraSlions of a Fee. Its Members. Attempts to efcape out of the Bon- dage of Fiefs. The Fine of Alienation. Subjlitutions of Service. Commutations of Service for Money. The Fine for the Negle^l of Service. The Tenure of Efcuage. The Rife of Stipendiaries., and the Necefftties of Princes. De~ 'vices and Frauds to prevent the Service of Knights., and the Payments of Fines and Efcuage. The Rife oj Comtnerce, 1 1 1 CHAPTER IV. The Fall of Chivalry as a Military Eflablifhment. The Knights of Honour lofe their Conftderation. Their Num- bers and Venality. Wealth becomes a inore jolid Title to Knighthood than perfonal Merit, This Dignity is con- iieded ivith the Poffejfion oJ a Fee. It ccafes to be Ho- nourable., and is made a SubjeSl of Compulfion. Fines for the Exemption from Knighthood. The antient Chivalry dijappears on the Rife of Regular Armies, . 119 CHAP- CONTENTS. XT CHAPTER V. The Military Arrangements which prevailed in the Decleniion of Fiefs and Chivalry. The Introduclion of Handing Armies. SECTION I. Page. Of Mercenaries. The Evils ivhich reftilt Jrom them. The Rife of Taxations. . . . . . 123 SECTION If. The Difference between a Mercenary Soldier and a Feudal Vajjal. Sovereigns fnd Troops by entering into Contra^s •with their Nobility^ andvuith Captains by Profejfion. Vo- lunteers make an Offer of their Service. Commijfions of Array. The Difadvantages of thefe Military Schemes. The Idea and EJlablifJment of ajlanding Force. France, and other Nations, lofe their Liberties. The Oppofition to ajlanding Force in England. The total Abolition of Fiefs. The XVI CONTENTS. Page. The confequent NeceJpAy of a fiand'ing Army. The Pre- cautions and Anxiety ivith ivhicb it is introduced. 128 CHAPTER VL 0/ Manners and Refinement. The Dijfolute ConduSl of the Women amidfi the Decline and OppreJJions of Fiefs. The general Corruption 'which invades Society. 141 Authorities; CONTENTS. svii Authorities, Controveify, and Remarks. B O O' ^ K CHAPTER Page. SEC T I N I. i5» SEC T I N ir. 170 SEC T I O N III. 1 80 CHAPTER II. SECTION SECTION SECTION SECTION SECTION I. 199 ir. 220 III. 246 IV. 268 V. 296 BOOK XVllt CONTENTS. B O O K II. CHAPTER SECTION I. SECTION II., CHAPTER CHAPTER SECTION I. SECT ; Q-N , % CHAPTER CHAPTER SECTION I. SECTION II. CHAPTER I. II. III. Page. 334 363 . 370 IV. 378 V. 385 392 VI. 397 A P P E N- CONTENTS. xijc APPENDIX. NUMBER I. Page. Article I. Chart a Dotis quam Folradus conjlltuit Hek- grinae Sponjae JUae. ..... 409 Art. II. A reciprocal Grant, Roger Pit and his TVife grant and reUaJe to the Priour of Urommore a Tenement held in Dower ; and the Priour grants a yeai ly Rent for the Life of the Wife. ... . . 411 Art. III. A Rdeaje of a yearly Rent in Donver. . 412 No. II. Art. I. A Feoffment in Frankmarriage of Land^ a Capital Manfion, i^'C. made to a Alan ivith the Duu^hter of the t'eoffer. . . ..... 4' 3 Art. 11. A Feoffment, or Gft of Land in Frankmarriage ivitb the Sijler oj the Donor. . . . . 414 No. XX CONTENTS. No. III. Page. Art. I. A Grant of Privilege and ProteSlion from King Ed-ward to the Abbey of Bury St Edmund. , . 415 Art. II. A Mandate of Prote'lion from King Henry the Second for the Abbey of But tell. . . , Ibid. Art. III. Fines made to KingSy that they nvtuld remit their Refentments and Indignation. . . . 416 Art. IV. Fines /or Favour, and Prote^ion. . 417 No. IV. An Accord or Truce between the Earl MarfhalU and the Earl oj Gloucejkr, and their Men, under reciprocal Oath. 41 8 No. V. Art. I. An InjunSlion not to tomey by Henry III, 420 Art. II. A Prohibition oJ Torneaments by Edward 111. 421 No. VI. The Order and Manner of creating Knights of the Bath in the lime of Peace, according to the Ctytom of England, 423 VIEW O F SOCIETY IN EUROPE, IN ITS PROGRESS FROM RUDENESS TO REFINEMENT. B O O K I. CHAPTER I. Of the Germans before they left their Woods. SECTION L The Injlitut'tonsy Government y and Chara^ler of the Germanic Tribes, IT is of little moment to inquire into the origin of the an- ticnt Germans. Their manners and government are fub- jeds more interefting, and concerning which there are memo- rials of great curiofity and importance. The pidure of thefe nations has been drawn by Tacitus ; and the affairs of men ne- A ver 2 A VIEW OF SOCIETY ver found an obferver more accurate and penetrating. In fol- lowing fuch a guide, it is impofTible not to convey information; and, on this fubjeil, no modern has a title to fpeculate, who has not paid a moft minute attention to his treatife. Antiquity has not given to the kingdoms of Europe a prefent more valuable. r The leading circumflance in difcriminatlng the manners of barbarous and refined times, is the difference which exifts be- tween them in the knowledge and the management of proper- ty. The want of commerce, and the ignorance of money, per- mit the barbarian to exercife a generofity of conduct, which the progrefs of the arts is to deftroy. The Germans conceived not that their defcendants were to grow illuftrious by acquifitions of land, and that they were to employ tlie metals as a fource of influence. Land was yet more conneded with the nation than the individual. The territory poffeffed by tribes was confidered as their property, and cultivated for their ufe. The produce belonged to the public ; and the magiftrate, in his diftributions of it, paid attention to the virtue and the merits of the recei- \ ver (i). The German, accordingly, being unacquainted with particu- lar profeffions, and with mercenary purfuits, was animated with high fentiments of pride and greatnefs. He was guided by af- fedion and appetite ; and, though fierce in the field, and terri>- ble to an enemy, was gentle in his domeftic capacity, and found a. IN EUROPE. :*« a pleafure in ads of beneficence, magnanimity, and frlend- (hip. A ftate of equality, in the abfence of the diftindlons of pro- petty, charaderifed the individuals of a German tribe, and was the fource of their pride, independence, and courage. Perfonal qualities were alone the foundation of pre-eminence. The fons of a chief were not diftinguifhed from thofe of the fimple war- riour, by any fuperior advantages of education. They lived a- mong the fame cattle, and repofed on the fame ground, till the promife of worth, the fymptoms of greatnefs, feparated the in- genuous from the vulgar, till valour claimed them (2). Igno- rant of the arts of peace, they purfued, with keennefs, the occu- pations of war. Where communities, perpetually inflamed with rivalfhip and animofity, brought their difputes to the decifion of battles, and were agitated with revenge and with glory, the opportunities of diftin61:ion were frequent. The only profefTion known to the Germans was that of arms. The ambitious and enterprifing courted dangers where they might acquire renown, and difplay their condud and their prowefs. To fuch a height did the military ardour prevail, that, if a tribe happened at any time to languifli in eafe, its youthful and impatient heroes fought thofe nations who were then at war. They difdained to remain in inadion ; and could not fo ealily be perfuaded to till the earth, and to wait its returns, as to challenge an enemy, and to hazard their lives. They thought it mean and ignoble to ac- A 2 quire ^ A VIEW OF SOCIETY quire by their labour, what they might purchafe with their blood (3). The animated temperament they difplayed in war, was alfo apparent in their private concerns. To the chafe they addlQed themfelves with no meafure of moderation. And, in parties at dice, they engaged in their fobereft and moft ferious hours, and with fuch hope or temerity, that they riflced their liberty and perfons on the laft throw. The affedlion with which they em- braced their friends was ardent and generous. To adopt the refentments, as well as the amities of their relations and kin- dred, was a duty which they held indifpenfible (4). In hofpi- tality they indulged with the moft unbounded freedom. The entertainer, when exhaufted, carried his gueft to the houfe of his next neighbour. Invitations were not waited for ; nor was it of confequence to be invited. A reception, equally warm and hearty, was, at all times, certain. On thefe occafions, giving way to the movements of the heart, they delighted in prefents; but they neither thought themfelves entitled to a return for what they gave, nor laid under an obligation by what they recei- ved (5). They yielded to the impulle of paflion, and the plea- fure they felt was their recompenfe. Their gifts were diredted by no view of an immediate or diflant advantage; their gene- rofity was no traffic of intereft, and proceeded from no motive ofdefign. But, IN EUROPE. J But, amidft all this ardour, they were averfe from labour. The women and the infirm difcharged the offices of the houfe. The warriour did not fubmit to any domeltic occupation. He was to bafk whole days by the fire ; and a floth, joylefs and fupine, was to fucceed and to relieve the brifkiiefs and fatigue of adion (6). His admiration of fortitude, which was the caule of this indolence, and this contempt ot drudgery, was at the lame time to produce a Itatelinels in his behaviour. He was not to lofe his virtue, or to weaken the vigour of his mind, in the pradice of mechanic or unworthy purfuits. When he walk- ed, he feemed confcious of importance ; he cafl his eyes to the ground, and looked not around him for the objects of a vaia and frivolous curiofity. ^ In the diet-/)f thcfe nations, there was much fimplicitv ; it confided of wild apples, new-killed venifon, and curdled rrilk. They expelled hunger without oflentation, or any ftudied pre- parations of food ; but, in fatisfying thiril, they were lefs tem- perate. When fiipplicd to their defire in intoxicating liquors they were no lefs invincible in vice than in valour (7). Yet, in the dilgraceful moments of debauch, ihey applied to publi* af- fairs, and debated concerning peace and war ; and, in the heat of thtir dil'putation and riot, the dagger was often to deform with blood the meetings of friendlhip and of liufinefs. In thefe feafons, they imagined that tbcir ninds were dilpofed to con- ceive honefl fentimcnts, and to rife into noble ones. But, in an 6 A VIEW OF SOCIETY an after-period, the undiffembled thoughts of every one were di- ligently canvafled ; a proper attention being paid to the time when they were firft delivered, and to the purpofe which then employed them. It was their meaning to deliberate when they could not deceive, and to form refolutions when they could not err (S;. They did not live in towns, and could not endure to have their houfes contiguous. They built as they found a fpot to their fancy, as they were attracted by a fountain, a plain, or a grove. But, being unacquainted with a private property in land, they were not ambitious of pofleffions. They vied not in the extent or the fertility of their grounds, in the rearing of orch- ards, and in the iiiclofing of meadows. Corn was the only pro- duce they required from the earth ; and they divided not the year into proper fcafons. They underfiood, and had names for winter, fpring, and fummer, but had no idea of the term, and little knowledge of the fruits of autumn (9). In their religion they Were grofs, like almoft all nations, whe- ther favage or cultivated. They believed in a plurality of gods ; but thought it derogatory from their majefty to fhut them up within walls, or to fafhion them in refemblance to any human form. Their groves were appropriated to the ufes of devotion ; and, in the awful refpecSl infpired by filence in the deep recefles of their woods, they felt and acknowledged the power of their deities. IM EUROPE. 7 deities. To augury and divination they were much addi^ed ; and they were fond to draw prognoltics and intimation from the running of water, the flight of birds, and the neighing of hor- fes. Their priefts had greater authority than their kings or chieftains ; tor it was not by any principle of expediency or reafon that their actions and condu*5l were to be afcertained and examined. They were governed by the impulfes and di'^ates of their divinities ; and, being the interpreters of the will and intentions of thefe, they were able to exercife a jurifdidion un- controllable and facred (lo). The office of a magiftrate was known and refpe£led amon^ thefe nations. The prince, or the chieftain of a diftrid, with the body of his retainers or followers, conftituted a court, which heard accufations, and determined concerning crimes. Traitors and deferters were hanged on trees. Cowar- dice, and the crime againll nature, were confidered as of equal atrocity ; and the perfons convided of them were choked in mire and fwamps by the preflure of hurdles. A corporal pu- niihment, and compenfations in corn or cattle, were the atone- ments ot lefler delinquencies (i i). Noble birth, but more frequently the pofleffion of fuperior qualities, entitled to the office and jui ifdidion of a chief ; And the general of an army was to command lels by authority than from exaiiiple. He drew reljecl and oblervation by his activi- ty, liis addicfs, and the Ipleudour of his exploits (12). Even tlic S A VIEW OF SOCIETY the hopes and ambition of the fimplewarriour were made to de- pend on his perfonal honour and courage. Yet, with all this attention to merit, and with all their elevation of charadter, they were prone to deceive and to circumvent. They accounted it meritorious to fteal upon their enemies in the darkeft nights ; they blackened their fhields, and painted their bodies, to be terrible; and, to give ground, but immediately to return to the charge, was a common and an admired feat of their prudence. Cunning and flratagem appeared to them to be wifdom ; and, though remarkable for courage, both adive and paflive, they expofed it to fufpicion by the arts which, in a cultivated age, are chara(fl:erillic of the pufiUanimous (i 3). It is alfo remarkable, that, though attentive to juftlce, with a pundilious exadnefs, within the bounds of therr^'particular nations, they defpifed it with regard to other ftates and commu- nities. Beyond the frontier of his tribe, the German was a thief and a robber. While, in the one inftance, his theft or de- predation was a crime of the deepeft dye, and punifhed with death, it was, in the other, a mark of valour, and an expref- fion of virtue. To make incurfions againft a neighbouring people, though at peace ; to carry off their cattle, and to lay wafte their territory, were adions of renown and greatnefs. They roufed the ambition of the valorous, and were occupa- tions in which they acquired reputation, and prepared them- felves for fcenes of greater danger and glory (14)- But, IN EUROPE. 9 But, the clrcumftance in the cuftoms of thefe nations the 1 moft valuable, and which, like all their more remarkable fea- tures, arofe from their unacquaintance with property, was the pafTion they entertained tor independence and liberty, tvery perlon who was free, confidered himfelf in the light of a legif- lator. The people prefcribed the regulations they were to obey. / 1 hey marched to the national aflembly to judge, to reform, and to punifh ; and the magiftrate and the fovereign, inftead of con- trolling their power, were to relpeil and to fubmit to it. Stated or regular terms were appointed for the convention of their public councd j and a freedom ot fpeech, entire and unlimited, was permitted. His age, his eloquence, his rank, and the ho- nour he had acquired in war, were the qualities which procured attention to the fpeaker ; and the people were influenced by per- fuafion, not by authority, A murmur coarfe, and often rude, exprefled their diflent : The rattling of their armour was the flattering mark of their applaufe (i 5). While thefe inflitutions and manners are expreffive, in gene- ral, of the German communities, there are exceptions which it is not my province to explain. In the enumeration which is made by the Roman hiftorian of the Germanic tribes, there are perceivable unequal degrees of civilization and refinement. The Chauci, for example, were an improved and an ilhillrious nation, and fupportcd their greatnefs by thdr pr.^bity. They were lo- vers of peace and quiet, and contemners of avarice and ambitiont B They •}0 A VIEW OF SOCIETY They provoked no wars ; engaged in no incurfions or robbe- ries ; and, what may be confidered as a certain proof of their power and valour, prcferved their fuperiority, without having re- courfe to injuries and oppreffions. When called upon, however, by the exigency of their affairs, they were not flow to take arms and to levy armies. They inhabited an extenfive territory, were rich in men and in horfes, and in peace and in war maintained their reputation. The pi£lure of the Fenni, on the contrary, is that of mere rudenefs. They had no arms, no horfes, no reli- gion. To the mofl favage fiercenefs, they had joined the moft abje£l poverty. They clothed themfelves in the fkins of beafts, fed, at times, on herbage, and flept on the earth. Their chief dependence was on their arrows ; and, having no iron, they pointed them with bones. The women accompanied the men to the chafe, and demanded a fliare of the prey. A covering, inwrought with boughs, was all the fhelter which defended their infants from the rigour of feafons, and the ferocity of animals. To this miferable dwelling their young men returned ; and here their old men found a refuge. Thefe courfes of barbaroufnefs, this melancholy fadnefs, they preferred to the fatigue of culti- vating the earth, and of building houfes, to the agitations of hope and fear attendant on a care of their own fortunes, and on a connection with thofe of others. Unapprehenfive of any dan- ger from men, and awed by no terror of the gods, they had reached a ftate which is nearly unattainable to all human endea- vours — the being entirely without a wifh (i6). The IN EUROPE. n The majority of the tribes or communities of Germany may be faid to have occupied a middle ftate between the cultivation of the Chauci and the favagenefs of the Fenni. And it is fuf- ficient to have feleded and expreflfed the more general and the more diftinguifhed particulars which regard their inftitutions, government, and charadler. With thefe in my view, I proceec^ to defcribe the condition of their women ; a fubjedt which, though little attended to by the learned, may lead to conclufionc of intereft and curiofity. B 2 SEC" 12 A VIEW OF SOCIETY SECTION II. Jn Idea of the German Women. T T has been aflerted, that men, In favage and barbarous pe- -*- riods, are carried to the fex merely from the incitement of animal gratification, and that they feel not the power of beauty, nor the pleafures which arife from love ; and a multitude of fadts have been produced from hiftory to confirm this theory. It is concluded, of confequence, that, in fuch times, women are in an abje£t ftate of fervility, from which they advance not till the ages of property ( r ). One would fancy it, notwithftanding, confiftent with reafon, to imagine, that the fexes, in every period of fociety, are im- portant to each other ; and that the member of a rude com- munity, as well as the poliflied citizen, is fufceptible of tendernefs and fentiment. He is a ftranger, indeed, to the metaphyfic of love, and to the fopperies of gallantry ; but his heart cannot be infenfible to female attradions. He cannot but be drawn by beauty ; IN EUROPE. 13 beauty ; he muft know a preference in the objeds of his affec- tion ; and he muft feel and experience, in a certain degree, at leaft, that bewitching intercourle, and thofe delightful agitations, which conftitute the greateft charm of cultivated life. This opinion, I conceive, is ftrongly confirmed by the hiftory of the Germanic ftates. Their general character, with particular and obvious fads, illuftrate the importance and the confidera- tion in which they held their women. Even in the age of Caefar, the German tribes had conceived and acknowledged the idea and exiftence of a public intereft, and, in general, had fubmitted to a mode of government in which the chiefs and the people had their departments as well as the prince. They are defcribed in a fimilar, but a more culti- vated fituation, by Tacitus ; and the fpirit of liberty and inde- pendence which animated their adlions, was to produce that li- mited and legal adminiftration which ftill gives dillindion and dignity to the kingdoms of Europe. Among fuch nations, ac- cordingly, the women were neceffarily free, and fenfible only of the reftraints which arife from manners. The ftate of foclety, which precedes the knowledge of an ex- tenfive property and the meanneffes which flow from refinement and commerce, is in a high degree propitious to women. To treat them with cruelty does not confift with the elevation of (cn~ timcnt 14 A VIEW OF SOCIETY timent which then prevails. Among the people, of whom I fpeak, even the flave was expofed to no ftudied infiilt or oppref- ftonfa). Of the women, the warriour and the citizen confidered himfelf as the friend and the protedlor; and their weaknefs on- ly ferved to render the attachment to them the more lalling and tender. While courage and ftrength and feats of prowefs gave glory to the men, the women were judged of by a different ftandard. They were fludious to recommend themfelves by the perform- ance of domeftic duties. They attended to the cares of the fa- mily and the houfe ; and the mother found a long and a ferious occupation in the rearing of her children, who were not allowed to approach the father in public till a certain age (3). To her daughters flie endeavoured to give the accomplilhments which might win to them the chiefs who were moft celebrated and powerful. To her fons fhe recited the exploits of their anceftorsi and formed them to valour. Nor are thefc the only fources of the refpedi which was paid to them. It has been often remarked, that, in every period of fociety, the women are more difpofed to rapture and devotion than the men, and that their curiofity to pry into futurity is more extravagant. The fuperflitious weaknelTes, however, of the fex, v/hich, in refined times, area fubjeftof ridicule, lead to reverence and attention in a rude age. The Germanic armies feldom took the IN EUROPE. 15 the field without forcerefles ; and thefe had an important fliare in directing their operations (4). In private and civil affairs, their authority was not lefs decifive. On the foundation of the won- der and aftonifliment excited by the knowledge arrogated by the women, by the {kill they difplayed in divination, and, above all, by the ceremony and the cruelty of the rites they pradifed, a folid and permanent influence was eflabliflaed (5). It was thought, that they had fomething divine in their nature ; and the names of many of them, who were worfliipped as divinities, have come down in hiftory (6). To attend to the qualities of plants, and to the curing of wounds, was another branch of their occupation (7); and, m times of war and depredation, it fs difficult to conceive a cir- cumftance which could recommend them more. Nor were they inattentive to adorn their perfons. The linen, which made the principal article of their drefs, was of their own manufac- ture; and they had a pride in intermixing it with purple (8). They went frequently into the bath ; their hair flowed in ring- lets; a part of their charms was induftrioully difplayed; and, in evidence of their beauty, there may be brought the teftimo- ny of the hiftorian, and the fong of the poet (9). In the more ferious and important wars in which thefe na- tions engaged, the chiefs and warriours fcem conftantly to have carried their wives and female relations along with them as an incitement to their valour. T hcfe objeds of their affcdion they placed i6 A VIEW OF SOCIETY placed at a fmall diftance from the field of battle : And the moft terrible calamity which could befal them, was their capti- vity. By their importunity and wailing, it is recorded, that armies, in the moment of fubmiffion, have been recovered ; and the flipulations of ftates were never fo certainly fecured as when fome virgins of rank were delivered among the hoftages (lo). In the blood of their women, it was conceived there was a charm and a virtue ; and hence it proceeded, that, to their uncles by the mother and to their fathers, children were the objeds of an equal affection and tendernefs (i i). But, what evinces their confideration beyond the poffibllity of a doubt, is the attention they beftowed on bufinefs and affairs. They felt, as well as the noble and the warriour, the cares of the community. They watched over its intereft, confidered its con- nedlion with other ftates, and thought of improving its policy, and extending its dominion. They went to the public councils or aflernblies of their nations, heard the debates of the ftatefmen, and were called upon to deliver their fentiments. And, what is worthy of particular notice, this confequence in a£tive fcenes they tranfrnitted to their pofterity (12). Such, in general, was the condition of women among our anceftors, while they were yet in their woods ; and fuch, I {hould think, is in a great meafure their ftate in every country of the globe in an age of fociety and manners, which knows not the cares, the corruptions, and the diftindions of property ([3). SEC- IN EUROPE. SECTION iir. Of Marriage and Modejly. IT is not to be denied, that, before the idea of a public is ac- knowledged, and before men have fubmitted to the falutary reftraint of law, the diforders of promifcuous love difturb and disfigure fociety (i). Yet, even in thefe wild and informal times, there exift parties, who, clinging together from choice and ap- petite, experience the happinefs of reciprocal attentions and kindneffes; who, in the care of their offspring, find an anxious and interefting employment, and a powerful fource of attach- ment ; who, moved by love, by friendfhip, by parental affedion and habitude, never think of difcontinuing their commerce; and who, in fine, look forward with forrow to the fatal moment when death is to feparate them. This cohabitation or alliance, attrading attention by its decen- cy, its pleafures, and its advantages, would grow into a cuftom or a falhion. For, what men approve, they will imitate. To this C 7/^, i8 A VIEW OF SOCIETY ufcy therefore, it fcems not unreafonable to refer the inftltutlon of marriage ; and thus, before it is known as a poHtical confider- ation, it, in fome meafure, fubfifts in nature. As men increafe in their numbers, they perceive the neceflity of attending to an union, which is no lefs important to fociety than to the indivi- dual, which has in view the fupport of the one, and the fehcity of the other. A ceremonial is invented which gives it authority and duration. The ftate takes a fliare in the cares of the lover, and prefcribcs the forms that are to bind him to his miftrefs. Na- ture, while Ihe fits the fexes for each other, leaves it to polity or law to regulate the mode of their connexion. The race of men who antiently inhabited Germany, are re- prefented, as was formerly obferved, in the condition of nations ; and a legiflature, compofed of the prince, the nobles, and the people, diredcd their operations. This aflembly, which gave a fandion to military expeditions, and adjufted alliances and trea- ties, managed alio the objeds of internal concern. It extended its jurifdidion over the women as well as over the other parts of the community, and afcertained the ceremonial of marriage. When the individual was called from the houfe of his father, and inverted with arms; when he was advanced from being a part of a private family to be a member of the republic, he had the capacity of entering into contrads, and of fingling out the objed of his affedions. The parties who had agreed to unite their IN EUROPE. 19 their interefts, having obtained the approbation of their parents and relations, made an interchange of gifts in their prefence. The lover gave his miftrefs a pair of oxen, a bridled horfe, a fhield, afword, and a javelin; andfhe, in her turn, prefented him with fome arms. It was thus they exprefled their attachment to each other, and their willingnefs to difcharge mutually the duties of the married ftate. This was their ftrongeft tie ; thefe were their myfterious rites, thefe their conjugal deities (2). Nor, let it be fancied that, in this ceremonial, there was any thing humiliating to the woman. It fuited exadly the condi- tion of a rude fociety, and mufl: not be judged of by the ideas of a refined age. The prcfents, indeed, were expreffive of labour and activity ; but labour and adivity were then no marks of reproach ; and, in fa£l, the joined oxen, the prepared horfe, the prefented arms, inftead of indicating the inferiority of the bride, denoted ftrongly her equality with her hufband. They admo- nifhed her, that flie was to be the partner and the companion of his toils and his cares, and that, in peace and in war, Oie was to fuftain the fame fatigues, and to bear a part in the fame enter- prifes (3). The fidelity of the married women among thefe nations, and the conftancy and tendernefs of their attachment, exprcfs alfo Iheir equality with the men and their importance (4). A ftrid bbfervance of the marriage-bed was required of them. The C 2 crime 20 A VIEW OF SOCIETY crime of adultery was rare ; and, In the feverlty of its punlfli- ment, the refpeft is to be traced which was paid to modefty. It was immediate, and inflided by the hufband. He defpoiled the culprit of her hair and garments, expelled her from his houfe before her aflembled relations, and whipped her through the whole village (5). Of the young women, the mofl: powerful re- commendation was the referve and coynefs of their demeanour. A violation of modefty was never pardoned. Nor youth, nor beauty, could procure a hufband. Vice was not here fported with ; and, to corrupt and to be corrupted, were not termed the fafhion of times (6). In the fimplicity of their manners, they found a prefervatlon againft vice more efFedual than the laws of cultivated ftates. The gallantries of the young men began late ; their youth was, therefore, inexhaufted. Thofe of the young women were not earlier. They mingled, when they were equal in age, in pro- cerity, and ftrength, and had a progeny who expreffed their vigour. Difgrace attended on celibacy ; and the old were ho- noured in proportion to the number and the merits of their de- fcendants. A dread of pain and the care of beauty checked not generation (7). The mother fuckled her own children (8); and, in difcharging this talk, anticipated the greatnefs and the felici- ty fhe was to acquire and to experience from their virtues, and in their gratitude (9). It IN EUROPE. 21 It was thus the chaftity of the women was guarded : It was thus their importance was confirmed. No allurements of pu- blic ihows and entertainments relaxed their virtue, and infinua- ted into them the love of pleafure ; no incitements of luxury in- flamed their defires and expofed them to corruption; and what the Romans feem to have confidered as particularly fatal, no ac- quirements of knowledge and of letters dil'covered to them the arts which minifter to love (lo). In fome of their ftates or communities, the refpe£l of modefly was fo great, that it was not lawful but to virgins to marry ; who, without the hope or wilh of fecond nuptials, received one hufband, as they had done one body and one life, and had no thoughts or defires beyond him. It was their ambition and pride, if they furvived the objeds of their affedlion, to preferve, unfullied, the honours of widowhood ; and, when the barbari- ans had made fettlcments in the provinces of Rome, when their manners had refined, and the fex were, in fome meafure, eman- cipated from this reflraint, the fpirit of the ufage continued to operate. It augmented, as to the widow, the matrimonial fym- bols ; a larger dower than ulual was necellary to overcome her reludtance to a fecond bed (i i ^ ; and, vvliile it encouraged the king or the magiflrate to cxadt a greater fine from her on her marriage {i2j, it entitled her to a higher compenfation for in- juries (13). Amidft 22 AVIKVV OF SOCIETY Amidft the modefty of fuch ufagcs and manners, we mufl. not look for polygamy. It was unknown to thefc nations ; though, it is to be allowed, that a few of the chiefs or more re- nowned princes were furrounded with a number of wives (14). This, however, was a matter of grandeur, not of appetite ; and its fource is to be found in maxims of policy, in the ambition of individuals, and in that of ftates. A prince, to fupport or ex- tend his greatnefs, connefted himfelf with different families ; and the deliberations of his tribe not unfrequently pointed out to him the alliances he fliould court (15). To the degrees of confanguinity and blood, concerning which nature has didated fo little, and polity (o much, it is not to be conceived that they paid a fcrupulous attention in their mar- riages {16). It is a fubjedt on which no infant-communities are exad. They attended to it when, having fallied from their woods, they grew refined by time, obfervation, and experience. CHAP- CHAPTER 11. The political Eftablifhments of the Barbarians after they had made Conquefts. SECTION I. The Barbaric Conqiiejls. The Origin of the Domains of the Prince^ and of Allodiality. The Lands of the Fife. The Foun- dations of the Feudal Affociation^ the Rife of the Feudal Grants and the Genius of the Feudal Sjflem. 'Tn HE Romans, corrupted and fervile in every quarter of the f -*■ empire, were unable to oppofe the valour and the adivity of the Germanic tribes. And, the manners of the conquerors and the conquered being effentially different, and even contra- didtcry, the revolution produced in the condition of Europe was total and decifive (i). It is thence chiefly, by an attention to the way of thinking which prevailed in their original feats, that the ftatc 24 A VIEW OF SOCIETY ftate is to be inveftigated which the barbarians exhibited on their conquefts ; and that the origin and the nature of thofe inflitu- tions are to be difcovered, which, overturning in every country they invaded, the antient forms of legiQation and government, arofc on their ruins. In the mafterly treatife, accordingly, in which Tacitus paints, with liis inimitable pencil, the manners of thefe nations, I muft look for the foundations of this ftate, and thefe inftitutions. ' The members of a German nation,' fays this accomplished hiftorian, ' cultivate, by turns, for its ufe, an extent of land cor- ' refponding to their number, which is then parcelled out to in- * dividuals in proportion to their dignity : Thefe divifions are ' the more eafily afcertained, as the plains of Germany are exten- ' five ; and, though they annually occupy a new piece of ' ground, they are not exhaufted in territory (2).' ,-— - This paflage abounds in inftrudion, the moft important. It informs us, that the German had no private property in land, and that it was his tribe which allowed him annually for his fupport a proportion of territory | that the property of the land was invefted in the tribe, and that the lands dealt out to indivi- duals returned to the public, after they had reaped the fruits of them ; that, to be entitled to a partition of land from his na- tion, was the diftindion of a citizen ; and that, in confequence of IN EUROPE. 25 of tbls partition, he became bound to attend to its defence, and to its glory. With thefe ideas, and with this pradice, the Germans made conquefts. In conformity, therefore, with their antient man- ners, when a fettlement was made in a province of the empire, the property of the land belonged to the vidorious nation, and the brave laid claim to their poflefTions. A tradt of ground was marked out for the fovereign ; and, to the inferior orders of men, divifions correfponding to their importance were allotted. But while, in their original feats, fuch partitions were annual," it was expedient that they ihould now be inverted in the poflef- for. A more enlarged idea of property had been gradually un- folding itfelf (3) ; and, though it was convenient to, and fuited the views of a narrow community, to take back its land, the meafure was not pradlicable in an extenfive fociety. Nations were no longer to fhift their habitations. The boundaries of particular ftates were to be refpedted. The tribe ceafingto wan- der, the individual was alfo to be ftationary. The lot or parti- tion now received by him, was to continue in bis pofiefTion, and to be an obje£l of his induftry. He was to take root, if I may fpeak fo, in a particular fpot. He was to bellow on it his affection ; it was to feed and to enrich him with its produce. His family were to feel an intereft in his eftatc ; his fons were to fuccecd to him. Heirs were to fail in the blood of the pro- D prictor. 26 A VIEW OF SOCIETY prietor. It affeded him, that the crown or a ftranger fhould poflefs the fiibjedt of his toils and attentions. The powers of fale and donation came to be underftood. The right of holding a landed territory with no limitation, and of difpofing of it at pleafure, was known and prevailed. The advantages of property open themfelves with time. They were not obferved by the German in his woods. But, when he was no longer the member of a narrow community, and felt his unimportance in the extenfive kingdoms which arofe on his con- quefts, when other profeflions were to be exercifed befide that of the warriour, his attention turned from the public to himfelf. Ideas of interefi; preffed in upon him on every fide. He was no longer to a6t chiefly from appetite and paflion. He was to look forward to diftant profpeds. He was to bufy himfelf for advantages which were to arrive flowly, and which were often to elude his diligence. He had palfed from the empire of man- ners to that of laws. Riches had become a fource of diflindion ; and his mind v\'as to be torn with cares, anxiety, and oftenta- tion. When we mount up to the origin of cuftoms, v\^ are to be ftruck with their fimplicity. The lot or partition to the fove- rcign was to conflitute his domoiyis. It was to fupport his fplendour, to defray the expences of government, and to main- tain his houfehold. The lot or partition to the individual was to IN EUROPE. :i; to give rife to allodiality. It was the land which was/zv^, which was named propriety^ in contradiftindion to tenure (4); and, being ftill the mark of a citizen, it fubjc a German (late found itfelf in a province of the Romans. The fovcreign, from gratitude and intereft, was difpofed to court the chiefs who were the affociates of his vit\orie& ; and the chiefs were not infenfible of their importance. The retainers were proud of their prowefs and their fervices ; and the chiefs were forward to Ihow their favour and afFedion to men who conftituted their flrength. Land had begun to be detached from nations,\ and to be connected with inJiviJuals. And the conqvieft ob- | tained was in danger from the turbulence of the times, and from / new invaders. ' The fituation of a German ftatc which had acquired a fettie- ment, produced thus the neceflity of drawing clofcr the connec- tion of the fovercign ai.d the chiefs, and of the chief's and the people. Its antient ufages concurring with this fituation, point- ed 30 A V I E \V O F S O C I E T Y ed out the condud to be purfued. The lands of the jifc were the medium which was to operate the purpofe that was fo ne- cefl'ary. The fovereign took the diredion of thefe ; hence pof- feflions flowed to the chiefs, under the burden of prefenting themfelves in arms at the call of the fovereign ; hence the chiefs dealt out lands to their retainers, under the like injundion of continuing to them their aid (9) ; and thus a political fyftem was founded, which was to ad in fociety with infinite efficacy. Of this fyftem the intention and the fpirit were national de- fence, and doraeftic independence. While it called out the in- habitant and the citizen to defend his property and to fecure his tranquillity, It oppofed barriers to defpotifm. Growing out of liberty, it was to promote the freedom of the fubjed. The power of the fovereign was checked by the chiefs, who were to form a regular order of nobility ; and the ariftocracy, or the power of the chiefs, was repreffed by the retainers and vafTals, who, conftituting their greatnefs, were to attrad their attention. The chief, who opprefled his retainers, was to deftroy his own importance. It was their number and their attachment, which made him formidable to his prince and to his equals. In this manner, I would account for the origin of the domains of the fovereign, and of allodiality; for that of fiefs (to) ; and for the genius they difplayed in their carlieft condition. And this fhort dedudion may be fufficient to exhibit a general idea of the ftate of land among the barbaric tribes on their conquefts. SEC- IN EUROPE. 31 SECTION II. Of the Property of the Women. The Dower ^ the Morgengabe^ and the Marriage-portion. The Communication to the Women of the Poivers of Succejfion ami Inheritance. The advancement of Manners. HAVING diftinguidied the property of the men, it is fit I fhould treat that of the women. I have obferved, that, among the antient Germans, and the cafe, it is to be prefumed, is fimilar in every rude community, the property of the land was inverted in the tribe or nation. His proportion of corn was allotted to the individual by the magiftrate, and correfponded to the number of his family, the degrees of his merit, and the im- portance of his fervice. He derived, accordingly, no fource of influence from the property of land. His chief, and almoft only riches, confided in cattle (i); and, in thofe rude and remote times, the more powerful fupported their hofpitality and magni- ficence by war and violence. They colleded their retainers, and committed incurfion and plunder upon neighbouring na- tions ; and their ftates dil'couraged not a pradice which was fa- vourable to the military virtues. In / 32 A VIEW OF SOCIETY In this fituatioii, it is obvious, that no property could be pof- fefled by the women (2). They had neither land nor cattle, and could demand no {hare of the booty procured by robbery and depredation. While they remained in their virgin ftatc, they continued, therefore, in the families of which they were defcend- ed(3); and, when they pafTed, by marriage, into other families, their hufbands became bound to attend to and to provide for them. Hence the cuftom recorded by Tacitus : ' Dotein non uxor ma- * rito, fed uxori i7iarihcs ofFert.' On the death of the hufband, the wife received this provifion ; and, it was the objecSt of it to render her alike independent of the houfe fhe had left, and of that into which fhe had entered (4). This provifion confifted, doubtlefs, of goods ; and, even in this form, it is to be conceived, it difcovered itfelf after the Ger- manic conquefts. When time, however, refinement, and necef- fity, had taught the barbarians the ufes of wealth, and indivi- duals were proud of acquifitions in land, it aflumed more enlar- ged appearances ; and property opening to the women, they acquired a fource of confideration which they had not formerly known, and which was about to produce confequences of no lefs* moment to themfelves than to fociety. The dos or dower came to confifl: in money and in land. It was to arife out of a perfonal ellate, out of allodial property, or out of fiefs. With the widow, it remained during her life, and oa IN EUROPE. 33 on her death it paffed to the heirs of her hufband. Tn general, it was regulated by his deed. In feme places it was governed by cuftom. It was fometimes conftltutcd by ceremonies, which grew out of the particular fituation of parties (5) ; and, when no pri- vate ad had taken place, where no cuftom direded, and where no peculiarity of fituation prevailed, it was fixed and afcertained by eftabliflied and ftatutory laws (6). Nor was it a doiver only, that the hufband beftowed on the wife. The morning after his nuptials, he made her a prefent, "which was valuable in proportion to his generofity and wealth. This acquifition is known by the appellation of morgengahc[j) ; and, poffefling it in full property, fhe could convey it away du- ring her life, allow it to pafs to her heirs, or difpofe of it by a deed, to take efFeit after death (8). The experience of the ufes of property was to produce a folici- tude to poffefs it. While the doiver and the morgengahe gave diftindtion to the wife, the daughtei; was to know the necefTity of acquifitions, and to wifli for them. The parent was to encou- rage her hopes, and to gratify his affections. He was to make her ftate correfpond to his riches and his dignity. The refining intercourfe, and the rifing luxuries of fociety, were to demand this attention. A portion was to go from the bride to the huf- band. The perfonal fortune, to which the daughter had been a ftranger in the days of Tacitus, made its appearance. And E wealth 34 AVIEWOFSOCIETY wealth in the female fex, joining itfelf to beauty and wit, con- tributed to fupport and extend their dominion. The cuRom, in fad, of giving portions to the women, is to be traced to an early period in the laws of the Germanic and Celtic nations (9). The prefent, fimple and flight in its origin, grew complicated and extenfive. It kept pace with luxury and opulence. The doiver, which before was chiefly diredled by the will of the hufljand, became now a formal matter of treaty and agreement. The bride had a title to ftipulate her claims. The riches flie brought, and her rank, were duly confidered ; and a provifion in proportion to both were allotted (lo). • The portion of the daughter, like the doiuer and the inorgen- gabe of the wife, was originally to confifl; of goods, and then of money. It was afterwards to confifl: of land. But, when the father was firft to beftow land on the daughter, it is to be un- derftood, that it was a part of his property, which was free or allodial. Fiefs, in their commencement, could not be enjoyed by the women. The aQual fervice of the fliield was required from the vaflal. To admit them to allodiality, was even a deviation from the fpirit of the antient cuftoms of the barbari- ans ; and, it was only in the evolution of the rights of proper- ty, that they were permitted to acquire it. A propriety then, or an allodial poflcflTion, might come to them by donation or by teftatr.ent. But, by the rules of regular fucceflion, it was to gp to IN EUROPE. 35 to the fons ; and, according to law, they vA'ere only to inherit, when there were to be no fons, or when the fons were to fail(ii]. The communication, however, of thefe privileges was a powerful addition to their importance, and was to lead to advantages ftill greater. The capacity to receive allodlality by grant, by gift, by te- ftamentary deftination, and to enter to it by fucceffion, in the event of the want of male heirs, or after their demife, introdu- ced and foftered the idea of their admiffion to fiefs. As the ori- ginal rudenefs of the barbaric nations yielded to fucceffive im- provements, as manners foftened, and the arts of peace were cultivated, the propenfity to add to their emolument, and to contribute to their pleafure, grew ftronger. If they could not march to the field, and charge an enemy at the head of their vaflals, they might perform thefe offices by fubftitution. An approved warriour might difcharge, for the female pofleflbr of a fief, the military duties to which it was fubjec^. A right to fucceed to feudality was, by degrees, acknowledged in the fex ; and, when inverted in the grant, they were to exert all its civil rights. Though they deputed its military command, they could fuftain its honours and prerogatives. They were to hold courts, and exercife jurifdidion in ordinary fiefs ; and, while they at- tended to thefe cares in noble ones, they were alfo to aflemble with the peers, in the great aflcmblies of the ftate in every coun- try of Europe, to deliberate, to vote, and to judge. Neither the £ 2 military 36 A VIEW OF SOCIETY military fervice incident to every fief, nor the obligation of at- tending the aflembly of the peers or the council of the nation incident to fiefs, which were noble, could prevent the advancing condition of the women. The imbecillity of their nature, which gives a ftrength to all their other attradions, made them fulfil the firft duty by delegation : The laft they were long to perform in perfon (12). From the moment that fettlements were made in the territo- ries of Rome, the women were to improve in advantages. The fubordiuations of rank, which before had been chiefly difcrimi- nated by merit, were now marked more palpably by riches and property. Modes of a diftant and refpedful demeanour were invented. New fentiments of dignity and meaunefs became known. Difplays of elegance and luxury took place. The ex- tent and order of eflablidied kingdoms rendered men more do- meftic. Lefs engaged with the public, the female fex engrofled more ftrongly their regard and notice. They approached them with greater reverence j they courted them with an affiduity that was more tender and anxious. The women, in their turn, learned to be more vain, more gay, and more alluring. They grew ftudious to pleafe and to conquer. They loft fomewhat of the intrepidity and fiercenefs which before were charaderiftic of them. They were to affeCt a delicacy, and even a weaknefs. Their education was to be an objedt of greater attention and care. A finer fenfe of beauty was to arife. They were to abandon all employments IN EUROPE. 37 employments which hurt the fliape and deform the body. They were to exert a fancy in drefs and in ornament ( 1 3). They were to be more fecludcd from obfervation. A greater play was to be given to fentiment and anticipation. Greater referve was to accompany the commerce of the Texes. Modefty was to take the alarm fooner(i4). Gallantry, in all its falhions, and in all its charms, was to unfold itfelf. But, before I can exprefs, with precifion, the confideration they attained, and perceive, with diftindtnefs, thefplendour which the feudal alFociation was to throw around them, 1 mufl look for the extenfion of fiefs, and for the fources of chivalry. Fiefs and chivalry were mutually to att upon one another. The feu- dal aflbciation was to diredt and to fofter chivalry ; and, from chivalry, it was to receive a fupport or luftre. They were plants which were deftined to take root about the fame period, and to fympathife in their growth, and in their decline. The feeds of them had been gathered by the barbarian in his woods ; and, to whatever foil or climate his fortune was to carry him, there he was to fcatter them with profufion. S E C- A VIEW OF SOCIETY SECTION III. The Grandeur confeqiieiit on Property^ and the Power of the Nobles. 