iiiii b;, !:i.'lt 1 1 ii, 'i ! f ! Sfli i if '!! 1 m m\ cTL. ^^yfo^tU'^ t^e/i^^ LOLltS THE DEBONAIK. Chap. I. Part 1. rous ferocity with elevated views of national improvement might suggest the parallel of Peter the Great. But the de- grading habits and brute violence of the Muscovite place him at an immense distance from the restorer of the emjDire. A strong sympathy for intellectual excellence was the leading characteristic of Charlemagne, and this undoubtedly biased him in the chief political error of his conduct — that of encouraging the power and pretensions of the hierarchy. But, perhaps, his greatest eulogy is written in the disgraces of succeeding times and the miseries of Europe. He stands alone, like a beacon upon a waste, or a rock in the broad ocean. His sceptre was the bow of Ulysses, which could not be drawn by any weaker hand. In the Dark Ages of European history the reign of Charlemagne affords a solitary resting-place between two long periods of turbulence and ig- nominy, deriving the advantages of contrast both from that of the preceding dynasty and of a posterity for whom he had formed an empire which they were unworthy and unequal to maintain. § 8. Louis the Debonair (a.d. 814-840). — Under this prince, called by the Italians the Pious, and by the French the Debonair, or good-natured,'" the mighty structure of his father's power began rapidly to decay. I do not know that Louis deserves so much contempt as he has undergone ; but historians have in general more indulgence for splendid crimes than for the weaknesses of virtue. There w^as no defect in Louis's understanding or courage; he was accomplished in martial exercises, and in all the learning which an education, excellent for that age, could supply. No one was ever more anxious to reform the abuses of administration ; and who- ever compares his capitularies with those of Charlemagne will perceive that, as a legislator, he was even superior to his father. The fault lay entirely in his heart; and this fault was nothing but a temper too soft and a conscience too strict. It is not wonderful that the empire should have been speedily dissolved ; a succession of such men as Charles Martel, Pepin, and Charlemagne could alone have preserved its integrity ; but the misfortunes of Louis and his people were immediately owing to the following errors of his con- duct. Soon after his accession Louis thought fit to associate his eldest son, Lothaire, to the empire, and to confer the prov- inces of Bavaria and Aquitaine, as subordinate kingdoms 10 These names meant the same thins:. Piu^ had, even in good Latin, the sense mitis, meek, forbearing, or what the French call debonnaire. Fkance. LOUIS THE DEBONAIR. 17 upon the two younger, Louis and Pepin, a.d. 817. The step was, in appearance, conformable to his father's policy, who had acted towards himself in a similar manner. But such measures are not subject to general rules, and exact a care- ful regard to characters and circumstances. The principle, however, which regulated this division was learned from Charlemagne, and could alone, if strictly pursued, have given unity and permanence to the empire. The elder brother was to preserve his superiority over the others, so that they should neither make peace nor war, nor even give answer to ambassadors, without his consent. Upon the death of either no further partition was to be made ; but whichever of his children might become the popular choice was to inherit the whole kingdom, under the same superiority of the head of the family. This compact was, from the beginning, disliked by the younger brothers ; and an event upon which Louis does not seem to have calculated soon disgusted his colleague, Lo- thaire. Judith of Bavaria, the emperor's second wife, an am- bitious woman, bore him a son, by name Charles, whom both parents were naturally anxious to place on an equal footing with his brothers. But this could only be done at the ex- pense of Lothaire, who was ill disposed to see his empire still further dismembered for this child of a second bed. Louis passed his life in a struggle with three undutiful sons, who abused his paternal kindness by constant rebellions. These were rendered more formidable by the concurrence of a different class of enemies, whom it had been another er- ror of the emperor to provoke. Charlemagne had assumed a thorough control and supremacy over the clergy ; and his son was perhaps still more vigilant in chastising their irreg- ularities, and reforming their rules of discipline. But to this, which they had been compelled to bear at the hands of the first, it was not equally easy for the second to obtain their submission. Louis, therefore, drew on himself the inveterate enmity of men who united M'ith the turbulence of martial nobles a skill in managing those engines of offense which were peculiar to their order, and to which the implicit devo- tion of his character laid him very open. Yet, after many vicissitudes of fortune, and many days of ignominy, his wish- es were eventually accomplished. § 9. Upon the death of Louis the Debonair, his youngest son, Charles, surnamed the Bald, obtained most part of France, while Germany fell to the share of Louis, and the rest of the imperial dominions, with the title, to the eldest, Lothair. This partition was the result of a sanguinary, 18 SUCCESSORS OF LOUIS THE DEBONAIR. Chap. I. Pakt I. though short, contest ; and it gave a fatal blow to the em- pire of the Franks. For the treaty of Verdun in 843 abro- gated the sovereignty that had been attached to the eldest brother and to the imperial name in former partitions : each held his respective kingdom as an independent right. This is the epoch of a final separation between the French and German members of the empire. Its millenary was cele- brated by some of the latter nation in 1843.*^ SUCCESSORS OF LOUIS THE DEBONAIR. Louis the Debonair. (S 14-840). Lothaire, emperor (ob. 855). Louis II., emperor (ob. 8T6). I Lothaire, k.of Lorraine (ob. 869). Charles, k. of Burgundy and Provence (ob. 803). Pepin (ob. 838) Pepin II., k.of Aquitaiue. Louis the Charles the German Bald, (ob. 8TG). k.of France (ob. 87T). Charles the Fat, k. and emperor (ob. 888). Louis le Begue (ob. 879). Louis III. (ob. 882). Carloman (ob. 884), Charles the Simple (ob. 929). Louis IV. (d'Outremer) (ob. 954.) Lothaire (ob. 986). I Louis V. (ob. 987). Charles, d. of Lorraine (ob. 992). The subsequent partitions made among the children of these brothers are of too rapid succession to be here related. In about forty years the empire was nearly reunited un- der Charles the Fat, son of Louis of Germany ; but his short and inglorious reign ended in his deposition. From this time the possession of Italy was contested among her native princes ; Germany fell at first to an illegitimate descendant of Charlemagne, and in a short time was entirely lost by his " In the division made by the treaty of Verdnn, the kingdom of France, which fell to Charles the Bald, had for its eastern boundary the Meuse, the Saoue, and the Rhone ; which, nevertheless, can only be understood of the Upper Meuse, since Bra- bant was certainly not comprised in it. Lothaire, the elder brother, besides Italy, had a kingdom called Lorrain, from his name (Lotharingia), extending from the mouth of the Rhine to Provence, bounded by that river on one frontier, by France on the other. Louis took all beyond the Rhine, and was usually styled the Germanic. France. THE CARLOVINGIAN PERIOD. 19 family ; two kingdoms, afterwards united, were formed by- usurpers out of what was then called Burgundy, and com- prised the provinces between the Rhone and the Alps, with Franche Comte and great part of Switzerland." In France the Carlovingian kings continued for another century ; but their line was interrupted two or three times by the election or usurpation of a powerful family, the counts of Paris and Orleans, who ended, like the old mayors of the palace, in dis- persing the phantoms of royalty they had professed to serve. Hugh Capet, the representative of this House, upon the death of Louis V., placed himself upon the throne ; thus founding the third and most permanent race of French sov- ereigns. Before this happened, the descendants of Charle- magne had sunk into insignificance, and retained little more of France than the city of Laon. The rest of the kingdom had been seized by the powerful nobles, who, with the nom- inal fidelity of the feudal system, maintained its practical in- dependence and rebellious spirit. § 10. The second period of Carlovingian history, or that which elapsed from the reign of Charles the Bald to the ac- cession of Hugh Capet, must be reckoned the transitional state, through scenes of barbarous anarchy, from the artifi- cial scheme devised by Charlemagne, in which the Roman and German elements of civil policy were rather in conflict than in union, to a new state of society — the feudal, which, though pregnant itself with great evil, was the means both of preserving the frame of European policy from disintegration, and of elaborating the moral and constitutional principles upon which it afterwards rested. This period exhibits, upon the w^hole, a failure of the grand endeavor made by Charlemagne for the regeneration of his empire. This proceeded very much from the common chances of hereditary succession, especially when not coun- terbalanced by established powers independent of it. Three of his name, Charles the Bald, the Fat, and the Simple, had time to pull down what the great legislator and conqueror had erected. Encouraged by their pusillanimity and weak- ness, the nobility strove to revive the spirit of the seventh century. They entered into a coalition with the bishops, though Charles the Bald had often sheltered himself behind the crosier ; and they compelled his son, Louis the Stam- merer, not only to confirm their own privileges and those of the Church, but to style himself " King, by the grace of God and election of the people ;" which, indeed, according to the " See Note VIII., "On the kingdom of Burgundy." 20 CALAMITOUS STATE OF THE EMPIKE. Chap. I. Part I. established constitution, was no more than truth, since the absolute right to succession was only in the family. The in- ability of the crown to protect its subjects from their in- vaders rendered this assumption of aristocratic independ- ence absolutely necessary. In this age of agony, Sismondi well says, the nation began to revive ; new social bodies sprung from the carcass of the great empire. France, so de- fenseless under the Bald and the Fat Charleses, bristled with castles before 930. She renewed the fable of Deucalion ; slie sowed stones, and armed men rose out of them. The lords surrounded themselves with vassals; and had not tlie Nor- man incursions ceased before, they would have met Avith a much more determined resistance than in the preceding cen- tury.^' The theory propounded by Thierry, and accepted by many French writers, to elucidate the Carlovingian period, re- quires a brief notice. Thierry maintains that the key to all the revolutions in two centuries is to be found in the antip- athy of the Romans, that is, the ancient inhabitants, to the Franks or Germans. The latter were represented by the house of Charlemagne ; the former by that of Robert the Brave, through its valiant descendants, Eudes, Robert, and Hugh Capet. But though the differences of origin and lan- guage, so far as they existed, might be by no means unim- portant in the great revolution near the close of the tenth century, they can not be relied upon as sufficiently explain- ing its cause. The partisans of either family were not exclu- sively of one blood. The house of Capet itself was not of Roman, but probably of Saxon descent. It is certainly prob- able that the Neustrian French had come to feel a greater sympathy with the house of Capet than with a line of kings who rarely visited their country, and whom they could not but contemplate as in some adverse relation to their natural and popular chiefs. But the national voice was not greatly consulted in those ages. It is remarkable that several writers of the nineteenth century, however they may some- times place the true condition of the people in a vivid light, are constantly relapsing into a democratic theory. They do not by any means underrate the oppressed and almost servile condition of the peasantry and burgesses, when it is their aim to draw a picture of society ; yet in reasoning on a political revolution, such as the decline and fall of the German dynas- ty, they ascribe to these degraded classes both the will and the power to effect it. The proud nationality which spurnc-d »3 Sismondi, "Hist, des Franf ais," iii., 218, 878; iv.,9. France. THE SCLAVONIANS. 21 a foreign line of princes could not be felt by an impoverished and afflicted commonalty. § 11. These were times of great misery to the people, and the worst, perhaps, that Europe has ever known. Even un- der Charlemagne, we have abundant proofs of the calamities which the people suffered. The light which shone around him was that of a consuming fire. The free proprietors, who had once considered themselves as only called upon to resist foreign invasion, were harassed by endless expeditions, and dragged away to the Baltic Sea, or the banks of the Drave. Many of them, as we learn from his Capitularies, became ec- clesiastics to avoid military conscription. But far worse must have been their state under the lax government of suc- ceeding times, when the dukes and counts, no longer checked by the vigorous administration of Charlemagne, were at lib- erty to play the tyrants in their several territories, of which they now became almost the sovereigns. The poorer land- holders accordingly were forced to bow their necks to the yoke ; and, either by compulsion or through hope of being better protected, submitted their independent patrimonies to the feudal tenure. But evils still more terrible than these political abuses were the lot of those nations who had been subject to Charle- magne. They, indeed, may appear to us little better than ferocious barbarians ; but they were exposed to the assaults of tribes, in comparison of whom they must be deemed hu- mane and polished. Each frontier of the empire had to dread the attack of an enemy. The coasts of Italy were continually alarmed by the Saracens of Africa, who possessed themselves of Sicily and Sardinia, and became masters of the Mediterranean Sea. Though the Greek dominions in the south of Italy were chiefly exposed to them, they twice in- sulted and ravaged the territory of Rome (a.d. 846-849) ; nor was there any security even in the neighborhood of the maritime Alps, where, early in the tenth century, they settled a piratical colony. § 12. Much more formidable were the foes by whom Ger- many was assailed. The Sclavonians, a w^idely extended people, whose language is still spoken upon half the surface of Europe, had occupied the countries of Bohemia, Poland, and Pannonia,^* on the eastern confines of the empire, and ^* I am sensible of the awkward effect of introducing this name from a more an- cient geography, but it saves a circumlocution still more awkward. Austria would convey an imperfect idea, and the Austrian dominions could not be named without a tremendous anachronism. 22 THE NORMANS. Chap. I. Part I. from the time of Charlemagne acknowledged its superiority. But at the end of the ninth century, a Tartarian tribe, the Hungarians, overspreading that country which since has borne their name, and moving forward like a vast wave, brought a dreadful reverse upon Germany. Their numbers were great, their ferocity untamed. They fought with light cavalry and light armor, trusting to their showers of arrows, against whom the swords and lances of the European armies could not avail. The memory of Attila was renewed in the devastations of these savages, who, if they were not his com- patriots, resembled them both in their countenances and cus- toms. All Italy, all Germany, and the south of France, felt this scourge ; till Henry the Fowler and Otho the Great drove them back by successive victories within their own limits, where, in a short time, they learned peaceful arts, adopted the religion and followed the policy of Christendom {a.d. 934-954). § 13. If any enemies could be more destructive than these Hungarians, they w^ere the pirates of the north, known com- monly by the name of Normans. The love of a predatory life seems to have attracted adventurers of different nations to the Scandinavian seas, from whence they infested, not only by maritime piracy, but continual invasions, the northern coasts both of France and Germany. The causes of their sudden appearance are inexplicable, or at least could only be sought in the ancient traditions of Scandinavia. For, un- doubtedly, the coasts of France and England were as little protected from depredations under the Merovingian kings, and those of the Heptarchy, as in subsequent times. Yet only one instance of an attack from this side is recorded, and that before the middle of the sixth century, till the age of Charlemagne. In 787 the Danes, as we call those northern plunderers, began to infest England, which lay most immedi- ately open to their incursions. Soon afterwards they rav- aged the coasts of France. Charlemagne repulsed them by means of his fleets; yet they pillaged a few places during his reign. It is said that, perceiving one day, from a port in the Mediterranean, some Norman vessels which had penetrated into that sea, he shed tears, in anticipation of the miseries which awaited his empire. In Louis's reign their depreda- tions upon the coast were more incessant, but they did not penetrate into the inland country till that of Charles the JBald. The wars between that prince and his family, which exhausted France of her noblest blood, the insubordination of the provincial governors, even the instigation of some France. THE NORMANS. 23 of Charles's enemies, laid all open to their inroads. They adopted an uniform plan of warfare both in France and England ; sailing up navigable rivers in their vessels of small burden, and fortifying the islands which they occasionally found, they made these intrenchments at once an asylum for their women and children, a repository for their plunder, and a place of retreat from superior force. After pillaging a town, they retired to these strongholds or to their ships ; and it was not till 872 that they ventured to keep possession of Angers, which, however, they were compelled to evacuate. Sixteen years afterwards they laid siege to Paris, and com- mitted the most ruinous devastations on the neighboring country. As these Normans were unchecked by religious awe, the rich monasteries, which had stood harmless amidst the havoc of Christian war, were overwhelmed in the storm. Perhaps they may have endured some irrecoverable losses of ancient learning ; but their complaints are of monuments disfigured, bones of saints and kings dispersed, treasures car- ried away. St. Denis redeemed its abbot from captivity with six hundred and eighty-five pounds of gold. AH the chief abbeys were stripped about the same time, either by the enemy, or for contributions to the public necessity. So impoverished was the kingdom, that in 860 Charles the Bald had great difficulty in collecting three thousand pounds of silver to subsidize a body of Normans against their country- men. The kings of France, too feeble to prevent or repel these invaders, had recourse to the palliative of buying peace at their hands, or rather precarious armistices, to which reviv- ing thirst of plunder soon put an end. At length Charles the. Simple, in 918, ceded a great province, which they had already partly occupied, partly rendered desolate, and which has derived from them the name of Normandy. Ignomini- ous as this appears, it proved no impolitic step. Rollo, the Norman chief, with all his subjects, became Christians and Frenchmen; and the kingdom was at once relieved from a terrible enemy, and strengthened by a race of hardy colo- nists. No measure was so conducive to the revival of France from her abasement in the ninth century as the cession of Normandy. The Normans had been distinguished by a pe- culiar ferocity towards priests ; yet when their conversion to Christianity was made the condition of their possessing Nor- mandy, they were ready enough to comply, and in another generation became among the most devout of the French na- tion. An explanation of the new zeal for Christianity which sprung up among the Normans may be found in, the irapor' 24 ACCESSION OF HUGH CAFET. Chap. I. Part I. tant circumstance that, having few women with them, they took wives (they had made widows enough) from the native inhabitants. These taught their own faith to their children. They taught also their own language ; and in no other man- ner can we so well account for the rapid extinction of that of Scandinavia in that province of France. § 14. The accession of Hugh Capet (a.d. 987) had not the immediate effect of restoring the royal authority over France. His own very extensive fief was now, indeed, united to the crown ; but a few great vassals occupied the remainder of the kingdom. Six of these obtained, at a subsequent time, the exclusive appellation of peers of France — the Count of Flanders, whose fief stretched from the Scheldt to the Somme ; the Count of Champagne ; the Duke of Normandy, to whom Brittany did homage; the Duke of Burgundy, on whom the Count of Nivernois seems to have depended; the Duke of Aquitaine, w^hose territory, though less than the an- cient kingdom of that name, comprehended Poitou, Limou- sin, and most of Guienne, with the feudal superiority over the Angoumois, and some other central districts; and, lastly, the Count of Toulouse, who possessed Languedoc, wdth the small countries of Quercy and Rouergue, and the superiority over Auvergne. Besides these six, the Duke of Gascony, not long afterwards united with Aquitaine, the counts of Anjou, Pon- thieu, and Vermandois, the Viscount of Bourges, the lords of Bourbon and Coucy, with one or two other vassals, held im- mediately of the last Carlovingian kings. This was the aristocracy, of which Hugh Capet usurped the direction ; for the suffrage of no general assembly gave a sanction to his title. On the death of Louis V. he took advantage of the absence of Charles, duke of Lorraine, who, as the deceased king's uncle, was nearest heir, and procured his own consecra- tion at Rheims. At first he was by no means acknowledged in the kingdom; but his contest with Charles proving suc- cessful, the chief vassals ultimately gave at least a tacit con- sent to the usurpation, and permitted the royal name to de- scend undisputed upon his posterity. But this was almost the sole attribute of sovereignty which the first kings of the third dynasty enjoyed. § 15. For a long period before and after the accession of that family, France has, properly speaking, no national his- tory. The character or fortune of those who were called its kings were little more important to the majority of the na- tion than those of foreign princes. Undoubtedly, the degree of influence which they exercised with respect to the vassals Fk.aNce. SUCCESSORS OF HUGH CAPET. 25 oi'the crown varied according to their power and their prox- imity. Over Giiienne and Toulouse the first four Capets had very little authority ; nor do they seem to have ever re- ceived assistance from them either in civil or national wars. With provinces nearer to their own domains, such as Nor- mandy and Flanders, they were frequently engaged in alli- ance or hostility ; but each seemed rather to proceed from SUCCESSORS OF HUGH CAPET. Hcou Capet, king, 987-996 Robert, king, 996-1031. Hugh, crowned in iiis father's lifetime (ob. 1026). Henry L, king, 1031-1060. Ptiilip I., king, 1000-1108. Louis VI. (le Gros), king, 1108-113T. Louis VIL (le Jeune), king, 1137-1180. Philip IL (Augustus), king 1180-1223. Louis VIII., king, 1223-1226. Robert, dnke of Burgundy. Louis IX. (St. Louis), king, 1226-1270. Charles, count oi" Anjou and Provence, founder of the Royal House of Naples. Philip IIL (le Hardi), king, 1270-12S5. I Robert, count of Clermont, founder of the House of Bourbon. Philip IV. (le Bel), king, 1285-1314. Charles, count of Valois, founder of the house of Valois. (See table, p. 43.) Louis X. (le Hutin), king, 1314-1316. I Jeanne, m. Philip, king of Navarre, ob. 1349. Charles, king of Navarre. Philip V. (le Long), king, 1316-1322. I Charles IV. (le Bel), king, 1322-1328. Isabella, m. Edward IL of England. '«ance which they held in their hands — Bordeaux, Bayonne, and Calais, by inheritance or conquest ; Brest and Cherbourg, in mortgage from their allies, the Duke of Brittany and King of Navarre. But the successor of Edward III. was Richard II. ; a reign of fee- bleness and sedition gave no opportunity for prosecuting schemes of^ambition^ The war, protracted witli few dis- tinguished events for 'several years, was at length suspended by repeated armistices, not, indeed, very strictly observed, and which the animosity of the English would not permit to settle in any regular treaty. Nothing less than the terms obtained at Bretigni, emphatically called the Great Peace, would satisfy a frank and courageous people, who deemed themselves cheated by the manner of its infraction. The war was therefore always popular in England, and the credit which an ambitious prince, Thomas duke of Gloucester, ob- tained in that country, was chiefly owing to the determined opposition which he showed to all French connections. But the politics of Richard IL were of a diflerent cast ; and Hen- ry IV. was equally anxious to avoid hostilities with France ; so that, before the unhappy condition of that kingdom tempt- ed his son to revive the claims of Edward in still more fa- vorable circumstances, there had been thirty years of respite, Fkance. accession OF CHARLES VI. 51 and even some intervals of friendly intercourse between the two nations. § 6. Charles Y., surnaraed the Wise, after a reign which, if we overlook a little obliquity in the rupture of the peace of Bretigni, may be deemed one of the most honorable in French history, dying prematurely, left the crown to his son, Charles V^I. (a.d. 1380), a boy of thirteen, under the care of three ambitious uncles, the dukes of Anjou, Berry, and Bur- _;yundy. Charles V. had retrieved the glory, restored the tranquillity, revived the spirit, of his country ; the severe trials which exercised his regency after the battle of Poi- tiers had disciplined his mind; he became a sagacious states- man, an encourager of literature, a beneficent lawgiver. But all the fruits of his wisdom were lost in the succeeding reign. During the forty years that Charles VI. bore the name of king, rather than reigned, in France, that country was re- duced to a state far more deplorable than during the captiv- ity of John. A great change had occurred in the political condition of France during the fourteenth century. As the feudal mili- tia became unserviceable, the expenses of war were in- creased through the necessity of taking troops into constant pay. Hence taxes, hitherto almost unknown, were levied incessantly, and with all those circumstances of oppression which are natural to the fiscal proceedings of an arbitrary government. The ill faith with which the new government imposed subsidies, after promising their abolition, provoked the people of Paris, and sometimes of other places, to repeat- ed seditions. The States-General not only compelled the government to revoke these impositions and restore the na- tion, at least according to the language of edicts, to all their liberties, but, with less wisdom, refused to make any grant of money. Indeed a remarkable spirit of democratical free- dom was then rising in those classes on whom the crown and nobility had so long trampled. An example was held out by the Flemings, who, always tenacious of their privi- leges, because conscious of their ability to maintain them, were em^aged in a furious conflict with Louis, count of Flan- ders. The court of France took part in this war ; and after obtaining a decisive victory over the citizens of Ghent, Charles V. returned to chastise those of Paris. Unable to resist the royal army, the city was treated as the spoil of conquest; its immunities abridged; its most active leaders put to death ; a fine of uncommon severity imposed ; and the taxes renewed by arbitrary prerogative. But the peo- 52 CIVIL DISSENSIONS OF THE PARTIES Cii. I. Ft. IL pie preserved their indignation for a favorable moment; and were unfortunately led by it, when rendered subservient to the ambition of others, into a series of crimes, and a long alienation from the interests of their country. Though Charles VI. was considered from the time of his coronation as reigning with full personal authority, the act- ual exercise of government was divided betw^een Anjou, Berry, and Burgundy, together with the king's maternal uncle, the Duke of Bourbon. The first of these soon un- dertook an expedition into Italy, to possess himself of the crown of Naples, in which he perished. Beny was a pro- fuse and voluptuous man, of no great talents; though his rank, and the middle position which he held between strug- gling parties, made him rather conspicuous throughout the revolutions of that age. The most respectable of the king's uncles, the Duke of Bourbon, being farther removed from the royal stem, and of an unassuming character, took a less active part than his three coadjutors. Burgundy, an am- bitious and able prince, maintained the ascendancy, until Charles, weary of a restraint which had been protracted by his uncle till he was in his twenty-first year, took the reins into his own hands (a.d. 1387). The dukes of Burgundy and Berry retired from court, and the administration was committed to a d liferent set of men, at the head of whom appeared the constable de Clisson, a soldier of great fame in the English wars. The people rejoiced in the fall of the princes by whose exactions tliey had been plundered; but the new ministers soon rendered themselves odious by sim- ilar conduct. Charles VI. had reigned five years from his assumption of power, when he was seized with a derangement of intellect (a.d. 1393), which continued, through a series of recoveries and relapses, to his death. He passed thirty years in a piti- able state of suffering, neglected by his family, particularly by the most infamous of women, Isabel of Bavaria, his queen, to a degree which is hardly credible.' The ministers were immediately disgraced; the princes reassumed their stations. § 7. For several years the Duke of Burgundy conducted ' Sismondi inclines to speak more favorably of this qneen than most have done. He discredits the suspicion of a criminal intercourse with the duke of Orleans, and represents her as merely an indolent woman fond of good cheer. Yet he owns that the king was so neglected as to suffer from an excessive want of cleanliness, some- times even from hunger (xii., 218, 225). Was t'_,is no imputation on his wife ? Martin says that contemporary writers do not mention expressly the criminal intercourse between Isabel and the duke of Orleans, but he adds, "ce qn'on salt des moeurs du due et de sa bcUe-soeur permet difficilemeut de croire en I'iuuoceuce de leur intimitu," (▼.. 471). France. OF ORLEANS AND BURGUNDY. 63 the government. But this was in opposition to a formida- ble rival, Louis, duke of Orleans, the king's brother. It was impossible that a prince so near to the throne, favored by the queen perhaps with criminal fondness, and by the peo- ple on account of his external graces, should not acquire a share of power. He succeeded at length in obtaining the whole management of affairs ; wherein the outrageous dis- soluteness of his conduct, and still more the excessive taxes imposed, render him altogether odious. The Parisians com- pared his administration with that of the Duke of Bur- gundy; and from that time ranged themselves on the side of the latter and his family, throughout the long distractions to which the ambition of these princes gave birth. The death of the Duke of Burgundy, in 1404, after several fluctuations of success between him and the Duke of Or- leans, by no means left his party without a head. Equally brave and ambitious, but far more audacious and unprinci- pled, his son John, surnamed Sanspeur, sustained the same contest. A reconciliation had been, however, brought about with the Duke of Orleans ; they had sworn reciprocal friend- ship, and participated, as was the custom, in order to render these obligations more solemn, in the same communion. In the midst of this outward harmony, the Duke of Orleans was assassinated in the streets of Paris (a.d. 1407). After a slight attempt at concealment. Burgundy avowed and boast- ed of the crime. From this fatal moment the dissensions of the royal family began to assume the complexion of civil war. The queen, the sons of the Duke of Orleans, with the dukes of Berry and Bourbon, united against the assassin. But he possessed, in addition to his own appanage of Bur- gundy, the county of Flanders as his maternal inheritance ; and the people of Paris, who hated the Duke of Orleans, readily forgave, or rather exulted in, his murder. He soon obtained the management of affairs, and drove his adversa- ries from the capital. The princes, headed by the father-in- law of the young Duke of Orleans, the Count of Armagnac, from whom their party was now denominated, raised their standard against him ; and the north of France was rent to pieces by a protracted civil war, in which neither party scru- pled any extremity of pillage or massacre. The dauphin, aware of the tyranny which the two parties alternately ex- ercised, was forced, even at the expense of perpetuating a civil war, to balance one against the other, and permit nei- ther to be wholly subdued. In 1417 the Count of Armagn- ac, now constable of France, was in possession of the gov 54 CHARLES VI. Chap. I. Part li ernraent. But his severity, and the weight of taxes, revived the Burgundian party in Paris, which a rigid proscription had endeavored to destroy. He brought on his head the implacable hatred of the queen, whom he had not only shut out from public affairs, but disgraced by the detection of her gallantries. Notwithstanding her ancient enmity to the Duke of Burgundy, she made overtures to him, and, be ing delivered by his troops from confinement, declared her- self openly on his side. A few obscure persons stole the. city keys, and admitted the Burgundians into Paris. The tumult which arose showed in a moment the disposition of the inhabitants ; but this was more horribly displayed a few days afterwards, when the populace, rushing to the pris- ons, massacred the constable D'Armagnac and his partisans (a.d. 1418). Between three and four thousand persons were murdered on this day, which has no parallel but what the last age witnessed, in the massacre perpetrated by the same ferocious populace of Paris under circumstances nearly sim- ilar. Not long afterwards an agreement took place be- tween the Duke of Burgundy, who had now the king's per- son as well as the capital in his hands, and the dauphin, whose party was enfeebled by the loss of almost all its lead- ers. This reconciliation, which mutual interest should have rendered permanent, had lasted a very short time, when the Duke of Burgundy was assassinated at Montereau, at an in- terview with Charles, in his presence, and by the hands of his friends, though not, perhaps, with his previous knowl- edge (a.d. 1419). From whomsoever the crime proceeded, it was a deed of infatuation, and plunged France afresh into a sea of perils, from which the union of these factions had just afforded a hope of extricating her. § 8. It has been mentioned already that the English war had almost ceased during the reigns of Richard II. and Henry IV. A long commercial connection had subsisted between England and Flanders, which the dukes of Bur- gundy, when they became sovereigns of the latter country upon the death of Count Louis, in 1384, were studious to preserve by separate truces. They acted upon the same pa- cific policy when their interest predominated in the councils of France. Henry had even a negotiation pending for the marriage of his eldest son with a princess of Burgundy, when an unexpected proposal from the opposite side set more tempting views before his eyes. The Armagnacs, pressed hard by the Duke of Burgundy, offered, in consid- eration of only 4000 troops, the pay of which they would FiiAscE. BATTLE OF AZINCOURT. 55 themselves defray, to assist him in the recovery of Guienne and Poitou. Four princes of the blood — Berry, Bourbon, Orleans, and Alen9on — disgraced their names by signing this treaty (May, 1412). Henry broke off his alliance with Burgundy, and sent a force into France, which found, on its arrival, that the princes had made a separate treaty, witliout the least concern for their English allies. After his death, Henry V. engaged for some time in a series of negotiations with the French court, where the Orleans party now pre- vailed, and with the Duke of Burgundy. He even secretly treated at the same time for a marriage with Catherine of France (which seems to have been his favorite, as it was ul- timately his successful, project), and with a daughter of the duke — a duplicity not creditable to his memory. But Hen- ry's ambition, which aimed at the highest quarry, was not long fettered by negotiation ; and, indeed, his proposals of marrying Catherine were coupled with such exorbitant de- mands as France, notwithstanding all her weakness, could not admit, though she would have ceded Guienne, and given a vast dowry with the princess. He invaded Normandy, took Harfleur, and won the great battle of Azincourt, on his march to Calais (a.d. 1415). Tlie flower of French chivalry was mowed down in this fatal day; but especially the chiefs of the Orleans party, and the princes of the royal blood, met with death or captivity. Burgundy had still suffered nothing; but a clandestine ne- gotiation had secured the duke's neutrality, though he seems not to have entered into a regular alliance till a year after the battle of Azincourt, when, by a secret treaty at Calais, he acknowledged the right of Henry to the crown of France, and his own obligation to do him homage, though its per- formance was to be suspended till Henry should become master of a considerable part of the kingdom. In a second invasion the English achieved the conquest of Normandy ; and this, in all subsequent negotiations for peace during the life of Henry, he would never consent to relinquish. After several conferences, which his demands rendered abortive, the French court at length consented to add Normandy to the cessions made in the peace at Bretigni ; and the treaty, though laboring under some difficulties, seems to have been nearly completed, when the Duke of Burgundy, for reasons unexplained, suddenly came to a reconciliation with the dauphin (July 11, 1419). This event, which must have been intended adversely to Henry, Avould probably have broken off all parley on the subject of peace, if it had not beer* 6G THE TREATY OF TROYES. Ciiav. 1. Paut 11. speedily followed by one still more surprising — the assassina- tion of the Duke of Burgundy at Montereau already men- tioned (Sept. 10, 1419). § 9. An act of treachery s(5 apparently unprovoked in^ flamed the minds of that powerful party which had looked up to the duke as their leader and patron. The city of Paris, especially, abjured at once its respect for the supposed author of the murder, though the legitimate heir of the crown. A solemn oath was taken by all ranks to revenge the crime ; the nobility, the clergy, the Parliament, vying with the populace in their invectives against Charles, whom they now styled only pretended (soi-disant) dauphin. Philip, son of the assassinated duke, who, w^ith all the popularity and much of the ability of his father, did not inherit all his depravity, was instigated by a pardonable excess of filial resentment to ally himself with the King of England. These passions of the people, and the Duke of Burgundy, concur- ring with the imbecility of Charles VI. and the rancor of Isabel towards her son, led to the treaty of Troyes (May, 1420). This compact, signed by the queen and duke, as proxies of the king, who had fallen into a state of uncon- scious idiotcy, stipulated that Henry V., upon his marriage with Catherine, should become immediately regent of PVance, and, after the death of Charles, succeed to the kingdom, in exclusion not only of the dauphin, but of all the royal fim- ily. It is unnecessary to remark that these flagitious pro- visions w^ere absolutely invalid. But they had at the time the strong sanction of force ; and Henry might plausibly flatter himself w4th a hope of establishing his own usurpa- tion as firmly in France as his father's had been in England. What not even the comprehensive policy of Edward III., the energy of the Black Prince, the valor of their KnoUyses and Chandoses, nor his own victories, could attain, now seemed, by a strange vicissitude of fortune, to court his am- bition. During two years that Henry lived after the treaty of Troyes, he governed the north of I"* ranee with unlimited authority in the name of Charles YI. The latter survived his son-in-law but a few weeks; and the infant Henry VI. was immediately proclaimed King of France and England, under the regency of his uncle, the Duke of Bedford. § 10. Notwithstanding the disadvantage of a minority, the English cause was less weakened by the death of Heniy than might have been expected. The Duke of Bedford par- took of the same character, and resembled his brother in faults as well as virtues ; in his haughtiness and arbitrary France. PROGRESS OF I^NGLISH ARMS-^iN FRANCE. 57 temper as in his energy and address. At the accession of Charles VIL (a.d. 1422) the usurper was acknowledged by- all the northern provinces of France, excepts, few fortresses, by most of Guienne, and the dominions of Burgundy. The Duke of Brittany soon afterwards acceded to the treaty of Troyes, but changed his party again several times within a few years. The central provinces, with Languedoc, Poitou, and Dauphine, were faithful to the king. For some years the war continued without any decisive result ; but the bal- ance was clearly swayed in favor of England. For this it is not difficult to assign several causes. The animosity of the Parisians and the Duke of Burgundy against the Armagnac party still continued, mingled in the former with dread of the king's return, whom they judged themselves to have in- expiably offended. The war had brought forward some ac- complished commanders in the English army ; surpassing not, indeed, in valor and enteri^rise, but in military skill, any whom France could oppose to them. Of these the most dis- tinguished, besides the Duke of Bedford himself, were War- wick, Salisbuiy, and Talbot. Their troops, too, were still very superior to the French. But this, we must in candor allow, proceeded in a great degree from the mode in which they were raised. The war was so poj^ular in England, that it was easy to pick the best and stoutest recruits, and their high pay allured men of respectable condition to the service. We find in Rymer a contract of the Earl of Salisbury to supply a body of troops, receiving a shilling a day for every man-at-arms, and sixpence for each archer.* This is, perhaps, equal to fifteen times the sum at our present value of money. They were bound, indeed, to furnish their own equipments and horses. But France was totally exhausted by her civil and foreign war, and incompetent to defray the expenses even of the small force which defended the wreck of the monarchy. Charles VII. lived in the utmost poverty at Bourges. The nobility had scarcely recovered from the fatal slaughter of Azincourt ; and the infantry, composed of peas- ants or burgesses, which had made their army so numerous upon that day, whether from inability to compel their serv- ices, or experience of their inefficacy, were never called into the field. It was, however, in the temper of Charles YII. that his * Rym. t. X., p. 392. This contract w-as for 600 meu-at-arms, including six bannerets ind thirty-four bachelors ; and for 1700 archers ; bien et suffisamment montez, armez, et arraiez comme a leurs estate appartient. The pay was, for the earl,6«, 8d. a day; for a banneret, 4s. ; for a bachelor, 2s. ; for every other man-at-arms, 1«. ; and for each The country now called Dauphioc formed part of the kingdom of Aries or 1 ro- Teuce, bequeathed by Kodolph III. to the emperor, Conrad I. But the dominion of the empire over these new acquisitions being little more than nominal, a few of the chief nobility converted their respective fiefs into independent ijriiicipalities. One of these was the lord or dauphin of Vienne, whose family became ultimately masters of the whole province. Provence, like Daui)hine, was changed from a feudal depend- ency to a sovereignty, in the weakness and dissolution of the kingdom of Aries, about the early part of the eleventh century. NOTES TO CllAi'TER I. 71 of any foreign enemy, France was prepared, under a monarch fluslied with sanguine ambition, to carry her arms into other countries, and to contest the prize of glory and power upon the ample theatre of Europe.*^ 11 See NoTK IX., "Authorities for French History." NOTES TO CHAPTER I. I. THE ARMORICAX REPUBLIC. TuE existence of an Armorican Republic is now adniitled by most French histori- ans. Early in the lifth century, according to Zasinius (vi. 5), about the time when (;(;ii.^c:uitine usurped the throne of Brit- ain and Gaul, or, as the sense shows, a lit- tle later, in consequence of the incursions of the barbarians from beyond the Rhine, the natives of Britain, taking up arms for themselves, rescued their cities from these barbarians ; and the whole Armorican ter- ritory, and other provinces of Gaul, in imi- tation of the Britons, liberated themselves in the same manner, expelling the Roman rulers, and establishing an internal gov- ernment. Martin considers that this con- federation extended as ftir as Aquitaine, and embraced some cities of the central provinces, as well as Armorica jjroper. — ("Histoire de France," vol. i. p. 339.) II. THE FRANKS. j The Franks are not among the German j tribes mentioned by Tacitus, nor do they j appear in history before the year 240. They were jirobably a confederation of *;he tribes situated between the Rhine, the Weser, and the Main ; as the Alemanni were a similar league to the south of the la;>t river. Their oricrin may be derived from the necessity of defending their in- dependence agninst Rome ; but they had become the aggressors in the period when we read of them in Roman history ; and, like other barbarians in that age, were oft- 01 the purchased allies of the declining empre. M. LehuGron conceives them to have l)ecn a race of exiles or outlaws from other Geiman tribes, taking the name Franc from /rec/i, fierce or bold, and set- tling at first, by neccssit}', near tlie mouth of the Elbe, whence they moved (mward to seek better habitations at the expense of less intrepid, though more civilized, na- tions. — ("Institutions Merovingiennes." vol. i. p. 91.) Although the Frankish tribes were nom- inally independent of each other, each pos' sessing its own chieftain, yet in process of time a certaiu predominance was acquired by one or two over the rest. The warlike Salians, who towards the close of the third century obtained a tixed settlement in the north of Gaul, became, in consequence of this success and other advantages, the dominant tribe; and it was fnmi one of their families, that of the Meroioings or children of Merowig, that the confedera- tion chose its military leaders, as occasicm arose. Such is the origin of what is com- monly called the Merovingian Hue of kings. HI. THE CONSULSHIP OF CLOVIS. The theory of Dubos, who considers Clo- vis as a sort of lieutenant of the emperor's, and as governing the Roman part of his subjects by no other title, is partly coun- tenanced by Gibbon, and has been re- vived, in almost its fullest extent, by a learned and spirited investigator of early history, Sir Francis Palgrave, in his "Rise and Progress of the English Common- wealth," i. 3G0. The truth seems to be that the investiture of Clovis with the consular dignity by the Eastern empemr, although it added nothing to his real jjow- er, was a fortunate circumstance of which the conqueror gladly took advantage to ratify and consolidate his already acquired sovereignty. It is plain, from the account given by Gregory of Tours, that both Clo- vis himself and his subjects, barbarian and Roman, attached considerable im-^ portance to the fact. M. Lehuerou, in his ■'Institutions Morovingiennes," arrives at the following conclusions: That the de- tinitive establishment of the Franks in Roman Gaul resulted at the same time from the voluntary concessi(His of the em- perors and from their violent aggressions. That the Merovingians reigned partly by legitimate succession and partly by r'-'ht 72 NOTES TO CHAPTER I. of conquest. That Clovis, whose reign did not commence till after the fall of the Western Emi)ire, nevertheless recognized, like the Visigoths of Spain, the Ostrogoths of Italy, and the Burgundiaus of Gaul, the superiority, and up to a certain point the siizerainship, of the emperors of the East. That the Gallo-Roraan provincials coin- cided in this view, and that consequently their acquiescence in the government of Clovis became more willing and more complete from the moment of his nomina- tion as Consul and Patrician, acknowl- edged dignities of the ancient empire. Lastly, that, long after Clovis and his pos- terity had become independent masters of Gaul, the Merovingian princes looked upon the Eastern emperors as their su- periors, and addressed them, when occa- sion arose, in terms expressive of this re- lationship. IV. THE MAYOR OF THE PALACE. The Mayor of the Palace appears as the flrst officer of the crown in the three Frank kingdoms during the latter half of the sixth century. He had the command, as Guizot supposes, of the Antrustions, or vassals of the king. Even afterwards the office was not, as this writer believes, properly elective, though in the case of a minority of the king, or upon other spe- cial occasions, the leudes, or nobles, chose a mayor. The first instance we find of such an election was in 575, when, after the murder of Sigebert by Fredegonde, his son Childebert being an infant, the Aus- trasian leudes chose Gogon for their may- or. There seem, however, so many in- stances of elective mayors in the seventh century, that, although the royal consent may probably have been legally requisite, U. is hard to doubt that the office had fall- en into the hands of the nobles. V. AQUITAINE. Aiibert, or rather Caribert, brother of Dngobert I., was declared king of Aqui- taine in 02S; but on his death, in G31, it became a duchy dependent on the mon- archy under his two sons, with its capital at Toulouse. This dependence, however, appears to have soon ceased, in the decay of the Merovingian line ; and for a centu- ry afterwards Aquitaine can hardly be considered as part of either the Neustrian or Austrasian kingdom. Aquitaine, in its fu'.lei?t extent, extended from the Loire beyond the Garonne, with the exception ;)f Touinine and the Orluannois. The l)ec)ple of Aquitaine, in this large sense of the word, were chiefly Romans, with a few Goths. The Franks, as a conquering nation, had scarcely taken up their abod« in these provinces. After the battle of Testry, which subverted the Neustrian monarchy, Aquitaine, and even Burgun- dy, ceased for a time to be French ; undei Charles Martel they were styled the Ro- man countries. (Michelet, ii. 9 ) Eudon, by some called Eudes, grandson of Cari- bert, a prince of conspicuous qualities, gained ground upon the Franks during the whole period of Pepin Heristal's pow- er, and united to Aquitaine not only Pro- vence, but a new conquest from the inde- pendent natives, Gascony. Eudon ob- tained in 721 a far greater victory over the Saracens than that of Charles Martel at Poitiers. The slaughter was immense, and confessed by the Arabian writers; it even appears that a funeral solemnity, in commemoration of so great a calamity, was observed in Spain for four or five cen- turies afterwards. (Fauriel, iii. 79.) But in its consequences it was far less impor- tant ; for the Saracens, some years after- wards, returned to avenge their country- men, and Eudon had no resource but in the aid of Charles Martel. After the re- treat of the enemy it became the necessa- ry price of the service rendered by the Fr;!nk chieftain that Aquitaine acknowl- edged his sovereignty. This, however, was still but nominal, till Pepin deter- mined to assert it more seriously, and af- ter a long war overcame the last of the ducal line sprung from Clotairc IL, which had displayed, for almost a century and a half, an energy in contrast with the im- becility of the elder branch. Even this, as M. Fauriel observes, was little more than a change in the reigning family; the men of Aquitaine never lost their j)eculiai nationality ; they remained a separate peo- ple in Gaul, a people distinguished by their character, and by the part which they were called to play in the political revolutions of the age. Vr. THE SUBJECTION OF THE SAXONS. The true cause, M. Michelet observes ("Hist, de France," ii., 39) of the Saxon wars, which had begun under Chailes Martel, and were in some degree defensive on the part of the Franks, was the ancient antipathy of race, enhanced by the grow- ing tendency to civilized habits among the latter. This, indeed, seems sufficient to account for the conflict, Avithout any na- tional antipathy. It was that which makes the Red Indian perceive an enemy in the Anglo-American, and the Australian sav- age in the Englishman. The Saxons, in their deep forests and scantily cultivated plains, could not bear fixed boundaries of NOTES TO CHAPTER I. 7S .and. Their gau was indefinite ; the man- 8MS was certain ; it annihilated the barba- rian's only method of combining liberty with possession of land— the right of shift- ing his occupancy. It is not probable, from subsequent events, that the Saxons held very tenaciously by ttieir religion ; but when Christianity first offered itself, it came in the train of a conqueror. Nor could Christianity, according at least to the ecclesiastical system, be made com- patible with such a state of society as the German in that age. Hence the Saxons endeavored to burn the first churches, thus drawing retaliation on their own idols. The first apostles of Germany were En- glish ; and of these the most remarkable was St Boniface. But this had been in tlie time of Charles Martel and Pepin. The labors of these missionaries were chiefly in Thuriugia, Francouia, and Ba- varia, and were rewarded with great suc- cess. But we may here consider them only in their results on the Frank mon- archy. Those parts of Germany had long been subject to Austrasia, but, except so far as they furnished troops, scarcely form- ed an integrant portion of that kingdom. The subjection of a heathen tribe is total- ly different from that of a Christian prov- ince. With the Church came churches, and for churches there must be towns, and for towns a magistracy, and for magistra- cy law and the means of enforcing it. How different was the condition of Ba- varia or Hesse in the ninth century from that of the same countries in the seventh ! Not outlying appendages to the Austrasian monarchy, hardly counted among its sub- jects, but capable of standing by them- selves, as co-ordinate members of the em- pire, an equipoise to France herself, full of populous towns, wealthy nobles and prelates, better organized and more flour- ishing states than their neighbors on the left side of the Khine. Charlemagne founded eight bishoprics in Saxony, and distributed the eountry into dioceses. VII. CHARLEMAGNE, EMPEROR. The motive of Charlemagne in accept- ing the title of emperor has been much discussed. It is contended by Sir F. Pal- grave that Charlemagne was ehosen by the Romans as lawful successor of Con- stantine V., whom his mother Irene had dethroned in 795, the usage of the empire having never admitted a female sovereign. But it remains to be shown by what right Leo HI., cum omni Christiano jiopulo — that is, the priests and populace of degenerate Rouie— could dispo.sc of the entire empire, 4 or affect to place a stranger on the throne of Constantinople ; for if Charles were the successor of Constantine V., we must draw this conclusion. Rome, we should keep to mind, was not a jot more invested with authority than any other city ; the Greek capital had long taken her place ; and in every revolution of new Rome, the decrep- it mother had without hesitation obeyed. Nor does it seem to me exceedingly mate- rial, if the case be such, that Charlemagne was not styled Emperor of the West, or successor of Augustulus. It is evident that his empire, relatively to that of the Greeks, was western ; and we do not find that either he or h:.s family ever claimed an exclusive right to the imperial title. The pretension would have been diamet- rically opposed both to prescriptive right and actual possession. He wrote to the Emperor Nicephorus, successor of Irene, as /raternitas vestra; but it is believed that the Greeks never recognized the ti- tle of a western barbarian. Mr. Hallam thinks that the probable design of Charle- magne, in accepting the title of emperor, was not only to extend his power as far as possible in Italy, but to invest it with a sort of sacredness and prescriptive digni- ty in the eyes of his barbarian subjects. These had beeia accustomed to hear of emperors as something superior lo kings ; they were themselves fond of pompous ti- tles, and the chancery of the new Augus- tus soon borrowed the splendid ceremoni- al of the Byzantine court. But the real mo- tive of Charlemagne in accepting the title of emperor has been more correctly appre- ciated by Mr. Maine in his work on "An- cient Law " (pp. 103-107). The conception of "territorial sovereignty" was at that time unknown, and, when the descend- ants of Clovis aspired to be something more than kings of the Franks, the only precedent which suggested itself was the title of Emperors of Rome. "The world had lain for so many centuries under the shadow of Imperial Rome as to have for- gotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of inde- pendent commonwealths, claiming immu- nity from extrinsic interference, and pre- tending to equality of national rights. Af- ter the subsidence of the barbarian irrup- tions, the notion of sovereignty that pre- vailed seems to have been twofold. On the one hand it assumed the form of what may be called 'tribe sovereignty.' Part of Transalpine Gaul, with part of Ger- many, had now become the country de facto occupied by the Franks— -it was France ; but the Merovingian line of chief* 74 NOTES TO CHAPTER I. tains, the descendants of Clovis, were not Kings of France — they were kings of the Franks. The alternative to this peculiar notion of sovereignty appears to have been— and this is the important point— the idea of universal dominion. The mo- ment a monarch departed from the special relation of chief to clansmen, and became solicitous, for purposes of his own, to in- vest himself with a novel form of sover- eignty the only precedent which suggest- ed itself for his adoption was the domina- tion of the emperors of Rome. To parody a common quotation, he became ^aut Ccesar aut nullus.^ The chieftain who would no longer call himself king of the tribe must claim to be emperor of the world. Thus, when the hereditary May- ors of the Palace had ceased to compro- mise with the monarchs they had long since virtually dethroned, they soon be- came unwilling to call themselves kings of the Franks— a title which belonged to the displaced Merovings ; but they could not style themselves kings of France, for such a designation, though apparently not unknown, was not a title of dignity. Ac- cordingly they came forward as aspirants to universal empire. Territorial sover- eignty—the view which connects sover- eignty with the possession of a limited portion of the earth's surface— was dis- tinctly an offshoot, thoiigh a tardy one, of VIII. THE KINGDOM OF BURGUNDY. It is important for the student to bear in mind the different uses of the name Burgundy in different ages. Mr. Bryce has pointed out the ten senses in wi.ich the name generally occurs : "I. The kingdom of the Burgundians {reijnuyn Btmjtindiomcm), founded a.d. 400, occupying the whole valley of the Saone and lower Rhone, from Dijon to the Medi- terranean, and including also the western half of Switzerland. It was destroj^ed by the sons of Clovis in a.d. 534. '• II. The kingdom of Burgundy {regnum Du7-gundice), mentioned occasionally un- de.- the Merovingian kings as a separate principality, confined within boundaries apparently somcAvhat narrower than those i)*" the older kingdom last named. " III. The kingdom of Provence or Bur- .^undy (regiium P)-ovincice seu Bur(fundiai) —also, though less accurately, called the kingdom of Cis-Jurane Burgundy— was founded by Boso in a.d. 877, and included Provence, Dauphiiu', the southern part of Savoy, and the country between the Saone und the Jura. ' IV. The kingdom of Trans- Jurane Bur- gundy {regnumJurense, Jiurgnndia Tran» iurensis), founded by Rudolph in a.d. 888, recognized in the same year by the Em- peror Arnulf, included the northern part of Savoy, and all Switzerland between the Reuss and the Jura. " V. The kingdom of Burgundy or Aries {regnum Burgttndice, regmtm Arelatense), formed by the union, under Conrad the Pacific, in a.d. 937, of the kingdoms de- scribed above as III. and IV. On the death, in 1032, of the last independent king, Rudolph III., it came partly by be- quest, partly by conquest, into the hands of the Emperor Conrad II. (the Salic), and thenceforward formed a part of the Em- pire. In the thirteenth century, France began to absorb it, bit by bit, and has now (since the annexation of Savoy in 1861) ac- quired all except the Swiss portion of it. " VL The Lesser Duchy {Burgundia MP nor), (Klein Burgund), corresponded very nearly with what is now Switzerland west of the Reuss, including the Valais. It was Trans-Jurane Burgundy (IV.) minus the parts of Savoy which had belonged to that kingdom. It disappears from history af- ter the extinction of the house of Zahrin- geu in the thirteenth century. Legally it was part of the Empire till a.d. 1G48, though practically independent long before that date. "VII. The Free County or Palatinate of Burgundy (Franche Comte), (Freigraf- schaft), (called also Upper Burgundy), to which the name of Cis-Jurane Burgundy originally and properly belonged, lay be- tween the Saone and the Jura. It formed a part of III. and V., and was therefore a fief of the Empire. The French dukes of Burgundy were invested with it in a.d. 7SS4, and in 1G7S it was annexed to the Crown of France. •'VIII. The Landgraviate of Burgundy (Landgrafschaft) was in Western Switzer- land, on both sides of the Aar, between Thun and Solothui'n. It was a part of the Lesser Duchy (VI.), and, like it, is hardly mentioned after the thirteenth century. "IX. Tlie Circle of Burgundy (Kreia Burgund), an administrative division of the Empire, was established by Charles V. in 1548 ; and included the Free County of Burgundy (VII.) and the seventeen prov- inces of the Netherlands, which Charles inherited from his grandmother Mary, daughter of Charles the Bold. "X. The duchy of Burgundy (Lowe? Burgundy), (Bourgogne), the most norths erly part of the old kingdom of the Bur- gundians, was always a fief of the crown of France, and a province of France till the Revolution. It was of this Burgundy NOTES TO CIIArTER I. 75 that Phiiip the Good and Charles the Bold were dukes. They were also counts of the Free County (VII.)."— "The Holy Ro- man Empire," pp. 437-439, IX, AUTHORITIES FOR FRENCH HISTORY. The history of France by Velly, Villaret, and Gamier, was the principal authority originally used by Mr. Hallam for this chapter, exclusive of original writers. The part of the Abbe Velly comes down to the middle of the eighth volume (12mo edi- tion), and of the reign of Philip de Valois. His continuator, Villaret, was interrupted by death in the seventeenth volume, and in the reign of Louis XI, Subsequently Mr. Hallam observed that " this history is but slightly esteemed in France, especially the volumes written by the Abbe Velly, The writers were too much imbued with the spirit of the old monarchy (though no adulators of kings, and rather liberal ac- cording to the standard of their own age) for those who have taken the sovereignty of the people for their creed. Nor are they critical and exact enough for the present state of historical knowledge. Sis- moudi and Michelet, especially the former, are doubtless superior ; but the reader will not And in the latter as regular a narration of facts as in Velly and Villaret, Sismondi has as many prejudices on one side as they have on the opposite," But the histories of Sismondi and Michelet are in their turn now superseded to a great extent by that of H. Martin. f6 STATE OF ANCIENT GERMANY. Chap. II. PartL CHAPTER II. ON THE FEUDAL SYSTEM, ESPECIALLY IN FRANCE. PART I. i 1. State of Ancient Germany. § 2. Effects of the Conquest of Ganl by the Franks. 5 3. Tenures of Laud. § 4. Roman Natives of Gaul. § 5, Proportion of Franks and Romans. § 6. Distinction of Laws. § 7. Constitution of the ancient Frank Monarchy, § S. Origin of Nobility. § 9. Gradual Establishment of Feudal Ten- ures. § 10. Principles of a Feudal Relation. § 11. Ceremonies of Homage, Fealty, and Investiture. § 12. Obligations of a Vassal. Military Service. § 13. Feudal In- cidents of Relief, Fines, Escheats, Aids, Wardship, Marriage. § 14. Different Spe- cies of Fiefs. § 15. Feudal Law-books. § 1. Germany, in the age of Tacitus, was divided among a number of independent tribes, differing greatly in population and importance. Their country, overspread with forests and morasses, afforded no large proportion of arable land. Nor did they ever occupy the same land two years in succession, if what Caesar tells us may be believed, that fresh allotments were annually made by the magistrates. But this could not have been an absolute abandonment of land once cultivated, which Horace ascribes to the migratory Scythians. The Germans had fixed though not contiguous dwellings, and the inhabitants of the gem or township must have continued to till the same fields, though it might be with varying rights of separate property. They had kings elected out of partic- ular families ; and other chiefs, both for war and administra- tion of justice, whom merit alone recommended to the pub- lic choice. But the power of each was greatly limited ; and the decision of all leading questions, though subject to the previous deliberation of the chieftains, sprung from the free voice of a popular assembly. The principal men, however, of a German tribe fully partook of that estimation which is al- ways the reward of valor, and commonly of birth. They were surrounded by a cluster of youths, the most gallant and am- bitious of the nation, their pride at home, their protection in the field ; whose aml3ition was flattered, or gratitude concili- ated, by such presents as a leader of barbarians could confer. These were the institutions of the people who overthrew the empire of Rome, congenial to the spirit of infant societies, and such as travellers liave found among nations in tlie same Feudal System. PARTITION OF CONQUESTS. 77 stage of manners throughout the world. And although, in the lapse of four centuries between the ages of Tacitus and Clovis, some change was wrought by long intercourse with the Romans, yet the foundations of their political system were unshaken. If the Salic laws were in the main drawn up before the occupation of Gaul by the Franks, as seems the better opinion, it is manifest that lands were held by them in determinate several possession ; and in other re- spects it is impossible that the manners described by Tacitus should not have undergone some alteration. § 2. When these tribes from Germany and the neighbor- ing countries poured down upon the empire, and began to form permanent settlements, they made a partition of the lands in the conquered provinces between themselves and the original possessors. The Burgundians and Visigoths took two-thirds of their respective conquests, leaving the remainder to the Roman proprietor. Each Burgundian was quartered, under the gentle name of guest {hos2:>es), upon one of the former tenants, whose reluctant hospitality confined him to the smaller portion of his estate. The Vandals in Africa, a more furious race of plunderers, seized all the best lands. The Lombards of Italy took a third part of the prod- uce. We can not discover any mention of a similar ar- rangement in the laws or history of the Franks. It is, how- ever, clear that they occupied, by public allotment or indi- vidual pillage, a great portion of the lands of France. § 3. The estates possessed by the Franks as their proper- ty were termed allodial/ a word which is sometimes re- stricted to such as had descended by inheritance.' These were subject to no burden except that of public defense. They passed to all the children equally, or, in their failure, to the nearest kindred. But of these allodial possessions there was a particular species, denominated Salic, from which females were expressly excluded. What these land» 1 Allodial lands are commouly opposed to beneficiary or feudal ; the former bein^: strictly proprietary, while the latter depended upon a superior. In this sense the word is of continual recurrence in ancient histories, laws, and instruments. It some- times, however, bears the sense of inheritatice. Hence, in the charters of the eleventh century, hereditary fiefs are frequently termed allodia. The word allod or alod, in Latin alodis, in French alleu, is of uncertain etymology. It has usually been thought to be compounded of all and odh, and would thus signify full or entire property; but MM. Guizot, Lehuorou, and other writers, derive it from the Teutonic loos, sors. The word sors, when applied to land means only an integral patrimony, as it means capi- tal opposed to interest when applied to money. It is common in the civil law, and is no more than the Greek »c\/"/por; but it had been peculiarly applied to the lands as- signed by the Romans to the soldiery after a conquest, which some suppose to have been by lot. And hence this term was m Homacjium, hominium. ^^ Fidelita*. Feudal System. TERM OF MILITARY SERVICE. 89 tie from the form of Iiomage. 3. Investiture,^^ or the actual conveyance of feudal lands, was of two kinds ; proper and improper. The first was an actual putting in possession upon the ground, either by the lord or his deputy; which is called, in our law, livery of seisin. The second was symbol- ical, and consisted in the delivery of a turf, a stone, a wand, a branch, or whatever else might have been made usual by the caprice of local custom. § 12. Upon investiture, the duties of the vassal com? menced. These it is impossible to define or enumerate ; because the services of military tenure, which is chiefly to be considered, were in their nature uncertain, and distin- guished as such from those incident to feuds of an inferior description. It was a breach of faith to divulge the lord's counsel, to conceal from him the machinations of others, to injure his person or fortune, or to violate the sanctity of his roof an A the honor of his family. In battle he was bound to lend his i?orse to his lord when dismounted ; to adhere to his side, while fighting ; and to go into captivity as a hostage for liim, when taken. His attendance was due to the lord's courts, sometimes to witness, and sometimes to bear a part in, the adminstration of justice. The measure, however, of military service was generally settled by some usage. Forty days was the usual term dur- ing which the tenant of a knight's fee was bound to be in the field at his own expense. This was extended by St. Louis to sixty days, except when the charter of infeudation expressed a shorter period. But the length of service di- minished with the quantity of land. For half a knight's fee but twenty days were due ; for an eighth part but five ; and when this was commuted for an escuage or pecuniary assess- ment, the same proportion was observed."^* Men turned of sixty, public magistrates, and, of course, women, were free from personal service, but obliged to send their substitutes. A failure in this primary duty incurred perhaps strictly a forfeiture of the fief. But it was usual for the lord to inflict an amercement, known in England by the name of escuage. The regulations as to the place of service were less uniform than those which regarded time. In some places the vassal was not bound to go beyond the lord's territory, or only so far as that he might return the same day. Other customs *3 Investitura. 1* The knight's fee was flxed in England at the annual value of i;20. Every estate supposed to be of this value, and entered as such in the rolls of the exchequer, was bound to contribute the service of a soldier, or to pay an escuage to the amount as- sessed upon knights' f«e. 90 FEUDAL INCIDENTS. Chap. II. Part I compelled him to follow his chief upon all his expeditions. These inconvenient and varying usages betrayed the origin of the feudal obligations, not founded upon any national policy, but springing from the chaos of anarchy and intes- tine war, which they were well calculated to perpetuate. For the public defense their machinery was totally unserv- iceable, until such changes were wrought as destroyed the character of the fabric. § 13. Independently of the obligations of fealty and serv- ice, which the nature of the contract created, other advan- tages were derived from it by the lord, which have been called feudal incidents: these were, 1. Reliefs. 2. Fines upon alienation. 3. Escheats. 4. Aids ; to Avhich may be added, though not generally established, 5. Wardship, and 6. Marriage. (1.) A liellefwas a sum of money (unless where charter or custom introduced a different tribute) due from every one of full age, taking a fief by descent. This was in some countries arbitrary, and the exactions practised under this pretense both upon superior and inferior vassals, ranked among the greatest abuses of the feudal policy. Henry I. of England promises in his charter that they shall in future be just and reasonable; but the rate does not appear to have been final- ly settled till it was laid down in Magna Charta at about a fourth of the annual value of the fief By a law of St. Louis, in 1245, the lord was entitled to enter upon the lands, if the heir could not pay the relief, and possess them for a year. This riglit existed unconditionally in England under the name of primer seisin, but was confined to the king. (2.) Closely connected with reliefs Avere the Fines upon alienation — that is, the fines paid to the lord upon the aliena- tion of his vassal's feud ; and indeed we frequently find thera called by the same name. The spirit of feudal tenure estab- lished so intimate a connection between the two parties that it could be dissolved by neither without requiring the oth- er's consent. If the lord transferred his seigniory, the tenant was to testify his concurrence ; and this ceremony was long kept up in England under the name of attornment. The as- sent of the lord to his vassal's alienation was still more es- sential, and more diflicult to be attained. He had received his fief, it was supposed, for reasons peculiar to himself or to his family ; at least his heart and arm were bound to his su^ perior; and his service was not to be exchanged for that of a stranger, who might be unable or unwilling to render it. By the law of France the lord was entitled, upon every alien* Feudal System. RELIEFS, FINES, ESCHEATS, AIDS. 01 ation made by his tenant, either to redeem the fief by pay- ing the purchase-money, or to claim a certain part of the value, by way of fine, upon the change of tenancy/* (3.) Escheats. — As fiefs descended but to the posterity of the first taker, or at the utmost to his kindred, they neces- sarily became sometimes vacant for want of heirs ; especial- ly where, as in England, there was no power of devising them by will. In this case it was obvious that they ought to revert to the lord, from whose property they had been derived. These reversions became more frequent through the forfeitures occasioned by the vassal's delinquency, either towards his superior lord or the estate. Various cases are laid down in the "Assises de Jerusalem," where the vassal forfeits his land for a year, for his life, or forever. But under rapacious kings, such as the Norman line in England, abso- lute forfeitures came to prevail, and a new doctrine was in- troduced — the corruption of blood, by which the heir was ef- fectually excluded from deducing his title at any distant time though an attainted ancestor. (4.) Reliefs, fines upon alienation, and escheats, seem to be natural reservations in the lord's bounty to his vassal. He had rights of another class which principally arose out of fealty and intimate attachment. Such were the aids which he was entitled to call for in certain prescribed circum- stances. These depended a great deal upon local custom, and were often extorted unreasonably. Hence by Magna Charta three only were retained in England — to make the lord's eldest son a knight, to marry his eldest daughter, and to redeem his person from prison. They were restricted to nearly the same description by a law of William I. of Sicily, and by the customs of France. These feudal aids are de- serving of our attention, as the beginnings of taxation, of which for a long time they in a great measure answered the purpose, till the craving necessities and covetous policy of kings substituted for them more durable and onerous bur- dens. I might here, perhaps, close the enumeration of feudal in- cidents, but that the two remaining, wardship and marriage, though only partial customs, were those of our own country. *s In England even the practice of snb-iiifeudation, whicli was more conformable to the law of fiefs and the military genius of the system, but injurious to the suzerains, who lost thereby their escheats and other advantages of seigniory, was checked by Magna Charta, and forbidden by the statute 18 Edward I., called Quia Emptores, which at the same time gave the liberty of alienating lands to be holden of the grantor's immediate lord. The tenants of the crown were not included in this act ; but that of 1 Edward III., c. 12, enabled them to alienate, upon the payment of a com- position into chancery, which was fixed at one-third of the annual value of the lands. *J2 WARDSHIP, MARRIAGE. Chap. II. Part I. and tend to illustrate the rapacious character of a feudal ar- istocracy. (5.) In England, and in Normandy, which either led the way to, or adopted, all these English institutions, the lord had the wardship of his tenant during minority. By virtue of this right he had both the care of his person and received to his own use the profits of the estate. There is something in this custom very conformable to the feudal spirit, since none was so fit as the lord to train np his vassal to arms, and none could put in so good a claim to enjoy the fief, while the military service for which it had been granted was suspend- ed. This privilege of guardianship seems to have been en- joyed by the lord in some parts of Germany ; but in the law of France the custody of the land was intrusted to the next heir, and that of the person, as in socage tenures among us, to the nearest kindred of that blood which could not inherit. By a gross abuse of this custom in England, the right of guardianshij) in chivalry, or temporary possession of the lands, was assigned over to strangers. This was one of the most vexatious parts of our feudal tenures, and was never, perhaps, more sorely felt than in their last stage under the Tudor and Stuart families. (6.) Another right given to the lord by the Norman and English laws was that oi Marriage^ or of tendering a husband to his female wards while under age, whom they could not reject without forfeiting the value of the marriage — that is, as much as any one would give to the guardian for such an alliance. This was afterwards extended to male wards, and became a very lucrative source of extortion to the crown, as well as to mesne lords. This custom seems to have had the same extent as that of wardships. It is found in the ancient books of Germany, but not of France. The kings, however, and even inferior lords, of that countrj'-, required their con- sent to be solicited for the marriage of their vassals' daugh- ters. Several proofs of this occur in the history as well as in the laws of France ; and the same prerogative existed in Germany, Sicily, and England. These feudal servitudes distinguish the maturity of the system. No trace of them appears in the capitularies of Charlemagne and his family, nor in the instruments by which benefices were granted. I believe that they did not make part of the regular feudal law before the eleventh, or, per- haps, the twelfth century, though doubtless partial usages of this kind had grown up antecedently to either of those peri- ods. Indeed, that very general commutation of allodial prop* Feudal System. PJiOrER AND IMPKOrEK FEUDS. 