1 he Prerogative of private War, and its dejlru^ive Tendency. The Converfton of Allodiality into Tenure. The Ex- tenfion and Univerfality of Fiefs. T)ROUD with vldory, with riches, and with independence, -■- the conquerors of the Romans feparated to enjoy their pofleffions and their grandeur. The chiefs continued, as of old, to pofl'efs a mihtary authority and a civil juriididlion (i). The prerogatives, which before they had arrogated as due to their merit, they now enjoyed as the holders of fiefs. In war they commanded their vaflals and retainers, and they judged of their difpuies in times of peace. The inhabitants of their territories were foldiers and fubjedts. Their caftles and houfehold bore a refemblance to the palace, and the eftablifhment of the fovereign. They had their officers and their courts of juftice ; and they ex- ercifed the powers of puniflament and mercy (2). They even continued to exert the privilege of making war of their private authority ; and the fovereigns of Europe could behold fubjeds in arms, who infringed not their allegiance to the ftate (j). This I N E U 11 O P E. 39 This right of fpreading, with impunity, the tumults of war, operated as the leading fource of the diforders of the middle ages, and marks expreflively their condition and manners. It demands, of confequeuce, an attention which I muft refufe, at prefent, to the other prerogatives of nobility ; and, in order to dii'cover its origin, I muft glance at the beginnings of criminal jurifprudence. In the early ages of fociety, the individual depends for pro- le£lion on himfelf. There is no tribunal to which he can ap- peal for redrefs. He retaliates, with his own arm, the infult he has fuffered ; and, if he is unable, of himfelf, to complete his revenge, he engages his friends to aflift him (4). Confederacies are formed for attack and for defence ^5), and the members compofing them are animated with the fame paflions. In this perturbed ftaie of mankind, the punifliment of the offender is difproportioned to his crime. INien, frantic with rage, are un- acquainted with pity or with realon. The moll: barbarous ac- tions, and the moft cruel dilbrder, are perpetrated and prevail. It is perceived, that the interelt of the community is injured. Yet the right of revenge, fo dangerous in the hand of the indi- vidual, cannot, without injuilice, be torn trom him. It is equi- table that he be fatistied tor the wrongs he has endured ; but it is no Ids equitable, iliai the public do not lufTer by his violence. He is allowed, accordingly, to gratify his rcfcntment, but through the power of the magillratc, who, while he feels for the 40 A V I E W O F S O C I E T Y the injuries he has received, can alfo look with compafficn to the criminal (6). It is not, however, to be Imagined, that this improvement takes place at once, and that every individual is, in the fame moment, made to relinquifli the exercife of his right of revenge. In rude times, the chief diftinition among men arifes from their perfonal qualities. Force of body, and vigour of mind, procure then to their poflenbrs the greateft attention and refped. A diflinguiflied warriour, or a chief, muft be treated very different- ly from the vulgar ; and, though the exercife of private revenge is to be raviflied from the herd of the community, it is yet to continue in the jurifdidion of the great and the powerful. What is pofTefled by a few, grows in time a mark of honour, and a privilege of nobility (7). Among the Germans, in the days of Tacitus, the exercife of the right of revenge had paffed, in a great meafure, from the multitude. It remained, notwithftanding, with the chiefs ; and they were not, on their conquefts, in adifpofition to renounce fo fplendid a diftindion. They enjoyed, as a prerogative, the ex- ercife of a right, which is deftrudive to order and fociety ; and, in times when the art of legiflation and government was only approaching to perfection, their claims were acknowledged. The freedom of revenge, at firft unlimited, was confined j and the barons made war of their private authority (8). IC IN EUROPE. 41 'It is thus that this prerogative arofe which filled Europe with confufion. Nobles, haughty and independent, did not think of accepting a fine as a compenfation for an infult, and fubmitted not their difputes to a judge. They brought them to the deci- fion of the fword; and, their vaflals and retainers, entering into their fentiments and feelings, partook of their glory and difgrace. They were rivals whom nothing could unite, but the enemies of the ftate, or the encroachments of the fovereign. To reprefs thefe they could a6l with cordiality. Bat, m their ufual carriage to one another, they were iullen, jealous, and proud ; and, it was their chief employment to vie in dilplays of magnificence, or to try their ftrength in hoftility. In the ftate of tumult, bloodfhed, and oppreflTion, produced by the exercife of the prerogative of private war, a moll important difhndtion was effeded between the holders of fiefs, and the polleliors of property. While, in the imperfection of govern- ment, the magillrate could not extend his power with equal force ovr ail the orders ot men ir. the fociety; while the weak were cxpol'ed to the iniuhs and the paflions oi the (Irong ; while nobles, haughty and independent, could legally profecute their refentments witb the fword, revenge their wrongs, and gratify their avarice and crueUy, tlie holders of fiefs enjoyed a lupreme advantage over all.>dial proprietors. A Lord and his retainers, conneded together in an intimate alliance, following the fane Itandard, and adopting the fame iraffions, could ad with concert and effi-- E cacy. . L 42 A V I E W O F S C I E T Y cacy. But allodial proprietors were altogether difqiulified to de- fend themielves. Being diftant and difengaged, they could form and fupport no continued or powerful confederacy ; ami the laws, in fact, did not permit them to enter into fadions and ho- ftiliries. The violence of the times created an . abfurdity. It gave to gifts under fervice, and revertible to the grantor, a value fuperior to lands which were held in full property, and at the difpofal of the poffeflbr. It made nccelTary the converfion of propriety into tenure. Nor was this the only confideratlon which had weight with the polIelTors of property. In every monarchy, but in one more particularly that is governed by feudal ideas, rank and pre-emi- nence attraQ chiefly the attention, and excite the ambition of in- dividuals. The king being the fountain of honour, and diftinc- tions flowing from his favour, the ranks of men were nicely ad- jufted ; and, in proportion as they approached to his perfon, they exadted and received refpeift. From this principle it natu- rally proceeded, that allodial proprietors were treated with con- tempt. Holding by no tenure, and occupying no place in the feudal arrangements, they could not draw obfervation. Their pride was alarmed, and they wiflied for the refped and the fe- curity of vaflals. Princes, bent on the extenfion of fiefs, difcouraged thefe pro- prietors. Their ambition, their abilities, and their prerogatives, furniflied IN EUROPE. 43 furnifhed them with the greateft influence ; and they employed it to give univerfality to a fyflem, which was calculated to fup- port the royal dignity and the national importance. Compo- fitions for offences inferior to thofe which were allowed to a vaifal, were deemed fufficient for the proprietors of allodiality. In the courts of juftice they felt the difadvantages of their con- dition. Mortified with regal negle£t, without fufficient protec- tion from the laws, cxpoieil to the capricious infolence and the dertrudtive ravages of the great, dilgufted with rudenefs, con- tempt, and indignity, they were driven into the circle of fiefs. They courted the privileges and the protedion which were enjoyed by valTals. They fubmitced their eftaies to tenure, felcding to themfelves a fuperior the moft agreeable, granting to him their lands, and receiving them back from him as a feudal donation (9). In this diredion of affairs, the extenfion of the feudal inftitu- tions was unavoidable. The landed property was every v^-here changed into feudality. The empire of fiefs vi-as univerial. liven land, the great fource and medium of tenure, was to be in- fufficient for the multitude of thofe, who were prelfcd to be vaf- fals, by their wants and fec-blenefs, and who were invited to be fo by the great, in the wildnefs of their contentions, and amidft the enormity and milrule created by the exercife of private war. Eveiy matter that was an ohjeft of profit, of pleafure, ol ufe, or of commerce, was to become the foundation of a fief. The right F 2 of 44 A VIEW OF SOCIETY of judging the delids committed in a foreft, the right of the chafe or of hunting in a certain diftrid, the tax on public roads, the privilege of efcorting merchants to a fair or a market, offices of truft and of juftice, the fwarms of bees in a woody territory, the profits of a mill, the fifliing in a water, the allottment of a penfion, and other rights and pofleffions in ftill wider deviation from the original grounds or dodrines of feudality, were to be held as fiefs (lo). The imagination was exhaufted to invent new methods of infeudation. None could be too romantic or whiinfical, while ftrength or importance was derived from them to the grantors. The holders or vaflals were bound to military fervice, and fubjed to obligations ; and. the chief and the emi- nent, in confequence of this policy, extended, fupported, and maintained their public magnificence, their private confideration, and the ruinous conflids and animofities in which they were involved by the paflions of othersr and their own. SEC- IN EUROPE. 45 SECTION IV. Armsy Gallantry^ and Devotion. The origin of Knighthood and the Judicial Combat y of To me anient s and Blazonry. The Sour- ces of Chivalry. w .1 HEN the inhabitants of Germany fallied from their woods, and made conquefts, the change of condition they experienced produced a change in their manners. Nar- row communities grew into extenfive kingdoms, and petty prin- ces, and temporary leaders, were exaUed into monarchs. The i- deas, however, they had formerly entertained, and the cuftoms with which they had been familiar, were neither forgotten nor neglecf^ed. The modes of thought and of adion which had been difplayed in their original feats, advanced with them into the territories of Rome, continued their operation and power in this new fituation, and created that uniformity of appearance which Europe every where exhibited. Their influence on the forms of government and polity which arofe, was decifive and exten- five ; and, it was not lefs efficacious and powerful on thofe in- ferior circumftanccs which join lo conilitute the fyfteni of man- ners, L 46 AVIEW OF SOCIETY ners, and to produce the complexion and features that diftinguifh ages and nations. The inclination for war entertained by the Germanic ftates, the refpeft and importance in which they held their women, and the fentiments they had conceived of religion, did not forfake them when they had conquered. To excel in war was ftill their ruling ambition, and ufages were ftill conne£ted with arms. To the fex they ftill looked with afi^edion and courtefy. And their theology was even to operate in its fpirit, after its forms were decayed, and after Chriftianity was eftabliftied. Arms, gallan- try, and devotion, were to adl with uncommon force ; and, to the forefts of Germany, we muft trace thofe romantic inftitutions, which filled Europe with renown, and with fplendour ; which, mingling religion with war, and piety with love, raifed up fo many warrioiirs to contend for the palm of valour and the prize of beauty. The paflion for arms among the Germanic ftates was carried to extremity. It was amidft fcenes of death and peril that the young'were educated : It was by valour and feats of prowefs that the am.bitious fignalizcd their manhood. All the honours they knew were allotted to the brave. The fword opened the path to glory. It was in the field that the ingenuous and the noble fiattered moft their pride, anxl acquired an afcendancy. The Ilrengih of their bodies, and the vigour of their counfels, furroundeU IN EUROPE. 47 furrounded them with warrlours, and Hftcd them to com- mand (i). But, among thefe nations, when the Individual felt the call of valour, and wiflied to try his ftrength againfl: an enemy, he could not of his own authority take the lance and the javelin. The admiflion of their youth to the privilege of bearing arms, was a matter of too much importance to be left to chance or their own choice. A form was invented by which they were advan- ced to that honour. The council of the diftridV, or of the canton to which the candidate belonged, was alTembled. His age and his qua- lifications were inquired into ; and, if he was deemed wor- thy of being admitted to the privileges of a foldier, a chief- tain, his father, or one of his kindred, adorned him with the fliield and the lance. In confequence of this folemnity, he pre- pared to dirtinguilh himfelf ; his mind opened to the cares of the public; and the domeftic concerns, or the offices of the family from which he had fprung, were no longer the objeds of his at- tention (2). To this ceremony, fo fimple and fo intcrcfting, the inftitutioii of knighthood is indebted for its rile. The adorning the indivi- dual with arms, continued for ages to charailerife his advance- ment to this dignity. And this rite was performed to him by his fovereign, his lord, or fonie approved warriour' In confor- mity, 48 A VIEW OF SOCIETY mity, alfo, to the manners which produced this inftitution, it is to be obferved, that even the fons of a king prefumed not to ap- proach his perfon before their adinifTion to its privileges; and the nobility kept their defcendants at an equal diftance. It was the road, as of old, to diftindion and honour. Without the ad- vancement to it, the moft illuilrious birth gave no title to perfo- nal rank (3). " Their appetite for war, and their predatory life, taught the Germans to fancy that the gods were on the fide of the valiant. Force appeared to them to be juftice, and weaknels to be crime (4). When they would divine the fate of an important war, they feledted a captive of the nation with whom they were at variance, and oppofed to him a warriour out of their own number. To each champion they prefented the arms of his country ; and, according as the vit£lory fell to the one or tiie o- ther, they prognofticated their triumph or defeat. Religion in- terfered with arms and with valour ; and the party who prevailed, could plead in his favour the interpofition of the deity. When an individual was called before the magiflrate, and charged with an offence, if the evidence was not clear, he might challenge his accufer. The judge ordered them to prepare for battle, made a fignal tor the oafet, and gave his award for the vidlor (5), Nor was it only when his intereft and property were at ftake, that the German had recourle to his fv\'ord. He could bear no ftain IN E U R O P Ii. 49 ftain on his perfonal charader. To treat him with Indignity or difdain, was to offend him mortally. An affront of this kind covered him with infamy, if he forgave it (6). The blood of his adverfary could alone wipe it away ; and he called upon him to vindicate his charge, or to perifh. In thefe proceedings, we perceive the fource of the judicial combat, which fpread fo univerfally over Europe, and which is not only to be confidercd as a precaution of civil polity, but as an inftitution of honour (7). Thefe nations, fo enamoured of valour, and fo devoted to arms, courted dangers even in paftime, and fported with blood. They had {hows or entertainments, in which the points of the lance and the fword urged the young and the valiant to feats of a defperate agility and boldnefs ; and in which they learned to con- firm the vigour of their minds, and the force of their bodies. Perfeverance gave them cxpertnefs, expertnefs grace, and the applaufe of the furrounding multitude was the envied recom- penfe of their audacious temerity (8). Thefe violent and military exercifcs followed them into the countries they fubducd, and gave a beginning to the jouJIs and torneamentsy which were celebrated with fo unbounded a rage, which the civil power was fo often to forbid, and the church fo G loudly 5*^ A VIEW OF SOCIETY loudly to condemn; and which, refifting alike the force of re- ligion and law, were to yield only to the progrefs of civility and knowledge (9). Unacquainted with any profeflion but that of war, difpofed to it by habit, and impelled to it by ambition, the German never parted with his arms. They accompanied him to the fenate- houfe, as well as to the camp, and he tranfadled not without them any matter of public or of private concern (10). They were the friends of his manhood, when he rejoiced in his ftrength, and they attended him in his age, when he wept over his weaknefs. Of thefe, the moft memorable was the Jhield. To leave it be- hind him in battle, was to incur an extremity of difgrace, which deprived him of the benefit of his religion, and of his rank as a citizen (11). It was the employment of his leifure to make it confpicuous. He was fedulous to diverfify it with chofen colours; and, what is worthy of particular remark, the ornaments he be- flowed, were in time to produce the art of blazonry and the oc- cupation of the herald. Thefe chofen colours were to be ex- changed into reprefentations of a£ls of heroifm. Coats of arms were to be necelfary to diftinguiih from each other, warriours who were cafed compleatly from head to foot (12). Chriftiani- ty introduced the fign of the crofs; wifdom and folly were to multiply devices; and fpeculative and political men, to flatter the vanity of the rich and great, were to reduce to regulation and fyftem what had begun without rule or art. IN EUROPE. 51 It is thus I would account for knighthood, and the finglc combat, for torncaments and blazonry ; inftitutions which were to operate with an influence not lefs important than extenfive. And, in the fame diftant antiquity, we meet the fource of that gallantry and devotion, which were to mount them to fo wild a height. To the women, while he was yet in his woods, the German behaved with refped and obfervance. He was careful to deferve their approbation ; and they kept alive in his mind the fire of liberty, and the fcnfe of honour. By example, as well as exhor- tation, they encouraged his elevation of fentimcnt and his valour. When the Teutones were defeated by Marius, their women fent a deputation to that commander, to require that their chaftity might be exempted from violation, and that they might not be degraded to the condition of Oaves. He rcfufed their requefl: ; and, on approaching their encampment, he learned, that they had firft dabbed their infants, and had then turned their daggers againft themfelves (13). To fome German women taken in war, Caracalla having offered the alternative of being fold or put to the fword, they unanimoufly made choice of death. He ordered them, notwithftanding, to be led out to the market. The difgrace was infupportable ; and, in this extremity, they knew how to preferve their liberty, and to die (14). It was amidft this fierce- nefs and independency, that gallantry and the point of honour grew and profpered. It was the reproach of thcfc women, which, G 2 on 52 A VIEW OF SOCIETY on the banks of the Rhine and the Danube, filled the coward with the bittereft forrow, and ftained him with the moft indeUble infamy. It was their praife which communicated to the brave the liveHeft joy and the moft lading reputation. ///, fays Taci- tus, cuique fan^tffimi teftes, hi maximi laudatores (15). Thefe notions did not perlfh when the Germans had made conquefts. The change of air, and of fituation, did not enfeeble this fpirit. The women were ftill the judges of perfonal merit ; and, to fome diftinguifhed female, did the valorous knight afcribe the glory of his atchievements. Her fmile and approbation, he confidered as the moft precious recompenfe ; and, to obtain them, he plunged into dangers, and covered himfelf with duft and with blood. Ah ! ft ma Dame me •vojoit ! exclaimed the knight when performing a feat of valour (16). Nor were arms and the attachment to women the only fea- tures of importance in the charader of the German. Religion, which, in every age and in every nation, gives rife to fo many cuftoms, mingled itfelf in all his tranfadions. He adored an in- vifible being, to whom he afcribed infinite knowledge, juftice, and power (17). To profit by his knowledge, he applied to divina- tion (i 8); to draw advantage from his juftice, he made appeals to his judgment (19) ; and to acquire, in fome degree, his power, he had recourfe to incantation and magic {20). The elements and the vifible parts of nature, he conceived, at the fame time, to IN EUROPE. 53 to be the refidence of fubordinate divinities, who, though the inftruments only of the agency ot the fupreme intelligence, had a great fuperiority over men, and were entitled to their attention and reverence (21). Every tree and every fountain had its ge- nius ; the air, the woods, the water, had their fpirits. When he made a ftep, or looked around him, he felt an impuHe of awe and of devotion. His anxiety, his amazement, his curiofity, his hope, and his terror, were every moment excited. The mod ample fcopc was afforded by this theology for the marvellous. Every thing, common as well as fingular, was imputed to fupcr- natural agents. Elves, fairies, fprights, magicians, dwarfs, in- chanters, and giants, arofe (22). But, while the lefler divinities of thefe nations attra£ted notice, it was to the fupreme intelligence, that the moft fmcere and the mofl; flattering worfhip was diredled; and this god, amidfl; the general cares which employed him, found leifure to attend more particularly to war, and valued his votary in proportion to his courage. Thus religion and love came to inflame, and not to foften the ferocity of the German. His fvvord gained to him the aff"edion of his miflrefs, and conciliated the favour of his deity. The laft was even fond of obeying the call of the valiant ; he appeared to them in battle, and fought by their hde (23). Devotion, of confequence, was not lefs me- ritorious than love or than valour (24). Chriftianity did not a- bolilh this ufage. It defccnded to the middle ages. And, to love God and the ladies^ was the fiifl Icflbn of chivalry (25). But, 54 A VIEW OF SOCIETY But, though arms, gallantry, and devotion, produced the in- ftitutions of chivalry, and formed its manners, it is not to be fancied, that they operated thcfe effeds in a moment ; and that, immediately on the fettlemcnts of the barbarians, this fabric was creded. The conquerors of Rome continued to feel and to prac- tife in its provinces, the inftinds, the paflions, and the ufages to v^'hich they had been accuflomed in their original feats. They were to be a£tive and ftrenuous, without perceiving the lengths to which they v^'ould be carried. They were to build, without knowing it, a moft magnificent flrudure. Out of the impulfe of their paflions, the inftitutions of chivalry were gradually to form themfelves. The paflion for arms, the fpirit of gallantry, and of devotion, which fo many writers pronounce to be the genuine offspring of thefe wild affedations, were in fad their fource ; and it happened, by a natural confequence, that, for a time, the ceremonies and the ufages produced by them, encou- raged their importance, and added to their ftrength. The rteps which marked their progrefs, ferved to fofter their fpirit ; and, to the manners of ages, which we too often defpife as rude and ignoble, not to political refledion or legiflative wifdom, is that fyil:em to be afcribed, which was to ad fo long and fo powerful- ly in foclety, and to produce infinite advantage and infinite cala* mity. It is to thofe only who apply to rude focieties the ideas of a cultivated aera, that the inftitutions of chivalry feem the produc- tion IN EUROPE. S5 tion of an enlightened policy. They remember not the inexpe- rience of dark ages, and the attachment of nations to their an- tient ufages. They confiJer not, that if an individual, in fuch times, were to arife of a capacity to frame fchemes of legi{lation_ and government, he could not reduce them to execution. He could not mould the conceptions of ftates to correfpond to his own. It is from no pre-conceived plan, but from circumftances which exift in real life and affairs, that legiflators and politicians acquire an afcendcncy among men. It was the ad.ual condition- of their times, not projects fugge^ed by philofopby and fpecula- lion, that directed the condud of Lycurgus and Solon. S E G- 56 A VIEW OF SOCIETY SECTION The Injl'itutions of Chivalry , the Pre-eminence of Women, Pa- litenefs., and the Point oj Honour, FROM the flate of the feudal nobles, and the exertion of the right of private war, it refulted, that the lower orders of men were courted and attended to in an uncommon degree. The military retainers of a noble, and the inhabitants of his lands, conftituted his power ; and it was not his intereft to ne- gledl men who might offer their fervice to an enemy. They fhared in his property and greatnefs, were flattered with his countenance, and formed the bulwark which fupported him. His own fons, thofe of his vaffals and tenants, and the ambi- tious youth whom his renown attraded from a diftance, learned under his direction the art of war, fought his battles, and en- titled themfelves to the honours of chivalry. Every defcendant of a gentleman, or every free-born perfonj had a capacity to bear arms, and to afpire to knighthood : And a long train of fervices prepared him to receive it. From his earlieft IN EUROPE. S7 earlieft years he attended the court, and refided in the caftle of }us lord; and in this fchool he acquired all the knightly virtues. The emulation of his equals, the example and admonitions of his chief, and the coonjany of the ladies, from whofe number he was to feled the accomplnlied fair one, to whom he was to a- fcribe all his fentiments and his adions, inflamed in him the paflTion for war, infufed into his mind a zeal for religion, and in- ftruiflcd him in all the arts of a refpeQful gallantry. From the performance of domeltic duties, which were the firfl that em- ployed his attention, lie was called to the management of horfes and ot armour ( I ). He then entered into greater familiarity with his lord, and accompanied him in all his hazardous expedi- tions. He became accultomed to perils and to toils ; he acqui- red, by degrees, the whole fciencc of attack and of defence ; and, when his hard appren.ticefhip was over, he a£ted himfelf as a knight, and fought and wifhed for flill feverer trials to exercife his ambition [z]. To adorn him with arms, was originally, as I remarked, the fimple ceremonial which inverted the warriour with knighthood. But greater pomp ar,d f ilemnity came to exprefs his advance- ment to this dignity. Its importance iiad grown with time ; the feudal inRitutions had follercd a taRe for fplendour ; and the ClirilUan clergy, who lucccedcd to the privileges of the Germa- nic pricfls, improving on their ambition, made religion interfere in its forms (3). 11 The 5€ A VIEW OF SOCIETY The candidate prefented himfelf in a church, where he con- feffed his fins, and declared his repentance and remorfc. Abfo- lution was then given him, and he pafled the night in watching and pious meditation. In the morning he heard mafs, and, ap- proaching the ahar, placed his fword upon it, which was return- ed to him, with benedidlions, by the hands of the prieft. The eucharifl: was next adminiftered to him ; and, having been bath- ed, to exprefs the purity which was neccffary for the ftate into which he was to enter, he was dreffed in rich robes, and his fpurs and his fword were put on. He then appeared before his fove- reign or his chief, and, receiving a blow upon the neck, was dubbed a knight. This parade, courtly as well as facred, was concluded with feafting and merriment (4). The fplendour, however, which accompanied the exaltatioa lo knighthood, was proportioned to the wealth and the birth of the candidate. The fame prodigal oflentation and punctilious grandeur, attended not the inveftiture of an inferior perfon, and the defcendant of a feudal lord. The rich and the great difplay- ed, on thefe occafions, their magnificence, their ingenuity, and their tafte (5). To furnifli an aid, accordingly, to make his eld- eft fon a knight, was one of the benevolences which were due to a feudal proprietor from his vafTals ; and, during the prevalence and purity of the Gothic manners, no contribution was paid with greater chearfulnefs. But while, in times of feftival and peace, the admiffion to this honour was thus ftately and ambitious, a gentle IN EUROPE. S9 gentle ftroke with a fword was fufficient, during war, to intitle to its privileges ; and, in this form, in the day of a battle, or in the hour of vidory, it was ufual to beftow it, in order to re- ward the valiant, and to encourage prowefs (6j. When the warriour was promoted to knighthood, the com- pany and tables of the fovereign and the nobles were open to him ; and in times, when perfonal qualities were the great four- ces of renown and merit, no diflindion was more confiderable or important. It was permitted to him to wear gold, fur, and filk, and to furpafs in the richnefs of his drefs and arms. And, while his external appearance marked him out from inferior men, he was diftinguiflied in his own order by his enfigus-ar- iiiorial, and the peculiarities of his blazonry (7). He had cer- tain privileges in hunting ; in executions tor debt, it was not lawful to take his horfe and armour (8); and in the courts of law, fines beyond the ufual proportion were awarded to compenfate his wrongs. When a prifoner, and in the power of a conqueror, his rank preferved him from an unwor- thy or ignominious treatment. His word or promife might be relied upon with the firmeft afTLirance. Fetters and cliains were only fit for the ignoble. When the chief, or the baron to whom he was more particularly attached, required not his aid, he might enter into the lervice of another iraltcr. Penfions and prefents rewarded his prowcls; and he was enriched by the fliare he received in the ipoils of an enemy, and by the ranfoms of his captives (9). His ulual appearance in the field was on H 2 horfe- 6o A V I E W O 1< S O C I E T Y horfeback (lo), attended by an efquire; and, if his wealth To increafed, that he could afford to have knights in his train, hia fovercign allowed him the ufe of a banner or a ftandard like the barons, and, like them, he exercifed a civil as well as a military jurifdidlion (i i). Nor did his death terminate the honours which were paid to him. The folemnity and ceremonies of his funeral, expreffed his merits and the public regrets. A monument was ereded to him., and the ornaments with which it was embelliflied, fuiting his adions and hiftory, infpired his poflerity with a generous e- mulation. The fword which he had carried to battle, the fliield which had defended his body, and the other articles of his drefs and armour, became the objedts of refped and veneration. The moft illuftrious perfons courted their poiTefrion, and churches were often efteemed the only proper repofitories of thcfe attend* ants of his vidories and valour (12). Splendid with knighthood, of which the honour was fo great as to give dignity even to kings and to princes, the generous and the afpiring were received in every quarter with attention and civility. The gates of every palace, and of every callle, were thrown open to them ; and, in the fociety of the fair, the brave re- lieved the feverities of war, and fed their paffion for arms. Though it was the fludy of the knight to confult the defence and the glory of the flate, and to add to the ftrengthand the repu- tation IN EURO P E. 6i tatlon of his chief, yet the praife of iiis miftrefs was the fpring of his valour, and the fource of his adivity. It was for her that he fought and conquered. To her all his trophies were confe- crated. Her eye lighted up in his bofom the fire of ambition. His enterprife, his courage, his fplendour, his renown, proclaim- ed the power and the fame of her pcrfedions. The women failed not to feel their dominion. The dignity of rank and its proprieties, the pride of riches, the rivalfliip of beauty, unfolded their excellence and charms. Their natural modefty, the fandlity of marriage, the value of chaftity, impro- ved with time and with Chriftianity. The refpedful intercourfe they held with the knights, the adoration paid to them, the torneaments at which they prefided ((3), the virtues they infpi- red, the exploits atchieved to their honour, concurred to promote their elevation and luftre. To their enamoured votaries they feemedtobe divinities; and toils, confliufly juft, as to remove even the fufpicion of every thing unfair and diflionourable, fo- ftered the pundlilious nicety of his demeanour (24). To utter a falfehood, was an offence of which the infamy was never to be effaced. The culprit was degraded from knighthood; a punifhmcnt more terrible to the warriour than death (25). To give the lie to a knight was, of confcquence, to infult him in a point the moft tender ; and, while he was careful to maintain I z his 68 A VIEW OF SOCIETY his integrity, and ambitious to entitle himfelf to its honours, he was ardent and forward to defend himfelf again ft an improper accufation, and to punifh the abufer of his name. His delicacies on this head demand refped: and commendation ; yet the ri- gid moralift has been plealed to make them the obje£t of his ri- dicule. His ridicule, however, is as abfurd as it is contemptu- ous. It applies not to the purer ages of chivalry, when honour was infeparable from virtue ; and, perhaps, it is unjuft in every application, but when it refers to individuals, who, being foul with meannefs, lay claim to the confideration of probity and character, and infolently appeal to their fwords to fupport their pretenfions. V I E W O F SOCIETY IN EUROP, IN ITS PROGRESS FROM RUDENESS TO REFINEMENT. BOOK IL CHAPTER I. Of the Spirit of Fiefs. SECTION I. A D't/linnion in the Hijlory of the Feudal AJfociation. The Feu- dal Incidents. Their Advantages in one Situation. Their Dif- advantages in another. The Injliience of thefe different Situ- ations on Society and Manners. THE generofity of the barbaric manners was to fuffcr by the growing propenfity to intereft. Refinement and property were to open up the fclfiUhncfs of mankind j and the feudal 70 A VIEW OF SOCIETY feudal aflbclation, which was originally an exerclfe of bounty and gratitude, was to be a fource of oppreflion and wantonnefs. The fruits of love, amity, and friendfhip, were to become the foundation of difcord and contention. The fuperior and the vaflal, the chief and the retainer, fo intimately connected, and fo fondly attached, were to be hoftile to each other. Violence and corruption were to disfigure fociety ; and fcenes of fplen- dour, liberty, and greatnefs, were to be fucceeded by rapacity, oppreflion, and meannefs. The diftin£lion of thefe different fituations, though negledled by the antiquary, the lawyer, and the hiftorian, is yet a matter of the greateft importance. It is, in fome meafure, the key to the hiftory of modern nations. It will lead us to difcover many miftakes and mifapprehenfions which conceal and deform topics of the higheft moment and curiofity. It will overthrow many pofitions which have perplexed and milled the refearches of the learned, and the reafonings of the fpcculative. While the greatnefs and fimplicity of thofe manners, which the conquerors of Rome brought with them from their woods, continued to animate their pofterity, the feudal aflTociation was noble in its principles, and ufeful in its pradice. The folicitudes, and the mercenary fpirit which rife up with commerce, were un- known, and the fulleft fcope was given to nature and the paf- fions. The adions and condud of men were direded by fenti- ment IN EUROPE. 71 meat and afFedion. In the ardour of private confederacies, the general feelings of generofity were augmented. Tlie emotions of the heart increafed their force by confinement. And the lord and the vaflal were linked to each other in the clofeft connexion. The arms and the zeal of his followers were the ftrength and the bulwark of the chief or the fuperior. The bounty and the power of the chief or the fuperior, were the fubfiitence and pro- tedion of the followers or the vaflals. Their interefts and their paflions were the fame; and a conftaat communication of good offices kept alive their attachments. The vaflal, kneeling before his lord, and putting his hands in- to his, acknowledged him for his fuperior ; ' 1 becpme,' faid he, * your man, from this day forward, for life, and limb, and * earthly honour.' The lord, receiving him in his arms, gave him the kifs, which beftowed his countenance and favour. This rite, known under the appellation oi homage., exprefled fubmiffion and reverence on the part of the vaflal, protedtion and defence on that of the lord. The oath oi fealty ^ or the engagement of fide- lity, was then pronounced. ' Hear this, my lord,' faid the vaflal, * I * will be faithful and loyal to you, for the tenements I hold. So ' help me God and his faints (1).' They were exad to obliga- tions in which were comprifcd their intereft, their glory, and their pleafure. In every aft of civil life, in peace and in war, they found alike the ufes and advantages of their union. In the caftlc of the lord, the vaflal added to his retinue, and proclaimed his 72 A VIEW OF SOCIETY his magnificence. In his court he affiftcd in the adminiftration of juftice. In the field, he fought by his fide, and covered his perfon with his fhield. On the foundation of their connedion, and of that of the land or fief, which the former beftowed on the latter, a train of incidents were to arife, the unequivocal expref- fions of friendfhip and habitude, the tender and affedionate fruits of an intercourfe the moft devoted and zealous. While the grants of land were precarious, or for life, the fupe- rior was fond to educate in his hall the expedants of his fiefs. And, when they defcended to a feries of heirs, or in perpetuity, he was careful, on the death of the feudator, to take the charge of his fon, and his eftate. The former was a hope to him of future greatnefs. He proteded his perfon, direded his educa- tion, and watched over his concerns. He felt a pride in obfer- ving his approaches to manhood, and delivered to him, on his majority, the lands of his anceftor, which he had been ftudious to improve. Thefe cares were exprefied in the incident of 'wardjjjip. The vaflal, on entering to his fief, confcious of gratitude, and won with the attentions of his lord, made him a prefent. I'his acknowledgement} fo natural, and fo commendable, produced the incident of relief. Grateful IN EUROPE. 73 Grateful for the pafi-, and anxious for the future favour of his chief, the vaflal did not incUne to ally himfelf to a family which was hoftile to him. The chief was ambitious to add to his povver and fplendour, by confulting the advantageous alliance of his vaflal. They joined in finding out the lady whole charms and whofe connexions might accord with the paflions of the one and the policy of the other. This attention gave eftablilliment to the incident of marriage. When the fuperior was reduced todiftrefs and captivity, in the courfe of public or of private wars, when he was in cmbaraff- ment from prodigality or wade, when he required an augmen- tation of means to fupport his grandeur, or to advance his fchemes and ambition, the vaflal was forward to relieve and aflifl; him by the communication of his wealth. On this foundation there grew the incident of aid. When the vaflal gave way to violence and diforder, or when by cowardice, treachery, or any ftriking delinquence, he render- ed himfelf unworthy of his fief, the facred ties which bound him to his lord were infringed. It was neceflary to deprive him of his land, and to give it to a more honourable holder. This was the origin of the incident of efcheat (2). Amidft the contention of friendfliip, and the mutuality of mind which cxercil'ed and informed the lord and the valfal, there was K. experienced 74 A VIEW OF SOCIETY experienced a condition of adivity, liberty, and happinefs (3). The vaflals attended to the retainers who were immediately be- low the;n. In their turn, they were courted by the lords, whofe ftrength they conftituted (4). And the lords gave importance to the fovereign. A fubordination was known, which was regular, compad:, and powerful. The conlVituent parts interefted in go- vernment (5), as well as war, were attentive, in their feveral de- partments, to the purpofes of order and juftice ; and, in national operations, they a£led with an union that made them formidable. Of this aifociation, political liberty was the refult. And, while this fortunate ftate of things continued, the people, in every country of Europe, came in arms to their national affembly, or appeared in it by their reprefentatives (6). Such, in a more particular manner, was the condition of the Anglo-Saxon period of our hiftory ; and the people, happy alike in their individual and their politic capacity, as men and as citi- zens, were to bear, more reludantly, the oppreflions of the Nor- man times. The impreflion of their felicity was to defcend down with vivacity, in the fucceflion ot the earlier Norman princes, and to produce the moll memorable ftruggles for liber- ty- Nor was it in England only that fuch convulfions were expe- rienced. The fame injuftice and oppreflions which were to fhake this nation, prevailed in every country of Europe, and gave a beginning IN EUROPE. 75 beginning to thofe contentions which were to terminate in the deftru£tion of their anticnt independence. In this ifland alone, the valour and the fortune of its inhabi- tants were to teach freedom to revive in the midft of ryranny. The barons and the people were to inform King John of his condition and their own ; and to give thofe lefTons of inftruc- tion to his fucceflTors which they are never to forget without dan- ger ; and which a future tyrant was to confirm with his blood, while an injured nation made it to flream from the fcafFold to a- tone au infolent ambition, and violated laws. Diforders, which were to be felt throughout Europe, are not to be referred entirely to the rapacity and the adminiftration of princes. There muft be a caufe more comprehenfive and gene- ral, to which they are chiefly to be afcribed. The origmal manners which the conquerors of the Romans ( brought from their forefts, were to fpend their force. The high fentiments which had refiilted from the limited ideas of property, were to decay. The generous maxims of the feudal aflociation, and the difmterefted wildnefs of chivalry, were to fuffer with time. Property was unfolded in all its relations, and in all its ufcs. It became a diftiniTlinn more powerful than merit, and was to alter the condition of icciety. By feparating the interefts of the lord and the valfal, it v.'as to dcftroy for ever the principles Kz of 76 A VIEW OF SOCIETY of their aflbciation ; and the incidents, which, in a better age, had foftered their friendfliip, were to feed their rage, and to pro- long their animofity. As their confederacy had been attended with advantages and glory, their difaffedion was marked with debafement and fubjedion. Out of the fweets of love, a fatal bitternefs was engendered. Sufferance was to fucceed to en- joyment ; oppreffion to freedom. Society and government were to be tumultuous and diforderly ; and difeafes and infirmities were to threaten their decay. In the prevalence of property and of mercenary views, the •ward of the infant vaflal, which the fuperior once confidered as a facred care and an honourable truft, was to be regarded in no other light than as a lucrative emolument. The acquifitions of the vaflal, which, in their ftate of agreement and cordiality, were a ftrength to the lord, feemed now to detradt from his do- mains. He committed fnoil on the eftate which, of old, it was his pride to improve. He negleded the education of the heir. He gave repeated infults to his perfon. The relations of the vaflal were often to buy from the fuperior the curtody of his perfon and his lands. This right was more frequently to be Jet out to exercife the rapacity of ftrangers. "Ihe treafury of prin- ces was to increafe with this trafllc ; and fubjed-fuperiors were to imitate, as well from neceflTity as from choice, the example of princes (7). The heir, on his joylefs majority, received the lands of his anceflor ; and, while he furveyed, with a melancholy eye, his . IN EUROPE. 77 his caftles, which bore the marks of neglecSt, and his fields, which were deformed with wafte, new grievances were to embitter hij complaints, and to fwell his paflions. — The rel'ieft which originally was no more than a prefent, at the pleafure of the vaffal, on his entering into the fief, was con- folidated into a right. An expreflion of gratitude was convert- ed into a debt and a burden. Tiie fuperior, before he inverted the heir in his land, made an exadion from him, In which he had no rule but his rapacity. His demand was exorbitant and grievous. And 'f the heir delayed too long to extinguilh this fine of redemption, or was unable to pay it, the fuperior conti-- nued his pofTeflion of the eilate. Rigours, {o humiliating and fo frantic, produced clamour, difcontent, and outrage. Mitiga- tions were to be applied to them, and to prove ineffedual. Laws were to be made againft them, and to be difregarded (8). The marriage of the vaflal, which could not be abufed while their aflbciation was firm and their interell mutual, became a moft ruinous perquilite, when their aflbciation was broken, and their interell difcordant. The fuperior could give his vaflal in marriage to whom he pleafed. This right he exerted as a pro- perty. It might be purchalcd from him by the vaflld himfclf, or by a flranger. The marriage of the vaflal, without the confcnt of the fuperior, involved the forfeiture of the eflate. or was pu- niflied with opprtirivc penalties. It was a rule, indeed, rcfultii-ig out J 7^ A VIEW OF SOCIETY out of their former habitudes, that the heir fhould not be married to his difparagement (9). But this rule was overlooked amidft the violence of the times. The fuperior had no check but from his humanity, the vaflal no relief but in remonftrance. This right, fo mortifying to the male heir, was a flretch of iVill wilder oppreffion, and more ferocious cruelty, when exerci- fed on the female ward. Her hand might be tendered at the will of the fuperior. He might pay no attention to her affec- tions. She was to fubmit at his mandate to indecent embraces, unfandlioned with love. Her beauty was to Icfe its fweets, and her heart its enjoyments, to feed his avarice, and to gratify his whim. Her relations were often to buy from him a privilege fo frightful ; and the unfeeling tyrant was to paint the horrors of its exertion, to extort his demand (10). The aid which, in happier times, the vaffal beftowed out of benevolence to relieve the diftrefs, and to affift the grandeur of his lord, became a burden and a tax in the mifery of their dif- affedion. It was arrogated as a duty and a tax. The lord cal- led for an aid or contribution, when his eldeft daughter was married, when his eldeft fon was made a knight, and when, ha- ving been taken in war, his own pcrfon was to be ranfomed. Thefe were efteemed the legal occafions when exadions could be made (11). But cuftom and pradice authorifed the requifition of aids on pretences the moft frivolous. When the crown or the lord IN EUROPE. 79 lord was difpofed to be opprefllve, they could find a reafon for an aid ; and wants, not his own, were to afFed every moment the fubrtance ot the vaflal (12). While their confederacy was maintained, it was not on any flight foundation, that the fief could be taken from the vaffal. Cowardice, diflionour, treachery, or treafon, were then the caufes of efcheat. The lord was not to be fo offended with leffer delin- quencies, as to take pofTeflion of the eflate. In the times, however, of their difagreement, the caufes of forfeiture were to multiply, and he was to be adtive to enforce them. Trefpaffes and trifles were to be fufficient grounds for the feifure of lands, of which the pofTenbr was ofTenfive. The vaffal held a precarious and dangerous territory ; and, with a mind difpofed to be hoftile to his chief, was to obferve to him an attentive and pundlilious de- meanour. If he refufed too long to attend the court of the fu- perior, and to give his oath of fidelity ; if he happened to com- mit the flightefl infringement of his oath ; if he forefaw any misfortune that was to befal his lord, and negledfed to inform him of it ; it, by any adt, he was to afFed the credit or the re- putation of his fuperior ; if he fhould chance to reveal any pri- vate ciicumftance concerning him ; if he fliould grant an infeu- dation in any other form than that in wliirfi he held his own ; if he fhould make love to the wife or the daughter of his lord, or fliould carcis his fifler, while yet a virgin and unmarried ; ^0 A V I E \^ O F S C I E T Y thefe, and reafons ftill more abfurd, were to forfeit the eftate to the fiiperior, and to involve the ruin of the vaflal, and that of his family (13). — *> A fyftem. of oppreffion the mofl: deftru£tive was thus efta- blifhed ; and, by a ftrange peculiarity in the hiftory of man- kind, the fame incidents were to a£t in the produtSlion of fitua- tions the moft oppofite. In one period, they were to encourage liberty and happinefs ; in another, rapacity and favagenefs. Profperlty and vigour attended the feudal aflbciation in its youth. Its maturity was marked with peeviftinefs and infirmities ; and a croud of obfervers, being only to fee it in this condition, were to mirtake its fpirlt, and to furvey it without enlargement. The monks, who, on the revival of letters, prefumed to chro- nicle the tranfadions of men, looked to the paft with the pre- judices of their own times. They could know, and could com- prehend, no manners but their own. The cultivated hiftorian was to obferve and to complain of their omiffions ; but, inftead of labouring to fupply them, he was only to arrange their ma- terials, to hold out, with luftre, fome fuperlor names, and to give his narrative the charm of pidure and ornament. The lawyer and the %ntiquary were to be equally uninftru£live ; while the former conHnes his remark to the leglflation and the pradice of his own age ; and while the latter, amufing himfelf in the fearch of dates and of trifles, feeks not to advance Into any IN EUROPE. 