93 erty into tenure which took place between the middle of the ninth and eleventh centuries would hardly have been effected if fiefs had then been liable to such burdens and bo much extortion. In half-barbarous ages the strong are constantly encroaching upon the weak; a truth which, if it needed illus- tration, might find it in the progress of the feudal system. § 14. We have thus far confined our inquiry to fiefs holden on terms of military service ; since those are the most an- cient and regular, as well as the most consonant to the spirit of the system. They alone were csiWed proper fends, and all were presumed to be of this description until the contrary w-as proved by the charter of investiture. A proper feud was bestowed without price, without fixed stipulation, upon a vassal capable of serving personally in the field. 13ut gradually, with the help of a little legal ingenuity, improper fiefs of the most various kinds were introduced, retaining lit- tle of the characteristics, and less of the spirit, which distin- guished the original tenures. Women, if indeed that were an innovation, were admitted to inherit them ; they were granted for a price, and without reference to military serv- ice. The language of the feudal law^ was applied by a kind of metaphor to almost every transfer of property. Hence pensions of money and allowance of provisions, however re- mote from right notions of a fief, were sometimes granted under that name ; and even where land w^as the subject of the donation, its conditions were often lucrative, often honor- ary, and sometimes ludicrous. There is one extensive species of feudal tenure which may be distinctly noticed. The pride of wealth in the Middle Ages was principally exhibited in a multitude of dependents. The court of Charlemagne was crowded with officers of every rank, some of the most eminent of w^hom exercised functions about the royal person which would have been thought tit only for slaves in the palace of Augustus or Antonine. The free-born Franks saw nothing menial in the titles of cup- bearer, steward, marshal, and master of the horse, which are still borne by the noblest families in many parts of Europe, and, till lately, by sovereign princes in the empire. From the court of the king this favorite piece of magnificence de- scended to those of the prelates and barons, w^ho surrounded themselves with household oflficers called ministerials ; a name equally applied to those of a servile and of a liberal description. The latter of these were rewarded with grants of lands, which they held under a feudal tenure by the con- dition of peiforming some domestic service to the lord. 94 FEUDAL INCIDENTS. Chap. II. Part I. Wliat was called in our law grand sergeanty affords an in- stance of this species of fief. '^ These imperfect feuds, however, belong more properly to the history of law, and are chiefly noticed in the present sketch because they attest the partiality manifested during the Middle Ages to the name and form of a feudal tenure. In the regular military fief we see the real principle of the system, which might originally have been defined an alliance of free land-holders arranged in degrees of subordination according to their respective caj^acities of afibrding mutual support. § 15. The peculiar and varied attributes of feudal tenures naturally gave rise to a new jurisprudence, regulating terri- torial rights in those parts of Europe which had adopted the system. For a length of time this rested in traditionary customs observed in the domains of each prince or lord, without much regard to those of his neighbors. Laws were made occasionally by the emperor in Germany and Italy, which tended to fix the usages of those countries. About the year 1170, Girard and Obertus, two Milanese lawyers, published two books of the law of fiefs, which obtained a great authority, and have been regarded as the groundwork of that jurisprudence. A number of subsequent commenta- tors swelled this code with cheir glosses and opinions, to en^ lighten or obscure the judgment of the imperial tribunals. These were chiefly civilians or canonists, who brought to the interpretation of old barbaric customs the principles of a very diflerent school. Hence a manifest change was wrought in the law of feudal tenure, which they assimilated to the usufruct or the emphyteusis of the Roman code ; modes of property somewhat analogous in appearance, but totally dis- tinct in principle, from the legitimate fief These Lombard lawyers propagated a doctrine Avhich has been too readily received, that the feudal system originated in their country. But whatever weight it may have possessed within the limits of the empire, a dififerent guide must be followed in the an- cient customs of France and England. These were fresh from the fountain of that curious polity with which the stream of Roman law had never mingled its waters. In England we know that the Norman system established be- '* "This tenure," says Littleton, "is where a man holds his lands or tenements of onr sovereign lord the king by snch services as he ought to do in his proper person t« the king, as to carry the banner of the king, or his lance, or to lead his array, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of his chamberlains at the receipt of his exchequer, or to do other like services."— Sect. 153. Feudal System. COMMON LAW. 95 tween the Conquest and the reign of Henry IT. was re- strained by regular legislation, by paramount courts of jus- tice, and by learned writings, from breaking into discordant local usages, except in a comparatively small number of places, and has become the j^rincipal source of our common law. But the independence of the French nobles produced a much greater variety of customs. The whole number col- lected and reduced to certainty in the sixteenth century amounted to two hundred and eighty-five, or, omitting those inconsiderable for extent or peculiarity, to sixty. The ear- liest written customary in France is that of Beam, which is said to have been confirmed by Viscount Gaston IV. in 1088. Many others were written in the two subsequent ages, of which the customs of Beauvoisis, compiled by Beaumanoir under Philip III., are the most celebrated, and contain a mass of information on the feudal constitution and manners. Under Charles VII. an ordinance was made for the formation of a general code of customary law, by ascertaining forever in a written collection those of each district ; but the work was not completed till the reign of Charles IX. This was what may be called the common law of the pays coiitumierSj or northern division of France, and the rule oi ^1} their tribu-* rials, unless where controlled by royal edicts. 96 ANALYSIS OF FEUDAL SYSTEM. Chap. H. Part IL PART II. S 1. Analysis of the Feudal System. § 2. Its Local Extent. § 3. View of the different Orders of Society during the Feudal Ages. Nobility. Their Ranks and Privileges. § 4. Clergy. § 5. Freemen. § C. Serfs or Villeins. § T. Comparative State of France and Germany. § 8. Privileges enjoyed by the French Vassals. Eight of coining Money. § 9. Right of Private War. § 10. Immunity from Taxation. Historical View of the Royal Revenue in France. Methods adopted to augment it by Depre- ciation of the Coin, etc. § 11. Legislative Power. Its State under the Merovingian Kings, and Charlemagne. His Councils. §12. Suspension of any general legisla- tive Authority during the Prevalence of Feudal Principles. The King's Council. § 13. Means adopted to supply the Want of a National Assembly. § 14. Gradual Progress of the King's Legislative Power. § 15. Philip IV. assembles the States- General. Their Powers limited to Taxation. § 16. States under the Sons of Phil- ip IV. § IT. States of 1356 and 1356. They nearly effect an entire Revolution. § 18. The Crown recovers its Vigor. § 19. States of 1380, under Charles VI. Sub- sequent Assemblies under Charles VI. and Charles VII. § 20. The Crown becomes more and more absolute. Louis XI. § 21. States of Tours in 1484. § 22. Histor- ical View of Jurisdiction in France. Its earliest Stage uuder the first Race of Kings, and Charlemagne. §23. TerritorialJurisdiction. Feudal Courts of Justice. § 24. Trial by Combat. § 25. Code of St. Louis. § 26. The territorial Jurisdictions give way. Progress of the Judicial Power of the Crown. § 27. Parliament of Paris. § 28. Peers of France. § 29. Increased Authority of the Parliament. Reg- istration of Edicts. § 30. Causes of the Decline of the Feudal System. Acquisi- tions of Domain by the Crown, i 31. Charters of Incorporation granted to Towns. First Charters in the Twelfth Century. § 32. Privileges contained in them. § 33. Military Service of Feudal Tenants commuted for Money. Hired Troops. Change in the Military System of Europe. §34. Decay of Feudal Principles. §35. General View of the Advantages and Disadvantages attending the Feudal System. § 1. The advocates of a Roman origin for most of the in- stitutions which we find in the kingdoms erected on the ruins of the empire are naturally prone to magnify the anal- ogies to feudal tenure which Rome presents to us, and even to deduce it either from the ancient relation of patron and client, and that of personal commendation, which was its representative in a later age, or from the frontier lands granted in the third century to the La3ti, or barbarian sol- diers, who held them, doubtless, subject to a condition of military service. The usage of commendation especially, so frequent in the fifth century, before the conquest of Gaul, as well as afterwards, does certainly bear a strong analogy to vassalage, and I have already pointed it out as one of its sources. It wanted, hoAvever, that definite relation to the tenure of land which distinguished the latter. The royal Antrustio (whether the word commeoidatus were applied to him or not) stood bound by gratitude and loyalty to his sovereign, and in a very different degree from a common Feudal Svsr„:... EXTENT OF FEUDAL SYSTEM. 97 subject ; but he was not perhaps strictly a vassal till he had received a territorial benefice/ The complexity of sub-in- feudation could have no analogy in commendation. The grants to veterans and to the Lseti are so far only analogous to fiefs, that they established the principle of holding lands on a condition of military service. But this service was no more than what, both under Charlemagne and in England, if not in other times and places, the allodial freeholder was bound to render for the defense of the realm ; it was more commonly required, because the lands were on a barbarian frontier ; but the duty was not even very analogous to that of a feudal tenant. The essence of a fief seems to be, that its tenant owed fealty to a lord, and not to the state or the sovereign ; the lord might be the latter, but it was not, feudally speaking, as a sovereign that he was obeyed. This is, therefore, sufiicient to warrant us in tracing the real the- ory of feuds no higher than the Merovingian history in France ; their full establishment, as has been seen, is consid- erably later. But the preparatory steps in the constitutions of the declining empire are of considerable importance, not merely as analogies, but as predisposing circumstances, and even germs to be subsequently developed. The beneficiary tenure of lands could not well be brought by the conquerors from Germany ; but the donatives of arms or precious met- als bestowed by the chiefs on their followers were also anal- ogous to fiefs ; and, as the Roman institutions were one source of the law of tenure, so these were another. It is of great importance to be on our guard against seem- ing analogies which vanish away when they are closely ob- served. We should speak inaccurately if we were to use the word feudal for the service of the Irish or Highland clans to their chieftain; their tie was that of imagined kindred and respect for birth, not the spontaneous compact of vas- salage. Much less can we extend the name of feud, though it is sometimes strangely misapplied, to the polity of Poland and Russia. All the Polish nobles were equal in rights, and independent^ of each other ; all who were less than noble were in servitude. No government can be more opposite to the long gradations and mutual duties of the feudal system. § 2. The regular machinery and systematic establishment of feuds, in fact, may be considered as almost confined to the dominions of Charlemagne, and to those countries which * This word " vassal " is used very indefinitely ; it means, in its original sense, only a servant or dependent, Bnt in the Continental records of histories we commonly find it applied to feudal tenants. 5 98 ORDERS OF SOCIETY. Chap II. Part II afterwards derived it from thence. In England it can hard- ly be thought to have existed in a complete state before the Conquest. Scotland, it is supposed, borrowed it soon after from her neighbor. The Lombards of Benevento had intro- duced feudal customs into the Neapolitan provinces, which the IsTorman conquerors afterwards perfected. Feudal ten- ures were so general in the kingdom of Aragon,that I reckon it among the monarchies which were founded upon that ba- sis. Charlemagne's empire, it must be remembered, extend- ed as far as the Ebro. But in Castile and Portugal they were very rare, and certainly could produce no political ef- fect. Benefices for life were sometimes granted in the king- doms of Denmark and Bohemia. Neither of these, however, nor Sweden nor Hungary, come under the description of countries influenced by the feudal system. That system, however, after all these limitations, was so extensively dif- fused, that it might produce confusion as well as prolixity to pursue collateral branches of its history in all the coun- tries where it prevailed. But this embarrassment may be avoided without any loss, I trust, of important information. The English constitution will find its place in another por- tion of this volume ; and the political condition of Italy, after the eleventh century, was not much affected, except in the kingdom of Naples, by the laws of feudal tenure. I shall confine myself, therefore, chiefly to France and Germany; and far more to the former than the latter country. But it may be expedient first to contemplate the state of society in its various classes during the prevalence of feudal princi- ples, before we trace their influence upon the national gov- ernment. § 3. It has been laid down already as most probable that no proper aristocracy, except that of wealth, was known un- der the early kings of France ; and it was hinted that hered- itary benefices, or, in other words, fiefs, might supply the link that was wanting between personal privileges and those of descent. The possessors of beneficiary estates were usu- ally the richest and most conspicuous individuals in the es- tate. They were immediately connected with the crown, and partakers in the exercise of justice and royal counsels. Their sons now came to inherit this eminence ; and, as fiefs were either inalienable, or at least not very frequently al- ienated, rich families were kept long in sight ; and, whether engaged in public affairs, or living with magnificence and hospitality at home, naturally drew to themselves popular estimation. The dukes and counts, who had changed their Fkudal System. THE NOBILITY. 99 quality of governors into that of lords over the provinces, in- trusted to them, were at the head of this noble class. And in imitation of them, their own vassals, as well as those of the crown, and even rich allodialists, assumed titles from their towns or castles, and thus arose a number of petty counts, barons, and viscounts. This distinct class of nobility be- came co-extensive with the feudal tenures. For the military tenant, however poor, was subject to no tribute ; no presta- tion, but service in the field: he was the companion of his lord in the sports and feasting of his castle, the peer of his court ; he fought on horseback, he was clad in the coat of mail, while the commonalty, if summoned at all to war, came on foot, and with no armor of defense. As every thing in the habits of society conspired wdth that prejudice which, in spite of moral philosophers, will constantly raise the profes- sion of arms above all others, it Avas a natural consequence that a new species of aristocracy, founded upon the mixed considerations of birth, tenure, and occupation, sprung out of the feudal system. Every possessor of a fief was a gen- tleman, though he owned but a few acres of land, and fur- nished his slender contribution tovvards the equipment of a knight. There still, however, wanted something to ascertain gen- tility of blood where it was not marked by the actual tenure of land. This was supplied by two innovations devised in the eleventh and twelfth centuries — the adoption of sur- names and of armorial bearings. The first are commonly re- ferred to the former age, when the nobility began to add the names of their estates to their own, or, having any way acquired a distinctive appellation, transmitted it to their posterity. As to armorial bearings, there is no doubt that emblems somewhat similar have been immemorially used both in war and peace. The shields of ancient warriors, and devices upon coins or seals, bear no distant resemblance to modern blazonry. But the general introduction of such bearings, as hereditary distinctions, has been sometimes at- tributed to tournaments, wherein the champions were dis- tinguished by fanciful devices ; sometimes to the Crusades, where a multitude of jiU nations and languages stood in need of some visible token to denote the banners of their respect- ive chiefs. In fact, the peculiar symbols of heraldry point to both these sources, and have been borrowed in part fi-om each. Hereditary arms were perhaps scarcely used by pri- vate families before the beginning of the thirteenth century. From that time, however, they became very general, and 100 THE NOBILITY. Chap. II. Part II have contributed to elucidate that branch of history which regards the descent of illustrious families. When the privileges of birth had thus been rendered ca- pable of legitimate proof, they were enhanced in a great de- gree, and a line drawn between the high-born and ignoble classes almost as broad as that which separated liberty from servitude. All offices of trust and power were conferred on the former; those excepted which appertain to the legal profession. A plebeian could not possess a iief ' Such at least was the original strictness ; but as the aristocratic prin- ciple grew weaker, an indulgence was extended to heirs, and afterwards to purchasers. They were even permitted to become noble by the acquisition, or at least by its posses- sion for three generations. But notwithstanding this enno- bling quality of the land, which seems rather of an equivocal description, it became an established right of the crown to take, every twenty years, and on every change of the vassal, a fine, known by the name of franc-fief, from plebeians in possession of land held by a noble tenure.' A gentleman in France or Germany could not exercise any trade without derogating, that is, losing the advantages of his rank. A few exceptions were made, at least in the former country, in favor of some liberal arts and of foreign commerce. But in nothing does the feudal haughtiness of birth more show itself than in the disgrace which attended unequal marriages. No children could inherit a territory held immediately of the empire unless both their parents belonged to the higher class of nobility. In France the off*spring of a gentleman by a plebeian mother were reputed noble for the purposes of inheritance, and of exemption from tribute." But they could not be received into any order of chivalry, though capable of simple knighthood ; nor were they considered as any better than a bastard class deeply tainted with the al- loy of their maternal extraction. Many instances occur where letters of nobility have been granted to reinstate them in their rank. For several purposes it was necessary to prove four, eight, sixteen, or a greater number of quarters 2 We have uo English word that conveys the full sense of roturier. How glorious is this deficiency in our political language, and how different are the ideas suggested by commoner^ Roturier, according to Du Gauge, is derived from rapturarius, a peas- ant, ab agrum rnmpendo. ' The right, originally perhaps usurpation, called franc-fief, began under Philip the Pair. •' Ordonuances des Rois," t. i., p. 324 ; Denisart, art. " Franc-fief." * Nobility, to a certain degree, was communicated through the mother alone, not only by the custom of Champagne, but in all parts of France ; that is, the issue were "gentilhommes dii fait de leur corps," and could possess fiefrf ; but, says Beaumanoir, • la gentilesse par laquelle on devient chevalier doit venir de par le pere," c. 45. Feudal Systkm. PRIVILEGES OF THE NOBIlA'^t- I '^ i[} \^^^S ■ — that is, of coats borne by paternal and maternal ancestors ; and the same practice still subsists in Germany. It appears, therefore, that the original nobility of the Con- tinent were what we may call self-created, and did not de- rive their rank from any such concessions of their respective sovereigns as have been necessary in subsequent ages. In England the baronies by tenure might belong to the same class, if the lands upon which they depended had not been granted by the crown. But the kings of France, before the end of the thirteenth century, began to assume a privilege of creating nobles by their own authority, and without re- gard to the tenure of land. Philip the Hardy, in 1271, was the first French king who granted letters of nobility ; under the reigns of Philip the Fair and his children they gradually became frequent. This effected a change in the character of nobility, arid had as obvious a moral, as other events of the same age had a political, influence in diminishing the power and independence of the territorial aristocracy. The privileges originally connected with ancient lineage and ex- tensive domains became common to the low-born creatures of a court, and lost consequently part of their title to respect. The lawyers, as I have observed above, pretended that no- bility could not exist without a royal concession. They ac- quired themselves, in return for their exaltation of preroga- tive, an oflicial nobility by the exercise of magistracy. The institutions of chivalry again gave rise to a vast increase of gentlemen, knighthood, on whomsoever conferred by the sovereign, being a sufticient passport to noble privileges. It was usual, perhaps, to grant previous letters of nobility to a plebeian for whom the honor of knighthood was designed. In this noble or gentle class there were several gradations. All those in France who held lands immediately depending upon the crown, whatever titles they might bear, were com- prised in the order of Barons. These were originally the peers of the king's court ; they possessed the higher territo- rial jurisdiction, and had the right of carrying their own banner into the field. To these corresponded the Valvas- sores majores and Capitanei of the Empire. In a subordi- nate class were the vassals of this high nobility, who, upon the Continent, were usually termed Vavassors — an appella- tion not unknown, though rare, in England."* The Chatelains 6 Chaucer concludes his picturesque description of the Franklin, in the prologue to the " Canterbury Tales," thus ; " Was never such a worthy Vavas^or." This has perplexed some of our commentators, who, not knowing well what was '1^,^ STATUS OF THE CLERGY. Chap. II. Part II. (Castellani) belonged to the order of Vavassors, as they held only arriere iiefs ; but, having fortified houses, from which they derived their name (a distinction very important in those times), and possessing ampler rights of territorial jus- tice, they rose above the level of their fellows in the scale of tenure.^ But after the personal nobility of chivalry became the object of pride, the Vavassors who obtained knighthood were commonly styled bachelors ; those who had not received that honor fell into the class of squires,' or Damoiseaux. § 4. It will be needless to dwell upon the condition of the inferior clergy, whether secular or professed, as it bears lit- tle upon the general scheme of polity. The prelates and ab- bots, however, it must be understood, were completely feudal nobles. They swore fealty for their lands to the king or other superior, received the homage of their vassals, enjoyed the same immunities, exercised the same jurisdiction, main- tained the same authority, as the lay lords among Avhom they dwelt. Military service does not appear to have been reserved in the beneficiary grants made to cathedrals and monasteries. But when other vassals of the crown were called upon to repay the bounty of their sovereign by per- sonal attendance in war, the ecclesiastical tenants were sup- posed to fall within the scope of this feudal duty, which men little less uneducated and violent than their compatriots were not reluctant to fulfill. Charlemagne exempted or rather prohibited them from personal service by several capitularies. The practice, however, as every one who has some knowledge of history will be aware, prevailed in suc- ceeding ages. Both in national and private warfare we find meant by a franklin or by a vavassov, fancied tlie latter to be of much higher quality than the former. The poet, however, was strictly correct : his acquaintance with French manners showed him that the country squire, for his franklin is no other, pre- cisely corresponded to the vavassor in France. 6 Whoever had a right to a castle had la haute justice ; this being so incident to the castle that it was transferred along with it. There might, however, be a seigneur haut-justicier below the chatelain ; and a ridiculous distinction was made as to the number of posts by which their gallows might be supported. A baron's instrument of execution stood on four posts ; a chiitelain's on three : while the inferior lord who happened to possess la haute justice was forced to hang his subjects on a two-legged machine. " Coutnmes de Poitou ; Du Cange, v. Purca." Laurie-re quotes from an old manuscript the following short scale of ranks : Due est la premiere dignite, puis comtes, puis viscomtes, et puis baron, et puis chatelain, et puis vavasseur, et puis citaen, et puis villain.—" Ordonnances des Kois," t. i., p. 277. ' The sons of knights, and gentlemen not yet knighted, took the appellation of squires in the twelfth century. That of Damoiseau came into use in the thirteenth. The latter was more usual in France. Squire was not used as a title of distinction in England till the reign of Edward III., and then but sparingly. Though by Henry VI.'s time it was grown more common, yet none assumed it but the sons and heirs (A knights and some military men ; except officers in courts of justice, who, by patent oi prescription, had obtained that addition. Fkddal System. FREEMEN. 103 very frequent mention of martial prelates. But, contrary as this actual service might be to the civil as well as ecclesias- tical laws, the clergy who held military fiefs were of course bound to fulfill the chief obligation of that tenure and send their vassals into the field. We have many instances of their accompanying the army, though not mixing in the con- flict ; and even the parish priests headed the militia of their villages. The prelates, however, sometimes contrived to avoid this military service, and the payments introduced in commutation for it, by holding lands in frapk-almoigne, a tenure which exempted them from every species of obliga- tion except that of saying masses for the benefit of the grant- or's family. But, notwithstanding the warlike disposition of some ecclesiastics, their more usual inability to protect the estates of their churches against rapacious neighbors suggested a new species of feudal relation and tenure. The rich abbeys elected an advocate, whose business it was to defend their interests both in secular courts, and, if necessa- ry, in the field. Pepin and Charlemagne are styled Advo- cates of the Roman Church. This, indeed, was on a magnifi- cent scale ; but in ordinary practice the advocate of a mon- astery w^as some neighboring lord, who, in return for his pro- tection, possessed many lucrative privileges, and very fre- quently considerable estates, by way of fief from his eccle- siastical clients. Some of those advocates are reproached with violating their obligation, and becoming the plunder- ers of those whom they had been retained to defend. § 5. The classes below the gentry may be divided into free- men and villeins. Of the first were the inhabitants of char- tered towns, the citizens and burghers, of whom more will be said presently. As to those who dwelt in the country, we can have no difficulty in recognizing, so far as England is concerned, the socagers, whose tenure was free, though not so noble as knight's service, and a numerous body of tenants for term of life, who formed that ancient basis of our strength the English yeomanry. But the mere freemen are not at first sight so distinguishable in other countries. In French records and law-books of feudal times, all besides the gentry are usually confounded under the names of villeins or hom- mes de pooste (gens potestatis).® This proves the slight esti mation in which all persons of ignoble birth were considered. For undoubtedly there existed a great many proprietors of land and others, as free, though not as privileged, as the no* 8 Homo potestatis, non nobilis— Ita iiuncupantur, quod iu potentate domini sunt-j Opponuntur viris nobi'.ibus.— Du Cange, v. "Potestas." 104 SERFS, OR VILLEINS. Chap. II. Part II. bility. In the south of France, and especially Provence, the number of freemen is remarked to have been greater than in the parts on the right bank of the Loire, whel-e the feudal tenures were almost universal. I shall quote part of a pas- sage in Beaumanoir, which points out this distinction of T-anks pretty fully. " It should be known," he says,'* " that thore are three conditions of men in this world ; the first is that of gentlemen ; and the second is that of such as anf naturally free, being born of a free mother. All who havo a right to be called gentlemen are free, but all who are free are not gentlemen. Gentility comes by the father, and not by the mother; but freedom is derived from the mother only; and whoever is born of a free mother is himself free, and has free power to do any thing that is lawful.'"" § 6. In every age and country, until times comparatively recent, personal servitude appears to have been the lot of a large, pei'haps the greater, portion of mankind. We lose a good deal of our sympathy with the spirit of freedom in Greece and Rome, when the importunate recollection occurs to us of the tasks which might be enjoined, and the punish- ments w^hich might be inflicted, without control either of law or opinion, by the keenest patriot of the Comitia, or the Coun- cil of Five Thousand. A similar, though less pow^erful, feel- ing will often force itself on the mind when we read the his- tory of the Middle Ages. The Germans, in their primitive settlements, were accustomed to the notion of slavery, in- curred not only by captivity, but by crimes, by debt, and es- pecially by loss in gaming. When they invaded the Roman Empire they found the same condition established in all its provinces^ Hence, from the beginning of the era now un- der review, servitude, under somewhat different modes, was extremely common. There is some difficulty in ascertaining its varieties and stages. In the Salic laws, and in the Capit- ularies, we read not only of Servi, but of Tributarii, Lidi, and Coloni, who were cultivators of the earth, and subject to resi- dence upon their lord's estate, though not destitute of prop- erty or civil rights. Those who appertained to the demesne lands of the crown were called Fiscalini. The composition for the murder of one of these was much less than that for a freeman. The number of these servile cultivators was un- doubtedly great, yet in those early times, I should conceive, much less than it afterwards became. Property was for the most part in small divisions, and a Frank who could hardly » " Coutumes de Beanvoisis," c. 45, p. 256, " See Note IL, "The Tributarii, Lidi, and Coloni." Feudal System. SERFS, OR VILLEINS. 105 support his family upon a petty allodial patrimony was not likely to encumber himself with many servants. But the ac^ cumulation of overgrown private wealth had a natural tend- ency to make slavery more frequent. Where the small pro- prietoi*s lost their lands by mere rapine, we may believe that their liberty was hardly less endangered. Even where this was not the case, yet, as the labor either of artisans or of free husbandmen was but sparingly in demand, they were often compelled to exchange their liberty for bread. In seasons also of famine, and they were not infrequent, many freemen sold themselves to slavery.'^ A capitulary of Charles the Bald in 864 permits their redemption at an equitable price. Others became slaves, as more fortunate men became vassals, to a powerful lord, for the sake of his protection. Many were reduced to this state through inability to pay those pecuniary compositions for offenses which were numerous and sometimes heavy in the barbarian codes of law ; and many more by neglect of attendance on military expeditions of the king, the penalty of which was a fine called Heribann, with the alternative of perpetual servitude. A source of loss of liberty, which may strike us as more extraordinary, was su- perstition; men were infatuated enough to surrender them- selves, as well as their properties, to churches and monaster- ies, in return for such benefits as they might reap by the prayers of their new masters. The characteristic distinction of a villein was his obliga- tion to remain upon his lord's estate. He was not only pre- cluded from selling the lands upon which he dwelt, but his person was bound, and the lord might reclaim him at any time, by suit in a court of justice, if he ventured to stray. But, equally liable to this confinement, there were two classes »i The poor early felt the necessity of selling themselves for subsistence in times of famine. "Subdiderunt se pauperes servitio," says Gregory of Tours, a.d. 585, "ut quantulumcunque de alimeuto porrigerent." (Lib. vii., c. 45.) This long continued to be the practice; and probably the remarkable number of famines which are re- corded, especially in the ninth and eleventh centuries, swelled the sad list of those unhappy poor who Avere reduced to barter liberty for bread. Mr. Wright, in the " Archgeologia," vol. xxx., p. 223, has extracted an entry from an Anglo-Saxon manu- script, where a lady, about the time of the Conquest, manumits some slaves, "whose heads," as it is simply and forcibly expressed, "she had taken for their meat iu the evil days." Evil, indeed, were those days in France, when out of seventy-three years, the reigns of Hugh Capet and his two successors, forty-eight were years of famine. Evil were the days for five years from 1015, in the whole Western World, when not a country could l)e named that was not destitute of bread. These were famines, as Radulfns Glaber and other contemporary writers tell us, in which mothers ate their children, and children their parents; and human flesh was sold, with some pretense of concealment, in the markets. It is probable that England suffered less than France ; but so long and frequent a scarcity of necessary food must have affected, in the latter countrv, the whole oriranic frame of societv. 5* 106 CHARACTERISTICS OF VILLENAGE. Chap. II. Part II. of villeins, whose condition was exceedingly different. In England, at least from the reign of Henry II., one only, and that the inferior species, existed ; incapable of property, and destitute of redress, except against the most outrageous in- juries. The lord could seize whatever they acquired or in- herited, or convey them, apart from the land, to a stranger. Their tenure bound them to what were called villein services, ignoble in their nature and indeterminate in their degree; the felling of timber, the carrying of manure, the repairing of roads for their lord, who seems to have possessed an equally unbounded right over their labor and its fruits. But by the customs of France and Germany, persons in this abject state seem to have been called serfs, and distinguished from vil- leins, who were only bound to fixed payments and duties in respect of their lord, though, as it seems, without any legal redress if injured by him. "The third estate of men," says Beaumanoir, in the passage above quoted, "is that of such as are not free ; and these are not all of one condition, for some are so subject to their lord that he may take all they have, alive or dead, and imprison them whenever he pleases, be- ing accountable to none but God ; while others are treated more gently, from whom the lord can take nothing but cus- tomary payments, though at their death all they have es- cheats to him." Under every denomination of servitude, the children fol- lowed their mother's condition ; except in England, where the father's state determined that of the children ; on which account bastards of female villeins were born free, the law presuming the liberty of their father. The proportion of freemen, therefore, would have been miserably diminished if there had been no reflux of the tide which ran so strongly towards slavery. But the usage of manumission made a sort of circulation between these two states of mankind. This, as is well known, was an exceedingly common practice with the Romans ; and is mentioned, with certain ceremonies pre- scribed, in the Frankish and other early laws. The clergy, and especially several popes, enforced it as a duty upon lay- men ; and inveighed against the scandal of keeping Chris- tians in bondage. As society advanced in Europe, the manu- mission of slaves grew more frequent. By the indulgence of custom in some places, or perhaps by original convention, villeins might possess property, and thus purchase their own redemption. Even where they had no legal title to proper- ty, it was accounted inhuman to divest them of their little possession (the pecuHum of Roman law) ; nor was their pov Feudal System. ABOLITION OF VILLENAGE. 107 erty, perhaps, less tolerable, upon the whole, than that of the modern peasantry in most countries of Europe. It was only in respect of his lord, it must be remembered, that the vil- lein, at least in England, was without rights ; he might in- herit, purchase, sue in the courts of law ; though, as defend- ant in a real action or suit wherein land was claimed, he might shelter himself under the plea of villenage. The peas- ants of this condition were sometimes made use of in war, and rewarded with enfranchisement ; especially in Italy, where the cities and the petty states had often occasion to defend themselves with their own population ; and in peace the industry of free laborers must have been found more productive and better directed. Hence the eleventh and twelfth centuries saw the number of slaves in Italy begin to decrease ; early in the fifteenth a writer quoted by Muratori speaks of them as no longer existing. The greater part of the peasants in some countries of Germany had acquired their liberty before the end of the thirteenth century ; in other parts, as well as in all the northern and eastern regions of Europe, they remained in a sort of villenage till the pres- ent age. Some very few instances of predial servitude have been discovered in England so late as the time of Elizabeth, and perhaps they might be traced still lower. Louis Hutin, in France, after innumerable particular instances of manu- mission had taken place, by a general edict in 1315, reciting that his kingdom is denominated the kingdom of the Franks, that he would have the fact to correspond with the name, emancipates all persons in the royal domains upon paying a just composition, as an example for other lords possessing villeins to follow. Philip the Long renewed the same edict three years afterwards — a proof that it had not been carried into execution.^' § 7. At the final separation of the French from the Ger- man side of Charlemagne's empire by the treaty of Verdun in 843, there was perhaps hardly any diiference in the con- stitution of the two kingdoms. If any might have been con- jectured to have existed, it would be a greater independence and fuller rights of election in the nobility and people of Germany. But in the lapse of another century France had " Predial servitude was not, however, abolished in all parts of France till the Revo- Intion. Throughont almost the whole jurisdiction of the Parliament of Besanpon the peasants were attached to the soil, not being capable of leaving it without the lord's consent ; and that in some places he even inherited their goods in exclusion of the kindred. I recollect to have read in some part of Voltaire's correspondence an anec- dote of his interference, with that zeal against oppression which is the shining side of his moral character, 5n behalf of some cf these wretched slaves of Franche-comte, 108 STA TE OF FRANCE AND GtJRMANY. Chap. II. Fart II. lost all her political unity, and her kings all their authority ; while the Germanic empire was entirely unbroken under an effectual, though not absolute, control of its sovereign. 'No comparison can be made between the power of Charles the Simple and Conrad the First, though the former had the shadow of an hereditary right, and the latter was chosen from among his equals. A long succession of feeble princes or usurpers, and destructive incursions of the Normans, re- duced France almost to a dissolution of society ; while Ger- many, under Conrad, Henry, and the Othos, found their arms not less prompt and successful against revolted vassals than external enemies. The high dignitaries were less complete- ly hereditary than they had become in France ; they were granted, indeed, pretty regularly, but they were solicited as well as granted ; while the chief vassals of the French crown assumed them as patrimonial sovereignties, to which a royal investiture gave more of ornament than sanction. In the eleventh century these imperial prerogatives began to lose part of their lustre. The long struggles of the princes and clergy against Henry IV. and his son, the revival of more effective rights of election on the extinction of the house of Franconia, the exhausting contests of the Swabian emperors in Italy, the intrinsic weakness produced by a law of the em- pire, according to which the reigning sovereign could not retain an imperial fief more than a year in his hands, gradu- ally prepared that independence of the German aristocracy which reached its height about the middle of the thirteenth century. During this period the French crown had been in- sensibly gaining strength ; and as one monarch degenerated into the mere head of a confederacy, the other acquired un- limited power over a solid kingdom. It would be tedious, and not very instructive, to follow the details of German public law during the Middle Ages ; nor are the more important parts of it easily separable from civil history. In this relation they will find a place in a subsequent chapter of the present work. France demands a more minute attention ; and in tracing the character of the feudal system in that country, we shall find ourselves de- veloping the progress of a very different polity. § 8. To understand in what degree the peers and barons of France, during the prevalence of feudal principles, were independent of the crown, we must look at their leading privileges. These may be reckoned : I. The right of coin- ing money; II. That of waging private war; HI. The ex- em])tion from all public tributes, except the feudal aids; lY Feudal System. PlilVlLEGES OF FRENCH VASSALS. 100 The freedom from legislative control; and V. The exclusive exercise of original judicature in their dominions. Privileges so enormous, and so contrary to all principles of sovereignty, might lead us, in strictness, to account France rather a col- lection of states, partially allied to each other, than a single monarchy. I. Silver and gold were not very scarce in the first ages of the French monarchy ; but they passed more by weight than by tale. A lax and ignorant government, which had not learned the lucrative mysteries of a royal mint, was not particularly solicitous to give its subjects the security of a known stamp in their exchanges. In some cities of France money appears to have been coined by private authority be- fore the time of Charlemagne ; at least one of his capitularies forbids the circulation of any that had not been stamped in the royal mint. His successors indulged some of their vas- sals with the privilege of coining money for the use of their own territories, but not without the royal stamp. About the beginning of the tenth century, however, the lords, among their other assumptions of independence, issued money with no marks but their own. At the accession of Hugh Capet as many as a hundred and fifty are said to have exercised this power. Even under St. Louis it was possessed by about eighty, who, excluding as far as possible the royal coin from circulation, enriched themselves at their subjects' expense by high duties (seigniorages), which they imposed upon ev- ery new coinage, as well as by debasing its standard. Philip the Fair established royal officers of inspection in every private mint. It was asserted in his reign, as a gen- eral truth, that no subject might coin silver money. In fact, the adulteration practised in those baronial mints had re- duced their pretended silver to a sort of black metal, as it was called {moneta nigra)^ into which little entered but cop- per. Silver, however, and even gold, were coined by the dukes of Brittany so long as that fief continued to exist. No subjects ever enjoyed the right of coining silver in En- gland without the royal stamp and superintendence'^ — a re- markable proof of the restraint in which the feudal aristocra- cy was always held in this country. § 9. — II. The passion of revenge, always among the most ungovernable in human nature, acts with such violence upon barbarians, that it is utterly beyond the control of their im- perfect arrangements of polity. It seems to them no part _" I do not extend this to the fact; for in the anarchy of Stephen's reign both bishops and barons coined money for themselves. — Hoveden, p. 490. 110 WAR.— TAXATION. Chap. II. Part II. of the social compact to sacrifice the privilege which nature has placed in the arm of valor. Gradually, however, these fiercer feelings are blunted, and another passion, hardly less powerful than resentment, is brought to play in a contrary direction. The earlier object, accordingly, of jurisprudence is to establish a fixed atonement for injuries, as much for the preservation of tranquillity as the prevention of crime. Such were the weregilds of the barbaric codes, which, for a different purpose, I have already mentioned. But whether it were that the kindred did not alw^ays accept, or the crim- inal offer, the legal composition, or that other causes of quar- rel occurred, private feuds (faida) were perpetually breaking out, and many of Charlemagne's capitularies are directed against them. After his time all hope of restraining so in- veterate a practice was at an end ; and every man who own- ed a castle to shelter him in case of defeat, and a sufficient number of dependents to take the field, was at liberty to re- taliate upon his neighbors whenever he thought himself in- jured. It must be kept in mind that there was frequently either no jurisdiction to which he could appeal, or no power to enforce its awards ; so that we may consider the higher nobility of France as in a state of nature with respect to each other, and entitled to avail themselves of all legitimate grounds of hostility. The right of waging private \ pressive and ignominious tokens of subjection, such as the fine paid to the lord for permission to marry their children, were abolished. Their payments of rent or tribute were limited both in amount and as to the occasions when they might be demanded : and these were levied by assessors of their own electing. Some obtained an exemption from as- sisting their lord in war; others were only bound to follow him when he personally commanded ; and almost all limited their service to one, or, at the utmost, very few days. If *8 See "Note III., "Muuicipal Government." Feudal System. DECLINE OF FEUDAL SYSTEM. 13? they were persuaded to extend its duration, it was, like that of feudal tenants, at the cost of their superior. Their cus- toms, as to succession and other matters of private right, were reduced to certainty, and, for the most part, laid down in the charter of incorporation. And the observation of these was secured by the most valuable privilege which the chartered towns obtained — that of exemption from the juris- diction, as well of the royal as the territorial judges. They were subject only to that of magistrates either wholly elect- ed by themselves, or, in some places, with a greater or less participation of choice in the lord. They were empowered to make special rules, or, as we call them, by-laws, so as not to contravene the provisions of their charter or the ordi- nances of the king. It was undoubtedly fjir from the intention of those barons who conferred such immunities upon their subjects to relin- quish- their own superiority and rights not expressly con- ceded. But a remarkable change took place in the begin- ning of the thirteenth century, which affected, in a high de- gree, the feudal constitution of France. Towns, distrustful to their lord's fidelity, sometimes called in the king as guar- antee of his engagements. The first stage of royal interfer- ence led to a more extensive measure. Philip Augustus granted letters of safeguard to communities dependent upon the barons, assuring to them his own protection and patron- age. And this was followed up so quickly by the court, if we believe some writers, that in the next reign Louis VIII. pretended to the immediate sovereignty over all chartered towns, in exclusion of their original lords. Nothing, per- haps, had so decisive an effect in subverting the feudal aris- tocracy. The barons perceived, too late, that, for a price long since lavished in prodigal magnificence or useless war- fare, they had suffered the source of their wealth to be di- verted, and the nerves of their strength to be severed. The government prudently respected the 'privileges secured by charter. Philip the Long established an officer in all large towns to preserve peace by an armed police ; but, though subject to the orders of the crown, he was elected by the burgesses, and they took a mutual oath of fidelity to each other. Thus shielded under the king's mantle, they ventured to encroach upon the neighboring lords, and to retaliate for the long oppression of the commonalty. Every citizen was bound by oath to stand by the common cause against all ag- gressors, and this obligation was abundantly fulfilled. In order to swell their numbers, it became the practice to ad- 138 DECLINE OF FEUDAL SYSTEM. Chap. II. Part II. mit all who came to reside within their walls to the rights of burghership, even though they were villeins appurtenant to the soil of a master from whom they had escaped. Others, having obtained the same privileges, continued to dwell in the country ; but, upon any dispute with their lords, called in the assistance of their community. In the reign of Charles V. the feudal independence had so completely yielded, that the court began to give in to a new policy, which was ever after pursued, that of maintaining the dignity and privileges of the noble class against tliose attacks which wealth and liberty encouraged the plebeians to make upon them. The maritime towns of the south of France entered into separate alliances with foreign states ; as Narbonne with Genoa in 1166, and Montpellier in the next century. At the death of Raymond VII., Avignon, Aries, and Marseilles af- fected to set up republican governments; but they were soon brought into subjection. The independent character of maritime towns was not peculiar to those of the southern provinces. Edward II. and Edward III. negotiated and en- tered into alliances with the towns of Flanders, to which neither their count nor the king of France were parties. Even so late as the reign of Louis XI. the Duke of Burgundy did not hesitate to address the citizens of Rouen, in conse- quence of the capture of some ships, as if they had formed an independent state. This evidently arose out of the an- cient customs of private warfare, which, long after they were repressed by a stricter police at home, continued with law- less violence on the ocean, and gave a character of piracy to the commercial enterprise of the Middle Ages. § 33. Notwithstanding the forces which in opposite direc- tions assailed the feudal system from the enhancement of royal prerogative, and the elevation of the chartered towns, its resistance would have bfeen much longer but for an in- trinsic decay. No political institution can endure which does not rivet itself to the hearts of men by ancient prejudice or acknowledged interest. The feudal compact had origi- nally much of this character. Its principle of vitality was warm and active. In fulfilling the obligations of mutual as- sistance and fidelity by military service, the energies of friendship were awakened, and the ties of moral sympathy superadded to those of positive compact. While private wars were at their height, the connection of lord and vassal grew close and cordial, in proportion to the keenness of their enmity towards others. But the nature of feudal obligation was far better adapted Fbitdal System. DECLINE OF FEUDAL SYSTEM. 139 to the partial quarrels of neighboring lords than to the wars of kingdoms. Customs founded upon the poverty of the smaller gentry had limited their martial duties to a period never exceeding forty days, and diminished according to the subdivisions of the fief. They could undertake an expedi- tion, but not a campaign ; they could burn an open town, but had seldom leisure to" besiege a fortress. Hence, when the kings of France and England were engaged in wars which, on our side at least, might be termed national, the inefficien- cy of the feudal militia became evident. It was not easy to employ the military tenants of England upon the frontiers of Normandy and the Isle of France, within the limits of their term of service. When, under Henry II. and Richard I., the scene of war was frequently transferred to the Ga- ronne or the Charente, this was still more impracticable. The first remedy to which sovereigns had recourse was to keep their vassals in service after the expiration of their forty days, at a stipulated rate of pay. But this was fre- quently neither convenient to the tenant, anxious to return back to his household, nor to the king, who could not readily defray the charges of an army. Something was to be de- vised more adequate to the exigency, though less suitable to the feudal spirit. By the feudal law the fief was, in strict- ness, forfeited by neglect of attendance upon the lord's expe- dition. A milder usage introduced a fine, which, however, was generally rather heavy, and assessed at discretion. The first Norman kings of England made these amercements very oppressive. But when a pecuniary payment became the regular course of redeeming personal service, which, under the name of escuage, may be referred to the reign of Henry II., it was essential to liberty that the military tenant should not lie at the mercy of the crown. Accordingly, one of the most important provisions contained in the Magna Charta of John secures the assessment of escuage in Parliament. This is not renewed in the charter of Henry HI, but the practice during his reign was conformable to its spirit. The feudal military tenures had superseded that earlier sys- tem of public defense which called upon every man, and es- pecially every land-holder, to protect his country. The rela- tions of a vassal came in place of those of a subject and a citizen. This was the revolution of the ninth century. In the twelfth and tliirteenth another innovation rather more gradually prevailed, and marks the third period in the mili- tary history of Europe. Mercenary troops were substituted for the feudal militia. Undoubtedly there could never have 140 DECLINE OF FEUDAL SYSTEM. Chap. IL Part II. been a time when valor was not to be purchased with money ; nor could any employment of surplus wealth be more natu- ral either to the ambitious or the weak. But we can not expect to find numerous testimonies of facts of this descrip- tion. In public national history I am aware of no instance of what may be called a regular army more ancient than the body-guards, or huscarles, of Canute the Great. These select troops amounted to six thousand men, on whom he probably relied to insure the subjection of England. A code of mar- tial law compiled for their regulation is extant in substance ; and they are reported to have displayed a military spirit of mutual union, of which their master stood in awe. Harold II. is also said to have had Danish soldiers in pay. The most eminent example of a mercenary army is that by whose assistance William achieved the conquest of England. His- torians concur in representing this force to have consisted of sixty thousand men. He afterwards hired soldiers from va- rious regions to resist an invasion from Norway. William Rufus pursued the same course. Hired troops did not, how- ever, in general form a considerable portion of armies till the wars of Henry II. and Philip Augustus. Each of these mon- archs took into pay large bodies of mercenaries, chiefly, as we may infer from their appellation of Braban9ons, enlisted from the Netherlands. These were always disbanded on cessation of hostilities ; and, unfit for any habits but of idleness and li- cense, oppressed the peasantry and ravaged the country with- out control. In the French wars of Edward III., the whole, I think, of his army served for pay, and was raised by contract with men of rank and influence, who received wages for ev- ery soldier according to his station and the arms he bore. The rate of pay was so remarkably high, that, unless we im- agine a vast profit to have been intended for the contractors, the private lancers and even archers must have been chiefly taken fi-om the middling classes, the smaller gentry, or rich yeomanry of England, ^^ This part of Edward's military sys- tem was probably a leading cause of his superiority over the French, among whom the feudal tenantry were called into the field, and swelled their unwieldy armies at Crecy and Poitiers. Both parties, however, in this war employed mercenary troops. Philip had 15,000 Italian crossbow-men »» The wages allowed by contract in 1346, were for an earl, 6s. Sd. per clay ; for bar- ons and baronets, 4s. ; for knights, 2s. ; for squires, Is. ; for archers and hobelers (light cavalry), 6d. ; for archers on foot, M. ; for Welshmen, 2d. These sums, multi- plied by about 24, to bring them on a level with the present value of money, will show the pay to have been extremely high. The cavalry, of course, furnished them- selves with horses and equipments, as well as arms, which were very expensive. Feudal Systesi. DECLINE OF FEUDAL SYSTEM. 141 at Crecy. It had for some time before become the tra ism, in 1248. Ultimately, however, the strength of the house of Suabia was exhausted by so tedious a struggle ; the Ghib' elins of Italy had their vicissitudes of success ; but their country, and even themselves, lost more and more of the an- cient connection with Germany. In this resistance to Frederick II. the Lombards were much indebted to the constant support of Gregory IX. and his successor Innocent lY., and the Guelf or the Church party were used as synonymous terms. These pontiffs bore an unquenchable hatred to the house of Suabia. No con- cessions mitigated their animosity ; no reconciliation was sin- cere. Whatever faults may be imputed to Frederick, it is impossible for any one, not blindly devoted to the Court of Rome, to deny that he was iniquitously proscribed by hei unprincipled ambition. His real crime was the inheritance of his ancestors, and the name of the house of Suabia. In 1239 he was excommunicated by Gregory IX. To this he was tolerably accustomed by former experience ; but the sentence was attended by an absolution of his subjects from their allegiance, and a formal deposition. These sentences were not very effective upon men of vigorous minds, or upon those whose passions were engaged in their cause ; but they influenced both those who feared the threatenings of the clergy and those who wavered already as to their line of political conduct. In the fluctuating state of Lombardy the excommunication of Frederick undermined his interests even in cities like Parma, that had been friendly, and seemed to identify the cause of his enemies with that of religion — a prejudice artfully fomented by means of calumnies propaga- ted against himself, and which the conduct of such leading Ghibelins as Eccelin, who lived in an open defiance of God and man, did not contribute to lessen. In 1240, Gregory proceeded to publish a crusade against Frederick, as if he had been an open enemy to religion ; which he revenged by putting to death all the prisoners he made who wore the cross. There was one thing wanting to make the expulsion of the emperor from the Christian commonwealth more com- 172 COUNCIL OF LYONS. Chap. III. Part I. plete. Gregory IX. accordingly projected, and Innocent lY. carried into effect, the convocation of a general council (a.d. 1245). This was held at Lyons, an imperial city, but over which Frederick could no longer retain his supremacy. In this assembly, where one hundred and forty prelates ap- peared, the question whether Frederick ought to be deposed was solemnly discussed ; he submitted to defend himself by his advocates : and the pope, in the presence, though without formally collecting the suffrages of the council, pronounced a sentence, by which Frederick's excommunication was re- newed, the empire and all his kingdoms taken away, and his subjects absolved from their fidelity. This is the most pomp- ous act of usurpation in all the records of the Church of Rome ; and the tacit approbation of a general council seemed to incorporate the pretended right of deposing kings, which might have passed as a mad vaunt of Gregory VII. and his successors, with the established faith of Christendom. § 17. Upon the death of Frederick II. in 1250, he left to his son Conrad a contest to maintain for every part of his inheritance, as well as for the imperial crown. But the vig- or of the house of Suabia was gone ; Conrad was reduced to fight for the kingdom of Naples, the only succession which he could hope to secure against the troops of Innocent TV., who still pursued his family with implacable hatred, and claimed that kingdom as forfeited to its feudal superior, the Holy See. After Conrad's premature death, which happened in 1254, the throne was filled by his illegitimate brother, Manfred, who retained it by his bravery and address, in do- spite of the popes, till they were compelled to call in the as- sistance of a more powerful arm. The death of Conrad brings to a termination that period in Italian history which we have described as nearly co-e:i' tensive svith the greatness of the house of Suabia. It is per haps, upon the whole, the most honorable to Italy — that it. which she displayed the most of national energy and patriot- ism. A Florentine or Venetian may dwell with pleasure upoi\ later times, but a Lombard will cast back liis eye across tho. desert of centuries, till it reposes on the field of Legnano. § 18. The successful resistance of the Lombard cities to such princes as both the Fredericks must astonish a reader who brings to the story of these Middle Ages notions de- rived from modern times. But when we consider not only the ineffectual control which could be exerted over a feudal army, bound only to a short term of service, and reluctantly kept in the field at its own cost, but the peculiar distrust and iTAiY. LOMBARD CITIES. 173 disaffection with which many German princes regarded the house of Suabia, less reason will appear for surprise. Nor did the kingdom of Naples, almost always in agitation, yield any material aid to the second Frederick. The main cause, however, of that triumph which attended Lombardy was the intrinsic energy of a free government. From the eleventh century, when the cities became virtually republican, they put out those vigorous shoots which are the growth of free- dom alone. Their domestic feuds, their mutual wars, the fierce assaults of their national enemies, checked not their strength, their wealth, or their population ; but rather, as the limbs are nerved by labor and hardship, the republics of It- aly grew in vigor and courage through the conflicts they sustained. We have few authentic testimonies as to the domestic im- provement of the free Italian cities, while they still deserve the name. But we may perceive by history that their power and population, according to their extent of territory, were almost incredible. In Galvaneus Flamma, a Milanese writer, we find a curious statistical account of that city in 1288, which, though of a date about thirty years after its liberties had been overthrown by usurpation, must be considered as implying a high degree of previous advancement, even if we make allowance, as probably w^e should, for some exaggera- tion. The inhabitants are reckoned at 200,000; the private houses 13,000; the nobility alone dwelt in sixty streets; 8000 gentlemen or heavy cavalry (milites) might be mus- tered from the city and its district, and 240,000 men capable of arms — a force sufficient, the writer observes, to crush all the Saracens. There were in Milan six hundred notaries, two hundred physicians, eighty school-masters, and fifty tran- scribers of manuscripts. In the district were one hundred and fifty castles with adjoining villages. At this period the territory of Milan was not, perhaps, more extensive than the county of Surrey ; it was bounded at a little distance, on al- most every side, by Lodi, or Pavia, or Bergamo, or Como. It is possible, however, that Flamma may have meant to in- clude some of these as dependencies of Milan, though not strictly united with it. How flourishing must the state of cultivation have been in such a country, which not only drew no supplies from any foreign land, but exported part of her own produce ! It was in the best age of their liberties, im- mediately after the battle of Legnano, that the Milanese commenced the great canal which conducts the waters of the Tesino to their capital, a work very extraordinary for 174 LOMBARD CITIES. Chap. III. Part 1 that time. During the same period the cities gave proofs of internal prosperity that in many instances have descended to our own observation in the solidity and magnificence of their architecture. Ecclesiastical structures were perhaps more splendid in France and England ; but neither country could pretend to match the palaces and public buildings, the streets flagged with stone, the bridges of the same material, or the commodious private houses of Italy. The courage of these cities was wrought sometimes to a tone of insolent defiance through the security inspired by their means of defense. From the time of the Romans to that when the use of gunpowder came to prevail, little change was made, or perhaps could be made, in that part of military science which relates to the attack and defense of fortified places. We find precisely the same engines of of- fense ; the cumbrous towers, from which arrows were shot at the besieged, the machines from which stones were dis- charged, the battering-rams which assailed the walls, and the basket-work covering (the vinea or testudo of the ancients, and the gattus or chat-chateil of the Middle Ages) under which those who pushed the battering-engines w^ere protect- ed from the enemy. On the other hand, a city was fortified with a strong wall of brick or marble, with towers raised upon it at intervals, and a deep moat in front. Sometimes the antemural or barbacan was added^ — a rampart of less height, which impeded the ajjproach of the hostile engines. The gates were guarded with a portcullis; an invention which, as well as the barbacan, was borrowed from the Sara- cens. With such advantages for defense, a numerous and intrepid body of burghers might not unreasonably stand at bay against a powerful army; and as the consequences of capture were most terrible, w^hile resistance was seldom hopeless, we can not wonder at the desperate bravery of so many besieged towns. Indeed it seldom happened that one of considerable size was taken, except by famine or treachery, § 19. Of the government which existed in the republics of Italy during the twelfth and thirteenth centuries no definite sketch can be traced. The magistrates elected in almost all of them, when they first began to shake off the jurisdiction of their count or bishop, were styled Consuls — a word very- expressive to an Italian ear, since, in the darkest ages, tradi- tion must have preserved some acquaintance with the repub- lican government of Rome. The consuls were always an- nual ; and their ofl[ice comprehended the command of the national militia in war, as well as the administration of jus- Italy. LOMBARD CITIES. 175 tice and preservation of public order ; but their number was various — two, four, six, or even twelve. In their legislative and deliberative councils the Lombards still copied the Ro- man constitution, or perhaps fell naturally into the form most calculated to unite sound discretion with the exercise of popular sovereignty. A council of trust and secrecy (della credenza) was composed of a small number of persons, who took the management of public affairs, and may be called the ministers of the state. But the decision upon matters of general importance, treaties of alliance or declara- tions of war, the choice of consuls or ambassadors, belonged to the general council. This appears not to have been uniform- ly constituted in every city ; and according to its composition the government was more or less democratical. An ultimate sovereignty, however, was reserved to the mass of the peo- ple; and a Parliament or general assembly was held to de- liberate on any change in the form of constitution. About the end of the twelfth century a new and singular species of magistracy was introduced into the Lombard cit- ies. During the tyranny of Frederick I. he had appointed officers of his own, called Podestds, instead of the elective consuls. It is remarkable that this memorial of despotic power should not have excited insuperable alarm and dis- gust in the free republics. But, on the contrary, they almost universally, after the peace of Constance, revived an office which had been abrogated when they first rose in rebellion against Frederick. From experience, as we must presume, of the partiality which their domestic factions carried into the administration of justice, it became a general practice to elect, by the name of podesta, a citizen of some neighboring state as their general, their criminal judge, and preserver of the peace. The last duty was frequently arduous, and re- quired a vigorous as well as an upright magistrate. Offenses against the laws and security of the commonwealth were during the Middle Ages as often, perhaps more often, com- mitted by the rich and powerful than by the inferior class of society. The sentence of a magistrate against a powerful offender was not pronounced without danger of tumult ; it w^as seldom executed without force. A convicted criminal was not, as at present, the stricken deer of society, whose disgrace his kindred shrink from participating, and whose memory they strive to forget. The law was to be enforced not against an individual, but a family— not against a fami- ly, but a faction — not perhaps against a local faction, but the whole Guelf or Ghibelip name, which might become inter- 176 LOMBARD CITIES. Chap. III. Part i. ested in the quarrel. The podesta was to arm the republic against her refractory citizen ; his house was to be besieged and razed to the ground, his defenders to be quelled by vio- lence : and thus the people, become familiar with outrage and homicide under the command of their magistrates, were more disposed to repeat such scenes at the instigation of their passions. The podestar was sometimes chosen in a general assembly, sometimes by a select number of citizens. His office was an- nual, though prolonged in peculiar emergencies. He was in- variably a man of noble family, even in those cities which excluded their own nobility from any share in the govern- ment. He received a fixed salary, and was compelled to re- main in the city after the expiration of his office for the pur- pose of answering such charges as might be adduced against his conduct. He could neither marry a native of the city, nor have any relation resident within the district, nor even, so great was their jealousy, eat or drink in the house of any citizen. The authority of these foreign magistrates was not by any means alike in all cities. In some he seems to have superseded the consuls, and commanded the armies in war. In others, as Milan and Florence, his authority was merely judicial. We find in some of the old annals the years head- ed by the names of the podestas, as by those of the consuls in the history of Rome. § 20. The effects of the evil spirit of discord that had so fatally breathed upon the republics of Lombardy were by no means confined to national interests, or to the grand distinc- tion of Guelf and Ghibelin. Dissensions glowed in the heart- of every city, and as the danger of foreign war became dis- tant, these grew more fierce and unappeasable. The feudal system had been established upon the principle of territorial aristocracy ; it maintained the authority, it encouraged the pride of rank. Hence, when the rural nobility were com- pelled to take up their residence in cities, they preserved the ascendency of birth and riches. From the natural respect which is shown to these advantages, all offices of trust and command were shared among them ; it is not material whether this were by positive right or continual usage. - A limited aristocracy of this description, where the inferior citi- zens possess the right of selecting their magistrates by free suffrage from a numerous body of nobles, is not among the worst forms of government, and affords no contemptible se- curity against oppression and anarchy. This regimen ap- pears to have prevailed in most of the Lombard cities dur* Italy. LOMBARD CITIES. 177 ing the eleventh and twelfth centuries ; but gradually dis- sensions arose between the nobility and the plebeian burgess- es, which at length broke out into civil war in most of the Italian cities. About the year 1220 the question of aristo- cratical or popular command was tried by arms in Milan, Piacenza, Modena, Cremona, and Bologna. There is a natural preponderance in the popular scale, which, in a fair trial, invariably gains on that of the less nu- merous class. The artisans, who composed the bulk of the population, were arranged in companies according to their occupations. Sometimes, as at Milan, they formed separate associations, with rules for their internal government. The clubs, called at Milan la Motta and la Crtdenza, obtained a degree of weight not at all surprising to those who consider the spirit of mutual attachment which belongs to such fra- ternities ; and we shall see a more striking instance of this hereafter in the republic of Florence. To so formidable and organized a democracy the nobles opposed their numerous families, the generous spirit that belongs to high birth, the influence of wealth and established name. The members of each distinguished family appear to have lived in the same street ; their houses were fortified with square massive tow- ers of commanding height, and wore the semblance of castles within the walls of a city. Brancaleon, the famous senator of Rome, destroyed one hundred and forty of these domestic intrenchments, which were constantly serving the purpose of civil broils and outrage. Expelled, as frequently hap- pened, from the city, it was in the power of the nobles to avail themselves of their superiority in the use of cavalry, and to lay waste the district, till weariness of an unprofita- ble contention reduced the citizens to terms of compromise. But when all these resources were ineffectual, they were tempted or forced to sacrifice the public liberty to their own welfare, and lent their aid to a foreign master or a domestic usurper. In all these scenes of turbulence, whetjher the contest was between the nobles and people, or the Guelf and Ghibelin factions, no mercy was snown by the conquerors. The van- quished lost their homes and fortunes, and, retiring to other cities of their own party, waited for the opportunity of re- venge. In a popular tumult the houses of the beaten side were frequently levelled to the ground — not perhaps from a sort of senseless fury, which Muratori inveighs against, but on account of the injury which these fortified houses inflicted upon the lower citizens. The most deadlv hatred is that 8* . 178 LOMBARD CITIES. Chap. III. Pakt I which men exasperated by proscription and forfeiture bear to their country ; nor have we need to ask any other cause for the calamities of Italy than the bitterness with which an unsuccessful faction was thus pursued into banishment. When the Ghibelins were returning to Florence, after a de- feat given to the prevailing party in 1260, it was proposed among them to demolish the city itself which had cast them out ; and, but for the persuasion of one man, Farinata degP Uberti, their revenge would have thus extinguished all patri- otism.* It is to this that we must ascribe their proneness to call in assistance from every side, and to invite any servitude for the sake of retaliating upon their adversaries. Independently of the two leading differences which em- battled the citizens of an Italian state, their form of govern- ment and their relation to the empire, there were others more contemptible though not less mischievous. In every city the quarrels of private families became the foundation of general schism, sedition, and proscription. Sometimes these blended themselves with the grand distinctions of Guelf and Ghibelin ; sometimes they were more nakedly con- spicuous. Thus an outrage committed at Pistoja in 1300 split the inhabitants into the parties of Bianchi and Neri ; and these, spreading to Florence, created one of the most virulent divisions which annoyed that republic. In one of the changes which attended this little ramification of faction, Florence expelled a young citizen who had borne offices of magistracy, and espoused the cause of the Bianchi. Dante Alighieri retired to the courts of some Ghibelin princes, where his sublime and inventive mind, in the gloom of exile, completed that original combination of vast and extrava- gant conceptions with keen political satire, which has given immortality to his name, and even lustre to the petty con- tests of his time. In the earlier stages of the Lombard republics their differ- ences, as well mutual as domestic, had been frequently ap- peased by the mectiation of the emperors ; and the loss of this salutary influence may be considered as no slight evil attached to that absolute emancipation which Italy attained in the thirteenth century. The popes sometimes endeavored to interpose an authority which, though not quite so direct, was held in greater veneration ; and if their own tempers had been always pure from the selfish and vindictive pas- * I can not forgive Dante for placing this patriot tr^ I'anime piu nere, in one of the worse regions of his Inferno. The conversation of the poet with Farinata, cant. 10, i» very fine, and illustrative of Florentine history. Italy. STATE OF ITALY. 179 sioiis of those whom they influenced, might have produced more general and permanent good. But they considered the Ghibelins as their own peculiar enemies, and the triumph of the opposite faction as the Church's best security. Greg- ory X. and Nicholas III., whether from benevolent motives, or because their jealousy of Charles of Anjou, while at the head of the Guelfs, suggested the revival of a Ghibelin party as a counterpoise to his power, distinguished their pontificate by enforcing measures of reconciliation in all Italian cities ; but their successors returned to the ancient policy and prej- udices of Rome. PART II. 1. State of Italy after the Extinction of the House of Snabia. § 2. Conquest of Na- ples by Charles of Anjou. § 3. The Lombard Republics become severally sub- ject to Princes or Usurpers. 5 4. The Visconli of Milan. Their Aggrandizement. 5. Decline of the Imperial Authority over Italy. § 6. Internal Slate of Rome. § 7. Rienzi. § 8. Florence, § 9. Her Forms of Government. Constitution of 1266. § 10. Struggles between the Nobility and the People. The Ordinances of Justice. § 11. Despotism of the Duke of Athens. § 12. Rule of the Guelf Society. § 13. Revolutions in Florence. § 14. Territory of Florence. § 16, Conquest of Pisa. Pisa: its Commerce, Naval Wars with Genoa, and Decay. §16, Genoa. Her Contentions with Venice. War of Chioggio. § 17, Government of Genoa, 18. Venice. Her Origin and Prosperity, § 19. Venetian Government. Its Vices. § 20. Territorial Conquests of Venice. § 21. Military System of Italy. § 22. Com- panies of Adventure. 1. Foreign: Guaruieri, Hawkwood ; and 2, Native; Braccio. Sforza. § 23. Improvements in Military Service. Arms, offensive and defensive. Invention of Gunpowder. § 24. Naples, Sicilian Vespers, First Line of Anjou. § 25, Charles II, Robert, Joanna I, § 26. Ladislaus. § 27. Joanna II. § 28. Alfonso, king of Naples. § 29, State of Italy during the Fifteenth Century, § 30. Florence. Rise of the Medici, and Ruin of their Adversaries. § 31. Lorenzo de' Medici. § 32. Pretensions of Charles VIII, to Naples, § 1. From the death of Frederick II. in 1250, to the inva- sion of Charles VIII. in 1494, a long and undistinguished period occurs, which it is impossible to break into any nat- ural divisions. It is an age in many respects highly bril- liant — the age of poetry and letters, of art, and of continual improvement. Italy displayed an intellectual superiority in this period over the Transalpine nations which certainly had not appeared since the destruction of the Roman Empire. But her political history presents a labyrinth of petty facts so obscure and of so little influence as not to arrest the at- tention, so intricate and incapable of classification as to leave only confusion in the memory. The general events that are worthy of notice, and give a character to this long period, are the establishment of small tyrannies upon the ruins of 180 D'iCLINE OF THE GHIBELINS. Chap. III. Part II republican government in most of the cities, the gradual rise of three considerable states, Milan, Florence, andVenice, the naval and commercial rivalry between the last city and Genoa, the final acquisition by the popes of their present ter- ritorial sovereignty, and the revolutions in the kingdom of Naples under the lines of Anjou and Aragon. After the death of Frederick II. the distinctions ofGuelf and Ghibelin became destitute of all rational meaning. The most odious crimes were constantly perpetrated, and the ut- most miseries endured, for an echo and a shade that mocked the deluded enthusiasts of faction. None of the Guelfs de- nied the nominal but indefinite sovereignty of the empire ; and beyond a name the Ghibelins themselves Avould have been little disposed to carry it. But the virulent hatreds attached to these words grew continually more implacable, tillages of ignominy and tyrannical government had extin- guished every energetic passion in the bosoms of a degraded people. § 2. In the fall of the house of Suabia, Rome appeared to have consummated her triumph. She gained a still further ascendency by the change of dynasty in Naples. This king- dom had been occupied, after the death of Conrad, by his illegitimate brother, Manfred, in the behalf, as he at first pre- tended, of young Conradin the heir, but in fact as his own acquisition. He was a prince of an active and firm mind, well fitted for his difficult post, to whom the Ghibelins looked up as their head, and as the re23resentative of his father. It was a natural object with the popes, independently of their ill-will towards a son of Frederick II., to see a sovereign upon whom they could better rely placed upon so neighbor- ing a throne. Charles, count of Anjou, brother of St. Lo«is, was tempted by them to lead a crusade (for as such all w^ars for the interest of Rome were now considered) against the Neapolitan usurper (a.d. 1265). The chance of a battle de- cided the fate of Naples, and had a striking influence upon the history of Europe for several centuries. Manfred was killed in the field ; but there remained the legitimate heir of the Fredericks, a boy of seventeen years old, Conradin, son of Conrad, who rashly, as we say at least after the event, attempted to regain his inheritance. He fell into the hands of Charles, and the voice of those rude ages, as well as of a more enlightened posterity, has united in branding with ev- erlasting infamy the name of that prince, who did not hes- itate to purchase the security of his own title by the public execution of an honorable competitor, or rather a rightfii' Italy. SUBJECTION OF LOMBARD CITIES. 181 claimant of the throne he had usurped (a.d. 1268). With Conradin the house of Suabia was extinguished; but Con- stance, the daughter of Manfred, had transported his right to Sicily and Naples into the house of Aragon, by her mar- riage with Peter III. This success of a monarch selected by the Roman pontiifs as their particular champion turned the tide of faction over all Italy. He expelled the Ghibelins from Florence, of which they had a few years before obtained a complete command by means of their memorable victory upon the River Arbia. After the fall of Conradin that party was everywhere dis- couraged. Germany held out small hopes of support, even when the imperial throne, which had long been vacant, should be filled by one of her princes. The populace were in al- most every city attached to the Church and to the name of Guelf ; the kings of Naples employed their arms, and the popes their excommunications; so that for the remainder of tlie thirteenth century the name of Ghibelin was a term of proscription in the majority of Lombard and Tuscan repub- lics. Charles was constituted by the pope vicar-general in Tuscany. This was a new pretension of the Roman pontiffs, to name the lieutenants of the Empire during its vacancy, which indeed could not be completely filled up without their consent. It soon, however, became evident tliat he aimed at the sovereignty of Italy. Some of the popes themselves, Gregory X. and Nicholas IV., grew jealous of their own creature. § 3. Almost all the Lombard republics had, by force, or stratagem, or free consent, already fallen under the yoke of some leading citizens, who became the lord (signore) or, in the German sense, tyrant of his country. The first instance of a voluntary delegation of sovereignty was that of Ferrara, which placed itself under the lord of Este. Eccelin made himself truly the tyrant of the cities beyond the Adige ; and such experience ought naturally to have inspired the Italians with more universal abhorrence of despotism. But every danger appeared trivial in the eyes of exasperated factions when, compared with the ascendency of their adversaries. Weary of unceasing and useless contests, in which ruin fell with an alternate but equal hand upon either party, liberty withdrew from a people who disgraced her name; and the tumultuous, the brave, the intractable Lombards, became eager to submit themselves to a master, and patient under the heaviest oppression. Or, if tyranny sometimes over- stepped the limits of forbearance, and a seditious rising ex- 182 THE VISCONTI. Chap. III. Part II. pelled the reigning prince, it was only to produce a change of hands, and transfer the impotent people to a diiferent, and perhaps a worse despotism. In many cities not a conspiracy v/as planned, not a sigh was breathed, in favor of republican government, after once they had passed under the sway of a single person. The progress, indeed, was gradual, though sure, from limited to absolute, from temporary to hereditary power, from a just and conciliating rule to extortion and cruelty. But before the middle of the fourteenth century at the latest, all those cities which had spurned at the faint- est mai-k of submission to the emperors lost even the recol- lection of self-government, and Avere bequeathed, like an un- doubted patrimony, among the children of their new lords. Such is the progress of usurpation, and such the vengeance that Heaven reserves for those who waste in license and fac- tion its first of social blessings, liberty. § 4. The city most distinguished, in both wars against the house of Suabia, for an unconquerable attachment to repub- lican institutions, was the first to sacrifice them in a few years after the death of Frederick II. Milan had for a considera- ble time been agitated by civil dissensions between the no- bility and inferior citizens. These parties were pretty equal- ly balanced, and their success was consequently alternate. Each had its own podesta, as a party leader, distinct from the legitimate magistrate of the city. In consequence of the crime of a nobleman, who had murdered one of his creditors, the two parties took up arms in 1257. A civil war, of vari- ous success, and interrupted by several pacifications, which in that unhappy temper could not be durable, was termina- ted in about two years by the entire discomfiture of the aristocracy, and by the election of Martin della Torre as chief and lord (capitano e signore) of the people. Though the Milanese did not, probably, intend to renounce the sov- ereignty resident in their general assemblies, yet they soon lost the republican spirit : five in succession of the family della Torre might be said to reign in Milan ; each indeed by a formal election, but with an implied recognition of a sort of hereditary title. Twenty years afterwards the Visconti, a family of opposite interests, supplanted the Torriani at Milan ; and the rivalry between these great houses was not at an end till the final establishment of Matteo Visconti in 1313 ; but the people were not otherwise considered than as aiding.by force the one or other party, and at most deciding between the pretensions of their masters. The vigor and concert infused into the Guelf party by the ITALY. REVIVAL OF THE GHIBELINS. 183 successes of Charles of Anjou was not very durable. That prince was soon involved in a protracted and unfortunate quarrel with the kings of Aragon, to whose protection his re- volted subjects in Italy had recurred. On the other hand, several men of energetic character retrieved the Ghibelin in- terests in Lombardy, and even in the Tuscan cities. The Vis- conti were acknowledged heads of that faction. A family early established as lords of Verona, the della Scala, main- tained the credit of the same denomination between the Adige and the Adriatic. The inferior tyrants were partly Guelf, partly Ghibelin, according to local revolutions; but, upon the whole, the latter acquired a gradual ascendency. Those, indeed, who cared for the independence of Italy, or for their own power, had far less to fear from the phantom of imperial prerogatives, long intermitted and incapable of being enforced, than from the new race of foreign princes whom the Church had substituted for the house of Suabia. The Angevin kings of Naples were sovereigns of Provence, and from thence easily encroached upon Piedmont, and threatened the Milanese. Robert, the third of this line, al- most openly aspired, like his grandfather Charles I., to a real sovereignty over Italy. His offers of assistance to Guelf cities in war were always coupled with a demand of the sov- ereignty. Many yielded to his ambition ; and even Flor- ence twice bestowed upon him a temporary dictatorship. In 1314 he was acknowledged lord of Lucca, Florence, Pavia, Alessandria, Bergamo, and the cities of Romagna. In 1318 the Guelfs of Genoa found no other resource against the Ghibelin emigrants who were under their walls than to re- sign their liberties to the King of Naples for the term of ten years, which he procured to be renewed for six more. The Avignon popes, especially John XXII., out of blind hatred to the Emperor Louis of Bavaria and the Visconti family, abetted all these measures of ambition. But they were ren- dered abortive by Robert's death, and the subsequent dis- turbances of his kingdom. . At the latter end of the thirteenth century there were al- most as many princes in the north of Italy as there had been free cities in the preceding age. Their equality, and the fre- quent domestic revolutions which made their seat unsteady, kept them for a while from encroaching on each other. Gradually, however, they became less numerous : a quantity of obscure tyrants were swept away from the smaller cities ; and the people, careless or hopeless of liberty, were glad tc change the rule of despicable petty usurpers for that of 184 POWER OF THE VISCONTL Chap. III. Part II. niore distiDguished and powerful families. About the year 1350 the central parts of Lombardy had fallen under the do- minion of the Visconti. Four other houses occupied the second rank; that of Este at Ferrara and Modena; of Scala at Verona, of Carrara at Padua, which later than any Lom- bard city had resigned her liberty ; and of Gonzaga at Man- tua, which, without ever obtaining any material extension of territory, continued, probably for that reason, to reign un- disturbed till the eighteenth century. But these united were hardly a match, as they sometimes experienced, for the Vis- conti. That family, the object of every league formed in Italy for more than fifty years, in constant hostility to the Church, and well inured to intei'dicts and excommunications, producing no one man of military talents, but fertile of ty- rants detested for their perfidiousness and cruelty, was nev- ertheless enabled, with almost uninterrupted success, to add city after city to the dominion of Milan, till it absorbed all the north of Italy. Under Gian Galeazzo, whose reign be- gan in 1385, the viper (their armorial bearing) assumed in- deed a menacing attitude :^ he overturned the great family of Scala, and annexed their extensive possessions to his own ; no power intervened from Vercelli, in Piedmont, to Feltre and Belluno ; while the free cities of Tuscany, Pisa, Siena, Perugia, and even Bologna, as if by a kind of witchcraft, voluntarily called in a dissembling tyrant as their master. At length the Visconti were tacitly admitted among the reigning princes, by the erection of Milan into a duchy under letters patent of the Emperor Wenceslaus (a.d. 1295). § 5. The imperial authority over Italy was almost entirely suspended after the death of Frederick II. A long inter- regnum followed in Germany ; and when the vacancy was supplied by Rodolph of Hapsburg (a.d. 1272), he was too prudent to dissipate his moderate resources where the great house of Suabia had failed. About forty years afterwards the emperor, Henry VII., of Luxemburg (a.d. 1 308), a prince, like Rodolph, of small hereditary possessions, but active and discreet, availed himself of the ancient respect borne to the imperial name, and the mutual jealousies of the Italians, to recover for a very short time a remarkable influence. But, though professing neutrality and desire of union between the Guelfs and Ghibelins, he could not succeed in removing the disgust of the former ; his exigencies impelled him to large 1 Allusions to heraldry are very common in the Italian writers. All the historians ot the fourteenth century habitually use the viper, il biscione, aa a synonym for the power of Milan. Italy. RELATIONS WITH THE EMPIRE. 185 demands of money ; and the Italians, when they counted his scanty German cavalry, perceived that obedience was alto^ gether a matter of their own choice. Henry died, howeve>, in time to save himself from any decisive reverse. His suc- cessors, Louis of Bavaria and Charles IV., descended from the Alps with similar motives, but after some temporary good-fortune were obliged to return, not without discredit. Yet the Italians never broke that almost invisible thread which connected them with Germany ; the fallacious name of Roman emperor still challenged their allegiance, though conferred by seven Teutonic electors without their concur- rence. Even Florence, the most independent and high- spirited of republics, was induced to make a treaty with Charles IV. in 1355, which, while it confirmed all her actual liberties, not a little, by that very confirmation, affected her sovereignty. This deference to the supposed prerogatives of the Empire, even while they were least formidable, was partly owing to jealousy of French or Neapolitan interfer- ence, partly to the national hatred of the popes who had se- ceded to Avignon, and in some degree to a misplaced respect for antiquity, to which the revival of letters had given birth. The great civilians, and the much greater poets, of the four- teenth century, taught Italy to consider her emperor as a dormant sovereign, to whom her various principalities and republics were subordinate, and during whose absence alone they had legitimate authority. In one part, however, of that country, the Empire had, soon after the commencement of this period, spontaneously renounced its sovereignty. From the era of Pepin's dona- tion, confirmed and extended by many subsequent charters, the Holy See had tolerably just pretensions to the province entitled Romagna, or the exarchate of Ravenna. But the popes, whose menaces were dreaded at the extremities of Europe, were still very weak as temporal princes. Even In- nocent III. had never been able to obtain possession of this part of St. Peter's patrimony. The circumstances of Ro- dolph's accession inspired Nicholas HI. with more confidence. That emperor granted a confirmation of every thing included in the donations of Louis I.,Otho, and his other predecessors, but was still reluctant or ashamed to renounce his imperial rights. Accordingly, his charter is expressed to be granted without diminution of the Empire (sine demembratione im- perii) ; and his chancellor received an oath of fidelity from the cities of Romagna. But the pope insisting firmly on his own claim, Rodolph discreetly avoided involving himself in im INTERNAL STATE OF HOME. Chap. III. Part II. a fatal quarrel, and, in 1278, absolutely released the imperial supremacy over all the dominions already granted to the Holy See. § 6. This is a leading epoch in the temporal monarchy of Rome. But she stood only in the place of the emperor; and her ultimate sovereignty was compatible with the practica- ble independence of the free cities, or of the usurpers who had risen up among them. Bologna, Faenza, Rimini, and Ravenna, with many others less considerable, took an oath, indeed, to the pope, but continued to regulate both their in- ternal concerns and foreign relations at their own discretion. The first of these cities was far pre-eminent above the rest for population and renown, and, though not without several intermissions, preserved a republican character to the end of the fourteenth century. The rest were soon enslaved by petty tyrants, more obscure than those of Lombard y. It was not easy for the pontiffs of Avignon to reinstate them- selves in a dominion which they seem to have abandoned; but they made several attempts to recover it, sometimes with spiritual arms, sometimes witli the more efficacious aid of mercenary troops. The annals of this part of Italy are peculiarly uninteresting. Rome itself was, throughout the Middle Ages, very little disposed to acquiesce in the government of her bishop. His rights were indefinite, and unconfirmed by positive law ; the emperor was long sovereign; the people always meant to be free. Besides the common causes of insubordination and an- archy among the Italians, which applied equally to the caj^i- tal city, other sentiments more peculiar to Rome preserved a continual though not uniform influence for many centuries. There still remained enough in the wreck of that vast inher- itance to swell the bosoms of her citizens with a conscious- ness of their own dignity. They bore the venerable name, they contemplated the monuments of art and empire, and forgot, in the illusions of national pride,-that the tutelar gods of the building were departed forever. About the middle of the twelfth century these recollections were heightened by the eloquence of Arnold of Brescia, a political heretic who preached against the temporal jurisdiction of the hie- rarchy. In a temporary intoxication of fancy, they were led to make a ridiculous show of self-importance towards Freder- ick Barbarossa, when he came to receive the imperial crown ; but the German sternly chided their ostentation, and chas- tised their resistance. With the popes they could deal more securely. Several of them were expelled from Rome Italy. KIENZI. 187 during that age by the seditions citizens. Lucius II. died of hurts received in a tumult. The government was vested in fifty-six Senators, annually chosen by the people through the intervention of an electoral body, ten delegates from each of the thirteen districts of the city. This constitution lasted not quite fifty years. In 1192 Rome imitated the prevailing fashion by the appointment of an annual foreign magistrate. Except in name, the Senator of Rome appears to have perfectly resembled the podesta of other cities. This magistrate superseded the representative Senate, who had proved by no means adequate to control the most law- less aristocracy of Italy. I shall not repeat the story of Brancaleon^s rigorous and inflexible justice, which a great historian has already drawn from obscurity. It illustrates not the annals of Rome alone, but the general state of Italian society, the nature of a podesta's duty, and the difliculties of its execution. In the twelfth and thirteenth centuries the Senate, and the Senator who succeeded them, exercised one distinguishing attribute of sovereignty, that of coining gold and silver money. Some of their coins still exist, with le- gends in a very republican tone. Doubtless the temporal authority of the popes varied according to their personal character. Innocent III. had much more than his prede- cessors for almost a century, or than some of his successors. He made the Senator take an oath of fealty to him, which, though not very comprehensive, must have passed in those times as a recognition of his superiority. § v. Though there was much less obedience to any legiti- mate power at Rome than anywhere else in Italy, even dur- ing the thirteenth century, yet, after the secession of the popes to Avignon, their own city was left in a far worse con- dition than before. Disorders of every kind, tumult and robbery, prevailed in the streets. The Roman nobility were engaged in perpetual war with each other. Not content with their own fortified palaces, they turned the sacred mon- uments of antiquity into strongholds, and consummated the destruction of time and conquest. At no period has the city endured such irreparable injuries ; nor was the downfall of the Western Empire so fatal to its capital as the contempt- ible feuds of the Orsini and Colonna families. Whatevel there was of government, whether administered by a legate from Avignon or by the municipal authorities, had lost all hold on these powerful barons. In the midst of this degra- dation and wretchedness, an obscure man, Nicola di Rienzi, conceived the project of restoring Rome, not only to good 188 AFFAIRS OF ROME. Chap. III. Part II. order, but even to her ancient greatness (a.d. 1347). He had received an education beyond his birth, and nourished his mind with the study of the best writers. After many ha- rangues to the people, which the nobility, blinded by their self-confidence, did not attempt to repress, Rienzi suddenly excited an insurrection, and obtained complete success. He was placed at the head of a new government, with the title of Tribune, and with almost unlimited power. The first ef- fects of this revolution were wonderful. All the nobles sub- mitted, though with great reluctance ; the roads were cleared of robbers; tranquillity was restored at home; some severe examples of justice intimidated offenders; and the tribune was regarded by all the people as the destined restorer of Kome and Italy. Though the Court of Avignon could not approve of such an usurpation, it temporized enough not di- rectly to oppose it. Most of the Italian republics, and some of the princes, sent ambassadors, and seemed to recognize pretensions which were tolerably ostentatious. The King of Hungary and Queen of Naples submitted their quarrel to the arbitration of Rienzi, who did not, however, undertake to decide upon it. But this sudden exaltation intoxicated his understanding, and exhibited failings entirely incompatible with his elevated condition. If Rienzi had lived in our own age, his talents, which were really great, would have found their proper orbit; for his character was one not unusual among literary politicians — a combination of knowledge, elo- quence, and enthusiasm for ideal excellence, with vanity, in- experience of mankind, unsteadiness, and physical timidity. As these latter qualities became conspicuous, they eclipsed his virtues and caused his benefits to be forgotten ; he was compelled to abdicate his government, and retire into exile. After several years, some of which he passed in the prisons of Avignon, Rienzi was brought back to Rome, with the title of Senator, and under the command of the legate. It was supposed that the Romans, w^ho had returned to their habits of insubordination, would gladly submit to their favorite trib- une. And this proved the case for a few months : but af- ter that time they ceased altogether to respect a man who so little respected himself in accepting a station where he could no longer be free ; and Rienzi was killed in a sedition." Once more, not long after the death of Rienzi, the freedom 2 An illustrious female writer has drawn with a single stroke the character of Rienzi, Crescentius, and Arnold of Brescia, the fond restorers of Roman liberty, qui ont pris Us souvenirs pour lea esperances. Corinue, t. i., p. 159. Could Tacitus have excelled this ? iTALi. GOVERNMENT OF FLORENCE. 189 of Rome seems to have revived in republican institutions, though with names less calculated to inspire peculiar recol- lections. Magistrates called bannerets, chosen from the thir- teen districts of the city, with a militia of three thousand citizens at their command, were placed at the head of this commonwealth. The great object of this new organization was to intimidate the Roman nobility, whose outrages, in the total absence of government, had grown intolerable. Sev- eral of them were hanged the first year by order of the ban- nerets. In 1435 the Romans formally took away the gov- ernment from Eugenius IV., and elected seven seigniors or chief magistrates, like the priors of Florence. But this rev- olution was not of long continuance, and the citizens soon after acknowledged the sovereignty of the pope. § 8. The province of Tuscany continued longer than Lom- bardy under the government of an imperial lieutenant. It was not till about the middle of the twelfth century that the cities of Florence, Lucca, Pisa, Siena, Arezzo, Pistoja, and several less considerable, which might, perhaps, have already their own elected magistrates, became independent repub- lics. During the reign of Frederick II., Florence became, as far as she was able, an ally of the popes. There was, indeed, a strong Ghibelin party, comprehending many of the great- est families, but the spirit of the people was thoroughly Guelf After several revolutions, accompanied by alternate proscription and demolition of houses, the Guelf party, through the assistance of Charles of Anjou, obtained a final ascendency in 1266 ; and after one or two unavailing schemes of accommodation it was established as a fundamental law in the Florentine constitution that no person of Ghibelin an- cestry could be admitted to offices of public trust, which, in such a government, was in effect an exclusion from the priv- ileges of citizenship. The changes of internal government and vicissitudes of success among factions were so frequent at Florence, for many years after this time, that she is compared by her great banished poet to one in sickness, who, unable to rest, gives herself momentary ease by continual change of posture in her bed. They did not become much less numerous after the age of Daiite. Yet the revolutions of Florence should, perhaps, be considered as no more than a necessary price of her liberty. It was her boast and her happiness to have es- caped, except for one short period, that odious rule of vile usurpers, under which so many other free cities had been crushed. A sketch of the constitution of so famous a republic ^ 190 GOVERNMENT OF FLORENCE. Chap. III. Part II. ought not to be omitted in this place. Nothing else in the his- tory of Italy after Frederick II. is so worthy of our attention. § 9. The basis of the Florentine polity was a division of the citizens exercising commerce into their several companies or arts. These were at first twelve : seven called the greater arts, and five lesser; but the latter were gradually increased to fourteen. The seven greater arts were those of lawyers and notaries, of dealers in foreign cloth, called sometimes Calimala, of bankers or money-changers, of woollen-drapers, of physicians and druggists, of dealers in silk, and of furriers. The inferior arts were those of retailers of cloth, butchers, smiths, shoe-makers, and builders. This division was fully established and rendered essential to the constitution in 1266. By the provisions made in that year each of the sev- en greater arts had a council of its own, a chief magistrate or consul, who administered justice in civil causes to all members of his company, and a banneret (gonfaloniere) or military officer, to whose standard they repaired when any attempt was made to disturb the peace of the city. The administration of criminal justice belonged at Flor- ence, as at other cities, to a foreign Podestd^ or rather to two foreign magistrates, the Podestd and the Capitano del popolo, whose jurisdiction appears to have been concurrent. These offices were preserved till the innovations of the Medici. The domestic magistracies underwent more changes. In- stead of consuls, which had been the first denomination of the chief magistrates of Florence, a college of twelve or four- teen persons called Anziani or J3uo7momini^ but varying in name as well as number, according to revolutions of party, was established about the middle of the thiiteenth century, to direct public affiiirs. This order was entirely changed in 1282, and gave place to a new form of supreme magistracy, which lasted till the extinction of the republic. Six Priors, elected every two months, one from each of the six quarters of the city, and from each of the greater arts, except that of lawyers, constituted an executive magistracy. They lived during their continuance in office in a palace belonging to the city, and were maintained at the public cost. The actu- al priors, jointly with the chiefs and councils (usually called la Capitudme) of the seven greater arts, and with certain adjuncts (arroti) named by themselves, elected by ballot their successors. Such was the practice for about forty years after this government was established. But an innovation, begun in 1324, and perfected four years afterwards, gave a peculiar character to the constitution of Florence. A lively Italy. GOVERNMENT OF FLORENCE. 191 and ambitious people, not merely jealous of their public sov- ereignty, but deeming its exercise a matter of personal en- joyment, aware at the same time that the will of the whole body could neither be immediately expressed on all occa- sions, nor even through chosen representatives, without the risk of violence and partiality, fell upon the singular idea of admitting all citizens not unworthy by their station or con- duct to offices of magistracy by rotation. Lists were sepa- rately made out by the priors, the twelve buonuomini, the chiefs and councils of arts, the bannerets and other respecta- ble persons, of all citizens, Guelfs by origin, turned of thirty years of age, and, in their judgment, worthy of public trust. The lists thus formed were then united, and those who had composed them, meeting together, in number ninety-seven, proceeded to ballot upon every name. Whoever obtained sixty-eight hlack balls was placed upon the reformed list; and all the names it contained being put on separate tickets into a bag or purse (imborsati), were drawn successively as the magistracies were renewed. As there were above fifty of these, none of which could be held for more than four months, several hundred citizens were called in rotation to bear their share in the government within two years. But at the expiration of every two years the scrutiny was re- newed, and fresh names were mingled with those which still continued undrawn; so that accident might deprive a man for life of his portion of magistracy. Four councils had been established by the constitution of 1266 for the decision of all propositions laid before them by the executive magistrates, whether of a legislative nature or relating to public policy. These were now abrogated; and in their places were substituted one of 300 members, all plebeians, called consiglio di popolo, and one of 250, called consiglio di commune, into which the nobles might enter. These were changed by the same rotation as the magis- tracies, every four months. A Parliament, or general assem- bly of the Florentine people, was rarely convoked ; but the leading principle of a democratical republic, the ultimate sovereignty of the multitude, was not forgotten. This con- stitution of 1324 was fixed by the citizens at large in a Par- liament ; and the same sanction was given to those tempo- rary delegations of the seigniory to a prince which occasion- ally took place. What is technically called by their histori- an syars^^o^o^o was the assembly of a Parliament, or a reso* lution of all derivative powers into the immediate operation «f the popular will. 192 GOVERNMENT OF FLORENCE. Chap. III. P.uit II. The ancient government of this republic appears to have been chiefly in the hands of its nobility. These were very numerous, and possessed large estates in the district. But by the constitution of 1266, which was nearly coincident with the triumph of the Guelf faction, the essential powers of magistracy as well as of legislation were thrown into the scale of the commons. The colleges of arts, whose functions became so eminent, were altogether commercial, and it was necessary to belong to one or other of the greater arts in or- der to be admitted into the executive college of the priors. Many, indeed, of the nobles enrolled themselves in these companies, and were among the most conspicuous merchants of Florence; but the majority of the ancient families saw themselves pushed aside from the helm, which was intrusted to a class whom they had habitually held in contempt. § 10. The nobility, however, set the new constitution at defiance, and dwelling in strong and lofty houses among their kindred, and among the fellows of their rank, committed all sorts of outrages with impunity. At length in 1295, Giano della Bella, a man of ancient lineage, but attached to the popular side, introduced a series of enactments exceedingly disadvantageous to the ancient aristocracy. The first of these w^as the appointment of an executive officer, the gon- falonier of justice, whose duty it was to enforce the sen- tences of the podesta and capitano del popolo in cases where the ordinary officers were insufficient. A thousand citizens, afterwards increased to four times that number, were bound to obey his commands. They were distributed into com- panies, the gonfaloniers or captains of which became a sort of corporation or college, and a constituent part of the Gov- ernment. This new militia seems to have superseded that of the companies of arts. The gonfalonier of justice was part of the seigniory along with the priors, of whom he was reckoned the president, and changed, like them, every two months. He was, in fact, the first magistrate of Florence. If Giano della Bella had trusted to the efficacy of this new security for justice, his fame would have been beyond re- proach. But he followed it up by harsher provisions. The nobility were now made absolutely ineligible to the office of prior. For an offense committed by one of a noble family, his relations were declared responsible in a penalty of 3000 pounds. And, to obviate the difficulty arising from the fre- quent intimidation of witnesses, it was provided that com- mon fame, attested by two credible persons, should be suffi- cient for the condemnation of a nobleman. Italy. GOVERNMENT OF FLOKENCE. 193 These are the famous ordinances of justice which passed at Florence for the great charter of her democracy. The nobility were soon aware of the position in which they stood. For half a century their great object was to procure the relaxation of the ordinances of justice. But they had no success with an elated enemy. The sort of proscrip- tion which attended the ancient nobles lowered their spirit ; while a new aristocracy began to raise its head, the aristoc- racy of families, who, after filling the highest magistracies for two or three generations, obtained an hereditary impor- tance, which answered the purpose of more unequivocal no- bility ; just as in ancient Rome plebeian families, by admis- sion to curule offices, acquired the character and appellation of nobility, and were only distinguishable by their genealogy from the original patricians. Florence had her plebeian no- bles (popolani grandi) as well as Rome ; the Peruzzi, the Ricci, the Albizi, the Medici, correspond to the Catos, the Pompeys, the Brutuses, and the Antonies. But at Rome the two orders, after an equal partition of the highest offices, were content to respect their mutual privileges ; at Florence the commoners preserved a rigorous monopoly, and the dis- tinction of high birth was, that it debf^rred men from polit- ical franchises and civil justice. This second aristocracy did not obtain much more of the popular affection than that which it superseded. In order to keep the nobles under more control the governing party more than once introduced a new foreign magistrate, with the title of captain of defense (della guardia), whom they in- vested with an almost unbounded criminal jurisdiction. One Gabrielli of Agobbio was twice fetched for this purpose (a.d. 1336,1340); and in each case he behaved in so tyrannical a manner as to occasion a tumult. His office, however, was of short duration, and the title at least did not import a sover- eign command. But very soon afterwards Florence had to experience one taste of a cup which her neighbors had drunk off to the dregs, and to animate her magnanimous love of freedom by a knowledge of the calamities of tyranny. § 11. A war with Pisa, unsuccessfully, if not unskillfully, conducted, gave rise to such dissatisfaction in the city that the leading commoners had recourse to an appointment something like that of Gabrielli, and from similar motives. Walter de Brienne, duke of Athens, was descended from one of the French Crusaders who had dismembered the Grecian empire in the preceding century ; but his father, defeated in battle, had lost the principality along with his life, and the 9 194 GOVEKNMENT OF FLORENCE. Chap. Ill, Part II. titular duke was an adventurer in the Court of France. He had been, however, slightly known at Florence on a former occasion. There was an uniform maxim among the Ital- ian republics that extraordinary powers should be conferred upon none but strangers. The Duke of Athens was accord- ingly pitched upon for the military command, wiiich was united with domestic jurisdiction. This appears to have been promoted by the governing party in order to curb the nobility ; but they w^ere soon undeceived in their expectar tions. The first act of the Duke of Athens was to bring four of the most eminent commoners to capital punishment for military offenses. These sentences, whether just or oth- erwise, gave much pleasure to the nobles, who had so fre- quently been exposed to similar severity, and to the popu- lace, who are naturally pleased with the humiliation of their superiors. Both of these were caressed by the duke, and both conspired, with blind passion, to second his ambitious views. It was proposed and carried in a full Parliament, or assembly of the people, to bestow upon him the seigniory for life (a.d. 1342). The real friends of their country, as well as the oligarchy, shuddered at this measure. Throughout all the vicissitudes of party, Florence had never yet lost sight of republican institutions. But happily the reign of tyranny was very short. The Duke of Athens had neither judgment nor activity for so difficult a station. He launched out at once into excesses which it would be desirable that arbitrary power should always commit at the outset. The taxes were considerably increased ; their produce was dissipated. The honor of the state was sacrificed by an inglorious treaty with Pisa; her territory was diminished by some towns throwing off their dependence. Severe and multiplied punishments spread terror through the city. Ten months passed in this manner, when three separate conspiracies, embracing most of the nobility and of the great commoners, were planned for the recovery of freedom. The city was barricaded in every direction ; and after a contest of some duration the Duke of Athens consented to abdicate his seigniory. § 12. Thus Florence recovered her liberty. Her constitu- tional laws now seemed to revive of themselves. But the nobility, who had taken a very active part in the recent lib- eration of their country, thought it hard to be still placed under the rigorous ordinances of justice. The populace of Florence, with its characteristic forgetfulness of benefits, was tenacious of those proscriptive ordinances. A new civil war in the city streets decided their quarrel ^ after a desperate* Italy. GOVERNMENT OF FLORENCE. 1»3. resistance, many of the principal houses were pillaged and burned; and the perpetual exclusion of the nobility was confirmed by fresh laws. But the people, now sure of their triumph, relaxed a little upon this oocasion the ordinances of justice; and, to make some distinction in favor of merit or innocence, effaced certain families from the list of nobility. Five hundred and thirty persons were thus elevated, as we may call it, to the rank of commoners. Conversely, several unpopular commoners were ennobled, in order to disfranchise them. Nothing was more usual in subsequent times than such an arbitrary change of rank, as a penalty or a benefit. Those nobles who were rendered plebeian by favor, were obliged to change their name and arms. The constitution now underwent some change. From six the priors were in- creased to eight ; and instead of being chosen from each of the greater arts, they were taken from the four quarters of the city. The gonfaloniers of companies were reduced to sixteen. And these, along with the seigniory and the twelve buonuomini, formed the college, where every proposition was discussed before it could be offered to the councils for their legislative sanction. But it could only originate, strictly speaking, in the seigniory, that is, the gonfalonier of justice, and eight priors, the rest of the college having merely the function of advice and assistance. Several years elapsed before any material disturbance arose at Florence; but in 1357 a spring was set in motion which gave quite a different character to the domestic histo- ry of Florence. At the time when the Guelfs, with the as- sistance of Charles of Anjou, acquired an exclusive domina- tion in the republic, the estates of the Ghibelins were confis- cated. One-third of these confiscations was allotted to the state ; another went to repair the losses of Guelf citizens ; but the remainder became the property of a new corporate society, denominated the Guelf party (parte Guelfa), with a regular internal organization. The Guelf party had two councils, one of fourteen and one of sixty members; three, or afterwards four, captains, elected by scrutiny every two months, a treasury, and common seal — a little republic with- in the republic of Florence. Their primary duty w^as to watch over the Guelf interest ; and for this purpose they had a particular oflicer for the accusation of suspected Ghib- elins. We hear not much, however, of the Guelf society for near a century after their establishment ; but they now be- gan to execute a preponderating influence in the state. In this society the ancient nobles retained a considerable iuflu- 196 GOVERNMENT OE FLORENCE. Chap. III. Part II. ence. The laws of exclusion had never been applied to that corporation. Two of the captains were always noble, two were commoners. The people, in debarring the nobility from ordinary privileges, were little aware of the more dangerous channel which had been left open to their ambition. With the nobility some of the great commoners acted in concert, and especially the family and faction of the Albizi. They carried a law by which every person accepting an office who should be convicted of Ghibelinism or of Ghibelin descent, upon testimony of public fame, became liable to punishment, capital or pecuniary, at the discretion of the priors. To this law they gave a retrospective effect. Many citizens who had been magistrates within a few years were cast in heavy fines on this indefinite charge. But the more usual practice was to warn (ammonire) men beforehand against undertak- ing public trust. If they neglected this hint, they were sure to be treated as convicted Ghibelins. Thus a very numer- ous class, called Ammoniti^ was formed of proscribed and discontented persons, eager to throw off the intolerable yoke of the Guelf society ; for the imputation of Ghibelin con- nections was generall}^ an unfounded pretext for crushing the enemies of the governing faction. Men of approved Guelf principles and origin were every day warned from their natural privileges of sharing in magistracy. This spread an universal alarm through the city; but the great advantage of union and secret confederacy rendered the Guelf society, who had also the law on their side, irresistible by their opponents. Meanwhile the public honor was well supported abroad; Florence had never before been so dis- tinguished as during the prevalence of this oligarchy. § 13. The Guelf society had governed with more or less absoluteness for near twenty years, when the republic be- came involved, through the perfidious conduct of the papal legate, in a war with the Holy See. Though the Floren- tines were by no means superstitious, this hostility to the Church appeared almost an absurdity to determined Guelfs, and shocked those prejudices about names which make up the politics of vulgar minds. The Guelf society, though it could not openly resist the popular indignation against Gregory XL, was not heartily inclined to this war. Its management fell, therefore, into the hands of eight commis- sioners, some of them not well affected to the society ; whose administration was so successful and popular as to excite the utmost jealousy in the Guelfs. They began to renew their warnings, and in eight months excluded fourscore citizens. Italy. GOVERNMENT OF FLORENCE. 197 The civil dissensions which followed need not be described at length. The seven greater arts were generally attached to the Guelf Society, while the fourteen lesser arts, com- posed of retail and mechanical traders, were eager to make Florence a democracy in fact as well as in name, by partici- pating in the executive government. While the lesser arts were murmuring at the exclusive privileges of the commer- cial aristocracy, there was yet an inferior class of citizens who thought their own claims to equal privileges irrefra- gable. The arrangement of twenty-one trading companies had still left several kinds of artisans unincorporated, and consequently unprivileged. These had been attached to the art with which their craft had most connection in a sort of dependent relation. Thus to the company of drapers, the most wealthy of all, the various occupations instrumental in the manufacture, as wool-combers, dyers, and weavers, were appendant. Besides the sense of political exclusion, these artisans alleged that they were oppressed by their employers of the art. A still lower order of the community was the mere populace, who did not practice any regular trade, or who only worked for daily hire. These were called Ciompi, a corruption, it is said, of the French compere. The inferior tradesmen demanded the establishment of two new arts for themselves, and one for the lower people. After various seditions, a violent insurrection, in which the ciompi, or lowest populace, were alone concerned, broke out. The gates of the palace belonging to the seigniory were forced open, the priors compelled to fly, and no appearance of a constitutional magistracy remained to throw the vail of law over the excesses of anarchy. The republic seemed to rock from its foundations ; and the circumstance to which historians ascribe its salvation is not the least singular in this critical epoch. One Michel di Lando, a Avool-comber, half-dressed and without shoes, happened to hold the stand- ard of justice wrested from the proper officer when the pop- ulace burst into the palace. Whether he was previously conspicuous in the tumult is not recorded ; but the wild, capricious mob, who had destroyed what they had no con- ception how to rebuild, suddenly cried out that'Lando should be gonfalonier or seignior, and reform the city at his pleasure. A choice, arising probably from wanton folly, could not have been better made by wisdom. Lando was a man of courage, moderation, and integrity. He gave immediate proofs of these qualities by causing his office to be respect- ed. The eight commissioners of the war, who, though not 198 CxOVERNMENT OF FLORENCE. Chap. III. Fart II . instigators of the sedition, were well pleased to see the Guelf party so entirely prostrated, now fancied themselves masters, and began to nominate priors. But Lando sent a message to them that he was elected by the people, and that he could dispense with their assistance. He then pro- ceeded to the choice of priors. Three were taken from the greater arts ; three from the lesser ; and three from the two new arts and the lower people. This eccentric college lost no time in restoring tranquillity, and compelled the popu- lace, by threat of punishment, to return to their occupations. But the ciompi were not disposed to give up the pleasures of anarchy so readily. They were dissatisfied at the small share allotted to them in the new distribution of offices, and murmured at their gonfalonier as a traitor to the popular cause. Lando was aware that an insurrection was project- ed ; he took measures with the most respectable citizens ; the insurgents, when they showed themselves, were quelled by force, and the gonfalonier retired from office with an ap- probation which all historians of Florence have agreed to perpetuate. The ciompi, once checked, were soon defeated. The next gonfalonier was, like Lando, a wool-comber ; but, wanting the intrinsic merit of Lando, his mean station ex- cited universal contempt. None of the arts could endure their low coadjutors ; a short struggle was made by the pop- ulace, but they were entirely overpowered with considera- ble slauijhter, and the government was divided between the seven greater and sixteen lesser arts in nearly equal pro- portions. The party of the lesser arts, or inferior tradesmen, which had begun this confusion, were left winners when it ceased. But at the end of three years the aristocratical party re- gained its ascendency. They did not revive the severity practised towards the Ammoniti ; but the two new arts, created for the small trades, were abolished, and the lesser arts reduced to a third part, instead of something more than one-half, of public offices. For half a century after this time no revolution took place at Florence. The Guelf aristocracy, strong in oj^ulence and antiquity, and rendered prudent by experience, under the guidance of the Albizi family, main- tained a preponderating influence without much departing, the times considered, from moderation and respect for the laws. § 14. Though fertile and populous, the proper district of Florence was by no means extensive. The republic made no acquisition of territory till 1351, when she annexed the 1TA..Y. PISA. 199 small city of Prato, not ten miles from her walls. Pistoja, though still nominally independent, received a Florentine garrison about the same time. Several additions were made to the district by fair purchase from the nobility of the Apennines, and a few by main force. The territory was still very little proportioned to the frame and power of Flor- ence. The latter was founded upon her vast commercial opulence. Every Italian state employed mercenary troops, and the richest was, of course, the most powerful. In 1336 the revenues of Florence are reckoned by Villani at 300,000 florins, which, as he observes, is more than the king of Na- ples or Aragon possesses.^ The expenditure went at that time very much beyond the receipt, and was defrayed by loans from the principal mercantile firms, which were se- cured by public funds — the earliest instance, I believe, of that financial resource. Her population was computed at innety thousand souls. Villani reckons the district at eighty thousand men, I suppose those only of military age ; but this calculation must have been too large, even though he included, as we may presume, the city in his estimate. Tus- cany, though well cultivated and flourishing, does not con- tain by any means so great a number of inhabitants in that space at present. § 15. The first eminent conquest made by Florence was that of Pisa, early in the fifteenth century. Pisa had been distinguished as a commercial city ever since the age of the Othos. From her ports, and those of Genoa, the earliest naval armaments of the Western nations were fitted out against the Saracen corsairs who infested the Mediterranean coasts. In the eleventh century she undertook, and, after a pretty long struggle, completed, the important, or at least the splendid, conquest of Sardinia, an island long subject to a Moorish chieftain. Her naval prowess was supported by her commerce. A writer of the twelfth century reproaches her with the Jews, the Arabians, and other " monsters of the sea," who thronged in her streets. The crusades poured fresh wealth into the lap of the maritime Italian cities. In some of those expeditions a great portion of the armament was conveyed by sea to Palestine, and freighted the vessels of Pisa, Genoa, and Venice. When the Christians had bought with their blood the sea-coast of Syria, these republics pro- cured the most extensive privileges in the new states that were formed out of their slender conquests, and became the 3 The gold florin was worth abont ten shillings of our money. The district of Florence was not then much larger than Middlesex. 200 PISA. Chap. III. Part II. conduits through which the produce of the East flowed in upon the ruder nations of Europe. Pisa maintained a large share of this commerce, as well as of maritime greatness, till near the end of the thirteenth century. In 1282 she was in great power, possessing Sardinia, Corsica, and Elba, from whence the republic, as well as private persons, derived large revenues, and almost ruled the sea with their ships and merchandise, and beyond sea were very powerful in the city of Acre, and much connected with its principal citizens. The prosperous era of Pisa is marked by her public edifices. She was the first Italian city that took a pride in architect- ural magnificence. Her cathedral is of the eleventh centu- ry ; the baptistery, the famous inclined tower, or belfry, the arcades that surround the Campo Santo, or cemetery of Pisa, are of the twelfth, or, at latest, of the thirteenth. It would have been no slight anomaly in the annals of Italy, or, we might say, of mankind, if two neighboring cities, competitors in every naval enterprise, had not been perpetual enemies to each other. One is more surprised, if the fact be true, that no war broke out between Pisa and Genoa till 1119. From this time, at least, they continually recurred. An equality ol forces and of courage kept the conflict uncertain for the greater part of two centuries. Their battles were numerous, and sometimes, taken sepa- rately, decisive ; but the public spirit and resources of each city were called out by defeat, and we generally find a new armament replace the losses of an unsuccessful combat. In this respect the naval contest between Pisa and Genoa, though much longer protracted, resembles that of Rome and Carthage in the first Punic war. But Pisa was re- served for her ^gades. In one fatal battle, off* the little isle of Meloria, in 1284, her whole navy was destroyed. Several unfortunate and expensive armaments had almost exhausted the state, and this was the last effort, by private sacrifices, to equip one more fleet. After this defeat it was in vain to contend for empire. Eleven thousand Pisans lan- guished for many years in prison ; it was a current saying that whoever would see Pisa should seek her at Genoa. A treacherous chief, that Count Ugolino whose guilt was so ter- ribly avenged, is said to have purposely lost the battle, and prevented the ransom of the captives, to secure his power ; accusations that obtain easy credit with an unsuccessful people. From the epoch of the battle of Meloria, Pisa ceased to be a maritime power. Forty years afterwards she was strip* Ital^. GENOA. 201 ped of her ancient colony, the island of Sardinia, which was annexed to the crown of Aragon. Her commerce now dwin- dled with her greatness. During the fourteenth century Pisa almost renounced the ocean, and directed her main at- tention to the politics of Tuscany. Ghibelin by invariable predilection, she was in constant opposition to the Guelf cities which looked up to Florence. But in the fourteenth century the names of freeman and Ghibelin were not easily united ; and a city in that interest stood insulated between the republics of an opposite faction and the tyrants of her own. Pisa fell several times under the yoke of usurpers ; she was included in the wide-spreading acquisitions of Gian Galeazzo Yisconti. At his death one of his family seized the dominion, and finally the Florentines purchased for 400,000 florins a rival and once equal city. The Pisans made a resistance more according to what they had been than what they were. § 16. The early history of Genoa, in all her foreign rela- ^ tionSjis involved in that of Pisa. As allies against the Sara- ly^ cens of Africa, Spain, and the Mediterranean islands, as co- '^ rivals in commerce with these very Saracens or with the Christians of the East, as co-operators in the great expedi- tions under the banner of the cross, or as engaged in deadly warfare with each other, the two republics stand in con- tinual parallel. From the beginning of the thirteenth cen- tury Genoa was, I think, the more prominent and flourishing fii the two. She had conquered the island of Corsica at the same time that Pisa reduced Sardinia ; and her acquisition, though less considerable, was longer preserved. Her terri- tory at home, the ancient Liguria, was much more extensive, and, what was most important, contained a greater range of sea-coast than that of Pisa. But the commercial and mari-' time prosperity of Genoa may be dated from the recovery of Constantinople by the Greeks in 1261. Jealous of the Venetians, by whose arms the Latin emperors had been placed, and were still maintained, on their throne, the Genoese assisted Palieologus in overturning that usurpation. They obtained in consequence the suburb of Pera or Galata, over against Constantinople, as an exclusive settlement, where their colony was ruled by a magistrate sent from home, and frequently defied the Greek capital with its armed galleys and intrepid seamen. From this convenient station Genoa extended her commerce into the Black Sea, and established her principal factory at Caffa, in the Crimean peninsula. This commercial monopoly, for such she endeavored to ren- 202 WARS OF GENOA. Chap. III. Part II. der it, aggravated the animosity of Venice. As Pisa retired from the field of waters, a new enemy appeared upon the horizon to dispute the maritime dominion of Genoa. Her first war with Venice was in 1258. The second was not till after the victory of Meloria had crushed her more ancient enemy. It broke out in 1293, and was prosecuted with de- termined fury and a great display of naval strength on both sides. One Genoese armament consisted of 155 galleys, each manned with from 220 to 300 sailors. It was, however, be- yond any other exertion. The usual fleets of Genoa and V enice were of seventy to ninety galleys. But the most remarkable war, and that productive of the greatest consequences, was one that commenced in 1378, after several acts of hostility in the Levant. Genoa did not stand alone in this war. A formidable confederacy was raised against Venice, who had given provocation to many enemies. Of this Francis Carrara, seignior of Padua, and the King of Hungary were the leaders. But the principal strug- gle was, as usual, upon the waves. During the winter of 1378 a Genoese fleet kept the sea, and ravaged the shores of Dalmatia. The Venetian armament had been weakened by an epidemic disease, and when Vittor Pisani, their admiral, gave battle to the enemy, he was compelled to fight with a hasty conscription of landsmen against the best sailors in the world. Entirely defeated, and taking refuge at Venice with only seven galleys, Pisani was cast into prison, as if his ill- fortune had been his crime. Meanwhile the Genoese fleet, augmented by a strong reinforcement, rode before the long natural ramparts that separate the lagunes of Venice from the Adriatic. Six passages intersect the islands which con- stitute this barrier, besides the broader outlets of Brondolo and Fossone, through which the waters of the Brenta and the Adige are discharged. The lagune itself, as is well known, consists of extreniely shallow water, unnavigable for any vessel except along the course of artificial and intricate passages. Notwithstanding the apparent difficulties of such an enterprise, Pietro Doria, the Genoese admiral, determined to reduce the city. His first successes gave him reason to hope. He forced the passage, and stormed the little town of Chioggia, built upon the inside of the isle bearing that name, about twenty-five miles south of Venice. Nearly four thou- sand prisoners fell here into his hands — an augury, as it seemed, of a more splendid triumph. In the consternation this misfortune inspired at Venice, the first impulse was to ask for peace. The ambassadors carried with them se\en Italy. WARS OF GENOA. 203 Genoese prisoners, as a sort of peace-offering to the admiral, and were empowered to make large and humiliating conces- sions, reserving nothing but the liberty of Venice. Francis Carrara strongly urged his allies to treat for peace. But the Genoese were stimulated by long hatred, and intoxicated by this unexpected opportunity of revenge. Doria, calling the ambassadors into council, thus addressed them : " Ye shall obtain no peace from us, I swear to you, nor from the lord of Padua, till first we have put a curb in the mouths of those wild horses that stand upon the place of St. Mark. When they are bridled you shall have enough of peace. Take back with you your Genoese captives, for I am coming within a few days to release both them and their companions from your prisons." When this answer was reported to the Sen- ate, they prepared to defend themselves with the character- istic firmness of their Government. Every eye was turned towards a great man unjustly punished, their admiral Vittor Pisani. He was called out of prison to defend his country amidst general acclamations. Under his vigorous command the canals were fortified or occupied by large vessels armed with artillery ; thirty-four galleys were equipped ; every citizen contributed according to his power ; in the entire want of commercial resources (for Venice had not a mer- chant-ship during this war) private plate was melted ; and the Senate held out the promise of ennobling thirty families who should be most forward in this strife of patriotism. The new fleet was so ill provided with seamen that for some months the admiral employed them only in manoeuvring along the canals. From some unaccountable supineness, or more probably from the insuperable difficulties of the under- taking, the Genoese made no assault upon the city. They had, indeed, fair grounds to hope its reduction by famine or despair. Every access to the continent was cut off by the troops of Padua ; and the King of Hungary had mastered al- most all the Venetian towns in Istria and along the Dalma- tian coast. The Doge Contarini, taking the chief command, appeared at length with his fleet near Chioggia, before the Genoese were aware. They were still less aware of his se- cret design. He pushed one of the large round vessels, then called cocche, into the narrow passage of Chioggia which connects the lagune with the sea, and, mooring her athwart the channel, interrupted that communication. Attacked with fury by the enemy, this vessel went down on the spot, and the doge improved his advantage by sinking loads of stones until the passage became absolutely un navigable It 204 WARS OF GENOA. Chap. III. Part li was still possible for the Genoese fleet to follow the principal canal of the lagune towards Venice and the northern pas- sages, or to sail out of it by the harbor of Brondolo ; but, whether from confusion or from miscalculating the dangers of their position, they suffered the Venetians to close the ca- nal upon them by the same means they had used at Chiog- gia, and even to place their fleet in the entrance of Brondolo so near to the lagune that the Genoese could not form their ships in line of battle. The circumstances of the two com- batants were thus entirely changed. But the Genoese fleet, though besieged in Chioggia, was impregnable, and their command of the land secured them from famine. Venice, notwithstanding her unexpected success, was still very far from secure : it was diflicult for the doge to keep his position through the winter ; and if the enemy could appear in open sea, the risks of combat were extremely hazardous. It is said that the Senate deliberated upon transporting the seat of their liberty to Candia, and that the doge had announced his intention to raise the siege of Chioggia, if expected suc- cors did not arrive by the 1st of January, 1380. On that very day Carlo Zeno, an admiral who, ignorant of the dan- gers of his country, had been supporting the honor of her flag in the Levant and on the coast of Liguria, appeared with a reinforcement of eighteen galleys and a store of provisions. From that moment the confidence of Venice revived. The fleet, now superior in strength to the enemy, began to at- tack them with vivacity. After several months of obstinate resistance, the Genoese — whom their republic had ineflect- ually attempted to relieve by a fresh armament — blocked up in the town of Chioggia, and pressed by hunger, were obliged to surrender. Nineteen galleys only, out of forty-eight, were in good condition ; and the crews were equally diminished in the ten months of their occupation of Chioggia. The pride of Genoa was deemed to be justly humbled; and even her own historian confesses that God would not suffer so noble a city as Venice to become the spoil of a conqueror. Though the capture of Chioggia did not terminate the war, both parties were exhausted, and willing, next year, to accept the mediation of the Duke of Savoy. By the peace of Turin, Venice surrendered most of her territorial posses- sions to the King of Hungary. That prince and Francis Carrara were the only gainers. Genoa obtained the isle of Tenedos, one of the original subjects of dispute — a poor indemnity for her losses. Though, upon a hasty view, the result of this war appears more unfavorable to Venice, yet Italy. HER GOVERNMENT. 205 in fact it is the epoch of the decline of Genoa. From this time she never commanded the ocean with such navies as before; her commerce gradually went into decay ; and the fifteenth century — the most splendid in the annals of Ven- ice — is, till recent times, the most ignominious in those of Genoa. But this was partly owing to internal dissensions, by which her liberty, as well as glory, was for a while sus- pended. § 17. At Genoa, as in other cities of Lombardy, the prin- cipal magistrates of the republic were originally styled con- suls. Their number varied from four to six, annually elected by the people in their full Parliament. These consuls pre- sided over the republic, and commanded the forces by land and sea ; while another class of magistrates, bearing the same title, were annually elected by the several companies into which the people were divided, for the administration of civil justice. This was the regimen of the twelfth cen- tury ; but in the next Genoa fell into the fashion of intrust- ing the executive power to a foreign podesta. The podesta was assisted by a council of eight, chosen by the eight com- panies of nobility. This institution gave not only an aristo- cratic, but almost an oligarchical character to the constitu- tion, since many of the nobility were not members of these eight societies. Of the Senate or Councils we hardly know more than their existence ; they are very little mentioned by historians. Every thing of a general nature, every thing that required the expression of public will, was reserved for the entire and unrepresented sovereignty of the people. In no city was the Parliament so often convened — for war, for peace, for alliance, for change of government. These very dissonant elements were not likely to harmonize. The peo- ple, sufficiently accustomed to the forms of democracy to imbibe its spirit, repined at the practical influence which was thrown into the scale of the nobles. Among the nobil- ity themselves, four houses were distinguished beyond all the rest — the Grimaldi, the Fieschi, the Doria, the Spinola ; the two former of Guelf politics, the latter adherents of the Empire. Perhaps their equality of forces, and a jealously which even the families of the same faction entertained of each other, prevented any one from usurping the seigniory at Genoa. Neither the Guelf nor Ghibelin party obtaining a decided preponderance, continual revolutions occurred in the city. The most celebrated was in 1339, which led to the election of the first doge. A large fleet in want of pay broke out in open insurrection. Savona and the neighbor 206 KEVOLUTION OF GENOA. Chai-. 111. Part II. ing towns took arms avowedly against the aristocratical tyr- anny; and the capital was itself on the point of joining the insurgents. There was, by the Genoese constitution, a mag- istrate named the abbot of the people, acting as a kind of tribune for their protection against the oppression of the no- bility. This office had been abolished by the present gov- ernment^ and it was the first demand of the malcontents that it should be restored. This was acceded to, and twenty delegates were appointed to make the choice. While they delayed, and the populace was grown weary with waiting, a nameless artisan called out from an elevated station that he could direct them to a fit person. When the people, in jest, bade him speak on, he uttered the name of Simon Boccane- gra. This was a man of noble birth, and well esteemed, who was then present among the crowd. The word was sudden- ly taken up ; a cry was heard that Boccanegra should be ab- bot : he was instantly brought forward, and the sword of justice forced into his hand. As soon as silence could be obtained he modestly thanked them for their favor, but de- clined an office which his nobility disqualified him from ex- ercising. At this a single voice out of the crowd exclaimed, ''^ Seignior r'' and this title was reverberated from every side. Fearful of worse consequences, the actual magistrates urged him to comply with the people and accept the office of abbot. But Boccanegra, addressing the assembly, declared his readi- ness to become their abbot, seignior, or whatever they would. The cry of " Seignior !" was now louder than before ; Avhile others cried out, " Let him be duke V Tlie latter title was received with greater approbation ; and Boccanegra was conducted to the palace, the first duke, or doge, of Genoa. Caprice alone, or an idea of more pomp and dignity, led the populace, we may conjecture, to prefer this title to that of seignior ; but it produced important and highly beneficial consequences. In all neighboring cities an arbitrary gov- ernment had been already established under their respective seigniors; the name was associated with indefinite power, while that of doge had only been taken by the elective and very limited chief magistrate of another maritime republic. Neither Boccanegra nor his successors ever rendered their authority unlimited or hereditary. The constitution of Genoa, from an oppressive aristocracy, became a mixture of the two other forms, with an exclusion of the nobles from power. Those four great families who had domineered al- ternately for almost a century lost their influence at home after the revolution of 1339. Yet, what is remarkable Italy. VENICE. 