81 any general views, or to catch the fpirit of thofe antlent periods, which provoke his fweat and his toil. The ufages and cuftoms which the barbaric tribes brought from their woods, the remote lource of all their laws, tranfac- tions, and eftablilhments, were to be obferved with a traufient regard. They are, notwithftanding, the fure guides which are to dired the inquirer in the darknefs and obfcuriry of the mid- dle times. They point to, and evince the diftindion that is now made in the hiftory of the feudal aflbciation. And, they are to lead to other diftindions of curiofity and ufefulnefs. L SEC- 82 A VIEW OF SOCIETY SECTION II. A Dlfimfiion in the H'lflory of Arms and Chivalry. The Sove^ reign is confidered as the Fountain of Honour. The Epoch of the Grandeur of Chivalry. The Decline of Fiefs. The Reme- dy for their Recovery. The Invention of Knight-fervice. The Knight's Fee. The Dijlin^ion betiveen the Knight of Tenure and the Knight of Honour. Fiefs under Knight-fervice. TH E decline of the Gothic manners, while it affeded fo ftrongly the feudal alfociation, did not fail to extend its influence to chivalry and arms. Every pofleflbr of a fief con- ferred, of old, at his pleafure, the dignity of knighthood ; and every perfon who had been admitted to knighthood, had a title to b'eflow it. But, when the feudal connexion was Infringed, and its generous principles were deftroyed, the feudatory was difpofed no longer to feek out the meritorious whom he might advance to an honour, which was to be an advantage, and to re- flect a glory to his fupcrior. He was now the enemy, not the friend of his lord, and wKhed neither to add to his fplendour in peace, nor to his power in war. He had grown more felfifli with time, IN EUROPE. 83' time, and the knowledge of property. He was to avoid, not lefs from intereft than paflion, the liaving knights in his train. The right which it had been his pride to exercife, he regarded with coldnefs. And, what the pofTeflbr of the fief was carelefs to he- flow, the fimple knight did not pertinacioufly arrogate as a pre- rogative. The prince or fovereign, from whom it had always been the greateft favour to receive this dignity, came, by degrees, exclufively to confer it. At the head of the ftate and of arms, he was to be confidered as the fountain of honour. The diftindion of knighthood, accordingly, did not imme- diately fall in the declenfion of the feudal aflbciation. It felt, indeed, the fliock which fcparated the interefts of the fuperior and the vafTal ; but, furviving its impulfc, it was to rife, for a time, in height and fplendour. When in the creation only, and at the dilpofal of the Prince, it was to acquire a value from his greatnefs. It was to be given, for a feafon, with more choice and referve, than when at the will of the pofleflbr of the fief, and of the fimple knight. Higher feats of prowefs, the pof- feflion of greater wealth, more illuftrious defcent, were to be re- quired in its candidate. This was the epocli of its luftrc and renown. Heralds, fkilful in pedigrees and armories, were to multiply. The duel was to improve in ceremony and parade; torneaments were to advance in magnificence ; and, a court of chivalry, exttnfive in its jiirildiclion, v.'as to regulate deeds uf arms, and ul'ages of war (i). Lz Hut, c4 A VIEW OF SOCIETY But, while tlie feudal aflbciation in its decline was thus to contribute to the elevation of the anticnt chivalry, by threaten- ing its ruin, it was to produce effeSv''v'?>f^*v^*v''^'5f**v'*v^ "v*^* Authorities, Controverfy, and Remarks. ><><><>;XX><><><><>O0<><><><><>iX><>< BOOK L CHAPTER I. SECTION I. A' fi) * A GRI, pro numero cultorum, ab unlverfis per vices * occupantur, quos mox Inter fe lecundum digna- * tioncm partiuntur .' Tacit, de Mor. Germ. c. 26. ' Privati ac * feparati agri apud cos nihil eft.' Caefar de bell. Gall. lib. 4. r. r. The German tribes pafled annually from the fields they had cultivated. ' Arva per annos mutant.' Tacit, de Mor. Genu. c. 26. • Ncque longius anno reinanere uno in loco incolcndi cauGi licet.' 132 A VIEW OF SOCIETY ' licet.' Caefar dc bell. Gall. lib. 4. r. i. The condition of pro- perty among thefe nations I have treated in another work. Hi- Jlorical DiJJert. concerning the Antiquity of the EngliJIo Conjlitit- tioNy Part I. Similar dirtindions prevail in all barbarous nations, and give rife to a fimilar way of thinking. ' Formerly,' fays Mr AJair, ' the Indian law obliged every town to work together in one ' body, in fowing or planting their crops ; though their Selds • are divided by proper marks, and their harvefl: is gathered fe- • parately. The Cheerake and Mufkohge ftill obferve that old • culiom.' Hijlory of the Ameiican Indians. Among the Indians of Peru, it is faid, that the territory occu- pied was the property of the ftate, and was regulated by the ma- gilirate ; and that, when individuals were permitted to poffefs particular fpots, thefe, in default of male iflue, returned to the community. Ro)al commentaries of Peru^ book 5. ch. 1. and 3. It fcems to have arifen out of the old cuftom, which confider- ed land as the property of nations, that in Europe, when all heirs failed, the property of the individual went to ihcf/c, or to the fovereign as reprefenting the ftate. * Quod fi maritus et mulier fine herede mortui fuerint, et * nuUus ufque ad feptimum gradum de propinquis ct qiiibuf- * cunque IN EUROPE. 153 ♦ cunque parentibus invenitur, tunc res fifcus adqulrat.' LL, Biiivviir. tit. 14. /. 9. • Fifcus tuncagat, quando nee parenturn, ncc filiorum, nee ne- ' potum, nee agnat<;rum, nee eognatorum, nee uxoris et mariti, * quae fuecedat, extare eomperitur [^erComyJecu?idum veteiwn coii' ' Jututa.^ Ediclum Th(:oaerici Re^is^ c. 24. The fields in pafture belonged to the community or tribe, as well as the fields in tillage. The moment that the flocks or herds of one individual 4eft them, they might be poflefied or oc- cupied by thofe of another ; and lb on in fucceffion. It was un- der the influence of filch manners that Abraiiam faid to Lot, ' Is ' not the whole land before thee ? feparate thylelf, 1 pray thee, ' from me ; if thou wilt take the left-hand, then I will go to the ' right ; or, if thou depart to the right-hand, then I will go to the ' left.' GcnefiSt Ch. xii. v. 9. And to this condition oi focicty the Roman poets make frequent allufions, though they do not feem to have underftood it with accuracy *. U When * Ante Jovem imlli fiibigcbant arva coloni, Ncc araje quiilcm, aut partiri liiiiite cnmpum Fas crat; in medium quatrcbant ; ipfuiUc- tcllus Omnia libcrlus nullo pofccnte fercbat. Virc- Non domus ulla fores habuit, non (Ixus in agris Qui rcgcrtt cettis finibus arva lapis. Tint;.. 154 A V I E W O F S O C I E T Y When the territory of a tribe or nation ceafed to be its pro- perty, and individuals acquired particular fpots or eftates, which they cultivated for their ufe, and tranfmitted to their pofterity, it Was a confequence of the old manners, that thefe improvements were regarded as the ufurpatioas of the powerful on the weak ; and hiftorians allure us, that it happened both in Greece and Ita- ly, that the hmd-7narks which had been fixed to diftinguifli the boundaries of property, were frequently removed or deflroyed. It feemed an encroachment on the rights of the people, that lands, which, of old, paflurcd indifferently the cattle of fucceffive occupiers, (hould be allotted to the ufe and convenience only of private men. It was, accordingly, not merely necefTary to make laws to prevent the violation of private rights ; but, what is cu- rious in an uncommon degree, even the termini or hind-7narksy that they might remain unremovcd for the prefervation and the feparation of property, were exalted into divinities. Thus, re- ligion, as well as policy, held out its terrors to force mankind to learn the art of appropriation, and to accept of power and riches. Among the Celtic and German barbarians, the defacing and the removing of land-marks were alfo common delinquencies ; and, in the punilhment of them, much feverity was exercifed. ' Si quis limites complantaverit, aut tenninos fxos fuerit au- ' fus evcllere, fi ingenuus eft, per fingula figna vel notas vicenos • vi. IN EUROPE. 155 ' vi. folid. componat ; fi fervus eft, per fingula figna L. flagella ' fufcipiat.' LL. Baivi'ar. tit. xi. /. i. et 2. ' Si quis liber homo termimwi antiquum corruperit, aut exter- ' minavcrit, et probatum fucrit, fit culpabilis Ixxx. fol. medium • regi, et medium in cujus fine fuerit terminus. Si q lis lervus ' alienus terminum antiquum ruperit,aut exterminaverit, mortis in- ' currat periculum, aut fol. xl. redimatur.' LL. Longobjrd, lib. r. tit. zb. I. I. et 2. See fariher LL. Wiftgoth. lib. 10. tit. 3. De tenninis et limitibus. Boundaries and limits are alfo an article in the code of Gentoo laws ; and the regulations it holds out on this fubjcfl are, per- haps, a pr.iof, that the mals of tbe inhabitants of Hindoftan, at the period of their enatt nent, had n^t loft the idea of times which preceded the difcovery of the advantages of a lauded pro*- perty. Co.le of Gentoo latvs, ch. 12. {2) ' Dominum ac fcrvum nullis educationis deliciis dignof- ' cas. Inter eadem pecora ; in eadem humo degunt ; donee aetas ' fcparct ingenuos, virtus agnofcat.' Tacit, de Mor. Germ. e. 20. (3) ' Si civitas, in qua orti funt, longa pace ct ntio torpeat ; • pleriquc nobilium adolelccnrium pctunt ultro cas nationes, qu le ' turn bcllum aliquod gcrunt, quia ct ingrata gcnti quies, ct facilius • inter ancq">itia ciarefcunt Ncc ararc terram aut U 2 cxpedarc 156 A VIEW OF SOCIETY * expedare annum, tarn facile perfuaferls quam vocare hoftes et * vulnera mereri : Pigrum quininimo ct iners vldetur fudore acqui- ' rere, quod pofTis fangulne parare.' Tacit, de Alor. Germ. c. 14. (4). Tacit, de Mor. Germ. c. 15.21.24. Struvius, Corpus hiftoriae Germanicae, prolegom. (5) ' Convidibus et hofpitiis non alia gens efFufius Indulget. ' Quemcumque mortalium arcerc te£to, nefas habetur, pro for- ' tuna quifque apparatls epulis excipit. Cum defecere, qui modo ' hofpes fuerat, monftrator hofpitii et comes, proximam domum * non invitati adeunt. Nee intereft. Pari humanitate accipiun- * tur. Notum ignotumque, quantum ad jus hofpitii, nemo dif- * cernit. Abeunti, fi quid popofceris, concedere moris : Et pof- * cendi invicem eadem facilitas. Gaudent muneribus ; fed nee * data imputant, nee acceptis obligantur.' Tacit, de Mor. Gcrf/i, c. 21. The American tribes, who refemble fo completely the antient Germans, are thus charaderifed by Lafitau : ' lis ont le coeur * haut et fier, un courage a I'epreuve, un valeur intrepide, un * conftance dans les tourmens qui eft heroique, une cgalite que le * contre-temps et les mauvais fucces n'alterent point : Entre eux ' ils ont un efpece de civilite a leur mode, dont ils gardent toutes ' lesbierfeances, unrefpe. 385. In Scotland, in the memo- ry of perfons yet alive, the lawyers and retainers of the courts of juftice did bufinefs conPiantly and openly in the tavern. It is likcwife obfervable, that fome particulars which regard the inftitution of the jury, are to be explained and illuftrated from thefe fads, and this vi'ay of thinking. Htjlorical Dlfferta- tion concern'mg the antiquity of the EvgliJJo conjlit. Part 4. Sea. 2. (9) ' Nullas Germanorum populis urbes habitari, fatls notum ' eft, ne pati quidem inter fe jundas fedes. Colunt difcreti acdivcr- ' fi, ut fons, ut campus, ut nemus placult. . . . Nee enim cum * ubertate et amplitudine foli labore contendunt, ut pomaria con- ' ferant, et prata feparent, et hortos rigent. Sola terrae feges im- ' pcratur. Unde annum quoque iplum non in totidem digc- ' runtfpecies : Hicms, et ver, etaeftas, intclledum ac vocabula ha- ' bent : Autumni perinde nomcn ac bona ignorantun' Tacit, de Mor. Germ. c. 16. 26. (10) ' Ccterum ncc cohibcre parictibus decs, ncque in uliam * humani oris fpeciem aflimilare, ex magnitudine cacleilium ar- • bitrantur. i6o A VIEW OF SOCIETY ' bitrantur. Lucos ac nemora confecrant, deorumque nomlnlbus ' appellant fecretuni illud, quod fola reverentia vldent. Aufpicia ' fortefque ut qui maxime obfervant.' Tacit, de Mor. Germ, c. 9. Siruvius, Corp. Hijl, Germ, prokgom. (11) Tacit, de Mor. Germ. c. 12. Cluver, Germ. Antlq. lib. I. (12) ' Duces exempio potius quam. imperio, fi promptl, fi ' confpicui, fi ante aciem agant, admiratione praefunt.' Tacit, de Mor. Genu. c. 7. - (13) ' Nigra fcuta, tinda corpora, atras ad proelia nodes le- ' gunt. . . . Cedere loco, dummodo rurfus inftes, confilii quam ' formidinis arbitrantur.' Tacit' de Mor. Germ. c. 6. 43. A writer of reputation has, of late, advanced an opinion, that our European anceftors were averfe from deceit and ftratagem. Yet a propenfity to thefe is perhaps a charaderiftic of all barbarous na- tions ; and, that it applied to our forefathers, the tcftimony be- fore us is a fufficient proof. In oppofition to the barbarians of Europe, he holds out the American Indians, and contends that they are defedive in adive courage. Open violence he accounts as defcriptive of the former ; a reliance on ftratagem and fur- prife, he remarks as peculiar to the latter. And, as the caule of this IN EUROPE. i6i this diverfity, he affigns different original difpofitions. Sketches of the Hijlory of Min^ vol. i.p. 23. 24. ^ The truth is, that a pronenefs to open violence, is to be ap- plied to the American as well as to the European favage ; and that the love of ftratagem and furprife was not lefs peculiar to the European than to the American. Stratagem and furprife, in America and in Germany, and indeed in all tribes and nations whatever, are pans of the art of war, or of military prudence, and refer not to courage. When the military art is nearefl: to perfection, and when cultivation is higheft, there will be lefs of ftratagem in war ; tor cunning, if 1 may be allowed the expref- fion, is thev^ildom of weaknels. I he ingenious author iiazards a conjeflure for a difcovery, and miftakes for philofophy a fally ; of vivacity. (14) ' Latrccinia nullam habent infamiam, quae extra fines ♦ cujufque civitatis fiunt ; atque ea juventutis excrcendac ac defi- * diae minuendae cauia fieri praedicaiit.' Caefar de Bell. Gall, lib. 6. c. 22. ' Materia Uiunificcntiae per bclla, ct raj tus.' Ta- cit, de Mor. Geiw. c. 1 4. Among tbe Greeks the fame manners were known. It was common among them, in early times, for the more eminent and powerful to exercife, with reputation and honour, the crimes of robbery and piracy. '1 hucydidcs^ lib, i. Homer ^ ^^-h'JJ- 3* X Such i62 A VIEW OF SOCIETY Such is the cafe in all rude communities. In the wilds of America this way of thinking is prevalent at this hour. Warriors, relllers and impatient, aflbciate together, and feek for renown and plunder beyond the boundaries of their tribe. It is of bodies of this kind that Lofitaii fpeaks in the following paf- fage ; which is not to be read, without recalling to one's mind what Caefar and Tacitus have faid of the Gauls and Germans. * Le partis detaches, qui fe forment en plcinc paix, pour ne ' pas intereffer la nation par dcs hoftilites, lefqu'elles pourroi- ' ent avoir des fuites facheufes, vont porter la guerre chez les * peuples les plus recules Cette petite guerre eft un ve- * ritable aflaflinat, et un brigandage, qui n'a nuUe apparence de *■ jujliccy ni dans le motif qui I'a fait entreprendre, ni par rap- « port aux peuples, a qui elle eft faite ; ils ne font feulement pas ' connus de ces nations eloignees, ou ne le font que par les dom- ' mages qu'ils leur caufent, lorfqu'ils vont les aflbmmer ou de * faire efclaves prefque jufques aux portes de leur palii'ades. Les * fauvages regardent cela neanmoins comme un belle a^ion* Tom. 2. p. 169. It was under the influence of fuch manners that the northern nations carried on thofe piratical incurfions, which, from the time of Charlemagne, filled Europe with terror. They were planned and conduced by men of rank, and conferreJ honour on them, and on the inferior adventurers. Yei rnoucrn hiftori- ans, IN EUROPE. 163 ans, who are perpetually applying modern notions to antient times, attend not to this circumRance, and treat thefc maritime expeditions with a feverity that mav be moral enough, but which is hiftorically injudicious and abfurd. In the age of Tacitus, the only German community who ap- pear to have conceived the blame ot this condud, was the Chau- ci. For the great fuperiority and refinement of this people, 1 pre- tend not to account. But thtnigh, in general, it confifted with honour and merit, among the German dates, to commit fpoil and plunder among neighbouring nations ; yet, it is not to be forgot, that the theft or violence of an individual within the ter- ritories of his own tribe, was atrocious, and a fubje£t of punifh- ment. This circumftance, which is curipus in the hiftory of morality, is to be explained from the condition of an infant fo- ciety. Their riches, confiiling chiefly of herds and flocks, which wander over vaft trads of country, are only to be protedeei by the terrors of jufticc. Hence the laws of the barbarians affixed death to the crime of ftealing a horfe, while the afl'aflination, or the murder ol a ir.an, was expiated by a piece of money or a fine. ' Qui caballum furaverit, cupite puniaiur.' LL. Saxon tit. 4. /. I. The extent of their forells, while it contributed to ren- der more eafy the abflradion of cattle, made it the more need- fary to punilh the ofFencc. It alio was a refult of their unappro- priated folitudcs, that the proprietors of cattle found a diflliculty in tracing llicm. Ilcncc the cnn.uu of fixir^g bells to tlicin. X 2 « Mo% i64 A VIEW OF SOCIETY ' Mos qiiippe antiquus inoleverat Francis, et maxime Auflrafiis, ' ut pafcentibus equis tiiUhmabula imponerent, quo fi forte lon- ' gius in pafcendo aberraflent, eorum fonitu dignofci poffent.' Lhidenbrog. Glojf. njoc. Tint'innahuhnn. And what is worthy of notice, the taking away of thefe bells was a heinous delinquence, and punifhed feverely. ' Si quia tintinnabulum involaverit de ' jumento vel bove, folidum reddat. De vacca tremifles duos ; * De berbicibus vel quibufcunque pecoribus, tremifles fingulos co- ' gatur exfolvere.' LL. JVifigoth. lib. 7. tit. 2. /. 1 1. See al- fo LL. Salic, tit. 29. et LL. Burgund. tit. 4. § 5. In general, the atrocity of theft among the Gothic nations, may be gathered from the following SwediOi law, which is of high antiquity. ' In furti reum fecuri, furca, defoflione, vivicomburio animad- * verti poflTe, nee eo nomine vel haeredlbus, vel ecclefiae, vel regi, ' ullam fatisfadtionem deberi.' Stienihook dejur. Sueon. et Goth, vet. p. 366. Thefe important circumftances in the hiftory of manners, the legality of a diftant robbery, and the criminality of a domeftic one, which are fo pointedly illuftrated by the early ftate of the Greeks, by that of the German and Celtic barbarians, and by the condition of the American tribes at this hour, receive a con- firmation, of the greateft weight, from the confideration of the Gentoo jurifprudence. In the code of Gentoo laws, there is this remarkable ordinance. 'The IN EUROPE. 165 * The mode oi /hares among rohhcrs is this : If any thieves, ' by the commaticl of the mag'ijlrate., and with his ajfiflance, have * comiiiitted depredations upon, and brought any booty from an- * other province t the magiftrate fhall receive a fhare of one fixth * of the whole ; if they receive no command or affiftance from the * magiftrate, they fhall give the magiftrate, in that cafe, one tenth * for his fhare ; and, of the remainder, their chief fliall receive four * fhares ; and whofoever among them is perfe(fl mafter of his oc- * cupation, fhall receive three fhares ; alfo, whichever of them is * remarkably flrong and ftout, fhall receive two fliares, and the * reft fhall receive one fhare ; if any one of the community of the * thieves happens to be taken, and fhould be releafed from the * cntcherry *, upon payment of a fum of money, all the thieves * fhall make good that fum by equal fhares.' Code ofGentoo larust p. 146. A perfon who has not confidered favage and barbarous man- ners, will think, with the utmoft furprife, that a magiftrate fliould not only command a robbery, and give his countenance and protedion to thieves, but even participate in their plunder. Such, notwithftanding, is the fyftcm of equity among all rude nations. While diftant expeditions, however, and robberies, were thus confidered as legal and honourable, the difturbers of domcftic quiet and happinefs were puniihed among the Hindoos with the greatcft rigour. 'If • A court of jufticc. i66 A VIEW OF SOCIETY * If a man,' fay their laws, ' fteals an elephant, or a horfe, ex- * cellent in all refpcds, the magiftrate fliall cutoff his hand, and ' foot, and buttock, and deprive him of life. ' If a man fteals an elephant, or a horfe, of fmall account, the ' magiilrate ihall cut off from him one hand and one foot. * If a man fteals a camel or a cow, the magiftrate ihall cut off * from him one hand and one foot.* Gentoo laivs, p. 249. There are, in this code, a great variety of laws againft do- meftic thefts and robberies. The ftate of fociety of the Hindoos, to which it has a reference, refembles very much that of the Ger- man barbarians, when they had overturned the empire of the Romans ; and a comparlfon of it with the laws of the Ripuari- ans, Burgundians, Longobards, and Franks, would lead to many curious difcoveries in the progrels of legiflatlon and govern- ment. (15) ' Nee rcgibus infinita aut libera poteftas. . . . De • minoribus rebus principes confultant, de majoribus omues. • Ita tamen, ut ea quoque, quorum penes plcbem arbitrium eft, • apud principes pertradentur. Coeunt, nifi quid fortultum et ' fubltum Inciderit, certis diebus, cum aut inchoatur Luna ant ' Impletur ; nam agendis rebus hoc aufpicatifliirium initium cre- ' dunt Rex vel princeps, prout aetas cuique, pro- « ut IN EUROPE. 167 * ut nobilitas, prout decus bellorum, prout facundia eft, audi- * untur, auftoritate fuadendi, magis quam jubendi poteftate. Si * difplicuit fententia, fremitu afpernantur : Sin placuit, frameas * concutiunt.' Tacit, de Mor. Germ. c. 7. xi. This limitation of government is a confequence of manners in early times ; and, notwithftanding what is obferved by many writers of antiquity, it feems very clear, that the popular or re- publican mode of adminiftration is prior to monarchy. In every rude community wre know, the government has a furprifing affinity to that of the Germans, as defcribed by Taci- tus. And this is peculiarly obfervable of the American nations. * Tout,' fays Charlevoix of the Americans, ' doit etre examine et * arrete dans les confcils des anciens, qui juge en derniere in- * fiance.' 'Journ. Hi/loriq. lettre 18. ' The highefl title among * the Americans,' lays Mr Adair, either in military or civil * life, fignifies only a chieftain*: They have no words to ex- * prefs defpotic power or arbitrary kings. . . . The power * of their chiefs is an empty found. Tliey can only pcrfuade * or difTuade the people, either by the force of good nature and * clear reafoning, or colouring things lb as to fuic their prevail- * ing pafTions. It is reputed merit alone that gives them any * titles of diftin£tion among the mcaneit of the people. . . . * When any national affair is in debate, you may l;ear every * father of a family fpeaking in his houfe, on the fubjeft, with • rapid i68 A VIEW OF SOCIETY ' rapid and bold language, and the utmoft freedom that a peo * pie can ufe. Their voices, to a man, have due weight in eve- * ry public affair, as it concerns their welfare alike.' Hiji. of the American Indians, ■p. 428. See alfo Lafitau, torn. 2. p. 475- (16) * Ac primo ftatini Chaucorum gens, quamquam incipiat * a Frifiis, ac partem litoris occupet, omnium quas expofui gen- ' tium lateribus obtenditur, donee in Cattos ufque finuetur. * Tarn immenfum terrarum fpatium non tenent tantum Chauci, * fed et implent : Populus inter Germanos nobiliffimus, quique * magnitudinem fuam malit jufticia tueri. Sine cupiditate, line ' impotentia, quieti fecretique, nulla provocant bella, nuUis rap- * tibus aut latrociniis poftulabantur. Idque praecipuum virtu- ' tis ac virium argumentum eft, quod, ut fuperiores agant, non ' per injurias aflVquuntur. Prompta tamen omnibus anna, ac fi * res pofcat exercitus : Plurimum virorum equorumque : Et ' quiefcentibus eadem fama.' Tacit, de Moi\ Germ. c. 35. ' Fennis mira feritas, foeda paupertas, non arma, non equi, * non penates : Vi£lui herba, veftitui pellcs, cubile humus. Sola * in fagittis fpes, quas inopia ferri offibus afperant. Idemque * venatus viros pariter ac feminas alit. Paffim enim comitan- ' tur, (lartemque praedae petunt. Nee aliud infantibus ferarum * imbriumque fuffugium, quam ut in aliquo ramorum nexii ' coutegantur^ IN EUROPE. 169 * contegantur. Hue redeunt juvenes, hoc fenum receptaciikim. * Id beatiiis arbitrantur, quam ingemere agris, illaboiare '1omi- * bus fuas alienafque fortunas I'pe metuque verfare. Securi ad- * verfus homines, fecuri adverfus deos, rem difficilUmam aflccuti * funt, ut illis ne voto quidem opus fit.' Tacit, de Mor. Germ, C. 4.6. SEC- 170 A VIEW OF SOCIETY SECTION 11. (OIV /r^ MILLAR on the DIflinaion of Ranks, ch. i. Sketches of the Hillory of Man, vol. i. Dr Ro- M bertlon, Hiftory of America, vol. i. p. 318. (2) ' Verberare fervum, ac vinculis et opere coercerc, rarum.' Tacit, de Mor. Germ. t. 25. (3) * Domus officia uxor et liberl exequuntur.' Tocit. de Mor. Germ. c. 25. ' Liberos fuos,' fays Cae/ar of the Gauls, ' nifi * quurn adoleverlnt, ut munus militiae fuftinere poflint, palam ad * fe adire non patiuntur ; filiumque in puerili aetata in publico * in confpedtu patris affiftere turpe ducunt.' De Bell. Gall. lib. 6. c. 18. (4) ' Qui^f^ ex captlvis quaererct Caefar, quamobrem Arlo- viftus proelio non decertaret ? banc reperiebat caufam, quod apud Germanos ca confuetudo eflet, ut matres familias earum fortibus et vaticinationibus declararent, utrum proelium committi * exufu eflet necne, eas ita dicere, non ejfefas Germanos fnper are ^ IN EUROPE. lyr *■ fi ante novam binam proelio contend'ijfent.^ Caefar de BelL Gall, lib. 1. c. 50. (5) Strabolib. 7. Struvius, Corpus Hiftor. German, prolegom. Cluver. German. Antiq. lib. I. (6) • Inefle qulnetlam fandum aliquid, et provldum putant. * . . . Vidimus fub Divo Velpafiano Velledam diu apud ple- ' rofque numinis loco habitam. Sed et olim Auriniam, et com- • plures alias venerati funt, non adulatione, nee tamquam face- ' rent dcas.' Tacit, de Mov. Germ. c. 8. The honours of divinity came to be proRituted to thefe wo- men with a wonderful profulion. Among the monuments of antiquity in Germany, many altars, with infcriptions to them, have been difcovered; and, both in England and Scotland, there are remains of the fame kind. Kcyjler, Antiq. SeleSI. Septentr. et Celt. p. 379 — 448. Camden^ Britannia, P^Jf^'i' The appel- lation given them, in Caefar, is viatres familias ; and thefe in- fcriptions bear niatribus or matronis Suevis, TrevcriStAufanis, &c. Under Paganlfm and Chrifllanity, the fatidical arts they prac- tifed drew upon them a very different fate. The credulity of the Pagan advanced them into goddcdcs. The more criminal rgnorance of the Chriflian confidered them as witches, and con- Cgned them to the fire. Their muttcrings were conceived to be Y X magical.. 172 A VIEW OF SOCIETY magical. It was thought they could fafcinate children with a look, were in covenant with demons, to whofe embraces they fubmittcd, could blaft the fruits of autumn, ralfe commotions in the air, and interprete dreams. What is remarkable, the laws againft fuch women, and againft witchcraft, were not abrogated in England till the year 1736 : And, in other countries of Eu- rope, there are ftill regulations in force againft thefe miferable objeds, and this imaginary crime. (7) < Ad matrcs ad conjuges vulnera ferunt: Nee illae nume- * rare, aut exfugere plagas pavent.' Tacit, dc Mor. Germ, c. 7. Clwver. Germ. Ant'iq. lib. i. (8) ' Feminae lineis amidibus velantur, eofque purpura vari- * ant.' Tacit, de Mor, Germ, c. ij. ' Cadurci, Caleti, Ruteni, ' Bituriges. ultimique hominum exiftimati Morini, imo vero Gal- ' liac univeriae vela texunt. Jam quidem et TraniVhenani hoftes: * Nee pulchriorem aliam veftem eorum feminae noverunt.' Fliii. Hijl. Nat. lib, tg. c. i. Concerning the Longobards, there is the following paffage in Panlus Diaconus : ' Veftimenta eis ' erant laxa, et maxime linea, qualia Anglo-Saxones habere fo- ' lent, ornata infiitis latioribus, vario colore contextis.' HijI. Longobard. lib. 4. c. 7. And of the daughters of Charlemagne, there is this notice in Eginhard. * Filias lanificio affuefcere, co- ' loque ac fufo, ne per otimn torperent, operam impendere, at- * que ad omnem honeftatcni erudiri juffit.' VittCar, Mag. In America, IN EUROPE. 173 America, according to Mr Adair, the women are the chief, if not the only manufacturers. The men judge, that if they (hould perform ofEces of this kind, it would exceedingly difgracc thciH. Hj/L of the Amer. Indians, p. 423. Thefe offices, however, be- ing chara£terirtic of the women, arc honourable in them. In Rome, during the virtuous times of the republic, the employ- ments of the women were the diftaff and the fpindle ; and Plu- tarch has faid, in reproach of Fulvia the widow of Clodius, that flie could neither fpin nor flay at home. Vit. Anton. (9) ' Statim c fomno, quern plerumque in diem cxtrahunt, * lavantur, faepius calida, ut apud quos plurimum hiems occu- * pat.' Tacit, de Mor. Germ. c. 22. ♦ Molkfque flagellant ' Colla comae.' Mart. Epic lib. i. * Partemque veflltus fuperioris In manicas non extendunt, * nuda brachia ac lacertos : Sed et proxima pars pedoris patct.' Tacit, de Mor. Germ. c. ly. ' Get ufage,' fays Pelloutier^ * s'ell conferve en Saxe, en PruiTe, et en Livonie. Les femmes * y portent des chemifes fans niar.che, et laiilent lenr gorge a. * decouvert.' Hijl. dcs Cclles, lib. 4. ch, 4. Diodorus Siculns, lib. 5. records the comelinefs both of the Gaulic and Gcrmaa women ; and Btjj'uhiy a German beauty, is celebrated by Aujbnius. (.0) 174 A VIEW OF SOCIETY (lo.) ' Matrem fuam,' fays Tacitus of CivW'is, ' fororefque, * fimul omnium conjuges, parvofque liberos, confiflere a tergo ' jubet, hoitamenta vidoriae.' Hijl. lib. J[. 'In proximo pig- * nora ; unde feminarum ululatus aiidiri, unde vagitus infantium. ' . . . . Memoriae proditur quafdam acies, inclinatas jam * et labantes, a feminis reflitutas, conftantia precum, et objedlu ' pe£lorum, et monftrata cominus captivitatc, quam longe impa- ' tientius feminarum fuarum nomine timent.' Tacit, de Mor. Germ. c. 7. 8. ' Ut virorum cantu, feminarum ululatu, fonuit ' acies.' Tacit. Bijl. lib. 4. See aUb Caefar de Bell. Gall, lib. I. c. 51. ' Adeo ut efficacius obligentur animi civitatum, quibus inter * obfides ptiellae quoque nobiles imperantur.' De Mor. Germ, c. 8. Suetonius^ fpeaking of the tranfadions of Auguftus againft the barbarians, has thefe words : ' A quibufdam novum genus ' obfidum fcminas exigere tentaverit ; (^uod negligere marium * fignora fentiebat.' Vit. Aug. c. 21. (11)' Sororiwi flits idem apud avunculum qui apud pattern ' honor.' Tacit, de Mor. Gertn. c. 20. Hence it is, fays Mon- tefquieu, that our earlieft hiftorians fpeak in fuch ftrong terms of the love of the kings of the Franks for the children of their fiflers. Ve/prit des Loix, lib. 18. ch. ii. John de Laet re- marks of the Brafilians, that they call their uncles and aunts fathers and mothers j and the fame cuftom prevails among the nortL IN EUROPE. 175 north American Indians. Adair bi/l. of the Arner. Indians, p. 213. Among the Hurons, fays Charlevoix, with whom the dignity of the cliief is hereditary, the fiicceffion is continued through the ivo- men ; (o that, at tlie death of a prince, it is not his own, but his fijler''s fin who fucceeds ; and, in default of him, the neareft re- lation in the female hne. It is added, ' Si toute un branche * vient a s'eteindre, la plus noble matrone de la trlbu, ou de la * nation, choifit le fujet, qui lui plait davantage, et le declare * chef.' Journ. Hift. Lett, i 8. * iEthiopes,' fays Damafcenws^ *■ fororihus pothfimum honorem exhibcnt, ct fucceffionem tradunt ' reges, non fuis, {cdfororumfiUis.'' De mor. Gent. Thefe fads, which coincide {o curiouOy, exprefs, in a forcible manner, the early importance of the fex. (12) ' Ncc aut confilia earum afpernantur, aut refponfa ne- * gligunt.' Tacit, de Mor. Gcrtn. c. 8. To deliberate, in public, on national concerns, was a privilege common to the women in all the Gothic and Celtic tribes. Plutarch, de virtut. nutlicr, Polyaemu in Strata^, lib. 7. This advantage they enjoyed alfo in old times in Greece. Goguet,part. 2. book i. ch. 4. And, at this hour, in America, they are calKd to the national meetings, to give their advice andcounfel. Charlevoix, "Journ. HiJI. let. 13. 18. ' Les femmes,' fays Lajitau,^ font toujours les premieres quide- * libercnt, ou qui doivent deliberer, felon lour principes, fur les * affaires particulieres ou communes. Elles tiennent leur confeil * a part, et en confequcncc de leur determination, elles dunnent ' avis 176 A VIEW OF SOCIETY * avis aux chefs des matieres qui font fur le tapis, afin qu'lls en ' deliberent a leur tour. Les chefs, fur ces avis, font afTembler * les anciens de leur tribii ; ct fi la chofe dont on doit traiter ' interefle le bien commun, tous fe reuniflent dans le confcil ge- * nerale de la nation.* To7}ie i./>. 477, The German women, after their nations had made conquefls, flill attended to affairs. As they debated, in the days of Taci- tus, in the affemblies of their tribes, fo they appeared afterwards in the Gothic parliaments. Among the Franks, as well as the Anglo-Saxons, the Queens had an adtive lhar« in the govern- ment ; and, among the former, there is the example of a Queen who received a national homage. Greg, of Tours., lib. 4. Wer- burgh, Queen to King Wightred, aflifted at the wittcnagemot, or national council, held at Berghamftcd. Chron. Sax. p. 48^ Malmsburj, lib. 2. mentions a parliament held by King tdgar, in which he was afhftcd by his mother Alfgina. And Canute is faid, in a national affembly, to have aded by the advice of Queen Emma, and the bifl^ops and ncbility of England. Mat. Wejl. p. 423. Wlien the crown fell to a prince in his minority, the queen- mother had the guardianlhip. i lius Fredegund had the guar- dian flilp of her fon Clotarius V. Brunehild of her grandfjns Theodebert and Theoderic, and Balthildis of her fon Clotari- us III. ('3) IN EUROPE. 177 (t3) The following particulars, as well as thofe already men- tioned, favour the notion of the importance of women in early- times. ' Apud Sauniias vel Samtiltes, de adolelcentibus et vir- ginibus quotannis publicum lra.)etur judicium. Quern igitur eorum optimum effe fententia judicuin pronunciarit, is fibi ex virginibus digit uxorem quern vult, dei.nde fecundus ab eo al- * teram, ct fie de caeteris deinceps.' Damajc. de Mor. Gent. * Sauromatae uxonbus in omnibus obtemperant, tanquam do- * minabus.' Ih'ul. ' Lycii vitam fuflinuerunt ex latrociniis. Le- ' gibus autem non utuntur, fed confuetudinibus, dominanturque * ipfis fcminae indc ufque ab initio.' Heraclides de Poiuiis Craecorum. ' In ea regione quam Athamanes habitant, mulieres * terram colunt, viri greges pafcunt.' Ibid. Tacitus., difcourfing of the antient Britains, has thefe words. ' His atque talibus in- * vicem inftrudli, Boudicea generis regit femina, duce (neque e- * nim fexnm in imperils difcernunt) fumpierc univerfi bellum.* Vit. Agric. c. 16. In Homer, who paints rude manners, the women make a figure. In Virgil, who defcribcs refined man- ners, they are infipid. Helen, Hecuba, Andromache, Penelope, Nauficaa, and Calypfo, have marked and dillindl charaders. But Lavinia feems to be without pafTions of any kind, and to have that nothingnefs of charader which, in the ages of civility, is too frequently conncdcd with the moft enchanting forms. The women of Lgypt were highly prized, and had a kind of autho- rity over the men. The toilets of the goddeflTcs in Homer, and the gay dreflcs of the Grtck ladies, feem to mark the confidera- Z tlon 178 A VIEW OF SOCIETY tion of the fex. At Sparta, the women interfered in the affairs of flate, and afiumed a fuperiority over the men. ' Les fem- * mes,' fays Charlevoix of the Americans, * ont la principale ' autorite chez tous les peuples de la langue Huronnc, fi on en * excepte le canton Iroquois d'Onneyouth, ou elle eft alternative * entre les deux fexes.' Journ. Hljl. lett. 18. The importance of women among the Hindoos, is illuftrated in a ftriking manner by the following laws. * If a perfon has called a modeft woman unchafte, and the * woman, or her hufband, fliould make complaint to a maglftratc, * whenever the perfon accufed appears before the magiftrate, or * arbitrator, he fhall, upon the fpot, anfwer to the complaint>, * and make no delay. ' If a woman, impelled by any calamity, fhould come to any * perfon, and remain with him, if he commits fornication with * that woman, the magiftrate fhall line him two hundred and ' fifty puns of coiuries. ' If a man fpeaks reproachfully of his wife's father or mother,, *- the magiftrate fhall fine him fifty puns of cowries. * If a man is prepared to caft upon a woman's body tears, or- * phlegm, or the paring of his nails, or the gum of his eyes, or »the- IN EUROPE. 179 * the wax of his ears, or the refufe of viduals, or fplttle, the ma- * giftraie fliall fine him forty puns of cowries. * If a man throws upon a woman, from the neck upwards, a-> * ny fpuc, or urine, or ordure, or feuien, the magitlrate fliall * fine him one hundred and fwiy /jjihs oi coivries. * So long as a woman remains unmarried, her father fliall * take care of her ; and, fo long as a wife remains young, her * huflsand fliall take care of her ; and, in her old age, her fon * fliall take care of her ; and if, before a woman's marriage, her * father fliould die, the brother, or brother's fon, or fuch other * near relations of the father, fliall take care of her; if, after mar- ' riage, her hufband fliould die, and the wife has not brought ' forth a fon, the brothers, and brothers fons, and fuch other * near relations of her hufljand, fliall take care of her : If there * are no brothers, brothers fons, or fuch other near relations of * her hufljand, the brothers, or fons of the brothers of her father * fliall take care of her ; and, in every ftage of life, if the perfons * who have been allotted to take care of a woman, do not take * care of her, each, in his rcfpcdlive ftage accordingly, the ma- * giftrate fliall fine them.' Coik of Centoo laws, p. iii. 163. 214. 220. 224. 282. Z 2 SEC- i8o A VIEW OF SOCIETY SECTION III. '')'I7'^ (i) * "B 1 T Venus In Sylvis jungebat corpora amantum; Conciliabat enina vel mutua quamque cupido, * Vd vioienta viii vis, atque impenfa libido, • Vtl precium, ^landcs, atque arbuta, vel pira le£ta.' Lucret. lib. 5. (2) ' Interfunt parcntes et propinqui ac muncra probant : Mu- * nera non ad delicias inuliebres quaefita, necquibus nova nupta * comatur ; led boves et frenatum equum, et fcutum cum tramea * gladioque. In haec munera uxor accipitur, atque invicem ip- ' ia armorum aliquid viro ofFert. Hoc maximum vinculum, ' hacc arcana facra, hos conjugales deos arbitrantur.' lucit. ds Mor. Genu, r . 1 8. Remains of thefe ufages are to be found during every period of the middle ages. About the year 500, on the marriage of Alamaberga, the niece of Theoderic King of the Oftrogoths, that prince wrote a letter to her hufband, Hermanfrid, King of the Thuringians ; from which it appears, that drefied or accoutred horfes IN EUROPE. i8i horfes were prefented ; and, in Loccenius, there are other exam- ples to the fame purpofe. Antiq. Sueogoth. lib. 2. Among the Irilh, a war hnrfe and a fpear were conjagal prefents, till a late aera. ' Ejufmodi quidpiam,' fays Sir Henry Spelmmi., in allufiini to the palfage quoted from Tacitus, ' apud Germano- • rum nepotes i tibernicos ipfimet aliquando deprehend'.mus. ' Equum fcdicct militarem cum framea iater jugalia nmncra fo- ' lennius fuifle, fed a patre fponfae donatum. Addebaat autem • Hiberni cytharam, ut blandioris fortunae folatium.' Glojf. p. 1 74. In the American marriages, an interchange of prefents was alfo an eflential circumftance, and gave them a fandion and va- hdity. ' Le mariage n'eft pas plutot refolu que le parcntes de * Tej-oux envoyent un prefent dans le cabane de I'epoufe. Ce * preleni confilte en des colliers de porcelaine, des pelleteries, * quelques couvertures des fou'rure, et d'autres meubles d'lifage, * qui vont aux parens de la hlle, a laquelle on ne demande point * de dot ; mais feulement qu'elle veuille accepter I'epoux qii'on • lui oftVc. Ces lortes des prefens ne fc font pas feulement une • tois, il b'cn fait un efpece d'alternarive entre les deux cabanes * des futurs epc^ux, laquelle a fes loix prefcrites par la coutunie; • mais, des que les prcl'ens fmt acceptes, le mariage eft cenfc, • conclu, ct Ic contrat pafTe.' LnJituU, torn. \. p. 5^5. From the words of Tacitus, it appears, that among the Ger- mans the coukut of the parents or rclaiicns was particularly ncccffary i82 A VIEW OF SOCIETY necciTary In the contrinfllng of inarriagcs ; and ihls is flill more obvious from the laws of the barbarians, erie, ap. Spel/iiati, voc. Marita- giuni. There is good evidence, that, in feveral cities of Ger- manyj IN EUROPE. '93 many in the middle times, fines were paid to the m'^giArate on the marriage of a widow. Heinnec. Elcm. Jur. Germ. lib. i . tit. lO. § 222. (13) Thus, the ravifliing of a widow was punifhed more fe- verely than thar ot a virgin. ' Si quis rvirginem rapuerit contra ' ipfius voluntatem et parentum ejus, cum. xl. foh coinponat, et • aHos xl. cogatur in fifco. Si autem 'uiduatn rapuerit quae coadta ' ex teuled ; and the lofs of value attending this abufe, with the levcrc punifhment of their violators, exprels clearly the high and natural impor- tance of the fcx. In the Gcntoo code, the confideratinn of the fex is alfo illuf- trat d by laws too explicit to admit of doubt or cavil, and IHII more fcvcre. B b Ml" 194 A VIEW OF SOCIETY ' If a man by force commits adultery with a woman of an ' equal or inferior caft, againft her content, the magiftrate (hall * confifcate all his pofleflions, cut off his penis, and caftrate him, * and caufe him to be led round the city, mounted upon an afs. • If a man, by cunning and deceit, commits adultery with a ' woman of an equal or inferior caft, againft her confent, the ' magirtrate (hall take all his poffeflions, brand him in the fore- * head with the mark of the puclendim tmiliebre, and banifti him * the kingdom. ' If a man, by violence, or by cunning, or deceit, or againft ' the woman's confent, commits adultery with a woman of a * fuperior caft, the magiftrate ftiall deprive him of life. ' If a man, either by violence or with her confent, commits * adultery with an unmarried girl of a fuperior caft, the magi- ' ftraic fliall put him to death.' Code of Gent oo Laivs, ch. 19. (14) ' Singulis uxoribus contenti funt, exceptis admodum pau- * cis, qui non libidine, fed oh nobilitatem, plurimis nuptiis ambi- ' untur.' Tacit, de Mor. Germ, c. 18. This, fays Montefquieu, explains the reafon why the kings of the firft race had fo great a number of wive?. 1 hefe marriages were lefs a proof of incontinence, than a confequence of digni- ty j IN EUROPE. 195 ty ; and it would have wounded them, in a tender point, to have deprived them of fuch a prerogative. This, continues he, explains, likewife, the reafon why the example of our kings was not followed by their fubje£ls. Uefprit des Loix, liv, 1 8. c. 25. I know that my Lord Kaims has fpoken of the polyga- my of the Germanic nations ; but the authority to which he appeals in proof of his notion, is the paflage now cited from Tacitus, which is moft diredly againft him. Sketches^ 'vol. i. /». 192. And indeed he has remarked, in another portion of his work, ' That polyga:T:y was never known among the northern * nations of hurope.' Vol. 1. />. 316. i am at a lols to recon- cile thefe opinions ; and this ingenious author appears to have forgotten, that, in the flares ot Germanic and Gothic origin, there were even fevere laws againft polygamy. LL, Lon\^ob. lib. 2. tit. 13. /. /. 3. 5. LL. IVifi^oth. lib. 3. The plurality of wives is a confequence of luxury and pride, nd does not uniformly diftinguifh rude times, even in climates which encourage and infpirit the paflions. In general, one man is then connected with one woman, and fitisfied with her ; and it is a proof of the antiquity of mono,.;amy, that, when a plurality of wives is unilorn.ly indiilped, which happens not till the ages of property, there is always one of thcfe who Teems 15 b 2 more a 196 A VIEW OF SOCIETY more peculiarly the wife ; the reft appearing only as fo many concubines. The appetite for the fex, it is to be obferved, is not nearly fo ftrong in rude, as in cultivated times. Hardihip and fatigue, the great enemies of inordinate love, wafte the barbarian. ' 11 eft ' de I'ancien ufage,' fays Laftau, ' parmi la plupart des nations * fauvages, de pafler la premiere annee, apres le mariage contracSe, ' fans le confommer ; . . . . Et quoique les epoux paf- ' fent la nuit enfemble, c'eft fans prejudice de cet ancien ufage.' Tome I. p. 575. Eafe and good living, on the contrary, flatter the fenfes in the ages of property. And, an abftinence of this fort would, doubtlefs, furprife very much the moft timid and the moft delicate of our virgins. (15) The fortunate marriages of the relations of Dumnorix, are faid, by Caefar., to have conftituted a great proportion of his power. De Bel. Gall. lib. i. f. 18. In the fame author, there is the following notice concerning the wives of Arioviftus. ' Diiae fuerunt Ariovlfti uxores, una Sueca natione, quam do- • mum fccum adduxerat ; altera Norica, regis Vocionis foror, ' quam in Gallia duxerat, a fratre miflam.' De Bel. Gall. lib. r. C' 53- Tacitus fays exprefsly, that deliberations on the fubjed; of marriage were frequent in the councils of a German flate. De Mor. IN EUROPE. 197 Mor. Germ. c. 22. And, in that fingular work, the Atlantica of Rudbeck, there is this pafTage. ' In conciHis Upralenfibiis decre- ' turn fuit, ut Olaus Rex Sueoniae fiHam fuam in matrimonio ' daret Olao Regi Norvagiae.' P. 214. (16) After the introduclion of Chriftianity, a multitude of laws were enadted againft inceftuous marriages ; and thcfe prove, that Httle delicacy was previoufly paid to relation or defcent. ' Uxorem habere non liceat focrum, nurura, privignam, nover- • cam, filiani fratris, filiam fororis, fratris uxorem, uxoris foro- ' rem : Filii fratrum, filii fororum, inter fe nulla praelumptione ' jungantur.' LL. Baiwar. tit. 6. /. i. Sec alfo LL. Longob. lib. 2. ///. 8. LL. Alaman. tit, 39. LL. Sal. tit. 14. /. 16. In Scotland, about the year 1093, ' it was not uncommon,' fays my Lord Hailes, ' for a man to marry his ftep-mother, ' or the widow of his brother.* The learned and ingenious au- thor adds, ' I prefume that this was not owing to vague luft, ♦ but to avarice ; for it relieved the heir of a jointure.' Annals of Scotland, p. 29' 1 he obfervation is acute; but I ani afraid that, though in fome inflanccs it might be juft, it will not vin- dicate the Scots from the groffnefs and indecency which the prevalence of the cuflom fixes upon them. Even in France, at a later period, an, 1454, the Count D'Armagnac married pu- blicly his own fifler. St Foix, Ejf. Hi]}, vol. ^. p. 1 7,0. The ftrange liberties taken by antient nations are fufficlcntly known. A 198 A VIEW OF SOCIETY A Perfian a£ted in conformity to the laws, and to juftice, when he married his mother ; and an Egyptian when he married hib fifter. In times of refinement and deHcacy, virtue takes the alarm, even at the recital of fuch facls ; but the philofopher, ftruck with their univerfality over all focieties, however diftant and diHinft, is difpofed to inquire, Where it is that nature has placed her barriers ; and what, on this head, in the codes of nations, is to be explained by natural law, and what by a policy civil and religious ? The topic is full of curiofity, but not for the prefent purpofe. CHAP- CHAPTER II. c T I o N r. (i) r ■ IHE total change produced in the condition of Eu- M rope by the fettlements of the barbarous nations, is afcribed by many writers, and by Dr Robcrtfon in particular, to the deftrudive violence with which they carried on their con- quefts, and to the havock which they made from one extremity of this quarter of the globe to the other. Hijlory of Charles V, vo/. I. p. 1 1. 197. 19S. It is to be remembered, notwithftandlng, that the conquerors incorporated themfelves, in fome provinces, witli the vanquiflied; that much of the havock and violence fo pompoufly defcribed by antient hiftorians, is lo be referred to the wars they carried on among themfelves ; and that, where havock and violence were lead known, the change produced was, with the exception of a few circumftances, as general and complete as where they were experienced -co A VIEW OF SOCIETY experienced in the greatefl degree. Thus, chivalry and the feu- dal iuftitutions prevailed, in every ftep of their progrefs, in every country of Europe. In iiluftration, indeed, of liis opinion, Dr Robertfon has faid, that where havock prevailed in no great degree, as in England, on the Norman invafion, the antient inhabitants retained their own manners. It is certainly very true that the Anglo-Saxons retained their own manners. This, however, was no effe£t of the caiife he has mentioned. The Norman revolution was not a conqueft *. A vidory was obtained by Duke William over Harold and his followers ; but no vidory was obtained over the people of England. And, even on the hypothefis that the Duke of Normandy had conquered England, his illuftration is without force. For the manners and policy of the Normans v\'ere the fame with thofe of the Anglo-Saxons ; with this difference, that the former were, in fome meafure, a more improved people. The completenefs of the revolution confequent on the fettle- ments of the barbarians, is chiefly to be afcribed, as i oblerve in the text, to the immenfe diflfercnce of manners in the conque- rors and the conquered. The farmer were in a c ndition of growirg civility ; the latter in a fate of hopelefs c<^rruptinn. The German was approaching to perfedion : The Rom.. n had been * See a Difcourfe prefixed to Dr Sullivan's Leftures. IN EUROPE. 201 been declining from it. They mutually derpifed one another, and were urged on in different directions. The former, there- fore, yielding to, and governed by the manners to which he had been accuftomed, became necelfariiy the founder of new and peculiar eftablilhments. (2) • Agri pro numero cultorum ab Jtniverfts per vices occu- * pantur, quos mox inter fe fecundum dignationem partiuntur. * Facilitatem partiendi camporum fpatia praeftant. Arva per an- * nos mutant, et fupereft ager.' Tacit, de Mon Germ. c. 26. This Interefting information is well illuftrated in the follow- ing relation from Caefar. ' Suevoruai gens eft longe maxima et * bellicofiffima Germanorum omnium. li centum pagos habere * dicuntur ; ex quibus quotannis fingula millia armatorum, bel- * landi caufa, fuis ex finibus educunt. Reliqui domi manent : * Pro fe atque illis colunt. Hi rurfus invicem anno poft in armis * funt : Illi domi remanent. Sic neque agricultura, neque ratio, * neque ufus belli intermittitur : Sed privati ac feparati agri a- * pud eos nihil eft : Neque longius anno remanere uno in loco * incolendi caufa licet ; neque multum frumento, fed maximam * partem ladle atque pccorc vivunt, multumque funt in venationi- 'bus.' Dc Bell. Call. lil>. 