207 enough, they were still selected in preference for the high- est of trusts : their names are still identified with the glory of Genoa ; her fleets hardly sailed but under a Doria, a Spi- nola, or a Grimalda — such confidence could the republic be- stow upon their patriotism, or that of those whom they com- manded. Meanwhile two or three new families, a plebeian oligarchy, filled their place in domestic honors ; the Adorni, the Fregosi, the Montalti, contended for the ascendant. From their competition ensued revolutions too numerous al- most for a separate history; in four years, from 1390 to 1394, the doge was ten times changed — swept away or brought back in the fluctuations of popular tumult. Antoniotto Adorno, four times doge of Genoa, had sought the friend- ship of Gian Galeazzo Visconti ; but that crafty tyrant medi- tated the subjugation of the republic, and played her factions against one another to render her fall secure. Adorno per- ceived that there was no hope for ultimate independence but by making a temporary sacrifice of it. His own power, am- bitious as he had been, he voluntarily resigned; and placed the republic under the protection or seigniory of the King of France. Terms were stipulated very favorable to her lib- erties ; but, with a French garrison once received into the city, they w^ere not always sure of observance. § 18. While Genoa lost even her political independence, Venice became more conspicuous and powerful than before. That famous republic deduces its original, and even its lib- erty, from an era beyond the commencement of the Middle Ages. The Venetians boast of a perpetual emancipation from the yoke of barbarians. From that ignominious servi- tude some natives of Aquileia and neighboring towns fled to the small cluster of islands that rise amidst the shoals at the mouth of the Brenta. Here they built the town of Rivo- alto, the modern Venice, in 421 ; but their chief settlement was, till the beginning of the ninth century, at Malamocco. Both the Western and the Eastern empire alternately pre- tended to exercise dominion over her ; she was conquered by Pepin, son of Charlemagne, and restored by him, as the chroniclers say, to the Greek emperor, Nicephorus. There is every appearance that the Venetians had always consid- ered themselves as subject to the Eastern Empire. And this connection was not broken in the early part, at least, of the tenth century. But, for every essential purpose, Venice might long before be deemed an independent state. Her doge was not confirmed at Constantinople ; she paid no tribute, and lent no assistance in war. Her ow^n navies, in 208 ACQUISITIONS OF VENICE. Chap. III. Part II. the ninth century, encountered the Normans, the Saracens, and the Sclavonians in the Adriatic Sea. TJpon the coast of Dalmatia were several Greek cities, which the Empire had ceased to protect, and which, like Venice itself, became re- publics for want of a master. Ragusa was one of these, and, more fortunate than the rest, survived as an independent city till our own age. In return for the assistance of Ven- ice, these little sea-ports put themselves under her govern- ment ; The Sclavonian pirates were repressed ; and after ac- quiring, partly by consent, partly by arms, a large tract of maritime territory, the doge took the title of Duke of Dalma- tia. Three or four centuries, however, elapsed before the republic became secure of these conquests, which 'were fre- quently wrested from her by rebellions of the inhabitants, or by her powerful neighbor, the King of Hungary. A more important source of Venetian greatness was com- merce. In the darkest and most barbarous period, before Genoa or even Pisa had entered into mercantile pursuits, Venice carried on an extensive traffic both with the Greek and Saracen regions of the Levant. The Crusades enriched and aggrandized Venice more, perhaps, than any other city. Her splendor may, however, be dated from the taking of Constantinople by the Latins in 1204. In this famous enter- prise, which diverted a great armament destined for the re- covery of Jerusalem, the French and Venetian nations were alone engaged ; but the former only as private adventurers, the latter with the whole strength of their republic under its doge, Henry Dandolo. Three-eighths of the city of Constan- tinople, and an equal proportion of the provinces, were allot- ted to them in the partition of the spoil, and the doge took the singular but accurate title, Duke of three-eighths of the Roman Empire. Their share was increased by purchases from less opulent crusaders, especially one of much impor- tance, the island of Candia, which they retained till the mid- dle of the seventeenth century. These foreign acquisitions were generally granted out in fief to private Venetian nobles under the supremacy of the republic. It was thus that the Ionian islands, to adopt the vocabulary of our day, came un- der the dominion of Venice, and guaranteed that sovereignty which she now began to affect over the Adriatic. Those of the Archipelago were lost in the sixteenth century. Thia political greatness was sustained by an increasing commerce. No Christian state preserved so considerable an intercourse with the Mohammedans. While Genoa kept the keys of the Black Sea by her colonies of Pera and Caffa,Venice directed Italy. HER GOVERNMENT. 209 her vessels to Acre and Alexandria. These connections, as is the natural effect of trade, deadened the sense of religious antipathy ; and the Venetians were sometimes charged with obstructing all eflbrts towards a new crusade, or even any partial attacks upon the Mohammedan nations. § 19. The earliest form of government at Venice, as we collect from an epistle of Cassiodorus in the sixteenth cen- tury, was by twelve annual tribunes. Perhaps the union of the different islanders was merely federative. However, in 697, they resolved to elect a chief magistrate by name of duke, or, in their dialect. Doge of Venice. No councils ap- pear to have limited his power, or represented the national will. The doge was general and judge ; he was sometimes permitted to associate his son with him, and thus to prepare the road foi- hereditary power ; his government had all the prerogatives, and, as far as in such a state of manners was possible, the pomp, of a monarchy. But he acted in impor- tant matters with the concurrence of a general assembly, though, from the want of positive restraints, his executive government might be considered as nearly absolute. Time, however, demonstrated to the Venetians the imperfections of such a constitution. Limitations were accordingly im- posed on the doge, and at length, in 1172, the Gi^eat Council was established. It was at first elective, and annually re- newed ; but it became gradually, by snccessive changes, an exclusive hereditary aristocracy, and, m 1319, all elective forms were abolished. By the constitution of Venice as it was then settled, every descendant of a member of the Great Council, on attaining twenty-five years of age, entered as of right into that body, which, of course, became unlimited in its numbers. But an assembly so numerous as the Great Council could never have conducted the public affairs with that secrecy and steadiness which were characteristic of Venice; and without an intermediary power between the doge and the patrician multitude the constitution would have gained noth- ing in stability to compensate for the loss of popular free- dom. The executive government w^as committed to a Seri- ate, consisting of sixty members, in which the doge presided, and to which the care of the state in all domestic and for- eign relations, and the previous deliberation upon proposals submitted to the Great Council, was confided. It was en- larged in the fourteenth century by sixty additional mem- bers; and as a great part of the magistrates had also seats in it, the whole number amounted to between two and three 210 GOVERNMENT OF VENICE. Chap. III. Part II hundred. Though the legislative power, properly speaking, remained with the Great Council, the Senate \ised to impose taxes, and had the exclusive right of making peace and war. It was annually renewed, like almost all other councils at Ven- ice, by the Great Council. But since even this body was too numerous for the preliminary discussion of business, six coun- cillors, forming, along with the doge, the Seigniory^ or visible representative of the republic, were empowered to dispatch orders, to correspond with ambassadors, to treat with foreign states, to convoke and preside in the councils, and perform other duties of an administration. It might be imagined that a dignity so shorn of its lustre as that of doge would not excite an overweening ambition. But the Venetians were still jealous of extinguished power ; and while their constitution was yet immature the Great Council planned new methods of restricting their chief mag- istrate. An oath was taken by tlie doge on his election, so comprehensive as to embrace every possible check upon un- due influence. He was bound not to correspond with for- eign states, or to open their letters, except in the presence of the seigniory ; to acquire no property beyond the Venetian dominions, and to resign what he might already possess ; to interpose, directly or indirectly, in no judicial process; and not to permit any citizen to use tokens of subjection in salut- ing him. As a further security, they devised a i-emarkably complicated mode of supplying the vacancy of his office. As many balls as there were members of the Great Council pres- ent were placed in an urn. Thirty of these were gilt. The holders of gilt balls were reduced by a second ballot to nine. The nine elected forty, whom lot reduced to twelve. The twelve chose twenty -five by separate nomination. The twenty-five were reduced by lot to nine ; and each of the nine chose five. These forty-five were reduced to eleven, as before; the eleven elected forty-one, who were the ultimate voters for a doge. This intricacy appears useless, and con- sequently absurd ; but the original principle of a Venetian election (for something of the same kind was applied to all their councils and magistrates) may not always be unworthy of imitation. An hereditary prince could never have remained quiet in such trammels as were imposed upon the Doge of Venice. But early prejudice aqcustoms men to consider restraint, even upon themselves, as advantageous ; and the limitation? of ducal power appeared to every Venetian as fundamental as the great laws of the English constitution do to oirselves. iiALT, GOVERNMENT OF VENICE. 211 For life the chief magistrates of their country, her noble citi- zens forever, they might thank her in their own name for what she gave, and in that of their posterity for what she withheld. Once only a doge of Venice was tempted to be- tray the freedom of the republic. Marin Falieri, a man fai' advanced in life, engaged, for some petty resentment, in a wild intrigue to overturn the government. The conspiracy was soon discovered, and the doge avowed his guilt. An aristocracy so firm and so severe did not hesitate to order his execution in the ducal palace (a.d. 1355). The commonalty, however, did not quietly acquiesce in their exclusion from the Great Council. Several commotions took place about the beginning of the fourteenth century, with the object of restoring a more popular regimen. Upon the suppression of the last, in 1310, the aristocracy sacrificed their own individual freedom along with that of the people, to the preservation of an imaginary privilege. They estab- lished the famous Council of Ten^ that most remarkable part of the Venetian constitution. This council, it should be ob- served, consisted in fact of seventeen, comprising the seign- iory, or the doge and his six councillors, as well as the ten properly so called. The Council of Ten had by usage, if not by right, a controlling and dictatorial power over the Senate and other magistrates, rescinding their decisions, and treat- ing separately with foreign princes. Their vast influence strengthened the executive government, of which they formed a part, and gave a vigor to its movements which the jealousy of the councils would possibly have impeded. But they are chiefly known as an arbitrary and inquisitorial tribunal, the standing tyranny of Venice. Excluding the old council of forty, to which had been intrusted the exercise of crimi- nal justice, not only from the investigation of treasonable charges, but of several other crimes of magnitude, they in- quired, they judged, they punished, according to what they called reason of state. The public eye never penetrated the mystery of their proceedings ; the accused w^as sometimes not heard, never confronted with witnesses ; the condemna- tion was secret as the inquiry, the punishment undivulged like both. The terrible and odious machinery of a police, the insidious spy, the stipendiary informer, unknown to the carelessness of feudal governments, found their natural soil in the republic of Venice. Tumultuous assemblies were scarcely possible in so peculiar a city ; and private conspira- cies never failed to be detected by the vigilance of the Coun- cil of Ten. Compared with the Tuscan republics, the tran- 212 GOVEKNMENT OF VENICE. Chap. III. Part II. quillity of Venice is truly striking. The names of Guelf and Ghibelin hardly raised any emotion in her streets, though the Government was considered in the first part of the four- teenth century as rather inclined towards the latter party. But the wildest excesses of faction are less dishonoring than the stillness and moral degradation of servitude. § 20. Until almost the middle of the fourteenth century Venice had been content without any territorial possessions in Italy ; unless we reckon a very narrow strip of sea-coast, bordering on her lagunes, called the Dogato. Neutral in the great contests between the Church and the Empire, between the free cities and their sovereigns, she was respected by both parties, while neither ventured to claim her as an ally. But the rapid progress of Mastino della Scala, lord of Vero- na, with some particular injuries, led the Senate to form a league with Florence against him. The result of this com- bination was to annex the district of Treviso to the Vene- tian dominions. But they made no further conquests in that age. On the contrary, they lost Treviso in the unfor- tunate war of Chioggia, and did not regain it till 1389. Nor did they seriously attempt to withstand the progress of Gian Galeazzo Visconti, who, after overthrowing the family of Scala, stretched almost to the Adriatic, and altogether sub- verted for a time the balance of power in Lombardy. But upon the death of this prince, in 1404, a remarkable crisis took place in that country. He left two sons, Giovanni Maria and Filippo Maria, both young, and under the care of a mother who was little fitted for her situation. Through her misconduct and the selfish ambition of some military lead' ers, who had commanded Gian Galeazzo's mercenaries, that extensive dominion was soon broken into fragments. Ber- gamo, Como, Lodi, Cremona, and other cities revolted, sub- mitting themselves in general to the families of their former princes, the earlier race of usurpers, who had for nearly a century been crushed by the Visconti. A Guelf faction re- vived after the name had long been proscribed in Lombardy. Francesco da Carrara, lord of Padua, availed himself of this revolution to get possession of Verona, and seemed likely to unite all the cities beyond the Adige. No family was so odious to the Venetians as that of Carrara. Though they had seemed indifferent to the more real danger in Gian Ga- leazzo's lifetime, they took up arms against this inferior en- emy. Both Padua and Verona were reduced, and, the Duke of Milan ceding Vicenza, the republic of Venice came sud- denly into the possession of an extensive territory. Fran- Italy. WARS OF MILAN AND VENICE. 213 cesco da Carrara, who had surrendered in his capital, wa^J^ put to death in prison at Venice. I Notwithstanding the deranged condition of the Milanese, \ no further attempts were made by the Senate of Venice for twenty years. They had not yet acquired that decided love of war and conquest which soon began to influence them against all the rules of their ancient policy. Meantime the dukes of Milan had recovered a great part of their dommions as rapidly as they had lost them. Giovanni Maria, the elder brother, a monster of guilt even among the Visconti, having been assassinated, Filippo Maria assumed the government of Milan and Pavia, almost his only possessions. But though weak and unwarlike himself, he had the good-fortune to era- ploy Carmagnola, one of the greatest generals of that mili- tary age. Most of the revolted cities were tired of their new masters, and, their inclinations conspiring with Carma- gnola's eminent talents and activity, the house of Visconti reassumed its former ascendency from the Sessia to the Adige. Its fortunes might have been still more prosperous if Filippo Maria had not rashly as well as ungratefully of- fended Carmagnola. That great captain retired to Venice, and inflamed a disposition towards war which the Floren- tines and the Duke of Savoy had already excited. The Ve- netians had previously gained some important advantages in another quarter, by reducing the country of Friuli, with part of Istria, which had for many centuries depended on the tem- poral authority of a neighboring prelate, the patriarch of Aquileia. They entered into this new alliance. No under- taking of the republic had been more successful. Carma- gnola led on their armies, and in about two years Venice ac- quired Brescia and Bergamo, and extended her boundary to the river Adda, which she was destined never to pass (a.d. 1426). § 21. Such conquests could only be made by a city so pe- culiarly maritime as Venice through the help of mercenary troops. But, in employing them, she merely conformed to a fashion which states to whom it was less indispensable had long since established. A great revolution had taken place in the system of military service through most parts of Eu- rope, but especially in Italy. During the twelfth and thir- teenth centuries, whether the Italian cities were engaged in their contest with the emperors or in less arduous and gen- eral hostilities among each other, they seem to have poured out almost their whole population as an armed and loosely organized militia. This militia was of course principally 214 MILITARY SYSTEM OF ITALY. Chap. III. Part 1L composed of infantry. Gentlemen, however, were always mounted ; and the superiority of a heavy cavalry must have been prodigiously great over an undisciplined and ill-armed populace. In the thirteenth and following centuries armies seem to have been considered as formidable nearly in pro- portion to the number of men-at-arms or lancers. A charge of cavalry was irresistible; battles were continually won by inferior numbers, and vast slaughter was made among the fugitives. As the comparative inefficiency of foot-soldiers became evident, a greater proportion of cavalry was employed, and armies, though better equipped and disciplined, were less numerous. This we find in the early part of the fourteenth century. The main point for a state at war was to obtain a sufficient force of men-at-arms. As few Italian cities could muster a large body of cavalry from their own population, the obvious resource was to hire mercenary troops. Many soldiers of fortune from Germany, France, and Hungary en- gaged in the service of the Italian states. Their services were anxiously solicited and abundantly repaid. An unfor- tunate prejudice in favor of strangers prevailed among the Italians of that age. They ceded to them, one knows not why, certainly without having been vanquished, the palm of military skill and valor. The word Transalpine (Oltramon- tani) is frequently applied to hired cavalry by the two Vil- lani as an epithet of excellence. The experience of every fresh campaign now told more and more against the ordinary militia. It has been usual for modern writers to lament the degeneracy of martial spirit among the Italians of that age. But the contest was too unequal betvveen an absolutely invulnerable body of cuirassiers and an infantry of peasants or citizens. The cav- alry had about this time laid aside the hauberk, or coat of mail, their ancient distinction from the unprotected popu- lace ; which, though incapable of being cut through by the sabre, afforded no defense against the pointed sword intro- duced in the thirteenth century, nor repelled the impulse of a lance or the crushing blow of a battle-axe. Plate-armor was substituted in its place ; and the man-at-arms, cased in entire steel, the several pieces firmly riveted, and proof against every stroke, his charger protected on the face, chest, and shoulders, or, as it was called, barded with plates of steel, fought with a security of success against enemies in- ferior perhaps only in these adventitious sources of courage to himself. Italy. COMPANIES OF ADVENTURERS. 215 § 22. It could hardly be expected that stipendiary troops, chiefly composed of Germans, would conduct themselves without insolence and contempt of the effeminacy which courted their services. Indifferent to the cause they sup- ported, the highest pay and the richest plunder were their constant motives. As Italy was generally the theatre of war in some of her numerous states, a soldier of fortune, with his lance and charger for an inheritance, passed from one service to another without regret and without discredit. But if peace happened to be pretty universal, he might be thrown out of his only occupation, and reduced to a very in- ferior condition, in a country of which he was not a native. It naturally occurred to men of their feelings, that, if money and honor could only be had while they retained their arms, it was their own fault if they ever relinquished them. Upon this principle they first acted in 1343,. when the republic of Pisa disbanded a large body of German cavalry which had been employed in the war with Florence. A partisan, whom the Italians call the Duke Guarnieri, engaged these dissatis- fied mercenaries to remain united under his command. His plan was to levy contributions on all coimtries which he en- tered with his company, without aiming at any conquests. This was the first of the companies of adventure, which con- tinued for many years to be the scourge and disgrace of Italy. Guarnieri, after some time, withdrew his troops, sa- tiated with plunder, into Germany ; but he served in the in- vasion of Naples by Louis, king of Hungary, in 1348, and, forming a new company, ravaged the ecclesiastical state. A still more formidable band of disciplined robbers appeared in 1353, under the command of Fra Moriale, and afterwards of Conrad Lando. This was denominated the Great Com- pany, and consisted of several thousand regular troops, be- sides a multitude of half- armed ruffians, who assisted as spies, pioneers, and plunderers. The rich cities of Tuscany and Romagna paid large sums that the Great Company, which was perpetually in motion, might not march through their territory. None of the foreign partisans who entered into the serv- ice of Italian states acquired such renown in that career as an Englishman whom contemporary writers call Aucud or Agutus, but to whom we may restore his national appella- tion of Sir John Hawkwood. This very eminent man had served in the war of Edward III., and obtained his knight- hood from that sovereign, though originally, if we may trust common fame, bred to the trade of a tailor. After the peace 216 SIR JOHN HAWKWOOD. Chap. III. Part XL of Bretigni, France was ravaged by the disbanded troops, whose devastations Edward was accused, perhaps unjustly, of secretly instigating. A large body of these, under the name of the White Company, passed into the service of the Marquis of Montferrat. They were some time afterwards employed by the Pisans against Florence ; and during this latter war Hawkwood appears as their commander. For thirty years he was continually engaged in the service of the Visconti, of the pope, or of the Florentines, to whom he devoted himself for the latter part of his life with more fidel- ity and steadiness than he had shown in his first campaigns. The republic testified her gratitude by a public funeral, and by a monument in the Duomo, which still perpetuates his memory. The name of Sir John Hawkwood is worthy to be remem- bered as that of the first distinguished commander who had appeared in Europe since the destruction of the Roman Em- pire. It would be absurd to suppose that any of the con- stituent elements of military genius which nature furnishes to energetic characters were wanting to the leaders of a bar- barian or feudal army : untroubled perspicacity in confusion, firm decision, rapid execution, providence against attack, fertility of resource and stratagem — these are in quality as much required from the chief of an Indian tribe as from the accomplished commander. But we do not find them in any instance so consummated by habitual skill as to challenge the name of generalship. Hawkwood appears to me the first real general of modern times — the earliest master, how- ever imperfect, in the science of Turenne and Wellington. Every contemporary Italian historian speaks with admira- tion of his skillful tactics in battle, his stratagems, his well- conducted retreats. Praise of this description is hardly be- stowed, certainly not so continually, on any former captain. Hawkwood was not only the greatest but the last of the foreign condottieri, or captains of mercenary bands. While he was yet living, a new military school had been formed in Italy, which not only superseded, but eclipsed, all the stran- gers. This important reform was ascribed to Alberic di Barbiano, lord of some petty territories near Bologna. He formed a company altogether of Italians about the year 1379. It is not to be supposed that natives of Italy had be- fore been absolutely excluded from service. But this was the first trading company, if I may borrow the analogy, the first regular body of Italian mercenaries, attached only to their commander without any consideration of party, like Italy. FRANCESCO SFORZA. 217 the Germans and English of Lando and Hawkwood. Al- beric di Barbiano, though himself no doubt a man of mili- tary talents, is principally distinguished by the school of great generals which the company of St. George under his command produced, and which may be deduced, by regular succession, to the sixteenth century. Two of the most distinguished members of this school were Braccio di Montone, a noble Perugian, and Sforza At- tendolo, originally a peasant in the village of Cotignuola. Nearly equal in reputation, unless perhaps Braccio may be reckoned the more consummate general, they were divided by a long rivalry, which descended to the next generation, and involved all the distinguished leaders of Italy. The distractions of IN'aples, and the anarchy of the ecclesiastical state, gave scope not only to their military but political am- bition. Sforza was invested with extensive fiefs in the king- dom of Naples, and with the office of Great Constable. Braccio aimed at independent acquisitions, and formed a sort of principality around Perugia. This, however, was entirely dissipated at his death. When Sforza and Braccio were no more, their respective parties were headed by the son of the former, Francesco Sforza, and by Nicolas Picci- nino, who for more than twenty years fought, with few ex- ceptions, under opposite banners. Piccinino was constantly in the service of Milan. Sforza married Bianca, the natural daughter and only child of Filippo Maria, duke of Milan, and last of his family. But upon the death of Filippo Maria in 1447, the citizens of Milan revived their republican gov- ernment. A republic in that part of Lombardy might, with the help of Venice and Florence, have withstood any domes- tic or foreign usurpation. But Venice was hostile, and Flor- ence indifferent. Sforza became the general of this new state, aware that such would be the probable means of be- coming its master. No politician of that age scrupled any breach of faith for his interest. Sforza, with his army, de- serted to the Venetians ; and the republic of Milan, being both incapable of defending itself and distracted by civil dissensions, soon fell a prey to his ambition. In 1450 he was proclaimed duke, rather by right of election, or of con- quest, than in virtue of his marriage with Bianca, whose sex, as well as illegitimacy, seemed to preclude her from in- heriting. § 23. Whatever evils might be derived, and they were not trifling, from the employment of foreign or native mer- cenaries, it was impossible to discontinue the system with- 10 218 DEFENSIVE ARMS. Chap. III. Part II. out general consent ; and too many states found their own advantage in it for such an agreement. The condottieri were, indeed, all notorious for contempt of engagements. Theii' rapacity was equal to their bad faith. Besides an enormous pay, for every private cuirassier received much more in value than a subaltern officer at present, they ex- acted gratifications for every success. But every thing was endured by ambitious governments who wanted their aid. • Florence and Venice were the two states which owed most to the companies of adventure. The one loved war without its perils ; the other could never have obtained an inch of territory with a population of sailors. But they were both almost inexhaustibly rich by commercial industry ; and as the surest pay-masters, were best served by those they em- ployed. The Italian armies of the fifteenth century have been re- marked for one striking peculiarity. War has never been conducted at so little personal hazard to the soldier. Com- bats frequently occur, in the annals of that age, wherein suc- cess, though warmly contested, cost very few lives even to the vanquished. This innocence of blood, which some his- torians turn into ridicule, was no doubt owing in a great de- gree to the rapacity of the companies of adventure, who, in expectation of enriching themselves by the ransom of prison- ers, were anxious to save their lives. But it was rendered more practicable by the nature of their arms. For once, and for once only, in the history of mankind, the art of de- fense had outstripped that of destruction. In a charge of lancers many fell, unhorsed by the shock, and might be suf- focated or bruised to death by the pressure of their own ar- mor; but the lance's point could not penetrate the breast- plate, the sword fell harmless on the helmet, the conqueror, in the first impulse of passion, could not assail any vital part of a prostrate but not exposed enemy. Still less was to be dreaded from the archers or cross-bowmen, who composed a large part of the infantry. The bow indeed, as drawn by an English foot-soldier, was the most formidable of arms before the invention of gunpowder. It was a peculiarly English weapon, and none of the other principal nations adopted it so generally or so successfully. The cross-bow, which brought the strong and w^eak to a level, was more in favor upon the Continent. But both the arrow and the quarrel glanced away from piate-armor, such as it became in the fif- teenth century, impervious in every point, except when the vizor was raised from the face, or some part of the body ac- Italy. INVENTION OF GUNPOWDER. 219 cidentally exposed. The horse, indeed, /vras less completely protected. Meanwhile a discovery accidentally made had prepared the way not only for a change in her military system, but for political eifects still more extensive. There seems little reason to doubt that gunpowder was introduced through the means of the Saracens into Europe. Its use in engines of war, though they may seem to have been rather like our fire-works than artillery, is mentioned by an Arabic writer in the Escurial collection about the year 1249. It was known not long afterwards to our philosopher Roger Bacon, though he concealed, iu some degree, the secret of its composition. In the first part of the fourteenth, century, cannon, or rather mortars, were invented, and the applicability of gunpowder to purposes of war was understood. Edward III. employed some pieces of artillery with considerable efiect at Crecy. But its use was still not very frequent; a circumstance which will surprise us less when we consider the unscientific construction of artillery ; the slowness with which it could be loaded; its stone balls, of uncertain aim and imperfect force, being commonly fired at a considerable elevation ; and especially the difficulty of removing it from place to place during an action. In sieges and in naval engagements, as for example, in the war of Chioggia, it was more frequently employed. Gradually, however, the new artifice of evil gained ground. The French made the principal improve- ments. They cast theh- cannon smaller, placed them on lighter carriages, and used balls of iron. They invented port- able arms for a single soldier, which, though clumsy in com- parison with their present state, gave an augury of a prodig- ious revolution in the military art. John, duke of Burgun- dy, in 1411, had 4000 hand-cannons, as they were called, in his army. They are found, under different names and modi- fications of form, in most of the wars that historians of the fifteenth century record, but less in Italy than beyond the Alps. The Milanese, in 1449, are said to have armed their militia with 20,000 muskets, which struck terror into the old generals. But these muskets, supported on a rest, nnd charged with great delay, did less execution than our san- guinary science would require; and, uncombined Avith the admirable invention of the bayonet, could not in any degree resist a charge of cavalry. The pike had a greater tenden- cy to subvert the military system of the Middle Ages, and to demonstrate the efficiency. of disciplined infantry. Two free nations liad already discomfited, by the help of such in- 220 KINGS OF NAPLES. Chap. III. Part II. fantry, those arrogant knights on whom the fate of battles had depended — the Bohemians, instructed in the art of war by their great master, John Zisca ; and the Swiss, who, after winning their independence inch by inch from the house of Austria, had lately established their renown by a splendid victory over Charles of Burgundy. Louis XL took a body of mercenaries from the United Cantons into pay. Maximil- ian had recourse to the same assistance. And though the importance of infantry was not, perhaps, decidedly establish- ed till the Milanese wars of Louis XII. and Francis L, in the sixteenth century, yet the last years of the Middle Ages, ac- cording to our division, indicated the commencement of that military revolution in the general employment of pikemen and musketeers. § 24. I have not alluded for some time to the domestic history of a kingdom which bore a considerable part, during the fourteenth and fifteenth centuries, in the general combi- KINGS OF NAPLES OF THE HOUSE OF ANJOU. Chaeles I. of Anjou, eon of Louis VIII., king of France, and brother of Loais IX., king of France, becomes king of Naples and Sicily, A.1). 1265. Loses Sicily 1283, d. 1285. Chableb IL, " m. daughter of King of Hangary, 1286-1305. Charles Martel, king of Hangary, d. 1296. Carobert, king of Hungary, d. 1342. I ROBEET, 1305-1343. 1 John, duke of Durazzo. I Louis, Andrew, king of m. Joanna I. Hungary strangled 1346. Charles, duke of Calabria, d. 1328. Joanna I., m. Andrew of Hungary and other husbands, 1343-1378. Charles, duke of Durazzo. Margaret, m. Charles III. king of Naples. Louis. Chaeles III., king 13S2-13S6, m. Margaret of Durazzo. Ladislaus, Joanna II., king of Naples, 1414-1435. 1386-1414. nations of Italian policy, not wishing to interrupt the read- er's attention by too frequent transitions. We must return again to a more remote age in order to take up the history of Naples. Charles of Anjou, after the deaths of Manfred and Conradin had left him without a competitor, might be ranked in the first class of European sovereigns. (See p. 180.) Master of Provence and Naples, and at the head of the Guelf faction in Italy, he had already prepared a formi- dable attack on the Greek empire, when a memorable revo- Italy. KINGS OF SICILY. 221 lution in Sicily brought humiliation on his latter years. John of Procida, a Neapolitan, whose patrimony had been confiscated for his adherence to the party of Manfred, retain- ed, during long years of exile, an implacable resentment against the house of Anjou. From the dominions of Peter III., king of Aragon, who had bestowed estates upon him in Valencia, he kept his eye continually fixed on Naples and Sicily. The former held out no favorable prospects; the Ghibelin party had been entirely subdued, and the principal barons were of French extraction or inclinations. But the island was in a very different state. Unused to any strong government, it was now treated as a conquered country. A large body of French soldiers garrisoned the fortified towns, and the systematic oppression was aggravated by those insults upon the honor of families which are most in- tolerable to an Italian temperament. John of Procida, trav- elling in disguise through the island, animated the barons KINGS OF SICILY OF THE HOUSE OF ARAGON. 1. Pkter III. (king of Aragon), m. Constance, daughter of Conradin of Suabii [see p. 180], and becomes king of Sicily after the Sicilian Vespers, A.i>. 1283, d. 1285. Alfonso III., James IL, Frederick L, king of Aragon. king of Aragon elected king of and king of Sicily, Sicily, abdicates in favor of 1296-1336. Charles II., king of 1 Naples, 1295. Peteb IL, king of Sicily, 1336-1342. 1 Louis, Frederick [L, king of Sicily, king of Sicily, 1342-1356. 1355-13TT. Maria, queen of Sicily, 137T-1402, m. Martin, princ* of Aragon. with a hope of deliverance. In like disguise he repaired to the pope, Nicholas III., who was jealous of the new Neapoh itan dynasty, and obtained his sanction to the projected in^ surrection ; to the Court of Constantinople, from which he readily obtained money ; and to the King of Aragon, who employed that money in fitting out an armament, that hov- ered upon the coast of Africa, under pretext of attacking the Moors. It is, however, difficult at this time to distinguish the effects of preconcerted conspiracy from those of casual resentment. Before the intrigues so skillfully conducted 222 WAR BETWEEN FllANCE AND AKAGON. Ch. III. Ft. II. had taken effect, yet after they were ripe for development, an outrage committed upon a lady at Palermo, during a pro- cession on the vigil of Easter, provoked the people to that terrible massacre of all the French in their island which lias obtained tlie name of Sicilian Vespers. Unpremeditated as such an ebullition of popular fury must appear, it fell in, by the happiest coincidence, with the previous conspiracy. The King of Aragon's fleet was at hand ; the Sicilians soon called in his assistance ; he sailed to Palermo, and accepted the crown (a.d, 1283). § 25. The long war that ensued upon this revolution in- volved or interested the greater part of civilized Europe. Philip III. of France adhered to his uncle, and the King of Ara^on was compelled to fight for Sicily within his native dominions. This, indeed, was the more vulnerable point of attack. Upon the sea he was lord of the ascendant. His Catalans, the most intrepid of Mediterranean sailors, were led to victory by a Calabrian refugee, Roger di Loria, the most illustrious and successful admiral whom Europe pro- duced till the age of Blake and De Ruyter. In one of Lo- ria's battles the eldest son of the King of liaples Avas made prisoner, and the first years of his own reign were spent in confinement. But notwithstanding these advantages, it was found impracticable for Aragon to contend against the arms of France, and latterly of Castile, sustained by the rolling thunders of the Vatican. Peter III. had bequeathed Sicily to his second son, James ; Alfonso, the eldest, king of Ara- gon, could not fairly be expected to ruin his inheritance for his brother's cause ; nor were the barons of that free coun- try disposed to carry on a war without national objects. He made peace, accordingly, in 1295, and engaged to withdraw all his subjects from the Sicilian service. Upon his own death, which followed very soon, James succeeded to the kingdom of Aragon, and ratified the renunciation of Sicily. But the natives of that island had received too deeply the spirit of independence to be thus assigned over by the letter of a treaty. After solemnly abjuring, by their ambassadors, their allegiance to the King of Aragon, they placed the crown upon the head of his brother, Frexierick. They maintained the war against Charles 11. of Naples, against James of Ara- gon, their former king, who had bound himself to enforce their submission, and even against the great Roger di Loria, Avho, upon some discontent with Frederick, deserted their banner, and entered into the Neapolitan service. Peace was at length made in 1300, upon condition that Frederick should Italy. l.OBERT. ^JOANNA. 223 retain during his life the kingdom, which was afterwards to revert to the crown of Naples : a condition not likely to be fulfilled. Upon the death of Charles II., king of Naples, in 1305, a question arose as to the succession. His eldest son, Charles Martel, had been called by maternal inheritance to the throne of Hungary, and had left at his decease a son, Carobert, the reigning sovereign of that country. According to the laws of representative succession, which were at this time tolera- bly settled in private inheritance, the crown of Naples ought to have regularly devolved upon that prince. But it was contested by his uncle, Robert, the eldest living son of Charles II., and the cause was pleaded by civilians at Avig- non before Pope Clement V.,the feudal superior of the Nea- politan kingdom. Reasons of public utility, rather than of legal analogy, seems to have prevailed in the decision which was made in favor of Robert. The course of his reign evinced the wisdom of this determination. Robert, a wise and active, though not personally a martial prince, main- tained the ascendency of the Guelf faction, and the papal influence connected with it, against the formidable combina- tion of Ghibelin usurpers in Lombardy, and the two emper- ors Henry VII, and Louis of Bavaria. No male issue sur- vived Robert, whose crown descended to his granddaughter JoANXA. She had been espoused, while a child, to her cous- in Andrew, son of Carobert, king of Hungary, who was edu- cated with her in the court of Naples. Auspiciously con- trived as this union might seem to silence a subsisting claim upon the kingdom, it proved eventually the source of civil war and calamity for 150 years. Andrew's manners were barbarous, more worthy of his native country than of that polished court wherein he had been bred. He gave himSelf up to the society of Hungarians, who taught him to believe that a matrimonial crown and derivative royalty were derog- atory to a prince who claimed by a paramount hereditary right. In fact, he was pressing the Court of Avignon to per- mit his own coronation, which would have placed in a very hazardous condition the rights of the queen, with whom he was living on ill terms, when one night he was seized, stran- gled, and thrown out of a window. Public rumor, in the absence of notorious proof, imputed the guilt of this myste- rious assassination to Joanna. Whether historians are au- thorized to assume her participation in it so confidently as they have generally done, may perhaps be doubted ; but the circumstances of Andrew's death were undoubtedly preg- 224 HOUSE OF ANJOU. Chap. III. PAiix II. nant with strong suspicion. Louis, king of Hungary, his brother, a just and stern prince, invaded Naples, partly as an avenger, partly as a conqueror. The queen and her second husband, Louis of Tarento, fled to Provence, where her ac- quittal, after a solemn, if not an impartial, investigation, was pronounced by Clement VL Louis, meanwhile, found it more difficult to retain than to acquire the kingdom of Na- ples ; his own dominion required his presence ; and Joanna soon recovered her crown. She reigned for thirty years more without the attack of any enemy, but not intermed- dling, like her progenitors, in the general concerns of Italy. Childless by four husbands, the succession of Joanna began to excite ambitious speculations. Of all the male descend- ants of Charles L none remained but the King of Hungary, and Charles, duke of Durazzo, who had married the queen's niece, and was regarded by her as the presumptive heir to the crown. But, offended by her marriage with Otho of Brunswick, he procured the assistance of a Hungarian army to invade the kingdom, and, getting the queen into his pow- er, took possession of the throne. In this enterprise he was seconded by Urban VL, against whom Joanna had unfortu- nately declared in the great schism of the Church. She was smothered with a pillow, in prison, by the order of Charles. TITULAR KINGS OF NAPLES OF THE SECOND HOUSE OF ANJOU. Louis I., duke of Anjou, son of John, king of France, and uncle of Charles VI., king of France, was adopted by Joanna I. aa king of Naples, d. 1384. Lotris IT., titular king of Naples, 1384-1417. I Louis m., Regniee, titular king of Naples, titular king of Naples, 1417-1434. 1484-1480. § 26. In the extremity of Joanna's distress she had sought assistance from a quarter too remote to afford it in time for her relief She adopted Louis, duke of Anjou, eldest uncle of the young king of France, Charles VL, as her heir in the kingdom of Naples and county of Provence. This bequest took effect without difficulty in the latter country. Naples was entirely in the possession of Charles of Durazzo. Louis, however, entered Italy with a very large army, consisting at least of 30,000 cavalry, and, according to some writers, more than double that number. He was joined by many Nea- politan barons attached to the late queen. But, by a fate not unusual in so imperfect a state of military science, their Italy. LADISLAUS. 225 armament produced no adequate effect, and mouldered away through disease and want of provisions. Louis himself dy- ing not long afterwards, the government of Charles III. ap- peared secure, and he was tempted to accept an offer of the crown of Hungary. This enterprise, equally unjust and in- judicious, terminated in his assassination. Ladislaus, his son, a child ten years old, succeeded to the throne of Naples, under the guardianship of his mother, Margaret, whose ex- actions of money producing discontent, the party which had supported the late Duke of Anjou became powerful enough to call in his son. Louis IL, as he w^as called, reigned at Naples, and possessed most part of the kingdom, for several years ; the young king Ladislaus, who retained some of the northern provinces, fixing his residence at Gaeta. If Louis had prosecuted the war with activity, it seems probable that he would have subdued his adversary. But his character was not very energetic ; and Ladislaus, as he advanced to manhood, displaying much superior qualities, gained ground by degrees, till the Angevin barons, perceiving the turn of the tide, came over to his banner, and he recovered his whole dominions. The kingdom of Naples, at the close of the fourteenth cen- tury, was still altogether a feudal government. This had been introduced by the first Norman kings, and the system had rather been strengthened than impaired under the An- gevin line. The princes of the blood, Avho were at one time numerous, obtained extensive domains by way of appan- age. The principality of Tarento was a large portion of the kingdom. The rest was occupied by some great families, whose strength, as well as pride, was shown in the number of men-at-arms whom they could muster under their banner. At the coronation of Louis IL, the Sanseverini appeared with 1800 cavalry completely equipped. This illustrious house, which had filled all the high offices of state, and changed kings at its pleasure, was crushed by Ladislaus, whose bold and unrelenting spirit well fitted him to bruise the heads of the aristocratic hydra. After thoroughly establishing his government at home, this ambitious monarch directed his pow^erful resources tow^ards foreign conquests. The ecclesi- astical territories had never been secure from rebellion or usurpation ; but legitimate sovereigns had hitherto respect- ed the patrimony of the head of the Church. It was reserved for Ladislaus, a feudal vassal of the Holy See, to seize upon Rome itself as his spoil. For several years, while the disor- dered state of the Church, in consequence of the schism and 10* 226 JOANNA II. Chap. III. Part II. the means taken to extinguish it, gave nim an oppoi-tmiity, the King of Naples occupied great part of the papal territo- lies. He was disposed to have carried his arms farther north, and attacked the republic of Florence, if not the states of Lombardy, when his death relieved Italy from the danger of this new tyranny. § 27. An elder sister, Joanna II., reigned at Naples after Ladislaus. Under this queen, destitute of courage and im- derstanding, and the slave of appetites which her age ren- dered doubly disgraceful, the kingdom relapsed into that state of anarchy from which its late sovereign had rescued it. She adopted first, as her heir and successor, Alfonso, king of Aragon and Sicily, but subsequently revoked her adoption, and substituted in his room another, Louis of Anjou, third in descent of that unsuccessful dynasty. Upon his death, the queen, who did not long survive him, settled the king- dom on his brother Regnier. The Neapolitans were gener- ally disposed to execute this bequest. But Regnier was un- luckily at that time a prisoner to the Duke of Burgundy ; and though his wife maintained the cause with great spirit, it was difficult for her, or even for himself, to contend against the King of Aragon, who immediately laid claim to the king- dom. After a contest of several years, Regnier, having ex- perienced the treacherous and selfish abandonment of his friends, yielded the game to his adversary; and Alfonso founded the Aragonese line of sovereigns at Naples, deriv^ ing pretensions more splendid than just from Manfred, from the house of Suabia, and from Roger Guiscard. § 28. Sicily, after the reign of its deliverer, Frederick I., had unfortunately devolved upon weak or infant princes. The marriage of Maria, queen of Sicily, with Martin, son of the King of Aragon, put an end to the national independence of her country. (See Genealogical Table, p. 221.) Dying without issue, she left the crown to her husband. This was consonant, perhaps, to the received law of some European kingdoms. But, upon the death of Martin, in 1409, his fa- ther, also named Martin, king of Aragon, took possession as heir to his son, without any election by the Sicilian Parlia- ment. Thus was Sicily united to the crown of Aragon. Al- fonso now enjoyed the three crowns of Aragon, Sicily, and Naples. In the first year of Alfonso's Neapolitan war, he was de- feated and takea prisoner by a fleet of the Genoese, who, as constant enemies of the Catalans in all the naval warfare of the Mediterranean, had willingly lent their aid to the Ange- Italy. ALFONSO. 227 vin party. Genoa was at this time subject to Filippo Maria, duke of Milan, and her royal captive was transmitted to his court. But here the brilliant graces of Alfonso's character won over his conqueror, who had no reason to consider the war as his own concern. The king persuaded him, on the contrary, that a strict alliance with an Aragonese dynasty in Naples against the pretensions of any French claimant would be the true policy and best security of Milan. That city, which he had entered as a prisoner, he left as a friend and ally. From this time Filippo Maria Visconti and Al- fonso were firmly united in their Italian politics, and formed one weight of the balance which the republics of Venice and Florence kept in equipoise. After the succession of Slbrza to the duchy of Milan the same alliance was generally pre- served. Sforza had still more powerful reasons than his pred- ecessors for excludmg the French from Italy, his own title being contested by the Duke of Orleans, who derived a claim from his mother Valentine, a daughter of Gian Galeazzo Vis- conti. But the two republics were no longer disposed to- wards war. Florence had spent a great deal without any advantage in her contest with Filippo Maria ; and the new duke of Milan had been the constant personal friend of Cos- mo de' Medici, who altogether influenced that republic. At Venice, indeed, he had been at first regarded with very differ- ent sentiments ; the Senate had prolonged their war against Milan with redoubled animosity after his elevation, deeming him a not less ambitious and more formidable neighbor than the Visconti. But they were deceived in the character of Sforza. Conscious that he had reached an eminence beyond his early hopes, he had no care but to secure for his family the possession of Milan, without disturbing the balance of Lombardy. Venice had little reason to expect further con- quests in Lombardy ; and if her ambition had inspired the hope of them, she was summoned by a stronger call, that of self-preservation, to defend her numerous and dispersed pos- sessions in the Levant against the arms of Mohammed II. All Italy, indeed, felt the peril that impended from that side ; and these various motions occasioned a quadruple league in 1455, between the King of Naples, the Duke of Milan, and the two republics, for the preservation of peace in Italy. One object of this alliance, and the prevailing object with Alfonso, was the implied guaranty of his succession in the kingdom of Naples to his illegitimate son Ferdinand. He had no lawful issue ; and there seemed no reason why an ac- quisition of his own valor should pass against his will to col- 228 ALFONSO. Chap. III. Part II. lateral heirs. The pope, as feudal superior of the kingdom, and the Neapolitan Parliament, the sole competent tribunal, confirmed the inheritance of Ferdinand. Alfonso, surnamed the Magnanimous, was by far the most accomplished sovereign whom the fifteenth century produced. The virtues of chivalry were combined in him with the pa- tronage of letters, and with move than their patronage, a real enthusiasm for learning, seldom found in a king, and es- pecially in one so active and ambitious. This devotion to literature was, among the Italians of that age, almost as sure a passport to general admiration as his more chivalrous per- fection. Magnificence in architecture and the pageantry of a splendid court gave fresh lustre to his reign. The Nea- politans perceived with grateful pride that he lived almost entirely among them, in preference to his patrimonial king- dom, and forgave the heavy taxes which faults nearly allied to his virtues, profuseness and ambition, compelled him to impose. But they remarked a very different character in his son. Ferdinand was as dark and vindictive as his father was affable and generous. The barons, who had many op- portunities of ascertaining his disposition, began, immediate- ly upon Alfonso's death, to cabal against his succession, turn- ing their eyes first to the legitimate branch of the family, and, on finding that prospect not favorable, to John, titular duke of Calabria, son of Regnier of Anjou, who survived to protest against the revolution that had dethroned him. John was easily prevailed upon to undertake an invasion of Naples, but he underwent the fate that had always attended his family in their long competition for that throne. After some brilliant successes, his want of resources, aggravated by the defection of Genoa, on whose ancient enmity to the house of Aragon he had relied, was perceived by the barons of his party, who, according to the practice of their ances- tors, returned one by one to the allegiance of Ferdinand. § 29. The peace of Italy was little disturbed, except by a few domestic revolutions, for several years after this Nea- politan war. Even the most short-sighted politicians were sometimes withdrawn from selfish objects by the appalling progress of the Turks, though there was not energy enough in their councils to form any concerted plans for their own security. Venice maintained a long but unsuccessful contest with Mohammed 11. for her maritime acquisitions in Greece and Albania ; and it was not till after his death relieved Ita- ly from its immediate terror that the ambitious republic en- deavored to extend its territories by encroaching on the Italy. GENOA.— FLORENCE. 229 house of Este. Nor had Milan shown much disposition to- wards aggrandizement. Francesco Sforza had been succeed- ed — such is the condition of despotic governments — by his son Galeazzo, a tyrant more execrable than the worst of the Visconti. His extreme cruelties, and the insolence of a de- bauchery that gloried in the public dishonor of families, ex- cited a few daring spirits to assassinate him. The Milanese profited by a tyrannicide the perpetrators of which they had not courage or gratitude to protect. The regency of Bonne of Savoy, mother of the infant duke Gian Galeazzo, deserved the praise of wisdom and moderation. But it was over- thrown in a few years by Ludovico Sforza, surnamed the Moor, her husband's brother; who, while he proclaimed his nephew's majority, and affected to treat him as a sovereign, hardly disguised in his conduct towards foreign states that he had usurped for himself the sole direction of government. The annals of one of the few surviving republics, that of Genoa, present to us, during the fifteenth as well as the pre- ceding century, an unceasing series of revolutions, the short- est enumeration of which Avould occupy several pages. The latest revolution within the compass of this work was in 1488, when the Duke of Milan became sovereign, au Adorno holding the office of doge as his lieutenant. § 30. Florence, the most illustrious and fortunate of Italian republics, was now rapidly descending from her rank among free commonwealths, though surrounded with mo-re than usu- al lustre in the eyes of Europe. We must take up the story of that city from the revolution of 1382, which restored the ancient Guelf aristocracy, or party of the Albizi, to the ascendency of which a popular insurrection had stripped them. Fifty years elapsed during which this party retained the government in its own hands with few attempts at dis- turbance. Their principal adversaries had been exiled, accord- ing to the invariable and perhaps necessary custom of a re- public ; the populace and inferior artisans were dispirited by their ill-success. But, while crushing with deliberate severi- ty their avowed adversaries, the ruling party had left one family whose prudence gave no reasonable excuse for perse- cuting themj and whose popularity, as well as wealth, ren- dered the experiment hazardous. The Medici were among the most considerable of the new or plebeian nobility. From the first years of the fourteenth century their name not very unfrequently occurs in the domestic and military annals of Florence. Throughout the long depression of the popular iaction the house of Medici was always regarded as their 230 RISE OF THE MEDICI. Chap. III. Part II. consolation and their hope. That house was now represent- ed by Giovanni, whose immense wealth, honorably acquired by commercial dealings, which had already rendered the name celebrated in Europe, was expended with liberality and magnificence. Of a mild temper, and averse to cabals, Giovanni de' Medici did not attempt to set up a party, and contented himself with repressing some fresh encroachments on the popular part of the constitution which the Albizi ■were disposed to make. They, in their turn, freely admitted him to that share in public councils to which he was entitled by his eminence and virtues ; a proof that the spirit of their administration was not illiberally exclusive. But, on the death of Giovanni, his son Cosmo de' Medici, inheriting his father's riches and estimation, with more talents and more ambition, thought it time to avail himself of the popularity belonging to his name. By extensive connections with the most eminent men in Italy, especially with Sforza, he came to be considered as the first citizen of Florence. The oli- garchy were more than ever unpopular. Their administra- tion since 1382 had indeed been in general eminently success- ful; the acquisition of Pisa and of other Tuscan cities had aggrandized the republic, while from the port of Leghorn her ships had begun to trade with Alexandria, and sometimes to contend with the Genoese. But an unprosperous war with Lucca diminished a reputation which was never sustained by public affection. Cosmo and his friends aggravated the er- rors of the government, Avhich, having lost its wise and tem- perate leader, Nicola di Uzzano, had fallen into the rasher hands of Rinaldo degl' Albizi. He incurred the blame of being the first aggressor in a struggle which had become in- evitable. Cosmo was arrested by command of a gonfalonier devoted to the Albizi, and condemned to banishment (a.d. 1433). But the oligarchy had done too much or too little. The city was full of his friends ; the honors conferred upon him in his exile attested the sentiments of Italy. Next year he was recalled in triumph to Florence, and the Albizi were completely overthrown. It is vain to expect that a victorious faction will scruple to retaliate upon its enemies a still greater measure of injus- tice than it experienced at their hands. The Albizi had in general respected the legal forms of their free republic, which good citizens, and perhaps themselves, might hope one day to see more effective. The Medici made all their govern- ment conducive to hereditary monarchy. A multitude of noble citizens were driven from their country ; some were Italy. LORENZO DE' MEDICI. 231 even put to death. A Balia* was appointed f«r ten years to exclude all the Albizi from magistracy, and, for the sake of this security to the I'uling faction, to supersede the legiti- mate institutions of the republic. After the expiration of this period, the dictatorial power was renewed on pretense of fresh danger, and this was repeated constantly. Cosmo died at an advanced age, in 1464. His son, Piero de' Medici, though not deficient either in virtues or abilities, seemed too infirm in health for the administration of public aifairs. A strong opposition was raised to the family pretensions of the Medici. Like all Florentine factions, it trusted to violence ; and the chance of arms was not in its favor. From this rev- olution in 1466, when some of the most considerable citizens were banished, we may date an acknowledged supremacy in the house of Medici, the chief of which nominated the regu- lar magistrates, and drew to himself the whole conduct of the republic. § 31. The two sons of Piero, Lorenzo and Julian, especially the former, though young at their father's death, assumed, by the request of their friends, the reins of government (a.d. 1469). It was impossible that, among a people who had so many recollections to attach to the name of liberty, among so many citizens whom their ancient constitution invited to public trust, the control of a single family should excite no dissatisfaction. But, if the people's wish to resign their freedom gives a title to accept the government of a country, the Medici were no usurpers. That family never lost the affections of the populace. The cry of Palle, Palle (their ar- morial distinction), would at any time rouse the Florentines to defend the chosen patrons of the republic. If their sub- stantial influence could before be questioned, the conspiracy of the Pazzi, wherein Julian perished, excited an enthusiasm for the surviving brother that never ceased during his life. Nor was this any thing unnatural, or any severe reproach to Florence. All around, in Lombardy and Romagna, the lamp of liberty had long since been extinguished in blood. The freedom of Siena and Genoa was dearly purchased by revolutionary proscriptions; that of Venice was only a name. The republic which had preserved longest, and with greatest purity, that vestal fire, had at least no relative deg- radation to fear in surrendering herself to Lorenzo de' Me- dici. I need not in this place expatiate upon what the name ■* A Balia was a temporary delegation of sovereignty to a number, generally a c6ii- siderable number, of citizens, who during the period of their dictatorship named the magistrates, instead of drawing them by lot, and banished suspected individuals. 232 LORENZO DE' MEDICI. Chap. III. Part II. instantly suggests — the patronage of science and art, and the constellation of scholars and poets, of architects and painters, whose reflected beams cast their radiance around his head. His political reputation, though far less durable, was in his own age as conspicuous as that which he acquired in the history of letters. Equally active and sagacious, he held his way through the varying combinations of Italian policy, al- ways with credit, and generally with success. Florence, if not enriched, was, upon the whole, aggrandized during his administration, which was exposed to some severe storms from the unscrupulous adversaries, Sixtus IV. and Ferdinand of Naples, whom he was compelled to resist. As a patriot, indeed, we never can bestow upon Lorenzo de' Medici the meed of disinterested virtue. He completed that subversion of the Florentine republic which his two immediate ances- tors had so well prepared. The two councils, her regular legislature, he superseded by a permanent Senate of seventy persons ; while the gonfalonier and priors, become a mockery and pageant to keep up the illusion of liberty, were taught that in exercising a legitimate authority without the sanc- tion of their prince — a name now first heard at Florence — they incurred the risk of punishment for their audacity. Even the total dilapidation of his commercial wealth was re- paired at the cost of the state ; and the republic disgraceful- ly screened the bankruptcy of the Medici by her own. But, compared with the statesmen of his age, we can reproach Lo- renzo with no heinous crime. He had many enemies; his descendants had many more ; but no unequivocal charge of treachery or assassination has been substantiated against his memory. So much was Lorenzo esteemed by his contempo- raries, that his premature death has frequently been consid- ered as the cause of those unhappy revolutions that speedily ensued, and which his foresight would, it is imagined, have been able to prevent ; an opinion which, whether founded in probability or otherwise, attests the common sentiment about his character (a.d. 1492). § 32. If, indeed, Lorenzo de' Medici could not have changed the destinies of Ital}^ however premature his death may ap- pear if we consider the ordinary duration of human exist- ence, it must be admitted that for his own welfare, perhaps for his glory, he had lived out the full measure of his time. An age of new and uncommon revolutions was about to arise, among the earliest of which the temporary downfall of his family was to be reckoned. The long-contested suc- cession of Naples >i'as again to involve Italy in war. The Italy. FRANCE LAYS CLAIM TO NAPLES. 233 ambition of strangers was once more to desolate her plains. Ferdinand, king of Naples, bad reigned for tbirty years after tbe discomfiture of bis competitor witb success and ability, but witb a degree of ill faith as well as tyranny towards bis subjects that rendered bis government deservedly odious. His son Alfonso, whose succession seemed now near at band, was still more marked by these vices than himself. Mean- while, the pretensions of tbe house of Anjou had legally de- scended, after the death of old Regnier, to Regnier, duke of Lorraine, his grandson by a daughter ; whose marriage into the bouse of Lorraine bad, however, so displeased her father, that be bequeathed his Neapolitan title, along witb his real patrimony, the county of Provence, to a count of Maine ; by whose testament they became vested in tbe crown of France. Louis XL, while he took possession of Provence, gave him- self no trouble about Naples. But Charles VIIL, inheriting bis father's ambition without that cool sagacity which re- strained it in general from impracticable attempts, and far better circumstanced at home than Louis bad ever been, was ripe for an expedition to vindicate his pretension upon Na- ples, or even for more extensive projects. It was now two centuries since tbe kings of France bad begun to aim, by intervals, at conquests in Italy. Tbe long English wars changed all views of the court of France to self-defense. But in tbe fifteenth century its plans of aggrandizement be- yond tbe Alps began to revive. Several times, as I have mentioned, the republic of Genoa put itself under the do- minion of France. Tbe dukes of Savoy, possessing most part of Piedmont, and masters of the mountain-passes, were, by birth, intermarriage, and habitual policy, completely ded- icated to the French interests. Ludovico Sforza, who had usurped tbe guardianship of his nephew, the Duke of Milan, found, as that young man advanced to maturity, that one crime required to be completed by another. To depose and murder bis ward was, however, a scheme that prudence, though not conscience, bade him hesitate to execute. He bad rendered Ferdinand of Naples and Piero de' Medici, Lorenzo's heir, his decided enemies. A revolution at Milan would be tbe probable result of his continuing in usurpation. In these circumstances Ludovico Sforza excited tbe King of France to undertake the conquest of Naples (a.d. 1439). But in relieving himself from an immediate danger, Ludo- vico Sforza overlooked tbe consideration that the presump- tive heir of tbe King of France claimed by an ancient title that principality of Milan which he was compassing by usur- 234 NOTE TO CHAPTER III. Chai-. III. Part II. pation and murder. But neither Milan nor Naples was free from other claimants than France, nor was she reserved to enjoy unmolested the spoil of Italy. A louder and a louder strain of warlike dissonance will be heard from the banks of the Danube, and from the Mediterranean Gulf The dark and wily Ferdinand, the rash and lively Maximilian, are pre- paring to hasten into the lists ; the schemes of ambition are assuming a more comprehensive aspect; and the controversy of Neapolitan succession is to expand into the long rivalry between the houses of France and Austria. But here, while Italy is still untouched, and before as yet the first lances of France gleam along the defiles of the Alps, we close the his- tory of the Middle Ages. NOTE TO CHAPTER III. AUTHORITIES FOR ITALIAN HISTORY, The authorities upon which the preced- ing chapter is founded are chiefly the following: 1. Muratori's Annals of Italy (twelve volumes in 4to, or eighteen in 8vo) comprehend a summary of its history from the beginning of the Christian era to the peace of Aix-la-Chapelle. The volumes relating to the Middle Ages, iuto which he has digested the original writers contained in his great collection, " Scrip- tores Rerum Italicarum," are by much the best ; and of these, the part which extends from the seventh or eighth to the end of the twelfth century is the fullest and most useful. Muratori's accuracy is in general almost implicitly to be trusted, and his plain integrity speaks in all his writings ; but his mind was not philosophical enough to discriminate the wheat from the chaff, an4 his habits of life induced him to annex an imaginary importance to the dates of diplomas and other inconsiderable mat- ters. His narrative presents a mere skel- eton, devoid of juices; and besides its in- tolerable aridity, it labors under that con- fusion which a merely chronological ar- rangement of concurrent and independent events must always produce. 2. The Dis- sertations on Italian Antiquities, by the same writer, may be considered either as one or two works. In Latin they form six volumes in folio, enriched with a great number of original documents. In Italian they are freely translated by Muratori him- self, abridged, no doubt, and without most of the original instruments, but well fur- nished with quotations, and abundantly sufficient for most purposes. They form three volumes in quarto. 3. St. Marc, a learned and laborious Frenchman, has written a chronological abridgment of Italian history, somewhat in the manner of Ilenault, but so strangely divided by several parallel columns in every page, that I could hardly name a book more in- convenient to the reader. His knowledge, like Muratori's, lay a good deal in points of minute inquiry ; and he is chiefly to be valued in ecclesiastical history. The work descends only to the thirteenth centur}'. 4. Deniua's "Rivoluzioni d'ltalia," origin- ally published in 1T6J), is a perspicuous and lively book, in which the principal circum- stances are well selected. It is not, per- haps, free from errors in fact, and still less from those of opinion ; but, till lately, I do not know from what source a general ac- quaintance with the history of Italy could have been so easily derived. 5. The pub- lication of M. Sismoudi's " Histoire des Re- publiques Italiennes" has thrown a blaze of light around the most interesting^, at least, in many respects, of European coun- tries during the Middle Ages. I am hap- py to bear witness, so far as my own stud- ies have enabled me, to the learning and diligence of this writer, qualities which the world is sometimes apt not to suppose where they perceive so much eloquence and philosophy. I can not express my opinion of M. Sismondi in this respect more strongly than by saying that his work has almost superseded the Anuala NOTE TO CHAPTER III. 235 of Muratori ; I mean from the twelfth cen- tury, before which period his labor hardly begins. Though doubtless not more ac- curate than Muratori, he has consulted a much more extensive list of authors ; and, considered as a register of facts alone, his history is incomparably more useful. These are combined in so skillful a man- ner as to diminish, in a great degree, that inevitable confusion which arises from frequency of transition and want of gen- eral unity. It is much to be regretted that, from too redundant details of unnec- essary circumstances, and sometimes, if I may take the liberty of saying so, from unnecessary reflections, M. Sismondi has run into a prolixity which will probably intimidate the languid students of our age. It is the more to be regretted, be- cause the History of Italian Republics is calculated to produce a good far more im- portant than storing the memory with historical f;icts— that of communicating to the reader's bosom some sparks of the dignified philosophy, the love for truth and virtue, which lives along its eloquent pages. G. To Muratori's collection of orig- inal writers, the " Scriptores Rerum Itali- carum,"in twenty-four volumes in folio, I have paid considerable attention ; perhaps there is no volume of it which 1 havs not more or less consulted. 236 HISTORY OF SPAIN. Chap. IV. CHAPTER IV. THE HISTORY OF SPAIN TO THE CONQUEST OP GEANADA. 5 1. Kingdom of the Visigoths. § 2. Conquest of Spain by the Moors. Gradual Re- vival of the Spanish Nation. § 3. Kingdoms of Leon, Aragon, Navarre, and Cas- tile, successively formed, § 4. Chartered Towns of Castile. § 5. Military Orders. § C. Conquests of Ferdinand III. and James of Aragon. § 7. Causes of the Delay in expelling the Moors. § 8. History of Castile continued. Character of the Gov- ernment. Peter the Cruel. § 9. House of Trastamare. John H. Henry IV. §10. Constitution of Castile. National Assemblies or Cortes. Their constituent Parts. § 11. Right of Taxation. 5 12. Forms of the Cortes. § 13. Legislation. § 14. Oth- er Rights of the Cortes. § 15. Privy Council of Castile. § IC. Administration of Justice. § IT. Imperfections of the Constitution. § 18. Aragon. Its history in the Fourteenth and Fifteenth Centuries. Disputed Succession. §19. Constitution of Aragon. § 20. Free Spirit of its Aristocracy. Privilege of Union. § 21. Pow- ers of the Justiza. Legal Securities. Illustrations. § 22. Other Constitutional Laws. Cortes of Aragon. § 23. Valencia and Catalonia. 5 24. Union of two Crowns by the Marriage of Ferdinand and Isabella. § 25. Conquest of Granada. § 1. The history of Spain during the Middle Ages ought to commence with the dynasty of the Visigoths — a nation among the first that assaulted and overthrew the Roman Empire, and whose establishment preceded by nearly half a century the invasion of Clovis. Vanquished by that con- queror in the battle of Poitiers, the Gothic monarchs lost their extensive dominions in Gaul, and transferred their resi- dence from Toulouse to Toledo. The Visigothic monarchy difiered in several respects from that of the Franks during the same period. The crown was less hereditary, or at least the regular succession was more frequently disturbed. The prelates had a still more commanding influence in temporal government. The distinction of Romans and barbarians was less marked, the laws more uniform, and approaching nearly to the imperial code. The power of the sovereign was perhaps more limited by an aristocratical council than in France, but it never yielded to the dangerous influence of mayors of the palace. Civil wars and disputed successions were very frequent, but the integrity of the kingdom was not violated by the custom of partition. § 2. Spain, after remaining for nearly three centuries in the possession of the Visigoths, fell under the yoke of the Saracens in 712. The fervid and irresistible enthusiasm which distinguished the youthful period of Mohammedanism might sufficiently account for this conquest, even if we could Spain. CONQUEST BY THE SARACENS. 