4. c. i. {3) From fome remarkable paflages in Tacitus^ it is to be ga- thered, that, even in his age, the Germans were beginning to C c have -02 A VIEW OF SOCIETY have an idea of sl private property in land. This Improvement would probably take place among the princes or chiefs, and in thofe diftrids which joined to the Roman frontiers ; and it is to be conceived, that the portions of ground firft appropriated, would be thofe around the cabins or huts of individuals. For each hut was furrounded with an mchfare. And it was doubt- lefs out of this enclofure that the German flave, being aHigned kind by his mafler, paid, in return, like a tenant, a proportion of corn, cattle, or cloth. * Ceteris fervis, non in noftrum morem • dcfcriptis per familiam minifteriis utuntur. Suam quifque few ' dem, fuos penates regit. Fnimenti modwn domlnus, aut peco- • risi aut 'ue/i'is, tit colono injunglt : Et fcruiis haBenus paret.'' Tacit, de Mor. Germ. c. 25. This appropriation of land, and ex- ertion over it, would fpread by degrees, and enlarge the notion* of property. In fad, it would feem, that this condu£t was obferved after the German conquefts ; and that the German enclofure, or the lands of the houfe, and the affignment of them to flaves or fer- vants, were ufual. A proprietor or noble retained, to be cultiva- ted by his fervants, for domeftic ufe and hofpitality, the land which was inter curtem, or within view of the houfe or hall. What was out of the view of the houfe or hall, was given out in tenancy. Hence, among the Anglo-Saxons, the diftindion of inland and outland. The inland, was the land inter curtem, or the land of the houfe : The outland was the land out of the view of IN EUROPE, 203 of the houfe*. Brithic, the rich Anglo-Saxon, had Inland and outland, and difpofed of them, in his will, to different per- fons t' What is worthy of obfervatlon, the method of paying in kind, pradiled in Germany, and mentioned by Tacitus, continued alfo in the fettlements ot the barbarians, and even after they had be- come acquainted with coinage. Thus, in efiates which had been long in any family, there were payments in poultry, and in ne- ceiTarics for the houfe. Du Cange Glojf. •uoc. Gallinagium et Hc- nedpeny. At this hour, both in England and Scotland, there are relics of this ufage. In England, it was not till the nge of Henry I. that the rents due to the crown were paid in money. ' In the early ' days,' fays Madox., ' next after the Norman conqueft, (if we * are rightly informed), there was very little money, in Jpecicy ' in the realm. Then the tenants of knights fees anfvvered G c 2 'to *' Inland, et Inliindum. Terra dominicali^, pnrs manerii dominica. Vox • Snxonum, tcrram intcricrem fgnificans, ram quae colonis et tencntibus ' concedatur, titlavd A\C\.-\ fuit, hoc efl terra exterior, hodic tenementalis.' ^/■ehiiaii, CSJf. p. 316. •t Lnnibard, Pcrarr-liulatioii cf Kent. • Lego,' fays Britliic, ' terras dcnu* ^ nicales Wulfego, tcncnicntales ^Elfcgo.* Z04 A VIEW OF SOCIETY ' to their Lords by military fervices ; and the tenants in focage ' lands and dcmeanes (in great meafurc) by work and provifions. ' The ingenious authour of the Dialogue concerning the Exche- ' quer tells us, that, from the time of the Norman conqueft, till * the reign of King Henry I. the rents or ferms due to the king * were wont to be rendered in provijions and neceffaries for his '■ hoiifehold* : And that, in King Henry the Firft's time, the * fame were changed into money. Afterwards, in the fucceediig ' times, the revenue of the crown was anfwered or paid, chiefly ' ingoldandfther; fometimes in palfreys, d^'firiers, chafcurs, le- * veriers, hawks, and falcons, (to wit, in horfes, dogs, and birds ' of game of divers forts), and in things of other kinds.' Hiji. of the Exchequer^ •vol. I . p. 272. (4) Allodial lands were enjoyed in full property, and are there- fore oppofed to feudal or beneficiary pofleflions, which were re- ceived with limitations, and under the burden ot military lervice to \.\iQ grantors. The Ripuarians, the Burgundians, and, indeed, all the barba- ric * In the Saxon times of King Inn, the provifions paid for ten hides of land were as follows : ' Ex decern 1 ydis, ad nutricndum, decern dolia mellis, tre- ' centi panes, duodecim ntnphorae Wallicae cerevifiae, triginta fimplices, duo * adulti arietes, vcl decern verveces, decern anferes, viginti gallinae, decern ' cafei, amphora plena butyro, quinquc falmones, viginti librae pondo pa-- * biili, ct centuai anguillae folvantur.' LL, Jnac ap. IFi/kins, p. 25. IN EUROPE. 205 ric nations, appear to have had lands of partition or allodial pro- perty. LL. Ripuar. tit. 56. LL. Angl. et IVerin. tit. 6. LL. Baivvar. tit. 1. c. i. /. 3. ///. M. c. 5. tit. 17. /. 2. Qipit. Kar. et Ltid. lib. 3. /. 20. Marculph. Form, 16. 18. 51. 62. 67. up. Lindenbrog. Some writers affirm, that the Salic lands were lands of lot or partition^ and yet contend that they were feudal. This is cer- tainly an ablurdity. It is to be contelTcd, notwithftanding, that Du Cange, and many lawyers of great ability, have adopted this notion. Differt. 1 7. fur f Hijloire de St. Louis, p. 244. Sclden, vol. 3. p. 1009 *. I'he authority againft them is moft exprefs and pointed. It is the text itfelf of the Salic law which adually treats de alode-, and refers to no property that was not allodial. LL. Sal. ap. Lindenbrog. p. 342 What confounded Du Cange, was the following celebrated law of this text. ' De terra vero ' Salica * Selden obferves, that ' the bed interpretation of terra Salica, is by our ' knight's fee, or land holden by knight's fervice.' 1 have an intinite venera- tion for the learning and abilities ol this great man. I eannot, however, but differ from him on this occafion. The knight's fee and knight's /ervice, were late uivemioiis in the hillory ot fiefs, and cannot be cariied back to the early acta of the Salic l.iw Even if th^y tould, they would ftill be inefl'ecluai to fupport his conciufion. 2o6 A VIEW OF SOCIETY * Salica nulla portio heredltatis mulieri veniat ; fed ad "jiri/em *■ jexinn tota terrae hereditas perveniat.' He knew that women could not, in the commencement of fiefs, pretend to lands which were held by a military tenure ; and, as they are thus barred from the Salic lands, he tlieuce conceived that thele mail be jeiidal. But the circumflance of the excluficn of the women from the Salic lands is, by no means, to be accounted for ow feudal prin- ciples. The women were excluded from property while the Germans were in their forefts ; and this law or ufage they car- ried into their conquefls. It is thence that, in the hnds of lot or partition, the women were not confidered ; and it is thus, that this difficulty in the Salic text is to be explained, without tlie neceffity of conceiving the feudality of the Salic lands, in contradidion to the Salic law. Though the barbarians refpc£led highly their women, the ad- miffion of them to land was altogether a new idea. For if, leaving the Salic law, we inquire into the allodial property, and tlie allodial laws of the other tribes, we fl:iall find, that, even in thefe, the women were not admitted to land while there ex- ifted any male. The ideas of the barbarians required to enlarge before this admifTion had place, and before they could fo far violate their antient cufloms. The innovation, as might be ex- peded, was gradual. In the title, accordingly, de Alodibus in the Ripuariaa IN EUROPE. 207 Rlpiiarian text, wc read, ' Dam virllis fexus extlterlt, femina in ' hereJitatcm aviaticain non fiiccedat.' Lindenbrog. p. 460. See alfo LL. Anglor. et Werinor. tit. 6. It is, I conceive, by this and fiinilar ordinances, that the celebrated Salic law, which im- pofed on Du Cange, and on fo many lawyers, is to be inter- preted. Among the Salians and Franks, as well as among the other barbarous nations, when there were no males, the women were admitted to the property of the lands of lot or partition. After having made thefe remarks. It is fit I fhould give foraa account of the word Allodium, or Alode ; and a learned Judge-, who is fludious to cultivate literature in the intervals of bulinefs, and who has dillinguinied himfelf by laborious and inftrudtive compofuions in an idle and a diflipated age, has done me the honour to prefent me with the following communication on tliis fubjed. *■ Al-oJt in the Latin of the lower ages alloduan; hence the ^ adjedive allodialis ; and hence, from the analogy of language, ' ollodiallyt and allodialily may be formed. Of Al-od the ' French have made AL:iid, alcu. ' As to tic etymology of the word, there is a variety of opi- ' nions ; for learned men are apt to rcjed obvious etymologies, * and to prefer thofe which are more remote. It would fccm to ' be: 2o8 A V I E W O F S O C I E T Y * be a good rule in fuch matters, that " the etymology which is ** neareft to the word, is the mod probable." ' Jl is totus, integer^ et abfohitus. There is no occafion for * proving this : The fenfe is in daily ufe among the northern * nations of Europe. Od i& flatus, ovypojfeffto. The Scottilh word ' had, and the Englifh hold, are derived from this fource, and ' the word itfelf is ftill vifible in the Englifh compounds, inati- * hood, fijler- ' ood, maiden-hood, &c. The Anglo-Saxon word, * correfponding to this, is Hod, flatus or pojjejfio. Thus, Al-od, * is totus integer et abfohitus Jlatus, or tota integra et ahjoluta pof- * The etymology of Al-od confirms the opinion of Selden and ' others as to the etymology of Feod, in the Latin of the lower * ages Feodum, Feudum. Fe is beneficium or flipendium ; Od or ' Hod, I?, flatus ; therefore, Feod \?, Jlatus flipendiarius, ox poJJeJfio * flipendiaria. Odal is Alod inverted, Jlatus integer, or pojfej/io ' tota et abjoluta. ' There is no difference between odal and udal. The Scots ' turned the Norvegian ore, a denomination of weight, into «;r, ' and, in like manner, they turned odal into tidal. If the Norve- ' gian was pronounced as oe, the change is fcarcely perceptible. ' After the fame manner the French have turned alod into aleud. It IN EUROPE. zog ' It may be objcdcd, that there are two lyllablcs more in *■ allodial \.\\din'\n odal or udal; and that, ahliough ctymologifts ' often drop an embarrafling fyllable or two, yet that inch Hber- * ties are not allowable. The anlwer is obvious. Allodial is ' an adjedive ; and the word Jubj eel ■> or latid^ or fomething fimi- ' lar, is underftood. But odal or udal is a fubftantive ; and it is ' only from ignorance or mifapprehenfion, that the word is ufed * as an adjedive. Thus, in propriety of fpeech, we lay, ' The " lands In Orkney are to be coniidered as udal ;' although, in * common fpeech, we fay, ' The udal lands of Orkney,' and the " tidal pojfeffion in Orkney." (5) Dr Robertfon has affirmed, that the barbarians, while in their original feats, were not, in confequence of the condition of the landed property, brought under any pofitive or formal obli- gation to ferve the community. Hijl. of Charles V. vol. T. /). 2 1 3. It is obvious, however, that the partition of land received by the individual from the tribe, fubjeded him to forve the commu- nity. The pcrfon who did not fervc it had no claim to any par- tition. Pcrfons under the military age had no partitions, bccaule they could give no fcrvicc. Perfons, who had attained this age, could give fcrvicc, and entitle themfelvcs to partitions. The former were parts of {he fa wily, the latter were members of tlic republic. Sec Note 2. and compare it wiih Tacit, de Mor, Germ. Dd <. 13. 210 A VIEW OF SOCIETY c. 13. Of this law of partition, it was even a confequencc, that the coward was a criminal, becaufc he could give no fer- vicc, and was unable to entitle himfelf to a fuhfiftence or parti- tion. He was therefore deemed unworthy of exidence, and put to death, or expelled beyond the frontiers of his nation. Tacit, de Mor. Germ. c. 12. I have faid, that the lands of lot or partition, of which the grant or ufe was the diftin<^ion of the freeman and the citizen in the d lys of Tacitus, were alfo given after the conquefts of the barbarians, under the general obligation of ferving the commu- nity. And here is my evidence. ' Quicunque lil>er homo a comite fuo fuerit ammonitus, aut ' miniftris ejus, ad patriam defendendam, et ire neglexerit, et ex- * ercitus fupervenerit ad iftius regni vaflationem vel contrarieta- * tern, fidelium noftrorum capitali fubjaceat feutentiae.' Capitula- ria apud Baluz. torn. 2. p. 325. ' Si aliquis in alode fuo quiete vlvere voluerit, niillus ei ali- * quod impedirnentum facere praefumat, neque aliud aliquid ab ' eo requiratur, nifi folummodo ut ad patriae dejenfionem pergatJ' Capit. Car. Calv. Ibid. p. 264. ' Et qui ad defenfionem patriae non occurrerint, fecundum anti- ' quam I iN EUROPE. 211 ' quani co7ifuetudmem et capitulorum conflitutionem judlcentur.' Capit. Car. Gil. tit. 36. c. 27. Ibid. p. 187. Hence it is to be concluded, that the ftipulation of ferving the community was very antient ; and thus tod, the opinion I maintain, that this obhgation was known to the old Germans, receives a confirmation. In reality, the fenfe of the obligation muft have been ftronger before than after their conquefts. The citizen of a fmall community enters with cafe into its views, and is zealous to promote them. The arrangements, on the contra- ry, of a great kingdom, arc not eafily perceived. A plain indi- vidual does not know the motives and the agents which put eve- ry thing into motion. His attention is more turned from the public, and penal regulations are neceflary to prcferve him in his duty. Hiftory confirms this remark. For, early after the barbaric conquefts, regulations of this kind were made ; and al- lodial proprietors, to avoid ferving the community, deviled the fraud of afligning their lands to the church, and of holding them under its exemptions and immunities. Thofc, it is obfervablc, who held poflcflions merely allcdiaU could only be called out in foreign wars, and againft the cwz- niies of the ftatc. As they held of no fnperior or lord, they had no concern in private quarrels, and made no part in the feu- dal aflbcialion. This circumflancc, if judged by niodcrn idcis, D d 2 was 212 A VIEW OF SOCIETY was advantageous. It was, in fa£l, however, the reverfe, and operated as a caule of the converfion of allodium into tenure. (6) Monfr. Blgnon, in his notes to Marculphus, expredes, with a delicate precifion, the diftindtion between allodial lands, or the lands of partition., and the lands of the Jifc. ' Omnia * namque praedia, aut propria erant, aut Jijcalia. Propria feu ' proprietates dicebantur quae nullius juri obnoxia erant, fed op- * tiino maximo jure poffidebantur, ideoque ad heredes tranfibant. * Fifcalia vero, heneficia five fifci vocabantur, quae a rege ut plu- ' ritnum, poReaque ab aliis, ita concedebantur, ut certis legibus ' fervitiifque obnoxia, cum vita accipientis finirentur.' Not, ad Marculph. ap. Baluz. torn. 2. />. 875. It is even from f/cus that the term fef was formed ; and, though the lands of the Jifc meant originally only the benefices granted out by the fovereign, they came to exprefs the fubinreu- dations of the crown-vaffals. Du Cange, voce Fifcus, Mumis Re- gium. AJfifes et hons nfages da Royaume de Jerujalcm^ a'vec des notes par Gafpard Thaumas de la Thaumajiere, p. 103. 245- (7) ' Principesjura per pagos vicofquereddunt Tnfignis * nobilitas aut magna patrum merita, principis dignationem eti- * am adolefcentulis aflignant. Ceteris n buftioribus ac jampri- * dem probatis aggregantur Magna comitum aemulatio, ' quibus IN EUROPE. 213 ' qulbus primus apiid principem fiiuTi locus ; et principum cul ' plurimi et acerritni comites. Haec dignitas, hae vires, magno * femper eleclorum juvenu'ii globo clrcumdari, in pace deous, in * bello praefidium Cum ventum in aciem, turpe princi- * pi virtute vinci, turpe comltatui virtutem principis non adae- • quare Ilium defendere,tueri, I'uaquoquefortia fada glo- • riae ejusaflignare, praccipuum facramentum eft. Principes pro • Victoria pugnant ; comites pro principe.' Tacit, de Mor.Genii. c. 12. I 3. 14. (8) Of the notion that tribes were the 'vnjfals of tribes, I have ex' ibited the moft convincing proofs in another treatife. Hijl. Dijfcrt. concerning the Antiq. of the Eng. Confiit. part 2. As tlie fu'ijed, however, is highly curious and important, 1 (hall here ofter iome additional obfervaiions concerning it. The great bond of the confederacies, and the attachments of the Itates of the Gauls and Germans, vras the land affigued by a Juperior community to an inferior one. In cmfequence of this aflignment, the latter owed lervicc in war to the former, and was entitled to its prote£lion. in the language of Caifar, it was the client tribe. While land was yet tlie property of nations, and unconnc(Sled \^ ith individuals, tlic idea was natural, and al- nioft unavoidable. Ariovilius, a prince of a German commimi- ty. having, with his chiefs and retainers, made a conqucft in Caul, the territory of the vanquiihcd people became the proper- ty 214 A VIEW OF SOCIETY ty of his nation ; and, it was about to beftow a large tra£l of the acquifition on the Harudes, under the burden of their mi- litary aid or afliftance, when Caefar interfered in the Gaulic af- fairs. Caefar, de Bell. Gall. lib. i. c. 35 — 46. The idea of tribes in union, without their mutually furnifli- ing proteiiton and ajfijlance^ and without the medium of a grant of land., could not be conceived by the German and Gaulic na- tions. The client or 'uajfal tribes of Arioviflus, were the Mar- comani, Tribocci, Vangioncs, Harudes, Nemetes, and Sedufii. Caefar, de Bell. Gall. lib. i.r. 51. The Ubii, at one period, were the 'vaffal tribe of the Suevi. lb. lib. 4. c. 3. In an af- ter period, when the Romans imitated the manners of the Gauls and Germans, they were affigned land on the banks of the Rhine, under the obligation of military fervice. ' Super ipfam ' Rhcni ripam collocati, ut arcerent, non ut cuftodirentur.' Ta- cit, de Mor. Germ. f. 28. Caefar, at the requefl: of the -£dui, permitted the Boii to remain in Gaul ; and they became the cli- ents or confederates of that people, who affigned them land on their confines. ' Boios, petentibus iEduis, quod egregia virtute ' erant, ut in fmibus fuis collocarent, conceflit ; quibus illi agros ' dederunt.' De Bell. Gall. lib. i. c, 28. The extent of land allotted by a fuperior community to an inferior one, was propor- tioned to the numbers and the valour of the latter. And, it was this way of thinking which aduated the Helvetii, when they faid, that their territories were not fuited to their populoufncfs and I N E U R O P E. 215 and military glory. * Pro multitudine autem hominum, et pro * gloria belli atque fortitudinis, anguftos fe fines habere arbitraudn- * tiir.' Id. lib. I. c. 2. Thus, the Rate of land among the Gaulic and German na- tions direiited their /)oA/i6a/ condition. This circumllance elca- ped not the Romans ; and the uie made oF its knowledge by the Emperors, though Uttle attended to, is worttiy oi remark. To a body of the Vandals, Conllantine, with a view to the aid of their arms, afligned a portion of Pannonia. The afTignment of land by the Romans to the Burgundians, that they might af- firt them in oiipofing the Wifigoths, gave rife to the Burgun- dian empire in Gaul. And Juftinian granted the lands and polleflions of the Ollrogoths in Pannonia to the Longobards, under the burden of their defending that country againft the Gepidae, the Heruli, and other barbarous nations. 'Jornana, de Rcb, Get. c. 22. Ciijj'iodor. Cbron. Procop. lib. 3. Aipidfl a multitude of examples, to the fame purpnfe, which might be produced, it is proper to take notice ot tiie monarchy of the Franks. Different nati ms, overpowered by the Franks, became parts of their inoi.archy, by receiving poffeflions Irom the ■- , and acknowledging their lupcriority. For the lauds and protc£lion afforded them, tluy gave allegiance and lervice. In other relpcfls they a£ted under their own dukes rr princes, and under their own inilitulions. 1 fpeak of the principalities «>r duclues 2i6 A VIEW OF SOCIETY duchies of Bavaria, Aquitain, and Suabia. The Bojoarii, Bojarii, or Boii, for fo the Bavarians are called in writers of the middle ages, were conquered by the Franks, and, accepting lands from them, acknowledged their fuperiority. An old hiftorlan, record- ing this tranfadion, has thefe words : ' In bellis auxilio Fran- ' cis funt Boii ; eofdem pro amicis et hoftibus habeant; ceterum * fills inftitutis ac moribus liberi vivant.' Aventimis, Anna/. Boior. lib. 3. This connedion or vaflalage is even exprefled in their laws. LL. Bai'vuar. tit. z. c. i. ap. Lindenbrog. p. 404. Such alfo was the cafe of the Dukes of Aquitain and Suabia. Under the Franconian kings of the firft race, they owed fideli- ty and military fervice in war, for the lands they enjoyed, and yet governed in their own dominions. Thefe things mark the attachment of nations to their antient ufages, and illuftrate the idea that communities were firft the vaflals of communities. What is not incurious, one of the greateft difficulties in deve- lopping the hiftory of the barbaric tribes, has its fource in thefe con- nedions I have mentioned. The inferior, or vaflal tribes, are of- ten meant and recorded under the names of the fuperior ones. Thus, under the general appellation of Gothi, there are included the Thuringi, Gepidae, Pucini, Scirri, and other tribes. The hiftorical confufions that were neceflarily to arifc from this prac- tice are many, and often not to be difentangled. (9) It IN EUROPE. 217 (9) It Is obfervable, that the old German ftates affe£led, from grandeur, to have around them a vaft extent of ivajie territory. * Una ex parte a Suevis circlter millia palTuum DC agri vacars * dicuntur.' Caejar^ cle Bell. GjII. lib. 4. c. 2. ' Civitatibus * maxima laus e(l quam latiffimas circum fe vaftatis finibus/o/i- * tuilines habere.* Id. lib. 6. c. 22. ' Bella cum finitimis gerunt, * ut quae circa iplos jacent vajla fint.' Mela., lib. 3. What is remarkable, after land was conneded with individu- als, and when chiefs dirtributed portions of their pofleffions to their followers, they afTeded alfo ivajles of this kind. The Lord of a manor, after having afligned to his fervants a tra£t of ground for the maintenance of his houfe and hofpitality, gave out other divifions to his vaflals and tenants, for the fupport of his political grcatnefs ; and thcfe purpofes being anfwered, a large proportion of territory remained often unemployed by him. This ii'a/le dominion gave an idea of his power, and fer- ved to excite, in the ftrangcr, a fentiment of terror. On this tratSl of land, the inhabitants of the hamlet, conneded with his cafllc, were tempted to feed their cattle. In the courfe of time, he loft all connedion with it. 1 heir connedion was recent and in ufe. Hence common pnjlurc and commons, I will venture another conjcdure. It was, perhaps, from the Idea of magnificence attending the poftcfl'jon of a vaft portion of \mcultivattd territory, more than for the purpofes of hunting, li e that 2i8 A VIEW OF SOCIETY that the kings of Europe afFected, of old, to have extenfive fo-- refts. A deer-park is ftill flattering to the magnificence of the rich, in proportion to its extenfivenels ; though hunting be na amufement of the proprietor. (loj It lias puzzled the learned to difcover the nation of the barbarians which firft gave a beginning to fiefs. No inquiry could be more frivolous. In all of them they muft have appear- ed about the fame period. And they prevailed in all of them in confequence of the fimilarity of their iituation on their con- quefts, and in confequence of their being governed by the fame cuftoms. It is not, therefore, to the principle of imitation that- their univerfality is to be afcribed. The annals of France make mention of fiefs in the age of Childebert. The Longobards, at an early period, introduced them into Italy ; and the cuftoms and lav?s which relate to them feem to have advanced rapidly among this people. Giannone^ H'ljl. of Naplesy book \.feFt. 3. In England, there is little doubt that the feudal law was known in the Saxon times ; and on this fubjedt I refer, with pleafure, to what has been lately advanced by Mr Whitaker, in his Hiftory of Manchefter ; a book valu- able for deep learning, original thought, and uncommon inge- nuity. In IN EUROPE. 219 In Spain, the introdudlion of the feudal tenures preceded the 'devaftations of the Saracens or Moors, which began in the year 710. Among the Goths, who eftabliHied the monarchy of Spain, lands were granted for fervice and attachment ; and the receiver was the retainer of the grantor. He was faid to be in patrocinio ; and, if he refufed his fervice, he forfeited his grant. It aUb appears, that the retainer, or vaffal, fwore fealty to his patron or lord. And it was on this fcheme that their militia was regulated. LL. Wiftgoth. lib. 5. tit. 3. /. 4. tit. 7. /. 20. The Wifigothic laws were firft publiflied by the celebrated Pithoeus, and are chiefly to be valued on account of their high antiquity. But how they came to furvive the Moorilh conqueils, is an incident which I cannot explain. They ferved as the mine, and gave materials for the code of Spanifli jurifprudence, termed the forum jiuJicufn, or the fiiero juzgo; a circumflance which feems to prove their authenticity, and which the learned Mr Barrington muft have forgot, when he conceived the latter to be the moft antient colledion of laws in Europe. Objei'va^ tions on the Statutes, 3 J edit. p. 9. £c2 S E O- 220 A VIEW OF SOCIETY SECTION II. r-wn] (i) ' r I 1ERRA . ; . . . pecorum foecunda, fed plerum- ♦ que improcera : Ne armeatis quidem fuus honor, * aut gloria frontis : Numero gaudent : Eaeque /olae et grat'if- *■ fimac opes flint ^ Tacit, de Mor. Germ. c. 5. (2) My Lord Kaims afcribes to the meannefs of women, and to the difgrace in which they are held, their want of property in rude times. They appear, notwithftanding, to be in high e- ftimation in fuch times ; and their poverty, we fee, or their want of property, is no mark or confequence of their meannefs and difgrace ; but a refult of the nature of things. Sketches, vol. I. />. 203. (3) The eldeft fon, it would appear, came in place of. the fa- ther, and continued the family. ' Inter familiam,' fays Tacitus^ * et penates, et jura fucceffionum, equi traduntur : Excipit filius, * non ut cetera maxbnus natu, fed prout ferox bello et raelior.' De Mor. Gertn. c. 32. This teftimony in favour of the eldeft: IN EUROPE. 221 eldefl: fon, and the right of primogeniture, is the more ftrong, as being included in an exception to the general rule. I know that Sir Henry Spelman, in his GlofTary *, Mr Harris, in his Hillory of Kentt> Mr Lombard, in liis Perambulation of the fiime county :{;, and Mr Barrington, in his Obfervations on the Sta- tutes II , have given it as their opinion, that, in Germany, the fons fucceeded equally to the father ; and it is common to ac- count, in tliat way, for the origin of the ouflom of gavel-kifui ^^ which prevailed in Kent, and in other counties of England. The words, however, of Tacitus already cited are a demonflra" tion of the impropriety of thefe notions. It is true, notwithflandlng, that the authors under remark, found or rely upon another paflagc of the fame writer j but I conceive that the fenfe of it muft have efcaped them. The paf- fage is as follows. ' Pleredes fucccfibrefquc fui cuiquc libcri ; ' Et nullum teftamentum : Si libcri nc.n funt, proximus gradus 'in poirtfTioue, fratres, patriii, avunculi.' Dc Mor. Germ. c. 20. Here,. • Voc. Gavelctum. t' P- 457- + p- s?^. „ p. 115. 31! Edit. § * Cavclctum, Cjvc/kiiid.'] Prifca Anglo-Saxonum confuctiulo c Gcrma- 'nia ilciAta, qua onirics filii ex acquis portionibiis, pntris aileunt haercditatcm • (ut filiac folciK, prole mafcula tlcficicnte). Fratres fimilitcr dcfunilo fine fo» •"bole fr«trc, ct nullo cxiflcnic frntrc, fororcs paritcr,' S^el/n, ChJ[. p. 239^.. 323 A VIEW OF SOCIETY Here, in reality, even allowing that the Germans had been ac- quainted with a property in land, which they conftantly fup- pofe, there is no mention of the equal partition of it. The chil- dren muft have fucceeded fingly and in courfe ; in defe£t of thefe, the brothers ; and, on the failure of them, the uncles. This paifage, and the former, throw mutually a light to one another ; and, from the confideration of both, I think it clear, that the meaning I impute to them is juftly to be infer* red. A difficulty, however, more knotty prefents itfelf. As land Was among thefe nations the property of the ftate, to what does Tacitus allude in the pafTage before us ? Conjedtures are to be hazarded where proofs are wanting. In general, I fhould fancy, he muft refer to moveables ; and, perhaps, he may allude to the German houfe and the endofure conneded with it. ' Colunt dif- * creti ac diverfi ut fons, ut campus, ut nemus placuit * Suam quifque domum fpatio circumdat.' Tacit, dc Mor. Germ, c. 1 6, At leaft, it is not unnatural to think, that the cabin and hs enclofure, as the ideas of property evolved, might be confider- ed as appertaining more peculiarly to individuals, and that thence continuing in their polfeffion, they might go to their ^pofterity. It IN EUROPE. 22,3 It was thus in other rude co:nmunities. Among the Hin- doos, it appears, by very curious bvvs, that the landed property firft acquired by individuals, was what is termed ' Tiie glebe- * lands, houfes, and orchards ' Code of Gent 00 laxvs, ch. 3. In Otaheite, and in Ealtern Ifland, or Davis's Land, there were plantations laid out by line, of which the beauty ftruck Captain Cook, Thele, he conj-dures, were the private property of the chiefs. Voyage round the World, vol. i./».»294. His conjeclurc is very folid. Thefe Ipots correfpond to the enclolure of the German houle, and to the glebe-lands of the Gentoo. (4) ' Dot em non uxor marito, fed uxori mar'itus orfcrt.' Tacit. de Mor. Germ. c. lb. This remarkable nfage continued after the German nations had made conquelts, and is every where to be met with m their laws. • Non amplius unufquifque in puellae vel mulieris nomine Jo- * /// titulo conterat vel conlcribat, quam quod dccimam partem ' rcrum luarum effc cunlliterit.' LL. JViJigoth. lib. 3. tit. 1. /. 5. ' Quia muliercs, quibus dudum concefium fuerat de fuis do- * tibus judicare, quod voluilTent. quacdam reperiuntur, fprctis fi- * liis vel nepotibus, eafdem dotes illis conferrc, cum quibus conlli- * tcrit ncquitcr cas vix^lTe : Idco ncceflc eft illos exinde pcrcipere ' commodum pro quibus creandis fuerat adumptu'ii conjugium. ' Dcni(][uc -24 A VIEW OF SOCIETY ' Denique conflituentes decernimus, ut cle dote fua mulier habens * filios vel nepotes, leu caufa mercedis eccleiVis vel libertis con- * ferre, five cuique voluerit, non amplius quam de quarta parte ' poteftatem habeat. Nam tres partes legiiimis filils aut nepoti- * bus, feu fit unus five forfitan plures, abfquc dubio relitlura ' eft. De tota interim dote, tunc facere quid voluerit, erit mu- * lieri poteftas, quando nullum legltiinum filium, filiamve, nepo- * tern vel neptcui fu[«rftitem reliquerlt. Verum tamen faemi- * nas, quas contigerit duobus viris aut amplius nubere, atque ' ex eis filios procreare, noa cis licitum erit dotem ab alio nia- ' rito acccptam, filiis aut ncpotibus ex alio viro gcnitis dare : Scd * unufquifque filius filiave, nepos aut ncptis, ex ipfa linea pro- * creati, dotem quam avus aut pater illorum concefierat, poft muli- * eris obitum per omnia confcquuturi fiint.' LL. Wifigotb. lib, 4. * ///. 5. /. 2. ap. Lindc7ibrog. * Mulier fi ad alias nuptias ti'anficrit, Omnia perdat : Doti ' tamen fua quam a marito fuo acceperat, quamdiu vixerit, uta- * tur, filio proprietate fervata.' LL. Bwgund. tit. 62. /. 2. Sec farther LL. JViftgoth, lib. 3. tit. z. /. 8. lib. 5. ///. 2. /. 4. LL. Ripuar. tit. 37. LL. Saxon, tit. 7. LL. Longobard. lib. I. tit. 4. The curious reader may alfo confult the forms or writings which confiituted the dos, or dower. Form. Solcn. ap. Baluz. ii'ju. 2. See /Appendix, No, i. Jft IN EUROPE. 225 In England, the dodrines and hlftory of the dos are to be feen in Glanvily Bradon, Britton, in the book called Fleta^ and in Littleton. ' Dos^ or doivery lays my Lord Coke^ ' in the * common law, is taken for that portion of lands or tenements ' which the wife hath for terme of her life of the lands or te- * nements of her hufband after his deceafe, for the fuftenance * of herfelfe, and the nurture and education of her children.' I. In/lit. p. 21. It is curious to find in the woods of Germany, a rite or cuftom that makes a figure in all the laws of Europe. My Lord Kaims, whom I am alhamed to contradid fo often, has ftrangely mifunderftood this fubjed. ' In Germany,' fays he, ' when Tacitus wrote, very few traces remained of poly- * gamy. Severa illic matrimonia, nee uUam morum partem ' magis laudaveris ; nam prope foli barbarorum fingulis uxori- * bus contenti iunt, exccptis admodum paucis, qui non libidinc, * fed ob nobilitatem, plurimis nuptiis ainbiuntur. When poly- * gamy was in that country fo little pradiled, we may be cer- * tain, the purchafing ivives did not remain in vigour. And * Tacitus accordingly, mentioning the general rule, dotem non * uxor marito, fed uxori maritus ofFert, explains it away by ob- * ferving, that the only dos given by the bridegroom, were mar- * riage-prefents, and that he at the fame time received marriage- * prcfcnts on the bride's part.' Sketches., vol. \. p. 192. It would pain me to open up, with minutcnefs, all the niif- takcs which arc croudtJ into this paflagc. I fliall jufl glance Ff a- /v- \ ' 226 A VIEW OF SOCIETY at them. Polygamy, in fad, never prevailed among the Ger- mans ; and ot this, the treatife of Tacitus, and the laws of the barbarians after their conquefts, are the moll Uriking and deci- five proofs. See Ch. i. Sa^. 3. Nnte 14. Neither were wo- men bought in Germany, nor does Tacitus affirm, that the dot confifted of mairiage-prefents. The interchange of prefents by the narried couple and the dos, were feparate and diftmQ. The intention of the former 1 have already explained. See Ch. i. Se^. 3. Note 2. What the latter was, 1 have juft now laid ; and I appeal to the authorities which fupport my notion. The fource of all thefe errors is, the idea entertained and in- culcated by this eminent writer, that the women, in rude times, are of fo little confideration, that they are objedls of traf- fic. Hence he conceived, that the dos muft be the pur chafe- money of the wife. That it was not fo, we have feen ; but, as the opinion has been pretty generally received, and has got the fanc- tion of Profiflbr Millar, as well as that of his Lordfhip, it is proper to confider its propriety with fume attention. Though it every where appears, from the examination of the barbaric laws, and from the books otthe earliell lawyers, that the dos or doiver was the pruvifion allotted tor the maintenance of the wife, it is not to be denied, that, in autient legal m')nu- ments, there occur the expreffions donatio nuptia/is, pretium uxonsi et pretium dotis. And thefe, I perceive, have contribu- ted to induce Mr Millar to go into the fancy, that antiently, in Europe,. IN EUROPE. 227 Europe, the dos was the price, or purchafe-money of the wife. Obfer'uatio7is on the diftin6lion of ranks., p. 30. 2. eJtt. If, how- ever, I am not very widely miltaken, thefe exprefli )ns apply, in no cafe, to the purchafe-money of the wite ; but exprels the pro- vifion made for her, in the event of the death of the hufbaad. This, I think, appears from the laws of the barbarians. * Si qua mulier duntaxat Burgundia port mariti mortem ad fecun- * das aut tertias nuptias, ut adlolet fieri, fortafle tranfierit, et iilios * habuerit, ex omni conjugio, donationem iiuptialetn dum advivit * ufu frudlu poflideat : Port: ejus mortem ad unumquemque fi- ' Hum, quod pater ejus dederat, revertatur : Ita ut mater nee do- ' nandi, nee vendendi, nee alienandi de his rebus quas in dona' * tione nupliali accepit, habeat potellatem.' LL. Biirgtmd. tit. 24- It is faid of one Folco, that he gave to his wife Gerlint all he had ; ' Omnia fua propter pretium in mane quando furrexit.' Giannone^ Hijl. of Naples y •vol. \. p. i'jj[. But this was not the price or value of the wife. It was the morgengabe, or morning- prefent, about which there is fo much in the barbaric laws, and of which the extravagance was fo great, that regulations were made to reprefs it. As to the expreflion, pretium dotis^ we meet with it in the fol- lowing ordinance. ' Si puella ingcnua ad qucmlibet ingenuum F f 2 * vcnerit 228 A VIEW OF SOCIETY ' venerit ea conditione, lit eum fibi marltum acquirat, prius cum ' puellae parentibus conloquatur ; et fi obtinuerit, ut cam uxo- * rem habere poflit, preciutn dotis parentibus ejus, ut juftum eft, ' irrpleatur.' LL, Wifigoth. lib. 3. tit. 1. I. 8. The dower, it feems, was at times given to the parent, or to the relation of the W'-»man, to be kept for her ufe. This is fully explained by ttie regulation which follows. * Dotem puellae traditam pater exi- ' gendi vel confervandi ipfi puellae habeat poteftatem. Quod fi * pater aut mater defuerint, tunc fratres vel proximi parentes, * dotcm quam fufceperint, ipfi conforori fuae ad integrum reflitu- * ant.' LL. Wifigath. lib. 3. tit. i. I. 6. ap. Lindenbrog. I know that the cuftom of prefenting money at marriages came to prevail among the German and Gothic nations, and among the Franks more particularly. In Fredegariiis-, for example, we read this defcription of the efpoufals of Clotildis. ' Legati ofFe- * rentes Jolidum et denarium, ut mos eft Francorum, earn partibus * Clodovei fponfant.' Geji. Franc, c. i 8. Let us not, however, be deceived. Here no purchafe was made. The money pre- fented was only the fymbol of a contrad. This is illuflrated by the Arra niiptiaUs of the Wifigoths. ' A die latae hujus legis * decernimus, ut cum inter ens qui difponfandi funt, five inter e- * orum parente:, aut fortafle propinquos, pro fili()rum nuptiis * coram teftibus praecefferit, definitio, et annulus arrarum * no- ' mine * y^rrhs or arret \r\ France, earneft in England, and arles in Scotland, ftill ei* prefs the money aaY In a learned work, entitled, k Droit public de France eclairci par ks monumens de rontiquite, we meet the following notices, which are authenticated from records. ' Mathilde Comtefle d'Artois eut feance et voix dcleberativc * comme les autres Pairs de France, dans le proces criminel * fait a Robert Comte de Fiandres. . ' Jeanne fille de Raymond Comte de Touloufe prcta le ferment, * et fit la foi et hommage au Roi de cette pairie. ' Jeanne fille de Bauldouin fit ferment de fidelite pour la pairie * de Fiandres. Marguerite fa foeur en hcrita et aflifta comme pair * au celebre jugement des pairs de France, donne pour le Comte \de Clermont en Beauvoifis.' Bouquet, p. 338. See farther Briijfely uf age general des fief s, liv. 2. ch 14. In England, in the reign of Edward III. there were fummon- ed to parliament by writ ad colloquium et traclatum by their proxies, Mary Countefs of Norfolk, Alienor Countefs of Or- mond, Anna Defpenfer, Philippa Countefs of March, Johanna Fitzwater, Agncta Countefs of Pembroke, and Catharine Coun- tefs of Athol. Gurdon's IlijL of the High Court of Farliaificiit, vol. I. p. zoz, Parliam. Summons, 26^, Hha (13) The 244 A V I E W O F S O C I E T y (13) The ornaments of the mother went early by facceiTion to the duigluers ; and, from the laws which prove this peculi- arity, it is alfo to be inferred, that the paflion of the women for drefs was keen and ftrong. ' Ornamcnta et veftimenta matronalia ad filias, abfque uUo ' fratris fratrumque confortio, pertinebunt.' LL. Burgiind. tit. 5^- ^- 3- ' Mater moriens filio terram, mancipia, pecuniam dimittat ; ' filiae vero fpolia colli, id eft, murenas, nufcas, monilia, inau- ' res, vertcs, armillas, vel quidquid ornamenti proprii videbatur ' habuiffe.' LL, Angl et Werin. tit. 6. /. 6. (14) * Si qu'is propter libidinem VihersLe manum injecerit, aut virgin! feu uxori alterius, quod Bajuvarii horgrift vocant, cum vi. folid. componat.' LL. Baivvar. tit. 7. /. 3. * Si indumenta fuper genucula elevaverit quod humlizorun * vacant, cum xii. folid. componat.' Ibid. I. 4. • Si autem difcriminalia ejecerit de capite, Wultworf dicunt, * vel virgini libidinofe crines de capite extraxerit, cum xii. fol. ' componat.' Ibid. I. 5. «Si IN EUROPE. 245 ' Si qua libera faemina virgo vadit in itincre fiio inter duas ' villas, et obviavit earn aliquis, et per raptum denudat caput e- ' jus, cum vi. f(.l, compouat. lit fi ejus veftimenta levaverit, ut • ufque ad genicula denudct, cum vi. fol. comnonat : Et fi eam • deuudaverit ut genitalia ejus appareaut, vel pojleriora-^ cum xii. • fol. componat.' LL, Maman. tit. 58. /. i. ' Si quia liberam foeminam per njcrenda ejus comprehende- • fit iiii. folid. componat, et duos f^lidos pro freda.' LL. Frifion. tit. 22. /. 89. See tarther LL. Sal. tit. 22. LL. Longobard. lib. 2. tit. 55. /. 16. One muft fmile at the fimpllcity of thefe regulations. They are proofs, notwithftanding, of the reipe^St entertained for cha- ftity. They exprefs, immodeftly, the delicacies of a rude, but retining people. They offend virtue, in the very att of promo- ting it. Similar inftitutions or regulations, may be feen in the code of Gentoo laws ; but, as tbey are exprefled with a rtill greater free- dom of language, 1 avoid to give any examples of them. Cb. 19. SEC- 246 A VIEW OF SOCIETY SECTION III. (0 ' "T^^^^^^^^^^ regionum atque pagoruin inter fuos jus 1_ ' dicunt, controvcrfiafque minuunt.' Caefar^ de Bell. Gall. lib. 6. c. 22. See alfo Tacit, de Mor. Germ. c. 12. Thefe principes became lords or barons, after the conquefts of the barbarians, and, in this laft ftate, continued and improved the privileges they had previoufly poflTefled. Difftrt. concerning the Antiquity of the Englijlo Conjlitution, Part. 3. In Germa- ny, there was probably no appeal from their decifions. For, in the German communities, it is faid, there was no common magiftrate. ' Nullus communis eft magiftratus.' CaeJ'ar, ibid. The judging, without appeal, was exercifed in all the Gothic kingdoms by the higher divifion of the nobility. They had the high and the lozv juRicc, the j'ifiice haul et has, alte et bap. It would lead to details improper in this place, if I fhould at-^ ten.pt to explain t'..e origin and growth of the different privi- leges IN EUROPE. 247 leges of the nobles. But I may hint my furprifc, that thefe topics, fo full of curiofity, have lb little atcraded our antiquaries and lawyers. The jurifdu'^ion and powers exercifed by the great, form a remarkable rtep in the progrefs of the European governments. Loyfeau, indeed, and many French writers, niyke an eafy difcuffion of this matter, by affeding to treat them as encroachments on monarchy, or on the rights or kings. And Dr Robertfon has given his fandion to this opinion. Hijl. of Charles V. voL i . p. 60. A perfedion, however, of government, or of regal jurifdidion, is thus fuppofcd, in the moment of its rife ; a circumflance, contradidory alike to natural reafon and to ftory. Government is not perfed all at once: It attains not maturity but by (1 jw degrees. The privileges of the nobles were prior to its perfed ftatc. In fad, it was by the abolition of thefe that it grew to ftrength and ripencfs. The monarchies of Europe were com- pleted, when the high privileges of the nobility were deftroycd. But thefe privileges were exercifed before government was un- dcrllood, and before kings had afcertained their prerogatives. (2) An old writer, fpeaking of the greater barons or lords, has thele words. ' In omnibus tencnicntis fuis omnein ab jiili- * quo legalem habucrc juftitiam, videlicet, ferrum, /o/fuut jurcas, * et fimilia.' Cjivaftus Doiobcrn, uu. 1 195. np. Du dn^i\ voc. Top. ' Prodi tores 248 A VIEW OF SOCIETY ' Proditores et transfugas,' fays Tacitus of the old Germans, ' arboribus fufpendunt. Ignavos et imbelles, et corpore infames • coe7io ac palucle, inje£ta infuper crate, niergunl.^ De Mor. Germ, c. 12. This defcription has, doubtlefs, a reference to tlie Ger- man nobles or chiefs who prefided in the courts of the cantons and diftrids into which a tribe or community was divided. And, does it not call to one's mind the pit and gallows, or the right to determine de alto et bajfo of the feudal nobility ? The power of mercy, or the pardoning of a criminal after fentence has been pronounced againft him, is a curious circum- ftance In criminal jurifdidion. I fhould think, that it was ex- erted by the lord or baron in his dominions before it could be exercifed in a general manner by the fovereign. The connec- tion between the lord and the valTal was intimate ; and the felo- ny of the latter being chiefly an injury to the former, it might naturally enough be imagined, that he was entitled not only to forgive the offence, but to fufpend the punilhment. To his pro- per vaffals, the fovereign might alfo ad in the fame way. It was thus, in fad, in the Anglo-Saxon period of our hillory. For the king had then only the power of pardoning crimes as to hinifelf. But, on what principle did the fovereign begin to ex- ert the general prerogative of pardoning criminals, every where through the ftate, after condemnation ? The q-icflion is impor- tant, and might be argued with great fliovv, and much inge- nuity. But the narrow boundaries within which I mult confine niy IN EUROPE. 249 my remarks, admit not of either. I can only hint at my Idea, and muft not wait to infill upon it. When the territorial jurifdidions of the nobles were to decay, they loft the privilege of giving pardons, as well as the other advantages annexed to their fiefs. The judges who fucceeded them, were not to poflefs their prerogatives. Other, and more cultivated maxims of law and equity, had grown familiar. Un- conneded with the diftributions and the offices of juftice, but as peers, the nobles were to ceafe to interfere with law and bufi- nefs in their eftates or territories. In this condition, their prero- gatives could pafs no where but to the crown. That of mercy was to be fwallowed up with the reft. When regular courts were eredled, and when the barons neither levied troops, coined money, nor pardoned crimes, all thefe privileges were to be e.\- ercifed, exclufively, by the fovereign. All the members of the community were then under one head. The kingdom feemed as it were to be one great fief, and the people looked up to the fovereign as the only fuperior. The aQ of parliament which had the effe£t to abridge, for ever, the high prerogatives of the nobles, declares, ' That no perfon ' or peribns, of what eftate or degree fcever they be, from the ' firft day of July, which (liall be in the year of our Lord God ' 1536, (liall have any power or authority to pardon or remit * any treafons, murthcrs, manflaughtcrs, or any kind of felonies, I i ' what- 25© A VIEW OF SOCIETY * whatfoever they be ; nor any acccflfdrles to any treafons, mur- * thers, manflaughters, or felonies ; or any outlawries, for any * fuch offences committed, perpetrated, done, or divulged, or ' hereafter to be committed, done, or divulged, by, or againfl * any perfon or perfons, in any part of this realm, Wales, or to * the marches of the fame; but that the King's Highiiefs, his * heirs and fucce{r)rs. Kings of this realm, fhall have the ivhole ^ pozver and authority thereof, united and knit to the imperial ' crown of this realm.' Stat. 27. Henry VIII. c, 24. (3) Du Cange, Differt. 29. fur I'Hiftoire dc St. Louis. Bruffel, ufage general des fiefs, liv. 2. (4) ' Sufcipere tarn inimicitias feu patris feu proplnqui, quam * amicitias, neceffe eft.' Tacit, de Mor. Germ. c. z\. Hence the deadly feuds of our anceftors. Such is the ftate of manners in all rude ages. The American carries his friendfhips and his refentments to extremity, and delivers them as an inhe- ritance to his fons. He is the beft friend, and the bittereft ene- my. When he is difpofed to he hoflile, he knows how to con- ceal his fentiments : ' He can even affeit to be reconciled till he * catches the opportunity of revenge. No diflance of place, and * no length of time can allay his refentment, or protect the objedl: ' of it.' Europ. Settkm, in Anier. vol. i. p. 165. k •IN EUROPE. 251 It was in .confequence of the principle or right of revenge, that the Greeks made it a maxim of their creed, that the gods punifla the crimes of the wicked upon their innocent pofterity. It was a confequence of it, that, even in modern tim.es, jhofe in- clement and ungenerous laws were enacted, which taint the blood of a rebel, which dare to violate the facred rights of hu- manity, and to punlih a blamclefs progeny with penalties and forfeitures. (5) ' In Gallia, non folum in omnibus civitatibus, atque pagis * partibuique, fed pene ctiam in fingulis dom'ibiis, fci Clones lunt; ' earumque fadlionum funt principes^ qui fummam audoritateni • eorum judicio habere exiftimantur ; quorum ad arbitrium ju- ' diciumque fumma omnium rerum confiliorumque redeat.' Caefar^ de Bell. Gall. lib. 6. c. 10. After the Germanic conqueds, the vfords fa'ida, fe'uU fecth^ 2iViAfcud, came to expreis the hoftilitic'S of the combination of kindred, who revenged the death of any perfon of their blood, againft the killer and his race. In the Anglo-Saxon period of our hiflory, thefe faiTlions and hoflilitics were prevalent to an uncommon degree. And, what is worthy of obfcrvation, when a perfon was outlawed, and could form no combination of this fort for his prctcdion, but might be put to death by any indivi- dual who met him, llic lum Ji eudks-man, cxpreflcd his condi- tion* ' Talem,' fays Braclori, ♦ vocant Anglici Utlaughe, ct a- I i 2 ' lio 252 A VI E W O F S O C I E T Y ' lio nomine antiquitus folet nominari, fcilicet Frendles- ' MAN.' Lib. 3./). 129. AbnuWhe year 944, King Edmund, with a view of reprefling the violence and pernicious tendency of fuch confederacies, enaded the following method for their regulation. ' Memet, et nos omnes taedet impiarum et quotidianarunt • pugnarum quae inter nos ipfos fiunt, ct propterea in hunc mo- ' dum ftatuimus. Si quis alium pofthac interfecerit, folus cum ' interfcifti cognatis faidam gerito, cujufcunque conditionis fue- ' rit, ni ope amicorum integram weram intra 12 menies perlol- ' verit. Sin deftituerint eum cognati et noluerint : Volumus ut ' illi omnes [praeter rcurr] k faida fint liberi, dum tamen, nee ' vidtum ei prebcant, nee retugiuin. Quod fi quis hoc fecerit ' fuis uninilius apud rtgem muldator, et cum eo quern defti- ' tuit nupcr, faidam jam luftineat propinquorum interfedi. Qui ' vero ab aho cognatorum quam a reo iumpferit vindidam, fit ' in faidd ipfuis regis et amicorum luorum omnium, omnibuf- ' que bonis fuis pleditor.' LL. EdiJiuncl. ap. Spelm, GloJJ. p,. 209. The method of compounding, or of buying away the refent- ment of the injured kindred, is thus defcribed by the fame prince. ' Prudentium. IN EUROPE. 253 ' Prudentium eft faidas compefcere. Primo [de more genti- * um] oratorem mittet interfedor ad cognatos interfedi, nuncia- ' turum fe vellc eifdem fatistacere. Delude tradatur interfec- ' tor in manus oratoris, ut coram veniat pacate, ct de pjlvenda ' wera ipfemet fpondeat. Spnnfam folvi fatifdato. Hoc fa<£to, * indidetur mundium regis, ab illo dieufqueinai nodes, ct * collilhigii muldam depcndito ; port alias 21 nodes manbotam, ' et node 2t iequenti primam were folutionem numerato.' LL. Edvmnd. ap. Spe/m. Glojf. p. 210. et JVi/kins, p. 74. 75. Tranfadions of the fame nature, charaderlfe the criminal ju- rlfprudence of all infant nations. ' Criminal matters,' fays a moft acute and elegant writer, ' are generally compromifed a- * mong the Americans in the tollowing manner. The offender ' abfents himfelf ; his friends fend a compliment of condolence 'to thofeofthe party murdered. Prefents are offered, which ' are rarely refufed. The head of the family appears, who, in a * formal fpeech, delivers the prefents, which c^nfilt often of a- * hove fixty article?, every one of which is given to cancel fomc * part of the offence, and to offuage the grief of the fuffering * party. With the firft he fays, B_y this I rcmo've the hatchet ^ Jrom the zvoiind, and make it to fallout of the hands of him * ivho is prepared to revenge the injury ; with the fecond, / dry * up the blood of that ivound ; and lb on, in apt figures, taking ' away, one by one, all the ill confequences of the murder.' Europ. Set tie in- in America^ vol. \. p. 174, The 254 A V I E W O F S O C I E T Y The hoftilities and fadions of which I fpcak, were fiipported among the Anglo-Saxons, as among the Gauls and the Ger- mans, by the authority and countenance of the chiefs and the nobles. In the Norman times, the barons gave letters or man- dates of proteiflion to individuals, whom they were difpofed to fervc. Even kings gave obligations to abbeys and monafteries, by which they were bound to protect them againfl: violence of every kind. On the confideration of fines, they were even to remit their own animofities, and to protedl criminals from ju- llicc. See Appendix, No 3. The fame things had place in the other kingdoms of Europe. Men, weak, and without ftrcngtii, bought the afliflance and prote£lion of the ftrong and powerful. Du Cangc, voc. Siih>amnitw?i, Cafitalichw:. Form. Solcii. ap, Balitz. (6) After the beautiful difcovery of a m.ngiftrate, the violence of the injured is corrected ; and it is then, probably, that fines and compenfations for offences are invented, or at leaft eftablifli- cd. ' Nee implacabiles durant,' fays Tacitus, of the refentmenta of the Germans, ' lultur enim etiani homicidium certo armento- ' rum ac pecorum numero, recipitque fatisfadionem univerfa * domus.' De Mor. Germ. f. 31. Thcfe fines or compofition?, of wliich it was the obje£l: to fatisfy the revenge cf tlie relations of the perfon who had fuffer- cd, were originally fettled by their agreement with the offender, or, IN EUROPE. 255 or, by the difcretlon of the magiflrate. Afterwards they were fixed by ordhiances. The Anglo-Saxon laws, as well as thofe of the other barbarians, recount not only the ftated fines for par- ticular offences, but for particular perfons, from the prince to the peafant. When the delinquent could not pay the fine, which was to buy away, or to gratify the refeiitment of the in- jured family, the law, before it was i;"uprovcd, delivered him o- ver to their refentment, and the wild ftate of nature revived a- gain. Compofuions of this kind were known, antiently, in Europe, under a variety of names. See in the Glofl'aries, Wera, Fciida, CompofuiQ, I'Vergeldutn, &c. The cxa£lion of fines to the injured, among the antient Ger- mans, I confider as a proof that, in criminal matters, they had proceeded to appeal to a judge. I therefore differ from Dr Ro- bertfon, when he obferves, that, ' among the antient Germans, ' as well as other nations in a fimilar ftate of fociety, the right * of avenging injuries was a private and perfonal right, excrci- ' fed by force of arms, without any reference to an umpire, or * any appeal to a magiftratc for decifion.' Hijl. of Chdrks V. vol. I. p. 274. ■ In fad, it was not even folely the fine to individuals that was known among the Germans. They had advanced much farther in ciiminal jurifprudcnce. It was thought that the criminal, bcfidc ofFcndirg a particular family by the injury done to any ot- 256 A VIEW OF SOCIETY of its number, bad alfo offended tbc fociety, by breaking its peace. A fine, likewife, was, on tbis account, exaded from bim, aiid went to ibe pubbc or bfc. And tbus Mr Hume, too, is miftaken, when he will not allow that the Germans had made this lU'p towards a more cultivated life. Hijl. of Eng- land., vol. I. p. 154. Thefe different fines, the compofition to the individuals, and that to the public, are pointedly and beautifully diftinguifhed in the following paffage of Tacitus, Having mentioned the me- thods in which the German nations punifhed the greater crimes, he adds, ' Levioribus delidis, pro modo poenarum, equorum ' pecorumque numero convidi muldantur. Pars muldae Regi * vel Civitati : Pars ipfi qui vindicatur, vel propinquis ejus, ex- ♦ folvitur.' Be Mor. Germ. c. 12. It is impoffible for an au- thority to be more exprefs or fatisfadory againft thele eminent writers. After the conquefts of the Germans, the fine for difturbing the public peace was exaded under the name of fredian ; and, it is obfervable, that a portion of the profits of it came to con- ilitute the firft falary of judges. The biographer of Charles V. I am fenfiblc, profeffing to be guided by Baron Montclquieu, denies that ' the fredian was a ' compenflition due to the community, on account of the public * peace ;' and confiders it as ' the price paid to the magiftrate ♦for to IN EUROPE. 257 * for the protedlon he afforded againft the violence of refent- * ment.' Vol. i.p. 300. This notion feems not to agree with his former opinion, as he conceives that the frediim was paid in the age of Trtfi/WJ *. And I obferve lie has alfo affirmed, that the fine to the injured family may, in like manner, be tra- ced back to the antient Germans t» which appears to be another inconfiftency with his former declaration. But, waving any confideration of thefe inadvertencies, 1 think there is nothing more evident, than that the fredum was originally paid to the fife, or to the fovereign, for the breach of the peace. The fol- lowing arguments are ftubborn, and perhaps conclufive. • JFrfJ/zwi regal is compofitio Pacis.' Glojf. Vet. ap. Lindenbrog. p. 1404. Hoc quoque jubemus, ut judices fupra nominati, five fifca- les, de quacunque libet caufa freda non exigant, priufquain fa- * cinus componatur. Si quis autem per cuplditatem ifta tranf- * greffus fuerit, legibus componatur. Fredum autem non illi ju- K k ' dici • ' A certain Aim, called a frtduni, was pniJ to the king or ftatc, as Tacitus «- • prefles it, or the Fifcus, in the language of the barbarous laws' vol- i p- 300- ■}■ ♦ The payment of a fine, by way of fatisfa^ d them, were not familiar by name ill thole times; yet, 1 cannot but agree with Mr ticldcn, that tlic ienfr 264 A VIEW OF SOCIETY fenfe and fubftance of them were then fully known. The An- glo-Saxon earls, who had their earldoms to their own ufe, had regal jurifdidtion, and the king's >vrit of ordinary juftice did not run in their dominions. Such, for example, was Etheldred Earl of Mercland, under King Alfred, and his fon King Edward. Scldeiiy Tit. Hon. part. 2. ch. S-fc^- 8. Dijjert. concerning the An- tiq. of the Engl. ConJlUut ion, part 3. After the Norman invafion, many of the higher nobility were exprefbly known as Earls-Palatine. Chefhire was a palatinate, and poifeired by its earls, ad gladmm, ficut ipje rex totatn tene- bat Angliam ad coronam fuam. The antient Earls of Pembroke were alfo palatines, being doviini totius comitatus de Pern- hrocht and holding totiim regale infra praecin^utn comitatus fui de Pemhroch. 7 his is the language of records. The like regality was claimed in the barony of Haverford. The bifhops of Durham had, antiently, ovinia jura regalia^ et omnes libertates regales infra libertatem fuam Dunelmenfevi. The archbifhop of York had a regality in Hexham, which, antiently, was ftyled a county-palatine. 'I he biflioprick of Ely was a palatinate, or a royal franchife. The earldom of Lancafter was created palatine in the reign of Edward III. Hugo de Belefme Earl of Shrew- fbury, under William II. had the title palatine. The fame thing is mentioned of John Earl of Warren and Surrey, under Ed- ward III. And Humfrey de Bohun, Earl of Hereford and Eflex, had a regality within the honour of Breknou. Spelman Glojf. de IN EUROPE. 265 de Comite Palatine, Selden, tit. Hon. part. 2. ch. 5. feci. 8. Ma- dox, Bar. An^L -p. 150. Camden^ Brit an. />, 661. 935. (9) Marculphus has preferved a form or writing by which the converfion of allodiality into tenure took place. The inquifitive reader may confult it in Bohiz. Capit. Reg. Franc, torn. 2. p. 382. 383. with the notes of Hieron. Bignon. p. 895. 898. The agreement of an allodial proprietor and the fovereign, or the feudal lord to whom he was difpoled to grant his property, with the view of fubmitting it to tenure, direded the nature and peculiarity of the obligations to which he was to yield in his new fituation. In confequence of the protection of a fuperior, he was generally to give his military fervice, and all the aids or incidents of fiefs. At other times, however, he was only bound not to lake arms againft the lupenor, but to remain at peace, without any connexion with the enemies of his lord, and with- out the burden of the feudal incidents. He was fimply to be bound to homage, and a paflive fidelity. It is contended for, indeed, ftrenuoufly, and at great length, by Monfr. Bouquet, that the greater and Lifer jurifdidions were inherent in allcx-liality. Lc droit Public de Fiance. Dr Smith, in his nioft ingenious Inquiries concerning the Wealth ot Na- tions, gives his fuffiage tor the lame opinion. And Dr Ro- L 1 bcrilon,, 266 A VIEW OF SOCIETY bertfon, notwithftand'mg what he has fald concerning fiefs, is, in fome meafure, dilpofed to it. Hijl. of Charles V. 'vol. \. p. 303. If fupreme jiirifdidion, however, and eminent prerogatives were connected with allodiahty, it fcems altogether inconcei- vable, why its pofleflbrs fliould have converted it into fiefs. Per- liaps thefe writers have confounded with allodiality the feiidiim Frnncum, or honoratum, which exprefled a condition of it after its converfion into feudality. ' Ut omnia teneant,' fays an old monument cited in Du Cangc, ' ab Abbate et fuccefibribus in ^Jrancum feodum five alloJium, ut pro his homagium francum ' nobis Abbati et fuccelToribus noftris, amplius facere teneantur.' • Haec omnia,' fays another charter cited by him, ' habeo et • teneo a te D. Raymundo Comite Melgorii ad feodum francum ' et hoJiorafum, pro quibus omnibus prefcriptis facio vcbis homi- • nium et fidelitatem.' Du Catige, voc. Feudum francum et ho- noratum. ' Les fiefs d'honneur^ fays Salvaing., ♦ font ceux qui • ont tellement conferve la nature de leur origine, qu'ils nc ' doivent au feigneur que la bouche et les mains, fans aucune • charge de quint, dc rachat, ni d'autre profit quelconque.' ch. 3. It is alfo well known, and might be illuftrated by a variety of proofs, that allodial proprietors were fo little attended to, and adorned with diftindions, that they could not, without the con- fent of the king, build, for their protedlion, a houfe of ftrength or a caftle. Briijfel^ ufage-general des fefs, vol. i./*. 368. Yet this IN EUROPE. 267 this privilege was originally of fo little account, that It was en- joyed indifferently by every feudal lord. (10) Du Cangc, voc. Gruarium, Pedagium, Rotaticum, Feudum Nummorum, Feudum Soldatae. Bruffel, Ufage-general des fiefs, liv. I. ch. I. fed. II. Affifcs de Jerufalem, avec des notes, par Thaumafliere, /». 171. 268. L 1 2 SEC- 268 A VIEW OF SOCIETY E C T I O N IV. D (i) * I "^UCES ex virtute fumunt. . . . Duces exemplo ' potius quam imperio, fi prompt!, fi confpicui : * Si ante aciem agant, admiratione praefunt.' Tacit, de Alor. Germ. c. 7. ' Ubi quis ex principibus in concilio fe dixit ducem * fore, ut qui fequi velint profiteantur; confurgunt ii qui et cau- ' fam et hominem probant, fuumque auxiliuin pollicentur, atque * ab multitudine collaudantur.' Caefar^ de Bell. Gall. lib. 6. c. 22. (2) ' Nihil autem neque publicae neque privatae rei, nifi ar- * mati agunt. Sed arma fumere non ante cuiquam moris, quatn * civitas iufFe£turum probaverit. Tuiu in iplo confilio vel prin- ' cipum aliquis, vel pater, vel propinquus Icuto irameaque juve- * nem ornant.' Tacit, de Mot: Gertn. c. 1 3. ' Thefe military youths,' fays Cavideny ' were called in their ' language Knechts^ as they are in ours.' Jntrod. to the Britannia^ p. 245. (3) IN EUROPE. 269 (3) * Patri Regi Rex Ludovicus Ingelheim occurrit, indeque * Rcncfbjrg cum eo abiit, ibique en/e jncn appetens adolefcentiae * teii.poia, accin^us ejL^ Vtt. Liid. P«, an. yyi. Ut King A- thelltane there is this mention in Malmsbury, ' Nam et avus * Alfredus profperum ei regnum imprccatus fuerat, videns et * gratiofe complexus fpeciei fpedatae puerum, et gcftuum ele- * gantium : Quern etiam premature militem fecerat donattim ' chlamyde coccmea, gemmato baltheo, enfe Saxonko, cum vagina * aurea.'' Lib. 2. ' Henrico nepoti fuo David Rex Scotorum vz- * rilia tradidit arma.^ Hen. Huntingdon^ lib. 8. See Du Cange, ^oc. Arma. Other particulars, expreflive of the antiquity of knighthood, may be feen in the Differtations on the hiftory of St. Louis. And, with regard to our Saxon anceftors in particular, Mr Sel- den has found frequent mention of knights in the charters of that age. Titles of honour., part 2. cb. 5. Mr Hume, there- fore, reafons hypothctically, when he admits not of chivalry in the Anglo-Saxon times. Appendix, 11. The addition Sir to the names of knights, was in ufc be- fore the age of 1 dvvard I. and is from Sire, wliich in old French fignifies ftignieur, or lord. Though applicable to all knights, it ferved properly to dillinguifli thofe of the order who were not barons. i o knights-baronet, who arc a modern inftt- tution, and no part of the antient chivalry, the addition Sir is granted 27© A VIEW OF SOCIETY granted by a claufe in their patents of creation. AJhmole on the Garter^ ch. i. The moft honourable method of receiving knighthood was from the fovereign. But every poffeflbr of a fief could beflovv it ; and one knight could create another. ' Eorum,' fays Spel- man, • fuit militem facere quorum fuit feodum dare.' Dijfert. de militey ap. Reliq. p. i8o. • Tout chevalier,' fays St. Palaye, *a- * voit le droit de faire chevaliers.' Memoires fur Pancieniie che- 'ualerie^ torn. i. p. 70. A king could receive it from the hands of a private gentleman. Its value may be remarked in the following peculiarity. ' Sci- ► tis,' faid a Lombard king to his courtiers, ' non effe apud nc6 ' confuetudinem, ut regis flius cum patre prandeat^ nifi prius a * rege gentis exterae arma Jujcepent.^ Paul. Diac. lilu i. ap. Honore de Sa'inte Marie, dijfett.jur lacbevalerie, p. 182. ' Libe- * rosfuos,' faid Caefar of the Gauls, ' nifi quum adoleverint, ut * munus militiae fuftincre poflint, palam ad fe adire non patiun- * tur ; filiumque in pucrili aetate in publico in confpeclii patris. * ajffijlcrc, turpe ducunt.' De Bell. Gall. lib. 6. t, 1 8. •■ Dans Ics premiers temps,' fays St.. Palaye, ' la plus illuftce ' nailTance ne donnoit aux nobles aucun ra)ig perjonnel, a moins ' qu'iis n'y euffent ajoute le litre ou le grade de chevalier. * Jufqu' alors on ne Its confideroit point comme memhres de ' l^et-at-y IN EUROPE. 271 * fetat, pulfqu' lis n'en etoient point encore les foutiens et ks * defenjeiirs : Les Ecuyers appartenoierit a la wwi/5« du maitre ' qu' ils fervoient en cette qualite j ceux qui ne I'etoient pas en- ' core, n' appartenoient qu* a la mere de famille dont ils avoient ' recu la naiflance et la premiere education.' Tom. i. /». 298. Tacitus^ having defcribed the ceremony of Invefling the Ger- man with arms, adds, ' Haec apud illos toga, hie primus juventae ' honos, ante hoc domus pars videntur, mox re'ipuhlicae.^ De Mor. Germ. r. 13. This tendency and concurrence of cifcumflances is ftriking ; and to thefe inflitutions we may trace the contempt with which the rights o^ minors, both of high and low condition, were treat- ed, in the middle ages. To be in minority was to be nothing. Before his majority, or the inveftiture of arms, the individual did not feem a citizen or a fubjcd. (4) ' Virtutem proprlum hominis bonum : Deos fortioribus * adell'e.' Tacit. Hijl. lib. 4. c. 57. (5) * Eft et alia obfervatio aufpiciorum, qua gravium bellorum ' eventus explorant. Ejus gcntis, cum qua helium eft, captivum * quoquo modo interceptum, cum clcdo popularium fuorum, * patriis quemque armis committunt. Vidoria hujus vel illius * pro praejudicio accipitur.' Tacit, de Mor. Germ. c. 10, An 272 AVIEWOFSOCIETY An inftance of the duel is defcrlbed in Zw/, lib. 28. c. 21. And the prevalence of this mode of trial is mentioned by Fater- culusy lib. 2. c 118. It was by fingle combat that the Celtic and Gothic nations decided the fucceffion to offices, when the candidates were numerous and of equal merit. This was lea- ving it to the Deity to determine their pretenfions. It was in this manner, that, among the Gauls, the place of the fovereign Druid was fupplied, in cafes of doubt. ' His autem omnibus * Druidibus praeeft unus, qui fummam inter eos habet audlorita- * tem. Hoc mortuo, fi quis ex reliquis excellit dignitate, fuc- ' cedlt. At fi funt plures pares fuffragio Druidum adlegitur : * Nonnunquam etiam de principatu armis contenJunt.' Cuejar, de Bell. Gall. lib. 6. c. 12. This form of deciding controverfies and difputes, continued to prevail after the conquefts of the barbaric nations ; is to be feen every where in their laws ; and became an important ar- ticle in the jurilprudence of the middle times. The following ordinances illuftrate its ufe and purpofes. ' Qui terrain fuam occupatam ab altero dixerlt, adhibitis ido- * neis teftibus, probat earn fuam fuifle : Si occupator contradixe- ' rit, compQ dijudicetur.^ LL, Saxonum, tit. 1 5. * Si quis Adalingum occiderit DC. fol. componat. Qiii libe- rum occiderit, CC. fol. componat. lit de utroque fi negaverit, '' cmn IN EUROPE. ^73 * cum xii. juret, aut in campum exeats iitrum ille volucrit, ad * quern caufa pertinet.' LL. Jn^l. et Werinor. tit. i. ' Qui domum alterius noftu incenderit, damnum tripio farciat, * et in fredo lolid. Ix. aut ii negat, cum uudccim juret, aut cam- * po decernat.' Ibid. tit. 8. ' Si aut calumniator, aut illc cui calumnia irrogata efi:, fe fo- * lum ad lacramenti myrterium perficiendum protulerit, et dixe- ' rit : Ego folus jurare volo, tu fi audes nega facramentum me- * um,et armis mecum contende. Faciant etiam illud, fi hoc eis ita * placuerit ; juret unus, et alius neget, et in campum exeant.* LL. Fnjion. tit. ii. /. 3. ' Si mulier in morte mariti fui confiliata fuerit per fe, aut per * fuppofitam perfonam, fit in potertate mariti fui de ea facere ' quod voluerit : Similiter et de rebus ipfuis mulieris. Ht fi ilia * negaverit, iiceat parentibus earn purgare aut per facranientum» * aut per pugnani^ id e(i, per catnpionevi.'' LL. Lougobard. lib. i. tit. 3. /. 6. Even from rude times, it is obfervable, that this trial took place at the command of the magillratc. And, it is probable, that it was in a good meafure at his difcrction, whether it took effedt. If tt e truth was to be invcfligatcd by witntflTcs, fo that complete evidence appeared, and there was no room for doubt, M m the ^74 AVIEWOFSOCIETY the battle might be avoided. It was, however, much to the tafte oi martial times. The barbarians, alfo, believed firmly that pro- vidence adiially interfered in their affairs. And this abfurdity was encouraged by the Chriftian clergy, who, like the priefta of all religions, found an intereft in deceiving tlie vulgar. (6) The word nidering or JiUcrnig, was a term of difhonour among the Normans and Danes ; and, it is told by the hiftorians of William Rufus, that, on an occafion which required the fpeedy aid of his vaffals, including in his fummons, that thofc of them who negleded to repair to him fliould be accounted nideriiigy his ftandard was immediately crouded. Du Cange^ 'uoc. Nidering. To apply to a perfon the term arga among the Longobards, was to fay, that he was a coivard and a ivorthkfs fellow ; and this offence to his honour could not be pardoned. If the accufer perfifted in the affertion, the combat took place ; and, if he con- feffed his crime, he was fubjefled to a fine. LL. Longohard, tit. 5. /. I.. O^ arga, it is remarkable, that, in its original and proper fig- nification, it meant a perfon who permitted the infidelities of his wife. ' Proprie arga is dicitur,' fays Du Cange, * cujus uxor moe- ♦ chatur, et ille tacet.' Glojf 'vol. i . p. 319. Spelm. p. 40. A perfon of this kind was infamous in the extreme, and general!/ of, IN EUROPE. 275 of the vileft condition. Tlie word atcurbita had alfo this fenfe; and hence the French coucourJ, and our cuckold. Each of thefc terms, accordingly, in its enlarged acceptation, came naturally e- nough to fignify a mean., coxuardly^ 2S\\ fttipid felloiv. To have a caput cucurbitinum, was to be a block-head. And, from the conlulion of the proper fenfe of cucurbita, and its enlarged one, the infamy feems to have arifen which, to this hour, conftantly attends even an involuntary cuckold. It is thus, that even words operate upon manners. The point of honour in Sweden, in early times, is well illu- ftrated by the following law, which I give in the words of Stiernhook, whofe book ia not commonly to be met with. • Si dicat vir viro probrofum verbum : Non es vir viri compar, * aut virili pe^ftore : Ego vero fum vir [inquit alter] qualis tu. Hi ' in trivio conveniunto. Si comparet provocans, nee provocatus ; * talis efto [provocatus] fequior ut didtus fuit, ut qui nee pro fe- * mina ncc viro facramentalis cffe queat, inteftabilis : Si vero com- * paret provocatus, nee provocans, quam vehementiffime trine ' immani clamore exclamet, et fignum in terra radat, et fit vir * ille [provocans] eo deterior, quod verba locutus €ft, quae prae- ' flare non aufus fit. Si jam uterque coniparent, juftis inftrudi ' armis, et gadat provocatus, dimidio mulilae pretio [caedcs] * cxpiator. Si vero provocans cadit, imputet temeritati. Capi- M m 2 • talis -76 A VIEW OF SOCIETY * talis ei linguae fuae pefilantia, jaceat in campo inexpiatus.' T)e Jure Siwonum et Got hoi urn veUtJlo^ lib. 1. c. b. Among the antient Germans, in the age of Tacitus^ the point of honour was carried fo high, tliat a gamefter having rifk- ed and loft his liberty and pcrfon on the laft throw, fubmitted to voluntary fervitude, ahowing himfelf, though ftronger and younger than his autagonift, to be bound and fold by him. ' Ea eft in re prava pervicacia ; ipfi jidem vocant.' Tacit, de Mot: Germ. c. 24. The other words of the paiTage are : ' Ale- ' am quod mirere, fobrii inter feria exercent, tanta lucrandi * perdendlve temeritate, ut cum omnia defecerunt, extremo ac ' noviflimo jadu, de libertate et de corpore coiitendant. Villus ' voluntariam fervitutem adit : quainvis junior, quamvis robuf- ' tior, alligare fe ac venire patitur.' It is not foreign to the purpofes of this work, to remark, that the paffion for play followed the conqucfts of the barbarians ; that many ordinances were made to fupj-refs it ; and that, to this hour, it is a pohit of honour to extinguish game-debts. There is fumething interefting in this fubje^l, and I cannot leave it without ftarting a conjedure. The idea of borrowing under an obligation o^ repayment, was too cuUivated tor the Gcrnian gamelter. When he had loft every IN EUROPE. ^77 every thing *, he therefore ftaked his Hberty and his perfon. Having left his woods, he improved upon this ufage ; and, in- ftead of endangering his perfon, gave di pledge as a fecurity that he would pay his lofs. ' Wadta dabat.^ Lindenhrog. GluJJ. voc. Wadium. The ufage was not loft. ' En 1368,' fays a French hillorian, ' le Due de Bourgogne ayant perdu foixante francs a la • paume contre le Due de Bourbon, Meffire Guillauine de Lyon * et Meflire Guy de la Trimouille, leur laijpi^faute d'argent^fa * ceinture ; Laquelle il donna encore depuis engage au Cointe • d' Eu pour quatre vingt francs par lui perdu au meme jeu.' Le Laboiireur^ op. Saint Foix. torn, i . />. 343. The cuftom of pledges introduced by gaming, grew common in other tranfadlions, and in debts of every kind. From move- ables, which were the firft pledges, a tranfition was foon made to land. Hence the mortuwn-'uadium t, the pawn ot land, or the * It does not appear what the German ufually played for. It might be, fome- tiroes, the coins oi the Romans. ' Jam et pecuniam acciperc docuimus.' Tacit, de Mor. Germ. c. i 5. His chains and ornaments, utcnfils and iurs, were probably his common (lakes. f • It is called a dead-gage,' fays Cmvel; ' becaufc, whatfoever profit it yicldcth, yet ' it reJitincih not itfcl!' by yielding luth pnvfit, except the whole mm borrowed (?'• ' likewilc paid at the day.' The Jnlerl'rcter, voc. Marig.ige. 278 A VIEW OF SOCIETY the mortgage ; and hence alfo the legal do£lrlne of dl/lrejfes *. Such a mixture is there of whim and accident in the greater as well as the minuter precautions of civil polity ! (7) The forms of trial in the duel d^X. common law, and in the duel for points of honour, were diltin£t. This fubje<3; will be treated in the fequel. (8) * Genus fpe£laculorum unum atque in omni caetu idem. * Nudi juvenes, quibus id hidicrum eft, inter gladios fe atque in- * feftas frameas faltu jaciunt. Exercitatio artem paravit, ars de- * corem. Non in quaeftum tamen aut mercedtm. Quamvis * audacis lafciviae pretium eft, voluptas fpcdantium.' Tacit, de Mor. Germ. c. 24. 'There is a remarkable paflage in Procoplus with regard to King Toiilas, from which we may learn the dexterity which was exhibited in fuch military fports. 'Ipfe * ' Navii,.m et tiamui"] Captio, a Sax", naman, al. nyman capere. Voces prifci * fori, haec apud Scotos, ilia apud Anglos veteres uficatior : Res, bona, animalia, ' quae per diflrWior.evi capiuntur fignificantes : Hoc eft, ea quae a pofleflbre aufe- * runtur, legitimcque retinentur, mul£lae ve) pignoris nomine, quoufque id fecerit « vel praeftiterit, quod non fine injuria recufaverit.' Sfchn. Ghff. See farthjer thi *lher Chjfariat and Coke on Liltlchi:. IN EUROPE. 279 • Ipfe equo eximlo vedus, inter geminas acies armorum lu- *-duni fcite ludebat. Eqiium enim circumagcns ac refle£lens u- *^ trcque verfum, orbes orbibus impediebat. Sic equiians, haflam * in auras jaculabatur, eamque, cum tremula relabcretur, aripie- * bat mediam, et ex altera manu in alleram faepe trajiciens, ac *'dextere mutans, operam huic arti feliciter navatam oftendebat : * refupinabat kfc, et flexu multiplici nunc hue nunc illuc ita in- ' clinabat, ut appareret diligentcr ipfum a pueritia didiciffe fair * tare.' Lib. 4. c. 31. Thefe ideas make a figure even in t!ie paradifc of the Gothic nations. 'Tell me,' fays GangUr in the Edddy ' How do the ' heroes divert themfclves when they are not drinking ?' ' Every ' day,' replies Har., ' as foon as they have dreffed themfelvcs, they 'take their arms ; and, entering the lifts, fight till they cut one * another in pieces : This is their diverfion. But, no fooner does ' the hour of repaft approach, than they remount their fteeds all ' fafe and found, and return to drink in the palace of Od'ni.^ The Edda, or antinit Icelandic or Runic mythology ^ ap. Northern Ar.f tiquitiest vol. 2. p. loS. See alfo Keyjler^ Antiq. SeleH. Sep- tentr. et Celt. p. 127. (9) In the books of the middle times, torneaments are callt-d ludi militaresj mi lit aria exercitiny et iwaginariae bcUormn proluji- ones. A writer in Du Cangc fays, ' Torncamenta, diciint quae- * dam nundinac, vcl fcriac, in quibus milites ex edido convcnire ' folcnt. 28o A VIEW OF SOCIETY « folcnt, et ad oftenfioneni virui'Ti fiiarum et audaciae temere • congregari, vel congredi.' GbjJ. voc. Torncamentum. Thefe exerclfes were the great fchools ofdifcipline and war. Their high antiquity on the continent may be feen in the difler- tations on the hillory of St Louis. And, there is mention of them in England in the days of King Edgar, and at a more an- tient period. SeUen, duello, ch. 3. Mr Madox was therefore in a great n.iftake, when he afcribed the rife of the fpirit of tor- neying to the holy wars. Bar. An^l. p. 281. The frequent accidents which neceflarily happened in the ex- ercife of thefe reprefentations of war, through the impetuofity of valour, and the extravagance of heroifm; thefulminations of the church ; and, above all, the jealoufy of princes which was exci- ted by armed nobles and their retainers, gave them powerful checks. 1 hey continued, notvvithftanding, to be long in fashion. In England, they were pradifed in the reign of Queen Eliza- beth ; and their total dilappearance was preceded, under the el- der James and his Ion Charles, by a gentle method of them, termed caroujals. Torneaments originally were celebrated by all warriours at their pleafure. In after times, the fovereign, as the head of chivalry and arms, claimed their diredion, and iflued out his licenfes and prohibitions. Richard I. by the following patent to Hubert, Arch- IN EUROPE. 281 Archbifliop of Canterbury, gave licenfe for lifts or torneaments in five places within the kingdom. ' Sciatls nos conceflifle, quod torneamenta fint in Aaglia in * quinque placeis, inter Sanwi et TV'ilton, inter Warwick et Ke- * Itngworth, '\n\.Qx Stamford ti Wa/higfonl, inter Brakeley et Mixe- * bery inter Ely et Tikehill, ita quod pax terrae meae non infrin- * getur. Et comes qui ibi torneare voluerit, dabit nobis 20 mar- * caS; et baro 10 marcas, et miles, qui terram habuerit, 4 mar- * cas, et qui non habuerit, 2 marcas. NuUus autem extraneus * ibi attorneabit. Unde vobis mandamus, quod ad diem tornea- * menti habeatis ibi 2 clericos et 2 milites veftros, ad capiendum * facramentum de comite et barone, quod nobis de praedidta pe- * cunia ante torneamentum fatisfaciet, et quod nullum torneare * permittant antequam fuper hoc fatisfecerit ; et inbreviari faci- * ant quantum ct a quibus reccperint. Et 10 marcas pro carta * ad opus noftrum capiatis, unde comes Saruni, et comes de Claray ' et comes de Warrena plegii funt. Telle meipfo, apud villam * epifcopi 22 die Augufti.' Ex lib. Rubra Scaccarii, ap. SflJcn in the Dut'Ilo, ch. 3. Edward I. and Edward III girntcd the liberty of holding yearly ajuftn^/V/j militaribus comitatus Lincoln. Richard Red- man, and his three companions in arms, had the liccnfc of Richard II. hnjlihulere cum JVilU:lmo Halberton cum tribus fociis ^pud civitat. Carliol. And a rimilar hbcriy was granted to John N n Jc 282 A VIEW OF SOCIETY de Gray by Henry IV. Cottoni Pojlhuma, p. 63. Edward I. commanded, by proclamation, that no torneaments or jufting, or feeking of adventures, and no feats of arms fhould be cele- brated or undertaken without his permilfion. ' Fublice fecit • proclamari, et firmiter inhiberi, ne quis, fub forisfadlura terra- • rum et omnium tencmentorum, torneare, bordeare, juftas face- ' re, aventuras quaerere, feu alias ad arma ire praefumat, fine li- * centia Regis fpeciali.' Cot. Poji. p. b-j. There are alfo prohi- bitions of torneaments by Henry III. and other princes. They command all earls, barons, knights, and others, under their faith, homage, and afFedion, and under pain of lofing their lands and tenements, that they prefume not to torney, make jufts, feek ad- ventures, or go to feats of arms within the realm, without the King's exprefs leave. See Jppeiidix^ No. V. (10) ' Tum ad negotia^ nee minus faepe ad convivia, procer- * dunt annati." Tacit, de Mor. Germ. c. i2. This ufage continued during the middle times. The porte- rity of the Germans went in armour to their parliaments and public councils, and to their private vifits and meetings. Jullice, fays Mezerajt was rendered among the Franks by people in arms : The axe and the buckler were hung upon a pillar in the midil of the malle or the court. See bis hifiory under Clotaire If. From this pradtice among the Anglo-Saxons, the hundred court was, in fome counties, called the Wapentake. The hundreder, holding IN EUROPE. 283 holding up his lance, it was touched by thofe of all the members, and thus the aflembly was conftitutcd. LL. Eihvard. Confef.c.7,i. Wapnu, fays Whitelocke, is arms, and tac, touch. Notes upon the King''s ivrit for members of Parliament^ vol, 2, p. 39. To this day, in the kingdoms of Europe, the wearing of a fword is a part of drefs. We go in arms to a feaft as well as to a battle, and retain, in orderly times, a cuftom which habitual danger, and the defefls of legiflation, made neceffary to barba- rians. The clergy, it feems, pertinacioufly oppofed the cuftom, and it was retained with obftinacy. What is more furprifmg, they have ceafed to exclaim againft it, and yet it continues ! (11) * Scutum reliquifle praecipuum flagitium. Ncc aut fa- * oris adeflc, aut concilium inire ignominiofo fas.' Tacit, de Mor. Germ, c. 6. Hence a high compofitlon was allowed to the Frank, who had been reproached injurioufly with the lofs of his ftiield. ' Si ' quis homo ingenuus alio improperaverit, quod fcutiim (uum * jadaflet, et fuga lapfus fuiffct, ct non potuerit adproharc, DC. * den. qui faciunt fol. xv. culpabilis judicetur.' Paftus legis Sa- licacy op. Georgifch. p. 69. It was by railing him aloft on a Ihield, and kipporting him on their ftioulders, that the Germans proclaimed their ibvercign, or lifted up a general to comm J!id their armies. Tacit. Hijl lib. 4. c. 1 5. It was by the lame ceremony N n 2 ibat 284 A VIEW OF SOCIETY that the Kings of the Franks were acknowledged. This was their inauguration. The clcutcheon or ihleld, fays Favine, is the eilt'iitial note of a nobleman, a kniglit, and an efquire. Theatre 0/ Honour ^ look i . cb. 2. The ufages which had their rife from arms, make a curious figure in the Gothic nations. We know from Tacitus y that the founding or claQiing of arms, exprefled approbation in the Ger- man affemblies ; that a javelin wet with blood, and a war horfe, were the rewards of German valour ; that fuits of armour were a flattering prefent to the more diftinguilhed chiefs in the Ger- man communities ; that an interchange of arms conRituted the ceremonial of marriage among this people ; and, that their only- public amufement was the leaping amidft the threatening points of fwords and lances. De Mor. Germ. c. 11. 15. 18. 24. Charlemagne ufed to feal his treaties with the pommel of his fword : ' With the point of it,' faid he, ' I will maintain them.' St. Foixt EJf. H'ljl. 'vol. 2. p. 74. To take his arms from a free man, was to deprive him of his rank, and to reduce him to the condition of a flave. LL. Alfr. c. i. And to put into the hands of a flave the arms of a free man, was to give him his liberty. When an individual gave his oath in a court, or would bind himfclf in the moft folemn manner to the performance of his contrad-s, he laid his hand on his fword. In the judicial com- bat, the cufloms growing out of arms were numerous : Thus, to IN EUROPE. 285 to ftrlke a pcrfon with a club, or to ft'wc him a blow on the face, was to treat him like a villein ; becaufe vilieins were perrditted to figat only with clubs, and were nut allowed to cover their faces With armour. L'e/prit des Loix, liv. 28. cb. 10. A free man could not part with his I'word as a part of his ranfjme. LL. Longobard. lib. i. tit. 11. /. 33. And what ihows, in a particular manner, the feverity of the foreft-laws, the killing of a royal flag inferred the lofs of the fhield, or the redudion of a free man to a flave. LL. Forejl. Catiut. c. 25. From the change of arms there refulted a ciange of ufages. Thus, when archery was in- troduced, to wound the finger which fends off the arrow, was punifhed more feverely than the maiming ot the otiier fingers. Lindenbr. Gloff. voc. Digitus. The old Germans ruflied to battle with a loud noile, applying their ihields to their mouths, that their voices might rile by re- percuflion into a fuller and more fonorous fwell. ' Sunt illis haec • quoque carmina, quorum rclatu queui barditum vocant, accen- ' dunt animos, tuturacque pugnac tortunam iplo cantu auguran- • tur ; tcrrcnt cnim, trepidantve, prouc Ibnuit acies. Nee tarn ' voces illae, quam virtutis concentus videntur. Atfedarur prae- • cipue alperitas (oni, et traclum murmur, objedis ad os Icuiis, ' quo plenior et gravior vox repcrculfu intumelcat.' Tucit. dc Mor, Germ. c. 3. 286 A VIEW OF SOCIETY It merits obfervation, that, from this ufage, there grew the cry d'orwes of the middle ages. Thefe cries were fuppofed to incite to valour, and to make the foldier precipitate himfelf upon the enemy. Montjoie Saint Denisy was a famous cry of the Franks. Dens aJjiiva, Deus 'vult, were cries during the crufades. Every banneret, or every knight who had a banner, had a cry peculiar to himfelf and the troops under him. Barons had alfo their cries. There vvere thus general and particular cries. While fiefs and the feudal militia continued, thefe cries prevailed in Eu- rope. They were loft on the introduilion of an improved mi- litary difcipline, and of ftanding armies. Perhaps, it is to thefe cries, that we muft trace the origin of the mottos to enfigns armorial. (12) ' Scuta kclijfimis colorlbus diftinguunt.' Tacit, de Mor. Germ. c. 6. On the foundation of the/nguNt, or the fhort veft of the Gaul and the German, which covered his arms, fhoulders, and breaft, coiits of arms arofe. ' La cotte d'armes a efle le vetement le plus * ordinaire des anciens Gaulois : il cftoit appelle par eux Jagtwiy ' d'ou nous avons emprunte le mot de/yf, ou de fayon.'' Dif- fert. I. Jur PHi/ioire de St Louis, p. 127. ' Tegumen omnibus '■ J'agumy fays Tacitus, c. l"]. According to this Inflrudive hiftorian, the fagum was adorned with fpots and with bits of fur. ' Eligunt feras, et detrada vela- • mina fpargunt maculis, pellibufque belluarum.' c. 17. And we IN EUROPE. 287 we know from Herodlati, that it was fometlmcs ornamented with filver. Lib. 4. Thefe things are very curious ; and it is impoflible not to fee in them the colours, the/urs, and the meta/s which are the ma- terials of the fcience of blazonry. When Tacitus mentions the fliield, he takes occafion to re- mark, that the German warriours had the knowledge of coats of mail, and o^ head-pieces or helmets, but leldom made ufe of them. His words are ' Paucis loricae, vix uni alterive caffis, aut galea.* c. 6. They were about to be more falhiouable. (13) Valer. Maximus, lib. 5. c. 6. Florus, Rom. Rer. Hid. lib. 3. c. 3. (14) Thefe captives were of the tribe of the Cotti, a Germa- nic people; for, it is furely this tribe ihat Dio means, when he fpeaks of the G-WH/. ' Horuin captae a Romanis uxores, iater- • rogatae ab Antonino, utrum veiidi, an occidi mallent, mori fe • malle refponderunt : quumque elfent polka venduae, oiunes • mortem fibi conlciveruiu : Nonnullae una filios interfecerunt.' Excerpt e Dion. p. 876. A multitude of example^, to the lame purpole, might eafily be coUedcd, if it were neccifary. But, 288 A VIEW OF SOCIETY But, while we rLfle£t on thefe things, it muft not be fancied, that the German women were dehcient in gentlenefs. A high independent fpirit is not inconfi(\ent with the fofteft paflions. There are a few beautiful and energetic words in Tacitus., which may be employed on this occafion, and finely exprels the di- flindtive charaders of the fexes in antient Germany. ' Lamenta • ac lacrymas cito : dolorem et triftitiam tarde ponunt. Fcminis ♦ lugere honedum eft ; viris meminifle.' De Mor. Germ. c. 27. (i j) Tacit, de Mor. Germ. c. 7. (16) Saint Foix, Eflais Hiftorlq. fur Paris, torn. 5. p. 184. {17) ' Regnator omnium Deus, cetera fubjeda atque parentia.' Tacit, de Mor. Germ. c. 39. This teftimony of the purity of the German theology, is well illuftrated by the following paflage of the Icelandic Edda. « Ganglerus orfus eft tunc fuum fermonem. Quis eft fupre- ' mus, feu primus deorum ? Har. refpondet : Qui noftra lingua ' Pantopater dicitur. Tunc Gaitg. Ubi eft hie Deus? Aut quid * poteil cfiicere ? Aut quid voluit ad gloriam fuam manifeftan^ * dam ? Har. refp. itlc vivit per oinne aevum, ac guhernat om- • ne regniimjuum, et Diagnas partes er parvas.' Edda, ap. North- ern Antiq. vol. 2. p. 283. (iB) IN EUROPE. 289 (18) * Aufpicia, fortefque ut qui maxlme obfervant.' Tacit, de Mor. Germ c. y. See alfo, Du Cange, voc. Aticones ct Sors. The following form of divination was common to all the Ger- man tribes. ' Virgam friigit-erae arbori decifam, in furculos am- ' piitant, eofque notis quibuldam difcretos fuper candidam ve(- ' tern temere acfortuito fpargunt. Mox fi publiee confulatur fa- ' cerdos civitatis, fin privatim, ipfe pater familiae precatus deos,- ' coelumque fufpiciens, ter fingulos tollit, fublatos fecundum im- ' prefTam ante notain interpretatur.' I)c Mor. Gettn. c. 10. Of this folly, there is yet a remain in the Baguette Divinatoire of the miners in Germany ; and it is to be obferved, that the he- ralds of the Franks had confecrated iwigSy which they bore as the emblems of peace. Thus the heralds fent by Gundobald to Guntram appeared ' cum virgis con/ecratis, juxta ritum Fran- ' corum, ut fcllicet non contingerentur ab ullo.' Gregory of Tours, lib. 7. c. 32. But, what is more remarkable, thele twigi came to figure in the inveftiture of lands. Hence the feoffment or fafine per fuflem et per bnciilum, per virgam et per ramum, 'Hence the tenure par la verge, which is formally treated by Lit- tleton. On what a limplc foundation docs there rife inditu- tions, important and interefting in bufinefs and fociety ! (19) Hence the Gothic ordeals, the fire ordeal, and the water ordeal. Of the antiquity of thcfe trials I have fpoken in an- other work. Differ t. on the Aittiq. of the Ettg. Conflitut. pr.rt 4. It is obfevable, that the trials of fire and water, though abfurd O o in 290 A VIEW OF SOCIETY in the greateft degree, were much encouraged by the Chriftian clergy. What is more difgraceful to them, they invented modes- of trial, founded in the fame fuperftition, and not lefs abfurd. Thefe were the judgment of the crofs, the corfned or confecrated morfel, the Eucharifl, and \.\\q fortes Jan^loruni. By the firft, the criminal was to remain with his arms extended before a crofs for fix or feven hours, without motion. If he failed in fuftain^ ing this trial, he loft his caufe, and was judged guilty. By the fecond, the accufed perfon fwallowed a bit of bread or cheefe, o- ver which the prieft had muttered a form of execration. If he was guilty, he was fufFocated by the morfel ; if innocent, he e- fcaped without injury. In the judgment of the Eucharift, the fymbols of the blood and body of Chrift were employed ; and they convided the gdilty, by ading as a poifon, which inflided death or Ccknefs. The fortes fan^orum confifted in the open- ing, at a venture, the Bible, or any holy book, and in confidering as oracular the firft paflage that prefented itfelf. See Du CaiigCy •uoc, Cruxy Corfned, Eucharijliat Sors. This impiety, and thefe impofitions on the common underftanding of mankind, advan^- ced the temporal emolument of the priefthood ; an end, which is at all times more important to them than the interefts of religion and virtue. (20) ' Matrem Deum venerantur. Infigne fuperftitionis,^©/"- ' mas aprorum geftant. Id pro armis omniumque \.nit\dL,Jecuru7n ' deae IN EUROPE. 291 * deae cuUorem ctiam inter holies praeftat.' Tacit, de Mor. Germ. c. 45. * I know a fong,' faid Oditi^ * by which I foften and Inchant * the arms of my enemies, and render their weapons of none ef- * fed. I know a fong which I need only to fing, when men * have loaded me with bonds; for the moment 1 fing it, my * chains tall to pieces, and I walk forth at liberty. I know a * fong ufeful to ail mankind ; for, as foon as hatred inflames the * fons of men, the moment I fing it, they are appealed. I know * a fong of fuch virtue, that, were I caught in a ftorm, I can hufh * the winds, and render the air perfectly calm.' The Magic of Odiriy ap. North. Antiq. vol. 2. p. 21 7. Du Cinge, Literae Solu- toriaCy et voc. Incantare, By fecret or magical operations, it was not only fuppofed, that men could defend themfelves againft all dangers whatever, and render themfelves invulnerable; but that they could even change themfelves into wolves, and other animals. The word iverivolff exprefled this metamorphofis, and the extravagancy is to be tra- ced to a diftant antiquity. ' Neuri, ut accepimus, ftatis tempori- * bus in lupos transfigurantur ; deinde, exado fpatio quod huic ' forti attributum eft, in priflinam faciem revcrtuntur.' Solinus, c. 15. To late times this ridiculous fancy was continued down among the Irifli ; and Camden was puzzled to account for it. Britannia by Gib/on^ vol. 2. p. 1350. O02 (21) zgz A VIEW OF SOCIETY (21) Thefe things appear clearly and ftrongly froni the laws which were made againfl them, after the introdudtion of Chri- ftianity, and from otlier authentic evidence. Capit. Kat: et Lud. lib. 7. LL. Longobard. lib. z. tit. 38. Du Canje, -voc. Fans, Arbor, (6'C. Fi^lloutier, Hijl. des Celtes, vol. 2. edit, par MonJ. de Chiniac. (22) Du Cangc 'voc. Fndiis, Fada^ Caragusy Dufii^ Follcti Daemones, Ttmpeftarii. Edda. Keyjler^ Antiq. Septentr. ct Celt. Here we have the fource of the wonders and extravagancies of the old romance. (23) ' Deo imperantc quern adejje bellantibus credunt.' Tacit, de Mor. Germ. c. 7. This deity was called Teut or Tis. After the age of Tacitus^ if I am not miftaken, he had ufually tiie name of Odin ; and, it is of Odin that Wormius thus expreffes himfelf, * Suam implorantibus opem in bcllo, inflar fenis mono- • culi equo infidentis, et albo clypeo tedi, quandoque ie conjpi- ' cicndiim praebuit.' Monument. Dan. c. 4. (24) Traces of the fpirit of gallantry and love, it is to be re- marked, appear in a ftriking manner, even in the religious fy- ftem of the Gothic nations. ♦ Freya,' fays the Edda^ ' is the mofl propitious of the god- * dfffts. The plage which Ihe inhabits in heaven is called " the " union IN EUROPE. 293 " uaion of thft. .peaplc." She goes on hoi!:back to every place ' where battles are fought, and alTe.ts h.;r right to n-ie half of * the flain; tiie other halt belongs to Odin. Her palace is large ' and mngnificent ; thence Ihe fallies for. I. in a chariot drawn by ' two cats. .She leads a very favourable car to thofe whoi fue for ' her alfiiUnce. It is froni her that the ladies have received the * name which we give them in our language. She is very much ' delighted with the fongs of lovc-s ; and fuch as would be hap- * py in their amours, ouglit to worlhip this godJcfs.' p. 76. In another fable of the EclJcv, there are the following particu- lars. ' Gefione is a virgin, and takes into her fervice all challe * rnaids after their . death. Fylla, who is alfo a virgin, v.cars * her beautiful locks flowing over her lliouldcrs. Her h.ead is * adorned with a golden riband. She is entrufted with the toil- * lette and ilippers of Frigga, and admitted into the molt impor- * tant fccrcts of that goddefs Siona employs herfelf ' in turning men's hearts and tlioughts to love, and in making ' young iKCn and maidens well with each other. Hence lovers ' bear her name. Lovna is fo good and gracious, and accords ' lo heartily to the tender vo\ns of men, that, by a peculiar power * which Odin and Frigga have given her, flie can reconcile lo- ' vers the inoft at variance. Varra prefides over the oaths that * men make, and particularly over the promifes of lovers. She * is attentive to all concealed engagements of that kind, and pu- * ni flics 294 A VIEW OF SOCIETY * nifhes thofe who keep not their plighted troth.* Ibid. p. 96. 97- It is alfo remarkable, that, in the Gothic Elyfium, it was beau- tiful virgins named Falkyriae, who poured out their liquor to the heroes. Key/Iery Antiq. Septr. et Celt. p. 152. (25) St Palaycy fpeaking of the candidates for chivalry, fays, * Les premieres lefons qu'on leur donnoit regardoient princi- ' palement Vamour de Dieu et des dames., c'eft a dire, la religion et * la galanterie.' Mem. fur Pancienne cheval. tome i. p. 7. The Chriftian knight was not lefs devout than the Pagan warriour. Anciently, during the celebration of mafs in every country of Europe, he drew his fword, and held it out naked, in teftimony of his readinefs to defend the faith of Chrift. FavinCy p. 54. Keyjler, Antiq. fele£i. Celt. p. 164. It was the influence of fuch manners which induced * that a- ' greeable libertine Boccace very ferioufly to give thanks to God * Almighty and the Ladies for their affiftance in defending him * againft his enemies ;* and which made Petrarch compare ' his * miftrefs Laura to Jefus Chrift ;' circumftances which appeared fo abfurd to Mr Hume. See his EJfaysy p. 277. When the Count de Dunois was about to attack the English .army which befieged Montargis, la Hire, a knight and a man of fafhioii IN EUROPE. 295 fafliion who ferved under him, having received abfolution, join- ed devoutly his hands, and thus prayed. * Dieu, je te prie que ' tu fafles aujourd'hui pour la Hire autant que tu voudrois que * la Hire fift pour toi, s'il etoit Dieu, et tu fulles la Hire.* St Foixy E[f. h'ljl. tome I. />. 347. A pidlure, not lefs ftrange, and ftill more profane, is in the poetry of Deudes dc Prades., a canon who had the reputation of being wife and fpiritual. He thus laments the death of Brunet, a troubadour, or one of the provencal bards. ' II chantoit fi * bien, que les rofllgnols fe taiffoient d'admiration pour I'entendre. * AuflTi Dieu I'a t'il pris pour fon ufage. Je prie Dieu de le pla- * cer a fa droite. Si la Vierge aime les gens courtois, qu'clle ' prenne celui-la.' Hijloire litteraire des Troubadours^ tome i. p. 320. Thefe flrokes are expreffive, and illuftrate, more than the mod careful reafonings, the nature and fpirit of the devotion ot the ages of chivalry. Amidft the decencies and the proprieties' which philofophy introduces in cultivated times, we look back, with furprife, to this grofs familiarity with the fupreme Being, and to this blafphemous infolence. Yet, it is difhcult, at the fame time, not to remember, that thefe things are equalled, if not exceeded, among us, by thofe gloomy and fanatical men, who, having got what they term the nexu /i^/jt, conceit thcm- felvcs the fociety of the elecT, and \ht friends of God ! SEC- ^96 A VIEW OF SOCIETY E C T I O N V. (0 '' B ^HE charadcr or ftatinn which preceded knighthood, j[_ was that of the ecuyer, or armour-bearer. The candidate for chivahy had formerly been a page, a valet, or a dd'/.oi/eau. The laft term was appHed to the fons of men of rank. G. Andre de la Roque, Traite de la nobhjje, p. 7. Moeurs des Francois par le Gcndre, p. 6^. Daniel, Hljl. de la milice Fran^-oife, tome i. /). 94. 95. St Palaye Mem. Jiir Vane. Cheval, par tie I. In thofe times, the terms page and valet were not expreffive of meannefs and low condition, as at prefent. Du Cange, voc. Valeti et Domicellus. Sir John Forte/cue, who was chief juftice under Henry VI. has obferved, when fpeaking of England, * Sunt Viilecti diverfi in regione ilia qui plus quam fexcenta fcuta ' per annum expendere poiTunt.' ^De Laud. Leg. Jfigliae, c. 29. (2) The age of knighthood, it is probable, varied with the nature and weight of the arms which were in ufe at different periods. In general, it has been fixed by antiquaries and hifto- riansat-i jears. 1 his rule, however, could be infringed in favour IN EUROPE. 