237 not assign additional causes — the factions Avhich divided the Goths, the resentment of disappointed pretenders to the throne, the provocations, as has been generally believed, of Count Julian,^ and the temerity that risked the fate of an empire on the chances of a single battle. It is more surpris- ing that a remnant of this ancient monarchy should not only have preserved its national liberty and name in the northern mountains, but waged for some centuries a success- ful, and generally an offensive warfare against the conquer- ors, till the balance was completely turned in its favor, and the Moors were compelled to maintain almost as obstinate and protracted a contest for a small portion of the peninsula. But the Arabian monarchs of Cordova found in their success and imagined security a pretext for indolence : even in the cultivation of science and contemplation of the magnificent architecture of their mosques and palaces they forgot their poor but daring enemies in the Asturias ; while, according to the nature of despotism, the fruits of wisdom or bravery in one generation were lost in the follies and effeminacy of the next. Their kingdom was dismembered by successful reb- els, who formed the states of Toledo, Huesca, Saragossa, and others less eminent ; and these, in their own mutual contests, not only relaxed their natural enmity towards the Christian princes, but sometimes sought their alliance. § 3. The last attack which seemed to endanger the reviv- ing monarchy of Spain was that of Almanzor, the illustrious vizier of Haccham IT., tOAvards the end of the tenth century, wherein the city of Leon, and even the shrine of Compostel- la, were burned to the ground. For some ages before this transient reflux, gradual encroachments had been made upon the Saracens, and the kingdom originally styled of Oviedo, 1 The story of Cava, daughter of Count Julian, whose seduction by Roderic, the last Gothic king, impelled her father to invite the Moors into Spain, enters largely into the cycle of Castilian romance and into the grave narratives of every historian. It can not, however, be traced in extant writings higher than the eleventh century, when it appears in the Chronicle of the Monk of Silos. The most critical investi- gators of history, therefore, have treated the story as too apocryphal to be stated as a fact. Gayangos (" History of the Mohammedan Dynasties in Spain ") points out that the account of Jnlian, in the " Chronicon Silense," is borrowed from some Arabian authority; and this he proves by several writers from the ninth century downward, " all of whom mention, more or less explicitly, the existence of a man living in Africa, and named Ilyan, who helped the Arabs to make a conquest of Spain ; to which I ought to add that the rape of Ilyau's daughter, and the circumstances at- tending it, may also be read in detail in the Mohammedan authors who preceded the monk of Silos." The result of this learned Avriter's investigation is that Ilyan really existed, that he Avas a Christian chief, settled, not in Spain, but on the African coast, and that he betrayed, not his country (except, indeed, as he was probably of Spanish descent), but the interests of his religion, by assisting the Saracens to Bub- j agate the Gothic kingdom. 238 CASTILE. Chap. IV. the seat of which was removed to Leon in 914, had extended its boundary to the Douro, and even to the mountainous chain of the Guadarrama. The province of Old Castile, thus denominated, as is generally supposed, from the castles erect- ed while it remained a march or frontier against the Moors, was governed by hereditary counts, elected originally by the provincial aristocracy, and virtually independent, it seems probable, of the kings of Leon, though commonly serving them in war as brethren of the same faith and nation. While the kings of Leon were thus occupied in recovering the western provinces, another race of Christian princes grew up silently under the shadow of the Pyrenean mountains. Nothing can be more obscure than the beginnings of those little states which were formed in Navarre and the country of Soprarbe. They might, perhaps, be almost contemporane- ous with the Moorish conquests. On both sides of the Pyr- enees dwelt an aboriginal people, the last to undergo the yoke, and who had never acquired the language, of Rome. We know little of these intrepid mountaineers in the dark period which elapsed under the Gothic and Frank dynasties, till we find them cutting off the rear-guard of Charlemagne in Roncesvalles, and maintaining at least their independence, though seldom, like the kings of Asturias, waging offensive war against the Saracens. The town of Jaca, situated among long narrow valleys that intersect the southern ridges of the Pyrenees, was the capital of a little free state, which after- wards expanded into the monarchy of Aragon.^ A territo- ry rather more extensive belonged to Navarre, the kings of which fixed their seas at Pampelona. Biscay seems to have been divided between this kingdom and that of Leon. The connection of Aragon or Soprarbe and Navarre was very in- timate, and they were often united under a single chief. At the beginning of the eleventh century, Sancho the Great, king of Navarre and Aragon, was enabled to render his second son Ferdinand count, or, as he assumed the title, king of Castile. This effectually dismembered that province from the kingdom of Leon ; but their union soon became more complete than ever, though with a reversed supremacy. Bermudo IIL, king of Leon, fell in an engagement with the new king of Castile, who had married his sister; and Ferdi- nand, in her right, or in that of conquest, became master of the 2 The Fncros, or written laws of Jaca, M'ere perhaps more ancient than anf local cnstomary in Europe. Alfonso III. confirms them by name of " the ancient usages of Jaca." They prescribe the descent of lands and movables, as well as the election of municipal magistrates. Spain. MODE OF SETTLING CONQUESTS. 239 united monarchy. This cessation of hostilities between the Christian states enabled them to direct a more unremitting energy against their ancient enemies, who were now sensi- bly weakened by the various causes of decline to which I have already alluded. During the eleventh century the Spaniards were almost always superior in the field; the towns which they began by pillaging, they gradually possess- ed ; their valor was heightened by the customs of chivalry, and inspired by the example of the Cid; and before the end of this age Alfonso YI. recovered the ancient metropolis of the monarchy, the city of Toledo. This was the severest blow which the Moors had endured, and an unequivocal symp- tom of that change in their relative strength, which, from being so gradual, was the more irretrievable. Calamities scarcely inferior fell upon them in a difi*erent quarter. The kings of Aragon (a title belonging originally to a little dis- trict upon the river of that name) had been cooped up al- most in the mountains by the small Moorish states north of the Ebro, especially that of Huesca. About the middle of the eleventh century, they began to attack their neighbors with success ; the Moors lost one town after another, till, in 1118, exposed and weakened by the reduction of all these places, the city of Saragossa, in which a line of Mohammedan princes had flourished for several ages, became the prize of Alfonso I. and the capital of his kingdom. The southern parts of what is now the province of Aragon were suc- cessively reduced during the twelfth century ; while all New Castile and Estremadura became annexed in the same gradual manner to the dominion of the descendants of Al- fonso VI. Although the feudal system can not be said to have ob- tained in the kingdoms of Leon and Castile, their peculiar situ- ation gave the aristocracy a great deal of the same power and independence which resulted in France and Germany from that institution. The territory successively recovered from the Moors, like waste lands reclaimed, could have no propri- etor but the conquerors, and the prospect of such acquisitions was a constant incitement to the nobility of Spain, especially to those who had settled themselves on the Castilian front- ier. In their new conquests they built towns, and invited Christian settlers, the Saracen inhabitants being commonly expelled, or voluntarily retreating to the safer provinces of the South. Thus Burgos was settled by a count of Castile about 880 ; another fixed his seat at Osma ; a third at Sepul- veda; a fourth at Salamanca. These cities were not free 240 CHARTERED TOWNS. Chap. IV. from incessant peril of a sudden attack till the union of the two kingdoms uhder Ferdinand I., and consequently the ne- cessity of keeping in exercise a numerous and armed popula- tion gave a character of personal freedom and privilege to the inferior classes which they hardly possessed at so early a period in any other monarchy. Villenage seems never to have been established in the Hispano-Gothic kingdoms, Leon and Castile ; though I confess it was far from being unknown in that of Aragon, which had formed its institutions on a dif- ferent pattern. Since nothing makes us forget the arbitrary distinctions of rank so much as participation in any common calamity, every man who had escaped the great shipwreck of liberty and religion in the mountains of Asturias was in- vested with a personal dignity, which gave him value in his own eyes and those of his country. It is probably this sen- timent transmitted to posterity, and gradually fixing the na- tional character, that has produced the elevation of manner remarked by travellers in the Castilian peasant. But while these acquisitions of the nobility promoted the grand object of winning back the peninsula from its invaders, they by no means invigorated the government or tended to domestic tranquillity. § 4. A more interesting method of securing the public de- fense was by the institution of chartered towns or commu- nities. These were established at an earlier period than in France and England, and were, in some degree, of a peculiar description. Instead of purchasing their immunities, and al- most their personal freedom, at the hands of a master, the burgesses of Castilian towns were invested with civil rights and extensive property on the more liberal condition of pro- tecting their country. The fuero, or original charter of a Spanish community, was properly a compact, by which the king or lord granted a town and adjacent district to the bur- gesses, with various privileges, and especially that of choosing magistrates and a common council, who were bound to con- form themselves to the laws prescribed by the founder. These laws, civil as well as criminal, though essentially de- rived from the ancient code of the Visigoths, w^hich contin- ued to be the common law of Castile till the fourteenth or fifteenth century, varied from each other in particular usages, which had probably grown up and been established in these districts before their "legal confirmation. The territory held by chartered towns was frequently very extensive, far be- yond any comparison with corporations in our own country or in France ; including the estates of private land-holders. Spain. MILITARY ORDERS. 241 subject to the jurisdiction and control of the municipality as well as its inalienable demesnes, allotted to the maintenance of the magistrates and other public expenses. In every town the king appointed a governor to receive the usual tributes, and watch over the police and the fortified places within the district ; but the administration of justice was exclusively reserved to the inhabitants and their elected judges. Even the executive power of the royal officer was regarded with jealousy; he was forbidden to use violence towards any one without legal process ; and, by the fuero of Logrono, if he attempted to enter forcibly into a private house he might be killed with impunity. In recompense for such liberal concessions, the incorpo- rated towns were bound to certain money payments and to military service. This was absolutely due from every in- habitant, without dispensation or substitution, unless in case of infirmity. The royal governor and the magistrates, as in the simple times of primitive Rome, raised and commanded the militia. Every man of a certain property was bound to serve on horseback, and was exempted in return from the payment of taxes. This produced a distinction between the eaballeros, or noble class, and the pecheros, or payers of trib- ute. But the distinction appears to have been founded only upon wealth, as in the Roman equites, and not upon heredi- tary rank, though it most likely prepared the way for the latter. The horses of these caballeros could not be seized for debt; in some cases they were exclusively eligible to magistracy; and their honor was protected by laws which rendered it highly penal to insult or molest them. But the civil rights of rich and poor in court* of justice were as equal as in England. § 5. The progress of the Christian arms in Spain may in part be ascribed to another remarkable feature in the constitution of that country, the military orders. These had already been tried with signal effect in Palestine ; and the similar circumstances of Spain easily led to an adoption of the same policy. In a very few years after the first institution of the Knights Templars, they were endowed with great estates, or rather districts, won from the Moors, on condition of defend- ing their own and the national territory. These lay chiefly in the parts of Aragon beyond the Ebro, the conquest of which was then recent and insecure. So extraordinary was the respect for this order and that of St. John, and so pow- erful the conviction that the hope of Christendom rested upon their valor, that Alfonso the First, king of Aragon, dy- 11 242 EXPULSION OF THE MOORS. Chap. IV. ing childless, bequeathed to them his whole kingdom. The states of Aragon annulled, as may be supposed, this strange testament ; but the successor of Alfonso was obliged to pac- ify the ambitious knights by immense concessions of money and territory ; stipulating even not to make peace with the Moors against their will. In imitation of these great milita- ry orders common to all Christendom, there arose three Spanish institutions of a similar kind, the orders of Calatra- va, Santiago, and Alcantara. The first of these was estab- lished in 1158; the second and most famous had its charter from the pope in 1175, though it seems to have existed pre- viously ; the third branched off from that of Calatrava at a subsequent time. These were military colleges, having their walled towns in different parts of Castile, and governed by an elective grand master, whose influence in the state was at least equal to that of any of the nobility. In the civil dis- sensions of the fourteenth and fifteenth centuries, the chiefs of these incorporated knights were often very prominent. § 6. The kingdoms of Leon and Castile were unwisely di- vided anew by Alfonso VII. between his sons Sancho and {Ferdinand, and this produced not only a separation but a revival of the ancient jealousj^ with frequent wars for near a century. At length, in 1238, Ferdinand III., king of Cas- tile, reunited forever the two branches of the Gothic mon- archy. He employed their joint strength against the Moors, whose dominion, though it still embraced the finest provinces of the peninsula, was sinking by internal weakness, and had never recovered a tremendous defeat at Banos di Toloso, a few miles from Baylen, in 1210. Ferdinand, bursting into Andalusia, took its great capital, the city of Cordova, not less ennobled by the cultivation of Arabian science, and by the names of Avicenna and Averroes than by the splendid works of a rich and munificent dynasty. (a.t>. 1236.) In a few years more Seville was added to his conquests, and the Moors lost their favorite regions on the banks of the Guadal- quivir. James I. of Aragon, the victories of whose long reign gave him the surname of Conqueror, reduced the city and kingdom of Valencia, the Balearic isles, and the kingdom of Murcia ; but the last was annexed, according to compact, to the crown of Castile. § 7. It could hardly have been expected about the middle of the thirteenth century, when the splendid conquests of Ferdinand and James had planted the Christian banner on the three principal Moorish cities, that 250 years were yet to elapse before the rescue of Spain from their yoke should be Spain. EXPULSION OF THE MOORS. 243 completed. Ambition, religious zeal, national enmity, could not be supposed to pause in a career which now seemed to be obstructed by such moderate difficulties ; yet we find, on the contrary, the exertions of the Spaniards begin from this time to relax, and their acquisitions of territory to become more slow. One of the causes, undoubtedly, that produced this unexpected protraction of the contest was the superior means of resistance which the Moors found in retreating. Their population, spread originally over the whole of Spain, was now condensed, and, if I may so say, become no further compressible, in a single province. It had been mingled, in the northern and central parts, with the T\Iozarabic Chris- tians, their subjects and tributaries, not perhaps treated with much injustice, yet naturally and irremediably their enemies. Toledo and Saragossa, when they fell under a Christian sov- ereign, were full of these inferior Christians, whose long in- tercourse with their masters has infused the tones and dia- lect of Arabia into the language of Castile. But in the twelfth century the Moors, exasperated by defeat and jeal- ous of secret disaffection, began to persecute their Christian subjects, till they renounced or fled for their religion ; so that in the southern provinces scarcely any professors of Chris- tianity were left at the time of Ferdinand's invasion. An equally severe policy was adopted on the other side. The Moors had been permitted to dwell in Saragossa as the Christians had dwelt before, subjects, not slaves; but on the capture of Seville they were entirely expelled, and new set- tlers invited from every part of Spain. The strong fortified towns of Andalusia, such as Gibraltar, Algeciras, Tariffa, maintained also a more formidable resistance than had been experienced in Castile ; they cost tedious sieges, were some- times recovered by the enemy, and were always liable to his attacks. But the great protection of the Spanish Moham- medans was found in the alliance and ready aid of their kin- dred beyond the Straits. Accustomed to hear of the Afri- can Moors only as pirates, we can not easily conceive the powerful dynasties, the w^arlike chiefs, the vast armies, which for seven or eight centuries illustrate the annals of that peo- ple. Their assistance was always afforded to the true be- lievers in Spain, though their ambition was generally dread- ed by those who stood in need of their valor. Probably, however, the kings of Granada were most in- debted to the indolence which gradually became character- istic of their enemies. By the cession of Murcia to Castile, the kingdom of Aragon shut itself out from the possibility 244 EXPULSION OF THE MOORS. Chap. IV. of extending those conquests which had ennobled her earlier sovereigns ; and their successors, not less ambitious and en- terprising, diverted their attention towards objects beyond the peninsula. The Castilian, patient and undesponding in bad success, loses his energy as the pressure becomes less heavy, and puts no ordinary evil in comparison with the ex- ertions by which it must be removed. The greater part of his country freed by his arms, he was content to leave the enemy in a single province rather than undergo the labor of making his triumph complete. § 8. If a similar spirit of insubordination had not been found compatible in earlier ages with the aggrandizement of the Castilian monarchy (a.d. 1252), we might ascribe its want of splendid successes against the Moors to the contin- ued rebellions which disturbed that Government for more than a century after the death of Ferdinand III. His son Alfonso X. might justly acquire the surname of Wise for his general proficiency in learning, and especially in astronomic- al science, if these attainments deserve praise in a king who was incapable of preserving his subjects in their duty. As a legislator, Alfonso, by his code of the Siete Partidas, sacri- ficed the ecclesiastical rights of his crown to the usurpation of Rome ; and his philosophy sunk below the level of ordi- nary prudence when lie permitted the phantom of an impe- rial crown in Germany to seduce his hopes for almost twen- ty years. For the sake of such an illusion he would even have withdrawn himself from Castile, if the states had not remonstrated against an expedition that would probably have cost him the kingdom. In the latter years of his tur- bulent reign, Alfonso had to contend against his son. The right of representation was hitherto unknown in Castile, which had borrowed little from the customs of feudal na- tions. By the received law of succession the nearer was al- ways preferred to the more remote, the son to the grandson. Alfonso X. had established the different maxim of represen- tation by his code of the Siete Partidas, the authority of which, however, was not universally acknowledged. The question soon came to an issue : on the death of his eldest son, Ferdinand, leaving two male children, Sancho, their un- cle, asserted his claim, founded upon the ancient Castilian right of succession ; and this chiefly, no doubt, through fear of arms, though it did not want plausible arguments, was ratified by an assembly of the cortes, and secured, notwith- standing the king's reluctance, by the courage of Sancho. But the descendants of Ferdinand, generally called the in* Spain. CIVIL DISTURBANCES OF CASTILE. 245 fants of la Cerda, by the protection of France, to whose royal family they were closely allied, and of Aragon, always prompt to interfere in the disputes of a rival people, continued to assert their pretensions for more than half a century, and, though they were not very successful, did not fail to aggra- vate the troubles of their country. The annals of Sancho IV. (a.d. 1284), and his two immedi- ate successors, Ferdinand IV. (a.d. 1295) and Alfonso XI. (a.d. 1132), present a series of unhappy and dishonorable civil dissensions with too much rapidity to be remembered or even understood. Although the Castilian nobility had no pretense to the original independence of the French peers, or to the liberties of feudal tenure, they assumed the same privilege of rebelling upon any provocation from their sov- ereign. When such occurred, they seem to have been per- mitted, by legal custom, to renounce their allegiance by a solemn instrument, which exempted them from the penalties of treason. A very few families composed an oligarchy, the worst and most ruinous condition of political society, alter- nately the favorites and ministers of the prince, or in arms against him. If unable to protect themselves in their walled towns, and by the aid of their faction, these Christian patri- ots retired to Aragon or Granada, and excited an hostile power against their country, and perhaps their religion. There is indeed some apology for the conduct of the nobles in the character of their sovereigns, who had but one favor- ite method of avenghig a dissembled injury, or anticipating a suspected treason. But whatever violence and arbitrary spirit might be imputed to Sancho and Alfonso was forgot- ten in the unexampled tyranny of Peter the Cruel (a.d. 1350). The history of his reign charges him with the mur- der of his wife, Blanche of Bourbon, most of his brothers and sisters, with Eleanor Gusman, their mother, many Castilian nobles, and multitudes of the commonalty ; besides continu- al outrages of licentiousness, and especially a pretended mar- riage with a noble lady of the Castrian family. At length a rebellion was headed by his illegitimate brother, Henry, count of Trastamare, wath the assistance of Aragon and Por- tugal. This, how^ever, would probably have failed of de- throning Peter, a resolute prince, and certainly not destitute of many faithful supporters, if Henry had not invoked the more powerful succor of Bertrand du Guesclin, and the com- panies of adventure who, after the pacification between France and England, had lost the occupation of war, and re- tained only that of plunder. With mercenaries so disciplined 246 HOUSE OF TRASTAMARE. Chap. i\ . it was in vain for Peter to contend ; but, abandoning Spain for a moment, be bad recourse to a more powerful weapon from the same armory. Edward tbe Black Prince, tben resi- dent at Bordeaux, was induced by the promise of Biscay to enter Spain as the ally of Castile ; and at tbe great battle of Navarette be continued lord of tbe ascendant over those who had so often already been foiled by his prowess (a.d. 1367). Du Guesclin was made prisoner ; Henry fled to Ara- gon, and Peter remounted the throne. But a second revolu- tion was at hand : the Black Prince, whom he had ungrate- fully offended, withdrew into Guienne; and he lost his king- dom and life in a second short contest with his brother. § 9. A more fortunate period began with the accession of Henry H. (a.d. 1368). His own reign was hardly disturbed by any rebellion ; and though his successors, John I. (a.d. 1379) and Henry HI. (a.d. 1390), were not altogether so un- molested, especially the latter, who ascended the throne in his minority, yet the troubles of their time were slight in comparison with those formerly excited by the houses of Lara and Haro, both of which were now happily extinct. Though Henry II.'s illegitimacy left him no title but popu- lar choice, his queen was sole representative of the Cerdas, the offspring, as has been mentioned above, of Sancho IV. 's elder brother, and, by the extinction of the younger branch, unquestioned heiress of the royal line. Some years after- wards, by the marriage of Henry HI. with Catherine, daugh- ter of John of Gaunt and of Constance, an illegitimate child of Peter the Cruel, her pretensions, such as they were, be- came merged in the crown. No kingdom could be worse prepared to meet the disor- ders of a minority than Castile, and in none did the circum- stances so frequently recur. John II. was but fourteen months old at his accession (a.d. 1406), and but for the dis- interestedness of his uncle Ferdinand, the nobility would have been inclined to avert the danger by placing that prince upon the throne. In this instance, however, Castile suffered less from faction during the infancy of her sovereign than in his maturity. The queen dowager, at first jointly with Ferdinand, and solely after his accession to the crown of Aragon, administered the government with credit. Fifty years had elapsed at her death, in 1418, since the elevation of the house of Trastamare, who had entitled themselves to public affection by conforming themselves more strictly than their predecessors to the constitutional laws of Castile, which were never so well established as during this period. This Spain. HOUSE OF TRASTAMARE. 247 companitively golden period ceases at the majority of John II. His reign was filled np by a series of conspiracies and civil wars, headed by his cousins John and Henry, the in- fants of Aragon, who enjoyed very extensive territories in Castile, by the testament of their father Ferdinand. Their brother, the king of Aragon, frequently lent the assistance of his arms. John himself, the elder of these two princes, by marriage with the heiress of the kingdom of Navarre, stood in a double relation to Castile, as a neighboring sover- eign, and as a member of the native oligarchy. These con- spiracies were all ostensibly directed against the favorite of John H., Alvaro de Luna, who retained for five-and-thirty years an absolute control over his feeble master. The ad- verse faction naturally ascribed to this powerful minister ev- ery criminal intention and all public mischiefs. He was cer- tainly not more scrupulous than the generality of statesmen, and appears to have been rapacious in accumulating wealth. But there was an energy and courage about Alvaro de Luna which distinguishes him from the cowardly sycophants who usually rise by the favor of weak princes ; and Castile prob- ably would not have been happier under the administration of his enemies. His fate is among the memorable lessons of history. After a life of troubles endured for the sake of this favorite, sometimes a fugitive, sometimes a prisoner, his son heading rebellions against him, John H. suddenly yielded to an intrigue of the palace, and adopted sentiments of dislike towards the man he had so long loved. No substantial charge appears to have been brought against Alvaro de Luna, except that general malversation which it was too late for the king to object to him. The real cause of John's change of affection was, most probably, the insupportable re- straint which the weak are apt to find in that spell of a com- manding understanding which they dare not break — the tor- ment of living subject to the ascendant of an inferior, which has produced so many examples of fickleness in sovereigns. That of John IL is not the least conspicuous. Alvaro de Luna was brought to a summary trial and beheaded ; his es- tates were confiscated. He met his death with the intrepid- ity of Strafford, to whom he seems to have borne some re- semblance in character. John H. did not long survive his minister, dying in 1454, after a reign that may be considered as inglorious compared with any except that of his successor. If the father was not respected, the son fell completely into contempt. A power- ful confederacy of disaffected nobles was formed against the 248 NATIONAL COUNCILS. Cuav. IV. royal authority, and Henry IV. was deposed in an assembly of their faction at Avila with a sort of theatrical pageantry which has often been described (a.d. 1465). The confeder- ates set up Alfonso, the king's brother, and a civil war of some duration ensued, in which they had the support of Ara- gon. The Queen of Castile had at this time borne a daugh- ter, whom the enemies of Henry IV., and indeed no small part of his adherents, were determined to treat as spurious. Accordingly, after the death of Alfonso, his sister Isabel was considered as heiress of the kingdom. She might have as- -pired, with the assistance of the confederates, to its immedi- ate possession ; but, avoiding the odium of a contest with her brother, Isabel agreed to a treaty, by which the succession was absolutely settled upon her (a.d. 1469). This arrange- ment was not long afterwards followed by the union of that princess with Ferdinand, son of the King of Aragon. This marriage Avas by no means acceptable to a part of the Cas- tilian oligarchy, who had preferred a connection with Portu- gal. And as Henry had never lost sight of the interests of one whom he considered, or pretended to consider, as his daughter, he took the first opportunity of revoking his forced disposition of the crown and restoring the direct line of suc- cession in favor of the Princess Joanna. Ui^on his death, in 1474, the right was to be decided by arms. The scale be- tween the two parties was pretty equally balanced till, the King of Portugal having been defeated at Toro in 1476, Jo- anna's party discovered their inability to prosecute the war by themselves, and successively made their submission to Ferdinand and Isabella. § 10. The Castilians always considered themselves as sub- ject to a legal and limited monarchy. For several ages the crown was elective, as in most nations of German origin, within the limits of one royal family. In general, of course, the public choice fell upon the nearest heir ; and it became a prevailing usage to elect a son during the lifetime of his father, till about the eleventh century a right of hereditary succession was clearly established. In the original Gothic monarchy of Spain, civil as well as ecclesiastical affairs were decided in national councils, the acts of many of which are still extant, and have been pub- lished in ecclesiastical collections. To these assemblies the dukes and other provincial governors, and in general the principal individuals of the realm, were summoned along with spiritual persons. This double aristocracy of Church and State continued to form the great council of advice and Spain. NATIONAL COUNCILS. 240 consent in the first ages of the new kingdoms of Leon and Castile. The prelates and nobility, or rather some of the more distinguished nobility, appear to have concurred in all general measures of legislation, as we infer from the pream- ble of their statutes. It would be against analogy, as well as without evidence, to suppose that any representation of the commons had been formed in the earlier period of the monarchy. In the preamble of laws passed in 1020, and at several subsequent times during that and the ensuing centu- ry, we find only the bishops and magnates recited as present. But in 1188, the first year of the reign of Alfonso IX., depu- ties from the Castilian towns are expressly mentioned ; and from that era were constant and necessary parts of those general assemblies. Every chief town of a concejo or corporation ought per- haps, by the constitution of Castile, to have received its reg- ular writ for the election of deputies to Cortes. J^ut there does not appear to have been, in the best times, any uniform practice in this respect. We find, in short, a good deal more irregularity than during the same period in England, where the number of electing boroughs varied pretty considerably at every Parliament. Yet the Cortes of Castile did not cease to be a numerous body and a fair representation of the peo- ple till the reign of John II. The first princes of the house of Trastamare had acted in all points with the advice of their Cortes. But John R., and still more his son Henry IV., being conscious of their own unpopularity, did not venture to meet a full assembly of the nation. Their writs were directed only to certain towns — an abuse for which the looseness of preceding usage had given a pretense. It must be owned that the people bore it in general very patiently. Many of the corporate towns, impoverished by civil warfare and oth- er causes, were glad to save the cost of defraying their depu- ties' expenses. Thus, by the year 1480, only seventeen cities had retained privilege of representation. A vote was after- wards added for Granada, and three more in later times for Palencia, and the provinces of Estremadura and Galicia.' It might have been easy, perhaps, to redress this grievance while the exclusion was yet fresh and recent. But the privileged 8 The cities which retained their representation in Cortes were Burgos, Toledo (there was a constant dispute for precedence between these two), Leon, Granada, Cordova, Murcia, Jaen, Zamora, Toro, Soria, Valladolid, Salamanca, Segovia, Avila, Madrid,, Guadalaxara, and Cuenca. The representatives of these were supposed to vote not only for their immediate constituents, but for other adjacent towns. Thus Toro voted for Palencia and the kingdom of Galicia, before they obtained separate votes; Salamanca for most of Estremadura ; Guadalaxara for Siguenza and four hundred other towns. 11* 250 CONSTITUTION OF CORTES. Chap. IV. towns, with a mean and preposterous selfishness, although their zeal for liberty was at its height, could not endure the only means of effectually securing it, by a restoration of elect- ive franchises to their fellow-citizens. The Cortes of 1506 assert, with one of those bold falsifications upon which a pop- ular body sometimes ventures, that " it is established by some laws, and by immemorial usage, that eighteen cities of these kingdoms have the right of sending deputies to Cortes, and no more ;" remonstrating against the attempts made by some otlier towns to obtain the same privilege, which they request may not be conceded. This remonstrance is repeat- ed in 1512. From the reign of Alfonso XL, who restrained the govern- ment of corporations to an oligarchy of magistrates, the right of electing members of Cortes was confined to the rul- ing body, the bailiffs or regidores, whose number seldom ex- ceeded twenty-four, and whose succession was kept up by close election among themselves. The people therefore had no direct share in the choice of representatives. Experience proved, as several instances in these pages will show, that even upon this narrow basis the deputies of Castile were not deficient in zeal for their country and its liberties. But it must be confessed that a small body of electors is always liable to corrupt influence and to intimidation. John TI. and Henry IV. often invaded the freedom of election ; the latter even named some of the deputies. Several energetic re- monstrances v>'ere made in Cortes against this flagrant griev- ance. Laws were enacted and other precautions devised to secure the due return of deputies. In the sixteenth century the evil, of course, was aggravated. Charles and Philip cor- rupted the members by bribery. Even in 1573 the Cortes are bold enough to complain that creatures of government were sent thither, " who were always held for suspected by the other deputies, and cause disagreement among them." There seems to be a considerable obscurity about the constitution of the Cortes, so far as relates to the two higher estates, the spiritual and temporal nobility. It is admitted that down to the latter part of the thirteenth century, and especially before the introduction of representatives from the commons, they v/ere summoned in considerable num- bers. But from the reign of Sancho IV. they took much less share and retained much less influence in the deliberation of Cortes. In the fourteenth and fifteenth centuries they were more and more excluded. It is manifest that the king exercised very freely a prerog Spain. RIGHT OF TAXATION. 251 ative of calling or omitting persons of both the higher or- ders at his discretion. The bishops were numerous, and many of their sees not rich ; while the same objections of in- convenience applied perhaps to the ricoshombres, but far more forcibly to the lower nobility, the hijosdalgo or cabal- leros. Castile never adopted the institution of deputies from this order, as in the States-General of France and some other countries, much less that liberal system of landed representa- tion, which forms one of the most admirable peculiarities in our own constitution. It will be seen hereafter that spiritu- al and even temporal peers were summoned by our kings with much irregularity ; and the disordered state of Castile through almost every reign was likely to prevent the estab- lishment of any fixed usage in this and most other points. § 11. The primary and most essential characteristic of a limited monarchy is that money can only be levied upon the people through the consent of their representatives. This principle was thoroughly established in Castile ; and the statutes which enforce it, the remonstrances which protest against its violation, bear a lively analogy to corresponding circumstances in the history of our constitution. The lands of the nobility and clergy were, I believe, always exempted from direct taxation — an immunity which perhaps rendered the attendance of the members of those estates in the Cortes less regular. The corporate districts or conjegos, which, as I have observed already, differed from the communities of France and England by possessing a large extent of terri- tory subordinate to the principal town, were bound by their charter to a stipulated annual payment, the price of their franchises, called moneda forera. Beyond this sum nothing could be demanded without the consent of the Cortes. De- mands of money do not seem to have been very usual before the prodigal reign of Alfonso X. That prince and his im- mediate successors were not much inclined to respect the rights of their subjects ; but they encountered a steady and insuperable resistance. An explicit law was enacted by Al- fonso XI. in 1328, who bound himself not to exact from his people, or cause them to pay any tax, either partial or gen* eral, not hitherto established by law, without the previous grant of all the deputies convened to the Cortes. This abo- lition of illegal impositions was several times confirmed by the same prince, and his successors. The Catholic kings, as they are eminently called, Ferdinand and Isabella, never vio- lated this part of the constitution. In the Recopilacion, or code of Castilian law published by Philip II., we read a posi' 252 EIGHT OF TAXATION. Chap. IV tive declaration against arbitrary imposition of taxes, which remained unaltered on the statute-book till the present age. The law was indeed frequently broken by Philip 11. ; but the Cortes, who retained throughout the 16th century a degree of steadiness and courage truly admirable when we consider their political weakness, did not cease to remonstrate with that suspicious tyrant, and recorded their unavailing appeal to the law of Alfonso XL, " so ancient and just, and which so long time has been used and observed." The free assent of the people by their representatives to grants of money was by no means a mere matter of form. It was connected with other essential rights indispensable to its effectual exercise ; those of examining public accounts and checking the expenditure. The Cortes, in the best times at least, were careful to grant no money until they were as- sured that what had been already levied on their constitu- ents had been properly employed. The contributions granted by Cortes were assessed and collected by respectable individuals (hombres buenos) of the several towns and villages. This repartition^ as the French call it, of direct taxes is a matter of the highest importance in those countries where they are imposed by means of a gross assessment on a district. The produce was paid to the royal council. It could not be applied to any other purpose than that to which the tax had been appropriated. Thus the Cortes of Segovia, in 1407, granted a subsidy for the war against Granada, on condition " that it should not be laid out on any other service except this war;" which they requested the queen and Ferdinand, both regents in John II.'s minority, to confirm by oath. Part, however, of the money remaining unexpended, Ferdinand wished to apply it to his own object of procuring the ci'own of Aragon ; but the queen first obtained not only a release from her oath by the pope, but the consent of the Cortes. The Cortes did not consider it beyond the line of their duty, notwithstanding the respectful manner in which they always addressed the sovereign, to remonstrate against pro- fuse expenditure even in his own household. They told Al- fonso X. in 1258, in the homely style of that age, that they thought it fitting that the king and his wife should eat at the rate of a hundred and fifty maravedis a day, and no more ; and that the king should order his attendants to eat more moderately than they did. Even in 1559 they spoke with an undaunted Castilian spirit to Philip II : " Sir, the expenses of your royal establishment and household are Spain. POWER AND FORMS OF THE CORTES. 253 much increased ; and we conceive it would much redound to the good of these kingdoms that your majesty should di- rect them to be lowered, both as a relief to your wants, and that all the great men and other subjects of your majesty may take example therefrom to restrain the great disorder and excess they commit in that respect." § 12. The forms of a Castilian Cortes were analogous to those of an English Parliament in the fourteenth century. They were summoned by a writ almost exactly coincident in "expression with that in use among us. The session was opened by a speech from the chancellor or other chief officer of the court. The deputies were invited to consider certain special business, and commonly to grant money. After the principal aiFairs were dispatched they conferred together, and, having examined the instructions of their respective constituents, drew up a schedule of petitions. These were duly answered one by one ; and from the petition and an- swer, if favorable, laws were afterwards drawn up where the matter required a new law, or promises of redress were given if the petition related to an abuse or grievance. In the struggling condition of Spanish liberty under Charles I., the crown began to neglect answering the petitions of Cortes, or to use unsatisfactory generalities of expression. This gave rise to many remonstrances. The deputies insisted in 1523 on having answers before they granted money. They re- peated the same contention in 1525, and obtained a general law inserted in the Recopilacion enacting that the king should answer all their petitions before he dissolved the as- sembly. This, however, was disregarded as before ; but the Cortes whose intrepid honesty under Philip II. so often at- tracts our admiration continued as late as 1586 to af)peal to the written statute and lament its violation. § 13. According to the ancient fundamental constitution of Castile, the king did not legislate for his subjects without their consent. This consent was originally given only by the higher estates, who might be considered, in a large sense, as representing the nation, though not chosen by it ; but from the end of the twelfth century by the elected deputies of the commons in Cortes. The laws of the Siete Partidas, compiled by Alfonso X., did not obtain any direct sanction till the fa- mous Cortes of Alcala, in 1348, when they were confirmed along with several others, forming altogether the basis of the statute-law^ of Spain. It appears, upon the whole, to have been a constitutional principle, that laws could nei- ther be made nor annulled except in Cortes. In 1506 this is 254 LEGISLATIVE RIGHT. Chap. IV. claimed by the deputies as an established right. John I. had long before admitted that what was done by Cortes and general assemblies could not be undone by letters missive, but by such Cortes and assemblies alone. For the kings of Castile had adopted the English practice of dispensing with statutes by a non obstante clause in their grants. But the Cortes remonstrated more steadily against this abuse than our Parliament, who suffered it to remain in a certain degree till the Revolution. It was several times enacted upon their petition, especially by an explicit statute of Henry II., that grants and letters patent dispensing Avith statutes should not be obeyed. Nevertheless, John II., trusting to force or the servility of the judges, had the assurance to dispense explic- itly with this very law. The Cortes of Valladolid, in 1442, obtained fresh promises and enactments against such an abuse. Philij) I. and Charles I. began to legislate without asking the consent of Cortes ; this grew much worse under Philip IL, and reached its height under his successors, who entirely abolished all constitutional privileges. In 1555 we find a petition that laws made in Cortes should be revoked nowhere else. The reply was such as became that age : " To this we answer, that we shall do what best suits our govern- ment." But even in 1619, and still afterwards, the patriot representatives of Castile continued to lift an unavailing voice against illegal ordinances, though in the form of very humble petition ; perhaps the latest testimonies to the expir- ing liberties of their country. The denial of exclusive legis- lative authority to the crown must, however, be understood to admit the legality of particular ordinances designed to strengthen the king's executive government. These, no doubt, like the royal proclamations in England, extended sometimes very far, and subjected the people to a sort of ar- bitrary coercion, much beyond what our enlightened notions of freedom would consider as reconcilable to it. But in the Middle Ages such temporary commands and prohibitions were not reckoned strictly legislative, and passed, perhaps rightly, for inevitable consequences of a scanty code and short session of the national council. The kings w^ere obliged to swear to the observance of laws enacted in Cortes, besides their general coronation oath to keep the laws and preserve the liberties of their people. § 14. It w^as customary to assemble the Cortes of Castile for many purposes besides those of granting money and con- curring in legislation. They were summoned in every reign to acknowledge and confirm the succession of the heir-appar- Spain. COUNCIL OF CASTILE. 255 ent; and upon his accession to swear allegiance. These acts were, however, little more than formal, and accordingly have been preserved for the sake of parade after all the real dig- nity of the Cortes was annihilated. In the fourteenth and fifteenth centuries they claimed and exercised very ample powers. They assumed the right, when questions of regency occurred, to limit the prerogative, as well as to designate the persons who were to use it. And the frequent minori- ties of Castilian kings, which were unfavorable enough to tranquillity and subordination, served to confirm these par- liamentary privileges. The Cortes were usually consulted upon all material business. A law of Alfonso XI. in 1328, printed in the liecopilacion or code published by Philip II., declares, " Since in the arduous affairs of our kingdom the counsel of our natural subjects is necessary, especially of the deputies from our cities and towns, therefore we ordain and command that on such great occasions the Cortes shall be assembled, and counsel shall be taken of the three estates of our kingdoms, as the kings our forefathers have been used to do. § 15. The kings of Leon and Castile acted, during the in- terval of the Cortes, by the advice of a smaller council, an- swering, as it seems, almost exactly to the king's ordinary council in England. In early ages, before the introduction of the commons, it is sometimes difficult to distinguish this body from the general council of the nation ; being com- posed, in fact, of the same class of persons, though in smaller numbers. A similar difficulty applies to the English history. The nature of their proceedings seems best to ascertain the distinction. All executive acts, including those ordinances which may appear rather of a legislative nature, all grants and charters, are declared to be with the assent of the court (curia) or of the magnates of the palace, or of the chiefs or nobles. This privy council was an essential part of all Eu- ropean monarchies ; and, though the sovereign might be considered as free to call in the advice of whomsoever he pleased, yet, in fact, the princes of the blood and most pow- erful nobility had anciently a constitutional right to be mem- bers of such a council, so that it formed a very material check upon his personal authority. The council underwent several changes in progress of time which it is not necessary to enumerate. It was justly deemed an important member of the. constitution, and the Cortes showed a laudable anxiety to procure its composition in such a manner as to form a guaranty for the due execution ot* 256 ADMINISTRATION OF JUSTICE. Chap. IV. laws after their own dissolution. Several times, especially in minorities, they even named its members, or a part of theni; and in the reigns of Henry III. and John II. they obtained the privilege of adding a permanent deputation, consisting of four persons elected out of their own body, annexed as it were to the council, who were to continue at the court dur- ing the interval of Cortes and watch over the due observance of the laws. This deputation continued as an empty formal- ity in the sixteenth century. In the council the king was bound to sit personally three days in the week. Their busi- ness, which included the whole executive government, was distributed with considerable accuracy into what might be dispatched by the council alone, under their own seals and signatures, and what required the royal seal. The consent of this body was necessary for almost every act of the crown ; for pensions or grants of money, ecclesiastical and political promotions, and for charters of pardon, the easy concession of which was a great encouragement to the homicides so usual in those ages, and was restrained by some of our own laws. But the council did not exercise any judicial au- thority, unlike in this to the ordinary council of the kings of England. It was not until the days of Ferdinand and Isabella that this, among other innovations, was introduced. § 16. Civil and criminal justice was administered, in the first instance, by the alcaldes, or municipal judges of towns; elected within themselves, originally, by the community at large, but, in subsequent times, by the governing body. In other places a lord possessed the right of jurisdiction by grant from the crown, not, what we find in countries where the feudal system was more thoroughly established, as inci- dent to his own territorial superiority. The kings, however, began in the thirteenth century to -appoint judges of their own, called corregidores, a name which seems to express con- current jurisdiction with the regidores, or ordinary magis- trates. The Cortes frequently remonstrated against this en- croachment. Even where the king appointed magistrates at a city's request, he was bound to select them from among the citizens. From this immediate jurisdiction an appeal lay to the adelantado or governor of the province, and from thence to the tribunal of royal alcaldes. As a court of appeal, the royal alcaldes had the supreme jurisdiction. The king could only cause their sentence to be revised, but neither alter nor revoke it. § 17. Castile bore a closer analogy to England in its form of civil polity than France or even Aragon. But the frequent Sixain. AFFAIRS OF ARAGON. 257 disorders of its government and a barbarous state of manners rendered violations of law much more continual and flagrant than they were in England under the Plantagenet dynasty. And besides these practical mischiefs, there were two essen- tial defects in the constitution of Castile, through which, perhaps, it was ultimately subverted. It wanted those two brilliants in the coronet of British liberty, the representa- tion of freeholders among the commons, and trial by jury. The Cortes of Castile became a congress of deputies from a few cities, public-spirited indeed and intrepid, as we find them in bad times, to an eminent degree, but too much lim- ited* in number, and too unconnected with the territorial aristocracy, to maintain a just balance against the crown. Yet, with every disadvantage, that country possessed a lib- eral form of government, and was animated with a noble spirit for its defense. § 18. Though the kingdom of Aragon was very inferior in extent to that of Castile, yet the advantages of a better form of government and wiser sovereigns, with those of industry and commerce along a line of sea-coast, rendered it almost equal in importance. Castile rarely intermeddled in the civil dissensions of Aragon ; the kings of Aragon frequently carried their arms into the heart of Castile. During the sanguinary outrages of Peter the Cruel, and the stormy rev- olutions which ended in establishing the house of Trastamare, Aragon was not indeed at peace, nor altogether well gov- erned ; but her political consequence rose in the eyes of Eu- rope through the long reign of the ambitious and wily Peter IV., whose sagacity and good-fortune redeemed, according to the common notions of mankind, the iniquity with which he stripped his relation, the King of Majorca, of the Belearic Islands, and the constant perfidiousness of his character. I have mentioned in another place the Sicilian war, prosecuted with so much eagerness for many years by Peter III. and his son Alfonso III." After this object was relinquished, James II. undertook an enterprise less splendid, but not much less difficult, the conquest of Sardinia. That island, long accus- tomed to independence, cost an incredible expense of blood and treasure to the kings of Aragon during the whole four- teenth century. It was not fully subdued till the commence- ment of the next, under the reign of Martin. At the death of Martin, king of Aragon, in 1410, a memo- rable question arose as to the right of succession. Though Petronilla, daughter of Ramiro II., had reigned in her own « See p. 222. 258 AFFAIRS OF AllAGON. Chai-. IV. right from 1137 to 1172, an opinion seems to have gained ground from the thirteenth century that females could not inherit the crown of Aragon. Peter IV. had excited a civil war by attempting to settle the succession upon his daughter, to the exclusion of his next brother. The birth of a son about the same time suspended the ultimate decision of this question ; but it was tacitly understood that what is called the Salic law ought to prevail. Accordingly, on the death of John I. in 1395, his two daughters were set aside in favor of his brother Martin, though not without opposition on the part of the elder, whose husband, the Count of Foix, invaded the kingdom, and desisted from his pretension only through want of force. Martin's son, the King of Sicily, dying in his father's lifetime, the nation was anxious that the king should fix upon his successor, and would probably have acquiesced in his choice. But his dissolution occurring more rapidly than was expected, the throne remained absolutely vacant. The Count of Urgel had obtained a grant of the lieutenancy, which was the right of the heir-apparent. This nobleman possessed an extensive territory in Catalonia, bordering on the Pyrenees. He was grandson of James, next brother to Peter lY., and, according to our rules of inheritance, certainly stood in the first place. The other claimants were the Duke of Gandia, grandson of James II.,"^ who, though descended from a more distant ancestor, set up a claim founded on proximity to the royal stock, w^hich in some countries w^as preferred to a representative title ; the Duke of Calabria, son of Violante, younger daughter of John I. (the Countess of Foix being childless) ; Frederick, count of Luna, a natural 8 The subjoined pedigree will show more clearly the respective titles of the com- petitors : James II., died 1327. Alfonso IV., d. 1336. I D.ofG, andia. Petkr IV., d. 1337. I James, D. of Cfandia. C. of Urgel. II II fileauor, Q. of Castile. John I., d. 1395. Martin, Peter, d. 1410. C. of Urgel. Henry III., Ferdinand. K. of Castile. C. of UrgeL Martin, K. of Sicily, 1409. I Joanna, Violante, I John 11. , Countess Q. of Naples. | K. of Castile. of Foix. | Frederick, I C. of Luna. Louis, D. of Calabria. Spain. AFFAIRS OF ARAGON. 259 son of the younger Martin, king of Sicily, legitimated by the pope, but with a reservation excluding him from royal suc- cession ; and finally, Ferdinand, infant of Castile, son of the late king's sister. The Count of Urgel was favored in gen- eral by the Catalans, and he seemed to have a powerful sup- port in Antonio de Luna, a baron of Aragon, so rich that he might go through his own estate from France to Castile, But this apparent superiority frustrated his hopes. The jus- ticiary and other leading Aragonese were determined not to suffer this great constitutional question to be decided by an appeal to force, which might sweep away their liberties in the struggle. ITrgel, confident of his right, and surrounded by men of ruined fortunes, was unwilling to submit his pre- tensions to a civil tribunal. His adherent, Antonio de Luna, committed an extraordinary outrage, the assassination of the Archbishop of Saragossa, which alienated the minds of good citizens from his cause. On the other hand, neither the Duke of Gandia, who was very old, nor the Count of Luna seemed fit to succeed. The party of Ferdinand, therefore, gained ground by degrees. It was determined, however, to render a legal sentence. The Cortes of each nation agreed upon the nomination of nine persons, three Aragonese, three Catalans, and three Valencians, who were to discuss the pretensions of the several competitors, and by a plurality of six votes to adjudge the crown. Nothing could be more solemn, more peaceful, nor, in appearance, more equitable than the pro- ceedings of this tribunal. They summoned the claimants before them, and heard them by counsel. A month was passed in hearing arguments ; a second was allotted to con- sidering them ; and at the expiration of the prescribed time it was announced to the people, by the mouth of St. Vincent Ferrier, that Ferdinand of Castile had ascended the throne (a.d. 1412). In this decision it is impossible not to suspect that the judges were swayed rather by politic considerations than a strict sense of hereditary right. It was, therefore, by no means universally popular, especially in Catalonia, of which principality the Count of IJrgel was a native ; and perhaps the great rebellion of the Catalans fifty years afterwards may be traced to the disaffection which this breach, as they thought, of the lawful succession had excited. Ferdinand, however, was well received in Aragon. Ferdinand's suc- cessor was his son, Alfonso Y, (a.d. 1416), more distinguished in the history of Italy than of Spain. For all the latter years of his life he never quitted the kingdom that he had acquired 260 CONSTITUTION OF ARAGON. Chap. I\. by his arms ; and, enchanted by the delicious air of Naples, intrusted the government of his patrimonial territories to the care of a brother and an heir, John II., upon whom they de- volved by the death of Alfonso without legitimate progeny. § 19. It is consonant with the principle of this work to pass over the common details of history, in order to fix the reader's attention more fully on subjects of philosophical in- quiry. Perhaps in no European monarchy except our own was the form of government more interesting than in Ara- gon, as a fortunate temperament of law and justice with the royal authority. So far as any thing can be pronounced of its earlier period before the capture of Saragossa in 1118, it was a kind of regal aristocracy, where a small number of powerful barons elected their sovereign on every vacancy, though, as usual in other countries, out of one family ; and considered him as little more than the chief of their confed- eracy. These were the r icos ho inbres, or barons, the first or- der of the state. Among these the kings of Aragon, in sub- sequent times, as they extended their dominions, shared the conquered territory in grants of honors on a feudal tenure. For this system was fully established in the kingdom of Ara- gon. A ricohombre was obliged to hold of the king an hon- or or barony capable of supporting more than three knights ; and this he was bound to distribute among his vassals in military fiefs. Once in the year he might be summoned with his feudatories to serve the sovereign for two or three months; and he was to attend the royal court, or general assembly, as a counsellor, whenever called upon, assisting in its judicial as well as deliberative business. In the towns ind villages of his barony he might appoint bailiifs to ad- minister justice and receive penalties ; but the higher crim- inal jurisdiction seems to have been reserved to the crown. Below these superior nobles were the mesnadaries^ cor- responding to our mere tenants in chief, holding estates not baronial immediately from the crown ; and the military vas- sals of the high nobility, the knights and infanzones: a word which may be rendered by gentlemen. These had consider- able privileges in that aristocratic government; they were exempted from all taxes, they could only be tried by the royal judges for any crime ; and offenses committed against them were punished with additional severity. The ignoble classes were, as in other countries, the burgesses of towns, and the villeins or peasantry. The peasantry seem to have been subject to territorial servitude, as in France and En- gland. Spain. PRIVILEGES OF ARAGON. 261 § 20. Though from the twelfth century the principle of hereditary succession to the throne superseded, in Aragon as well as Castile, the original right of choosing a sovereign within the royal family, it was still founded upon one more sacred and fundamental, that of compact. No king of Ara- gon was entitled to assume that name until he had taken a coronation oath, adniinistered by the justiciary at Saragossa, to observe the laws and liberties of the realm. Blancas quotes a noble passage from the acts of Cortes in 1451. "We have always heard of old time, and it is found by experience, that, seeing the great barrenness of this land, and the poverty of the realm, if it were not for the liberties thereof, the folk would go hence to live and abide in other realms and lands more fruitful." This high spirit of freedom had long animated the Aragonese. After several contests with the crown, they compelled Peter III., in 1283, to grant a law, called the General Privilege, the Magna Charta of Ara- gon, and perhaps a more full and satisfactory basis of civil liberty than our own. It contains a series of provisions against arbitrary tallages, spoliations of property, secret proc- ess after the manner of the Inquisition in criminal charges, sentences of the justiciary without assent of the Cortes, a]> pointment of foreigners or Jews to judicial offices ; trials of accused persons in places beyond the kingdom, the use of tor- ture, except in charges of falsifying the coin, and the bribery of judges. These are claimed as the ancient liberties of their country. "Absolute power, it is declared, never was the constitution of Aragon, nor of Valencia, nor yet of Ribagor9a, nor shall there be in time to come any innovation made; but only the law, custom, and privilege which has been anciently used in the aforesaid kingdoms." The concessions extorted by our ancestors from John, Hen- ry III., and Edward I. were secured by the only guaranty those times could afford, the determination of the barons to enforce them by armed confederacies. These, however, were formed according to emergencies, and, except in the famous commission of twenty-five conservators of Magna Charta, in the last year of John, were certainly unwarranted by law. But the Aragonese established a positive right of maintain- ing their liberties by arms. This was contained in the Priv- ilege of Union granted by Alfonso III. in 1287, after a vio- lent conflict with his subjects ; but which Avas afterwards so completely abolished, and even eradicated from the records of the kingdom, that its precise words have never been re- ^iovered. It appears to have consisted of two articles: first, 262 OFFICE OF JUSTICIARY. Chap. IV. that, in the case of the king's proceeding forcibly against any member of the union without previous sentence of the jus- ticiary, the rest should be absolved from their allegiance ; secondly, that he should hold Cortes every year in Saragossa. During the two subsequent reigns of James II. and Alfonso IV., little pretense seems to have been given for the exer- cise of this right. But dissensions breaking out under Peter V. in 1347, rather on account of his attempt to settle the crown upon his daughter than of any specific public griev- ances, the nobles had recourse to the Union. They assem- bled at Saragossa, and used a remarkable seal for all their public instruments — an engraving from which may be seen in the historian Blancas. It represents the king sitting on his throne, with the confederates kneeling in a suppliant at- titude around, to denote their unwillingness to oft'end. But in the background tents and lines of spears are discovered, as a hint of their ability and resolution to defend themselves. The legend is " Sigillum Unionis Aragonum." This respect- ful demeanor towards a sovereign against whom they were waging war reminds us of the language held out by our Long Parliament before the Presbyterian party was over- thrown. These confederates were defeated by the king at Epila in 1348. But his prudence and the remaining strength of his opponents inducing him to pursue a moderate course, there ensued more legitimate and permanent balance of the constitution from this victory of the Royalists. The priv- ilege of Union was abrogated, Peter himself cutting to pieces with his sword the original instrument. But in return many excellent laws for the security of the subject were enacted ; and their preservation was intrusted to the greatest officer of the kingdom, the justiciary, whose authority and pre-emi- nence may in a great degree be dated from this period. That watchfulness over public liberty, which originally be- longed to the aristocracy of ricoshombres, always apt to thwart the crown or to oppress the people, and which was afterwards maintained by the dangerous Privilege of Union, became the duty of a civil magistrate accustomed to legal rules and responsible for his actions, whose office and func- tions are the most pleasing feature in the constitutional his- tory of Aragon. § 21. The functions of the Justiza ov Justiciar}/ of Aragon did not differ, in any essential respect, from those of the Chief-justice of England, divided, from the time of Edward I., among the judges of the King's Bench. But in the prac- tical exercise, indeed, of this power, there was an abundant Spain. JURISFIRMA AND MANIFESTATION. 2G3 difference. Our English judges, more timid and pliant, left to the remonstrances of Parliament that redress of griev- ances which very frequently lay within the sphere of their jurisdiction. There is, I believe, no recorded instance of a habeas corpus granted in any case of illegal imprisonment by the crown or its officers during the continuance of the Plantagenet dynasty. We shall speedily take notice of a very different conduct in Aragon. The office of justiciary, whatever conjectural antiquity Bome have assigned to it, is not to be traced beyond the capture of Saragossa in 1118, when the series of magistrates commences. But for a great length of time they do not ap- pear to have been particularly important ; the judicial au- thority residing in the council of ricoshombres, whose suffra- ges the justiciary collected, in order to pronounce their sen- tence rather than his own. Gradually, as notions of liberty became more definitCj and laws more numerous, the rever- ence paid to their permanent interpreter grew stronger, and there was fortunately a succession of prudent and just men in that high office, through whom it acquired dignity and stable influence. Still, it was not perhaps looked upon as fully equal to maintain public liberty against the crown, till in the Cortes of 1348, after the Privilege of Union was for- ever abolished, such laws were enacted, and such authority given to the justiciary, as proved eventually a more ade- quate barrier against oppression than any other country could boast. All the royal as well as territorial judges were bound to apply for his opinion in case of legal difficulties arising in their courts, which he was to certify within eight days. By subsequent statutes of the same reign, it was made penal for any one to obtain letters from the king impeding the execution of the justiza's process, and they were declared null. Inferior courts were forbidden to proceed in any busi- ness after his prohibition. Many other laws might be cited corroborating the authority of this great magistrate; but there are two parts of his remedial jurisdiction which deserve special notice. These are the processes o? Jurisjirma, or firma del derecho, and of Manifestation. The former bears some analogy to the writs oi pone and certiorari in England, through which the Court of King's Bench exercises its right of withdraw- ing a suit from the jurisdiction of inferior tribunals. But the Aragonese jurisjirma was of more extensive operation. Its object was not only to bring a cause commenced in an inferior court before the justiciary, but to prevent or inhibit 264 PROCESSES OF Chap. IV. any proceiss from issuing against tlie person who applied for its benefit, or any molestation from being offered to him; so that, as Blancas expresses it, when we have entered into a recognizance before the justiciary of Aragon to abide the decision of law, our fortunes shall be protected, by thp in- terposition of his prohibition, from the intolerable iniquity of the royal judges. The process termed manifestation af- forded as ample security for personal liberty as that of juris- firma did for property. "To manifest auy one is to wrest him from the hands of the royal officers, that he may not suffer any illegal violence ; not that he is at liberty by this process, because the merits of his case are still to be inquired into ; but because he is now detained publicly, instead of being, as it were, concealed, and the charge against him is investigated, not suddenly or with passion, but in calmness and according to law, therefore this is called manifestation." The power of this writ (if I may apply our term) was such, that it would rescue a man whose neck was in the halter. A particular prison was allotted to those detained for trial un- der this process. Several proofs that such admirable provisions did not re- main a dead letter in the law of Aragon appear in the two historians, Blancas and Zurita, whose noble attachment to liberties, of which they had either witnessed or might fore- tell the extinction, continually displays itself I can not help illustrating this subject by two remarkable instances. The heir-apparent of the kingdom of Aragon had a constitutional right to the lieutenancy or regency during the sovereign's absence from the realm. The title and office, indeed, were permanent, though the functions must of course have beeo superseded during the personal exercise of royal authority. But as neither Catalonia nor Valencia, which often demand- ed the king's presence, were considered as parts of the king- dom, there were pretty frequent occasions for this antici- pated reign of the eldest prince. Such a regulation was not likely to diminish the mutual and almost inevitable jealousies between kings and their heirs-apparent, which have so often disturbed the tranquillity of a court and a nation. Peter IV. removed his eldest son, afterwards John I., from the lieuten- ancy of the kingdom. The prince entered into a firma del derecho before the justiciary, Dominic de Cerda, who, pro- nouncing in his favor, enjoined the king to replace his son in the lieutenancy as the undoubted right of the eldest born. Peter obeyed, not only in fact, to which, as Blancas observes, the law compelled him, but with apparent cheerfulness. Spain. JURISFIRMA AND MANIFESTATION. 265 There are, indeed, no private persons who have so strong an interest in maintaining a free constitution and the civil lib- erties of their countrymen as the members of royal families, since none are so much exposed, in absolute governments, to the resentment and suspicion of a reigning monarch. John I., who had experienced the protection of law in his weakness, had afterwards occasion to find it interposed against his power. This king had sent some citizens of Saragossa to prison without form of law. They applied to Juan de Cerda, the justiciary, for a manifestation. He issued his writ accordingly ; nor, says Blancas, could he do other- wise without being subject to a heavy fine. The king, pre- tending that the justiciary was partial, named one of his own judges, the vice-chancellor, as coadjutor. This raised a constitutional question, whether, on suspicion of partiality, a coadjutor to the justiciary could be appointed. The king sent a private order to the justiciary not to proceed to sen- tence upon this interlocutory point until he should receive instructions in the council, to which he was directed to re- pair. But he instantly pronounced sentence in favor of his exclusive jurisdiction without a coadjutor. He then re- paired to the palace. Here the vice-chancellor, in a long harangue, enjoined him to suspend sentence till he had heard the decision of the council. Juan de Cerda answered that, the case being clear, he had already pronounced upon it. This produced some expressions of anger from the king, who began to enter into an argument on the mei^ts of the ques- tion. But the justiciary answered that, with all deference to his majesty, he was bound to defend his conduct before the Cortes, and not elsewhere. On a subsequent day the king, having drawn the justiciary to his country palace on pre- tense of hunting, renewed the conversation with the assist- ance of his ally, the vice-chancellor ; but no impression was made on the venerable magistrate, whom John at length, though much pressed by his advisers to violent courses, dis- missed with civility. The king was probably misled through- out this transaction, which I have thought fit to draw from obscurity, not only in order to illustrate the privilege of manifestation, but as exhibiting an instance of judicial firm- ness and integrity, to which, in the fourteenth century, no country perhaps in Europe could offer a parallel. Before the Cortes of 1348 it seems as if the justiciary might have been displaced at the king's pleasure. From that time he held his station for life. But lest these high powers, im- parted for the prevention of abuses, should themselves be 12 266 RIGHTS OF LEGISLATION, ETC. Chap. IV. abused, the justiciary was responsible, in case of an unjust sentence, to the extent of the injury inflicted; and was also subjected, by a statute of 1390, to a court of inquiry, com- posed of four persons chosen by the king out of eight named by the Cortes ; whose oflice appears to have been that of ex- amining and reporting to the four estates in Cortes, by whom he was ultimately to be acquitted or condemned. This su- perintendence of the Cortes, however, being thought dilatory and inconvenient, a court of seventeen persons was appoint- ed in 1461 to hear complaints against the justiciary. Some alterations were afterwards made in this tribunal.