297 favour of fignal merit or high birth. The noviciate of the knight commenced in his feventh year. In that tender age, he turned his attention to the art of war, his miftrefs, and his catechifm. Daniel, Alilice Franfoi/et lib. 3. ch. 4. Riliq. Spdman, p. 174. St Palaye^ Mem. fur Pane. Cbeval. pat tie i. (3) The power of the German priefts did not efcape the pe- netration of Tacitus. ' Neque animadvcrtere, nequc vincire, ' neque verberare quidem nifi facerdotibus permiiTum.' De Mor, Germ. c. 7. The Chriftian priefts were no lefs felfifla and am- bitious. In every country of Europe, they attained immenfe wealth, and prodigious iniluence. They prefided in the inferi- or courts with the civil magiflrates ; they took their feats in the national afl'emblies ; and, in the preambles of the barbaric laws, they are often mentioned next to the Kings themfelves. ' Inci- ' piunt,' fays the prologue to the Capitularies of Charlemagne, • capitula regum et epifcoporum, maximeque nobiiium omnium • Francorum.' Baluz. Capit. Reg. Franc, tome \.p. 698. It is thus, alfo, in fome of the prefaces to the Anglo-Saxon laws. The powers they alTumed were exorbitant, and often improper- ly exercifed. To ufe the ftrong language of Bacon, ' thcv were • lovers of lordlliips, and trouLlers of ftates.' Hij], and polit, dijcourje on the laivs and government of England. (4) Selden, Tit. hon. part. 2. ch. c;. fed. 34. 35. Afhmolc, Inftitutions of the Garter, ch. 1. lecl. 9. Du Cange, voc. Miles. P p Daniel, 298 A VIEW OF SOCIETY Daniel, Millce Fran^oife, lib. 3. ch. 4. La Roque, p. 354. 356. A dcfcription of the ceremonies ufed at the creation of knights of the l)aih, is inferted in the Appendix, No. 6. They were nearly the fa nc with thofe employed lu the creation of the knight-b-iciielor, and illuftrate the manners of old times. (5) The fefliim tyroc'inii., which is the name given in the old lilftorians to the rejoicings on the inveftiture of knighthood, often lafled many days ; and, in the cafes of perfons of diflinc- tlon, was folemnized with torneaments and fliows. The feafon of torneaments was alfo embraced as a fit occafion for conferring knighthood on thofe whole birth and fortune did not entitle them to exhibit thefe folemnities. And this, from the principle of giving encouragement to the military art. For the lame rea- fon, public entries into cities, coronations, and feftivals of every kind, were opportunities for the creation of knights. (6) Spelmftn, voc. Auxilium. Allimole, ch. I. fe£t. 9. St. Palaye, tom. i. p. 195. 248. Daniel, Millce Fran9oife, liv. 3. ch. 4. When the celebrated Joan d' Arc. raifed the fiege of Or- leans, the Knglilh commander, the Earl of Suffolk, ' was obli- • ged to yield himfelf prifoner to a French man called Renaud ; ' but, before he fubmitted, he afked his adverfary whether he ^ was a gentleman ? On receiving a fatisfadory anfwer, he de- ' manded) IN EUROPE. 29^ ' manded, Whether he was a knight ? Renaud replied, That he * had not yet attained that honour. Then I nuke you one, repHed ' Suffo'k. Upon which he gave him the bloiv with his fword, ' which dubheJ him into that fraternity; and he immediately ' lurrendered himfelf his prifoner.' Hume, vol. 1. p. 340. (7) The knights afFeifled great magnificence, and more parti- cularly after the holy wars. ' Portabant autem diverfi generis ' fpecies precioi'as, auriun et argentum, pallia oioferica, purpu- * ram, liclades, otlrum et multitorinium vettiura ornamenta ; ' praeterea arma varia, tela multiplicis generis, inhnitas loricas, * culcitras de ierico acii variatas operofe, papilioned et tentoria * prcciolilliaia,' occ. Broiupton, up. Baron. Angi. p. 281. (8) The horfe and armour of a knight were called his conte- nementuviy or countenance. Selden, Tit. Hon. part 2. ch. 5. fe^. The refpedful behaviour, even to vanquiilied knights, and indeed the extreme honour in which knights in general were held, is exemplified very ftrongly in the condud of Edward III. to Huftacc de Ribaumont. This prince thought it nccefl'ary to leave England privately for the protedion of Calais, and carried with Iiim the Prince of Wales. The day after his arrival at Calais, a battle enfued between his troops and the French forces commanded by Geoffrey de ('harni, who, notwithfianding the P p 2 truce 300 A V I E W O F S O C I E T Y truce which had been concluded between the contending powers, had bribed the governor of Calais to furrender the place to him. To prevent this circumftance, was the intention of Edward's vifit. This great prince, who fought as a private gentleman under Sir Walter Manny, encountered Euftace de Ribaumont, a hardy and valorous knight, who beat him twice to the ground. Pufh- ed to extremity, Edward had occafion for all his ftrength and addrefs. After an encounter, fliarp and dangerous, he vanquifh- ed his antagonift, who furrcndering his fword, yielded himfelf his prifoner. The next day the Englifh enjoyed their vidory, and in the evening the French prifoners were invited to fup with the Prince of Wales and the Englifli nobility. After fupper, Edward himfelf entered the apartment, and con ver fed, in a Ilrain of compliment and familiarity, with the prifoners. His beha- viour to his antagonift Euftace de Ribaumont was more particu- larly attentive, and is thus dcfcribed by FroiJJard. ' Vint le Roi ' a Meflire Euftache de Ribaumont: Vous etes le chevalier au • monde que veifte onques plus vaillamment aflaillir fes enemis, ' ne fon corps deffendrc, ni ne me trouvai onques en bataille ou ♦ je veifTe qui tant me donnaft affaire corps a corps, que vous * avez hui fait ; fi vous en donne le prix fur tous les chevaliers • de ma court par droite fentence. Adonc print le roi fon cha- ' pelet qu'il portoit fur fon chef (qui etoit bon et riche) et le meift ' fur le chef de Monl'eigneur Euftache, et dit : Monieigneur Eu- ' ftache, I N E U R O P E. 301 * ftache, je vous donne ce chapelet pour le mieux combattant de * la journee de ceux du dedans et du dehors, et vous prie que * vous le portez cette annee pour ramour de moi. Je fai que * vous etes gai et amoureux, et que volontiers vous trouves entre * dames et damoifelles, fi dites par tout ou vous irez, que je le ' vous ai donne. Si vous quite votre prifon, et vous en pouvez ' partir demain, s'il vous plaift.' an. 1348. (9) Favine, Theater of Honour, book. i. St Palaye Mem. fur I'anc. Cheval. partie 4. Selden, Tit. hon. part 2. ch. 5. fe£t. 37- (10) The chief ftrength of armies confified, at this time, of cavalry. The fkillul inanageiiicnt ot a horie was, of confe- quence, one of the great accomplilhments of a knight or a warri- our. It is to be noticed, that this way of thinking characterized fome of the German tribes, even in the age of Tacitus. 1 he following energetic defcription of the Teniiteri, is applicable, in a ftriking manner, to the purer ages of chivalry. ' Tenifteri * luper folitum bellorum decus, equellris difciplinae arte praecel- ' lunt. Nee major apud Cattos peditum 1 lus, qujm Tenderis * equitum. Sic inftituere majires, poHcri imitantur. /// liij'us ' injatitium, hoec jiivcnnni acmulatio, pctjcvcraiit Jcnes.^ Dc Mor. Germ, c. 32. ('0 302 A VIEW OF SOCIETY (i i) Hence the diftiniftion of knights banneret and knights bachelors ; the latter exiireflion denoting the fimple knight; the former, the knight who had a ftandard and followers. The number of knights and efquires who ferved under the banneret, varied in proportion to his riches, and influence. It is alfo ob- fervable, that this dignity was not always feudal, it was fome- times perfonal, Selden., Tit. hon. part 2. ch. 3. Jecl. 23. and ch. S.Jeci. 39. Du Cnnge, Dijfert. fur V Hijlo'ire de S. Louis. Spelm. I'oc. Banercttus. Daniel, Milice Franfoifc, liv. 3. ch. 5. (12) Favine, Theater of Honour, book 10. St Palaye, Mem. fur Tanc. Cheval. partie 6. {13) An old ceremonial of chivalry has thefe words : ' Le Roy * Artus d'Angleterre, et le Due de Lencaftre ordonnerent et fi- ' rent la table ronde, et les behours, tournois, et jouftes, et moult * d'autres chofes nobles, etjugemens d'armes, dont lis ordonnerent ' pour juger, dames et damoijelles, Roys d'armes et heraux.' Dijjert. "J. fur /' Hijloire de S. Louis, p. lyg. {14) The greater torneaments were thofe given by foverelgns and princes, to which knights were invited from every part of Europe ; for, over Chriflendoni, the honour and privileges of knighthood were the fame. The leffer torneaments were thofe given by the barons. It IN EUROPE. 303 It dcferves obfervation, that the exhibition of torneaments pro- duced an intercourfe between the nations of Europe, which could not but contribute to knowledge and civilization. When there were no exprefs prohibitions, knights followed the more impor- tant torneaments wherever they were cclebrited, for the purpofe of ftudying the art of war ; and that they might find fignal and proper opportunities of diftingulfhing themfelves, and of culti- vating the friendihip and acquaintance of illuilrious perfons of both fexes. It was even the falhion for knights to avoid the re- firaint of marriage for fome years after their inflallation into the order, that they might confecrate them to the travelling mto di- ftant countries, and the vifiting of foreign courts., ' a fin de s'y • rendre cheva/iers pur/aits.^ St Falaje, torn. 2. p. 8. From thefe circumftances, it is obvious, that the ftrong con- clufions of Dr Robertfon, concerning the little intercourfe be- tween nations, during the middle ages, are not to be relied upon in all their force, but to be underllood with much referve, and many limitations. Hi/l. 0/ Char I. V. vol. 1. p. 325. ct feq. (15') This prefent was called y^'ziw/r. St PaLiyey torn. \. p. 95. Hence the pieces of lace or riband which are yet fome- timcs dillributcd at marriages, arc termed the bride's _/i2^'0«/•J. (16) It would be tedious to enumerate and to defcribe the dif- ferent forms of excrcife or combat which were pradifcd in tlic torneaments; 304 A VIEW OF SOCIETY torneaments ; and it is not neceflary in this work. The joujle V. as the combat of one againft one ; ks annes a outrance, were the combats of fix againft fix, and confifted occafionally of more or fewer perfons. Le pas (Varmesy was the defence of a pafs by one or more perfons againft every aflfailant. The curious read- er may confult the books which treat exprefsly of tornea- ments. (17) Favine on torneaments. St Palaye, Mem. fur I'ane. Chevah partie 2. (18)' Eftigiefque et figna quaedam detrada lucis in praehum * ferunt.' Tacit, de Mor. Germ. c. 7. The pofterity of the Ger- mans were equally fuperftitious under the light of the gofpel. * Les Germains/ fays St Foix, who had this paftTage of Tacitus in his eye, ' portoient a. la guerre des drapeaux, et des figures * qui etoient en depot pendant la paix dans les vois facrees.* He adds, ' Nos Rois alloient prendre de mcme la chappe de ' S. Martin fur fon tombeau, et roriflamme dans l*eglife de S. * Denis, et les reportoient lorfque la guerre etoit finie.' EJf. Hijl^ Jiir Paris i torn. 2. /h 187. (i9)TheEdda, Keyfler, Antiq. feleA. Septentr. p. 149. — 163* Pelloutier, Hift. des Celtes, liv. 3. ch. 18. (20) IN EUROPE. 305 (20) The difcerning reader will perceive, that I defcribe Chri- ftlanity from the writings of the clergy ; becaufe, it is always from their reprefentations of it that it a£ls upon fociety and manners. I therefore fpeak politically, and not as an inquirer into theology. From the pretended friends of Chriftianity, and from its mod zealous partizans, too, I fear, it has received deep and cruel wounds. Its moft enlightened and genuine admirers have rea- fon to regret, that it has not been left to defend itfelf. Were it poflible to deftroy the comments, the explanations, the cate- chifms, and the fyftems of divines, a very confiderable blow would be given to infidelity. One can refpedt the honeft doubts of philofophy. But, is it pofTible to with-hold indignation or fcorn, when ability ftoops to be uncharitable and difingenuous, when bigotry preffes her folly, and fpits her venom ? (21 ) It was Gregory VII. whofe magnificent mind firft form- ed the plan of the croifes. The fanaticifm, the heroic fpirit, and the wild enterprife of knighthood, fuggeftcd, doubtlefs, the idea of them. The advantages they were to give to the holy fee, and the church in general, were numerous and great. The Popes not only conferred remiffion, or pardon of their fins, on all thofe who yielded to this madnefs ; but, what was no lefs interefling, they undertook the proteftion of their fadiilies and affairs. The clergy, of confequcnce, drew immenfc wealth, by ading as tu- Qj] tor?" 3o6 A VIEW OF SOCIETY tors and truftees for widows, pupils, and minors. The troops deiigned tor theie pious projeds, could be employed by the church to protcd; and enlarge its temporalities; and, under the pretence of recovering the holy fepulchre, prodigious fu us wore to be extracted from women, the devout, the intirm, and the dying. From the holy wars it followed, that new fraternities of knight- hood were invented. Hence the knights of the holy fepulchre, the.holpitallers, templars, and an infinite number of religious or- ders who fhed blood, and deformed fociety, for the glory of God. Many of thefe acquired great riches, and all of them increal'ed the influence of the church. Some writers have fancied, but very abfurdly, that the croifes gave rife to chivalry. Without chivalry the croifes could not have been carried into execution. The Popes and the clergy would in vain have preached, that they were the road to falva- tion and the gates to heaven. From the cultivated ftate of manners in the eaft, feme im- provement was imported into Europe by the crufaders. Buc the cruiades deferve not to be confidered as the firfl, or indeed as a very powerful caufe of refinement in Europe ; though it is to be allowed, that they encouraged a refpe£t for order, and ideas of regular government ; and that they made additions to the fcience IN EUROPE. 307 fclence of heraldry and the faflilons of liveries, and heightened the fplcndour of equipage and drefs. When the meJal, however, is reverfed, there appearmany and great difadvantages. They drained the kingdoms of Europe of their inhabitants ; they took aveay their riches, and thereby dif- couraged trade and the arts; they removed kings and nobles be- yond the feas, and Introduced into dates difquiets and diforder; they added to the pow^r of the Roman fee, by affording favour- able opportunities for the operation of its policy, and for efta- blifhing the right of the Popes to interfere in the temporal affairs of nations ; and, in fine, they promoted every pious imperti- nence, and advanced the moll abjed fuperllition. It is alfo worthy of remark, that fome writers, who have no tinifture of philofophy, have treated chivalry and the holy wars as primary and diftindive caufes of the refinement of the Euro- pean ftatcs ; yet the latter, being really the confequences of the former, their iniiucnce ought to have been afcribed to them. The fame want of penetration is perceivable in th) fc, who, while they urge as a primary fource of improvement, the revival of literature, hold out, dinindlively, as another caufc of it, the civil code, or the laws of the Romans. They might, with equal propriety, record as particular and diftindlivc fources of refine- ment, the writings of Cicero, of Livy, or of Tacitus. Qjl z During 3o8 A VIEW OF SOCIETY During the prevalence of chivalry, it is likewife to be obfer- ved, that the ardour of rcdrcfTuig wrongs feized many knights fo powerfully, that, attended by efquires, they wandered about in fearch of objedls v/hofe misfortunes and mifery required their air.ftance and fuccour. And, as ladies engaged more particularly their attention, the relief of unfortunate damfels was the atchieve- ment they rooft courted. This was the rife of knights-errant, whofe adventures produced romance. Thefe were originally told as they happened. But the love of the marvellous carne to interfere ; fancy was indulged in her wildeft exaggerations, and poetry gave her charms to the mod monftrous fictions, and to fcenes the mod unnatural and gigantic. (23) ' Supplicem aut debilem vel arma abjicientem hoftem oc- * cidere, ctiam hodie apud Gothos fempiterno opprobrio dignum ' computatur.' 'Jo. Magnus^ Hijl. Suec. lib. 4. In the battle of Poidlers, fought by the heroic Edward Prince of Wales, the King of France was made prifoner ; and the be- haviour to the captive monarch illuftrates, more than any parti- culars I can mention, the noblenefs of the principles of chivalry. The Earl of Warwick conduded the French king, with many de- monilrations of reipeft, to the Prince's tent. ' Here,' fays a great hiflorian, ' commences the real and the ' truly admirable heroiim of Edward : For vidories are vulgar * things, IN EUROPE. 309 * things, in comparifon of that moderation and humanity difco- ' vered by a young prince of twenty-feven years of age, not yet ' cooled from the fury of battle, and elated by as extraordinary * and as unexpeded fuccels, as had ever crowned the arms of * any general- He came forth to meet the captive king with * all the figns of regard and fympathy ; adminiftered comfort to ' him amidft his misfortunes ; paid him the tribute of praife due * to his valour ; and afcribed his own vidlory merely to the blind *, chance of war, or to a fuperior providence, which controuls all * the efforts of human force and prudence. The behaviour of ' John fhewed him not unworthy of this courteous treatment : * His prefent abje6f fortune never made him forget a moment * that he was a king: More fenfible to Edward's generofity than * to his own calamities, he confell'ed, that, notvvithftanding his * defeat and captivity, his honour was ftill unimpaired ; and ' that, if he yielded the victory, it was at leaft gained by a prince ' of fuch confummate valour and humanity. ' Edward ordered a magnificent repaft to be prepared in his ' tent for the priloners, and he himfelf ferved the royal captive's ' tabic, as if he had been one of his retinue. He llooJ at the ' King's back during the meal ; conllantly refuted to take a place * at table ; and declared, that, being a fubjecl, he was too well ' acquainted with the diftancc between his own rank, and * that of his royal Majelly, to alfume iuch freedom. All his ' father's prctenfions to the crown of France were now bu- ' ricd 3IO A VIEW OF SOCIETY * ried In oblivion : John, in captivity, received the honours of * a king, which were refufed him when feated on the throne : ' His misfortunes, not his title, were refpeQed : And the French * prifoners, conquered by his elevation of mind, more than by * their late difcomfiture, burfl: out into tears of joy and admira- * tion ; which were only checked by the reflexion, that fuch ge- * nuine and unaltered heroifm in an enemy, muft certainly, in * the iflTiie, prove but the more dangerous to their native coun- ■• try.' Hume^ h'lji. of Eiiglatid, 'vol. 2. p. 214. See alfo AJJj- mole, p. 673. Morfels of flory like thefe are precious, and diftinguini thofe hiftorians who can render infl,ru£tive the details which common •writers are only attentive to make agreeable. (24) The following was one of the oaths adminiftered by the conftable in the duel. * A. de B. ye fliall lay your hand ■* ayen on the holy gofpels, and fwere that ye fhall have no moo * wepnes or poynts, but tho that ben afligned you by the con- ' ftable and marefchall, that is to wite, gleyve, long fwerd, fhort *^fwerd, and dagger : Nor no knyfe, fmall ne grete ; ne none ••engine, ne none othir inftrument with poynt : Nor ftonc of * vertue, nor hearb of vertue; nor charme, nor experement, nor * none othir ^nchauntment by you, nor for you, whereby ye *trufl: the better to overcome C. de D. your adverfarie, that fliall "* come ayens you within thefe lifts in his defence ; nor that ye •xruft IN EUROPE. 311 * truft in none othir thynge propirly, but in God and your body, * and your brave quarell ; fo God you help, and all halowes, * and the holy golpells.' Dugdale., origin, juridic. p. 82. (25) 1 lie folemn taking away of the fword, the cutting off the fpurs, the tearing trom the body the coat of arms, and the bruifing every piece of the knight's armour, appear to have been ceremonies of the degra Jation. Sclden^ Tit. hon, part 2. ch. 5. Sfci. 38. JJhmolci p. 620. Religion came alfo to concern itfelf in a matter fo important. Priefls pronounced over the culprit a pfalm, containing impre- cations againft traitors. Water was thrown upon him to wafli away the facred character conferred by his inftallation into the order. And, at length he was dragged on a hurdle to the church, where there were faid and performed over him the prayers and the ceremonies which are ufed for the dead. St Pa- laycy tome i. p. 320. AU- Authorities, Controverfy, and Remarks. ><><><>C<><>C><><><>C<><><><><>S<>C<>i><><><>C<>^^ BOOK 11. CHAPTER I. SECTION I. (0 '^ ■ "* HE ordinary form of homage and fealty varied in j|[ fome little particulars in different nations, and in the fame nations, at different times ; and fidelity, while tiie fief was precarious, could only be promifed during the connexion ot the lord and the vaffal. The oldeft example of thel'e ceremonies which is prelcrved, and perhaps the nioft fimplc, is that of R r Tajtlon 3T4 A V I E W O F S O C I E T Y Tajfilon Duke of Bavaria, to King Pepin, in the year 757. It is thus defcribed. * Taflilo Dux Bajoariarum cum primoribus ' gentis fuae venit, et more Francorum, in manus regis in vajfa- ' ticum manibus Tuis femetipfum commendavit ; fdelitatemqiu, * tarn ipfi regi Pipino, quam filiis ejus Carolo et Carlomanno, * jure jurando fupra corpus San£li Dionyfii promifit.* Adehnus, Annal. Franc, ap, BniJJel, Hv. i. ch. \.fe£l. 7. From the words more Francorum it is to be inferred, that thefe ufages were of a ftill higher antiquity ; and, indeed, there can be Httle doubt, that they prevailed from the earlieft times. We find them, accordingly, in the Anglo-Saxon period of our hi- ftory. Nichol. Fracfat. ad LL. Anglo-Saxon, p. 6. 7. It is true, notwithftanding, that fome eminent authors contend, that they were confequences of the perpetuity of the fief. But the homage of Taffilon, and the Anglo-Saxon fealty, were prior to the general eftablifhment of this perpetuity. And there does not appear any folid reafon to think, that thefe ceremonies were a refult of it. When the exercife of the prerogative of private war among the nobles had fpread its diforders and calamity, it becanie common, both in France and England, to infert a refervation in the form of homage, which limited the fidelity of the vaflals of a lord or a chief, to the ads which were not derogatory to the faith they owed to the king. This was intended as art obftruc- tion IN EUROPE. 3f5 tion to the prevalence of private war, and difcovered an advance- ment in the ideas ot civilization and government. Saint Louis eftahlifhed it in France; and it appears in tngland, in what is called ' The Statute of Homage,' in the fcventeenth year of Ed- ward II. By this form or ordinance, the vaflal, after exprefhng the fidelity he is to bear to his lord for the lands he holds, is made to add, Javing the Jaith I oivc unto our Lord the King. Out of thefe ufages, in this ftate of their reftriclion, there grew, as fiefs died away, the ligeance, or allegiance, which every fubjcd, whether a proprietor of land or not, was fuppofed to owe to his fovereign. Thus, the oath of ligeance or fealty was to produce the oath of allegiance. {2) I have endeavoured to inveftigate, in another work, the high antiquity of the feudal incidents. Dijfcrt. on the Antiq. of the Eng. Conjlitut. port z. It is a common miflake, that the feudal fruits or incidents were not known in England till the Norman times. This opinion is to be afcribcd to the want of curiofity in fome inquirers of great name, who have given a fandion to it without deliberation ; and to the narrow prejudices of others, who aft'ccl to coiifider the Norman invafion as the pro- per aera of our political conllitution, from the view of paying a compliment to the prerogative of our kings, by holding out Duke William as a conqueror, and by infiilting the confequcncc U r z of 3i6 A VIEW OF SOCIETY of the people. It Is In this manner that errors have been en- grafted upon errors. The Anglo-Saxon laws, however, oppofe the conceit of the late rife of the feudal Incidents, with a force that Is not to be refifted. They make an a£tual and exprefs mention of them. And, for formal Illuftrations of the feudal incidents in the An- glo-Saxon times, the reader may confult, The cafe of tenures upon the commijfion of defe^i'ue titles^ argued by the judges of Ire- land, Mr Sclden, in ynany parts of his works, and Mr Whitaker, in his hiflory of Manchefler. One of Canute's laws I cannot forbear to mention, becaufe it illullrates very ftrongly, in this age, the exiftence of tenures. It ordains that a vaflal who deferts, in an expedition againft an e- nemy, fhall forfeit his land to his lord ; and that, if he fhould fall in battle, his heriot Ihall be remitted, and his land go to his heirs. LL. Canut. c. 75. This defertion was, in all feu- dal countries, one of the caufes of the efcheat or forfeiture of the fief. Spclm. Glojf. voc. Felonia. We thus learn, that, in the age ot Canute, there prevailed the feudal incidents of efcheat and heriot, and that lands were not only granted in tenure, but might go to heirs ; a circumPance which may lead us to conceive, that advances were then made towards the eftahlilhment of the perpetuity of the fief. This important law is mifinterpreted by Wilkins, and, probably, with defign. The learned reader will not IN EUROPE. 317 not require to be informed, that his verfion of the Anglo-Saxon laws is often defe£tive and unfaithful. What is worthy of notice, while many writers of England look to Normandy and Duke William for the introdudion of the feudal law, and its incidents, into their nation, an author of France, William Roville of Alenzon, in his preface to the grand Couflumier of Normandy, contends. That they were firft brought into that duchy from England by Edward the Confeffor. The fa6t is, that thefe fruits and this law extended themfelves over Europe, from no principle of adoption, but from the pecu- liarity of manners and fituation of the barljaric nations who made conquefts. There is no pofition in hiftory which is clear- er than this. And Du Cange, in particular, when we conlider the amazing extent of his information, is very mucli to blame, while he fondly holds out the tenet, that the ulages and in- ftitutions of the European dates proceeded chiefly from the man- ners and cufloms of France. (3) Even in the days of Bradon, after the feudal aflbciation had received its moft daggering blows, the dodrines of the recipro- cal duties of the lord and the vaifal, and their perpetual league, are laid down in flrong language. ' Nihil ' '■mm:. .^ »i . ... 3i8 A V I E \V O F S O C I E T Y ' Nihil facere poteft tenens propter obligationem homagii, ' quod vertatur domino ad exhaeredationem vel aliam atrocem * injuriam ; nee dominus tenenti, e converfo. Quod fi fecerint, * diflblvitur et extinguitur hoinaglum omnino, et homagii connec- ' tio et obUgatio, et erit inde juftum judicium cum venerit con- ' tra homagium ct fidehtatis facramentum, quod in eo in quo de- ' linquunt puniantur, fc. in perfona domini, quod amittat domi- * nium, et in perfona tenentis, quod amittat tenementum.' De leg. et Confuctiid. Angl. />. 8 1 . (4) The ftatc, I know, of the people of old, as defcribed by Dr Brady, and Mr Hume, by Dr Robcrtfon, and a multitude of other authors, was uniformly moft abjed; and yet the power of the nobles is reprefented as moft exorbitant. They dwell on what they term the ariftocratical genius of the times, and ieem to take a pleafure in painting the abjednefs of the people. It is remarkable, that thefe notions are contradictory and in- confiftent. The nobles had immence influence ; but, in what did this influence confift? Was it not in the numbers and the at- tachment of their vaflals ? Thefe were their power; and, did they opprefs them ? The reverfe is the truth. They treated them with the utmoft lenity, and it was their intereft to do fo. The cordiality, accordingly, of the nobles and the vaflals-, was maintain- ed during a long tra£l of time, of which the hiftory has been re- peatedly written, without the neceflary attention to its nature and IN EUROPE. 319 and fplrit. The decay, indeed, of this cordiality, was to create confufions and oppreflion; and, what confirms my remark, it was in this fituation, that the power of the nobles was to be humbled. The error I mention was firft thrown out by a writer of abi- lity, becaufe it fuited the theory he inculcates. It was adopted, for the fame reafon, by a writer of ftill greater talents ; and no- thing more is neceflary to give currency to an abfurdity. For, the authors who do not think for themfelves, but who gain a fafhionable and temporary reputation, by giving drefs and trap- pings to other men's notions, will repeat it till it is believed. {5) Mr Hume has the following very fingular paflagc. ' None * of the feudal governments in Europe had fuch inftitiitions as * the county-court St which the great authority of the conqueror * ftill retained from the Saxon cuftoms. All the freeholders of * the county, even the greateft barons, were obliged to attend the ' fherifFs in thefe courts, and to afTift him in the adminiftration ' of juftice.' Append. 11. In every feudal kingdom, notwithftanding this ftrong affir- mation, the comes was known, and the comitatus. The comita- tusy or county, was the territory or edate of the comes ; and the rourt he held, and in which he prefided, was the county-court^ to 320 A VIEW OF SOCIETY to which the freeholders and feudators were called, and aded as afleffors or judges. Du Cange, and Spelman, voc. Comites. There might, indeed, be a comes who enjoyed not the pro- perty of the county, but only a part of ir ; and, in this cafe, he was conflituted to exercife jurifdidion in it. The flieriff origi- nally was a very fubordinate officer. He was fonietimes no more than the depute of the comes. Hence vicecomes was the term by which he was known. Sometimes he was only vefled with the care of the king's intereft in particular counties. And, in reality, he began only to figure when the jurifdidion of the no- bles, in the decline of fiefs, had died away to a fhadow. I: is faid by Mr Hume, That the great authority of the con- queror retained the county-courts from the Saxon cuftoms. He thus infers, that thefe courts were favourable to the royal autho- rity. The fa£l, however, is exadly the reverfe. The greater jurifdidion there is in the nobles and the people, the more li- mited is the prerogative of princes. The county-courts were eminent and formidable fupports of the liberty of the fubjedl. And, inftead of giving them encouragement, it was the intereft of the conqueror to employ his great authority in their fuppref- fion. Mr Hume adds, in the fpirit of a writer who had made a dif- covery, ' Perhaps this inftitution of county-courts in England, * has IN EUROPE. 321 * has had greater efFe£t on the government, than has yet been di- * ftindly pointed out by hiftorians, or traced by antiquaries.' Ibtd. I have remarked thefe and other vsreak places in the vvorks of this illuftrious man, that I miq;ht (how the dan ;er of implicit confidence even in the greateft names. The undu° weight of what are called great authorities, gives a ftab to the Ijiirit of in- quiry in all fciences. (6) The diftinguifhing freedom of the Germanic tribes was carried with them into their conquefts. Tacitus (aid of them, while they were in their woods, ' De minoribus rebus principes * confultant, de majoribus onines.^ De Mor. Germ. c. 1 1. This peculiarity of government, and this importance of the people, appear not only in the hiftory of thefe nations, but in their laws. The prologue to the laws of the Franks has theie words. ' Hoc decretum eft apud regem, et principes ejus, et apud cunc- * tum popultim Chriftianum, qui infra regnum Merwungoruni * confiftunt.' Lindenbr. p. 399. The lex Alaniannorum begins thus. ' Inci[)it lex Alamannorum, quae temporibus Chlotarii re- ' gis una cum principibus fuis, id lunt, xxxiii. epifcop s, et * xxxiiii. ducibus, et Ixxii. coiritibus, vel cctero populo coniUtuta * ell.' Lindenbr. p. 363. In the fame icufc, wc read of the /«- fintta multitudo fdelium who appeared in the Anglo-Saxon par- liaments. Spelviaii's councils. Originally, as in Germany, in S f all 322 A VIEW OF SOCIETY all the European ftates, every perfon who wore a fword had a title to go to the national aflembly. The fovereign could eriad no new laws, and could repeal no old ones, without the confcnt of the people. But, in antient Germany, a reprefentation of the people was even pradiled on particular occafions ; and we are told by Ta- citusy that, when Civilis declared war againft the Romans, ' con- ' vocavit primores gentis, et promptijfimos 'vtilgi.'' Tacit. Hift. lib. 4. See farther A Differtation concerning the Antiquity of tbt EngliJJj Conftitutiony part 5. After the eredion of the Euro- pean ftates, the inconveniencies arifing trom great muhiiudes of armed men in councils of bufinefs, difcovered fully the advan- tages oi reprefentation. And deputies made their appearance in thefe to confult and defend the privileges and rights of the peo- ple. The exad aera of this ellablilhment is not known in any country of Europe. Its antiquity, however, is beyond all doubt. And the commons made a tigure in the affemblies of France, termed, les champs de mars, et les champs de mai, in the cortcs of Spain, and in the wittenagemots of England. It is probable, that in France, the people were reprefented before the age of Charlemagne. That they were important in the reign of rhis j-olitic and powerful prince, there are proofs, pofitive and certain. The inftrudive work of Archbifhop Hincmar, de ordine Palatii, places this matter in a ftrong light j and Abbe Mably, who I N E U R O P E. 323 who copies and comments upon ic, acknowledges the fupreme power of the aflemblies of thofe days, felefts examples of it, and of the interference and conlideration of the people. In fdiit, no- thing of any moment or value, in peace or in war, or in any fuh- jedt whatever, could be done without their approbation. • Lex * con/en/u populi fit, ct conftitutione regis.' Capit. Kar. Cah. an. 864. ap. Baliiz. torn. 2. p. 177. This conclufion is fupported by exprefs, numerous, and concurring teftimonies of antient laws, hiftories, and ordinances, ^qc Hotoman, Frnnco-Gallia, ch. 1 o. II. Mably ObJer'vat.Jur VHiJi. de France, lib. 2. ch. 2. Rymer on the antiquity of parliatnents, &c. *. Thefe aflemblies were very different from the Etats Generaux of after times, when the rights of the people were infulted, and the legiflative power came to refide in the fovereign. Yet, it is not uncommon to confound them ; and, on the foundation of this error, improper conclufions have been inferred againft the commons of England. At what period the deputies of the people appeared in the S f 2 cortes • Mr Hume, notwithftandiiig a variety of authorities which oppofc; his af- fcrtions, could exprefs himfclf to the following purpofe. ' The great fimihiity < among all the feudal governments of Europe, is well known to every man ' that has any acquaintance with antient hiilory j and the antiquarians of all * foreign countiies, where the queflion was never cmbarrafled by party dif- • putes, have allowed, that the commons were very late in being admitted to a • fliare in the legiflative power.' Append. 11. 324 A VIEW OF SOCIETY cortes of Spain, is uncertain. But the liberty of the Wlficioths, who founded that kingdom, was ferocious ; their love of inde- pendence was foftered by the ills of the Moorifh domination ; and their fovereigns, during a long tract of time, were kept in a furprifing degree of fubjedion. Like all tlie other barbaric tribes who made cRablilhments, the individuals atnong the Goths who wore fwords, aflembled originally in the councils of the nation ; and when the difadvantages of crowded and tumi'I- tuous affemblies were uniformly felt, it is natural to Cvmclude, that the deputies of the people were called to reprefent them. From defign, however, in the Spanifh government, from the ravages of the Moors, or from the walle and havuck of time, no dire£t proofs of this reprefentation, it is faid, are to be found of an earlier date than the year 1133. Of the appearance of the deputies of the people, at this time, the evidence is produced hy Dr Geddes ; and this writer has alfo publiflied the writs of fummons, which, in the year 1390, required the city of Abula to fend its reprefentatives to the parliament of Spain. MifcellaneousTrons, 'vol. i. There is likewife evidence of a Spanifh parliament in the year i = 79, in which the deputies of the people were aflembled ; and of another in the 121 o, in which they afli. ed as a branch of the ieglflature. Geti. Hiji. Spciyn. ap. Jf'biielock, Notes uimi the Kin^^s IVrit, •vol. 2. p. 65. While IN EUROPE. 325 While liberty and the deputies of the people made a figure, and while the prerogative of the fovereign was rellrained and direded by national councils and airemblies in the other coun- tries of Europe, it feeins the height of wildnefs to conclude, as many have done, that, in England, the inhabitants were in a flate of flavery, and that the mandate of the Prince was the law. His condition, fo far from being defpjtic, was every moment expoled to danger and infult. He might be depofed for a flight offence. He was elected to his office. And, his coronation-oath expreffed his fubje£tion to the community, and bound him to protect the rights of his fubjeds. The Anglo-Saxon laws are proofs, that, inftead of governing by his will or caprice, he was under the controul of a national aflembly. In the preambles to them, we find, that the xvius or Japientes were a conftituent branch of the govern nent. The ex- prelfion feniores fapitntes populi mei, is a part oi the prologue to the ordinations of King Ina, an. 712. And \.\\t(c Japientes populi^ or deputies of the people, appear in the laws of other prmccs of the Anglo-Saxons. LL. An^lo-S...xoii. ap. JVilkins. It is very remarkable, that the term /apieritfSy as may be Ceen in Du Cange, in his explanation of ir, cxpreired, in Italv, in antient times, thofe who governed the affairs of cities and coDinumitHS. When men, ihcrctorc, ol this lort are uniformly mentioned as a part of the Anglo-Saxon u itlcnagemots, it is impoffiblev 326 A V I E W O F S O C I E T Y impoffihle, but to prejudice, not to fee, that they muft have adled as the rcprefentatives of the people, and mufl; have procured this dillindion from the opinion entertained of their vvildom or ex- perience. By a curious teftimony, it is even obvious, that the word fapientes muft have meant the commons. In the fupplication del county de Devonjlnrey to Edward III. there are thefe ex- preflions, ' que luy pleafe par I'avys des prelats, countees, ba- ' rons, et auters foges in ceft prefent parliament ordeiner,' &c. This fupplication is printed in the 4. Inft. p. 232. In the reign of the third Edward, from the auters Jages expreflTing the com- mons, it may furely be decifively inferred, i\\?\ fapientes had the fame meaning in older times. In fa£t, the expreflions which denote the Anglo-Saxon af- femblits, allude to their nationality. ' Commune concilium, ' conventus omnium, concilium cleri et populi, omnium prin- ' cipum et omnium fapientum conventus,' &c. are appellations which mark forcibly the interference and afliftance of the com- mons *. In * Mr Hume has obferved, indeed, that « None of the expreflions of the antient « hiftorians, though feveral hundred pafTages might be produced, can, 'without the • utnioft violence, be tortured to a meanmg which will admit the Co?iimons to be con- • Aitut-ut ir.embers of the great council.' Append. 1 1, It is painful to remark a want of caudour fo glaring in fo great a man. IN EUROPE. 32 In the annals of Winchelcomb, an. 811. there is to be feen the term procuratoresy as. exprelfive of a branch of the witiena- gemot. It ahb occurs in a charter of King Athelflane. And, that the pcrfons denoted by it were the deputies of the people, feen-is palt all doubt, when it is recolleded, tliat, in the Spanifh writers, this order of men is exprelfed by prociiradores de las cividades y -villas. Nay, in Polydore Virgil, we meet the ex- prcfTion procuratores ctvium populique. p. 478. ap. IVbitelocke-, •vol. I. p. 378. To thefe notices I might add a multitude of authorities, re- fpedable and pofitive. But I mean not now to enter fully into thedilpute concerning the importance of the people. To give completencfs to the fpirit of my prefent volume, ir is fufficient for me to alTert the antiquity of the commons, in oppofition to an opinionof their late rife, which a modern hiftorian, of great reputation, has inculcated, with tliat hardiiiefs which he difplays in all his writings, but with little of that power of thought and of reafoning which does honour to his philolophical works. Mr Hume, ftruck with the talents of Dr Brady, deceived by his ability, difpofed to pay adulation to government, or willing to profit by a lyilem, formed with art, and ready tor adoption, has executed his liiltory upon the tenets of this writer. Yet, of Dr Bridy it ought to be remembered, that he was the fl;ivc of a fadion, and that he meanly prollitutcd an excellent underllan- ding,. 32S A V I E W O F S O C I E T Y ding, and admirable quicknefs, to vindicate tyranny, and to de- ftroy the rights of his nation. With no lefs pertinacity, but with an air of greater candour, and with the marks ot a more liberal mind, Mr Hume has employed himfelf to the lame pur- poies ; and his hiltory, from its beginning to its concluiion, is chiefly to be regarded as a plauhble defence of prerogative. As an elegant and a Ipirited compofition, it merits every commen- dation. But no friend to humanity, and to the freedom of this kingdom, will confider his conftitutional Inquiries, with their ef- fect on his narrative, and compare them with the antient and venerable monuments of our ftory, without feeling a lively fur- priie, and a patriot indignation. (7) The general dodrines concerning wardfliips may be feen in Craig, hb. 2. Du Catige, voc. Cu/Ios, VVarda. La Coutiwie reformee de Normcmdie, par Bajnage, Ari. des Gardes. In that inrtru£tive colledion of records. The hiflory and an- tiquities of the exchequer of the Kings of England, by Mr Madox, there are the following examples of the fale of wardfliips by the crown, in the times vshich palled from Duke William to King John. Godfrey de Cramavill gave xxv 1. x s. for the cuftody of the land of Aketon, which was Ralf de Heldebouill's, and oi Ralt's heir during his nonage. Hugh de Hammavill profered x 1. for IN EUROPE. 329 for the cuftody of his fifter, with her land. Ralf de Gernemue gave a fine of Ix marks, that he might have the cuftody and do- nation of PhiHpp de Niwebote's daughter, with her inheritance. Earl David gave cc marks to have the cuftody of Stephen de Cameis, with his whole land, till his full age ; faving to the King the fervice of the faid land ; and Earl David was to make no dejhiidion upon it. And Philip Fitz-Robert gave cc 1. and c bacons and c cheefes for the wardftiip of the land and heir ot Ivo de Munby, till the heir came to be of full age. Vol. i. /». 323- 324- In remarking thefe fales, the value of money in its variations, is to be attended to. From Mr Madox, it appears, that, * in ' the reign of Henry III. Simon de Montfort gave ten thoufand ' marks to have the cuftody of the lands and heir of Gilbert de ' Unfranville, until the heir's full age, with the heir's marriage, • and with advoufons of churches, knight-fees, and other ' pertinencies and efcheats ;' and my Lord Lyttleton has calcu- lated the amount of this payment, according to the prefent va- lue of money. ' Ten thoufand marks,' he obferves, * containing ' then as much filver in weight as twenty thoufand pounds now; ' and the value of filver in thofc days, being unqucftionably * more than five times the prefent value, this fum was cquiva- ' lent to a payment of above a hundred thoufand pounds made ' to the exchequer at this time.' ////?. of Henry II. i>ol. z. p. 297. Madoxy voi. I. p. 326. T t (8) Of 330 A VIEW OF SOCIETY (8) Of reliefs in England, it is fufficicnt to give the follow- ing examyiles, as they will fully illuftrate the oppreffions which mud have refulted from the exadlion of this feudal incident. In the 5th year of King Stephen, Walter Halt gave v marks of filver for relief of his father's land. Alice, wife of Roger Bigot, gave c and fourfcore and xviii 1. for her father's land or ma- nour of Belvoir. Humfrey de Bohun paid xxii 1. and x s for re- lief of his father's land. Waleran Fitz William anfwered xxxiii 1. vi s. and viii d. for relief of his land. In the reign of King Henry II. William Fitz William paid xxv marks for relief of his land ; Theobald de Valeines xxx 1. for relief of fix knight-fees ; and Robert de Dudaville x marks for relief In the reign of K. Richard I. Robert de Odavill's Ion paid c marks for acceptance of his homage, and for relief and feifin of his land ; Walter de Niewenton paid xxviii s. and iiii d. for feifin of the fourth part of a knight's-fee, which was taken into the King's hands for default of paying relief. William de Novo Merca- to gave c marks, that the King ivould receive his reafonahle re- liefs to wit, c 1. In the reign of K. John, John de Venecia gave ccc marks for feifin and relief, and did homage to the King, and was to make the King an acceptable prcjetit every year. Geoffrey Wake gave cc marks for his relief. MaJox, Hiji. of the excheq. 'vol i. />. 316. 3 J 7. The IN EUROPE. 331 The minute fteps in the hiftory of reliefs, and of the other feudal perquifites, are no part of this work. The reader who would inveftigate Englifh reliefs ftill farther, may coiif ilt LL. Guliel. LL. Hen. L Chart. Johan. ci)V. and, tor their ftate in fo- reign countries, he may confider what is faid in BtuJJ}!, ufage- general des fie/s, iiv. 2. AJftJfes de Jenifaleniy and the Glojfaries. (9) Littleton on tenures, fed. 107. Du Cange, Difparagarc. La Coutume reformee de Normandie, (10) Celeftia, wife of Richard fon of Colbern, gave xl s. that fhe might have her children in wardlhip with their land, and that yZ?^ might not be married., except to her own good-liking. William Bifliop of Ely gave ccxx marks, that he might have the cultody of Stephen de Beauchamp, and might marry him to •whom he pleafed. William de St Marie-church gave d marks, to have the wardfhip of Robert, fon of Robert Fitzharding, with his whole inheritance, with the knight's-fces, donations of churches, and marriages of ivotnen thereto belonging ; and that he might marry him to one of his [William's] kinfwomen ; pro- vided, that Robert's land fliould revert to him, when he came to full age. Bartholomew de Muleton gave c mark?, to have the cuftody of the land and heir of Lambert de Ybetoft, and that he might marry Lambert's wife to whom he pleafj, but without difparagcment. Geoffrey Crofs gave x L marks, for the ward- fhip of the lands and heirs of Sampjon De Mules, who held of T t 2 the O '> *> A VIEW OF SOCIETY the King in capite, by ferjeanty, with the marriage of the heirs. John Karl of Lincoln, conftable of Cheftcr, fined MMM marks, to have the marriage of Richard de Clare, for the behoof of Maud, cldefl: daughter to the faid Earl. Gilbert de Maifnil gave X marks of filver, that the King would give him leave to take a wife. Lucia, Countcfs of Chefter, gave d marks of filver, that fhe might not be married within five years. Cecllie, wife of Hugh Pevere, gave xii 1. x s. that (he might marry to whom fhe pleaCed. Ralf Fltz William gave c marks fine, that he might marry Margery, late wife of Nicholas Corbet, who held of the King in chief, and that Margery might be married to him. And Alice Bertram gave xx marks, that fhe might not be compelled to marry. Madox, hiji. of the Exchequer^ "vol. i. p. 322 — 326. 463—466. Thcfe valuable notices are from records in the reigns of Hen- ry II. Rich. 1. King John, Henry III. and Edward I. (11) Henry II. levied an aid of one mark per fee, for the mar- riage of his daughter Maud to the Duke of Saxony. Of this aid, the proportion of the Earl of Clare for his own knight-fees, and for thofe of his lady the Countefs, of the old feofment, was ' fourfcore and fourteen pounds and odd ;' and for his fees of the new feofment, it was cili s. iiil d. The feofments which had been made either to barons or knights, before the death of Henry I. were called vetus feffamenttm. Fees of the new feof- ment IN EUROPE. 333 ment were from the acceflion of Henry II. This appears from the Black Book of the Exchequer. Henry III. had an aid of xl s. of every knight's fee to make his eldejljhn a knight. When King Richard was taken and iin- prifoned on his return from the holy wars, an aid was given for the ranfome of his perfon. 1 he barons and knights paid at the rate of xx. s per fee. Madox, hijl. of the Exchcq. -vol. i. p. sj^' 590. 596. In all cafes of aids, the inferior vaflals might be called to af- fift the crown vaflals. They were even to contribute to extin- guifh their debts. (12) Du Cange, voc. Auxilium. Bruflel, Ufage-general des Fiefs en France. Couft. Norman. Madox, hilt, of the Excheq, vol. I. p. 614 — 618. (13) Spelman, voc. Felonia. Lib. Feud. Etabliflemens de S. LouiS) liv. I. Craig, Jus Feudale, lib. 3. S E C- S34 A VIEW OF SOCIETY E C T I O N II. (i) TTT is to be conceived, that, originally, little ceremony M was employed in the duel. Book I. Chap. 2. Seil.4.. and the Notes. But, as ranks and manners improved, a thoufand peculiarities were to be invented and obferved. This inllitucion, accordingly, is one of the mod intricate in modern jurifprudence. It would be improper to attempt to exhauft, in a note, a topic which would require a large volume. It is only my province to put together fome remarks. I begin with a diftindion which has efcaped many inquirers, who have thence wandered in contradidion and oblcurity. The duel was, in one view, a precaution of civil polity ; in another, an infiitution of honour. Thefe dillincflive charaders it bore in its origin. Book I. Chap. 2. &/?. 4. And, in thefe different refpeds, it was governed by different forms. The com non law, and the ordinary judges, direded it in the one condition ; the court of chivalrj, or the conftitutions which gave a foundation to this court, governed it in the other. In readiiig what many authors have amafled on the duel, it is difficult to know what refers to teh IN EUROPE. 335 the former ftate of the matter, and what to the latter. Tlvzy either knew not the diftiih£tion, or poir-lTed an imperfcifl notion of it. Even in the refearches of Montelquieu, concerninj^ the judicial combat, there is thence, perhaps, a haintnefs and ein- barraflrnent ; and, in the obfervations of Dr Robertfon, on the fame fubjcft, the confufion is evident and palpable. See Note 22. CO Charles V. It has been affirmed, indeed, that the court of chivalry was not known till the eleventh century, or till a period ftill later. And, it is probable, that this court, in all its formalities, and in its condition of greatefl: fplendour, exifted not in an early age. But there is evidence, that its duties were excrcifed in very an- tient times. And, from an examination of the oldeft laws of the barbarians, it is to l)e inferred, that the bufinefs of it, except perhaps in a few inftances, was not determined by the common judges. We know, at leaft, with certainty, that, in England, in the Saxon aeia, before a regular court of chivalry was eflabliflied, points ot honour and of war were under the diredlion of the heretochs., while the duel, as a civil rule, was at the dircclion of the common judges ; and that, in the Norman age, when the court of chivalry was formally in exirte ".c, with cxtenfive powers, the conjlable and the marJJml had fuccccJ^d to the jurifdiclion of the heretochs. Spclwaii, G/oJf. />. 400. Sir Ed-ivard Coke on the court of chivalry. TliC 336 A VIEW OF SOCIETY The determination of a doubt, for which no compleat evi- dence could be produced, was the end of the duel as a civil pre- caution. The decifion oi points of honour, and difputes of arms, or the fatisfadion of a proud and a wounded fpirit, was the end of the duel, as an inftitution of chivalry. While the common judges of the land managed the duel in the former inftance, as an object of common law ; it was governed in the latter by the judges in the court of chivalry, that is, by the conftable and the marflial ; and the forms of procedure in thefe cafes were effen- tially different. Of the court of chivalry, the jurifdidion regarded matters of war, precedency, and armorial diftindions, as well as points of honour ; and treafons, and deeds of arms committed without the realm, were objeds of its cognizance. In a word, where the common law was defedlive, the pov.'ers of the conftable and the marfhal were competent. 4. Injlitut. c. 17. Yet, from thefe officers, there lay an appeal to the fovereign, as the head of arms, and he might f^op, by his power, their proceedings. It is thence that we find the Kings of England fuperfeding combats of chivalry. It was as the head of the civil flate that they could fuperfede the combats of right, or at com- mon law. Inflances of their jurifdidion, in both cafes, are not unufual. An exertion of it, in the duel of chivalry, took place in the intended combat between the Lord Rea and Mr Ramlay. Ihe IN EUROPE. 337 The Lord Rae, a Scots baron, impeached Ramfay and Meldrum for movino; him beyond the feas, to join in the treafons of the IV.arquis of Hamilton. Ramfay denied the fa£t, and offered to clear himfelf by combat. A court of chivalry was conftitutcd, by commiflion under the great feal ; and the parties were on the point of ergaguig, when Charles I. inierpoling to prevent the duel, fent them prifoners to the Tower. Ktnnet, complete hifio- ry of England, vol. 3. />. 64. An interpoiition in the duel at common law, was exercifed in an intended combat in a writ of right between the champions of Simon Low and Jo. Kine, pe- titioners, and of Thomas Paramorc, defendant. The battle was difcharged by Queen Elizabeth. Spcliii. GiojJ. p. 103. In the duel by chivalry, champions were not ufual ; bccaufe queftions of honour required the engagement of the parties. In the duels of right, the parties might have champions, becaufe the trial was merely an appeal to the Divinity, who was to de- cide the truth by affiiling, miraculoufly, the caufc ot the inno- cent perlon ; and this afliHance might be manifefted cither to himfcU or to his reprefentative. 1 he fafliion, hov^'evcr, of mar- tial times, was an induceinent to the parties themi'clves to en- gage : And, in general, champions vcre only proper for the old and infirm, tor priells, minors, and women. Da Can^e^ voce Cmnpiones. U u Antiently, 338 A VIEW OF SOCIETY Antiently, in the duel of right, there was a difcretionary power in the judges to determine in what cafes it was nccefl'ary ; and this was a proper reltraint on the violence with which the duel was courted, in preference to other modes of trial. Brujfcl^ ^fag^ general des Fiefs,, Jiv. t,. ch. 13. Exprefs laws were even made to defcribe the occafions in which alone it was to be expedient. There is, on this head, the following regulation of Henry I. ' Non fiat bellum fine capitali, ad minus x fol. nifi de furto vcl • hujufmodi nequitia compcllatio fit, vel de pace regis infrada, ' vel in illis in quibus eft capitale mortis, vel diffamationis.' LL. Hen. I. c. 39. In the reign of Henry 11. it was the practice to permit the de- fendant to take his choice between the affile or jury and the duel. * Habebit eledionem,' fays Bra^on, ' utrum fe ponere velit Juper- *■ patriam^ utrum culp. fit de crimine ei impofito, vel non : Vel ' defendendi fe per corpus fuum.'' Lib. 3. c. 18. This marks the decline of the duel, and accordingly, it gradually gave way to the jury. To this alternative of being tried by one's country, which exprefles the form of the jury, or by the duel, which expreffes the appeal to the Divinity, there is yet an allufion in the queftion propofed to a culprit, and in his anfwer. Culprit. Hoiv ivilt thou be tried ? His reply is. By God and my country. There is here a rule of law which has furvived its caufe or ne- ceffity. The alternative is fuggefted in the queftion, when no alternative exifts. And the anfwer includes both trials, when one IN EUROPE. 339 one only is in pradlce. Abfurdities of this kind, for they furc- ly deferve this name, muft be frequent in the progreflion of ju- rifprudence in all nations. The duel of chivalry loft its legality with the fall of the court of chivalry. It left behind it, however, the modern challenge or duel, which it is diflionourable to refufe, and illegal to accept. The jury, which fwallowed up the duel at common law, could here afford no remedy. A punier, though a more ufeful relic of the honourable court ot chivalry, which was once fo high in repute, that it was in danger of incroaching on the jurifdidion of other courts, is yet familiar in the heralds who manage armories, delcents, and fu- nerals, and who record admiflions to the peerage. The decay of the manners of chivalry, was the diflant caufe of the fall of this court ; and its immediate one was, perhaps, the jealouly of the great powers of its judges. There has been no regular high conllable of England fincethe 13th year oi Hen- ry Vlli. And the marelchal dwindled down into a perfonal di- flindion, or name of dignity. In France, points of honour were originally under the cog- nizance ot the maire of the palace; and this cfRcer, wim was to acquire the greatcft powers, appeared in times of a remote anti- U u 2 quity. 340 A VIEW OF SOCIETY quity. Du Cange, 'voc. Mijor Domus. After the age of Hugh Capet, this dignity war. 1 pprelFed ; and out of its ruins four courts arofe. One of tUefe was the court of chivalry, or the of- fices of the high conftable and marftial. The other courts were thoie of the high chancellor, the high treafurer, and the great marter of France, or the judge of the King's houlhold. For, in the aera of his grandeur, the maire of the palace had engroffed to his jurildidion whatever related to arms, juftice, and finance, (2) It has been contended, that a knight's feeconfifted regularly of a certain number of acres. Spelmaii., voc. Feodum. Camden, Introd. to the Britann. p. 246. But the value of acres muft have varied according to their fertility and fituation ; and it feems the more probable notion, that a proportion of land, of a determined value, no matter for the quantity of the acres, was what in ge- neral conftituted a knight's fee. The confideration of the reve- nue that was necefTary for the maintenance of a knight, and for the furnifliing of his arms, would dired the extent of the land. The will of the grantor, however, and the confent of the re- ceiver, might conftitute any portion of land whatever a knight's fee, or lubjedl it to the fervice of a knight. This is put pafl: all doubt by the following remarkable paper in the Black Book of the i xchequer, which certities Henry II. of the ftate of the knight's fee of one of his vafTals. Carta IN EUROPE. 341 Carta Willelmi, JiUi Roberti. Kariflimo Domino fuo H. regi Anglorum, Willelmus, fillus Roberti, falutem. Sciatis, quod de vobis teneo feodum, i. mi- I'n'is pauper rifti urn, nee alium in eo feodavi, qui vix in fufficientia, et flcut tenuit pater meus. Valete. Liber Niger Scaccariy vol. i. p. 247. E^it. 1771. In the records of England, there Is mention alfo of the fmnll fees of the honour of Moreton ; and it is fuppofed that the fees which were granted previous to the death of Henry I. were in general more extenfive than thofe which were pofterior to it. Madox, hift. of the Exch. 'vol. i. p. 649. In England, as w.-U as in France, there are even frequent examples of whole manours which were held by the fervice of one knight, and accounted as a fmgle knight's fee. Dugdale''s baronage, vol. 2. p. 107. Notes fur les Ajfifes de jferufalenty par ThanviaJfierCy p. 252. But, there were not only poor fees granted out by the crown. There were even grants in capite of the half of a knight's fee, and of other inferior portions of it. Of this the charters which follow are an inftrudive evidence. Carta ^42 A VIEW OF SOCIETY Carta * Guidonls Extranei. Gwido extraneus tenet de Rege Alvin delegam per fervitlum dimidii militis. Carta Roberti, flii Albr'ici, Domino fuo KarlfTimo H. Regi Anglorum, Robertus, filius Albrici Camerarii, falutem. Sciatis, Domine, quod ego teneo de vobis feodum dimidii militis. Valete. Carta Willelmt Martel. Ego Willelmus Martel teneo in capite de rege quartam par- tem feodi. I. militis in Canevvic juxta Lincolniam de antiquo fe- famento, unde debeo ei facere fervitium, et nichil habeo de novo fefamento m comitatu Lincolniae. Lib. Nig. Scaccarii, vol. i, p. 147. 217. 269. It was chiefly the polity or the natural beneficence of princes and noblea that varied the condition of fees. At times, the fee was fcarcely fufficient for the fervice required ; and, on other oc- cafions, it was mfinitely plentiful, and beyond all proportion to the • Guy Strange. IN EUROPE. 343 the military purpofe of the grant. Its value, on an average, is, however, to be calculated from records and ads of parlia uent. From William the Norman till King John, it was in progreffion, a five, a ten, a fifteen, and a twenty pound land !• In King John's times, it grew to be a forty pound land ; and, before the aera of the ad of parliament which took away and abolilhed the mi- litary part of the feudal fyflem, the knight's fee was computed at L. 200 per annum. Thefe things are very curious, and might lead to political reafonings of importance. Spelman, voc. Miles., AJImiole on the Order of the Garter. (3^ Baronies and earldoms could be created or made to con- fift of any number of fees whatever. Thus, the barony of Wil- liam de Albeney Brito contilttd of thirty-three knight's fees, the barony of Earl Reginald, of two hundred and fitteen kni,^hi's fees, and a third part of a fee; and William de Mekhines had a bjrony of eleven knight's fees. Alaaox, Baronia Jn^/ica, p. 91. Thus the earldom of Geofrey Fitzpeter Earl of Ellex con- fifted of fixty knight's fees; and that of Aubry Earl of Oxford, of thirty knight's fees. Selden, Tit. hon. part. z. ch. ^.fcd. 26. Inftiuices to the fame purpofe might be colleded in the greateft profulion. From t Sir William Blackftone feems to think, that thf knight's fee, in the rcigu of the Conqueror, was ftateJ at L. 20 fer annum, which is certainly a mi- Cake. Book 2. ch. 5. 344 A V I E W OF SOCIETY From fa£ls fo particular, it is, 1 conceive, to be coucUidcd, that Sir Edward Coke is mirtaken, when he lays it down, that a ba- rony confifted, in antient tiities, of thirteen knight's fees and a third part, and that an earldoni confifted of twenty knight's fees. \. Injiitiit. p. 6g, ']0. According to this way of think- ing, fome of the barons and earls whofe names are now recited, muft have poflefTed many baronies, and many earldoms ; aa idea which is furely not only ftrange, but abfurd. The fuppo- fition that nobility is inherent in a certain and determined num- ber of fees, which this opinion implies, is a notion, that does not correfpond with feudal principles. The nobility was given, not by the mere poflcffion of the tees, but by their eredtion into an honour by the fovereign. Yet Sir Edward Coke had an au- thority for what he faid. It is the old treatife, termed the Mq~ dus tenend't parViamentum. This treatife, however, is not of fo high a date as the Saxon times, to which it pretends ; and the circumftance of its afTumed antiquity, with the intrinfic proofs it bears of being a fabrication in the times of Edward III. detract very much fnim its weight. And, in the prefent cafe, it is in oppo- fition to indubitable monuments of hiftory. I am fenfible, that Sir William Blackftone has faid exprefsly, ' That a certain number of knight-fees were requifite to make ' up a barony.' Book. 2. ch. 5. He has not, however, entered into any detail concerning this pofition. I fhould, therefore, i- magiue, that he has relied implicitly on the authority of Sir Edward I N E U R O P E. 345 Edward Coke, which ought not, perhaps, to be efteemed too highly in queitioas which have a connection with the feudal in- ftilutions *. Nor is it in England only that examples can be produced to refute this notion about the conftitution of baronies and earl- doms. In Normandy, five knight's fees might form a barony; and of this the following teftimonies are an authentic proof, i. X X ' Ricardus • That Lord Coke had neglefted too much the feudal cuftoms, was a mat- ter of lamentation to Sir Henry Spelman. It is with a reference to them, that Sir Henry thus fpeaks. ' 1 do marvel many times, that my Lord Coke, adorn- ' ing our law with fo many flowers of antiquity and foreign learning, hath not, • (as I luppofe), turned afide into this field, from wlicnce fo many roots of our ' law have, of old, been taktn and tranfplanted. I wifh fome worthy lawyer ' would read them diligently, and fliow the feveral heads from whence thofe of • ours are taken. They beyond the feas are not only diligent, but very curi- ' ous in this kind ; but we are all for profit and lucraudo pane, taking what • we find at market, without inquiring whence it came.' Reliq, Spelman, p. 9y. The negleft which produced this complaint, and drew this wifli from this learned knight, is Hill prevalent. The law in Great Biitaiu is no where ftu- died in its hillory, and as a fciencc. The lludent is folicitous only to ftore his memory with cafes and reports ; and courts of jur.icc pay more regard to au- thorities than to rcafonings. From the moment that the Didionaiy of Deci- fions was publillicd in Scotland, the knowledge of the Scottifli law has decli- ned. Yet the rtfpcdable author of th.it compilation did not furcly im.igiijc that he was about to do a prcjudi(.e to his nation. 346 A VIEW OF SOCIETY • Ricardus de Harcourt tenet honorem S. Salvatoris de domino • rege per fervitium 4 niilitum : Sod debcbat quinque, quando • baronia erat Integra.' 2. * GulUelmus de Hommet conftabula- • rius Normanniae tenet de domino rege honorem de Hommetto • per fervitium 5 militum, et habet in eadem baronia 22 feoda ' militum ad fervitium fuutn proprium.' Rege/irum Philip. Aug. Herouvallianum^ ap. Dii Cattge, voc. Baronia, (4) The terms knight and chivakr denoted both the knight of /joHowr and the knight of tenure; and chivalry was u fed to exprefs both knighthood and knight-Jervicc. Hence, it has pro- ceeded, that thefe perfons and thefe Rates have been confound- ed. Yet the marks of their diflference are fo ftrong and pointed, that one muft wonder that writers fliould miftake them. It is not, however, mean and common compilers only who have been deceived. Sir Edward Coke, notwithftanding his diftinguifhing head, is of this number. When eftimating the value of the knight's fee at L. 20 per annum., he appeals to the ftatute de mi" litibusy an. I. Ed. II. and, by the fenfe of his illuftration, he con- ceives, that the knights alluded to there, were the fame with the pofleffors of knight's fees ; and they, no doubt, had knight's fees ; but a knight's fee might be enjoyed not only by the te- nants in capite of the crown, but by the tenants of a vafTal, or by the tenants of a fub-valTal. Now, to thefe the ilatute makes no allufiun. It did not mean to annex knighthood to every land-holder in the kingdcm who hud a knighi's fee; but to en- courage IN EUROPE. 347 courage arms, by requiring the tenants in capita of the crown to take to them the dignity. He thus confounds knighthood and the knight'' s fee. Coke on Littleton., />. 69. If I am not deceived, Sir William Bhckftone has fallen into the fame miftake, and has added to it. Speaking of the knights of honour^ or the equites aurati, from the gilt fpurs they wore, he thus exprefles himfelf. ' They are alfo called, in our law, * militest becaufe they formed a part, or, indeed, the it'hole of * the royal armyy in virtue of their feodal tenures ; one condition * of which was, that everyone ivho hc^lJ a knight^s fee [v/hich, * in Henry the Second's time, amounted to L. 20 per aunuw), * was obliged to be knighted, and attend the king in his wars, * or fine for his non-compliance. The exertion of this prero- ' gative, as an expedient to raii'e money, in the reign of * Charles I. gave great offence, though warranted by law and * the recent example of Qiieen I lizabcth : But it was, at the * Refforation, together with all other military branches of the * feodal law, abolifhed ; and this kind of knighthood has, fince * that time, fallen into great dilVepute.' Book. 1. ch. 12. After what I have jufl: laid, and what is laid down in the text, I need hardly obterve, that this learned and able writer has con- founded the knight oi honour and the knight of tenure. And, that the requifiiion to take knighthood, was not made to every X X 2 _ poUcllbr 348 A VIEW OF SOCIETY pofl'eflbr of a knight's fee, but to the tenants of knight's fees held in capite of the crown, who had merely a fufficiency to maintain the dignity, and were thence difpofcd not to take it. See farther the notes to chapter IV. The idea that the whole force of the royal army confided of knights of honour, or dubbed knights, is fo extraordinary a circumftance, that it might have fhown, of itfelf, to this eminent writer, the fource of his error. Had every foldier in the feudal army received the inveftiture of arms ? Could he wear a feal, furpafs in filk and drefs, ufe enfigns- armoriaU and enjoy all the other privileges of knighthood ? But, while I hazard thefe remarks, my reader will obferve, that, it is with thegreateft deference I diffent from Sir William Black- ftone, whofe abilities are the object of a mofl general and defer- ved admiration. In this note, and, perhaps, in other places of this volume, t ufe the expreffion ' tenant in capite ot the crown,' which may feem a tautology to many. The phrafe, ' a tenant in capite^ may, indeed, exprefs fufficiently the royal vaiTal. It may, how- ever, cxprefs a tenant in capite of a fuhje£t. And this .^.cjn, on the laws and government of England. (3J ' In univerfum acftimanti plus penes peditem roborls.* Tacit, de Mor. Germ. c. 6. (4) Many writers have obferved, that it was William the Nor- man who introduced archers into England. But they were known in the Anglo-Saxon armies. A law of Alfred has thefe words, ' Si quis alteri digitum unde fagittatur abfciderit, xv ' fol. com p.' See LL. Jilfr. c. 40. as interpreted by Lindenbrogi' 7is, in his Ghjfary, p. i 389. Archery was alfo of high antiquity in the other flates of Europe. See LL. Sal. tit. 3 1. /. 6. LL. Ripiiar. tit. 5. /. 7. The Englifh were to excel all nations in the ufe of the bow, and for far fhooting. It was the archers who gained the battles of CrefTy, Poidiers, and Agincourt. ' King Edwarde the third,' fays Ajchani, ' at the battaile of ♦ Crefiie, againft Philip the French King, as Gaguinus the French ' hifloriographer plainlye doth tell, flevve that day all the nobili- • tye of Frauncc onlye with his archers. ' Such like battaile alfo fought the noble Prince Edwarde befide * Poidersj where Johne the French Kinge, with his fonne, and IN EUROPE. 367 ' In a manner all the peres of Fraunce, were taken, befides thirty * thoufand which that daye were flaine, and very few Engli{h * men, by reafon of theyr bowes. * Kinge Henrye the Fifte, a prince perelefle, and mofl vidori- * ous conquerour of all that ever dyed yet in this parte of the * worlde, at the battle of Agincourt, with feven thoufand fight- ' inge men, and yet many of them ficke, being fuche archers, * as the chronicle fayth, that moft parte of them drewe a yardc, * flewe all the chivalrye of Fraunce, to the number of forty thou- * fand and mo, and loll not pafl: twenty-fix Enghlhmcn.' Toxo- phi/us, or the Schok of Sbootinge., p. 112. (5) ' He,' fays Littleton^ ' which holdcth by the fcrvice of * one knight's tee, ought to be with the King forety dayes, well * and conveniently arrayed for the warre.' Tenures., book z. ch. 3. See farther Du Canget 'voc. Fendnm m'liitarc. Spclmau^ voc. FeuJum Hauberticum, et AJfiJes de Jerufalcm, avec des notes, par Tbauinajjiere, p. 266. (6) Brnflel, Ufage-gencral des fiefs, vol. i. p. 164. 16S. Da- niel, hilt, de la milice Fran9oife, liv. 3. In England, in the time of Edward III. his army in France, Normandy, and before Calais, belidcs the Lords, confiHed of 31294 combatants and attendants ; and their pay for one year and 568 A V I E W OF SOCIETY and 131 days amounted to 127201 1. 2 s. 9 d. The following ipecification of particuiais will furniflx an idea of the military pay and fervice of thofe times. ' To Edward Prince of Wales, being in the King's fervice in * Normandy, France, and before Calais, with his retinue, for * his wages of war, 20 s. a day. Eleven banerets, every one * taking 4 s. a day. 102 knights, each 2 s. a day. 264 efcuires, ' each I 2 d. a day. 384 archers on horfeback, each 6 d. a day. '69 foot archers, each 3 d. a day. 513 Welflimen, whereof * one chaplain at 6 d. a day. One phyficlan, one herald or cryer, ' 5 eiifignes, 25 ferjeants or officers over 20 men, each 4d. a ' day. 480 footmen, each 2 d. a day. « To Henry Earle of Lancafter, being in the King's fervicie * before Calais, with his retinue, for his wages of war, and one * other Earle, each 6 s. 8 d. a day. Eleven banerets, each 4 s * a day. 193 knights, each 2 s. a day. 512 efcuires, each 12 d. ■ ' a day. 4b men at armes, and 612 archers on horfeback, each * 6 d. a day. ' To William Bohun, Earle of Northampton, being in the * Kiner's iervice in Normandy, France, and before Calais, 2 ba- * nercts, 46 knighrs, 112 clcuites, 141 archers on horfeback. ' for their wages as above. To IN EUROPE. 369 ' To Thomas Hatfield bidiop of D.irham, 6 s. 8 d. a day. 3 ' banerets, 48 knights, i64efcuires, 8 i archers on horfeback, ' every one taking as above. ' To Ralf Baron of Stafford, being in the King's fervice in ' the places aforefaid, with 2 banerets, 20 knights, 92 efcuires, • 90 archers on horfeback. Every one taking as above.' Thefe things appear in a contemporary record, publi(hed by Dr Bradj in his hillory of England. See vol, 2. Appendix^ p.U. A aa SEC- 370 A VIEW OF SOCIETY SECTION 11. (i) TTN rolls of the militia of France in the year 1236, and M preceding that period, which were obferved by Pere Daniel^ there were entered military tenants who were marked down for the fervice of 5 days, and for other proportions of the ordinary fervice of forty days. And thefe are proofs, not only of fees in France, but of the fradions of fees. Milice Fran^oife^ V'SS- This learned author, indeed, not attending to the regulations which made the fradtions of a fee give their proportion of the ordinary fervice, has endeavoured to account for the limited number of days which many tenants were bound to ferve, by re- fined reafonings and conjedures ; which fhow how acutely, and yet hov^r abfurdly, a man of ability may employ himfelf in fearch- ing out the truth *. Littleton^ * ' Pour ce qui eft de ceux que I'on voit dans les roles n'fitre obligez qu'a cinq, ' qu'a quinze, ou vingt cinq jours, ce furent des concefllons particulieres, dont il ' eft difBcile de conjeflurer la caufe; ce fuc pour quelque fervice fignale rendu a I'etat, IN EUROPE. 37r Littleton, having remarked that the ordinary fervice of the knight's fee was forty days, is careful to add, ' thit he, which • holdeth his land by the inoitie of a knight's fee, ought to be A a a 2 * with ' I'etat, ou peut-£tre que lears ancitres durant les giierres civiles foumlrent au • Roi leurs chateaux, ou leurs terres a cette condition, ou qu'ils avoient quclque ' autre obligation qui fuplcoit au fervice ordinaire; coinme, pir ei'^mple, de « faire la garde en certains lieux lorfque I'ennemi approchoit. On voit en eflfet ' dans ces roles quelqucs genlilfhommeb fieflVz, obligez feulcment a faire le guet ' en certaines occafions dans quelques fortcrclFes. ' Une autre raifon peut avoir contribue h la reduflion du fervice a un terme • plus court qu'il n'etoit autrefois : C'efl que fous la premiere race, et fore avant ' fous la feconde, IVrnpire Frangois eioit be;iucoup plus eitndu que fous la troi- ' fieme. II falloit aller chercher les ennemis et les rebelles dans la Germanic, et au « dela ; il falloit paflcr les Alpcs, ou les Pyrenees, et cntrer bien avant en Italie et " en Efpagne : Par confequent les expeditions duroieni beaucoup plus long-tems ' que fous la troifieme race, fous la quelle le royaume avoit des bornes beaucuup ' plus itroites.' Liv- 3. ch. 2. TIjc wildnefs of thefe conjeflurcs does not require to be pointed out minutely, as it will appear fiom a comparifon of the teit with this note. Yet I ccnfure not the abilities of this hiQorian. If wc could reach the truth in all fciences, we (hould find, that it is the greateft men who have wandered oftencft. The philo. fopher, who Hates fentiments of his own, muil liCLcifarily be miftaken at times, and is often to reafon hypothetically. The author who would c.itch the gene- ral fcnfc and opinions of the world, has no title to travel out of the right path ; and, if his errors are frequent, ho dcfervcs to be contemptible. It is not fo with the wanderings of the invemivc and rtflcdliiig mind. Though they merit not ap- probation, they call for refpcdl. The abfurdities of the profound ;.re the rcfults of thought and of courage; thofe of the (hallow are the fruits of mere wcaknefs. • 372 A VIEW OF SOCIETY * with the King twenty days ; and that he which holdeth his * land by the fourth y\ f a knight's fee, ought to be with the * King ten days ; and fo he that hath more, more ; and he ' that hath leffe, lefle.' Tenures, p. 69. In a roll, de Vojl dc Foix, in the year 1272, there are the following explicit proofs of the fradlions of fees, and of the li- mited fervice that was to be given for them. Gaufridus de Baudreville, praefentavit fervitium fuum per xH. dies pro dimidio feodo. Johannes Morant dicit, quod debet fervitium quarti unius mi- litis. Johannes de Falefia Scutifer dicit, quod ttnet dimidium feo- dum loricae, pro quo debet, ficut dicit, auxilium exercitus et cal- vacatae quando per Normanniam levatur, aut fervitium per xx dies eundo et redeundo ; et fi fervitium didlorum xx dierum captum fuerit, auxilium praedidum non debet capi nee levari. See BruJJel, Ufage-general des fefs, p. 174. In lingland, the fractions of fiefs arc to be proved by almofl: every article in the Black Book of the Exchequer, and by a mul- titude of records in Madox 5 and to thefe authoriiies I refer the inquifitive reader, (2) Du I N E U R O P E. 373 (2) Du Cange, voc. Membrum Loricae. Craig Jus Feudale, lib. I. Affiles de Jerufalem, avec des Notes, par Thaumaffiere, p. 104. (3) Cowel, Interpreter, voc. Fee Perm. Spelman, voc. Feodi Firma. Du Cange, voc. Feudi Firma. (4) See what is faid by Mr Baron Dairy mple^ in the mafterly fketch he has given of the hiftory of the ahenation of land, in his comprehenfive and learned treatife concerning feudal property in Great Britain. (5) Littleton, Tenures, fed. 96. Daniel, Hid. de la milice Fran9oife, liv. 3. (6) In the flridnefs of the feudal regulations, the eftate of the vaflal might be forfeited for his negledl of fcrvice. But, in ge- neral, it feemcd equitable, that a fine only fliould punifh his dil- obedience. BruJj'cU tome i. -i^Jf'Jes de Jerufoleui^ avec des notes par IbauviaJJiere^ />. 267. Etablijjcmens de S. Louis ^ liv. 1. In England, in the Anglo-Saxon times, the forfeiture of the benefice or a line, as in the other countries of Europe, was the punilhincnt of the refradory vaflal. The cafe was the fame in the Norman period of our hiftory. When the King's funimons ad 374 A VIEW OF SOCIETY ad habendum fervitiunu was iffued, it was expedled that it would be complied with. The following fines and forfeitures for ne- gled of fcrvice are from records. ' The Abbot of Pcrfliore was amerced, for not fending his ' knights to ferve in the army of Camarun, as he was warned to ' do. William de Haftinges fined in c miarks, that he might ' have the king's favour, becaufe he did not march at the king's ' fummonce in the army of Normandy. William, bifhop of ' Winchefter, fined, or was amerced, in C marks, becaufe he was ' not in the army of Gannok, nor had his fervice there. Mat- ' thew Turpin was dilTcifed of his land and ferjeanty in Winter- ' law, becaufe he was not in the king's fervice beyond fea. Dun- ' can de Lafcels was diffeifed of three knight's fees and a half, * becaufe he was not with theking in his army of Scotland, * with horfes and arms. Roger de Cramavill was diffeifed of * his land, becaufe he did not go with the king in his voyage to * Ireland. Malgar de Vavafur was diffeifed of his land, becaufe * he neither went with the king into Ireland, nor made fine for * the voyage.' Madox, Hi/}, of the Exchequer, vol. I. p. 662. 663. See farther Baron. Anglic, book. i. ch. 5. (7) Littleton, tenures, fed. 95. Du Cange, Gloff. voc. Scu- tagium. (8) IN EUROPE. 375 (8) Daniel, Milice Franfoife, liv. 3. Du Cange, voc. Cote- relli, Brabanciones, Brabaucini. Hume, Hift. vol. 1. p. 308. In France, it is faid, that mercenaries were not employed in confiderable numbers, till the reign of Philip the Auguft. In England, it is thought, they were firft known under Henry II. From the caufes I mention, it is probable, that their ufe muft have been familiar, and even extenfive, in both countries, in ear- lier times. (9) Baronia Anglica, book I. ch. 6. Daniel, Milice Fran- 9oife, liv. 3. (10) ' The religious,* fays Madox, ♦ infifted that they held * all their lands and tenements in frankahnoigne, and not by ' knight fervice. This allegation was ufed with fuccefs by the ' abbot of Leycefter, the priour of Novel-lieu without Staunford, • and the abbot of Pippewell.' He cites the records which prove thefe frauds; and, in another place, appealing alfo to records, he has thefe words. ' The abbot of St Auflin had a great fuccefs in ' defrauding the king of his fervices. The abbot, it feems, had ' been feofFcd to hold by the fervice of fifteen knights. Of thcfc ' fifteen, he found means to conceal twelve, and anfwered to the ' king with three only.' Baron. Angl. p. 109. i 14. (") 376 A V I E W O F S O C I E T Y (ii) A record of Henry III. fays of Richard Crokel, * Faclet ' Icrvitium triceliinae partis feodi j militis.' A record of the fame prince, fays of John Hereberd, ' Faciet fervitium fexagefi- ' mae partis unius feodi.' Hijl. of the Exchequer^ vol. i. p. 650, 651. A variety of inftances, to the fame purpofe, are to be collected. On the fuppofition that the fractions of a fee beyond the eight parts, were not properly its members, the demands of fer- vice for the thirtieth and the fixtieth parts of a fee, muft have been encroachments and feverities, againft the ufual practice and ufages of fiefs, li/ervice, however, was required for fuch frac- tions, the afleffment of a/ciitage on the tenants of knight-fervice would neceffarily fubjed them in their proportion of payments. And the difficulties attending either the exaQioa of thefe fer- vices, or thefe payments, mud have been infinite. It is to be confeffed, that the giving the thirtieth or the fix- tieth part of the fervice of forty days, which was the ufual term of the fervice of the military tenants, has a Itrange afped. Per- haps the grants I mention were not regulated by the ufual rules which direded fees. It is well known, that there were tenants in knight-fervice who were bound to give, not the ufual fervice of forty days, but the attendance of themfelves and their knights, both at home and abroad, at all times, and wherever it (hould IN EUROPE, 377 fhould be demanded. Even in this view, however, It is difficult to comprehend the regulations which muft have governed the frad:ions of fuch tees. But there were alfo vaffals in knight-fervice whofe ftlpulated time in the field and in expeditions was fixty days. See Eta- blijjcmcns ck S. Louis, p. 23. There might thus, by the agree- ment of fuperiors and tenants, be ftipulatcd fervices for one hundred, two hundred, or any definite number of days whate- ver. On this principle, it is eafy to account for the fradlions of fees which gave fervice for the thirtieth, the fixtieth, or any fuch proportions of a fee. In this ftate of the matter, however, the fractions I fpeak of in the text, though out of the common ufage of fiefs, muft have been members of the fee. In the courtly and agreeable introdudion to the Hiftory of Charles the Fifth, in the View of the Progrefs of Socic^ ty iti Europe, from the Jiib'verfion of the Roman Empire, to the beginning of the ftxteenth century, of which the fchcme is fo comprehenfive, it is remarkable, that, amidll a wide variety of other omiffions, there is not even the flightcft confideration of knight-fervice, and the knight's fee. Yet thefe circumftan- ces were of a moft powerful operation, boih v.'ith refpetft to go- vernment and manners. I make not this remark to detract from the dilij^ence of an author whofe laborioufncfs is acknowledged, and whole total ab(\inence from all ideas and inventions of his •wn, permitted him to carry an undivided attention to other 13 b b men's \ 378 A VIEW OF SOCIETY men*s thoughts and fpeculations ; but that, reftlng on thefe pe- culiarities, I may draw from them this general and humiliating, yet, 1 hope, not unufeful conclufion, that the ftudy and know- ledge of the dark ages are ftill in their infancy. Are we for ever to revel in the i'weets of antient lore ? And are we never to- dig up the riches of the middle times i C H A P« CHAPTER IV. (i) A MONG the dlfljurfements from the Exchequer of J. \ the kings of Lngland, there feetns to have beea much for the behoof of the knights of honour, whom they re- tained. This appears from a variety of records in Madox, and accounts for the high charges of the flierifs for palfreys, faddlesi gih-fpurs, peacocks-crefts, filk toifes, robes, gloves, ileel-caps, fwords, and lances, ^j^- oj' the Exchequer, ch. lo. A penfion of L. 40 per annum was given by Edward III, to John Atte Lee, who had been inverted with knighthood in au~ xilium Jiatus J'ui manutenendi ; and that Sir Nele Loring might better maintain the honour of knighthood, he granted to him, and his heirs male, L. 10 per annum. An annuity of forty marks was given to Sir John Wallh, hy Richard 11. to enable him to fupport this dignity. And other examples to this purpofe are to be colleded. AJIjmoIe on the Gurter, p. 34. See farther Du Cange, voc. Mtlites Regis, et Dijjert. 5. Jur l^Hiftoire de St, Louis. B b b 2 (2) o 80 A VIEW OF SOCIETY (2) Information concerning the knights retained by the nobles, is not to be found in that abundance which might be expeded.' In an account of the houfchold cxpence of Thomas Earl of Leicefter an. 13 r 3, there are charged 70 pieces of blue cloth for his knights, :and 28 for the efquires; 7 furs of powdered ermin, 7 hoods of purple, 395 furs of budge for the liveries of barons, knights, and clerks ; 65 fafFron-co- lourcd cloths for the barons and knights; and 100 pieces of green filk for the knights. In this account, there is alfo a charge of L. 623 ; 15 : 5, as fees to earls, barons, knights, and efquires. Stow, Sufuey of London^ in Strype^s edition, vol. \. p. 243. The total expenditure of the Earl of Leicefter for one year, which was 7309, is valued by Mr Anderfon, at L. 21,927 of our mo- ney; and from the difference of living, or of the efficacy of money, his expence is made to be equal to L. 103,633. Ander- ' fon, Hijl. of Comiyierce, 'vol. i.p. 153. A board for the knights was one of the eftablifhments of the fifth Earl of Northumber- land. Hoiifchold-bookt p. 2,10. See farther, St Palayc, tome I. p. 312. 364. (3) ' In the nineteenth year of King Henry III.' fays Madox, * all the fherifs of England were commanded, by clofe writs of * the great feal, to make proclamation in their refpedive coun- ' ties, that all tliey who held of the king in chief, one knight's ' fee or more, and were not yet knighted, fhould take arms and ' get theaifelves knighted, before the next Chrifiimas, as they ' loved IN EUROPE. 3B1 * loved the tenements or fees which they he'd of the k'ng.* Baron. Angi. p. 1 30. Proclamations of this kind were fre- quent. (4) The writs to take knighthood exprefled often, In their bo- foms, the fingle knight's fee, as the eftate entitling to knight- hood ; and they are valuable as afcertaining, at different times, the value of the knight's fee. Thus, there are rolls of different dates which ftate the knight's fee at fifteen, twenty, thirty, forty, and fifty pounds of yearly valuation. A fpecification of fuch re- cords may be leen in Ajhmole, p. 33. and Coke^ 1 i. Injlitiite^ p. 597. And, it is to be wilhed, that lome intelligent perfon, who •has acceis to the public offices, would publiih a leries of them. Irom fuch a work ingenious men might derive many advanta- ges. It is not to be conceived, that the knight's fee which was held of a fubje<5l, could entitle to knighthood ; and yet many learned writers have expreffed themfelves to this purpofe. it was the knight's fee in capite, or of t!ie crown. This is illurtrated by the writs of fummons to take knighthood. And, ot this wrir, the record which follows, is an example, in the ufual or regular form. Rex Vicecomiti Norf. et Suft'. falutem. Praecipimus tibl, quod, vifis literis iftis, per totam balivam clamari facias, quod omncs 3^2 A VIEW OF SOCIETY omnes ilH qui de nobis tenent in c a?it E feudum iinius militis, vel plus, et milites non lunt, citra teftum natalis Domini anno regni noftri decimo nono, arma capiant et fe milites fieri faciant, fjcut tenementa fua quae de nobis tenent diligunt. Clauf. I g. H. 3. tn, 25. dorfo. ap. Aiadox, Hijl. of the Exchequer^ vol. i. p. jio. (5) In the reign of Henry III. the honour of Dudley, and o- ther lands of Roger de Sumery, were taken into the king's pof- feflion, with all the chatels found on them ; becaufe Roger did not come to be girt with the belt of knighthood. Bar. Angl. p. 131. For the fame reafon, the fame prince feized the eilates of Gilbert de Sampford and William de Montagu. And, in the twentieth year of F-dward I. the flierif of Kent was commiflioa- cd to ieize the lands ot fuch perfons as did not appear to take kntf,hthood, and to anfwer at the exchequer for the iffues of them. -HiJl. oj the Exchequer, vol. i.p. 510. The negled of the {herifs to diflrain the lands of thofe \A'ho were entitled to knighthood, and reful'ed it, was often to fubjeift theu) in an.erciaments and punilhments. And, what is remark- able, it appears that the command of the King's writ to his of- ficers was at times accompanied with much feverity, in cafe they fliould be negligent of their duty, or be tempted to conni- vance by bribes. This is illunrattd by the evidence of the tol- Jowing writ to the IherifF of Northaraptonfliire. Rex IN EUROPE. 383 Rex VIcecom. North, falutem. Praecipimus tlbl quod, ficut teipfum et omnia tua diligis, omnes illos in baliva tua, qui habeant viginti libratasterrae, dillringas, quod fe milites faciendos curent, citra nativltatem Sandi Johannis Baptiftae proxime futur. Sci- turus pro certo, quod fi, pro muiiere, vel aliqua occafione, ali- quam relaxationein eis feceris, vel aliqiiem refpe£tum dedcris, nos ita graviter ad te capiemus, quod omnibus diebus vltae fuae te fenties efle gravatum. T. R. apud Wyndefor decinio quarto die Aprilis. ClauJ. 28. H. 3. 711. 1 2. dorfo. ap. Ajhmole, p. 33, See alfo Coke^ 1 1. In/l. p. 596. Thus, by a ftrange fate, chivalry was to grow into an impo- fition and a tax. It is a wild circumllance, and (hows the un- fortunate counfels, and the pervcrfe humour of Charles I. that this unamiable method of raifing money was revived in his reign. An adl of tyrannical infolence was thus founded upon the pretext of an antient cuflom. Charles lived to aboliflv the oppreflion he had revived, and to ordain, that no perfon what- ever (hould be compelled to take the order ol knighthood, or to undergo any fine or trouble for not having taken it. Stat. Car. I. an. 1640, cap. 20. (6) In the reign of Henry III. Bartholomew Fitz-Williani gave V marks to have refpite for taking knighthood ; and Tho- mas dc Moleton; and feveral others, gave fines on the fame ac- count. HijL oj the Exch. vol. i. p. 509. In the lame reign, Robert 384 A VIEW OF SOCIETY Robert de Menevil paid v marks for a refpite of knighthood for two years ; and Pci.r Fouden 48 (hillings and 8 pence for the refpite of three years. And, for a fufpenfion from knight- hood for the lame period, John de Drokensford, in the days of Edward III. paid ten pounds. A/]jmok,p. 33. The refufing to take knighthood, when not puniflied by the feizure of the land, was fubjedled to fines and amerciaments, which leem to have been arbitrary. In the time of Edward III, William, ths fon of Gilbert de Alton, paid twenty fhillings for not appearing and receiving knighthood, according to the com- mand of the King's proclamation ; and the fine of forty fhillings was fet upon Simon de Bradeney, Thomas T>ivet, and John dc Neirvote. In the days of Henry IV. Thomas Pauncefoot paid four nobles for this negledt or contempt.. AJJmiole, p. 34. See farther i5^ro7j. ^?i^/. /). 131. 132. Camden, Introd. to the Britan. p. 246. 247. CHAP- CHAPTER V. SECTION I. (i) ' l^^IT interdum,' fays the old dialogue concerning the ex- M. chequer, ' ut imminente vel infurgente in regnum * hoftium machinatione, decernat rex do fingulis fcodis militum * fummam aliquam folvi, inarcain fcilicet, vel libram unam ; un- * de militibus flipendia vel donativa fuccedant. Mavult eniin * princeps ftipendiarios, quam domefticos bellicis apponere * cafibus. Haec itaquc fumma, quia nomine fcutorum folvitur, * fait air him nuncupatur.' Dial, de Scaccar. lib. i.Jefl. 9. It was according to the number of their fees that the barons and tenants in capite were charged Wii'w /cut age. Each knight's fee paid a determined fum to the King. And, as the valfals of the crown were charged with the full payments for their fees, they had recourfe for compenfation to their knights, from whom they claimed a fcutage in proportion to the fees held and poi- C c c fclfed 386 AVIEW OF SOCIETY felTed by each. The king applied to his vaflTals, and his vafTals applied to their tenants. (2) It is commonly conceived, on the authority of Alexander de Swereford, an accurate obferver of records, that, in England, there was no /outage or tax on knight-fees before the reign of Henry II. There is great probability, however, that the fcutage preceded the age of this prince. It is to be thought that it was coeval with the ufe of mercenaries ; but the period of the intro- duiflion of thefe is not, I believe, to be afcertained with pre- cifion. In the fecond year of the reign of Henry 11. there was a fcu- tage for the army of Wales. It was aflefled only on the pre- lates who held their lands in knight-fervice. They paid at the rate of xx s. for each knight's fee. There was, in the fifth year of the fame reign, a fecond fcutage for the army of Wales ; and it was afTeffed not only on the prelates, but on all the tenants by knight-fervice indifcriniinately. They paid two marks for each knight's fee. In the thirty-third year of the fame prince, there was a fcutage for the army of Galway. It was xx s. per fee. Under Richard I. a fcutage for Wales was alTefTed at c s. per fee. MaJox, hifiof the Excheq. vol. \.p. 620. etfeq. I know that the firft mode of taxation in England was not the tax on knight's fees, of which I now fpeak. In the Anglo-Saxon times. IN EUROPE. 387 times, Danegeld was an impofition on the landed property of England ; and it was eftablifhed with the confent of the people in the wittenagemot or national council. The earlier Norman princes appear alfo to have levied this tribute ; but, in doing fo, they probably exercifed an illegal ftretch of prerogative. It was as mercenaries came to be employed, and as the fpirit of the feudal inftitutions declined, that the fcutage, or the tax on knight-fees, was to prevail. To this tax the Magna Charta gave a blow, which, in time, was to be decifive. The grant of money by the people fucceeded to it. Subfidies, tenths, and fifteenths, were adopted, and continued long. The tax of Dane- geld was only intended as a temporary expedient. The fcutage led the way to a regular, a conftant, and a formal method of taxation. (3) Kennet, Colledion of Englini Hiftorians. Madox, Hill, of the Exchequer. Hume, Hiftory of England. (4) It is an important circumftance, that the free gifts of ci- ties and towns fhould have grown into taxes. In France, in the year 1231, the burgefles of S. Omer paid to S. Louis the fum of 1500 livres ; and this payment was called a Jonum ; a proof that it was not exigible as a duty. It is likewife evident, that, in France, fuch prcfents had been common, and had grown in- to taxes. BruJJ'el, Ufage-gcncral ties Fiefs., liv. 2. ch. 32. C c c 2 In 388 A VIEW OF SOCIETY In England, it is clear, from a variety of records produced or appealed to in ALidox, that the word donum muft alfo have been ufed to exprefs gifts that were free. Bi/l. of I he Exckeq. ch. 17. After mercenaries were known, thefe gifts cealed to be free, and were termed tallages. And of tallages, both in England and France, there are frequent examples in the books I have jufl cited. See farther Du Cange., voc. Doimm. As Kings received gifts which they were to convert into tal- lages, fo the lords and fuperiors, who were honoured with fimi- lar prefents, did not fail to change them alfo into taxes or cu- floms. Du Cangc, voc. Talliare. What is curious in a peculiar degree, the diflant fource of thefe ufages, and the fpirit of them too, while manners retained their fimplicity, may be feen in the following words of Tacitus^ of which this note may ferve as an illuftration. ' Mos eft civita- * tibus ultro ct viritim conferre principibus vel armentorum vel * frugum, quod pro honore acceptum, etian:\ neceflitatibus fubve- * nit.' De Mor. Germ. c. 15. A diftin<5lion of great moment, as to civil liberty, deferves here to be remarked. During the pure times of the Gothic manners, the towns and boroughs made gifts at their own pleafure. When thefe manners were altered, they were tallaged at the pleafure IN EUROPE. 389 pleafure of the crown and the barons. The former times were times of liberty ; the latter of opprcffion. When Dr Brady, therefore, Mr Hume, and a multitude of writers, enlarge on the low and Infignificant ftate of the towns, and, treating their inhabitants as little better than flaves, infer thence, the original defpotifm of our government, they are only adive to betray their inattention. It is ftrange, that men of ge- nius and talents, fhould take fo lame a furvey of this fubjeft. Of the two flates or conditions of fociety which prevailed, they have no conception. They knew only the hiftory of towns in their laft fituation, and could not perceive that the oppreflTions they faw had only a reference to the change of manners, and the breaking down of the feudal fyftem, which affeded, indeed, the adminiflrations of princes, and the coiidud of the nobles to their vallals, but did not alter the eftabliflied form ot our government. From the Magtia Cbarta, thefe authors prefume to date the commencement of our liberty; while that nmiiument is a proof, themoft indubitable, of the encroachments which had been made upon liberty, fince it was its great purpofe to dellroy them. (5) ' KuWum/cutagium veh(«x//////;/j.op.aturin regnonolbo, nifi ' per commune confil'mm regni noltri, nifi ad corpus noltrum redimen- * dum, et ad primogenitum filium noftrum militem faciendum, ♦ et ad filiam noflram primogenitam femel maritandam ; et ad ' hoc 390 A V I E W O F S O C 1 E T Y ' hoc non fiet nifi raiionabile auxilium.' AJci^na Charts, Reg. "Joan. ay.Spelm. Cod, 'vet, p. 369. The fcutagium was the tax on lands held in knight-fervice. The auxilium was any tax whatever. I am fenfible, that, after the Mi'.gna Charta, there are inftances of taxes which were le- vied without the concurrence of the great council of the nation ; but thefe were violations of the conftitution, and of liberty. For, from that period, the legal method of afllfting government was by a parliamentary fubfidy or afleflment. The violent exadlions of feveral princes, pofterior to the Magna Charta.^ are, indeed, held out, by many authors, as defcriptive of the defpotifm of our government. But of fuch authors, it is to be faid, that they can- not diftinguifl) our conftitution from the adminiftrations of our princes. The madnefs or the folly of a King may disfigure our government by wild, encroaching, and unhappy exertions ; but from thefe we muft infer nothing agalnft thofe principles of li- berty upon which it is founded. (6) ' Simili modo fiat de auxUils de civitate Londinenfi. Et ci- ' vitas Londinenfis habeatomnes antiquas libertates, et liberas ' confuetud'ines funs, tam per terras quam per aquas. Praeterea ' volumus et concedimus, quod omnesaliae civitates, et burgi, et ' villae ct i)arones de quinque portubus, et omnes portus habeant ' 07tmes hhertates ct omnes liberas confuetiidines fuas, et ad haben- ' dum IN EUROPE. sgi * dum commune con/ilium regni de auxilils affidendis.' Mag. Chart, ap. Spelm. Cod. vet. p. 369. The Magna Charta was explanatory of the antient law and cuftom, as well as corredtory oFabufes and tyranny. It is to be regretted, that, notwithftanding all which has been written con- cerning this invaluable record, there fliould yet, at this late hour, be defiderated a complete illuftration of it. Much, J know, has already been executed towards this end ; but, if I am not great- ly deceived, there remains ftill more to be done. And this, I imagine, will appear clearly to the philofophical reader, who will attend to it, in its connexion with hiftory, law, and manners. SECT- 39a A VIEW OF SOCIETY SECTION II. (i) "^f^ RUSSEL, Ufage-general des Fiefs, liv. 2. ch. 6. Ba- con, Difcourfe on the Government of England, parC B I. p. 141. 264. (2) Daniel, Milice Franfoife, liv. 4. Hume, Hiftory of Eng- land, vol. 2. p. 85. Barrington, Obfervations on the more an- tient ftatutes, p. 379. (3) Bacon, Difcourfe on the Government of England, part. I. ch. 63. 