^ The justiciary was always a knight, chosen from the second or- der of nobility, the barons not being liable to personal pun- ishment. He administered the coronation oath to the king ; and in the Cortes of Aragon the justiciary acted as a sort of royal commissioner, opening or proroguing the assembly by the king's direction. § 22. No laws could be enacted or repealed, nor any tax imposed, without the consent of the estates duly assembled. It may easily be supposed that the Aragonese were not be- hind other nations in statutes to secure these privileges, which upon the whole appear to have been more respected than in any other monarchy. The General Privilege of 1283 formed a sort of groundwork for this legislation, like the Great Charter in England. By a clause in this law, Cortes were to be held every year at Saragossa. But under James 11. their time cff meeting was reduced to once in two years, and the place was left to the king's discretion. Nor were the Cortes of Aragon less vigilant than those of Castile in claiming a right to be consulted in all important delibera- tions of the executive power, or in remonstrating against abuses of government, or in superintending the proper ex- penditure of public money. Four estates, or, as they were called, arms (brazos), formed the Cortes of Aragon — the prelates and commanders of mili- tary orders, who passed for ecclesiastics ; and barons, or ri- coshombres ; the equestrian order, or infanzo^ies, and the deputies of royal towns. The two former had a right of appearing by proxy. There was no representation of the infanzones, or lower nobility. But it must be remembered « These rejjalations were very acceptable to the nation. In fact, the jnstiza of Aragon had possessed much more unlimited powers than ought to be intrusted to any single magistrate. The Court of King's Bench in England, besides its consist* Ing of five co-ordinate judges, is checked by the appellant jurisdictions of the Ex- chequer Chamber and House of Lords, and still more importantly by the right* of juries. Spain. VALENCIA AND CATALONIA. 267 that they were not numerous, nor was the kingdom large. Thirty-five are reckoned by Zurita as present in the Cortes of 1395, and thirty-three in those of 1412 ; and as upon both occasions an oath of fealty to a new monarch was to be taken, I presume that nearly all the nobility of the kingdom were present. The ricoshombres do not seem to have exceeded twelve or fourteen in number. The ecclesiastical estate was not much, if at all, more numerous. A few principal towns alone sent deputies to the Cortes; but their representation was very full ; eight or ten, and sometimes more, sat for Sar- agossa, and no town appears to have had less than four rep- resentatives. During the interval of the Cortes a permanent commission, varying a good deal as to numbers, but chosen out of the four estates, was empowered to sit with very con- siderable authority, receiving and managing the public rev- enue, and protecting the justiciary in his functions. § 23. The kingdom of Valencia, and principality of Cata- lonia, having been annexed to Aragon, the one by conquest, the other by marriage, were always kept distinct from it in their laws and government. Each had its Cortes, composed of three estates, for the divisiorl of the nobility into two or- ders did not exist in either country. The Catalans were tenacious of their ancient usages, and averse to incorporation with any other people of Spain. Their national character was high-spirited and independent ; in no part of the penin- sula did the territorial aristocracy retain, or at least pretend to, such extensive privileges, and the citizens were justly proud of wealth acquired by industry, and of renown achieved by valor. At the accession of Ferdinand I., which they had not much desired, the Catalans obliged him to swear three times successively to maintain their liberties before they would take the reciprocal oath of allegiance. For Valencia it seems to have been a politic design of James the Con- queror to establish a constitution nearly analogous to that of Aragon, but with such limitations as he should impose, taking care that the nobles of the two kingdoms should not acquire strength by union. These three states, Aragon, Va^ lencia, and Catalonia, were perpetually united by a law of Alfonso III. ; and every king, on his accession, was bound to swear that he would never separate them. Sometimes gen- eral Cortes of the kingdoms and principality were convened ; but the members did not, even in this case, sit together, and were no otherwise united than as they met in the same city. § 24. By the marriage of Ferdinand with Isabella, and by the death of John II. in 1479, the two ancient and rival king- 268 UNION OF CASTILE AND ARAGON. Chap. IV. donis of Castile and Aragon were forever consolidated in the monarchy of Spain. There had been some difficulty in ad- justing the respective rights of the husband and wife over Castile. In the Middle Ages it was customary for the more powerful sex to exercise all the rights which it derived from the weaker, as much in sovereignties as in private possessions. But the Castilians were determined to maintain the positive and distinct prerogatives of their queen, to which they at- tached the independence of their nation. A compromise, therefore, was concluded, by which, though, according to our notions, Ferdinand obtained more than a due share, he might consider himself as more strictly limited than his father had been in Navarre. The names of both were to appear jointly in their style and upon the coin, the king's taking the prece- dence in respect of his sex. But in the royal scutcheon the arms of Castile were preferred on account of the kingdom's dignity. Isabella had the appointment to all civil offices in Castile ; the nomination to spiritual benefices ran in the name of both. The government was to be conducted by the two conjointly when they were together, or by either singly in the province where one or other might happen to reside. This partition was well preserved throughout the life of Isa- bel without mutual encroachments or jealousies. So rare an unanimity between persons thus circumstanced must be at- tributed to the superior qualities of that princess, who, Avhile she maintained a constant good understanding with a very ambitious husband, never relaxed in the exercise of her pa- ternal authority over the kingdoms of her ancestors. § 25. Ferdinand and Isabella had no sooner quenched the flames of civil discord in Castile than they determined to give an unequivocal proof to Europe of the vigor which the Spanish monarchy was to display under their government. For many years an armistice with the Moors of Granada had been uninterrupted. Neither John 11. nor Henry IV. had been at leisure to think of aggressive hostilities; and the Moors themselves — a prey, like their Christian enemies, to civil war and the feuds of their royal family — were content with the unmolested enjoyment of the finest province in the peninsula. If we may trust historians, the sovereigns of Granada were generally usurpers and tyrants. But I know not how to account for that vast populousness, that grandeur and magnificence, which distinguished the Mohammedan kingdom of Spain, without ascribing some measure of wis- dom and beneficence to their governments. These southern provinces have dwindled in later times ; and in fact Spain Itself is chiefly interesting; to many travellers for the monu- Spain. CONQUEST OF GRANADA. 269 merits which a foreign and odious race of conquerors have left behind them. Granada was, however, disturbed by a series of revolutions about tlie time of Ferdinand's accession, which naturally encouraged his designs. The Moors, con- trary to what might have been expected from their relative strength, were the aggressors by attacking a town in Anda- lusia. Predatory inroads of this nature had hitherto been only retaliated by the Christians. But Ferdinand was con- scious that his resources extended to the conquest of Gra- nada, the consummation of a struggle protracted through nearly eight centuries. Even in the last stage of the Moor- ish dominion, exposed on every side to invasion, enfeebled by a civil dissension that led one party to abet the common en- emy, Granada was not subdued without ten years of san- guinary and unremitting contest. Fertile beyond all the rest of Spain, that kingdom contained seventy walled towns; and the capital is said, almost two centuries before, to have been peopled by 200,000 inhabitants. Its resistance to such a force as that of Ferdinand is perhaps the best justification of the apparent negligence of earlier monarchs. But Gra- nada was ultimately to undergo the yoke. The city sur- rendered on the 2d of January, 1492 — an event glorious not only to Spain but to Christendom — and which, in the politic- al combat of the two religions, seemed almost to counterbal- ance the loss of Constantinople. It raised the name of Fer- dinand and of the new monarchy which he governed to high estimation throughout Europe. Spain appeared an equal competitor with France in the lists of ambition. These great kingdoms had for some time felt the jealousy natural to em- ulous neighbors. The house of Aragon loudly complained of the treacherous policy of Louis XL He had fomented the troubles of Castile, and given, not indeed an effectual aid, but all promises of support, to the Princess Joanna, the competi- tor of Isabel. Rousillon, a province belonging to Aragon, had been pledged to France by John IT. for a sum of money. It would be tedious to relate the subsequent events, or to discuss their respective claims to its possession. At the ac- cession of Ferdinand, Louis XL still held Roussillon, and showed little intention to resign it. But Charles VIIL, eager to smooth every impediment to his Italian expedition, restored the province to Ferdinand in 1493. Whether, by such a sacrifice, he was able to lull the King of Aragon into acquiescence, while he dethroned his relation at Naples, and alarmed for a moment all Italy with the apprehension of French dominion, it is not within the limits of the present work to inauire. 270 SEPARATION FROM FRANCE. Chap. V. CHAPTER V. HISTORY OF GERMANY TO THE DIET OF WORMS IN 1495. § 1. Sketch of German History. § 2. The Emperors of the Honse of Saxony. § 3. House of Francouia. § 4. Lothaire XL, the Saxou. § 5. House of Snabia. Fred- erick Barbarossa. Fall of Henry the Lion. Frederick 11. Extinction of House of Suabla. § 6. Changes in the Germanic Constitution. Electors. Territorial Sovereignty of the Princes. § 7. Rodolph of Hapsburg. § S. State of the Empire after his Time. Causes of Decline of Imperial Power. § 9. Honse of Luxem- burg. Charles IV. § 10. House of Austria. Frederick III. § 11. Imperial Cities. § 12. Provincial States. § 13. Imperial Domain. 5 14. Maximilian. Diet of Worms. Abolition of private Wars. § 15. Imperial Chamber. § 16. Aulic Coun. oil. § IT. Limits of the Empire. § 18. Bohemia. § 19, Hungary. § 20. Switzer- land. LIST OF EMPERORS DURING THE MIDDLE AGES. Philip, Otho IV. (rivals). Otho IV. Frederick II. Conrad IV., William (rivals). Interregnum. Richard (Earl of Cornwall), Alfonso (king of Castile) rivals). Rodolph I. (of Hapsburg) Adolphus (of Nassau). Albert I. Henry VII. (of Luxemburg). Louis IV. (of Bavaria). (Frederick of Austria, rival). Charles IV. (Giinther of Schwartzburg, rival). Wenceslaus Rupert. Sigismund. (Jobst of Moravia, rival). Albert II. Frederick III. Maximilian I. Charles V. § 1. After the deposition of Charles the Fat, which final- ly severed the connection between France and Germany, Arnulf,an illegitimate descendant of Charlemagne, obtained the throne of the latter country, in which he was succeeded Year of Accession Year of Accession A.D. A.D. 800 Chades I. (the Great). 1198 Charlemagne. 1208 814 Louis I. (tiie Pious). 1212 840 Lothaire I. 1250 855 Louis II. 1254 875 Charies II. (the Bald). , Charles lU. (the Fat). J 1257 881 896 Araulf. 899 Louis (the Child). 1272 901 Louis III. (of Provence). 1292 911 (?) Conrad L 1298 915 Berengar. 1308 918 Heniy I. (the Fowler). 1314 936 Otho I. (the Great). 973 Otho II. 1347 983 Otho III. 1002 Henry II. (the Saint). 1024 Conrad II. (the Salic). 1378 1039 Henry III. 1400 1056 Henrv IV. 1410 1106 Henry V. 1125 Lothaire II. (the Saxon). 1438 1138 Conrad III. 1440 1152 Frederick I. (Barbarossa). 1493 1190 Henry VI. 1519 Germany. HOUSE OF SAXONY. *271 by his son Louis. But upon the death of this prince in 911, the German branch of that dynasty became extinct. There remained, indeed, Charles the Simple, acknowledged as king in some parts of France, but rejected in others, and possess- ing no personal claims to respect. The Germans, therefore, wisely determined to choose a sovereign from among them- selves. They were at this time divided into five nations, each under its own duke, and distinguished by difference of laws, as well as of origin'; (1) the I^ranks, whose territory, comprising Franconia and the modern Palatinate, was con- sidered as the cradle of the empire, and who seemed to have arrogated some superiority over the rest, (2) the Siiabians, (3) the JJavarians, (4) the Saxons, under which name the in- habitants of Lower Saxony alone and Westphalia were in- cluded, and (5) the Lorrainers, who occupied the left bank of the Rhine as far as its termination. The choice of these nations in their general assembly fell upon Conrad, duke of Franconia, according to some writers, or at least a man of hio-h rank, and descended throu«fh females from Charle- vnagne (a.d. 911). § 2. House of Saxony. — Conrad dying without male is- sue, the crown of Germany was bestowed upon Henry the Fowler, duke of Saxony, ancestor of the three Othos, who fol- lowed him in direct succession. To Henry, and to the first Otho, Germany was more indebted than to any sovereign since Charlemagne. The conquest of Italy, and recovery of the imperial title, are indeed the most brilliant trophies of Otho the Great; but he conferred far more unequivocal bene- fits upon his own country by completing what his father had begun, her liberation from the inroads of the Hungarians. Two marches, that of Misnia, erected by Henry the Fowler, and that of Austria, by Otho, were added to the Germanic territories by their victories. A lineal succession of four descents without the least op- position seems to show that the Germans were disposed to consider their monarchy as fixed in the Saxon family. Otho H. and HL had been chosen each in his father's lifetime, and during legal infancy. The formality of election subsisted at that time in every European kingdom, and the imperfect rights of birth required a ratification by public assent. If at least France and England were hereditary monarchies in the tenth century, the same may surely be said of Germany ; since we find the lineal succession fully as well observed in the last as in the former. But upon the early and unexpect- ed decease of Otho HI., a momentary opposition was of- 272 HOUSE OF FRANCONIA. Chap. V. fered to Henry, duke of Bavaria, a collateral branch of the reigning family (a.d. 1002). He obtained the crown, how- ever, by what contemporary historians call an hereditary title, and it was not until his death, in 1024, that the house of Saxony was deemed to be extinguished. § 3. House of Franconia. — No person had now any pre- tentions that could interfere with the unbiased suffrages of the nation; and accordingly a general assembly was deter- mined by merit to elect Conrad, surnamed the Salic, a no- bleman of Franconia (a.d. 1024). From this prince sprang three successive emperors, Henry III., IV., and V. Perhaps the imperial prerogatives over that insubordinate confeder- acy never reached so high a point as in the reign of Henry III., the second emperor of the house of Franconia. It had been, as was natural, the object of all his predecessors, not only to render their throne hereditary, which, in effect, the nation was willing to concede, but to surround it with au- thority sufficient to control the leading vassals. These were the dukes of the four nations of Germany, Saxony, Bavaria, Suabia, and Franconia, and the three archbisliops of the Rhenish cities, Mentz, Treves, and Cologne. Originally, as has been more fully shown in another place, duchies, like counties, were temporary governments bestowed at the pleasure of the crown. From this first stage they advanced to hereditary offices, and finally to patrimonial fiefs. But their progress was mucli slower in Germany than in France. Under the Saxon line of emperors, it appears probable that, although it was usual, and consonant to the prevailing no- tions of equity, to confer a duchy upon the nearest heir, yet no positive rule enforced this upon the emperor, and some instances of a contrary proceeding occurred. Henry III. put an end altogether to the form of popular concurrence, which had been usual when the investiture of a duchy was conferred; and even deposed dukes by the sentence of a few princes, without the consent of the Diet. If we combine with these proofs of authority in the domestic administration of Henry HI. his almost unlimited control over papal elec- tions, or rather the right of nomination that he acquired, we must consider him as the most absolute monarch in the an- nals of Germany. These ambitious measures of Henry HI. prepared fifty years of calamity for his son. It is easy to perceive that the misfortunes of Henry IV. were primarily occasioned by the jealousy with which repeated violations of their constitu- tional usages had inspired the nobility. The mere circum- Germany. HOUSE OF FRANCONIA. 273 Stance of Henry IV.'s minority, under the guardianship of a woman, was enough to dissipate whatever power his father had acquired. Through the neglect of his education, Henry grew up with a character not well fitted to retrieve the mis- chief of so unprotected a minority ; brave indeed, well-na- tured, and affable, but dissolute beyond measure, and addict- ed to low and debauched company. He was soon involved in a desperate war with the Saxons, a nation valuing itself on its populousness and riches, jealous of the house of Fran- conia, who wore a crown that had belonged to their own dukes, and indignant at Henry's conduct in erecting fortress- es throughout their country. In the middle of this contest another far more memorable broke out with the Roman See, concerning eclesiastical in- vestitures (a.d. 1077). The motives of this famous quarrel will be explained in a difierent chapter of the present work. Its effect in Germany was ruinous to Henry. A sentence, not only of excommunication, but of deposition, which Greg- ory VII. pronounced against him, gave a pretense to all his enemies, secret as well as avowed, to withdraw their alle- giance. At the head of these was Rodolph, duke of Suabia, whom an assembly of revolted princes raised to the throne. We may perceive, in the conditions of Rodolph's election, a symptom of the real principle that animated the German aristocracy against Henry IV. It was agreed that the king- dom should no longer be hereditary, not conferred on the son of a reigning monarch, unless liis merit should challenge the popular approbation. The pope strongly encouraged this plan of rendering the empire elective, by which he hoped either eventually to secure the nomination of its chief for the Holy See, or at least, by sowing the seed of civil dissensions in Germany, to render Italy more independent. Henry IV., however, displayed greater abilities in his adversity than his early conduct had promised. In the last of several decisive battles, Rodolph, though victorious, was mortally wounded ; and no one cared to take up a gauntlet which was to be won with so much trouble and uncertainty (a.d. 1080). The Ger- mans were sufficiently disposed to submit; but Rome per- severed in her unrelenting hatred. At the close of Henry's long reign she excited against him his eldest son, and, after more than thirty years of hostility, had the satisfaction of wearing him down with misfortune, and casting out his body, as excommunicated, from its sepulchre. § 4. In the reign of his son Henry V. there is no event worthy of much attention, except the termination of the 12* 274 HOUSE OF SUABIA. Chap. V. great contest about investitures. At his death, in 1125, the male line of the Franconian emperors was at an end. Fred- erick, duke of Suabia, grandson by his mother of Henry IV., had inherited their patrimonial estates, and seemed to rep- resent their dynasty. But both the last emperors had so many enemies, and a disposition to render the crown elective prevailed so strongly among the leading princes, that Lo- thaire, duke of Saxony, was elevated to the throne. Lothaire, who had been engaged in a revolt against Henry V., and the chief of a nation that bore an inveterate hatred to the house of Franconia, was the natural enemy of the new family that derived its importance and pretensions from that stock. It was the object of his reign, accordingly, to oppress the two brothers, Frederick and Conrad, of the Hohenstaufen or Suabian family. But this means he expected to secure the succession of the empire for his son-in-law, Henry, surnamed the Proud, who was descended from a distinguished family, the Welfs of Altorf, in Suabia. From this family he inherited the duchy of Bavaria. The wife of Lothaire transmitted to her daughter the patrimony of Henry the Fowler, consisting of Hanover and Brunswick. Besides this great dowry, Lo- thaire bestowed upon his son-in-law the duchy of Saxony in addition to that of Bavaria. § 5. House of Suabia, or Hohenstaufen.' — This amaz- ing preponderance, however, tended to alienate the princes of Germany from Lothaire's views in favor of Henry. On the death of Lothaire, in 1138, the partisans of the house of Suabia made a hasty and irregular election of Conrad, in which the Saxon faction found itself obliged to acquiesce. The new emperor availed himself of the jealousy which Henry the Proud's aggrandizement had excited. Lender pretense that two duchies could not legally be held by the same per- son, Henry was summoned to resign one of them ; and on his refusal, the Diet pronounced that he had incurred a for- feiture of both. Henry made but little resistance, and be- fore his death, which happened soon afterwards, saw himself stripped of all his hereditary as well as acquired possessions. Upon this occasion the famous names of Guelf and Ghibelin were first heard, which were destined to keep alive the flame of civil dissension in far distant countries, and after their meaning had been forgotten. The Guelfs, or Welfs, were, as I have said, the ancestors of Henry, and the name has become a sort of patronymic in his family. The word Ghibelin is • Hohenstaufen is a castle in what is now the kingdom of Wurtemberg, about foui miles from the Goppingeu station of the railway from Stuttgart to Ulm. Germany. HOUSE OF SUABIA. 275 derived fVora Wibelung, a town in Franconia, whence the emperors of that line are said to have sprung. The house of Suabia was considered in Germany as representing that of Franconia; as the Guelfs may, without much impropriety, be deemed to represent the Saxon line. Though Conrad III. left a son, the choice of the electors fell, at his own request, upon his nephew, Frederick Barba- rossa. The most conspicuous events of this great emperor's life belong to the history of Italy. At home he was feared and respected; the imperial prerogatives stood as high dur- ing his reign as, after their previous decline, it was possible for a single man to carry them. But the only circumstance which appears memorable enough for the present sketch is the second fall of the Guelfs. Henry the Lion, son of Henry the Proud, had been restored by Conrad HI. to his father's duchy of Saxony, resigning his claim to that of Bavaria, which had been conferred on the margrave of Austria. This renunciation, which indeed was only made in his name dur- ing childhood, did not prevent him from urging the Emperor Frederick to restore the whole of his birthright ; and Fred- erick, his first-cousin, whose life he had saved in a sedition at Rome, was induced to comply with this request in 1156. Far from evincing that political jealousy which some writers impute to him, the emperor seems to have carried his gener- osity beyond the limits of prudence. For many years their union was apparently cordial. But, whether it was that Henry took umbrage at part of Frederick's conduct, or that mere ambition rendered him ungrateful, he certainly aban- doned his sovereign in a moment of distress, refusing to give any assistance in that expedition into Lombardy which ended in the unsuccessful battle of Legnano. Frederick could not forgive this injury, and, taking advantage of complaints which Henry's power and haughtiness had produced, sum- moned him to answer charges in a general Diet. The duke refused to appear, and, being adjudged contumacious, a sen- tence of confiscation, similar to that which ruined his father, fell upon his head ; and the vast imperial fiefs that he pos- sessed were shared among some potent enemies. He made an ineffectual resistance : like his father, he appears to have owed more to fortune than to nature ; and after three years' exile, was obliged to remain content with the restoration of his allodial estates in Saxony. These, fifty years afterwards, were converted into imperial fiefs, and became the two duchies of the house of Brunswick, the lineal representatives of Henry the Lion, and inheritors of the name of Guelf. 276 FREDERICK II. Chap. V. Notwithstanding the prevailing spirit of the German oli- garchy, Frederick Barbarossa had found no difficulty in pro- curing the election of his son Henry, even during infancy, as his successor. The fall of Henry the Lion had greatly weakened the ducal authority in Saxony and Bavaria ; the princes who acquired that title, especially in the former country, finding that the secular and spiritual nobility of the first class had taken the opportunity to raise themselves into an immediate dependence upon the empire. Henry VI. came, therefore, to the crown (a.d. 1190) with considerable advan- tages in respect of prerogative ; and these inspired him with the bold scheme of declaring the empire hereditary. One is more surprised to find that he had no contemptible pros- pect of success in this attempt : fifty-two princes, and even what appears hardly credible, the See of Rome, under Clem- ent HI., having been induced to concur in it. But the Saxons made so vigorous an opposition that Henry did not think it advisable to persevere. He procured, however, the election of his son Frederick, an infant only two years old. But, the emperor dying almost immediately, a powerful body of princes, supported by Pope Innocent III., were desirous to withdraw their consent. Philip, duke of Suabia, the late king's brother, unable to secure his nephew's succession, brought about his own election by one party, while another chose Otho of Brunswick, younger son of Henry the Lion (a.d. 1198). This double election renewed the rivalry be- tween Guelfs and Ghibelins, and threw Germany into con- fusion for several years. Philip, whose pretensions appear to be the more legitimate of the two, gained ground upon his adversarj^, nothwithstanding the opposition of the pope, till he was assassinated in consequence of a private resent- ment. Otho IV. reaped the benefit of a crime in which he did not participate (a.d. 1208), and became for some years undisputed sovereign. But, having ofiended the pope by not entirely abandoning his imperial rights over Italy, he had, in the latter part of his reign, to contend against Fred- erick, son of Henry VI., who, having grown up to manhood, came into Germany as heir of the house of Suabia, and, what was not very usual in his own history, or that of his family, the favored candidate of the Holy See. Otho IV. had been al- most entirely deserted except by his natural subjects, when his death, in 1218, removed every difficulty, and left Frede- rick II. in the peaceable possession of Germany. The eventful life of Frederick 11. was chiefly passed in Italy. To preserve his hereditary dominions, and chastise Germany. THE INTERREGNUM. 277 the Lombard cities, were the leading objects of his political . and military career. He paid, therefore, but little attention to Germany, from which it was in vain for any emperor to expect effectual assistance towards objects of his own. Care- less of prerogatives which it seemed hardly worth an effort to preserve, he sanctioned the independence of the princes, which may be properly dated from his reign. In return, they readily elected his son Henry king of the Romans ; and on his being implicated in a rebelHon, deposed him with equal readiness, and substituted his brother Conrad at the em- peror's request. But in the latter part of Frederick's reign the deadly hatred of Rome penetrated beyond the Alps. After his solemn deposition in the council of Lyons, he was incapable, in ecclesiastical eyes, of holding the imperial scep- tre. William, count of Holland, was chosen by the party adverse to Frederick and his son Conrad ; and after the em- peror's death he had some success against the latter. It is hard, indeed, to say that any one was actually sovereign for twenty-two years that followed the death of Frederick II. ; a period of contested title and universal anarchy, which is usually denominated the grand interregnum (a.d. 1250- 1272). On the decease of William of Holland, in 1257, a schism among the electors produced the double choice of Richard, earl of Cornwall, and Alfonso X., king of Castile. It seems not easy to determine which of these candidates had a legal majority of votes ; but the subsequent recogni- tion of almost all Germany, and a sort of possession evi- denced by public acts, which have been held valid, as well as the general consent of contemporaries, may justify us in adding Richard to the imperial list. The choice, indeed, was ridiculous, as he possessed no talents which could compen- sate for his want of power ; but the electors attained their objects — to perpetuate a state of confusion by which their own independence was consolidated, and to plunder without scruple a man like Didius at Rome, rich and foolish enough to purchase the first place upon earth. § 6. That place, indeed, was now become a mockery of greatness. For more than two centuries, notwithstanding the temporary influence of Frederick Barbarossa and his son, the imperial authority had been in a state of gradual decay. From the time of Frederick II. it had bordered upon abso- lute insignificance; and the more prudent German princes were slow to canvass for a dignity so little accompanied by respect. The changes wrought in the Germanic constitution during the period of the Suabian emperors chiefly consist in 278 GERMANIC CONSTITUTION. Chap. V. the establishment of an oligarchy of electors, and of the ter- ritorial sovereignty of the princes. (1.) At the extinction of the Franconian line by the death of Henry Y. it was determined by the German nobility to make their empire practically elective, admitting no right, or even natural pretension, in the eldest son of a reigning sovereign. Their choice upon former occasions had been made by free and general suffrage. But it may be pre- sumed that each nation voted unanimously, and according to the disposition of its duke. It is probable, too, that the leaders, after discussing in previous deliberations the merits of the several candidates, submitted their own resolutions to the assembly, which would generally concur in them with- out hesitation. At the election of Lothair, in 1124, we find an evident instance of this previous choice, or, as it was called, prcBtaxation^ from which the electoral college of Ger- many has been derived. In the course of the twelfth cen- tury the other princes lost all voice in the election of the emperor, and the right of prcetoica^^o;i was confined to Seven Electors. But it is not easy to account for all the circum- stances that gave to seven spiritual and temporal princes this distinguished pre-eminence. The three archbishops, Mentz, Treves, and Cologne, were always, indeed, at the head of the German Church. But the secular electors should nat- urally have been the dukes of four nations — Saxony, Fran- conia, Suabia, and Bavaria. We find, however, only the first of these in the undisputed exercise of a vote. It seems probable that, when the electoral princes came to be distin- guished from the rest, their privilege was considered as pe- culiarly connected with the discharge of one of the great offices in the imperial court. These were attached, as early as the Diet of Mentz in 1184, to the four electors, who after- wards possessed them ; the Duke of Saxony having then of- ficiated as arch-marshal, the Count Palatine of the Rhine as arch-steward, the King of Bohemia as arch-cupbearer, and the Margrave of Brandenburg as arch-chamberlain of the empire.'* But it still continues a problem why the three latter offices, with the electoral capacity as their incident, ' The names and oflSces of the seven are concisely given in these lines, which ap- pear in the treatise of Marsilius Patavinus, De Imperio Jioviatw : "Moguntinensis, Trevirensis, Coloniensis, Quiiibet Imperii sit Cancellarius horum ; Et Palatinus dapifer, Dux portitor eusis, Marchio praepositus camerse, pincerua Bohemus, Hi statuunt dominura cunctis per ssecula snmmnra." Bryce's " Holy Roman Empire," p. 252. Germany. GERMANIC CONSTITUTION. 279 should not rather have been granted to the dukes of Fran- conia, Suabia, and Bavaria. The final extinction of two great original duchies, Franconia and Suabia, in the thir- teenth century, left the electoral rights of the count palatine and the margrave of Brandenburg beyond dispute. But the dukes of Bavaria continued to claim a vote in opposition to the kings of Bohemia. At the election of Rodolph, in 1272, the two brothers of the house of Wittelsbach voted sepa- rately, as count palatine and duke of Lower Bavaria. Otto- car was excluded upon this occasion; and it was not till 1290 that the suffrage of Bohemia was fully recognized. The Palatine and Bavarian branches, however, continued to enjoy their family vote conjointly, by a determination of Rodolph ; upon which Louis of Bavaria slightly innovated, by rendering the suffrage alternate. But the Golden Bull of Charles lY. (a.d. 1356) put an end to all doubts on the rights of electoral houses, and absolutely excluded Bavaria from voting. This Bull, which became the corner-stone of the German constitution, finally ascertained the prerogatives of the electoral college. The number was absolutely re- strained to seven. The place of legal imperial elections was fixed at Frankfort ; of coronations, at Aix-la-Chapelle ; and the latter ceremony was to be performed by the archbishop of Cologne. These regulations, though consonant to ancient usage, had not always been observed, and their neglect had sometimes excited questions as to the validity of elections. The dignity of elector was enhanced by the Golden Bull as highly as an imperial edict could carry it ; they were de- clared equal to kings, and conspiracy against their persons incurred the penalty of high treason. (2.) It might appear natural to expect that an oligarchy of seven persons, who had thus excluded their equals from all share in the election of a sovereign, would assume still greater authority, and trespass further upon the less pow- erful vassals of the empire. But while the electors were establishing their peculiar privilege, the class immediately inferior raised itself by important acquisitions of power. The German dukes, even after they became hereditary, did not succeed in compelling the chief nobility within their limits to hold their lands in fief so completely as the peers of France had done. The nobles of Suabia refused to follow their duke into the field against the Emperor Conrad IL Of this aristocracy,- the superior class were denominated prin- ces ; an appellation which, after the eleventh century, dis- tinguished them from the untitled nobility, most of whom 280 RODOLPll OF HAPSBURG. Chap. V. were their vassals. They were constituent parts of all Diets; and though gradually deprived of their original par- ticipation in electing an emperor, possessed, in all other re- spects, the same rights as the dukes or electors. Some of them were fully equal to the electors in birth as well as ex- tent of dominions ; such as the princely houses of Austria, Hesse, Brunswick, and Misnia. By the division of Henry the Lion's vast territories, and by the absolute extinction of the Suabian family in the following century, a great many princes acquired additional weight. Of the ancient duchies, only Saxony and Bavaria remained ; the former of which especially was so dismembered, that it was vain to attempt any renewal of the ducal jurisdiction. That of the emper- or, formerly exercised by the counts palatine, went almost equally into disuse during the contest between Philip and Otho IV. The princes accordingly had acted with sover- eign independence within their own fiefs before the reign of Frederick II. ; but the legal recognition of their immunities was reserved for two edicts of that emperor; one, in 1220, relating to ecclesiastical, and the other, in 1232, to secular princes. By these he engaged neither to levy the custom- ary imperial dues, nor to permit the jurisdiction of the pala- tine judges, within the limits of a state of the empire; con- cessions that amounted to little less than an abdication of his own sovereignty. From this epoch the territorial inde- pendence of the states may be dated. A class of titled nobility, inferior to the princes, were the counts of the empire, who seem to have been separated from the former in the twelfth century, and to have lost at the same time their right of voting in the Diets.^ In some parts of Germany, chiefly in Franconia and upon the Rhine, there always existed a very numerous body of lower nobility; un- titled at least till modern times, but subject to no superior except the emperor. These are supposed to have become immediate, after the destruction of the house of Suabia, with- in whose duchies they had been comprehended. § 7. A short interval elapsed after the death of Richard of Cornwall before the electors could be induced, by the deplor- able state of confusion into which Germany had fallen, to fill the imperial throne. Their choice was, however, the best that could have been made. It fell upon Rodolph, count of Hapsburg, a prince of very ancient family, and of considera- 3 III the instrnments relating to the election of Otho IV, the princes sign their names, Ego N. elegi et subscripsi. But the covints only as follows: Ego N. consenei et aubscripsi. Germany. THE EMPIRE AFTER RODOLril. 281 ble possessions as well in Switzerland as upon each bank of the Upper Rhine, but not sufficiently powerfnl to alarm the electoral oligarchy (a.d. 1272). Rodolph was brave, active, and just ; but his characteristic quality appears to have been good sense, and judgment of the circumstances in which he was placed. Of this he gave a signal proof in relinquishing the favorite project of so many preceding emperors, and leaving Italy altogether to itself At home he manifested a vigilant spirit in administering justice, and is said to have destroyed seventy strongholds of noble robbers in Thuringia and other parts, bringing many of the criminals to capital punishment. But he wisely avoided giving oifense to the more powerful princes; and during his reign there were hardly any rebellions in Germany. It was a very reasonable object of every emperor to ag- grandize his family by investing his near kindred with va- cant fiefs; but no one was so fortunate in his opportunities as Rodolph. At his accession, Austria, Styria, and Carniola were in the hands of Ottocar, king of Bohemia. These ex- tensive and fertile countries had been formed into a march, or margraviate, after the victories of Otho the Great over the Hungarians. Frederick Barbarossa erected them into a duchy, with many distinguished privileges, especially that of female succession, hitherto unknown in the feudal princi- palities of Germany. Upon the extinction of the house of Bamberg, which had enjoyed this duchy, it was granted by Frederick II. to a cousin of his own name ; after whose death a disputed succession gave rise to several changes, and ulti- mately enabled Ottocar to gain possession of the country. Against this King of Bohemia Rodolph waged two success- ful wars, and recovered the Austrian provinces, which, as va- cant fiefs, he conferred, with the consent of the Diet, upon his son Albert. § 8. Notwithstanding the merit and popularity of Ro- dolph, the electors refused to choose his son king of the Ro- mans in his lifetime ; and, after his death, determined to avoid the appearance of hereditary succession, put Adolphus of Nassau upon the throne (a.d. 1292). There is very little to attract notice in the domestic history of the empire dur- ing the next two centuries. From Adolphus to Sigismund every emperor had either to struggle against a competitor claiming the majority of votes at his election, or against a combination of the electors to dethrone him. The imperial authority became more and more ineffective ; yet it was fre- quently made a subject of reproach against the emperors 282 CUSTOM OF PARTITION. Chap. V. that they did not maintain a sovereignty to which no one was disposed to submit. It may appear surprising that the Germanic confederacy under the nominal supremacy of an emperor should have been preserved in circumstances apparently so calculated to dissolve it. But, besides the natural effect of prejudice and a famous name, there were sufficient reasons to induce the eiectors to preserve a form of government in which they ■bore so decided a sway. Accident had in a considerable de- gree restricted the electoral suffrages to seven princes. Without the college there were houses more substantially powerful than any within it. The duchy of Saxony had been subdivided by repeated partitions among children, till the electoral right was vested in a prince who possessed only the small territory of Wittenberg. The great families of Austria, Bavaria, and Luxemburg, though not electoral, were the real heads of the German body ; and though the two former lost much of their influence for a time through the pernicious custom of partition, the empire seldom looked for its head to any other house than one of these three. While the duchies and counties of Germany retained their original character of offices or governments, they were of course, even though considered as hereditary, not subject to partition among children. When they acquired the natuie of fiefs, it was still consonant to the principles of a feudal tenure that the eldest son should inherit according to the law of primogeniture ; an inferior provision or appanage, at most, being reserved for the younger children. The law of England favored the eldest exclusively; that of France gave him great advantages. But in Germany a different rule be- gan to prevail about the thirteenth century. An equal par- tition of the inheritance, without the least regard to priority of birth, was the general law of its principalities. Some- times this was effected by undivided possession, or tenancy in common, the brothers residing together, and reigning jointly. This tended to preserve the integrity of dominion ; but as it was frequently incommodious, a more usual prac- tice was to divide the territory. From such partitions are derived those numerous independent principalities of the same house, many of which still subsist in Germany. In 1589 there were eight reigning princes of the Palatine fami- ly; and fourteen, in 1675, of that of Saxony. Originally these partitions were in general absolute and without reversion ; out, as their effect in weakening families became evident, a practice was introduced of making compacts of reciprocal Gkkmany. house of LUXEMBURG. 283 succession, by which a fief was prevented from escheating to the empire, until all the male posterity of the first feuda- tory should be extinct. Thus, while the German empire sur- vived, all the princes of Hesse or of Saxony had reciprocal contingencies of succession, or what our lawyers call cross- remainders, to each other's dominions. A different system was gradually adopted. By the Golden Bull of Charles IV. the electoral territory, that is, the particular district to which the electoral suffrage was inseparably attached, became inca- pable of partition, and was to descend to the eldest son. In the fifteenth century the present house of Brandenburg set the first example of establishing primogeniture by law ; the prin- cipalities of Anspach and Bayreuth were dismembered from it for the benefit of younger branches ; but it was declared that all the other dominions of the family should for the fu- ture belong exclusively to the reigning elector. This politic measure was adopted in several other families ; but, even in the sixteenth century, the prejudice was not removed, and some German princes denounced curses on their posterity if they should introduce the impious custom of primogeniture. I^^otwithstanding these subdivisions, and the most remarka- ble of those which I have mentioned are of a date rather sub- sequent to the Middle Ages, the antagonist principle of con- solidation by various means of acquisition was so actively at work that several princely houses, especially those of Ho- henzollern or Brandenburg, of Hesse, Wirtemburg, and the Palatinate, derive their importance from the same era, the fourteenth and fifteenth centuries, in which the prejudice against primogeniture was the strongest. And thus it will often be found in private patrimonies ; the tendency to con- solidation of property works more rapidly than that to its disintegration by a law of gavelkind. § 9. House of Luxemburg. — Weakened by these subdi- visions, the principalities of Germany in the fourteenth and fifteenth centuries shrink to a more and more diminutive size in the scale of nations. But one family, the most illustrious of the former age, was less exposed to this enfeebling sys- tem. Henry VII., count of Luxembui^g, a man of much more personal merit than hereditary importance, was elevated to the empire in 1308. Most part of his short reign he passed in Italy ; but he had a fortunate opportunity of obtaining the crown of Bohemia for his son. John, king of Bohemia, did not himself wear the imperial crown ; but three of his de- scendants possessed it, with less interruption than could have been expected. His son Charles IV. succeeded Louis of Ba- 284 HOUSE OF LUXEMBURG. Chap. V. varia in 1347; not indeed without opposition, for a double election and a civil war were matters of course in Germany. Charles lY. has been treated with more derision by his con- temporaries, and consequently by later writers, than almost any prince in history ; yet he was remarkably successful in the only objects that he seriously pursued. Deficient in per- sonal courage, insensible of humiliation, bending without shame to the pope, to the Italians, to the electors, so poor and so little reverenced as to be arrested by a butcher at Worms for want of paying his demand, Charles IV. affords a proof that a certain dexterity and cold-blooded perseverance may occasionally supply, in a sovereign, the want of more respei-t- able qualities. He has been reproached with neglecting the empire. But he never designed to trouble himself about the empire, except for his private ends. He did not neglect the kingdom of Bohemia, to which he almost seemed to render Germany a province. Bohemia had been long considered as a fief of the empire, and indeed could pretend to an electoral vote by no other title. Charles, however, gave the states by law the right of choosing a king, on the extinction of the royal family, which seems derogatory to the imperial pre- rogative. It was much more material that, upon acquiring Brandenburg, partly by conquest, and partly by a compact of succession in 1373, he not only invested his sons with it, which was conformable to usage, but tried to annex that electorate forever to the kingdom of Bohemia. He constant- ly resided at Prague, where he founded a celebrated univer- sity, and embellished the city with buildings. This king- dom, augmented also during his reign by the acquisition of Silesia, he bequeathed to his son Wenceslaus, for whom, by pliancy towards the electors and the court of Rome, he had procured, against all recent example, the imperial succession. The reign of Charles IV. is distinguished in the constitu- tional history of the empire by his Goldex Bull. (See p. 279.) The next reign evinced the danger of investing the electors with such preponderating authority. Wenceslaus, a supine and voluptuous man, less respected, and more neg- ligent of Germany, if possible, than his father, was regularly deposed by a majority of the electoral college in 1400. This right, if it is to be considered as a right, they had already used against Adolphus of Nassau in 1298, and against Louis of Bavaria in 1346. They chose Robert count palatine in- stead of Wenceslaus ; and though the latter did not cease to have some adherents, Robert has generally been counted among the lawful emperors. Upon his death the empire re- GERMANr. HOUSE OF AUSTRIA. 285 turned to the house of Luxemburg ; Wenceslaus himself waiv- ing his rights in favor of his brother Sigismund of Hungary. § 10. The HOUSE OF Austria had hitherto given but two emperors to Germany, Rodolph, its founder, and his son Al- bert, whom a successful rebellion elevated in the place of Adolphus. Upon the death of Henry of Luxemburg, in 1 31 3, Frederick, son of Albert, disputed the election of Louis, duke of Bavaria, alleging a majority of genuine votes. This pro- duced a civil war, in which the Austrian party were entirely worsted. Though they advanced no pretensions to the im- perial dignity during the rest of the fourteenth century, the princes of that line added to their possessions Carinthia, Is- tria, and the Tyrol. As a counterbalance to these acquisi- tions, they lost a great part of their ancient inheritance by unsuccessful wars with the Swiss. According to the custom of partition, so injurious to princely houses, their dominions were divided among three branches ; one reigning in Austria, a second in Styria and the adjacent provinces, a third in the Tyrol and Alsace. This had in a considerable degree eclipsed the glory of the house of Hapsburg. But it was now its des- tiny to revive and to enter upon a career of prosperity which has never since been permanently interrupted. Albert, duke of Austria, who had married Sigismund's only daughter, the queen of Hungary and Bohemia, was raised to the imperial throne upon the death of his father-in-law in 1438. He died in two years, leaving his wife pregnant with a son, Ladislaus Posthumus, who afterwards reigned in the two kingdoms just mentioned; and the choice of the electors fell upon Frederick, duke of Styria, second-cousin of the last emperor, from whose posterity it never departed, except in a single instance, upon the extinction of his male line in 1740. Frederick IH. reigned fifty-three years (a.d. 1440-1493), a longer period than any of his predecessors; and his personal character was more insignificant. He reigned during an in- teresting age, full of remarkable events, and big with others of more leading importance. The destruction of the Greek empire, and appearance of the victorious crescent upon the Danube, gave an unhappy distinction to the earlier years of his reign, and displayed his mean and pusillanimous charac- ter in circumstances which demanded a hero. At a laler sea- son he was drawn into contentions with France and Burgun- dy, which ultimately produced a new and more general com- bination of European politics. Frederick, always poor, and scarcely able to protect himself in Austria from the seditions of his subjects, or the inroads of the King of Hungary, was 286 FREDERICK III. Chap. V. yet another founder of his family, and left their fortunes in- comparably more prosperous than at his accession. The mar- riage of his son Maximilian with the heiress of Burgundy be- gan that aggrandizement of the house of Austria which Fred- erick seems to have anticipated."* The electors, who had lost a good deal of their former spirit, and were grown sensible of the necessity of choosing a powerful sovereign, made no opposition to Maximilian's becoming king of the Romans in his father's lifetime. The Austrian provinces were re-united either under Frederick or in the first years of Maximilian; so that, at the close of that period which we denominate the Middle Ages, the German Empire, sustained by the patrimo- nial dominions of its chief, became again considerable in the scale of nations, and capable of preserving a balance between the ambitious monarchies of France and Spain. § 11. The period between Rodolph and Frederick III. is distinguished by no circumstance so interesting as the pros- perous state of the free imperial cities, which had attained their maturity about the commencement of that interval. We find the cities of Germany, in the tenth century, divided into such as depended immediately upon the empire, which were usually governed by their bishop as imperial vicar, and such as were included in the territories of the dukes and counts. Gradually they began to elect councils of citizens, as a sort of Senate and magistracy. They were at first only assistants to the imperial or episcopal bailiff, who probably continued to administer criminal justice. But in the thir- teenth century the citizens, grown richer and stronger, either purchased the jurisdiction, or usurped it through the lord's neglect, or drove out the bailiff by force. The great revolu-- tion in Franconia and Suabia occasioned by the fall of the Hohenstaufen family completed the victory of the cities. Those which had depended upon mediate lords became im- mediately connected with the empire ; and with the empire in its state of feebleness, when an occasional present of mon- ey would easily induce its chief to acquiesce in any claims of immunity which the citizens might prefer. It was a natural consequence of the importance which the free citizens had reached, and of their immediacy, that they were admitted to a place in the Diets, or general meetings of the confederacy. They were tacitly acknowledged to be * The famotis device of Austria, A. E. I. O. U., was flrst used by Frederick III., who adopted it on his plate, books, and buildings. These initials stand for, Aastrife Est Imperare Orbi Uuiverso; or, in German, Alles Erdreich Ist Oesterreich Uuterthan: a bold assumption for a man who was not safe in au inch of his dominions. Germany. FKEE IMPERIAL CITIES. 287 equally sovereign with the electors and princes, and under the emperor Henry VII. there is unequivocal mention of the three orders composing the Diet — electors, princes, and depu- ties from cities. The inhabitants of these free cities always preserved their respect for the emperor, and gave him much less vexation than his other subjects. He was indeed their natural friend. But the nobility and prelates were their natural enemies; and the western parts of Germany were the scenes of ir- reconcilable warfare between the possessors of fortified cas- tles and the inhabitants of fortified cities. Each party was frequently the aggressor. The nobles were too often mere robbers, who lived upon the plunder of travellers. But the citizens were almost equally inattentive to the rights of others. It was their policy to offer the privileges of burgh- ership to all strangers. The peasantry of feudal lords, fly- ing to a neighboring town, found an asylum constantly open. A multitude of aliens, thus seeking, as it were, sanctuary, dwelt in the suburbs, or liberties, between the city walls and the palisades which bounded the territory. Hence they were called Pfahlbiirger, or burgesses of the palisades; and this encroachment on the rights of the nobility was pos- itively, but vainly, prohibited by several imperial edicts, es- pecially the Golden Bull. Another class were the Ausbtir- ger, or outburghers, who had been admitted to privileges of citizenship, though resident at a distance, and pretended in consequence to be exempted from all dues to their original feudal superiors. If a lord resisted so unreasonable a claim, he incurred the danger of bringing down upon himself the vengeance of the citizens. These outburghers are in general classed under the general name of Pfahlbtirger by contempo- rary writers. As the towns were conscious of the hatred which the no- bility bore towards them, it was their interest to make a common cause, and render mutual assistance. They with- stood the bishops and barons by confederacies of their own, framed expressly to secure their commerce against rapine, or unjust exactions of toll. More than sixty cities, with three ecclesiastical electors at their head, formed the league of the Rhine, in 1255, to repel the inferior nobility, who, hav- ing now become immediate, abused that independence by perpetual robberies. The Hanseatic Union owes its origin to no other cause, and may be traced perhaps to rather a higher date. About the year 1370 a league was formed which, though it did not continue so long, seems to have produced 288 PROVINCIAL STATES. Chap. V. more striking effects in Germany. The cities of Suabia and the Rhine united themselves in a strict confederacy against the princes, and especially the families of Wirtemburg and Bavaria. It is said that the Emperor Wenceslaus secretly abetted their projects. The recent successes of the Swiss, who had now almost established their republic, inspired their neighbors in the empire with expectations which the event did not realize ; for they w^ere defeated in this war, and ultimately compelled to relinquish their league. Counter- associations were formed by the nobles, styled Society of St. George, St. William, the Lion, or the Panther. § 12. The spirit of political liberty was not confined to the free immediate cities. In all the German principalities a form of limited monarchy prevailed, reflecting, on a reduced scale, the general constitution of the empire. As the emperors shared their legislative sovereignty with the Diet, so all the princes who belonged to that assembly had their ow^n pro- vincial states, composed of their feudal vassals and of their mediate towns within their territory. No tax could be im- posed Without consent of the states; anr|,in some countries, the prince was obliged to account for the proper distribution of the money granted. In all matters of importance affect- ing the principality, and especially in case of partition, it was necessary to consult them ; and they sometimes decided be- tween competitors in a disputed succession, though this in- deed more strictly belonged to the emperor. The provincial states concurred with the prince in making laws, except such as were enacted by the general Diet. § 13. The ancient imperial domain, or possessions which belonged to the chief of the empire as such, had originally been very extensive. Besides large estates in every province, the territory upon each bank of the Rhine, afterwards oc- cupied by the counts palatine and ecclesiastical electors, was, until the thirteenth century, an exclusive property of the emperor. This imperial domain was deemed so adequate to the support of his dignity that it was usual, if not obligato- ry, for him to grant away his patrimonial domains upon his election. But the necessities of Frederick II., and the long confusion that ensued upon his death, caused the domain to be almost entirely dissipated. Rodolph made some efforts to retrieve it, but too late ; and the poor remains of what had belonged to Charlemagne and Otho were alienated by Charles IV. This produced a necessary change in that part of the constitution which deprived an emperor of heredita- ry possessions. It was, however, some time before it took Germany. PUBLIC PEACE. 289 place. Even Albert I. conferred the duchy of Austria upon his son, when he was chosen emperor. Louis of Bavaria was the first who retained his hereditary dominions, and made them his residence. Charles IV. and Wenceslaus lived almost wholly in Bohemia, Sigisnmnd chiefly in Hungary, Frederick III. in Austria. This residence in their hereditary countries, while it seemed rather to lower the imperial dig- nity, and to lessen their connection with the general confed- eracy, gave them intrinsic power and influence. If the em- perors of the houses of Luxemburg and Austria were not like the Conrads and Fredericks, they were at least very su- perior in importance to the Williams and Adolphuses of the thirteenth century. §14. The accession of Maximilian nearly coincides with the expedition of Charles VIII. against Naples ; and I should here close the German history of the Middle Age, were it not for the great epoch which is made by the Diet of Worms in 1495. This assembly is celebrated for the establishment of a perpetual public peace, and of a paramount court of justice, the Imperial Chamber. The same causes which produced continual hostilities among the French nobility were not likely to operate less powerfully on the Germans, equally warlike with their neigh- bors, and rather less civilized. But while the imperial gov- ernment was still vigorous, they were kept under some re- straint. We find Henry III., the most powerful of the Fran- conian emperors, forbidding all private defiances, and estab- lishing solemnly a general peace. After his time the natural tendency of manners overpowered all attempts to coerce it, and private war raged without limits in the empire. Fred- erick I. endeavored to repress it by a regulation which ad- mitted its legality. This was the law of defiance {jus diffida- ^/oms), which required a solemn declaration of war, and three days' notice, before the commencement of hostile measures. All persons contravening this provision were deemed robbers and not legitimate enemies. War, indeed, legally under- taken, was not the only nor the severest grievance. A very large proportion of the rural nobility lived by robbery. Their castles, as the ruins still bear witness, were erected upon inaccessible hills, and in defiles that command the pub- lic road. An archbishop of Cologne having built a fortress of this kind, the governor inquired how he was to maintain himself, no revenue having been assigned for that purpose: the prelate only desired him to remark that the castle was situated near the junction of four roads. As commerce in- 13 290 IMPERIAL CHAMBER. Chap. V. creased, and the example of French and Italian civilization rendered the Germans more sensible to their own rudeness, the preservation of public peace was loudly demanded. Every Diet under Frederick III. professed to occupy itself with the two great objects of domestic reformation, peace and law. Temporary cessations, during which all private hostility was illegal, were sometimes enacted ; and, if ob- served, which may well be doubted, might contribute to ac- custom men to habits of greater tranquillity. The leagues of the cities were probably moi'e efficacious checks upon the disturbers of order. In 1486 a ten years' peace was pro- claimed, and before the expiration of this period the perpetual abolition of the right of defiance was happily accomplished in the Diet of Worms. § 15. The next object of the Diet was to provide an ef- fectual remedy for private wrongs which might supersede all pretense for taking up arms. The Imperial Chamber, such was the name of the new tribunal, consisted, at its original institution, of a chief judge, who was to be chosen among the princes or counts, and of sixteen assessors, partly of noble or equestrian rank, partly professors of law. They were named by the emperor with the approbation of the Diet. The func- tions of the Imperial Chamber were chiefly the two follow- ing : (1.) They exercised an appellant jurisdiction over causes that had been decided by the tribunals established in states of the empire. But their jurisdiction in private causes was merely appellant. They were positively restricted from tak- ing cognizance of any causes in the first instance, even where a state of the empire was one of the parties. It was enacted, to obviate the denial of justice that appeared likely to result from the regulation in the latter case, that every elector and prince should establish a tribunal in his own dominions, where suits against himself might be entertained. (2.) The second part of their jurisdiction related to disputes between two states of the empire. But these two could only come before it by way of appeal. During the period of anarchy which preceded the establishment of its jurisdiction, a custom was introduced, in order to prevent the constant recurrence of hostilities, of referring the quarrels of states to certain arbi- trators, called Austregues, chosen among states of the same rank. This conventional reference became so popular that the princes would not consent to abandon it on the institu- tion of the Imperial Chamber ; but, on the contrary, it was changed into an invariable and universal law, that all dis- putes between different states must, in the first instance, be submitted to the arbitration of Austresjues. Gkrmant. limits of THE EMPIRE. 291 The sentences of the Chamber would have been very idly pronounced, if means had not been devised to carry them into execution. The empire, with the exception of the elect- orates and the Austrian dominions, was divided into six circles, each of which had its council of states, its director, whose province it was to convoke them, and its military force to compel obedience. In 1512 four more circles were added, comprehending those states which had been excluded in the first division. § 16. As the judges of the Imperial Chamber were ap- pointed with the consent of the Diet, and held their sittings in a free imperial city, its establishment seemed rather to encroach on the ancient prerogatives of the emperors. Max- imilian expressly reserved these in consenting to the new tribunal. And, in order to revive them, he soon afterwards instituted an Aulic Council at Vienna, composed of judges appointed by himself, and under the political control of the Austrian government. Though some German patriots re- garded this tribunal with jealousy, it continued until the dissolution of the empire. The Aulic Council had, in all cases, a concurrent jurisdiction with the Imperial Chamber ; an exclusive one in feudal and some other causes. But it was equally confined to cases of appeal ; and these, by mul- tiplied privileges, de non appellando, granted to the electoral and suj^erior princely houses, were gradually reduced into moderate compass. The Germanic constitution may be reckoned complete, as to all its essential characteristics, in the reign of Maximilian. In later times, and especially by the treaty of Westphalia, it underwent several modifications. Whatever might be its defects, and many of them seem to have been susceptible of reformation without destroying the system of government, it had one invaluable excellence : it protected the rights of the weaker against the stronger powers. The law of nations was first taught in Germany, and grew out of the public law of the empire. To narrow, as far as possible, the rights of war and of conquest, was a natural principle of those who belonged to petty states, and had nothing to tempt them in ambition. § 17. At the accession of Conrad I., Germany had by no means reached its present extent on the eastern frontier. Henry the Fowler and the Othos made great acquisitions upon that side. But tribes of Sclavonian origin, generally called Venedic, or, less properly, Vandal, occupied the north- ern coast from the Elbe to the Vistula. These were inde* 292 CONSTITUTION OF BOHEMIA. Chap. V. pendent, and iormidable both to the kings of Denmark and princes of Germany, till, in the reign of Frederic Barbarossa, two of the latter, Henry the Lion, dnke of Saxony, and Al- bert the Bear, margrave of Brandenburg, subdued Mecklen* burg and Pomerania, which afterwards became duchies of the empire. Bohemia was undoubtedly subject, in a feudal sense, to Frederick I. and his successors ; though its connec- tion with Germany was always slight. The emperors some- times assumed the sovereignty over Denmark, Hungary, and Poland. But what they gained upon this quarter was com- pensated by the gradual separation of the Netherlands from their dominion, and by the still more complete loss of the kingdom of Aries. The house of Burgundy possessed most part of the former, and paid as little regard as possible to the imperial supremacy ; though the German Diets in the reign of Maximilian still continued to treat the Netherlands as equally subject to their lawful control with the states on the right bank of the Rhine. But the provinces between the Rhone and the Alps were absolutely separated ; Switz- erland had completely succeeded in establishing her own in- dependence ; and the kings of France no longer sought even the ceremony of an imperial investiture for Dauphine and Provence. § 18. Bohemia, which received the Christian faith in the tenth century, was elevated to the rank of a kingdom near the end of the twelfth. The dukes and kings of Bohemia were feudally dependent upon the emperors, from whom they received investiture. They possessed, in return, a suffrage among the seven electors, and held one of the great offices in the imperial court. But separated by a rampart of mount- ains, by a difference of origin and language, and perhaps by natural prejudices, from Germany, the Bohemians withdrew as far as possible from the general politics of the confederacy. The kings obtained dispensations from attending the Diets of the empire, nor were they able to reinstate themselves in the privilege thus abandoned till the beginning of the last century. The government of this kingdom, in a very slight degree partaking of the feudal character, bore rather a re- semblance to that of Poland ; but the nobility were divided into two classes, the baronial and the equestrian, and the burghers formed a third state in the national Diet. For the peasantry, they were in a condition of servitude, or predial vil- lenage. The royal authority was restrained by a coronation oath, by a permanent Senate, and by frequent assemblies of the Diet, where a inimerous and armed nobility appeared tc German V. THE HUSSITES. 2<)3 secure their liberties by law or force. The sceptre passed, in ordinary times, to the nearest heir of the royal blood ; but the right of election was only suspended, and no king of Bo hernia ventured to boast of it as his inheritance. This mix ture of elective and hereditary monarchy was common, as we have seen, to most European kingdoms in their original con- stitution, though few continued so long to admit the partici- pation of popular suiFrages. The reigning dynasty having become extinct in 1306, by the death of Wenceslaus, son of that Ottocar who, after ex- tending his conquests to the Baltic Sea, and almost to the Adriatic, had lost his life in an unsuccessful contention with the Emperor Rodolph, the Bohemians chose John of Luxem- burg, son of Henry VII. Under the kings of this family in the fourteenth century, and especially Charles IV., whose character appeared in a far more advantageous light in his native domains than in the empire, Bohemia imbibed some portion of refinement and science. An university erected by Charles at Prague became one of the most celebrated in Europe. John IIuss, rector of the university, who had dis- tinguished himself by opposition to many abuses then pre- vailing in the Church, repaired to the council of Constance, under a safe-conduct from the Emperor Sigismund (a.d. 1416). In violation of this pledge, to the indelible infamy of that prince and of the council, he was condemned to be burned ; and his disciple, Jerome of Prague, underwent afterwards the same fate. His countrymen, aroused by this atrocity, flew to arms. They found at their head one of those extraordi- nary men whose genius, created by nature and called into action by fortuitous events, appears to borrow no reflected light from that of others. John Zisca had not been trained in any school which could have initiated him in the science of war ; that indeed, except in Italy, was still rude, and no- where more so than in Bohemia. But, self-taught, he be- came one of the greatest captains who had hitherto appeared in Europe. It renders his exploits more marvellous that he was totally deprived of sight. Zisca has been called the in- ventor of the modern art of fortification ; the famous mount- ain near Prague, fanatically called Tabor, became by his skill an impregnable intrenchment. For his stratagems he has been compared to Hannibal. In battle, being destitute of cavalry, he disposed at intervals ramparts of carriages filled with soldiers, to defend his troops from the enemy's horse. His own station was by the chief standard ; where, after hearing the circumstances of the situation explained, 294 HUNGARY. Chap. V. he gave his orders for the disposition of the army. Zisca was never defeated ; and his genius inspired the Hussites with such enthusiastic affection, that some of those who had served under him refused to obey any other general, and de- nominated themselves Orphans, in commemoration of his loss. He was indeed a ferocious enemy, though some of his cruelties might, perhaps, be extenuated by the law of retalia- tion ; but to his soldiers affable and generous, dividing among them all the spoil. Even during the lifetime of Zisca the Hussite sect was dis- united; the citizens of Prague and many of the nobility con- tenting themselves with moderate demands, while the Tabor- ites. his peculiar followers, were actuated by a most fanat- ical frenzy. The former took the name of Calixtins, from their retention of the sacramental cup, of which the priests had latterly thought fit to debar laymen ; an abuse so total- ly without pretense or apology, that nothing less than the determined obstinacy of the Komish Church could have maintained it to this time. The Taborites, though no long- er led by Zisca, gained some remarkable victories, but were at last wholly defeated; while the Catholic and Calixtin parties came to an accommodation, by which Sigismund was acknowledged as King of Bohemia, which he had claimed by the title of heir to his brother Wenceslaus, and a few indul- gences, especially the use of the sacramental cup, conceded to the moderate Hussites (a.d. 1433). But this compact, though concluded by the Council of Basle, being ill ob- served, through the perfidious bigotry of the See of Rome, the reformers armed again to defend their religious liber- ties, and ultimately elected a nobleman of their own party, by name George Podiebrad, to the throne of Bohemia, which he maintained during his life with great vigor and prudence (a.d. 1458). Upon his death they chose Uladislaus, son of Casimir, king of Poland (a.d. 1471), who afterwards obtained also the kingdom of Hungary. Both these crowns were con- ferred on his son Louis, after whose death in the unfortunate battle of Mohacz, Ferdinand of Austria became sovereign of the two kingdoms. § 19. The Hungarians, that terrible people who laid waste the Italian and German provinces of the empire in the tenth century, became proselytes soon afterwards to the religion of Europe, and their sovereign, St. Stephen, was ad- mitted by the pope into the list of Christian kings. Though the Hungarians were of a race perfectly distinct from either the Gothic or the Sclavonian tribes, their system of govern- Germany. HUNNIADES. 295 ment was in a great measure analogous. None indeed could be more natural to rude nations who had but recently ac- customed themselves to settled possessions, than a territo- rial aristocracy, jealous of unlimited or even hereditary pow- er in their chieftain, and subjugating the inferior people to that servitude which, in such a state of society, is the una- voidable consequence of poverty. The marriage of a Hungarian princess with Charles 11., king of Naples, eventually connected her country far more than it had been with the affairs of Italy. I have mentioned in a different place the circumstances which led to the inva- sion of Naples by Louis, king of Hungary (see p. 224). By marrying the eldest daughter of Louis, Sigismund, after- wards emperor, acquired the crown of Hungary, which upon her death without issue he retained in his own right, and was even able to transmit to the child of a second marriage, and to her husband Albert, duke of Austria. From this commencement is deduced tlie connection between Hungary and Austria. In two years, however, Albert dying left his widow pregnant; but the states of Hungary, jealous of Aus- trian influence, and of the intrigues of a minority, without waiting for her delivery, bestowed the crown upon Uladis- laus, king of Poland (a.d. 1440). The birth of Albert's post- humous son, Ladislaus, produced an opposition in behalf of the infant's right ; but the Austrian party turned out the weaker, and Uladislaus, after a civil war of some duration, became undisputed king. Meanwhile a more formidable enemy drew near. The Turkish arms had subdued all Servia, and excited a just alarm throughout Christendom. Uladislaus led a considerable force, to which the presence of the Cardinal Julian gave the appearance of a crusade, into Bulgaria, and, after several successes, concluded an honor- able treaty with Amurath II. But this he was unhappily persuaded to violate, at the instigation of the cardinal, who abhorred the impiety of keeping faith with infidels. Heav- en judged of this otherwise, if the judgment of Heaven was pronounced upon the field of Warna. In that fatal battle Uladislaus was killed, and the Hungarians utterly routed (a.d. 1444). The crown was now permitted to rest on the head of young Ladislaus ; but the regency was allotted by the states of Hungary to a native warrior, John Hunniades. This hero stood in the breach for twelve years against the Turkish power, frequently defeated, but unconquered in de- feat. If the renown of Hunniades may seem exaggerated by the partiality of writers who lived under the reign of his 296 EARLY HISTORY OF SWITZERLAND. Ciiai-. V. son, it is confirmed by more unequivocal evidence, by the dread and hatred of the Turks, whose children were taught obedience by threatening them with his name, and by the deference of a jealous aristocracy to a man of no distin- guished birth. He surrendered to young Ladislaus a trust that he had exercised with perfect fidelity! but his merit was too great to be forgiven, and the court never treated him with cordiality. The last and the most splendid serv- ice of Hunniades was the relief of Belgrade (a.d. 1456). That strong city was besieged by Mohammed II. three years after the fall of Constantinople ; its capture would have laid open all Hungary. A tumultuary army, chiefly collected by the preaching of a friar, was intrusted to Hunniades; he penetrated into the city, and, having repulsed the Turks in a fortunate sally wherein Mohammed was wounded, had the honor of compelling him to raise the siege in confusion. The relief of Belgrade was more important in its effect than in its immediate circumstances. It revived the spirits of Eu- rope, which had been appalled by the unceasing victories of the infidels. Mohammed himself seemed to acknowledge the importance of the blow, and seldom afterwards attacked the Hungarians. Hunniades died soon after this achieve- ment, and was followed by the king, Ladislaus. The states of Hungary, although the Emperor Frederick HI. had se- cured to himself, as he thought, the reversion, were justly averse to his character, and to Austrian connections. They conferred their crown on Matthias Corvinus, son of their great Hunniades (a.d. 1458). This prince reigned above thirty years with considerable reputation, to which his pat- ronage of learned men, who repaid his munificence with very profuse eulogies, did not a little contribute. Hungary, at least in his time, was undoubtedly formidable to her neigh- bors, and held a respectable rank as an independent power in the republic of Europe. § 20. Switzerland. — The kingdom of Burgundy or Aries comprehended the whole mountainous region which we now call Switzerland. It was accordingly reunited to the Ger- manic empire by the bequest of Rodolph along with the rest of his dominions. A numerous and ancient nobility, vassals one to another, or to the empire, divided the possession with ecclesiastical lords hardly less powerful than themselves. Of the former we find the counts of Zahringen, Kyburg, Hapsburg, and Tokenburg most conspicuous; of the latter, the Bishop of Coire, the Abbot of St. Gall, and Abbess of Seckingen. Every variety of feudal rights was early found Germany. EARLY HISTORY OF SWITZERLAND. 