71. Lord Lyttelton, Hift. of Henry II. vol. 3. p. 354- (4) Pere Daniel mentions an array in France in the 1302J which called out ' tons les Fran9ois nobles, et non nobles, de ' quelque condition qu'ils foient, qui auront age de 1 8 ans et plus, ' julqu' a I'age de 60 ans.' He adds, ' Ce n'eft pas a dire pour * cela que tons marchaffent en cfFct : Mais ceux que le roi com- *■ mettoit pour faire ces levees, prenoient de chaque viile, ct de ' chaque IN EUROPE. 393 ' cliaque bourg et village le nombred'hommes, et telles homtnes • qu'ils jugeoient a propos en ces occafions.' Hifl. de la Milice Fran(oi/e, vol. i. p. 57. In England, * in the fixteenth year of King Edward II. a • commiflion ilTued out of the exchequer to Geoffrey de St Quyn- ♦ tyn and John de Kafthorp, ordering them to raife fpeedily, in ' every town and place in the wapentake of Dykeryng, as well ' within the franchifes as without, all the defenfible men that ' were between the age of fixteen and fixty, as well of gentz * d'armes as of foot, each man being duly arrayed, according to ' his eftate, and to put the faid men in array by hundreds and 'twenties, and being fo arrayed, to lead them to the King at York, * by fuch a day, to adt againft the Scots. The like commiflions » ifTued out of the exchequer, to John de Belkthorp and Gcof- ♦ frey Stull, for the wapentake of Buckros, and to other perfons, ' for other wapentakes.' Madox, HiJL of the Exchequer, vol. 2. p. III. An example of an array, in the reign of Edward I. is alfo re- marked by Mr Madox, and it proceeded on writs from that prince to all the flKriffs of England *. It has been thought, that D d d King • In his writ to each flicrlf, after having ordered the array, and cxprcflld his meaning, he fubjoins thefe words. * Et hoc, ficut indignationcm noflratn • vitarc ct te indcmpnem fervare volncri?, nnll.Uenns omittas' Hifl.ofthc Exchtquerf vol. 2, p. 104. 394 A VIEW OF SOCIETY King John's reign afforded the firft inftance of an array. But I think it highly probable, that arrays were prior to his age. Mr Hunne had met with no commiflion of array till the reign of Henry V, and this circumftance could not fail of leading him in- to miftakes. Hijl. of England, vol. i. p. 321. Arrays for failors were pradlifed after the fame method as for foldiers. The cuftom is ftill retained in the prejjing of feamen. It is fomewhat remarkable, that this illegal power is yet fuffered to remain with the crown. If exerted as to foldiers, it would feem the higheft tyranny. In apology for it, authors have faid, that it is difficult to difcover an expedient to anfwer its purpofes, without greater danger to liberty. (5) Daniel, Hift. de la Millce Franyoife, llv. 3. ch. 8. Hume, Hift. of England, vol. 2. p. 224. Barrington, Obfervations on the more antient Statutes, p. 378. 380. I am difpofed to believe, that -it was chiefly the enormous dif- folutenefs and irregularity of manners introduced by the merce- naries, which deformed England fo much in the reign of Edward I. that the ordinary judges were thought unable to execute the laws. This, it would feem, made Edward invent a new tribunal of juftice, which had power to traverfe the kingdom, and to in- flitt dilcretionary puuifhments on offenders. Spelman. Gloff. voc, Tradbaflon. Yet a court fo inquifitorial was a daring inlult to a free nation, and infinitely a greater calamity, than all the difbr- ders I N E U R O P E. 39J ders which prevailed. That country is miferable where the dif- cretion of a judge is the law. (6) Daniel, Hift. de la Milice Fran9oire, liv. 4. The archers were caUed /nmk, becaufe they were free from taxes. (7) 3. Inftitute, p. 85. 87. Barrington on the more antient Statutes, p. 379. 380. (8) Bacon, Difcourfe on the Government of England, part. I. p. 187. part 2. p. 60. (9) 2. Inftitute, p. 3. (10) Pari. an. i. Hen. IV. de Depofit. Reg. Ricardi II. ap. Dec. Script, p. 2748. (11) Sir Jobn FortefcuCi who refided fome time in France with Prince Edward, the fon of Henry VI. and who wrote there his excellent treatifc, ' De Laudibus Legum Angliae,' defcribes, from adual knowledge, the exorbitant infolcnce of the French foldiery, and the milerable condition of the people. The piQure he draws is too long for infertion in this place. But, thnugh the features are ftrong, there is no rcaion to iulpetfl the likcnels. A native of Great Britain, in attending to it, muft feel, in a lively degree, the happy advantages of our free conltitution. (12) 12. Charles II. cap. 24. D d U 2 CHAP- CHAPTER VI. (i) r I 1ACITUS alludes to the hlftoric fongs of the old Gcr- M mans, of which it was doubtlefs the purpofe to re- cord the migrations of tribes, and the exploits of chieftains. Of fuch fongs, there were many in the eight century ; and Charle- magne was fond of committing them to his memory. Eginljart., Vit. Car. Mogn. c. 29. Of the celebrated Attila, it is faid, that he had conftantly his poets in waiting, and that their verfes in ho- nour of his exploits, were a part of the entertainment of his court. Pri/ctis^p. b-j. 68. In all rude times, the charader of the bard is in repute, and attended with diftindions. This cha- rader was not peculiar to our anceftors, as fome writers have fancied ; for we find it among the Greeks, and in other nations. It is peculiar to the early ftate of fociety, when the paihons arc warm, and language imperfed. (2) It is a common notion, that the poets and Troubadours were only to be found in France and Italy. They were fre- quent, however, in all the countries of Europe ; and they hafl- ened, by their rivalihip, the progrcfs of literature. Henry 398 A VIEW OF SOCIETY Henry III. had a poet or Troubadour in his fervice, on whom he beftowed a regul.;v [jcnfion. This circumftance is to be ga- thered from the following record. ' Rex thefaurario et came- ' rariis fuis falutem. Liberate de thefauro noftro, dile£to nobis ' Magiflro Henrico verftficatori centum folidos, qui ei debentur * de arreragiis ftipcndiorum fuorum. Et hoc fine dilatione et ' difficultate faciatis, licet fcaccarium fit claufum. T. R. apud ' Wodftoke xiiij die Julii.' 35. H. 3. ap. Madox, H't/l. of the Excheq. 'vol. I. p. 391. There is a commiflion of Henry VI. De MiniJlraUls propter folatinm regis providenJis, from which it is to be gathered, that the recitation or chaunting of fongs, was an amufement in re- pute and fafhion. Rymer, 34. Henry VI. The fifth Earl of Northumberland had his minftrels and players ; and it was a qualification of his almoner, that he was ' a maker of interludes.' Houjljold-book, p. 44. 85. 93. 331. 339. The reader may con- fult farther on this fubjetft, an author, who is not more diftin- guifhcd by the foundnefs of his knowledge, than by the claffical fimpliclty of his language, Mr Warton, in his hiftory of Englifll poetry. (3) Hiftoire Litteraire des Troubadours, par M. I'Abbe Mil- lor. (4) It IN EUROPE. 399 (4) It is to be obferved, tliat it was the married women chief- ly who vied in the merits of their poets and 'Troubadours. An interefting figure, as well as the talent of rhyming, was neccf- fary to the Troubadour ; and it was his comlant aim to gain the heart or the perfon of his patrontfs. Perhaps it would be to re- fine too much, it one (hould confuler the prefent infidelity of the married women in France, as a relicl of this ufage, and the cor- ruptions of chivalry. Of the Duke of Orleans, the brother of Charles VI. there is a pleafant notice in Brantome, which illuftrates very aptly the profligate manners introduced by fiefs and chivalry. ' C'etoit ' un grand dcbaucheur de dames de la cour, cr des plus grandes : ' Vn matin cii ayatit une couchee avec lui dont le mari vint par ' hazard pour lui donner le bon j:iur, il cacha la tete de cette ' dame, ct lui decouvrit tout le corps, la faillant voir et toucher ' nue a ce mari a. fon bel aife, avec defcnfe fous peine de la vie ' d'oter le linge du vifage . , . Et le bon fut que le mari etant ' la nuit d'apres couche avec fa femmc, lui dit que M. d'Orleans ' lui avoit fait voir la plus belie femme nue qu'il eut jamais ' vue ; mais, quant au vifage, (ju'il n'en ffavoit que dire, ayant ' toujours etc cache fous le linge.' It is added, ' De ce petit ' commerce, fortit ce brave ct vaillant batard d'Orleans, Comte * de Dunois, le foutlen de la France et le flcau des Anglois.' Brantome, op. St. Foix, EJf. hijlor. vol. 1. 319. (5) Sec, 400 A VIEW OF SOCIETY (5) See, in Ste Pal.TV", le voeu du Paon ou dii Faifan, et les Honneurs de la Cour. (6) Hiftoire des Troubadours, torn. r. p. 11. (7) This invention is afcribed to William the ninth Earl of Poitou. ' Ce fut un valeureux et courtois chevalier, mais grand ' trompeur de dames.' Hijl. desTroub. torn, i.p. 4. 7. (8) Le Moine de Foffan, a Troubadour, compofed a fong, in which he thus fpeaks of the Virgin. ' Je fuis devant elle a ' genoux, les mains jointes, comme fon tres humble efclave, ' plein d'ardeur dans I'attente de fes regards amoureux, et d'ad- * miration dans la contemplation de fon beau corps et de fes ' agreables manieres.' HiJI. des Troub. torn. 2. p. 225. (9) Deudes de Prades, a troubadour, has this fentiment : ' Je * ne voudrois pas etre en Paradis, a condition de ne point aimer * celle que j'adore.' Hift. de Troub. torn. \. p. 321. (10) It was faid wittily, but not without reafon, by the Trou- badour Raimond de Caftelnau : ' Si Dieu fauve pour bien man- ' ger et avoir des femmes, les moines noirs, les moines blancs, * les TenipUers, les Hofpitalieres, et les Chanoines auront le Pa- * radis ; et Saint Pierre et Sajnt Andre font bien dupes d'avoir * tant IN EUROPE. 401 ' tant fouffert de tourmens, pour un paradis qui coute fi peu aux ' autres.' HiJ}. des Troub. tome 3. p. 78. It was in confequence of the depraved manners of the clergy, that, in England, the perfonage who, in the feafon of Chrift- mas feftivity, was to prefide in the huufes of the nobility over riotous mirth and indecent indulgencics, was termed ' the abbot ' of milrule.' This character appears in the ellablifhment of the fifth Larl of Northumberland, an. 15 12. Houjhold-book, p. 344. See alfo Dr Percfs notes to this record. In Scotland, the fame charader or perfonage feems to have been ftill more common, and even fo familiar in the lowed ranks of civil life, that he grew to be a nuifance in towns and boroughs. His appellation there was, * the abbot of unreafon ;' and, when the ieverity and ftarchnefs of the reformation foured and deformed this country with ihe hypocritical precifenefs, and the diimal formality which have not yet left it, an adl of parlia- ment was thought expedient to fupprefs and abolifl^ an office fo highly licentious and protane. 6. Pail. Mary 1555. (i 1) Giannone, Hiflory of Naples, vol. i. p. 2S3. 446. Me- zcray, Moeurs dc I'Eglife du xi, fic.L-. Du Cange and Spcl- man, voc. Focaria. • Ste Palayc fur I'anc. cheval. partie 5. (12) Joinville, Hiftoirc de S. Louis, p. 32. ]•. e c ( r 3) ' Si 403 A VIEW OF SOCIETY (13) ' Si quis dixerit fo;//«^;, malam licentiam dando, vadc * et conauiibe cum tali hoinine ; aut fi dixerit alicui homini, veni et *■ fac cum mul'ine mca :\.!!iis coin7mxtionem ; ct tale malum fac- * turn fuerit, et caufla probata fuerit, quod per ipfum maritum * fa£tum fit, ita ftatuimus, ut ilia mulier, quae hoc malum fece- ' rit et confenferit, moriatur, fecundum anterius edidum ; quia * nee talem cauflam facere, nee celare debuit.' Leg. Longobard, p, 1096. ap. Georgifchi Corp. Jur. Germ. Antiq. This law evinces the antiquity and the heinoufnefs of the prac- tice alluded to ; but, in pofterior times, the fafliion was thought of more lightly, and too prevalent to be punilhed with feverity. See fome curious information in Du Cange, voc. Cugus, Cucuciat Licenlia Mala, Uxorare. (14) The Gynaeceum, by which the apartment was ex- prefled where the women were kept to work at the needle, and other domeftie employments, came to fignify a brothel, or place of debauch, from the ufe that was made of it. Du Catige, voc, Gyiiaeceum. Over the doors of a palace which belonged to Car- dinal Woolfey, there was written, Domus Meretricum Domini Cardinalis, It has been faid, indeed, that Mcretrices flood of old for Lotrices ; and the advocates for the chaftiiy of the Car- dinal contend, of coni'equence, that this infcription only ferved to dire(St to his laundry. But, 1 am afraid, that this pica will not hold. For the terms were convertible j and the women who aded IN EUROPE. 403 aded in the laundry, and who were employed in working in linen and tapeftry, were in general the convenient miftrefles, to whom their lords paid a temporary worfhip. It was from fome mif- takes ot this fort, that, in the reign of Elizabeth, there was an order, that no laundrejjes^ nor women called viduallers, fhould come into the gentlemens chambers of Gray's Inn, ' unlefs they ' were full/or// years of age.' Dugdalcy Orig. 'Jurid. p. 286. (15) Ranulph. dc Hengham, Summa Magna, cap. 2. and Sel- den's notes to it. (16) In the 5n'/rtH«Z(7, in the defcription of Surrey, there is this notice. ' Hamo de Catton held Cattelhull-manour by be- ' ing MarJJjal oj the ivbores when the King fhould come into ' thefc parts.' Camdetu 'vol. i./>. 181. In the reign of" Ed- ward 11. Thomas de Warblynton held the manor of Shirefcld in Hampfhire, of the King in chief, by the ferjeanty of being Mnr- Pml of the ivhores in the King's houfehold, and of difmember- ing malefadlors condemned, and of meafuring the galons and bulhels in the King's houfehold. The words of the record are, ' Tenuit in capite, die quo obiit de Domino E. nuper rege An- ' gliae patre regis nunc, per fargantiam eflendi Marejchulliis dc • nierclrtcihus in hofpitio regis, et dil iicmbrare malefadtorcs ad- ' judicatos, et menfurare galones et buifellus in hofpitio regis.' Fa/. Fines i. Ediv, III. Rot. 8. a. ap. B^ir. Angl. p. 242. E c c 2 (17) The 404 A V I E W OF SOCIETY (17) The vaflal forfeited his eftate in the following cafes: • Si dominum cucurbit::. .:'.t (id ert, uxorem ejus ftupraverit,) ' vel turpiter cum ea lufcrit. Si cum filia domini concubuerit, • vel nepte ex filio, vel cum nupta filio, vel cum forore domini • fui in capillot id eft, in domo fua manente.' Lib. Feud. ap. Spelman Glojf. voc. Felonia. The words in capillo, allude to a peculiarity in the Germanic and Gothic manners, which deferves to be explained. All vir- gins wore their hair uncovered, and with ornaments. Married •women concealed their hair, and covered their heads. The or- naments for the hair were many. And, in the progrefs of time, it was not the hair of their heads only, that the women were curious to deck out. The mother of the fair Gabrielle being af- faflinated, her body lay, for many hours, expofed, in a public manner, to the fpedator, and in a pofture fo exceedingly inde- cent., that it difcovered a ftrange mode or affedlation. In this laft fafhion, which was probably introduced in the decline of chivalry, the ornaments were ribands of different colours ; and, it feems to have been peculiar to women of rank and condition. St Foix, EJf. Hijl. vol 4. p. 82. In general, it merits remark, that the veneration for their hair entertained by the Germans and their pofterity, was very great, and gave rife to a multitude of cuftoms. It was a mark of refi- ned attention in a peribn to prefent a lock of his hair to a friend oa IN EUROPE. 405 on fainting him ; it was to fay, that he was as much devoted to him as his flavc. To take away the hair of a confpirator, was one of the mofl: affliding parts of his punifhment. To give a flave the permifllon of allowing his hair to grow, was to offer him his freedom. Dii Cange mid Spe/mati, voc. CapilU. Wil- liam Earl of Warrenne, in the age of Henry III. granted and confirmed to the church of St Pancrace of Lewes, certain land, rent, and tithe, and gave feifine of them ' per capillos capitis fui, ' et fratris fui Radulfi de Warr. quos abfcidit de capitibus fuis ' cum cultcllo ante altare.' Mag. rot. 24. Henry III. ap. Madox. Hijl. of the Excheq. Prefatory Epijl. p. 30. This muft have been a compliment in thehighefl; ftyle of flattery ; and the clergy of St Pancrace mufl; have been enchanted with the politenefs of this nobleman. There feems fomething wild and romantic in fuch ufages ; yet they produced the locket and the hair-ring of modern times ; and we fmile not, nor are furprifed, that thefe fliould teach us to em- ploy our moments of foftnefs in melancholy recoliedions of ab- fent beauty, or departed friendfhip. What is diftant and remote, afFeds us with its ridicule. What is prefent and in pradice, c- fcapes our cenfurc. In the one inftance, we a£l with the impar- tiality of philofophers ; in the other, we are carried away by our paflions and our habitudes. (.8) 4o6 A VIEW OF SOCIETY (!8)St Foix, Efl'. Hiflor. vol. i. p. 102. Stow, Survey of London, in the Edition of Strype, vol. 2. p. 7. (19) There is evidence of public or licenfed ftevvs in England in Stat. 2. Henry VI. cap, i. inCoiue/, voc. Stews, Spelman, voc. Stuba, and in Coke, 3. Injlitutc, cb, 98. Henry II. gave his pri- vilege to the ftew-houfes of Southwark, according to the ' old ' curtoms which had been ufed there time out of mind.' And patents confirming their liberties were granted by other princes. Stciv, in Strype's edit. vol. z. p. 7. In Normandy, there was a aijlos meretricum; and this officer feems to have been known in the different countries of Europe. Du Can^e, voc. Cujlos mere- tricum, et Panagator. It has frequently been a fubjeiEl of inquiry among politicians, whether public ftews, under proper regulations, with a view to the health of individuals, and the peace of fociety, be not an ad- vantageous Inftitution. In fome flates of Europe, a tolerated or authorized prof^itution is known at this day. And, by the Code of Gentoo laws, this inftitution was acknowledged as falutary; and proftitutes forming a community were, in Hindoftan, an objecfl of care to the government. I avoid, however, to enter into a que- ftion of fuch infinite delicacy. It is dangerous in a ftate to give the flightefl ftab to morality. Yet, I cannot but obferve, that, in the mofl cultivated nations, there are laws and regulations which wound IN EUROPE, 407 wound morality more feverely than could be done by an autho- rized proftitution, and with lefs of utility to mankind. (20) The licenfed ftevv-houfes in the reign of Henry VII. were the Boar's-head, the Crofs-keys, the Gun, the Caftle, the Crane, the Cardinal's-hat, the Bell, the Swan, (Sec. Sir Edivard Cokehzt preferved this information, 3. Injl'ttute^ p. 205. In the time of Edward VI. Bifhop Latimer complained and preached to the following tenor. ' There is more open whoredom, more '■ Jlued whoredom, than ever was before. For God's fake, let it ' be lookt to.' Stoiv^ in Strype's edit, vol, 2. p. 8. (21) 3. Inftitute, p. 206. (22) Spelman voc. Stuba, 3. Inftitute, p. 205, C O N. CONCLUSION. IPrefume not to think that I have exhaufted the topics I treat in this volume. For, vphat fubje£l does not ftretch to infinity ? But it has been my particular care to go back to the fources, and to exprefs the beginnings of law, government, and manners ; and I have been felicitous to open up, with a due advantage, the original ideas, which I have ventured to ftrike out, and which, perchance, may attradt the notice of the ingenious and the learned. Yet, when I confider what many great men have written before me concerning human affairs, I know not, whether it ought to flatter my pride, or to fill me with {hame, that I, too, have yielded to my reflections and my fentiments ; and, though in the obfcurity of a private ftation, and in the fervour of youth, have prefented to my fellow-citi- zens this afpiring fruit of my fludies and ambition. APPENDIX. APPEND IX. No. I. P. 224. Article I. Chart a Dotis quam Folradus conflltuit Helegrinae Spotijhe Jiiae. JN Dei nomine. Dulciffima fponfa mea Helegrina. Ego enim Folradus filius quondam Eriperti ex genere Franco- nim, et modo habitator fum in pago Pinnenfi. Dum non eft incognitum qualiter per voluntatem Dei vel parentum quondam tuorum te defponfavi et carnali conjugio fociari dilpono, prop- terea dono tibi He. fponfa mea in honore pulchritudinis tuae in die nuptiali dotcm dignam atque aptam, hoc eft, manfos meos infra vicum Pinnenfem, q>ii mihi pertinet et ex coniparatione e- venit et d.ita mea pecunia comp.iravi. Trado tibi ipiixs nianlbs cum omni iiitegritate lua et domum dignam ad commanendum exqiiifitam cafam unam conftratain, cum omnibus iitenfilihus et vaiis, cum omnibus adjacentiis ad iplos manfos afpicientibus vel pertincniibus, cum terns et vincis, pumis, cum omnibus quae F t f fuper- 410 APPENDIX. fuper fe habentur vel ad ipfam curtetn de Vico pertinent, et quae habere vifus fum, ^cl inantea Deo adjuvante ibidem para- re vel conquirere potuero, in integrum ifta omnia fuperius com- prehenfa, fi nos Deus carnali conjugio fociari voluerit, in die iiuptiali tibi dono, trado, atque tranfcribo ad poffidendum, ut quicquid exinde facerevolueris,liberamet firmiflimam in omnibus habeas poteftatem. Si quis vero, quod futurum efle non credo, fuerit inpoftmodum ego aut aliquis de heredibus meis, feu quae- libet ulla oppofita perfona contra banc cartulam Hbellum dotis venire tentavertit, aut eam frangere voluerit, primitus iram Dei incurrat, et infiiper una cum focio fifco aurum Hbram iinam, argentum pondera duo muldam componat, et quod repetit non vendicet, fed haec cartula libellum dotis omni tempore firma et ftabilis permaneat, cum flipulatione fubnixa. Unde pro ftabili- tate veflra Audoaldum Notarium fcribere rogavimus. Adtum in Vico anno regni et imperii Domini Ludovici xxx. et primo anno Supponis Comitis, die viiii. menfis Junii, Indidione v. Sig- num Folradi, qui hunc libellum dotis fieri rogavit. Lioto, Ma- jolfus, Aloini, teftes. An. Szj. Ex. Chartulario Motiajierii Ca- fatirwifis-, ap. Baluz. Capit. Reg. Franc, vol. 2. p. 142J. Art. N D I X. 4ir Art. II. A reciprocal Grant. Roger Pit and his Wife grant and releaje to the Priour of Brommore a Tenement held nj, Dower ; and the Priour grants a yearly Rent for the Life of the Wife. SCIANT praefentes et futuri, quod haec eft carta Cyrogra- phata, anno ab Incarnacione Domini Millelinio CCXLIIII fada, inter Dominum S. Priorem et Conventual de Bnwmiore ex una parte, et Rogerum de la Putte et Editham uxorem fuain ex al- tera. Scilicet, quod praediilus Rogerus et Editha uxor fua, tra- diderunt, et conceflerunt, et quietum clamaverunt, ad \ itain ip- forum, totum tenementum quod di£lae Edit hue evenit in dotem, de Hugone Fichet, in villa de Bnimmore, cum omnibus perti- nenciis. Et didi Prior et Conventus tcnentur reddere, fingulis annis, ad feftum S. Michaelis, tres fol. et VI denar. didis Ro- gcro et Editbae uxori fuae, quamdiu ipfa vixerit. Si vero, quod abfit, praedicti Prior et Conventus diduin redditum, fcilicet III fol. et VI den. praenotato termino non folverint praedidis R et E uxori fuae, licebit tenementum luum dillringere, donee fuerit eis fatisfaduin. 1 enentur etiam acquietare didum Rogerum et E uxorem fuain, de omnibus fedis cam comitatus quain Hun- dred!, et omnium aliarum Curiarum, et de omnibus ladlagiis tam Uegalibus quam aliis, dido tcnemento Ipedantibus. Hanc Convcncionem fidelitcr ct fine dolo tcncndam, ex utraque parte aflidavcrunt. lit ad inajorem fccuritatem faciendam, altcp- no Icripto figilla fua appofuerunt. iiiis teilibus, Ric. de Burley V f t 2 foh.vmc 412 APPENDIX. Johojme Baldeixnn^ jfohanne de Bruviviore, Rocelino de Burk, Hugone de Lapolot^ PluUppo le Champiun ; et multis alliis. Ap. Madox^ JFormulare Anglicanum^ p. 84. Art. III. A Rclcafe of a yearly Rent in Dower. OMNIBUS Chrlfti fidelibus ad quos praefens fcriptum perve- nerit, Nicholaa quae fui uxor Willelmi de Nafford in Bereford falutem in Domino. Noveritis me in pura et legitima viduae- tate mea, relaxafl'e et omnino pro me et haeredibus nieis vel af- fignatis quietum clamafle Domino Fulconi de Lucy Militi, et haeredibus fuis vel aflignatis, totum Jus et clameum quod ha- bui vel aliquo modo habere potui, in tribus folidatis redditus quos ab eodem Domino Fulcone recipere folebam nomine Dotis meae per annum, ad feftum Sandti Michaelis, de tenemento quod Johannes de Merehull tenuit in Bereford ; Ita quod nee ego nee haeredes mei vel aflignati, nee aliquis nomine meo, aliquid ju- ris vel clamii a praetato Domino Fulcone et haeredibus fuis vel aflignatis, occafione didorum irium folidorum redditus, decaete- ro exigere vel vendicare poterimus. In cujus rei teftimonmm, praeferiti fcripto Sigillum meum appofui. Datum Berejordiae die Lunae in Crallino S, Mariae MagdelenaCt Anno regni Regis Edivardi decimo nono. Ap. Formulare Anglicammy p. 381. No If. N D I X. 413 No. If. P. 239. Art. I. A Feoffment in Frankmarriage of Land, a Capital Man- Jiout ^'C. made to a Man ivith the Daughter of the Feoffer. SCI ANT omnes tarn praefentes quam futuri, quod ego Pe~ trus de Poketorp dedi et conceffi, et hac mea praefenti car- ta confirmavi, Hevueio filio Willehni filii 'Jokt in Maritagio cum Matilda filia mea, duas bovatas terrae in Snape, cum pertinen- ciis ; illas fcilicet quae funt remociores a Sole, in dimiJia caru- cata terrae quam Robertas filius Radidfi michi dedit pro Huma- gio et Servicio meo ; Et capitalem Manfuram meam in cadem villa ; Et gardinum meum ultra aquam j et pratum meum apud Suthat7i Keldc ; Et praeterea apud "Joles Croft tres acras terrae et dimidiam ; llli et haeredibus qui de praedida filia mea exibunt : Tenendum de me et de haeredibus meis in feudo et haereditate, libere, et quiete : Faciendo forinfecum fcrvicium, quantum pcr- tinet duabus bovatis terrae in feudo quo duodecim carucatae ter- rae faciunt feudum unius Militis. Et ex incremento dtdi ci ferviciuni duarum bnvatarum terrae in Torneton IVatloiis, qiias Herveius de Norjolkc de me tenuit, et quas Tomas de Torneton et Beatncia Sponia lua michi pro Huir.agio et Servicio ineo de- derunt. Hiis tcftibus (viz. Seven Perfons) ct multis allis. Ap. Forjfiu/nrc Anglicanwn, p. 79. Art. 414 APPENDIX. Art. it. A Feoffment^ or Gift of Land in Frankmarriage ivith the Sijler of the Donor. SCIANT tarn praefentes quam futuri, quod ego Ricardus Ta^ kel^G Burnbaui, cum affenfu Mir uldae uxor is meae, ciGaffridi mei iilii et haeredis mei, dcdi et concefli, et praefenti carta mea confir- mavi, Galfrido filio Johannis de Haxai, cum Alicia Ibrore mea, in libero maritagio, totam terram quam habui arabilem et in prate in Blefpit ; illi fcilicet et haeredibus fuis, tenendam de me et haeredibus meis, libere, folide, et quiete : Reddendo inde an- nuatim mihi et haeredibus meis, pro omni fervicio et exadioue faeculari ad nos pertinente, iiij"' denarios ad duos terminos, fci- licet duos denar. ad feltum Omnium Santloruvit et duos denar. ad Purificacionem beatae Mariae. Et ego et haeredes mei, prae- didam terram illi et haeredibus fuis, pro praedicto fervicio, con- tra omnes homines warantizabimus in perpetuum. Hiis teftibus, Roberto Takel de Burnham, Galfrido de Burnham^ Roberto de Burnham, Roberto Norrais, Gregorio ad Aulani^ Samjone de Lan- delest Elid Capellano ; et multis aliis. Ap, Foimulare Angli- cauum, p.Ss. No. Ill, N D I X. 41S No. III. P. 254. Art. I. A Grant oj Privilege and Proteclion from King Ed- •ward to the Abbey of Bury St. Edmund, EADWEARDUS Rex falutem'mitto meis Epifcopis et meis Comicibus, et omnibus Thelnis meis qui funt in Sciris ubi Sandtus Eadmundus habet Terras, benevole. Et vobis fig- nifico, quod vole ut Leofflannus Abbas et omnes Fratres in Ead- mundi burgo Saca et Socna fua libere potiantur de omnibus fuis propriis hominibus, tarn intra Burgum quam extra. Et nolo pati ut quifquam eis ullam injuriam inferat. Ap. Form. Anglic, p. 290. Art. II. A Mandate of P rote 6lion from King Henry the Second for the Abbey of Bat tell. H. DEI gratia Rex Angliae, et Dux Normanniae ct Aquita- niae, et Comes Andegaviae., Jufticiariis, Vicecomitibus, et omni- bus Miniftris fuis Angliae, in quorum baillivis Abbas et Mona- chi de Bella habent terras, faluiera. Praecipio vobis, quod cu- ftodiatis ct manuteneatis ct protegatis Abbatiain de Bclio et Mo- nachos 4i6 APPENDIX. nachos ibidem Deo fervientcs, et terras et omnes res et pofTcffio- nes fuas, ficiit meas proprias ; nequis els injuriam faciat vel con- tuineliam ; Et non vexetis eos, nee injuriam aliquam eis faciatis nee fieri permittatis, exigendo ab eis confuetudines vel fervitia quae Cartae meae et Anteceflbrum meorum teftanrur quod fa- cere lion debent ; Et fiquis eis injuriam intulerit, contra liberta- tes et confuetudines quas Cartae fuae teftantur quod habere de- bent, earn ipfis fine dilatione emendari faciatis. Tefte Ricardo Epiicopo Wintonieiifi apud Lutegarejhall. Ap. Form. Anglic, p. 296. Art. III. Fifies made to Kings, that they would remit their Re/entments and Indignation. OSBERTUS de Lerec. debet cc marcas argenti, ut Rex par- donaret ei et Ofberto Clerico fuo malivolentiam fuam. Mag.. Rot. 5. Steph. Tomas CIcricus de Camera debet ij palefrldos pro Roberto Capellano, ut Rex perdonaret eidem Roberto, malivolentiam fu- am, quia comedit cum praedido Toma apud Corf. Mag. Rot^ 6. Joh. Galfrldus de Infula debet quater xxxv marcas, ut Rex remit- tat indignationem. Ex. Memor. ^i. Hcnr. ^. Rot. 10, Will- elmu& APPENDIX. 417 elmus de Ros debet c marcas, ut Rex rcmittat indignationem. lb. Rot. 1 1. Madox, Hijl. of the Exchequer^ vol. i. p. 472 — 476. Art. IV. Fines /or Favour, and Prote^ion. GILFBERTUS fillusFergafi debet Dccccetxixl. et ixs» pro habenda benevolentia Regis. Mag, Rot. 26. H. 2. Rot. 4. Radulfus Murdac debet l 1. and vij s. and viij d. pro habendo amore regis Ricardi. Mag. Rot. ii. J. Rot. 14. Decanus et capitulum Londoniae debent Ij palefridos, pro pro- tedione, nee vexentur contra libertates cartarum fuarum. Mag. Rot, 2, J. Rot. 1 1. Hi/I. oj Excheq, ch, 1 3. G g 8> ko. 4i8 APPENDIX. No. IV. P. 262. An Accord or Truce befween the Earl Mm-poally and the Earl of GlouceJIert and their Men, under Reciprocal Oath. SCI ANT hoc fcriptum vifuri, quod cum die Dominica proxima ante Cathedram San£ti Petri, Inter Dominum R, de Clifford ex parte Comitis Marefcalli, Et Dominum Ricardum Bajfct et Martinutn Hojliarium, ex parte Comitis Glocejlriact fu- per quibufdam exceflibus tradatus haberetur ; Tandem inter cos fie convenit. Videlicet quod Homines didVorum Comi- tum, fidelem et firmam Treugam ex utraque parte, a dida die Dominica ufque in fexdecim dies proximo fequentes inviolabiliter obfervabunt. Et Dominus R. de Clyfford, die Ltinae proximo poft didum Feftuin, ad Comitem Glocejlriae apud Cirencejlriam accedet, ad formandam pacem inter praedidos Comites. £t li alter eorum tunc venire nequiverit, hoc alteri parti die Veneris proximo praecedente vel die babbati, fcilicet Comiti Glocejlriae apud Fayreford, vel Domino Rogero de Clyfford apud SuttunjuK- ta Banneburiam denuncietur. Ad hoc fi Morgan filius Hoel dic- tam Tregam pro fe et Hominibus fuis tenere voluerit, rccipiatur in ipfam ; Qiiod fi noluerit, tunc durantibus Treugis habitabit in raontanis, nee in aliquod Caiirum vel Burgum ipfe vel fui in- terim APPENDIX. 419 tcrlm admlttentur. Haec autem firmiter, et abfque dolo, et om- ni cavillatione, Dominus R. de Clyfford et W. de Lucy ex parte Comitis Marfcalli, et Dominus R. Bajjet et M. Hojl'iarius pro Comite Glouccjlriae^ affidaverunt. In hujus autem rei teftimo- nium, praefens fcriptum in modum Cirografli eft compofitum ; Cujus una pars, Sigillis didi R. de Clyfford et W. de Lucy fin- gnata, didis R. BaJJet et M. eft commiffa, Reliqua vero parte, fingnis di(fti R. Buffet ct M. fingnata, peaes R. de Clyfford re- manenie. Jp. Forjn. Anglic, p. 84. Ggg2 Art. 420 APPENDIX. No. V. P. 282. Art. I. An Itijun^ion not to torney by Henry III. RE X Comitibus, Baronlbus, Mllltibus, et omnibus alils, ad inftantem diem Jovis in vigilia Beatl Martini, feu aliis diebus apud Warrewicum, ad torncandum ibidem conventuris, falutem. Mandamus vobis, in fide, homagio et diledioue, qui- bus nobis tenemini, firmiter injungcntes, et fub poena amiffionis terraruni et tenementorum ct omnium bonorum veltrorum, quae in regno noftro habetis, diftridte inhibentes, ne ibi vel alibi in eodem regno noftro torneare, juftas facere, aveniuras quaere re, feu alio modo ad arma ire, praefumatis, fine Licentia noft-a (pe- ciali. Scituri, quod fi fecus egeritis, nos terras, tenementa et omnia bona veftra in manum noflram capiemus, et ea rt-tinebi- mus tanquam nobis forisfa^ta. In cujus, &c. T. Rege apud Weftmon. iiii die Novembris. Pat. 57. Hen. 3. w. 1. Aijud Madox, Baronia Anglica, p. 283. Art. N D I X. 421 Art. II. J Prohibition o/Torneaments by Edivard III. REX Vicecomiti Lincolniae falutem. Praeclpimus tibi, firmi- ter injungentes, quod ftatim vifis pracfentibus, per totam balli- vam tuam, iu Civitatibus, Burgis, et locis aliis quibus melius vi- deris expedire, publice proclamari, et diltride ex parte noftra fa- cias irihiberi, ncqui fub forisfadura vitae et meinbrorum, terra- rum et tenementorum, bonorum et catallorum fuoruin, ac omni- u'm illurum quae nobis torisfacere poterunt, torneamenta, juflas aut liurdeicias facere, leu alitor intra ballivam tuam ad arma ire praefuniant, let ie pracparent quanto potentius poterunt, ad pro- ficilceiidum nobifcum in obli^quium noftrum ad }iartes Scociae, ad rebellioneii! et nequiciam quorundam Scotoruin rcbclliuni et proditDFuin nollrorum, jam contra iios prodicionaliier inlurgen- cium, vinluer, cum Dto et ipforum adjutorio, reprimendam ; Ita quod omnes homines ad arma de bjlliva tua, quilibet videli- cet juxta exigenciam Status lui, fint ad nos cum equis ct armis apud Karliolum, in quindena Nativitatis Sandi Joban;iis Bap- tiftac [iruxuno futura ad uitimum, ad apponendum una nobif- cum, et cum conli . ilibus fidelibus noflris, quos tunc nobiicum ibidem adcflc contigerit, iuper ncgociis HaiiMn terrac n itiae .Sco- ciae tangentibus, prout nobis Altifliinus duxtrit iiil[>iraiiduin ctnlilium et juvamcn. Praecipinius cciam tii>i, tju ^ li (jm vel vcl quis torneamenta, jullas, aut burdcicias, contra n.uic inliibi- tioncm 422 E N D I X. tionem noftram, infra ballivam tuam facere, feu allter ad arma ire praefumant vel praefumat, tunc corpora ipforum vel ipfius, quos vel quern delinquentes vel delinquentem inveneris in hac parte, fine dilatione capias, et in prifona noflra falvo cuftodias, donee aliud inde praeceperimus. Et nos de hiis quae facienda duxeris in praemiffis, in craftino Sandtae Trinitatis proximo futu- ro reddas diftinde et aperte certiores, hoc breve nobis remitten- tes. T. Rege apud Wolvefeye vi die Aprilis. Eodem modo mandatum eft fingulis Vicecomitibus Angliae. Clauf. 34. Ednv, 3. m, 16. dorfo. Ap. Baron. Jnglic. />, 289. No, N D I X. 423 No. VI. p. 298. The Order and Manner of creating Knights of the Bath in the Time of Peace, according to the Cuflom of England *. I. "W"Tr T" H E N an efquire comes to court, to receive the or- \ \ der of knighthood, in the time of peace, according to the cuftom of England, he fhall be honourably received by the officers of the court ; Sc. the fteward or the chamberlain, if they be prefent, but otherwife by the marilialls and ufhers. Then there fhall be provided two efquires of honour, grave, and well feen in courtfhip and nurture, as alfo in the feats of chi- valric, • This narrative is a tranflation of an old Uzd in FrcncVi, wliicli was firft publidicd by liilward Byflic, Efq; in his learned notes to Upton de Studio Militari, p- 21 — 24. Sir William Dugdale took the trouble to turn it into Englifli, in his antiquities of Warwicklhire, vol. 2. p. 708. — 710. Both in Byflie and in Dugdale tliis narrative is iiiullrated by figures, delineated from a book in which they were drawn in colours, in the time of Edward 1\'^. I'crc Daniel holds it as expielTive of th ceremonies ufcd in France; and, it is to he thought, that they were univerfal over Europe. The original Frcnco, of which the naivt'te of the llylc has been obferved, is to bt found both in IJptoa and P. D.ini'.i. C)f the ceremonus, the t mtallicknefs and levity are not more remarkable, than the important ferioulnefs with which they were perfjrr.ieJ. P E N D I X. licy fhall b" -fquires, and governours in all things g to him, whicli ...all take the order aforefaid. 2.' And if the efquire do come before dinner, he fliall carry up one duh of tue lirft courfe to the king's table. 3. And after this the cfquire^s governours fhall condud the efquire, that is to receive the order, into his chamber, without any mure being kea that day. 4. And in the evening the efquire's governours ihall fend fot the harbour, and they ftiall make ready a bath, hanfomely hung with linen, both within and without the veffel, taking care that it be covered with tapiftrie and blankets, in refpedl of the cold- nefs of the night. And then ftiali the efquire be fhaven, and his hair cut round. After which the efquire's governours ihall go to the kmg, and fay, Sir, it is noiv in the evenings and the e~ fqiiire is fitted for the bath ivhen you pleaje : VV hereupon the king £ha!l command his chamberlain that he fhall take along with him unto the efquire's chamber, the mofl: gentle and grave knights that are prefent, to inform, counfel, and inftrudt him touching the order, atid feats of chivalrie : And, in like manner, that the other efquires of the houfehold, with the mindrells, fliall proceed before the knights, finging, dancing, and fporting, even to the chamber door of the laid efquire. APPENDIX. 4:5 5. And when the efquire's governours fhall hear the noife of the iT.inilrclls, they fliall luidrefs the faid elquire, and put him naked into the bach : But, at the entrance into the chamber, the efquire's governours fliall caufe the mufic to ceafe, and the e- fquires aUo for a while. And this being done, the grave knights fliall enter into the chamber without making any noife, and, do- ing reverence to each other, fhali confider which of themfelves it Ihull be that is to initrucff the efquire in the order and courfe of the bath. And when they are agreed, then fliall the chief of them go to the bath, and, kneeling down before it, fay, with a foft voice : Sir ! be this bath of great honour to you ; and then he fliall declare unto him the feats of the order, as far as he can, putting part of the water of the bath upon the fhoulder of the efquire; and having fo done, take his leave. And the efquire's governours fliall attend at the fides of the bath, and io likewife the other knights, the one after the other, till all be done. 6. Then fliall thefe knights go out of the chamber for a while; and the efquire's governours fliall take the efquire out of the bath, and help him to his bed, there to continue till his bo- dy be dry; which bed fliall be plain and without curtains. And as foon as he is dry, they fliall help him out of bed, they Ihall cloath him very warm, in refped of the cold of the night; and over his inner garments fliall put on a robe of ruflct, with lon,*^ flcives, having a hood thereto, like unto that of an hermite. And the elquire being out of the bath, the harbour fliall take away H h h the 426 APPENDIX. the bath, with whatfoever appertaineth thereto, both within and without, for his fee ; and likewife for the coller (about his neck) be he earl, baron, banerct, or batcheler, according to the cuftoni of the court. 7. And tlien fluall the efquire's governours open the dore of the chamber, and (liall caufe the antient and grave knights to enter, to condu£l the efquire to the chapell : And when they are come in, the efquires, fporting and dancing, fliall go before the efquire, with the minftrells, making melodie to the chapell. 8. And being entered the chapell, there fhall be wine and fpices ready to give to the knights and efquires. And then the efquire's governours fhall bring the faid knights before the efquire to take their leave of him ; and he fhall give them thanks all to- gether, for the pains, favour, and courtefie which they have done him ; and this being performed, they fhall depart out of the chapell. 9. Then fhall the efquire's governours fhut the dore of the chapell, none flaying therein except themfelves, the priefl, the chandler, and the watch. And, in this manner fhall the elquire flay in the chapell all night, till it be day, bellowing himfelf in orilbns and prayers, befeeching Almighty God, and his blelfed mother, that, of their good grace, they will give him ability to receive this high temporal dignitie, to the honour, praife, and fervice APPENDIX. 427 fervlce of them ; as alfo of holy church, and the order of knight- hood. And, at day break, one fliall call the prieft to confefs him of all his fms, and, having heard mattines and mafs, (hall afterwards be commended, it he pleafe. 10. And after his entrance into the chapell, there fhall be a taper burning before him ; and fo foon as mafs is begun, one of the governours fhall hold the taper untill the reading of the gofpell ; and then fhall the governour deliver it into his hands, who fhall hold it himfelf, till the gofpel be ended ; but then fliall receive it again from him, and fet it before him, there to fland during the whole time of mafs. 1 1. And at the elevation of the hoft, one of the governours fliall take the hood from the efquire, and afterwards deliver it to him again, untill the gofpell in principio; and at the begin- ning thereof the governour fhall take the fame hood again, and caufe it to be carried away, and fliall give him the tjper again into his own hands. 12. And then, having a peny, or more, in readincfs, near to the candleflick, at the words vtrltim caro factum cjl, the cfquir?, kneeling, fhall offer the taper and the pe^iy ; that is to fay, the taper to the honour of God, and tlic pcny to the honour of the pcrCon tliat makes him a knight. All which being performed, ihc ckjuirc's governours fhall condufl the efquire to his cham- Ilhhz bcr^ 428 APPENDIX. her, and fliall lay him again in bed till it be full day light. And when he Ihall be thus in bed, till the time of his rifing, he fliall be cloathed with a covering of gold, called Singleton, and this fliall be lined with blew Cardene. And when the governours fliall fee it fit time, they fliall go to the king, and fay to him; Sir, ivhen doth it pleafe you that our majlerjjjall rife ? Whereupon the king ftiall command the grave knights, efquires, and min- flrclls, to go to the chamber of the faid efquire for to raife him, and to attire and drefs him, and to bring him before him into the hall. But, before their entrance, and the noife of the min- flrells heard, the efquire's governours fliall provide all neceffaries ready for the order, to deliver to the knights, for to attire and drefs the efquire. And when the knights are come to the efquire's chamber, they fliall enter with leave, and lay to him ; Sir, Good-morroiv to yoit, it is time to get up and make youvfclf ready ; and there- upon they fliall take him by the arm to be drefled, the moft; an- tient of the faid knights reaching him his fliirt, another givmg him his breeches, the third his doublet ; and another putting upon him a kirtle of red Tarcarin, two other ihall raife him from the bed, and two other put on his nether flockings, with foles of leather fowed to them ; two other fliall lace his fleives, and another fliall gird him with a girdle of white leather, without any buckles thereon ; another fliall con:be his he.id ; another fliall put on hit coife ; another fliall ^ive him hiS mantle of filk (over APPENDIX. 429 (over the bafes or kirtle of red Tartarin) tyed with a lace of white filk, with a pair of white gloves hanging at the end of the lace. Ar.d the chandler (hall take for his fees all the garments, with the whole array and neceflaries wherewith the efqiiire fliall be apparelled and cloathed on the day that he comes into the court to receive the order ; as alfo the bed wherein he firft lay after his bathing, together with the lingleton and other neceiraries j in conlideration of which fees, tlie lame chandler Ihall find, at his proper coll, the faid coife, the gloves, the girdle, and tiic lace. 13. And when all this is done, the grave knights (hall get on horfeback, and conduct tiie elquire to the hall, the minilrt;lls gomg before making mufick: But the horie mult be accoutred astolloweih: 1 he laddie having a cover ot black leather, the bow ot ihe laddie being ot white wood quartered. Ihe Itirrup- leathers black, the itirrups gilt; the paitrell of black leather gilt, with a crols pate gilt, lunging before rhe bread ot the h trie, but without any crooper : 1 he br:dle black, with long notched rains, alter the Spaniih falhion, and a crofs pate on the front. And there mull be provided a young elquire, courteous, who fliall ride before the elquire, bareheaded, and carry the elqiiirc's fword, with the fpurs hanging at the hntllc of the I'word ; and the fcahbaril of the fword ihall be of white leather, and the girdle of white leather, without buckles. And the youth ihall hold the 430 APPENDIX. the fword by the point, and after this manner muft they ride to the king's hall, the governours being ready at hand. 14 And the grave knights fhall condu£l the faid efquire ; and fo foon as they come before the hall dore, the marfhalls and huilhers are to be ready to meet him, and defire him to alight; and bemg alighted, the marfhall (hall take the horfe for his fee, or elle c s. Then fhall the knights condu£t him into the hall, up to the high table, and afterwards up to the end of the fecond table, until the king's coming, the knights ftanding on each fide of him, and the youth holding the fword upright before him, between the two governours. 15. And when the king is come into the hall, and beholdeth the efquire ready to receive this high order and temporal digni- tie, he {hall alke for the fword and fpurs, which the chamber- lain fhall take from the youth, and fliew to the king ; and thereupon the king, taking the right fpur, fhall deliver it to the mod noble and gentile perfon there, and fhall fay to him. Put this upon the efquire' s heel ; and he kneeling on one knee, muft take the efquire by the right leg, and, putting his foot on his own knee, is to taflen the fpur upon the right heel of the e- fquire; and then making a crofs upon the efquire's knee, fhall kifs him ; which being done, another knight muft co.ue and put on his left fpur in the like inanner. And then fhall the king, of his great favour, lake the fword and gird the efquire therewith ; APPENDIX. 431 therewith ; whereupon the efquire is to lift up his arms, hold- ing his hands together, and the gloves betwixt his thumbs and fingers. 16. And the king, putting his own armes about the cfqulre's neck, fhall fay. Be thou a good knight, and afterwards kifs him. Then are the antient knights to condudt this new knight to the cliapell, with much mufick, even to the high altar, and there he fliall kneel, and, putting his right-hand upon the altar, is to promife to maintain the rights o£ ihc holy church, durmg his whole life. 17. And then he fliall ungirt himfelf of his fword, and, with great devotion to God and holy church, offer it there ; praying unto God and all his faints, that he may keep that order, which he hath fo taken, even to the end : All which being accomplilh- ed, he is to take a draught of wine. 18. And, at his going out of the chapell, the king's mafler- cook being ready to take off his fpurs, for his own fee, Ihail lay, J the king^s mafler-cook am come to receive your fpurs for my fee ; and if you do any thing contrary to the order of knighthoody {jwhub God Jot bid J y IJhiill hack your fpurs from your heels. 19. After this the knights muft conduct him again into rhc ball, where he Ihall fit the liril at the knight's table, ar.u tne knights 432 APPENDIX. knights about him, l.iinfelf to be ferved as the others are; but he mull neither cut nor drink at the table, nor fpit, nor look about him, upwards or downwards, more than a bride. And this being done, one of his governours having a handker- chief in his hand, Hiall hold it before his face when be is to fpit. And when the king is rifen from the table, and gone ia- to his chamber, then fliall the new knight be conduded, with great ftore of knights, and minftrells proceeding before him, into his own chamber ; and at his entrance, the knights and minftrells ihall take leave of him, and go to dinner, 20. And the knights being thus gone, the chamber dore fliall be faftened, and the new knight difrohed of his attire, which is to be given to the kings of armes, in cafe they be there prefent; and if not, then to the other heralds, if they be there ; other- wife, to the minftrells, together with a mark of ftlver, if he be a knight bacheler ; if a baron, double to that ; if an earl, or of a fuperlor rank, double thereto. And the ruflet night-cap muft be given to the watch, or ell'e a noble. Then Is he to be cloathed again with a blew robe, the fleivc* whereof to be ftreiglit, ftiaped after the fafhion of a prieft's ; and upon his left flioulder to have a lace of white filk hanging : And he fliall wear tliat lace upon all his garments, from that day forwards, untill he have gained fome honour and renown by arms, and is regiftred of as high record as the nobles, knights, efquires, APPENDIX. 433 efquircs, and heralds of arms ; and be renowned for fonie feats of arms as aforefaid ; or, that fomc great prince, or moft noble ladic, can cut that lace from his ihoulder, faying, Sir ! ive have heard Jo much of the true renoivn concerning your honour, ivhich you hwve done in divers parts, to the great fame of Chivairie, as to yourfe/f, and of him that made you a knight, that it is meet this lace be taken from you. 21. After dinner, the knights of honour and gentlemen, muft come to the knight, and condudt him into the prefence of the king, the efquire's governours going before hi:u, where he is to fay. Right noble and renoivned Sir ! I do in all that 1 can give you thanks for thefe honours, curiefies., and bountie, vjhich you have vouchfafed to me. And having fo faid, fhall take his leave of the king. 11. Then are the efquire's governours to take leave of this their mafter, faying, Sir! ive have, according to the king's com- mand, and as zue ivere obliged, done -what ive can ; but ij through negligence ive have in aught di/pleafed you, or by any thing ii>e have done amifs at this time, n>e defire pardon oj youjor it. And, on the other fide. Si'; as right is, according to the cufoms oJ the court, and anticnt kingdoms, ive do require our robes and fees^ as the king's ejquires, companions to batchelors and other lords. THE END. CORRECTIONS. Page 1 6^, line fixth from the top, for was read were. Page 177, line fixth from the top, for quern read quam. Page 184, line third from the bottom, for rupta read rapta. Page 221, line fourth from the top, for Mr Lombard read Mr Lambard. Page 230, line fourth from the top, ior Jlates read tribes. Page 304, line feventh from the bottom, for vols read bcis. Page 381, line fixth from the top, for valuable read ujeful. ^\W!UNIVER% — § "2? ^ Tr^i VO, ■'yAavaaii iN^' -^OAff >- Lr UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. ^ <: ar en o< S u 5 ^^IIIBRAI ■tfOJIlVD ^.OFCAIIF LD UR ■AL ■jr-. 'omm\ ^ ^MEUNIVER ^ov 1 4 ;< ORION „r,Tt««n inniRL OCT 12^ NOV 9 1990 NOM0 6 i^*' ^f^lJONV SO' 35m-8/71 (P6347s4)-C120 .5!rtEUNIV[Ry/A vvlOSANGEl% U;OfCAllF0% ^OFCAUFOff^ ^(JAHvaai s«. = 5 ,^^^EUNlVERy/A ^lo ^^aOJITVDJO'^ ^.1/0: ^OFCAllFOff^ A\\E.UNIVERiyA .«NYS01^ ,^\^E•UNIVERy/A 9 ^vVlOSAIt o ■^aiJONVSOl^ 5>^tllBRARY0/ . ^s^HIBRARYG/-^ wun I iTWT irvV" ,5!t\tllNIVtRS/^ jjj^lGSANC! 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