297 and long preserved in Helvetia; nor is there any country whose liistory better iUustrates that ambiguous relation, half property and half dominion, in which the territorial aris- tocracy, under the feudal system, stood with resp^t to their dependents. In the twelfth century the Swiss towns rise into some degree of importance. Zurich was eminent for commercial activity, and seems to have had no lord but the emperor. Basle, though subject to its bishop, possessed the usual privileges of municipal government. Berne and Fri- burg, founded only in that century, made a rapid progress, and the latter was raised, along with Zurich, by Frederick II., in 1218, to the rank of a free imperial city. Several changes in the principal Helvetian families took place in the thir- teenth century, before the end of which the house of Haps- burg, under the politic and enterprising Rodolph and his son Albert, became possessed, through various titles, of a great ascendency in Switzerland. Of these titles none was more tempting to an ambitious chief than that of advocate to a convent. That specious name conveyed with it a kind of indefinite guardianship, and right of interference, which frequently ended in reversing the conditions of the ecclesiastical sovereign and its vassal. But during times of feudal anarchy there was perhaps no other means to secure the rich abbeys from absolute spoliation ; and the free cities in their early stage sometimes adopted the same policy. Among other advocacies, Albert obtained that of some convents which had estates in the valleys of Schweitz and Underwald. These sequestered regions in the heart of the Alps had been for ages the habitation of a pas- toral race, so happily forgotten, or so inaccessible in their fastnesses, as to have acquired a virtual independence, regu- lating their own affairs in their general assembly with a per- fect equality, though they acknowledged the sovereignty of the empire. The people of Schweitz had made Rodolph their advocate. They distrusted Albert, whose succession to his father's inheritance spread alarm through Helvetia. It soon appeared that their suspicions were well founded. Besides the local rights which his ecclesiastical advocacies gave him over part of the forest cantons, he pretended, after his election to the empire, to send imperial bailiffs into their valleys, as administrators of criminal justice. Their oppres- sion of a people unused to control, whom it was plainly the design of Albert to reduce into servitude, excited those gen- erous emotions of resentment which a brave and simple race have seldom the discretion to repress. Three men, Stauf- 13* 298 SWISS CONFEDERACY. Chap. V. facher of Schweitz, Fnrst of Uri, Melchthal of Underwald, each with ten chosen associates, met by night in a seques- tered field, and swore to assert the common cause of their lib- erties, without bloodshed or injury to the rights of others. Their success was answerable to the justice of their under^ taking ; the three cantons unanimously took up arms, and expelled their oppressors without a contest. Albert's as- sassination by his nephew, which followed soon afterwards, fortunately gave them leisure to consolidate their union (a.d. 1308). He was succeeded in the empire by Henry YII., jealous of the Austrian family, and not at all displeased at proceedings which had been accompanied with so little vio- lence or disrespect for the empire. But Leopold, duke of Austria, resolved to humble the peasants, who had rebelled against his father, led a considerable force into their coun- try. The Swiss, commending themselves to Heaven, and de- termined rather to perish than undergo that yoke a second time, though ignorant of regular discipline, and unprovided with defensive armor, utterly discomfited the assailants at Morgarten (a.d. 1315). This great victory, the Marathon of Switzerland, confirmed the independence of the three original cantons. Afte^' some years. Lucerne, contiguous in situation and alike in interests, was incorporated into their confederacy. It was far more materially enlarged about the middle of the fourteenth cen- tury by the accession of Zurich, Glaris, Zug, and Berne, all which took place within two years. The first and last of these cities had" already been engaged in frequent wars with the Helvetian nobility, and their internal polity was alto- gether republican. They acquired, not independence, which they already enjoyed, but additional security, by this union with the Swiss, properly so called, who in deference to their power and reputation ceded to them the first rank in the league. The eight already enumerated are called the ancient cantons, and continued, till the late reformation of the Hel- vetic system, to possess several distinctive privileges and even rights of sovereignty over subject territories, in which the five cantons of Friburg, Soleure, Basle, Schaffhausen, and Appenzell did not participate. From this time the united cantons, but especially those of Berne and Zurich, began to extend their territories at the expense of the rural nobility. The same contest between these parties, with the same ter- mination, which we know generally to have taken place in Lombardy during the eleventh and twelfth centuries, may be traced with more minuteness in the annals of Switzerland. GERMANY. SWISS CONFEDERACY. 299 Like the Lombards, too, the Helvetic cities acted with policy and moderation towards the nobles whom they overcame, admitting them to the franchises of their community as co- burghers (a i)rivilege which virtually implied a defensive al- liance against any assailant), and uniformly respecting the legal rights of property. Many feudal superiorities they ob- tained from the owners in a more peaceable manner, through purchase or mortgage. Thus the house of Austria, to which the extensive domains of the counts of Kyburghad devolved, abandoning, after repeated defeats, its hopes of subduing the forest cantons, alienated a great part of its possessions to Zurich and Berne. And the last remnant of their ancient Helvetic territories in Argovia was wrested, in 1417, from Frederick, count of Tyrol, who, imprudently supporting Pope John XXIU. against the Council of Constance, had been put to the ban of the empire. These conquests Berne could not be induced to restore, and thus completed the independence of the confederate republics. The other free cities, though not yet incorporated, and the few remaining nobles, whether lay or spiritual, of whom the Abbot of St. Gall was the prin- cipal, entered into separate leagues with different cantons. Switzerland became, therefore, in the first part of the fifteenth century, a free country, acknowledged as such by neighbor- ing states, and subject to no external control, though still comprehended within the nominal sovereignty of the empire. The affairs of Switzerland occupy a very small space in the great chart of European history. But in some respects they are more interesting than the revolutions of mighty kingdoms. Nowhere besides do we find so many titles to our sympathy, or the union of so much virtue w^ith so com- plete success. Li the Italian republics a more splendid tem- ple may seem to have been erected to liberty; but, as we approach, the serpents of faction hiss around her altar, and the form of tyranny flits among the distant shadows behind the shrine. Switzerland, not absolutely blameless (for what republic has been so ?), but comparatively exempt from tur- bulence, usurpation, and injustice, has well deserved to em- ploy the native pen of an historian accounted the most elo- quent of tiie last age, Johann Miiller. Other nations displayed an insuperable resolution in the defense of walled towns ; but the steadiness of the Swiss in the field of battle was without a parallel, unless we recall the memory of Lacedaemon. It was even established as a law that whoever returned from battle after a defeat should forfeit his life by the hands of the executioner. Sixteen hundred men, who had been sent 300 SWISS TROOPS. Chap. V to oppose a predatory invasion of the French in 1 444, though they might have retreated without loss, determined rather to perish on the spot, and fell amidst a iar greater heap of the hostile slain. At the famous battle of Sempach in 1385, the last which Austria presumed to try against the forest cantons, the enemy's knights, dismounted from their horses, presented an impregnable barrier of lances, which discon- certed the Swiss ; till Winkelried, a gentleman of Underwald, commending his wife and children to his countrymen, threw himself upon the opposite ranks, and, collecting as many lances as he could grasp, forced a passage for his followers by burying them in his bosom. The burghers and peasants of Switzerland, ill provided with cavalry, and better able to dispense Avith it than the natives of champaign countries, may be deemed the principal restorers of the Greek and Roman tactics, which place the strength of armies in a steady mass of infantry. Besides their splendid victories over the dukes of Austria and their own neighboring nobility, they had repulsed, in the year 1375, one of those predatory bodies of troops, the scourge of Europe in that age, and to whose licentiousness kingdoms and free states yielded alike a passive submission. They gave the dauphin, afterwards Louis XL, who entered their country in 1444 with a similar body of ruffians, called Ar- magnacs, the disbanded mercenaries of the English war, suf- ficient reason to desist from his invasion and to respect their valor. That able prince formed, indeed, so high a notion of the Swiss, that he sedulously Cultivated their alliance during the rest of his life. He was made abundantly sensible of the wisdom of this policy when he saw his greatest enemy, the Duke of Burgundy, routed at Granson and Morat, and his af- fairs irrecoverably ruined, by these hardy republicans. The ensuing age is the most conspicuous, though not the most essentially glorious, in the history of Switzerland. Courted for the excellence of their troops by the rival sovereigns of Europe, and themselves too sensible both to ambitious schemes of dominion and to the thirst of money, the united cantons came to play a very prominent part in the wars of Lombardy, with great military renown, but not without some impeachment of that sterling probity which had distinguished their earlier efforts for independence. These events, how- ever, do not fall within my limits ; but the last year of the fifteenth century is a leading epoch, with which I shall close this sketch. Though the house of Austria had ceased to menace the liberties of Helvetia, and had even been for many Germany. SWISS INDEPENDENCE. 301 years its ally, the Emperor Maximilian, aware of the impor- tant service he might derive from the cantons in his projects upon Italy, as well as of the disadvantage he sustained by their partiality to French interest, endeavored to revive the unexticguished supremacy of the empire. That supremacy had just been restored in Germany by the establishment of the Imperial Chamber, and of a regular pecuniary contribu- tion for its support, as well as for other purposes, in the Diet of Worms. The Helvetic cantons were summoned to yield obedience to these imperial laws ; an innovation, for such the revival of obsolete prerogatives must be considered, exceed- ingly hostile to their republican independence, and involving consequences not less material in their eyes, the abandon- ment of a line of policy which tended to enrich, if not to ag- grandize them. Their refusal to comply brought on a war, wherein the Tyrolese subjects of Maximilian, and the Suabian league, a confederacy of cities in that province lately formed under the emperor's auspices, were principally engaged against the Swiss. But the success of the latter was deci- sive ; and after a terrible devastation of the frontiers of Ger- many, peace was concluded upon terms very honorable for Switzerland. The cantons were declared free from the juris- diction of the Imperial Chamber, and from all contributions imposed by the Diet. Their right to enter into foreign alli- ance, even hostile to the empire, if it was not expressly rec- ognized, continued unimpaired in practice ; nor am I aware that they were at any time afterwards supposed to incur the crime of rebellion by such proceedings. Though, perhaps, in the strictest letter of public law, the Swiss cantons were not absolutely released from their subjection to the empire until the treaty of Westphalia, their real sovereignty must be dated by an histoi*ian from the year when every preroga- tive which a government can exercise was finally abandoned 302 COMMENCEMENT OF MODERN HISTORY. Chap VI. CHAPTER VL HISTORY OF THE GREEKS AND SARACENS. 5 1. Rise ol. Mohammedism. § 2. Progress of Saracen Arms. § 3. Greek Empire. Decline of the Caliphs. § 4. The Greelis recover Part of their Losses. § 5. The Turks. § 6. The Crusades. Capture of Constantinople by the Latins. Its Recov- ery by the Greeks. § T. The Moguls. The Ottomans. Tiraur. § 8. Capture of Constantinople by Mohammed II. § 9. Alarm of Europe. § 1. The difficulty which occurs to us in endeavoring to fix a natural commencement of modern history even in the Western countries of Europe is much enhanced when we di- rect our attention to the Eastern Empire. But the appear- ance of Mohammed, and the conquests of his disciples, pre- sent an epoch in the history of Asia still more important and more definite than the subversion of the Roman Empire in Europe ; and hence the boundary line between the ancient and modern divisions of Byzantine history will intersect the reign of Heraclius. That prince may be said to have stood on the verge of both hemispheres of time, whose youth was crowned with the last victories over the successors of Ar- taxerxes, and whose age was clouded by the first calamities of Mohammedan invasion.^ The prevalence of Islam in the lifetime of its prophet, and during the first ages of its existence, was chiefly owing to the spirit of martial energy that he infused into it. The re- ligion of Mohammed is as essentially a military system as the institution of chivalry in the west of Europe. The people of Arabia, a race of strong passions and sanguinary temper, inured to habits of pillage and murder, found in the law of their native prophet not a license, but a command, to deso- late the world, and the promise of all that their glowing im- aginations could anticipate of Paradise annexed to all in which they most delighted upon earth. Death, slavery, trib- ute, to unbelievers, were the glad tidings of the Arabian prophet. To the idolaters, indeed, or those who acknowl- edged no special revelation, one alternative only was pro- posed, conversion or the sword. The people of the Book, as they are termed in the Koran, or four sects of Christians, Jews, Magians, and Sabians, were permitted to redeem their adher- * For a fuller account of the events, briefly narrated in this chapter, see " Student's <3ibbou," eh. xxvii., seq. Greeks, Etc. STATE OF THE GREEK EMPIRE. 303 ence to their ancient law by the payment of tribute, and oth- er marks of humiliation and servitude. But the limits which Mohammedan intolerance had prescribed to itself were sel- dom transojressed ; the word pledged to unbelievers was sel- dom forfeited ; and with all their insolence and oppression, the Moslem conquerors were mild and liberal in comparison with those who obeyed the pontiffs of Rome or Constanti- nople. § 2. At the death of Mohammed in 632 his temporal and religious sovereignty embraced, and was limited by, the Arabian peninsula. The Roman and Persian empires, en- gaged in tedious and indecisive hostility upon the rivers of Mesopotamia and the Armenian mountains, were viewed by the ambitious fanatics of his creed as their quarry. In the very first year of Mohammed's immediate successor, Abu- beker, each of these mighty empires was invaded. The lat- ter opposed but a short resistance. The crumbling fabric of Eastern despotism is never secure against rapid and total subversion ; a few victories, a few sieges, carried the Arabian arms from the Tigris to the Oxus, and overthrew, Avith the Sassanian dynasty, the ancient and famous religion they had professed. Seven years of active and unceasing warfare suf- ficed to subjugate the rich province of Syria, though defend- ed by numerous armies and fortified cities (a.d. 632-639) ; and the caliph Omar had scarcely returned thanks for the accomplishment ^of this conquest, when Amrou, his lieuten- ant, announced to him the entire reduction of Egypt. After some interval the Saracens won their way along the coast of Africa as far as the Pillars of Hercules, and a third prov- ince was irretrievably torn from the Greek empire (a.d. 647- 698). These Western conquests introduced them to fresh enemies, and ushered in more sj)lendid successes ; encouraged by the disunion of the Visigoths, and perhaps invited by treachery, Musa, the general of a master who sat beyond the opposite extremity of the Mediterranean Sea, passed over into Spain, and within about two years the name of Moham- med was invoked under the Pyrenees (a.d. VlO). § 3. These conquests, which astonish the careless and su- perficial, are less perplexing to a calm inquirer than their ces- sation ; the loss of half the Roman Empire, than the pres- ervation of the rest. The fame of Heraclius had withered in the Syrian war ; and his successors appeared as incapable to resist as they were unworthy to govern. But this de- praved people Avere preserved from destruction by the vices of their enemies, still more than by some intrinsic resources 304 CALIPHS OF BAGDAD. Chap. VI. which they yet possessed. A rapid degeneracy enfeebled the victorious Moslem in their career. That irresistible en- thusiasm, that earnest and disinterested zeal of the compan- ions of Mohammed, was in a great measure lost, even before the first generation had passed away. In the fruitful val- leys of Damascus and Bassora the Arabs of the desert forgot their abstemious habits. Rich from the tributes of an en- slaved people, the Mohammedan sovereigns knew no employ- ment of riches but in sensual luxury, and paid the price of voluptuous indulgence in the relaxation of their strength and energy. Under the reign of Moawiah, the fifth caliph, an he- reditary succession was substituted for the free choice of the faithful, by which the first repi-esentatives of the prophet had been elevated to power; and this regulation, necessary, as it plainly was, to avert in some degree the dangers of schism and civil war, exposed the kingdom to the certainty of being often governed by feeble tyrants. But no regula- tion could be more than a temporary presei'vative against civil war. The dissensions which still separate and render hostile the followers of Mohammed maybe traced to the first events that ensued upon his death, to the rejection of his son- in-law Ali by the electors of Medina. Two reigns, those of Abubeker and Omar, passed in external glory and domestic reverence; but the old age of Othman was weak and impru- dent, and the conspirators against him established the first among a hundred precedents of rebellion and regicide. Ali was now chosen; but a strong faction disputed his right; and the Saracen empire was, for many years, distracted with civil w^ar, among competitors who appealed, in reality, to no other decision than that of the sword. The fiimily of Oni- miyah succeeded at last in establishing an unresisted, if not an undoubted, title. But rebellions were perpetually after- wards breaking out in that vast extent of dominion, till one of these revolters acquired by success a better name than rebel, and founded the dynasty of the Abbasides (a.d. 750). Damascus had been the seat of empire under the Ommi- ades; it was removed by the succeeding family to their new city of Bagdad. There are not any names in the long line of caliphs, after the companions of Mohammed, more re- nowned in history than some of the earlier sovereigns who reigned in this capital — Almansor, Haroun Alraschid, and Almamtln. Their splendid palaces, their numerous guards, their treasures of gold and silver, the populousness and wealth of their cities, formed a striking contrast to the rude- ness and poverty of the Western nations in the same age* Greeks, Etc. DECLINE OF THE CALIPHS. 305 In tlieir court learning, which the first Moslem had despised as unwarlike or rejected as profane, was held in honor. The Caliph Almamtin especially was distinguished for his pat- ronage of letters ; the philosophical writings of Greece were eagerly sought and translated ; the stars were numbered, the course of the planets was measured. The Arabians im- proved upon the science they borrowed, and returned it with abundant interest to Europe in the communication of nu- meral figures and the intellectual language of algebra. Yet the merit of the Abbasides has been exaggerated by adula- tion or gratitude. After all the vague praises of hireling poets, which have sometimes been repeated in Europe, it is very rare to read the history of an Eastern sovereign un- stained by atrocious crimes. No Christian government, ex- cept perhaps that of Constantinople, exhibits such a series of tyrants as the caliphs of Bagdad, if deeds of blood, wrought through unbridled passion or jealous policy, may challenge the name of tyranny. Though the Abbasides have acquired more celebrity, they never attained the real strength of their predecessors. Under the last of the house of Ommiyah, one command was obeyed almost along the whole diameter of the known world, from the banks of the Sihon to the utmost promontory of Portugal. But the revolution which changed the succession of caliphs produced another not less important. A fugitive of the vanquished family, by name Abdalrahman, arrived in Spain ; and the Moslem of that country, not sharing in the prejudices which had stirred up the Persians in favor of the line of Abbas, and conscious that their remote situation en- titled them to independence, proclaimed him Caliph of Cor- dova. There could be little hope of reducing so distant a dependency ; and the example was not unlikely to be imi- tated. In the reign of Haroun Alraschid two principalities were formed in Africa — of the Aglabites, who reigned over Tunis and Tripoli ; and of the Edrisites, in the western pai-ts of Barbary. These yielded in about a century to the Fati- mites, a more powerful dynasty, who afterwards established an empire in Egypt. The loss, however, of Spain and Africa was the inevitable effect of that immensely extended dominion, which their separation alone would not have enfeebled. But other rev- olutions awaited it at home. In the history of the Abbas- ides of Bagdad we read over again the decline of European monarchies, through their various symptoms of ruin ; and find successive analosries to the insults of the barbarians to- 306 FATAL POLICY. Chap. VL wards imj^erial Rome in the fifth century, to the personal insignificance of the Merovingian kings, and to the feudal usurpations that dismembered the inheritance of Charle- magne. 1. Beyond the north-eastern frontier of the Saracen empire dwelt a warlike and powerful nation of the Tartar family, who defended the independence of Turkestan from the Sea of Aral to the great central chains of mountains. In the wars which the caliphs or their lieutenants waged against them many of these Turks were led into captivity, and dis- persed over the empire. Their strength and courage dis- tinguished them among a people grown eifeminate by lux- ury ; and that jealousy of disaffection among his subjects so natural to an Eastern monarch might be an additional motive with the Caliph Motassem to form bodies of guards out of these prisoners. But his policy was fatally erroneous. More rude and even more ferocious than the Arabs, they contemned the feebleness of the caliphate, while they grasped at its riches. The son of Motassem, Motawakkel, was mur- dered in his palace by the barbarians of the North ; and his fate revealed the secret of the empire, that the choice of its sovereign had passed to their slaves. Degradation and death were frequently the lot of succeeding caliphs; but in the East the son leaps boldly on the' throne which the blood of his father has stained, and the praetorian guards of Bagdad rarely failed to render a fallacious obedience to the nearest heir of the house of Abbas. 2. In about one hundred years after the introduction of the Turkish soldiers the sovereigns of Bagdad sunk almost into oblivion. Al Radi, who died in 940, was the last of these that officiated in the mosque, that commanded the forces in person, that addressed the people from the pulpit, that enjoyed the pomp and splendor of roy- alty. But he was the first who appointed, instead of a viz- ier, a new officer — a mayor, as it were, of the palace — with the title of Emir al Omra, commander of commanders, to whom he delegated by compulsion the functions of his office. This title was usually seized by active and martial spirits ; it was sometimes hereditary, and in effect irrevocable by the ca- liphs, whose names hardly appear after this time in Oriental annals. 3. During these revolutions of the palace every province successively shook off its allegiance ; new principal- ities were formed in Syria and Mesopotamia, as well as in Khorassan and Persia, till the dominion of the Commander of the Faithful was literally confined to the city of Bagdad and its adjacent territory. For a time some of these princes, who had been appointed as governors by the caliphs, pro* Greeks. Etc. REVIVAL OF THE GREEK EMPIRE. 307 fessed to respect his supremacy by naming him in the public prayers and upon the coin; but these tokens of dependence were gradually obliterated. § 4. Such is the outline of Saracenic history for three cen- turies after Mohammed ; one age of glorious conquest ; a second of stationary, but rather precarious, greatness; a third of rapid decline. The Greek empire meanwhile survived, and almost recovered from the shock it had sustained. The position of Constantinople, chosen with a sagacity to which the course of events almost gave the appearance of pre- science, secured her from any immediate danger on the side of Asia, and rendered her as little accessible to an enemy as any city which valor and patriotism did not protect. Yet in the days of Arabian energy she was twice attacked by great naval armaments. The first siege, or rather blockade, con- tinued for seven years (a.d. 068-675) ; the second, though shorter, was more terrible, and her walls, as well as her port, were actually invested by the combined forces of the Caliph Waled, under his brother Moslema (a.d. 716-718). The final discomfiture of these assailants showed the resisting force of the empire, or rather of its capital ; but perhaps the aban- donment of such maritime enterprises by the Saracens may be in some measure ascribed to the removal of their metrop- olis from Damascus to Bagdad. But the Greeks in their turn determined to dispute the command of the sea. By possessing the secret of an inextinguishable fire, they fought on superior terms: their wealth, perhaps their skill, enabled them to employ larger and better appointed vessels ; and they ultimately expelled their enemies from the islands of Crete and Cyprus. By land they were less desirous of en- countering the Moslem. But the increasing distractions of the East encouraged two brave usurpers, Nicephorus Phocas and John Zimisces, to attempt the actual recovery of the lost provinces (a.d. 963-975). They carried the Roman arms (one may use the terra with less reluctance than usual) over Syr- ia ; Antioch and Aleppo were taken by storm ; Damascus submitted ; even the cities of Mesopotamia, beyond the an- cient boundary of the Euphrates, were added to the trophies of Zimisces, who unwillingly spared the capital of the caliph- ate. From such distant conquests it was expedient, and in- deed necessary, to withdraw ; but Cilicia and Antioch were permanently restored to the empire. At the close of the tenth century the emperors of Constantinople possessed the best and greatest portion of the modern kingdom of Naples, a part of Sicily, the whole European dominions of the Otto- 308 REVIVAL OF THE GREEK EMPIRE. Chap. VL mans, the province of Anatolia or Asia Minor, with some part of Syria and Armenia. § 5. These successes of tlie Greek empire were certainly much rather due to the weakness of its enemies than to any revival of national courage and vigor; yet they would prob- ably have been more durable if the contest had been only with the caliphate, or the kingdoms derived from it. But a new actor was to appear on the stage of Asiatic tragedy. The same Turkish nation, the slaves and captives from which had become arbiters of the sceptre of Bagdad, passed their original limits of the laxartes or Sihon. The sultans of Ghazna, a dynasty whose splendid conquests were of very short duration, had deemed it politic to divide the strength of these formidable allies by inviting a part of them into Khorassan. They covered that fertile province with their pastoral tents, and beckoned their compatriots to share the riches of the South. The Ghaznevides fell the earliest vic- tims (a.d. 1038); but Persia, violated in turn by every con- queror, was a tempting and unresisting prey. Togrol Bek, the founder of the Seljukian dynasty of Turks, overthrew the family of Bowides, who had long reigned at Ispahan, respect- ed the pageant of Mohammedan sovereignty in the Caliph of Bagdad, embraced, with all his tribes, the religion of the vanquished, and commenced the attack upon Christendom by an irruption into Armenia (a.d. 1038-1063). His nephew and successor. Alp Arslan, defeated and took prisoner the Emperor Roman us Diogenes (a.d. 1071) ; and the conquest of Asia Minor was almost completed by princes of the same family, the Seljukians of Rt\m,'' who were permitted by Malek Shah, the third sultan of the Turks, to form an independent kingdom, of which Iconium was the capital. Through their own exertions, and the selfish impolicy of rival competitors for the throne of Constantinople, who bartered the strength of the empire for assistance, the Turks became masters of the Asiatic cities and fortified passes; nor did there seem any obstacle to the invasion of Europe. § 6. In this state of jeopardy, the Greek empire looked for aid to the nations of the West, and received it in fuller measure than was expected, or perhaps desired. The deliv- erance of Constantinople was, indeed, a very secondary object with the crusaders. But it was necessarily included in their scheme of operations, which, though they all tended to the recovery of Jerusalem, must commence with the first ene- mies that lay on their line of march. The Turks were entire * EOim, i. e., country of the Eonians. Greeks, Etc. CONQUESTS OF THE TURKS. 309 ly defeated, their capital of Nice restored to the empire. As the Franks passed onward, the Emperor Alexius Comnenus trod on their footsteps, and secured to himself the fruits for which their enthusiasm disdained to wait. He regained pos- session of the strong places on the ^gean shores, of the de- files of Bithyhia, and of the entire coast of Asia Minor, both on the Euxine and Mediterranean seas, which the Turkish armies, composed of cavalry and unused to regular w^arfare, could not recover. So much must undoubtedly be ascribed to the first crusade. But I think that the general effect of these expeditions has been overrated by those who consider them as having permanently retarded the progress of the Turkish power. The Christians in Palestine and Syria were hardly in contact with the Seljukian kingdom of Rilm, the only enemies of the empire. Other causes are adequate to explain the equipoise in which the balance of dominion in Aiiatolia was kept during the twelfth century ; the valor and activity of the two Comneni, John and Manuel, especial- ly the former ; and the frequent partitions and internal feuds, through which the Seljukians of Iconium,like all other Orient- al governments, became incapable of foreign aggression. But whatever obligation might be due to the first cru- saders from the Eastern Empire w^as cancelled by their de- scendants one hundred years afterwards, when the fourth in number of those expeditions was turned to the subjugation of Constantinople itself One of those domestic revolutions which occur perpetually in Byzantine history had placed an usurper on the imperial throne. The lawful monarch was condemned to blindness and a prison ; but the heir escaped to recount his misfortunes to the fleet and army of crusaders assembled in the Dalmatian port of Zara. This armament had been collected for the usual purposes, and through the usual motives, temporal and spiritual, of a crusade ; the mili- tary force chiefly consisted of French nobles ; the naval was supplied by the Republic of Venice, whose doge commanded personally in the expedition. It was not, apparently, consist- ent with the primary object of retrieving the Christian affairs in Palestine to interfere in the government of a Christian empire ; but the temptation of punishing a faithless people, and the hope of assistance in their subsequent operations, pre- vailed. They turned their prows up the Archipelago, and, notwithstanding the vast population and defensible strength of Constantinople, compelled the usurper to fly, and the citi- zens to surrender. But animosities springing from religious schism and national jealousy were not likely to be allayed 310 PARTITION OF THE EMPIRE. Chap. VI. by such remedies ; the Greeks, wounded in their pride and bigotry, regarded the legitimate emperor as a creature of their enemies, ready to sacrifice their Church, a stipulated condition of his restoration, to that of Rome. In a few !* months a new sedition and conspiracy raised another usurp- er in defiance of the crusaders' army encamped without the walls. The siege instantly recommenced, and after three months the city of Constantinople was taken by storm (a.d. 1204). The lawful emperor and his son had perished in the re- bellion that gave occasion to this catastrophe, and there re- mained no right to interfere with that of conquest. But the Latins were a promiscuous multitude, and what their inde- pendent valor had earned was not to be transferred to a sin- gle master. Though the name of emperor seemed necessary for the government of Constantinople, the unity of despotic power was very foreign to the principles and the interests of the crusaders. In their selfish schemes of aggrandizement they tore in pieces the Greek empire. One-fourth only was allotted to the emperor, three-eighths were the share of the Republic of Venice, and the remainder was divided among the chiefs. Baldwin, count of Flanders, obtained the imperial title, with the feudal sovereignty over the minor principali- ties. A monarchy thus dismembered had little prospect of honor or durability. The Latin emperors of Constantinople were more contemptible and unfortunate, not so much from personal character as political weakness, than their predeces- sors; their vassals rebelled against sovereigns not more pow- erful than themselves ; the Bulgarians, a nation who, after being long formidable, had been subdued by the imperial arms, and only recovered independence on the eve of the Latin conquest, insulted their capital ; the Greeks viewed them with silent hatred, and hailed the dawning deliverance from the Asiatic coast. On that side of the Bosporus the Latin usurpation was scarcely for a moment acknowledged; Nice became the seat of a Greek dynasty, who reigned with honor as far as the Maeander ; and, crossing into Europe, after having established their dominion throughout Roma- nia and other provinces, expelled the last Latin emperors from Constantinople in less than sixty years from its capture (a.d. 1261). § 7. During the reign of these Greeks at Nice they had fortunately little to dread on the side of their former enemies, and were generally on terms of friendship with the Selju- kians of Iconium. That monarchy, indeed, had sufficient Gkeeks, etc. invasion OF ASIA. 311 objects of aiDprehension for itself. Their own example in changing the upland plains of Tartary for the cultivated val- leys of the south was imitated in the thirteenth century by two successive hordes of Northern barbarians. The Karis- mians, whose tents had been pitched on the lower Oxus and Caspian Sea, availed themselves of the decline of the Turkish power to establish their dominion in Persia, and menaced, though they did not overthrow, the kingdom of Iconium. A more tremendous storm ensued in the irruption of Moguls under the sons of Zingis Khan. From the farthest regions of Chinese Tartary issued a race more fierce and destitute of civilization than those who had preceded, whose numbers were told by hundreds of thousands, and whose only test of victory was devastation. All Asia, from the Sea of China to the Euxine, wasted beneath the locusts of the North. They annihilated the phantom of authority which still lingered with the name of caliph at Bagdad. They reduced into de- pendence, and finally subverted, the Seljukian dynasties of Persia, Syria, and Iconium. The Turks of the latter king- dom betook themselves to the mountainous country, where they formed several petty principalities, which subsisted by incursions into the territory of the Moguls or the Greeks. The chief of one of these, named Othman, at the end of the thirteenth century, penetrated into the province ofBithynia, from which his posterity were never withdrawn. The empire of Constantinople had never recovered the blow it received at the hands of the Latins. Most of the islands in the Archipelago, and the provinces of proper Greece, from Thessaly southward, were still possessed by those invaders. The wealth and naval power of the empire had passed into the hands of the maritime republics ; Ven- ice, Genoa, Pisa, and Barcelona were enriched by a commerce which they earned on as independent states within the pre- cincts of Constantinople, scarcely deigning to solicit the per- mission or recognize the supremacy of its master. In a great battle fought under the walls of the city, between the Vene- tian and Genoese fleets, the weight of the Roman Empire, in Gibbon's expression, was scarcely felt in the balance of these opulent and powerful republics (a.d. 1352). Eight galleys were the contribution of the Emperor Cantacuzene to his Ve- netian allies ; and upon their defeat he submitted to the ig- nominy of excluding them forever from trading in his do- minions. Meantime the remains of the empire in Asia were seized by the independent Turkish dynasties, of which the most illustrious, that of the Ottomans, occupied the province 312 THE TARTARS OR MOGULS. Chap. VL of Bithynia (a.d. 1431). Invited by a Byzantine faction into Europe about the middle of the fourteenth century, they fixed themselves in the neighborhood of the capital, and in the thirty years' reign of Amurath I. subdued, with little resistance, the province of Romania and the small Christian kingdoms that had been formed on the lower Danube. Ba- jazet, the successor of Amurath, reduced the independent emirs of Anatolia to subjection, and, after long threatening Constantinople, invested it by sea and land (a.d. 1396). The Greeks called loudly upon their brethren of the West for aid against the common enemy of Christendom ; but the flower of French chivalry had been slain or taken in the battle of Nicopolis, in Bulgaria, where the King of Hungary, notwith- standing the heroism of these volunteers, was entirely de- feated by Bajazet. The Emperor Manuel left his capital with a faint hope of exciting the courts of Europe to some decided efforts by personal representations of the danger; and, during his absence, Constantinople was saved, not by a friend indeed, but by a power more formidable to her ene- mies than to herself The loose masses of mankind, that, without laws, agricul- ture, or fixed dwellings, overspread the vast central regions of Asia, have, at various times, been impelled by necessity of subsistence, or through the casual appearance of a com- manding genius, upon the domain of culture and civilization. Two principal roads connect the nations of Tartary with those of the west and south ; the one into Europe, along the Sea of Azoph and northern coast of the Euxine ; the other across the interval between the Bukharian Mountains and the Caspian into Persia. Four times at least within the pe- riod of authentic history the Scythian tribes have taken the former course, and poured themselves into Europe, but each wave was less effectual than the preceding. The first of these was in the fourth and fifth centuries, for we may range those rapidly successive migrations of the Goths and Huns together, when the Roman ^Empire fell to the ground, and the only boundary of barbarian conquest was the Atlantic Ocean upon the shores of Portugal. The second wave came on with the Hungarians in the tenth century, whose rava- ges extended as far as the southern provinces of France. A third attack was sustained from the Moguls, under the children of Zingis, at the same period as that which over- whelmed Persia. The Russian monarchy was destroyed in this invasion, and for two hundred years that great country lay prostrate under the yoke of the Tartars. As they ad- vanced, Poland and Hungary gave little opposition, and the Greeks, Etc. DANGER OF CONSTANTINOPLE. 313 farthest nations of Europe were appalled by the tempest. But Germany was no longer as she had been in the anarchy of the tenth century ; the Moguls were unused to resistance, and still less inclined to regular warfare ; they retired before the Emperor Frederick II., and the utmost points of their western invasion were the cities of Lignitz, in Silesia, and Neustadt, in Austria (a.d. 1245). In the fourth and last ag- gression of the Tartars their progress in Europe is hardly perceptible ; the Moguls of Timur's army could only boast the destruction of Azoph and the pillage of some Russian provinces. Timur, the sovereign of these Moguls and found- er of their second dynasty, which has been more permanent and celebrated than that of Zingis, had been the prince of a small tribe in Transoxiana, between the Gihon and Sirr, the doubtful frontier of settled and pastoral nations. His own energy and the weakness of his neighbors are sufficient to explain the revolution he effected. Like former conquerors, Togrol Bek and Zingis, he chose the road through Persia; and, meeting little resistance from the disordered govern- ments of Asia, extended his empire on one side to the Syrian coast, while by successes still more renowned, though not belonging to this place, it reached, on the other, to the heart of Hindostan. In his old age the restlessness of ambition impelled him against the Turks of Anatolia. Bajazet has- tened from the siege of Constantinople to a more perilous contest; his defeat and captivity in the plains of Angora clouded for a time the Ottoman crescent, and preserved the wreck of the Greek Empire for fifty years longer (a.d. 1402). § 8. The Moguls did not improve their victory ; in the western parts of Asia, as in Hindostan, Timur was but a bar- barian destroyer, though at Samarcand a sovereign and a legislator. He gave up Anatolia to the sons of Bajazet ; but the unity of their power was broken; and the Ottoman king- dom, like those which had preceded, experienced the evils of partition and mutual animosity. For about twenty years an opportunity was given to the Greeks of recovering part of their losses ; but they were incapable of making the best use of this advantage, and when Amurath II. reunited under his vigorous sceptre the Ottoman monarchy, Constantinople was exposed to another siege and to fresh losses (a.d. 1421). Her walls, however, repelled the enemy ; and during the reign of Amurath she had leisure to repeat those signals of distress which the princes of Christendom refused to observe. Every province was in turn subdued — every city opened her gates to the conqueror : the limbs were lopped off one by 14 314 ALARM IN EUROPE. Chap. VI. one; but the pulse still beat at the heart, and the majesty of the Roman name was ultimately confined to the walls of Constantinople. Before Mohammed II. planted his cannon against them, he had completed every smaller conquest and deprived the expiring empire of every hope of succor or de- lay. It was necessary that Constantinople should fall ; but the magnanimous resignation of her emperor bestows an honor upon her fall which her prosperity seldom earned. The long deferred but inevitable moment arrived, and the last of the Caesars (I will not say of the Palaeologi) folded round him the imperial mantle, and remembered the name which he represented in the dignity of heroic death (a.d. 1453). It is thus that the intellectual principle, when en- feebled by disease or age, is found to rally its energies in the presence of death, and pour the radiance of unclouded rea- son around the last struggles of dissolution. § 9. Though the fate of Constantinople had been protract- ed beyond all reasonable expectation, the actual intelligence operated like that of sudden calamity. A sentiment of con- sternation, perhaps of self-reproach, thrilled to the heart of Christendom. There seemed no longer any thing to divert the Ottoman armies from Hungary ; and if Hungary should be subdued, it was evident that both Italy and the German Empire were exposed to invasion. A general union of Chris- tian powers was required to withstand this common enemy. But the popes, who had so often armed them against each other, wasted their spiritual and political counsels in attempt- ing to restore unanimity. War was proclaimed against the Turks at the Diet of Frankfort, in 1454 ; but no efforts were made to carry the menace into execution. No prince could have sat on the imperial throne more unfitted for the emer- gency than Frederick III. ; his mean spirit and narrow ca- pacity exposed him to the contempt of mankind — his ava- rice and duplicity insured the hatred of Austria and Hunga- ry. During the papacy of Pius II., whose heart was thor- oughly engaged in this legitimate crusade, a more specious attempt was made by convening a European congress at Mantua. Almost all the sovereigns attended by their en- voys : it was concluded that 50,000 men-at-arms should be raised, and a tax levied for three years of one-tenth from the revenues of the clergy, one-thirtieth from those of the laity, and one-twentieth from the capital of the Jews (a.d. 1459). Pius engaged to head this armament in person ; but when he appeared next year at Ancona, the appointed place of embarkation, the princes had failed in all their promises of men and money, and he found only a headlong crowd of ad- Greeks, Etc. OTTOMAN CONQUESTS SUSPENDED. 315 venturers, destitute of every necessary, and expecting to be fed and paid at the pope's expense. It was not by such a body that Mohammed could be expelled from Constantino- ple. If the Christian sovereigns had given a steady and sin- cere co-operation, the contest would still have been arduous and uncertain. In the early crusades the superiority of arms, of skill, and even of discipline, had been uniformly on the side of Europe. But the present circumstances were far from similar. An institution, begun by the first and perfected by the second Amurath, had given to the Turkish armies what their enemies still wanted, military subordination and vet- eran experience. Aware, as it seems, of the real superiori- ty of Europeans in war, these sultans selected the stoutest youths from their Bulgarian, Servian, or Albanian captives, who were educated in habits of martial discipline, and form- ed into a regular force with the name of Janizaries. After conquest had put an end to personal captivity, a tax of every fifth male child was raised upon the Christian population for the same purpose. The arm of Europe was thus turned upon herself; and the Western nations must have contended with troops of hereditary robustness and intrepidity whose emu- lous enthusiasm for the country that had adopted them was controlled by habitual obedience to their commanders. Yet forty years after the fall of Constantinople, at the epoch of Charles VIII.'s expedition into Italy, the just ap- prehensions of European statesmen might have gradually subsided. Except the Morea, Negropont, and a few other unimportant conquests, no real progress had been made by the Ottomans. Mohammed II. had been kept at bay by the Hungarians; he had been repulsed with some ignominy by the knights of St. John from the island of Rhodes. A petty chieftain defied this mighty conqueror for twenty years in the mountains of Epirus; and the persevering courage of his desultory warfare with such trifling resources, and so little prospect of ultimate success, may justify the exaggerated admiration with which his contemporaries honored the name of Scanderbeg. Once only the crescent was displayed on the Calabrian coast ; but the city of Otranto remained but a year in the possession of Mohammed (a.d. 1480). On his death, a disputed succession involved his children in civil war. Bajazet, the eldest, obtained the victory ; but his ri- val brother, Zizim, fled to Rhodes, from whence he was re- moved to France, and afterwards to Rome. Apprehensions of this exiled prince seem to have dictated a pacific policy to the reigning sultan, whose character did not possess the usual energy of Ottoman sovereigns. 316 LIST OF POPES Chap. VII. Part I. CHAPTER YII. HISTORY OF ECCLESIASTICAL POWER DURING THE MIDDLE AGES. PART I. [. Wealth of the Clergy. Its Sources, § 2. Spoliation of Church Property. § 3. Ecclesiastical Jurisdiction. Arbitrative. Coercive. § 4. Political Power of the Church. § 5. Supremacy of the Crown. § 6. Charlemagne. § 7. Change after his Death, and Encroachments of the Church in the Ninth Century. § 8. Primacy of the See of Rome. Its early Stage. § 9. Gregory I. 5 10. Council of Frankfort. § 11. False Decretals. 5 12. Progress of Papal Authority. 5 13. Excommunica- tion. § 14. Interdicts. § 15. State of the Church in the Tenth Century. § 16. Marriage of Priests. § IT. Simony. Episcopal Elections. § 18. Imperial Author- ity over the Popes. § 19. Disputes concerning Investitures. Gregory VII. and Henry IV. Concordat of Calixtus. 5 20. Election by Chapters. § 21. General System of Gregory VII. § 22. Progress of Papal Usurpations in the Twelfth Cen- tury. § 23. Innocent III. His Character and Schemes. LIST OF POPES DURING THE MIDDLE AGES. Year of Accession A.D. 795 Leo III. 816 Stephen IV. 817 Paschal I. 824 Eugenius II, 827 Valentinus. 827 Gregory IV. 844 Sergius II. 842 Leo IV. 856 Benedict IIL 858 Nicholas I. 867 Hadrian IL 872 John VIIL 882 Martin II. 884 Hadrian III. 885 Stephen V. 891 Formosus. 896 Boniface VI. 896 Stephen VI. 897 Roraanus. 898 Theodore II. 898 John IX. 900 Benedict IV. 903 LeoV. 903 Christopher. 904 Sergius IIL 912^)Anastasius III. Year of Accession A.D. 913 Laudo. 914 John X. 928 Leo VI. 929 Stephen VII. 931 John XI. 936 LeoVn. * 939 Stephen VIIL 942 (?) Martin III. 946 Agapetus II. 955 John XII. 963 Leo VIIL 964 Benedict V. (Anti -pope?) 965 John XIII. 972 Benedict VI. 974 Boniface VII. (?). 974 Domnus II. (?). 974 Benedict VII. 983 John XIV. 984 John XV. 996 Gregory V. 996 John XVI. 1000 Sylvester IL 1003 John XVII. 1003 John XVIII. 1009 Sergius IV. 1012 Benedict VIIL EccLEs. Power. DURING THE MIDDLE AGES. 317 Year of Accessiou A.D. Year of Accession A.D. 1024 John XIX. 1261 Urban IV. 1033 Benedict IX. 1266 Clement IV. 1044 Sylvester (Anti-pope). 1269 Vacancy. 1045 (?) Gregory VI. | 1271 Gregory X. 1046 Clement II. 1276 Innocent V. 1048 Damasus II. 1276 Hadrian V. 1048 Leo IX. 1277 John XX. or XXL 1054 Victor II. 1277 Nicholas III. 1057 Stephen IX. 1281 Martin IV. 1058 Benedict X. 1285 Honorius IV. 1059 Nicholas II. 1289 Nicholas IV. 1061 Alexander II. 1294 Celestine V. 1073 Gregory VII. (Hildebrand). 1294 Boniface VIII. 1080 (Clement, Anti-pope). 1086 Victor III. Popes at Avignon. 1087 1099 Urban II. Paschal II. 1303 1305 Benedict XI. Clement V. 1118 Gelasius II. 1316 John XXL or XXIL 1119 Calixtus IL 1334 Benedict XII. (Gregory, Anti-pope). 1342 Clement VI. 1121 (Celestine, Anti-pope). 1352 Innocent VI. 1124 1130 1143 Honorius II. Innocent II. (Anacletus, Anti-pope). Celestine II. 1362 1370 U^'ban V. Return to Rome. Gregory XL 1144 Lucius II. The great Schism. 1145 Eugenius III. 1153 Anastasius IV. 1378 Urban VI., Clement VII 1154 Hadrian IV. 1389 Boniface IX. 1160 Alexander III. 1394 Benedict (Anti-pope). 1160 (Victor, Anti-pope). 1404 Innocent VII. 1164 (Paschal III., Anti-pope). 1406 Gregory XII. 1168 (Calixtus, Anti-pope). 1409 Alexander V. 1180 Lucius in. 1410 John XXIL or XXIIL 1185 Urban III. 1417 Martin V. 1187 Gregory VIII. 1431 Eugene IV. 1187 Clement III. 1455 Calixtus IV. 1191 Celestine III. 1458 Pius IL 1198 Innocent III. 1464 Paul II. 1216 Honorius III. 1471 Sixtus IV. 1227 Gregory IX. 1484 Innocent VIII. 1241 Celestine IV. 1493 Alexander VI. 1241 Vacancy. 1503 Pius III. 1243 Innocent IV. 1503 Julius IL 1255 Alexander IV. 1513 LeoX. § 1. At the irruption of the northern invaders into the Roman Empire they found the clergy ah-eady endowed with extensive possessions. Besides the spontaneous oblations upon which the ministers of the Christian Church had orig- inally subsisted, they had obtained, even under the pagan emperors, by concealment or connivance — for the Roman law 318 WEALTH OF THE CHURCH. Chap. VII. Part 1. did not permit a tenure of lands in mortmain — certain im- movable estates, the revenues of which were applicable to their own maintenance and that of the poor. These, indeed, were precarious, and liable to confiscation in times of perse- cution. But it was among the first efiects of the conversion of Constantine to give not only a security, but a legal sanc- tion, to the territorial acquisitions of the Church. The Edict of Milan, in 313, recognizes the actual estates of ecclesiastic- al corporations. Another, published in 321, grants to all the subjects of the empire the power of bequeathing their prop- erty to the Church. His own liberality and that of his suc- cessors set an example which did not want imitators. Pass- ing rapidly from a condition of distress and persecution to the summit of prosperity, the Church degenerated as rapidly from her ancient purity, and forfeited the I'espect of future ages in the same proportion as she acquired the blind ven- eration of her own. Covetousness, especially, became almost a characteristic vice. The devotion of the conquering nations, as it was still less enlightened than that of the subjects of the empire, so was it still more munificent. The ecclesiastical hierarchy never received any territorial endowment by law, either under the Roman Empire or the kingdoms erected upon its ruins. But the voluntary munificence of princes, as well as their sub- jects, amply supplied the place of a more universal provision. Large private estates, or, as they were termed, patrimonies, not only within their own dioceses, but sometimes in distant countries, sustained the dignity of the principal sees, and es- pecially that of Rome. But it must be remarked that many of these donations are of lands uncultivated and unappro- priated. The monasteries acquired legitimate riches by the culture of these deserted tracts and by the prudent manage- ment of their revenues, which were less exposed to the or- dinary means of dissipation than those of the laity. If the possessions of ecclesiastical communities had all been as fair- ly earned, we could find nothing in them to reprehend. But other sources of wealth were less pure, and they derived their wealth from many sources. Those who entered into a monastery threw frequently their whole estates into the common stock ; and even the children of rich parents were expected to make a donation of land on assuming the cowl. Some gave their property to the Church before entering on militaiy expeditions ; gifts were made by some to take efiect after their lives, and bequests by many in the terrors of dis- solution. Even those legacies to charitable purposes, which EccLES. Power. ITS INCREASE. 319 the clergy could with more decency and epeciousness rec- ommend, and of which the administration was generally con- fined to them, were frequently applied to their own benefit. They failed not, above all, to inculcate upon the wealthy sin- ner that no atonement could be so acceptable to Heaven as liberal presents to its earthly delegates. To die without al- lotting a portion of worldly wealth to pious uses was account- ed almost like suicide, or a refusal of the last sacraments ; and hence intestacy passed for a sort of fraud upon the Church, which she punished by taking the administration of the deceased's effects into her own hands. This, however, was peculiar to England, and seems to have been the case there only from the reign of Henry IH. to that of Edward HI., when the bishop took a portion of the intestate's person- al estate for the advantage of the Church and poor, instead of distributing it among his next of kin. The canonical pen- ances imposed upon repentant offenders, extravagantly se- vere in themselves, were commuted for money or for immov- able possessions — a fertile though scandalous source of mo- nastic wealth, which the popes afterwards diverted into their own coffers by the usage of dispensations and indulgences. The Church lands enjoyed an immunity from taxes, though not m general from military service, when of a feudal ten- ure.' But their tenure was frequently in what was called frankalmoigne, without any obligation of service. Hence it became a customary fraud of lay proprietors to grant estates to the Church, which they received again by way of fief or lease, exempted from public burdens. As an additional source of revenue, and in imitation of the Jewish law, the payment of tithes was recommended or enjoined. These, however, were not applicable at first to the maintenance of a resident clergy. Parochial divisions, as they now exist, did not take place, at least in some coun- tries, till several centuries after the establishment of Chris- tianity. The rural churches, erected successively as the ne- cessities of a congregation required or the piety of a land- lord suggested, were in fact a sort of chapels dependent on the cathedral, and served by itinerant ministers at the bish- op's discretion. The bishop himself received the tithes, and apportioned them as he thought fit. A capitulary of Charle- magne, however, regulates their division into three parts : > Palgrave has shown that the Anglo-Saxon clergy were not exempt, originally at least, from the trinoda necessitas imposed on all allodial proprietors. They were bet- ter treated on the Continent ; and Boniface exclaims that in no part of the world waa such servitude imposed on the Church as among the English. 320 TITHES. Chap. VII. Paut I. one for the bishop and his clergy, a second for the poor, and a third for the support of the fabric of the Church. Some of the rural churches obtained by episcopal concessions the privileges of baptism and burial, which were accompanied with a fixed share of tithes, and seemed to imply the resi- dence of a minister. The same privileges were gradually extended to the rest; and thus a complete parochial divis- ion was finally established. But this was hardly the case in England till near the time of the Conquest.^ About the year 1200, the obligation of paying tithes, which had been originally confined to those called predial, or the fruits of the earth, was extended, at least in theory, to every species of profit, and to the wages of every kind of labor. § 2. Yet there were many hindrances that thwarted the clergy in their acquisition of opulence, and a sort of reflux that set sometimes very strongly against them. In times of barbarous violence nothing can thoroughly compensate for the inferiority of physical strength and prowess. The ecclesiastical history of the Middle Ages presents one long contention of fraud against robbery ; of acquisitions made by the Church through such means as I have described, and torn from her by lawless power. Notwithstanding the fre- quent instances of extreme reverence for religious institu- tions among the nobility, we should be deceived in suppos- ing this to be their general character. Rapacity, not less insatiable than that of the abbots, was commonly united with a daring fierceness that the abbots could not resist.^ 2 The grant of Ethelwolf m 855 has appeared to some antiquaries the most proba- ble origin of the general right to tithes in England. This grant is recorded in two charters ; the first transcribed in Ingulfus's " History of Crojiand," and dated at Winchester on the Nones of November, 855; the second extant in two chartularies, and bearing date at Wilton, April 22, 854. But the latter is marked by Mr. Kemble as spurious (Codex Ang.-Sax. Diplom., ii., 52) ; and the work of Ingulfus is also re- garded as spurious. The fact, however, that Ethelwolf made some great and gen- eral donation to the Church rests on the authority of Asser, whom later writers have principally copied. His words are, " Eodem quoque anno (855) Adelwolfus venera- bilis, rex Occideutalium Saxonum, decimam totius regni sui partem ab omni regali servitio et tributo liberavit, et in serapiterno graflo in cruce Christi, pro redemptionc animae suae et antecessorum suorura, Uni et Trino Deo immolavit." (Gale, XV., Script, iii., 156.) It is really difficult to infer any thing from such a passage ; but whatever the writer may have meant, or whatever truth there may be in his story, it seems impossible to strain his words into a grant of tithes. 8 The Church was often compelled to grant leases of her lauds, under the name of precarioe, to laymen who probably rendered little or no service in return, though a rent or census was expressed in the instrument. These precarice seem to have been for life, but Avere frequently renewed. They are not to be confounded with terrce censuales, or lands let to a tenant at rack-rent, which of course formed a considerable branch of revenue. The grant was called j)recaria from being obtained at the prayer of the grantee ; and the uncertainty of its renewal seems to have given rise to the adjective precarious. In the ninth century, though the pretensions of the bishops were never higher, the Church itself was more pillaged under pretext of these pre- carioe, and in other ways, than at any former time. EccLES. Power. ECCLESIASTICAL AUTHORITY. 321 In every country we find continual lamentation over the plunder of ecclesiastical possessions. The parochial tithes, especially, as the hand of robbery falls heaviest upon the weak, were exposed to unlawful seizure. In the tenth and eleventh centuries nothing was more common than to see the revenues of benefices in the hands of lay impropriators, who employed curates at the cheapest rate, an abuse that has never ceased in the Church. Both the bishops and con- ■vents were obliged to invest powerful lay protectors, under the name of advocates, with considerable fiefs, as the price of their assistance against depredators. But these advo- cates became too often themselves the spoilers, and op- pressed the helpless ecclesiastics for whose defense they had been engaged. If it had not been for these drawbacks, the clergy must, one would imagine, have almost acquired the exclusive property of the soil. They did enjoy, according to some authorities, nearly one half of England, and, I be- lieve, a greater proportion in some countries of Europe. They had reached, perhaps, their zenith in respect of terri- torial property about the conclusion of the twelfth century.* After that time the disposition to enrich the clergy by pious donations grew more languid, and was put under certain le- gal restraints, to which I shall hereafter advert ; but they became rather more secure from forcible usurpations. § 3. The acquisitions of wealth by the Church were hard- ly so remarkable, and scarcely contributed so much to her greatness, as those innovations upon the ordinary course of justice which fall under the head of ecclesiastical juris- diction and immunity. Episcopal jurisdiction, properly so called, may be considered as depending upon the choice of litigant parties, upon their condition, and upon the subject- matter of their differences. 1. Arhitrative Authority. — The arbitrative authority of ecclesiastical pastors, if not coeval with Christianity, grew up very early in the Church, and was natural, or even neces- sary, to an insulated and persecuted society.^ Accustomed to feel a strong aversion to the imperial tribunals, and even to consider a recurrence to them as hardly consistent with their profession, the early Christians retained somewhat of a similar prejudice, even after the establishment of their re- ligion. The arbitration of their bishops still seemed a less objectionable mode of settling differences. And this arbi- trative jurisdiction was powerfully supported by a law of * The great age of monasteries in England was the reigns of Henry I., Stephen, and Henry II. * See 1 Corinth, vi., 4. 14* 322 ECCLESIASTICAL AUTHORITY. Ciiaf. VII. Part 1 Constantine, which directed the civil magistrate to enforce the execution of episcopal awards. But the Church had no jurisdiction in questions of a temporal nature, except by means of the joint reference of contending parties. 2. Coercive Authority. — If it was considered almost as a general obligation upon the primitive Christians to decide their civil disjjutes by internal arbitration, much more would this be incumbent upon the clergy. The canons of several councils, in the fourth and fifth centuries, sentence a bishop or priest to deposition who should bring any suit, civil or even criminal, before a secular magistrate. This must, it should appear, be confined to causes where the defendant was a clerk; since the ecclesiastical court had hitherto no coercive jurisdiction over the laity. But the early Merovin- gian kings adopted the exclusive jurisdiction of the bishop over causes wherein clerks were interested, without any of the checks which Justinian had provided. Many laws enact- ed during their reigns, and under Charlemagne, strictly pro- hibit the temporal magistrates from entertaining complaints against the children of the Church. This jurisdiction over the civil causes of clerks was not im- mediately attended with an equally exclusive cognizance of criminal offenses imputed to them, wherein the state is so deeply interested, and the Church could inflict so inadequate a punishment. Justinian appears to have reserved such of- fenses for trial before the imperial magistrate, though with a material provision that the sentence against a clerk should not be executed w^ithout the consent of the bishop or the final decision of the emperor. The bishop is not expressly invested with this controlling power by the laws of the Merovingians ; but they enact that he must be present at the trial of one of his clerks; Avhich probably was intended to declare the necessity of his concurrence in the judgment. The episcopal order was, indeed, absolutely exempted from secular jurisdiction by Justinian ; a privilege which it had vainly endeavored to establish under the earlier emperors. France permitted the same immunity ; Chilperic, one of the most arbitrary of her kings, did not venture to charge some of his bishops with treason, except before a council of their brethren. Finally, Charlemagne seems to have extended to the whole body of the clergy an absolute exemption from the judicial authority of the magistrate. 3. The character of a cause, as w^ell as of the parties en- gaged, might bring it within the limits of ecclesiastical juris- diction. In all questions simply religious the Church had EccLES. FowER. POLITICAL POWER OF CLERGY. 323 an original right of decision ; in those of a temporal nature the civil magistrate had, by the imperial constitution, as ex- clusive an authority. Later ages witnessed strange innova- tions in this respect, when the spiritual courts usurped, under sophistical pretenses, almost the whole administration of jus- tice. But these encroachments were not, I apprehend, very striking till the twelfth century ; and as about the same time measures, more or less vigorous and successful, began to be adopted in order to restrain them, I shall defer this part of the subject for the present. § 4. In this sketch of the riches and jurisdiction of the hierarchy, I may seem to have implied their political influ- ence, which is naturally connected with the two former. They possessed, however, more direct means of acquiring temporal power. Even under the Roman emperors they had found their roads into palaces ; but they assumed a far more decided influence over the new kingdoms of the West. They were entitled, in the first place, by the nature of those free governments, to a privilege unknown under the imperial despotism, that of assisting in the deliberative assemblies of the nation. Councils of bishops, such as had been convoked by Constantine and his successors, were limited in their func- tions to decisions of faith or canons of ecclesiastical disci- pline. But the Northern nations did not so well preserve the distinction between secular and spiritual legislation. The laity seldom, perhaps, gave their suffrage to the canons of the Church; but the Church was not so scrupulous as to tres- passing upon the province of the laity. Many provisions are found in the canons of national and even provincial councils which relate to the temporal constitution of the state. Thus one held at Calcluith (an unknown place in England), in 787, enacted that none but legitimate princes should be raised to the throne, and not such -as were engendered in adultery or incest. But it is to be observed that, although this synod was strictly ecclesiastical, being summoned by the pope's legate, yet the kings of Mercia and Northumberland, with many of their nobles, confirmed the canons by their signa- ture. The bishops acquired and retained a great part of their ascendency by a very respectable instrument of power — in- tellectual superiority. As they alone were acquainted with the art of writing, they were naturally intrusted with polit- ical correspondence, and with the framing of the laws. As they alone knew the elements of a few sciences, the educa- tion of royal families devolved upon them as a necessary 824 SUPEEMACY OF THE STATE. Chap. VII. Part i. duty. In the fall of Rome, their influence upon the barba- rians wore down the asperities of conquest, and saved the provincials half the shock of that tremendous revolution. As captive Greece is said to have subdued her Roman con- queror, so Rome, in her own turn of servitude, cast the fetters of a moral captivity upon the fierce invaders of the North. Chiefly through the exertions of the bishops, whose ambition may be forgiven for its efiects, her religion, her language, in part even her laws, were transplanted into the courts of Paris and Toledo, which became a degree less barbarous by imitation. § 5. Notwithstanding, however, the great authority and privileges of the Church, it was decidedly subject to the su- premacy of the crown, both during the continuance of the VYestern Empire and after its subversion. The emperors convoked, regulated, and dissolved universal councils ; the kings of France and Spain exercised the same right over the synods of their national churches. The Ostrogoth kings of Italy fixed by their edicts the limits within which matri- mony was prohibited on account of consanguinity, and granted dispensations from them. Though the Roman em- perors left episcopal elections to the clergy and people of the diocese, in which they were followed by the Ostrogoths and Lombards, yet they often interfered so far as so confirm a decision or to determine a contest. The kings of France went farther, and seem to have invariably either nominated the bishops, or, what was nearly tantamount, recommended their own candidate to the electors. § 6. But the sovereign who maintained with the greatest vigor his ecclesiastical supremacy was Charlemagne. Most of the capitularies of his reign relate to the discipline of the Church ; principally, indeed, taken from the ancient canons, but not the less receiving an adcfetional sanction from his authority. Some of his regulations, which appear to have been original, are such as men of High-church principles would, even in modern times, deem infringements of spir- itual independence; that no legend of doubtful authority should be read in the churches, but only the canonical books, and that no saint should be honored whom the whole Church did not acknowledge. These were not passed in a synod of bishops, but enjoined by the sole authority of the emperor, who seems to have arrogated a legislative power over the Church which he did not possess in temporal aflfairs. Many of his other laws relating to the ecclesiastical constitution are enacted in a general council of the lay nobility as well as EcCLES. Power. PRETENSIONS OF THE HIERARCHY. 325 of prelates, and are so blended with those of a secular nature, that the two orders may apjjear to have equally consented to the whole. His father Pepin, indeed, left a remarkable prec- edent in a council held in 744, where the Nicene faith is de- clared to be established, and even a particular heresy con- demned, with the consent of the bishops and nobles. But whatever share we may imagine the laity in general to have had in such matters, Charlemagne himself did not consider even theological decisions as beyond his province; and, in more than one instance, manifested a determination not to surrender his own judgment, even in questions of that na- ture, to any ecclesiastical authority. § 7. It is highly probable, indeed, that an ambitious hie- rarchy did not endure without reluctance this imperial su- premacy of Charlemagne, though it was not expedient for them to resist a prince so formidable, and from whom they had so much to ejcpect. But their dissatisfaction at a scheme of government incompatible with their own objects of per- fect independence produced a violent recoil under Louis the Debonair, who attempted to act the censor of ecclesiastical abuses with as much earnestness as his father, though with very inferior qualifications for so delicate an undertaking. The bishops, accordingly, were among the chief instigators of those numerous revolts of his children which harassed this emperor. They set, upon one occasion, the first exam- ple of an usurpation which was to become very dangerous to society — the deposition of sovereigns by ecclesiastical au- thority. Louis, a prisoner in the hands of his enemies, had been intimidated enough to undergo a public penance; and the bishops pretended that, according to a canon of the Church, he Avas incapable of returning afterwards to a secu- lar life or preserving the character of sovereignty. Circum- stances enabled him to retain the empire in defiance of this sentence; but the Church had tasted the pleasure of tram- pling upon crowned heads, and was eager to repeat the ex- periment. Under the disjointed and feeble administration of his posterity in their several kingdoms, the bishops availed themselves of more than one opportunity to exalt their tem- poral power. Those weak Carlovingian princes, in their mu- tual animosities, encouraged the pretensions of a common enemy. Thus Charles the Bald and Louis of Bavaria, hav- ing driven their brother Lothaire from his dominions, held an assembly of some bishops, who adjudged him unworthy to reign, and, after exacting a promise from the two allied brothers to govern better than he had done, permitted and S26 ENCROACHMENTS OF THE CHURCH. Cii. VII. Tt. I. commanded them to divide his territories. After concurring in this unprecedented encroachment, Charles the Bald had lit- tle right to complain when, some years afterwards, an assem- bly of bishops declared himself to have forfeited his crown, released his subjects from their allegiance, and transferred his kingdom to Louis of Bavaria. But, in truth, he did not pre- tend to deny the principle which he had contributed to main- tain. Even in his own behalf he did not appeal to the rights of sovereigns, and of the nation whom they represent. "No one," says this degenerate grandson of Charlemagne, "ought to have degraded me from the throne to which I was con- secrated, until at least I had been heard and judged by the bishops, through whose ministry I was consecrated, who are called the thrones of God, in which God sitteth, and by whom he dispenses his judgments; to whose paternal chas- tisement I was willing to submit, and do still submit myself." These passages are very remarkable, and afford a decisive proof that the power obtained by national churches, through the superstitious prejudices then received, and a train of fa- vorable circumstances, was as dangerous to civil govern- ment as the subsequent usurpations of the Roman pontiff, against which Protestant writers are apt too exclusively to direct their animadversions. Voltaire, I think, has remarked that the ninth century was the age of the bishops, as the eleventh and twelfth ware of the popes. It seemed as if Europe was about to pass under as absolute a domination of the hierarchy as had been exercised by the priesthood of an- cient Egypt or the Druids of Gaul. Thus the Bishop of Winchester, presiding as papal legate at an assembly of the clergy in 1141, during the civil war of Stephen and Matilda, asserted the right of electing a king of England to appertain principally to that order ; and by virtue of this unprecedent- ed claim, raised Matilda to the throne. England, indeed, has been obsequious, beyond most other countries, to the arro- gance of her hierarchy, especially during the Anglo-Saxon pe- riod, when the nation was sunk in ignorance and effeminate superstition. Every one knows the story of King Edwy in some form or other, though I believe it impossible to ascer- tain the real circumstances of that controverted anecdote. But, upon the supposition least favorable to the king, the be- havior of Archbishop Odo and Dunstan was an intolerable outrage of spiritual tyranny.^ « Catholic writers, for the most part, contend that Elgiva was the mistress and not the wife of Edwy; but it is impossible with the extant evidence to arrive at any cer- tain conclasion upon the subject. What is manifest alone is, that a young king was persecuted and dethroned by the insolence of monkery exciting a superstitious peo- ple against him. EccLES. Power. RISE OF THE PAPAL POWER. 327 § 8. But, while the prelates of these nations, each within his respective sphere, were prosecuting their system of en- croachment upon the laity, a new scheme was secretly form- ing within the bosom of the Church, to inthrall both that and the temporal governments of the world under an ecclesias- tical monarch. Long before the earliest epoch that can be fixed for modern history, and, indeed, to speak fairly, almost as far back as ecclesiastical testimonies can carry us, the bishops of Rome had been venerated as first in rank among the rulers of the Church. The nature of this primacy is doubtless a very controverted subject. It is, however, re- duced by some moderate Catholics to little more than a prec- edency attached to the See of Rome in consequence of its foundation by the chief of the apostles, as well as the dignity of the imperial city. A sort of general superintendence was admitted as an attribute of this primacy, so that the bishops of Rome were entitled, and indeed bound, to remonstrate, when any error or irregularity came to their knowledge, es- pecially in the Western churches, a greater part of which had been planted by them, and were connected, as it were by filiation, wath the common capital of the Roman Empire and of Christendom. Various causes had a tendency to prevent the bishops of Rome from augmenting their authority in the East, and even to diminish that which they had occasionally exercised ; the institution of patriarchs at Antioch, Alexan- dria, and afterwards at Constantinople, with extensive rights of jurisdiction; the difference of rituals and discipline; but, above all, the many disgusts taken by the Greeks, which ul- timately produced an irreparable schism between the two churches in the ninth century. But within the pale of the Latin Church every succeeding age enhanced the power and dignity of the Roman See. By the constitution of the Church, such at least as it became in the fourth century, its divisions being arranged in conformity to those of the Empire, every province ought to have its metropolitan, and every vicariate its ecclesiastical exarch or primate. The Bishop of Rome presided, in the latter capacity, over the Roman vicariate, comprehending Southern Italy, and the three chief Mediterranean islands. But as it happened, none of the ten provinces forming this division had any metropolitan; so that the popes exercised all metropolitical functions within them, such 'as the consecration of bishops, the convocation of synods, the ultimate decision of appeals, and many other sorts of authority. These provinces are sometimes called the Roman patriarchate, the bishops of Rome having always 328 , GREGORY I. Chap. VII. 1»art I. been reckoned one, generally indeed the first, of the patri- archs ; each of whom was at the head of all the metropoli- tans within its limits, but without exercising those privileges which by the ecclesiastical constitution appertained to the latter. Though the Roman patriarchate, properly so called, was comparatively very small in extent, it gave its chief, for the reason mentioned, advantages in point of authority which the others did not possess. I may perhaps appear to have noticed circumstances inter- esting only to ecclesiastical scholars. But it is important to apprehend this distinction of the patriarchate from the pri- macy of Rome, because it was by extending the boundaries of the former, and by applying the maxims of her admin- istration in the south of Italy to all the Western churches, that she accomplished the first object of her scheme of usur- pation, in subverting the provincial system of government under the metropolitans. Their first encroachment of this kind was in the province of Illyricum, which they annexed in a manner to their own patriarchate, by not permitting any bishops to be consecrated without their consent.'' This was before the end of the fourth century. Their subsequent advances were, however, very gradual. About the middle of the sixth century we find them confirming the elections of archbishops of Milan. They came by degrees to exercise, though not always successfully, and seldom without opposi- tion, an appellant jurisdiction over the causes of bishops de- posed or censured in provincial synods. But, upon the whole, the papal authority had made no decisive progress in France, or perhaps anywhere beyond Italy, till the pontificate of Gregory I. (a.d. 590-604). § 9. This celebrated person was not distinguished by learn- ing, which he affected to depreciate, nor by his literary per- formances, which the best critics consider as below medioc- rity, but by qualities more necessary for his purpose, intrepid ambition and unceasing activity. He maintained a perpet- ual correspondence with the emperors and their ministers, with the sovereigns of the AVestern kingdoms, with all the hierarchy of the Catholic Church — employing, as occasion dictated, the language of devotion, arrogance, or adulation. Claims hitherto disputed, or half preferred, assumed under his hands a more definite forrA ; and nations too ignorant to compare precedents or discriminate principles yielded to as- sertions confidently made by the authority which they most ' The ecclesiastical province of Illyricum included Macedonia. Siricius, the authoi of this encroachment, seems to have been one of the tirst usurpers. EccLKS. Power. COUNCIL OF FRANKFORT. 329 respected. Gregory dwelt more than his predecessors upon the power of the keys, exclusively, or at least principally, committed to St. Peter, which had been supposed in earlier times, as it is now by the Gallican Catholics, to be inherent in the general body of bishops, joint sharers of one indivisi- ble episcopacy. And thus the patriarchal rights, being man- ifestly of mere ecclesiastical institution, were artfully con- founded, or, as it were, merged, in the more paramount su- premacy of the papal chair. From the time of Gregory the popes appear in a great measure to have thrown away that scaffolding, and relied in preference on the pious veneration of the people, and on the opportunities which might occur for enforcing their dominion with the pretense of divine authority. § 10. It can not, I think, be said that any material acquisi- tions of ecclesiastical power were obtained by the successors of Gregory for nearly 150 years. As none of them possessed vigor and reputation equal to his own, it might even appear that the papal influence was retrograde. But in eflect the principles which supported it were taking deeper root, and acquiring strength by occasional, though not very frequent, exercise. Appeals to the pope were sometimes made by prel- ates dissatisfied with a local sentence. National councils were still provoked by princes, and canons enacted under their authority by the bishops who attended. The Church of France, and even that of England, planted as the latter had been by Gregory, continued to preserve a tolerable meas- ure of independence. The first striking infringement of this was made through the influence of an Englishman, Winfrid,. better known as St. Boniface, the apostle of Germany. Hav- ing undertaken the conversion of Thuringia, and other still heathen countries, he applied to the pope for a commission, and was consecrated bishop without any determinate see. Upon this occasion he took an oath of obedience, and be- came ever afterwards a zealous upholder of the apostolical chair. His success in the conversion of Germany was great, his reputation eminent, which enabled him to effect a mate- rial revolution in ecclesiastical government. At a synod of the French and German bishops, held at Frankfort in 742 by Boniface as legate of Pope Zachary, it was enacted that, as a token of their willing subjection to the See of Rome, all metropolitans should request the pallium at the hands of the pope, and obey his lawful commands. This was construed by the popes to mean a promise of obedience before receiv- ing the pall, which was changed in after times by Gregory VH. into an oath of fealty. 330 FALSE DECRETALS. Chap. VII. Part L § 11. This Council of Frankfort claims a leading place as an epoch in the history of the papacy. I shall but just glance at the subsequent political revolutions of that period; the in- vasion of Italy by Pepin, his donation of the exarchate to the Holy See, the conquest of Lombardy by Charlemagne, the patriarchate of Rome conferred upon both these princes, and the revival of the Western Empire in the person of the lat- ter. These events had a natural tendency to exalt the pa pal supremacy, which it is needless to indicate. But a cir- cumstance of a very different nature contributed to this in a still greater degree. About the conclusion of the eighth cen- tury there appeared, under the name of one Isidore, an un- known person, a collection of ecclesiastical canons, now com- monly denominated the False Decretals. These purported to be rescripts or decrees of the early bishops of Rome ; and their effect was to diminish the authority of metropolitans over their suffragans, by establishing an appellant jurisdic- tion of the Roman See in all causes, and by forbidding na- tional councils to be holden without its consent. Every bish- op, according to the decretals of Isidore, was amenable only to the immediate tribunal of the pope ; by which one of the most ancient rights of the provincial synod was abrogated. Every accused person might not only appeal from an inferior sentence, but remove an unfinished process before the supreme pontiff. New sees were not to be erected, nor bishops trans- lated from one see to another, nor their resignations accepted, without the sanction of the pope. They were still, indeed, to be consecrated by the metropolitan, bi)t in the pope's name. It has been plausibly suspected that these decretals were Torged by some bishop in jealousy or resentment ; and their general reception may at least be partly ascribed to such sen- timents. The archbishops were exceedingly powerful, and might often abuse their superiority over inferior prelates ; but the whole episcopal aristocracy had abundant reason to la- ment their acquiescence in a system of which the metropol- itans were but the earliest victims. Upon these spurious de- cretals was built the great fabric of papal supremacy over the different national churches — a fabric which has stood after its foundation crumbled beneath it ; for no one has pre- tended to deny, for the last two centuries, that the imposture is too palpable for any but the most ignorant ages to credit. § 12. The Galilean Church made for some time a spirited though unavailing struggle against this i-ising despotism. In the reign of Charles the Bald a bold defender of ecclesi- astical independence was found in Hincmar, archbishop of EccLEs lowER. PAPAL ENCROACHMENTS. 331 Hheims, the most distinguished statesman of his age. Equal in ambition, and almost in public estimation, to any pontiff, he sometimes came off successfully in his contentions with Rome. But time is fatal to the unanimity of coalitions ; the French bishops were accessible to superstitious prejudice, to corrupt influence, to mutual jealousy. Above all, they were conscious that a persuasion of the pope's omnipotence had taken hold of the laity. Though they complained loudly, and invoked, like patriots of a dying state, names and principles of a freedom that was no more, they submitted almost in every instance to the continual usurpations of the Holy See. One of those which most annoyed their aristocracy was the concession to monasteries of exemption from episcopal au- thority. These had been very uncommon till about the eighth century, after which they were studiously multiplied. It was naturally a favorite object with the abbots; and sovereigns, in those ages of blind veneration for monastic establishments, were pleased to see their own foundations rendered, as it would seem, more respectable by privileges of independence. The popes had a closer interest in granting exemptions, which at- tached to them the regular clergy, and lowered the dignity of the bishops. In the eleventh and twelfth centuries whole orders of monks were declared exempt at a single stroke; and the abuse began to awaken loud complaints, though it did not fail to be aggravated afterwards. § 13. The principles of ecclesiastical supremacy were read- ily applied by the popes to support still more insolent usur- pations. Chiefs by divine commission of the whole Church, every earthly sovereign must be subject to their interference. The first instance where the Roman" pontiffs actually tried the force of their arms against a sovereign was the excom- munication of Lothaire, king of Lorraine, and grandson of Louis the Debonair. This prince had repudiated his wife, upon unjust pretexts, but with the approbation of a national council, and had subsequently married his concubine. Nich- olas I., the actual pope, dispatched two legates to investigate this business, and decide according to the canons. They hold a council at Metz, and confirm the divorce and marriage. En- raged at this conduct of his ambassadors, the pope summons a council at Rome, annuls the sentence, deposes the archbish- ops of Treves and Cologne, and directs the king to discard his mistress. After some shuffling on the part of Lothaire he is excommunicated ; and in a short time we find both the king and his prelates, who had begun with expressions of pas- sionate contempt towards the pope, suing humbly for abso- 832 EXCOMMUNICATIONS. Chap. VII. Part I lution at the feet of Adrian XL, successor of Nicholas, which was not granted without difficulty. Excommunication, whatever opinions may be entertained as to its religious efficacy, was originally nothing more in appearance than the exercise of a right which every society claims, the expulsion of refractory members from its body. No direct temporal disadvantages attended this penalty for several ages ; but, as it was the most severe of spiritual cen- sures, and tended to exclude the object of it not only from a participation in religious rites, but in a considerable degree from the intercourse of Christian society, it was used spar- ingly and upon the gravest occasions. Gradually, as the Church became more powerful and more imperious, excom- munications were issued upon every provocation, rather as a weapon of ecclesiastical warfare than with any regard to its original intention. Princes who felt the inadequacy of their own laws to secure obedience called in the assistance of more formidable sanctions. Several capitularies of Charlemagne denounce the penalty of excommunication against incendi- aries or deserters from the army. Charles the Bald pro- cured similar censures against his revolted vassals. Thus the boundary between temporal and spiritual offenses grew every day less distinct ; and the clergy were encouraged to fresh encroachments as they discovered the secret of render- ing them successful. The civil magistrate ought, undoubtedly, to protect the just rights and lawful jurisdiction of the Church. It is not so evident that he should attach temporal penalties to her censures. Excommunication has never carried such a pre- sumption of moral turpitude as to disable a man, upon any solid principles, from the usual privileges of society. Super- stition and tyranny, however, decided otherwise. The sup- port due to Church censures by temporal judges is vaguely declared in the capitularies of Pepin and Charlemagne. It became in later ages a more established principle in France and England, and, I presume, in other countries. By our common law, an excommunicated person is incapable of be- ing a witness or of bringing an action, and he may be detain- ed in prison until he obtains absolution. By the Establish- ments of St. Louis, his estate or person might be attached by the magistrate. These actual penalties were attended by marks of abhorrence and ignominy still more calculated to make an impression on ordinary minds. They were to be shunned like men infected with leprosy, by their servants, their friends, and their families. Two attendants only, if we EccLES. fowER. INTERDICTS. 333 may trust a current history, remained with Robert, king of France, who, on account of an irregular marriage, was put to this ban by Gregory V., and these threw all the meats which had passed his table into the fire. Indeed, the mere intercourse with a prescribed person incurred what is called the lesser excommunication, or privation of the sacraments, and required penitence and absolution. In some places a bier was set before the door of an excommunicated individual, and stones thrown at his windows : a singular method of compelling his submission ! Everywhere the excommunica- ted w^ere debarred of a regular sepulture, which, though ob- viously a matter of police, has, through the superstition of consecrating burial-grounds, been treated as belonging to ecclesiastical control. § 14. But as excommunication, which attacked only one, and perhaps a hardened sinner, was not always efficacious, the Church had recourse to a more comprehensive punish- ment. For the offense of a nobleman she put a county, for that of a prince his entire kingdom, under an Interdict or sus- pension of religious offices. No stretch of her tyranny was, perhaps, so outrageous as this. During an interdict the churches were closed, the bells silent, the dead unburied, no rite but those of baptism and extreme unction performed. The penalty fell upon those who had neither partaken nor could have prevented the offense ; and the offense w^as often but a private dispute, in which the pride of a pope or bishop had been w^ounded. Interdicts were so rare before the time of Gregory VII., that some have referred them to him a« their author; instances may, however, be found of an earlier date, and especially that which accompanied the above-men- tioned excommunication of Robert, king of France. They were afterwards issued not unfrequently against kingdoms ; but in particular districts they continually occurred. This was the mainspring of the machinery that the clergy set in motion, the lever by which they moved the w^orld. From the moment that these interdicts and excommunica tions had been tried the powers of the earth might be said to have existed only by sufferance. Nor was the validity of such denunciations supposed to depend upon their justice. The imposer, indeed, of an unjust excommunication was guilty of a sin ; but the party subjected to it had no remedy but submission. The received theory of religion concerning the indispensable obligation and mysterious efficacy of the rites of communion and confession must have induced scrupulous minds to make any temporal sacrifice rather than incur their 334 CORRUPTION OF MORALS. Chap. VH. Part 1. privation. One is rather surprised at the instances of failure than of success in the employment of these spiritual weapons against sovereigns or the laity in general. It was, perhaps, a fortunate circumstance for Europe that they were not intro- duced upon a large scale during the darkest ages of super- stition. In the eighth or ninth centuries they would proba- bly have met with a more implicit obedience. § 15. So high did the popes carry their pretensions, that John VIII. (a.d. 872-882) asserted very plainly a right of choosing the emperor, and seems indirectly to have exercisei it in the election of Charles the Bald, who had not primogen- iture in his favor. This prince, whose restless ambition was united with meanness as well as insincerity, consented to sign a capitulation, on his coronation at Rome, in favor of the pope and Church, a precedent which was improved upon in subsequent ages. Rome was now prepared to rivet her fe^ ters upon sovereigns, and at no period have the condition of society and the circumstances of civil government been so favorable for her ambition. But the consummation was still suspended, and even her progress arrested, for more than 150 years. This dreary interval is filled up, in the annals of the papacy, by a series of revolutions and crim-es. Six popes were deposed, two murdered, one mutilated. Frequently two or even three competitors, among whom it is not always possible by any genuine criticism to distinguish the true shepherd, drove each other alternately from the city. A few respectable names appear thinly scattered through this darkness; and sometimes, perhaps, a pope who had acquired estimation by his private virtues may be distinguished by some encroachment on the rights of princes or the privileges of national churches. But in general the pontiffs of that age had neither leisure nor capacity to perfect the great system of temporal supremacy, and looked rather to a vile profit from the sale of episcopal confirmations, or of exemp- tions to monasteries. The corruption of the head extended naturally to all other members of the Church. All writers concur in stigmatiz- ing the dissoluteness and neglect of decency that prevailed among the clergy. The bishops, indeed, who were to enforce them had most occasion to dread their severity. They were obtruded upon their sees, as the supreme pontiffs were upon that of Rome, by force or corruption. A child of five years old was made Archbishop of Rheinis. The See of Narbonne was purchased for another at the age of ten. By this relax- ation of morals the priesthood be^jan to lose its hold upon EccLES. Tower. . CELIBACY. 335 the prejudices of mankind. These are nourished chiefly, in- deed, by shining examples of piety and virtue, but also, in a superstitious age, by ascetic observances, by the fasting and watching of monks and hermits. The regular clergy accord- ingly, or monastic orders, retained at all times a far greater portion of respect than ordinary priests, though degenerated themselves, as was admitted, from their primitive strict- ness. § 16. Two crimes, or at least violations of ecclesiastical law, had become almost universal in the eleventh century, and excited general indignation — the marriage or concubin- age of priests, and the sale of benefices. Celibacy had been, from very early times, enjoined as an obligation upon the clergy. It was perhaps permitted that those already mar- ried for the first time and to a virgin, might receive ordina- tion ; and this, after prevailing for a length of time in the Greek Church, was sanctioned by the Council of Trullo, in 691,® and has ever since continued one of the distinguishing features of its discipline. The Latin Church, however, did not receive these canons, and has uniformly persevered in ex- cluding the three orders of priests, deacons, and subdeacons, not only from contracting matrimony, but from cohabiting with wives espoused before their ordination. The prohi- bition, however, during some ages existed only in the let- ter of her canons. In every country the secular or pa- rochial clergy kept women in their houses, upon more or less acknowledged terms of intercourse, by a connivance of their ecclesiastical superiors, which almost amounted to a positive toleration. The sons of priests were capable of inheriting by the law of France and also of Castile. Some vigorous ef- forts had been made in England by Dunstan, with the assist- ance of King Edgar, to dispossess the married canons, if not the parochial clergy, of their benefices ; but the abuse, if such it is to be considered, made incessant progress till the middle of the eleventh century. There was certainly much reason for the rulers of the Church to restore this part of their disci- pline, since it is by cutting off her members from the chari- ties of domestic life that she secures their entire aftection to her cause, and renders them, like veteran soldiers, independ- ent of every feeling but that of fidelity to their commander and regard to the interests of their body. Leo IX. accoid- « This council was held at Constantinople in the dome of the palace, called Trullns by the Latins. The nominative Trullo, though solecistical, is used by ecclesiastica! Writers in English. Bishops are not within this permission, and can not retain thcit ivives by the discipline of the Greek Church. 336 SIMONY. , Chap. VII. Part X ingly, one of the first pontiffs who retrieved the honor of the aiiostolic chair, after its long period of ignominy, began in good earnest the difficult work of enforcing celibacy among the clergy. His successors never lost sight of this essen- tial point of discipline. It was a struggle against the natu- ral rights and strongest affectiorf^ of mankind, which lasted for several ages, and succeeded only by the toleration of greater evils than those it was intended to remove. The laity, in general, took part against the married priests, who were reduced to infamy and want, or obliged to renounce their dearest connections. In many parts of Germany no ministers were left to perform divine services. But perhaps there was no eountry where the rules of celibacy met with so little attention as in England. It was acknowledged in the reign of Henry I. that the greater and better part of the clergy were married, and that prince is said to have permit- ted them to retain their wives.^ But the hierarchy never relaxed in their efforts ; and all the councils, general or pro- vincial, of the twelfth century, utter denunciations against concuMnary priests. After that age we do not find them so frequently mentioned ; and the abuse by degrees, though not suppressed, was reduced within limits at which the Church might connive. § 1 7. Simony, or the corrupt purchase of spiritual benefices, was the second characteristic reproach of the clergy in the eleventh century. The measures taken to repress it deserve particular consideration, as they produced effects of the high- est importance in the history of the Middle Ages. Accord- ing to the primitive custom of the Church, an episcopal vacan- cy was filled up by election of the clergy and people belonging to the city or diocese. The subject of their choice was, after the establishment of the federate or provincial system, to be approved or rejected by the metropolitan and his suffrages ; and, if approved, he was consecrated by them. It is proba- ble that, in almost every case, the clergy took a leading part in the selection of their bishops; but the consent of the laity was absolutely necessary to render it valid. They were, however, by degrees excluded from any real participation, first in the Greek, and finally in the Western Church. But this was not effected till pretty late times ; the people fully preserved their elective rights at Milan in the eleventh cen- 9 Giraldus Cambreusis, about the end of Henry II. 's reign {a2md Wright's "Po- litical Songs .of England," p. 353), mentions the marriage of the parochial clergy as almost universal. They were called focarice, as living at the same hearth, on pre- tense of service ; but the fellowship, we perceive, was not confined to the fireside. EccLEs. Power. EPISCOPAL ELECTIONS. 337 tury, and traces of their concurrence may be found both In France and Germany in the next age. It does not appear that the early Christian emperors in- terposed with the freedom of choice any further than to make their own confirmation necessary in the great patriarchal sees, such as Rome and Constantinople, which were frequent- ly the objects of violent competition, and to decide in con- troverted elections. The Gothic and Lombard kings of It- aly followed the same line of conduct. But in the French monarchy a more extensive authority was assumed by the sovereign. Though the practice was subject to some varia- tion, it may be said generally that the Merovingian kings, the line of Charlemagne, and the German emperors of the house of Saxony, conferred bishoprics either by direct nomi- nation, or, as was more regular, by recommendatory letters to the electors. In England, also, before the conquest, bish- ops were appointed in the witenagemot ; and even in the reign of William it is said that Lanfranc was raised to the See of Canterbury by consent of Parliament. But, independ- ently of this prerogative, which length of time and the tacit sanction of the people have rendered unquestionably legiti- mate, the sovereign had other means of controlling the elec- tion of a bishop. Those estates and honors which compose the temporalities of the see, and without which the naked spiritual privileges would not have tempted an avaricious generation, had chiefly been granted by former kings, and were assimilated to lands held on a beneficiary tenure. As they seemed to partake of the nature of fiefs, they re- quired similar formalities — investiture by the lord, and an oath of fealty by the tenant. Charlemagne is said to have introduced this practice ; and, by way of visible symbol, as usual in feudal institutions, to have put the ring and crosier into the hands of the newly consecrated bishop. And this continued for more than two centuries afterwards without exciting any scandal or resistance. The Church has undoubtedly surrendered part of her in- dependence in return for ample endowments and temporal power ; nor could any claim be more reasonable than that of feudal superiors to grant the investiture of dependent fiefs. But the fairest right may be sullied by abuse ; and the sovereigns, the lay-patrons, the prelates of the tenth and eleventh centuries, made their powers of nomination and in- vestiture subservient to the grossest rapacity. According to the ancient canons, a benefice was avoided by any simo- niacal payment or stipulation. If these were to be enforce-^, 15 338 CONFIRMATION OF POPES. Chap. VII Part L the Churcn must almost be cleaved of its ministers. Either through bribery in places where elections still prevailed, or through corrupt agreements with princes, or at least custom- ary presents to their wives and ministers, a large proportion of the bishops had no valid tenure in their sees. The case was perhaps worse with inferior clerks; in the Church of Milan, which was notorious for this corruption, not a single ecclesiastic could stand the test, the archbishop exacting a price for the collation of every benefice. § 18. The bishops of Rome, like those of inferior sees, were regularly elected by the citizens, laymen as well as ecclesi- astics. But their consecration was deferred until the popu- lar choice had received the sovereign's sanction. The Ro- mans regularly dispatched letters to Constantinople or to the exarchs of Ravenna, praying that their election of a pope might be confirmed. Exceptions, if any, are infrequent while Rome was subject to the Eastern Empire. This, among oth- er imperial prerogatives, Charlemagne might consider as his own. He possessed the city, especially after his coronation as emperor, in full sovereignty ; and even before that event had investigated, as supreme chief, some accusations preferred against the Pope Leo III. No vacancy of the papacy took place after Charlemagne became emperor; and it must be confessed, that in the first which happened under Louis the Debonair, Stephen IV. was consecrated in haste, without that prince's approbation. But Gregory lY., his successor, waited till his election had been confirmed, and, upon the whole, the Carlovingian emperors, though less uniformly than their pred- ecessors, retained that mark of sovereignty. But during the disorderly state of Italy which followed the last reigns of Charlemagne's posterity, while the sovereignty and even the name of an emperor were in abeyance, the supreme dignity of Christendom was conferred only by the factious rabble of its capital. Otho the great, in receiving the imperial crown, took upon him the prerogatives of Charlemagne. There is • even extant a decree of Leo \T[II., which grants to him and his successors the right of naming future popes. But the authenticity of this instrument is denied by the Italians. It does not appear that the Saxon emperors went to such a length as nomination, except in one instance (that of Greg- ory v., in 996) ; but they sometimes, not uniformly, confirmed the election of a pope, according to ancient custom. An ex- plicit right of nomination was, however, conceded to the Em- peror Henry III., in 1047, as the only means of rescuing the Koman Church from the disgrace and depravity into which EccLES. PowEP ECREE OF NICHOLAS Il» 339 it had fallen. Henry appointed two Or three very good popes ; acting in this against the warnings of a selfish policy, as fatal experience soon proved to his family. This high prerogative was perhaps not designed to extend beyond Henry himself. But, even if it had been transmissi- ble to his successors, the infancy of his son, Henry IV., and the factions of that minority, precluded the possibility of its exercise. Nicholas H., in 1059, published a decree which re- stored the right of election to the Romans, but with a re- markable variation from the original form. The cardinal bishops (seven in number, holding sees in the neighborhood of Rome, and consequently suffragans of the pope as patriarch or metropolitan) were to choose the supreme pontiff, with the concurrence first of the cardinal priests and deacons (or ministers of the parish churches of Rome), and afterwards of the laity. Thus elected, the new pope was to be presented for confirmation to Henry, "now king, and hereafter to be- come emperor," and to such of his successors as should per- sonally obtain that privilege. This decree is the foundation of that celebrated mode of election in a conclave of cardinals which has ever since determined the headship of the Church. It was intended not only to exclude the citizens, who had, indeed, justly forfeited their primitive right, but as far as possible to prepare the way for an absolute emancipation of the papacy from the imperial control ; reserving only a pre- carious and personal concession to the emperors instead of their ancient legal prerogative of confirmation. The real author of this decree, and of all other vigorous measures adopted by the popes of that age, whether for the assertion of their independence or the restoration of disci- pline, was Hildebrand, archdeacon of the Church of Rome, by far the most conspicuous person of the eleventh century. Acquiring by his extraordinary qualities an unbounded as- cendency over the Italian clergy, they regarded him as their chosen leader and the hope of their common cause. He had been empowered singly to nominate a pope on the part of the Romans after the death of Leo IX., and compelled Henry III. to acquiesce in his choice of Victor II. No man could proceed more fearlessly towards his object than Hilde- brand, nor with less attention to conscientious impediments. Though the decree of Nicholas H., his own work, had express- ly reserved the right of confirmation of the young king of Germany, yet on the death of that pope Hildebrand procured the election and consecration of Alexander H., without wait- ing for any authority. During this ponti6cate he was con 340 Dli FEKENCES OF GREGORY VII. Chap. VII. Part L sidered as something greater than the pope, who acted en* tirely by his counsels. On Alexander's decease, Hildebrand, long since the real head of the Church, was raised with en- thusiasm to its chief dignity, and assumed the name of Greg- ory VII. (a.d. 1073). § 19. Notwithstanding the late precedent at the election of Alexander IL, it appears that Gregory did not yet con- sider liis plans sufficiently mature to throw off the yoke al- together, but declined to receive consecration until he had obtained the consent of the King of Germany. This modera- tion was not of long continuance. The situation of Germany speedily afforded him an opportunity of displaying his am- bitious views. Henry lY., through a very bad education, was arbitrary and dissolute ; the Saxons were engaged in a desperate rebellion ; and secret disaffection had spread among the princes to an extent of which the pope was much better aware than the king. He began by excommunicating some of Henry's ministers on pretense of simony, and made it a ground of remonstrance that they were not instantly dis- missed. His next step was to publish a decree, or rather to renew one, of Alexander H., against lay investitures. The abolition of these was a favorite object of Gregory, and formed an essential part of his general scheme for emancipa- ting the spiritual and subjugating the temporal power. The ring and crosier, it was asserted by the papal advocates, were the emblems of that power which no monarch could bestow. Though the estates of bishops might, strictly, be of temporal right, yet, as they had been inseparably annexed to their spiritual office, it became just that what was first in dignity and importance should carry with it those accessory parts. The contest about investitures, though begun by Gregory VH., did not occupy a very prominent place during his pon- tificate, its interest being suspended by other more extraor- dinary and important dissensions between the Church and Empire. The pope, after tampering some time with the dis- affected party in Germany, summoned Henry to appear at Rome and vindicate himself from the charges alleged by his subjects. Such an outrage naturally exasperated a young and passionate monarch. Assembling a number of bishops and other vassals at Worms, he procured a sentence that Gregory should no longer be obeyed as lawful pope. But the time was past for those arbitrary encroachments, or at least high prerogatives, of former emperors. The relations of dependency between Church and State were now about to be le versed. Gregory had no sooner received accounts EccLKS. Power. WITH HENRY J.V. S41 of the proceedings at Worms than he summoned a council in the Lateran palace, and by a solemn sentence not only ex- communicated Henry, but deprived him of the kingdoms of Germany and Italy, releasing his subjects from their alle- giance, and forbidding them to obey him as sovereign. Thus Gregory YII. obtained the glory of leaving all his predeces- sors behind, and astonishing mankind by an act of audacity and ambition which the most emulous of his successors could hardly surpass.'" The first impulses of Henry's mind on hearing this denun- ciation were indignation and resentment. But, like othei inexperienced and misguided sovereigns, he had formed an erroneous calculation of his own resources. A conspiracy, long prepared, of which the dukes of Suabia and Carinthia were the chiefs, began to manifest itself. Some were alien- ated by his vices, and others jealous of his family. The re- bellious Saxons took courage; the bishops, intimidated by excommunications, withdrew from his side, and he suddenly found himself almost insulated in the midst of his dominions. In til is desertion he had recourse, through panic, to a miser- able expedient. He crossed the Alps with the avowed de- termination of submitting, and seeking absolution from the pope. Gregory was at Canossa, a fortress near Reggio, be- longing to his faithful adherent, the Countess Matilda. It was in a winter of unusual severity. The emperor was ad- mitted, without his guards, into an outer court of the castle, and three successive days remained from morning till even- ing in a woollen shirt and with naked feet, while Gregory, shut up with the countess, refused to admit him to his pres- ence. On the fourth day he obtained absolution; but only on condition of appearing on a certain day to learn the jDope's decision whether or no he should be restored to his kingdom, until which time he promised not to assume the ensigns of royalty (a.d. 1077). This base humiliation, instead of conciliating Henry's ad- versaries, forfeited the attachment of his friends. In his contest with the pope he had found a zealous support in the 10 The sentence of Gregory VII. against the Emperor Heury was directed, we should always remember, to persons already well disposed to reject his authority. Men are glad to be told that it is their duty to resist a sovereign against whom they are in rebellion, and will not be very scrupulous in examining conclusions which fall in with their inclinations and interests. Allegiance was in those turbulent ages easily thrown off, and the right of resistance was in continual exercise. To the Germans of the eleventh century a prince unfit for Christian communion would easily appear unfit to reign over them ; and though Henry had not given much real provocation tn the pope, his vices and tyranny might seem to challenge any spiritual censure yi temporal cbastisemeut 342 DISPUTE ABOUT INVESTITURES. Chap. VII. Part 1. principal Lombard cities, among whom the married and si- moniacal clergy had great influence. Indignant at his sub- mission to Gregory, whom they affected to consider as an usurper of the papal chair, they now closed their gates against the emperor, and spoke openly of deposing him. In this singular position between opposite dangers, Henry re- trod his late steps, and broke off his treaty with the pope ; preferring, if he must fall, to fall as the defender rather than the betrayer of his imperial rights. The rebellious princes' of Germany chose another king, Rodolph, duke of Suabia, on whom Gregory, after some delay, bestowed the crown, with a Latin verse importing that it was given by virtue of the original commission of St. Peter. But the success of this pontiff in his immediate designs was not answerable to his intrepidity, Henry both subdued the German rebellion, and carried on the war with so much vigor, or rather so lit- tle resistance, in Italy, that he was crowned in Kome by the antipope Guibert, whom he had raised in a council of his par- tisans to the government of the Church instead of Gregory. The latter found an asylum under the protection of Roger Guiscard at Salerno, where he died an exile. His mantle, however, descended upon his successors. But Henry Y. be- ing stronger in the support of his German vassals than his father had been, none of the popes with whom he was en- gaged had the boldness to repeat the measures of Gregory vll. At length, each party grown weary of this ruinous contention, a treaty was agreed upon between the emperor and Calixtus II., which put an end by compromise to the question of ecclesiastical investitures (a.d. 1122). By this compact the emperor resigned forever all pretense to invest bishops by the ring and crosier, and recognized the liberty of elections. But in return it was agreed that elections should be made in his presence or that of his ofiicers, and that the new bishop should receive his temporalities from the emperor by the sceptre. Both parties in the concordat at Worms receded from so much of their pretensions, that w*e might almost hesitate to determine which is to be considered as victorious. On the one hand, in restoring the freedom of episcopal elections the emperors lost a prerogative of very long standing, and al- most necessary to the maintenance of authority over not the least turbulent part of their subjects. And though the form of investiture by the ring and crosier seemed in itself of no importance, yet it had been in effect a collateral secu- rity against the election of obnoxious persons. For the em- EccLES. Power. CAPITULAR ELECTIONS. 343 perors, detaining this necessary part of the pontificals until they should confer investiture, prevented a hasty consecra- tion of the new bishop, after which, the vacancy being legal- ly filled, it would not be decent for them to withhold the temporalities. But then, on the other hand, they preserved by the concordat their feudal sovereignty over the estates of the Church, in defiance of the language which had recent- ly been held by its rulers. It is evident that a general im- munity from feudal obligations for an order who possessed nearly half the lands in Europe struck at the root of those institutions by which the fabric of society was principally held together. This complete independency had been the aim of Gregory's disciples ; and by yielding to the continu- ance of lay investitures in any shape Calixtus may, in this point of view, appear to have relinquished the principal ob- ject of contention. The emperors were not the only sovereigns whose prac- tice of investiture excited the hostility of Rome, although they sustained the principal brunt of the war. A similar contest broke out under the pontificate of Paschal II. with Henry I. of England ; for the circumstances of which, as they contain nothing peculiar, I refer to our own historians. It is remarkable that it ended in a compromise not unlike that adjusted at Worms; the king renouncing all sorts of invest- itures, while the pope consented that the bishop should do homage for his temporalities. This was exactly the custom of France, where investiture by the ring and crosier is said not to have prevailed ; and it answered the main end of sov- ereigns by keeping up the feudal dependency of ecclesias- tical estates. But the kings of Castile were more fortunate than the rest; discreetly yielding to the pride of Rome, they obtained what w^as essential to their own authority, and have always possessed, by the concession of Urban II., an absolute privilege of nomination to bishoprics in their dominions. An early evidence of that indifference of the popes towards the real independence of national churches to which subse- quent ages were to lend abundant confirmation. § 20. When the emperors had surrendered their preten- sions to interfere in episcopal elections, the primitive mode of collecting the suffrages of clergy and. laity in conjunction, or at least of the clergy with the laity's assent and ratifica- tion, ought naturally to have revived. But in the twelfth century neither the people, nor even the general body of the diocesan clergy, were considered as worthy to exercise this function. It soon devolved altogether upon the chapters of 3H GENERAL CONDUCT Chap. VII. Part 1. cathedral churches. The original of these may be traced very high. In the earliest ages we find a college of pres- bytery consisting of the priests and deacons, assistants as a council of advice, or even a kind of parliament, to their bish- ops. Parochial divisions, and fixed ministers attached to them, were not established till a later period. But the can- ons, or cathedral clergy, acquired afterwards a more distinct character. They were subjected by degrees to certain strict observances, little diff*ering, in fact, from those imposed on monastic orders. They lived at a common table, they slept in a common dormitory, their dress and diet were regulated by peculiar laws. But they were distinguished from monks by the right of possessing individual property, which was af- terwards extended to the enjoyment of separate prebends or benefices. These strict regulations, chiefly imposed by Louis the Debonair, went into disuse through relaxation of disci- pline ; nor were they ever effectually restored. Meantime the chapters became extremely rich, and as they monopolized the privilege of electing bishops, it became an object of ambition with noble families to obtain canonries for their younger children as the surest road to ecclesiastical honors and opulence. Contrary, therefore, to the general policy of the Church, persons of inferior birth have been rigidly ex- cluded from these foundations. § 21. The object of Gregory VII., in attempting to redress those more flagrant abuses which for two centuries had de- formed the face of the Latin Church, is not incapable, perhaps, of vindication, though no sufficient apology can be offered for the means he employed. But the disinterested love of reformation, to which candor might ascribe the contention against investitures, is belied by the general tenor of his conduct, exhibiting an arrogance without parallel, and. an ambition that grasped at universal and unlimited monarchy. He may be called the common enemy of all sovereigns, whose dignity as well as independence mortified his infatuated pride. Thus we find him menacing Philip I. of France, who had connived at the pillage of some Italian merchants and pilgrims, not only with an interdict, but a sentence of dep- osition. Thus, too, he asserts, as a known historical fact, that the kingdom of Spain had formerly belonged, by special right, to St. Peter ; and by virtue of this imprescriptible claim he grants to a certain Count de Rouci all territories which he should reconquer from the Moors, to be held in fief from the Holy See by a stipulated rent. A similar pre- tension he makes to the kingdom of Hungarj^, and bitterly EccLEs. Power. OF GREGORY VII. 345 reproaches its sovereign, Solomon, who had done homage to the emperor, in derogation of St. Peter, his legitimate lord. It was convenient to treat this apostle as a great feudal su- zerain, and the legal principles of that age were dexterously applied to rivet more forcibly the fetters of superstition. While temporal sovereigns were opposing so inadequate a resistance to a system of usurpation contrary to all prec- edent and to the common principles of society, it was not to be expected that national churches should persevere in opposing pretensionr for which several ages had paved the way. Gregory VII. completed the destruction of their lib- erties. The principles contained in the decretals of Isidore, hostile as they were to ecclesiastical independence, were set aside as insufficient to establish the absolute monarchy of Rome. By a constitution of Alexander II., during whose pontificate Hildebrand himself was deemed the effectual pope, no bishop in the Catholic Church was permitted to ex- ercise his functions until he had received the confirmation of the Holy See : a provision of vast importance, through which, beyond perhaps any other means, Rome has sustained, and still sustains, her temporal influence, as well as her ecclesias- tical supremacy. The national churches, long abridged of their liberties by gradual encroachments, now found them- selves subject to an undisguised and irresistible despotism. Instead of affording protection to bishops against their met- ropolitans, under an insidious pretense of which the popes of the ninth century had subverted the authority of the lat- ter, it became the favorite policy of their successors to ha- rass all prelates with citations to Rome. Gregory obliged the metropolitans to attend in person for the pallium. Bish- ops were summoned even from England and the Northern kingdoms to receive the commands of the spiritual monarch. William the Conqueror having made a difficulty about per- mitting his prelates to obey these citations, Gregory, though in general on good terms with that prince, and treating him with a deference which marks the effect of a firm character in repressing the ebullitions of overbearing pride, complains of this as a persecution unheard of among pagans. The great quarrel between Archbishop Anselm and his two sover- eigns, William Rufus and Henry I., was originally founded upon a similar refusal to permit his departure for Rome. § 22. This perpetual control exercised by the popes over ecclesiastical, and in some degree over temporal affairs, was maintained by means of their legates, at once the ambassa- dors and the lieutenants of the Holy See. Previously to the 15* 346 ADRIAN IV. Chap. VII. Part 1. latter part of the tenth age these had been sent not frequent- ly and upon special occasions. The legatine or vicarial com- mission had generally been intrusted to some eminent metro- politan of the nation within which it was to be exercised ; as the Archbishop of Canterbury was perpetual legate in En- gland. But the special commissioners, or legates a latere^ suspending the pope's ordinary vicars, took upon themselves an unbounded authority over the national churches, holding councils, promulgating canons, deposing the bishops, and is- suing interdicts at their discretion. They lived in splendor at the expense of the bishops of the province. This was the more galling to the hierarchy, because simple deacons were often invested with this dignity, which set them above pri- mates. As the sovereigns of France and England acquired more courage, they considerably abridged this prerogative of the Holy See, and resisted the entrance of any legates into their dominions without their consent. From the time of Gregory VII. no pontiff thought of await- ing the confirmation of the emperor, as in earlier ages, before he was installed in the throne of St. Peter. On the contra- ry, it was pretended that the emperor was himself to be con- firmed by the pope. This had, indeed, been broached by John VIII. two hundred years before Gregory. It was still a doctrine not calculated for general reception ; but the popes availed themselves of every opportunity which the tempor- izing policy, the negligence or bigotry of sovereigns threw into their hands. Lothaire coming to receive the imperial crown at Rome, this circumstance was commemorated by a picture in the Lateran palace, in which, and in two Latin verses subscribed, he was represented as doing homage to the pope. When Frederick Barbarossa came upon the same occasion, he omitted to hold the stirrup of Adrian IV., who, in his turn, refused to give him the usual kiss of peace ; nor was the contest ended but by the emperor's acquiescence, who was content to follow the precedents of his predeces- sors. The same Adrian, expostulating with Frederick upon some slight grievance, reminded him of the imperial crown which he had conferred, and declared his willingness to be- stow, if possible, still greater benefits. But the phrase em- ployed (majora beneficia) suggested the idea of a fief; and the general insolence which pervaded Adrian's letter con- firming this interpretation, a ferment arose among the Ger- man princes, in a congress of whom this letter was delivered. " From whom, then," one of the legates was rash enough to say, " does the emperor hold his crown, except from the EccLES. Power. INNOCENT III. 347 pope ?" which so irritated a prince of Wittelsbach that he was with difficulty prevented from cleaving the priest's head with his sabre. Adrian IV. was the only Englishman that ever sat in the papal chair. It might, perhaps, pass for a fa- vor bestowed on his natural sovereign, when he granted to Henry II. the kingdom of Ireland ; yet the language of this donation, wherein he asserts all islands to be the exclusive property of St. Peter, should not have had a very pleasing sound to an insular monarch. § 23. I shall not wait to comment on the support given to Becket by Alexander III., which must be familiar to the En- glish reader, nor on his speedy canonization ; a reward which the Church has always held out to its most active friends, and which may be compared to titles of nobility granted by a temporal sovereign. But the epoch when the spirit of pa- pal usurpation was most strikingly displayed was the pontifi- cate of Innocent III. (a,d. 1198-1216). In each of the three leading objects which Rome has pursued — independent sov- ereignty, supremacy over the Christian Church, control over the princes of the earth — it was the fortune of this pontiff to conquer. He realized, as we have seen in another place, that fond hope of so many of his predecessors, a dominion over Rome and the central parts of Italy. During his pontifi- cate Constantinople was taken by the Latins ; and however much he might seem to regret a diversion of the Crusaders which impeded the recovery of the Holy Land, he exulted in the obedience of the new patriarch, and the reunion of the Greek Church. Never, perhaps, either before or since, was the great Eastern schism in so fair a way of being healed ; even the kings of Bulgaria and of Armenia acknowledged the supremacy of Innocent, and permitted his interference with their ecclesiastical institutions. The maxims of Gregory VII. were now matured by more than a hundred years, and the right of trampling upon the necks of kings had been received, at least among Church- men, as an inherent attribute of the papacy. "As the sun and the moon are placed in the firmament " (such is the lan- guage of Innocent), "the greater as the light of the day, and the lesser of the night, thus are there two powers in the Church — the pontifical, which, as having the charge of souls, is the greater ; and the royal, which is the less, and to which the bodies of men only are intrusted." Intoxicated with these conceptions (if we may apply such a word to success- ful ambition), he thought no quarrel of princes beyond the sphere of his jurisdiction. On every side the thunder of 348 INNOCENT III. Chap. Vli. Part 1. Rome broke over the heads of princes. A certam Swero is excommunicated for usurping the crown of Norway. A le- gate, in passing through Hungary, is detained by the king : Innocent writes in tolerably mild terms to this potentate, but fails not to intimate that he might be compelled to pre- vent his son's accession to the throne. The King of Leon had married his cousin, a princess of Castile. Innocent sub- jects the kingdom to an interdict. The king gave way, and sent back his wife. But a more illustrious victory of the same kind was obtained over Philip Augustus, who, having repudiated Isemburga of Denmark, had contracted another marriage. The conduct of the king, though not without the usual excuse of those times, nearness of blood, was justly condemned ; and Innocent did not hesitate to visit his sins upon the people by a general interdict. This, after a short demur from some bishops, was enforced throughout France ; the dead lay unburied, and the living were cut off from the offices of religion, till Philip, thus subdued, took back his di- vorced wife. The submission of such a prince, not feebly su- perstitious, like his predecessor Robert, nor vexed with sedi- tions, like the Emperor Henry IV., but brave, firm, and vic- torious, is perhaps the proudest trophy in the scutcheon of Rome. Compared with this, the subsequent triumph of In- nocent over our pusillanimous John seems cheaply gained, though the surrender of a powerful kingdom into the vassal- age of the pope may strike us as a proof of stupendous base- ness on one side, and audacity on the other.'' I have mentioned already that among the new pretensions advanced by the Roman See was that of confirming the elec- tion of an emperor. It had, however, been asserted rather incidentally than in a peremptory manner. But the doubt ful elections of Philip and Otho after the death of Henry VI. gave Innocent HI. an opportunity of maintaining more posi- tively this pretended right. In a decretal epistle addressed to the Duke of Zahringen, the object of which is to direct him to transfer his allegiance from Philip to the other com- petitor. Innocent, after stating the mode in which a regular election ought to be made, declares the pope's immediate authority to examine, confirm, anoint, crown, and consecrate " The stipulated annual payment of 1000 marks was seldom made by the kings of England ; but one is almost ashamed that it should ever have been so. Henry III. paid it occasionally when he had any object to attain, and even Edward I. for some years : the latest payment on record is in the seventeenth of his reign. After a long discontinuance, it was demanded in the fortieth of Edward III. (1366), but the Parlia- ment unanimously declared that John had no right to subject the kingdom to a su- perior without their consent : which put an end forever to the applications. EccLES. Power. PAPAL AUTHORITY. 349 the elect emperor, provided he shall be worthy; Or to reject him if rendered unlit by great crimes, such as sacrilege, her- esy, perjury, or persecution of the Church; in default of elec- tion, to supply the vacancy ; or, in the event of equal suf- frages, to bestow the empire upon any person at his discre- tion. The princes of Germany were not much influenced by this hardy assumption, which manifests the temper of Inno- cent III. and of his court, rather than their power. But Otho IV., at his coronation by the pope, signed a capitulation, which cut off several privileges enjoyed by the emperors, ever since the concordat of Calixtus, in respect of episcopal elections and investitures. PART II. § 1. Continual Progress of the Papacy. 5 2. Canon Law. § 3. Mendicant Orders. § 4. Dispensing Power. § 5. Encroachments on Rights of Patronage, Mandats, Eeserves, etc. 5 6. Taxation of the Clergy. § 7. General Disaffection towards the See of Rome in the Thirteenth Century. § 8. Progress of Ecclesiastical Juris- diction. § 9. Immunity of the Clergy in Criminal Cases. § 10. Restraints im- posed upon their Jurisdiction. § 11. Upon their Acquisition of Property. § 12. Boniface VIII. His Quarrel with Philip the Fair. Its Termination. 5 13. Grad- ual Decline of Papal Authority. Removal of the Papal Court to Avignon. § 14. Louis of Bavaria. § 15. Conduct of Avignon Popes. § 16. Return to Rome. Contested Election of Urban and Clement produces the great Schism. § 17. Councils of Pisa and Constance. § 18. Council of Basle. § 19. Methods adopted to restrain the Papal Usurpations in England, Germany, and France. Liberties of the Gallican Church. § 20. Decline of the Papal Influence in Italy. § 1. The noonday of papal dominion extends from the pon- tificate of Innocent III., inclusively, to that of Boniface VIII. ; or, in other words, through the thirteenth century. Rome inspired during this age all the terror of her ancient name. She was once more the mistress of the world, and kings were her vassals. I have already anticipated the two most con- spicuous instances when her temporal ambition displayed itself, both of which are inseparable from the civil history of Italy.' In the first of these, her long contention with the liouse of Suabia, she finally triumphed. After his deposition by the Council of Lyons, the affairs of Frederick II. went rapidly into decay. With every allowance for the enmity of the Lombards and the jealousies of Germany, it must be con- fessed that his proscription by Innocent IV. and Alexander IV. was the main cause of the ruin of his family. There is, however, no other instance, to the best of my judgment, where the pretended right of deposing kings has been success- 1 See above, chapter iiL 350 CANON LAW. Chap. VII. Part II. fully exercised. Martin lY. absolved the subjects of Peter of Aragon from their allegiance, and transferred his crown to a prince of France ; but they did not cease to obey their lawful sovereign. This is the second instance which the thirteenth century presents of interference on the part of the popes in a great temporal quarrel. As feudal lords of Naples and Sicily, they had, indeed, some pretext for engaging in the hostilities between the houses of Anjou and Aragon, as well as for their contest with Frederick II. But the pontiffs of that age, im- proving upon the system of Innocent III., and sanguine with past success, aspired to render every European kingdom for- mally dependent upon the See of Rome. Thus Boniface VIII., at the instigation of some emissaries from Scotland, claimed that monarchy as paramount lord, and interposed, though vainly, the sacred panoply of ecclesiastical rights to rescue it from the arms of Edward I. § 2. This general supremacy effected by the Roman Church over mankind, in the twelfth and thirteenth centuries, de- rived material support from the promulgation of the canon law. The foundation of this jurisprudence is laid in the de- crees of councils, and in the rescripts or decretal epistles of popes to questions propounded upon emergent doubts relative to matters of discipline and ecclesiastical economy. As the jurisdiction of the spiritual tribunals increased and extended to a variety of persons and causes, it became almost necessa- ry to establish a uniform system for the regulation of their decisions. After several minor compilations had appeared, Gratian, an Italian monk, published, about the year 1140, his Decretum^ or general collection of canons, papal epistles, and sentences of fathers, arranged and digested into titles and chapters, in imitation of the Pandects, which very little be- fore had beojun to be studied as^ain with ofreat dilisrence. This work of Gratian, though it seems rather an extraordinary performance for the age when it appeared, has been censured for notorious incorrectness as well as inconsistency, and espe- cially for the authority given in it to the false decretals of Isi- dore, and, consequently, to the papal supremacy. It fell, how- ever, short of what was required in the progress of that usur- pation. Gregory IX. caused the five books of Decretals to be published by Raimond de Pennafort, in 1234. These consist almost entirely of rescripts issued by the later popes, espe- cially Alexander III., Innocent III.,Honorius III., and Gregory himself They form the most essential part of the canon law — the Decretum of Gratian being comparatively obsolete. In these books we find a regular and copious system of juris- EccLES. Power. (.^ANON LAW. 351 prudence, derived, in a great measure, fl'om the civil law, but with considerable deviation, and possibly improvement. Boniface VIII. added a sixth part, thence called the Sext, itself divided into five books, in the nature of a supplement to the other live, of which it follows the arrangement, and composed of decisions promulgated since the pontificate of Gregory IX. New constitutions were subjoined by Clement V. and John XXII., under the name of Clementines and Ex- travagantes Johannis ; and a few more of latei* pontiffs are included in the body of canon law, arranged as a second sup- plement, after the manner of the Sext, and called Extrava- gantes Communes. The study of this code became, of course, obligatory upon ecclesiastical judges. It produced a new class of legal prac- titioners, or canonists, of whom a great number added, like their brethren, the civilians, their illustrations and commen- taries, for which the obscurity and discordance of many pas- sages, more especially in the Decretum, gave ample scope. From the general analogy of the canon law to that of Jus- tinian, the two systems became, in a remarkable manner, col- lateral and mutually intertwined — the tribunals governed by either of them borrowing their rules of decision from the other in cases where their peculiar jurisprudence is silent or of dubious interpretation. But the canon law was almost entirely founded upon the legislative authority of the pope ; the decretals are, in fact, but a new arrangement of the bold epistles of the most usurping pontiffs, and especially of Inno- cent III., with titles, or rubrics, comprehending the substance of each in the compiler's language. The superiority of ec- clesiastical to temporal power, or at least the absolute inde- pendence of the former, may be considered as a sort of key- note which regulates every passage in the canon law. It is expressly declared that subjects owe no allegiance to an ex- communicated lord, if after admonition he is not reconciled to the Church. And the rubric prefixed to the declaration of Frederick IL's deposition in the Council of Lyons, asserts that the pope may dethrone the emperor for lawful causes. These rubrics to the decretals are not, perhaps, of direct authority as part of the law ; but they express its sense, so as to be fairly cited instead of it. By means of ber new juris- prudence, Rome acquired in every country a powerful body of advocates, who, though many of them were laymen, would, with the usual bigotry of lawyers, defend every pretension or abuse to which their received standard of authority gave sanction. 352 MENDICANT ORDERS. Chap. VII. Part II § 3. Next to the canon law, I should reckon the institu- tion of the mendicant orders among those circumstances which principally contributed to the aggrandizement of Rome. By the acquisition, and in some respects the enjoy- ment, or at least ostentation, of immense riches, the ancient monastic orders had forfeited much of the public esteem. Austere principles as to the obligation of evangelical poverty were inculcated by the numerous sectaries of that age, and eagerly received by the people, already much alienated from an established hierarchy. Xo means appeared so efficacious to counteract this efiect as the institution of religious so- cieties strictly debarred from the insidious temptations of wealth. Upon this principle were founded the orders of men- dicant friars, incapable, by the rules of their foundation, of possessing estates, and maintained only by alms and pious remunerations. Of these the two most celebrated were formed by St. Dominick and St. Francis of Assisi, and estab- lished by the authority of Honorius III. in 1216 and 1223. These great reformers, who have produced so extraordinary an effect upon mankind, were of very different characters ; the one, active and ferocious, had taken a prominent part in the crusade against the unfortunate Albigeois, and was among the first who bore the terrible name of inquisitor; while the other, a harmless enthusiast, pious and sincere, but hardly of sane mind, was much rather accessory to the in- tellectual than to the moral degradation of his species. Va- rious other mendicant orders were instituted in the thirteenth century ; but most of them were soon suppressed, and, be- sides the two principal, none remain but the Augustin and the Carmelite. These new preachers were received with astonishing ap- probation by the laity, whose religious zeal usually depends a good deal upon their opinion of sincerity and disinterest- edness in their pastors. And the progress of the Dominican and Franciscan friars in the thirteenth century bears a re- markable analogy to that of our English Methodists. Not deviating from the faith of the Church, but professing rather to teach it in greater purity, and to observe her ordinances with greater regularity, while they imputed supineness and corruption to the secular clergy, they drew round their ser- mons a multitude of such listeners as in all ages are attract- ed by similar means. They practised all the stratagems of itinerancy, preaching in public streets, and administering the communion on a portable altar. Thirty years after their institution an historian complains that the parish churches EccLES. Power. PAPAL DISPENSATIONS. 353 were deserted, that none confessed except to these friars — in short, that the regular discipline was subverted. This un- controlled privilege of performing sacerdotal functions, which their modern anti-types assume for themselves, was conceded to the mendicant orders by the favor of Rome. Aware of the powerful support they might receive in turn, the pon- tiffs of the thirteenth century accumulated benefits upon the disciples of Francis and Dominick. They were exempted from episcopal authority ; they were permitted to preach or hear confessions without leave of the ordinary, to accept of legacies, and to inter in their churches. Such privileges could not be granted without resistance from the other clergy ; the bishops remonstrated, the University of Paris maintained a strenuous opposition; but their reluctance served only to protract the final decision. Boniface VIII. appears to have peremptorily established the privileges and immunities of the mendicant orders in 1295. It was naturally to be expected that the objects of such ex- tensive favors would repay their benefactors by a more than usual obsequiousness and alacrity in their service. Accord- ingly, the Dominicans and Franciscans vied with each other in magnifying the papal supremacy. Many of these monks became eminent in canon law and scholastic theology. The great lawgiver of the schools, Thomas Aquinas, whose opin- ions the Dominicans especially treat as almost infallible, went into the exaggerated principles of his age in favor of the See of Rome. And as the professors of those sciences took nearly all the learning and logic of the times to their own share, it was hardly possible to repel their arguments by any direct reasoning. But this partiality of the new mo- nastic orders to the popes must chiefly be understood to ap- ply to the thirteenth century, circumstances occurring in the next which gave in some degree a different complexion to their dispositions in respect of the Holy See. § 4. We should not overlook, among the causes that con- tributed to the dominion of the popes, their prerogative of dispensing with ecclesiastical ordinances. The most remark- able exercise of this was as to the canonical impediments of matrimony. Such strictness as is prescribed by the Chris- tian religion with respect to divorce was very "unpalatable to the barbarous nations. They, in fact, paid it little regard ; under the Merovingian dynasty, even private men put away their wives at pleasure. In many capitularies of Charle- magne we find evidence of the prevailing license of repudia- tion and even polygamy. The principles which the Church 354 PAPAL DISPENSATIONS. Chap. VII. Part II. inculcated were in appearance the very reverse of this laxi- ty; yet they led indirectly to the same effect. Marriages were forbidden, not merely within the limits which nature, or those inveterate associations which we call nature, have rendered sacred, but as far as the seventh degree of collat- eral consanguinity, computed from a common ancestor. Not only was affinity, or relationship by marriage, put upon the same footing as that by blood, but a fantastical connection, called spiritual affinity, w^as invented in order to prohibit marriage between a sponsor and godchild. A union, how- ever innocently contracted, between parties thus circum- stanced might at any time be dissolved, and their subse- quent cohabitation forbidden. One readily apprehends the facilities of abuse to which all this led ; and history is full of dissolutions of marriage, obtained by fickle passion or cold-hearted ambition, to which the Church has not scrupled to pander on some suggestion of relationship. It was not until the twelfth century that either these laws as to mar- riage or any other established rules of discipline were sup- posed liable to arbitrary dispensation ; at least the stricter Churchmen had always denied that the pope could infringe canons, nor had he asserted any right to do so. But Inno- cent III. laid down as a maxim, that out of the plenitude of his power he might lawfully dispense with the law ; and accordingly granted, among other instances of his preroga- tive, dispensations from impediments of marriage to the Em- peror Otho IV. Similar indulgences were given by his suc- cessors, though they did not become usual for some ages. The fourth Lateran Council, in 1215, removed a great part of the restraint, by permitting marriages beyond the fourth degree, or what we call third-cousins; and dispensations have been made more easy, when it was discovered that they might be converted into a source of profit. They served a more important purpose by rendering it necessary for the princes of Europe, who seldom could marry into one anoth- er's houses without transgressing the canonical limits, to keep on good terms with the Court of Rome, which, in several instances that have been mentioned, fulminated its censures against sovereigns who lived without permission in what was considered an incestuous union. The dispensing power of the popes was exerted in several cases of a temporal nature, particularly in the legitimation of children, for purposes even of succession. This Innocent III. claimed as an indirect consequence of his right to remove the canonical impediment which bastardy offered to ordina- EccLEs. Power. PAPAL ENCROACHMENTS. 355 tion ; since it would be monstrous, he says, that one who is le- gitimate for spiritual functions should continue otherwise in any civil matter. But the most important and mischievous species of dispensations was from the observance of promis- sory oaths. Two principles are laid down in the decretals — that an oath disadvantageous to the Church is not bind- ing ; and that one extorted by force was of slight obliga- tion, and might be annulled by ecclesiastical authority. As the first of these maxims gave the most unlimited privilege to the popes of breaking all faith of treaties which thwarted their interest or passion, a privilege which they continually exercised, so the second was equally convenient to princes weary of observing engagements towards their subjects or their neighbors. They protested with a bad grace against the absolution of their people from allegiance by an author- ity to which they did not scruple to repair in order to bol- ster up their own perjuries. Thus Edward I., the strenuous asserter of his temporal rights, and one of the first who op- posed a barrier to the encroachments of the clergy, sought at the hands of Clement Y. a dispensation from his oath to observe the great statute against arbitrary taxation. § 5. In all the earlier stages of papal dominion the supreme head of the Church had been her guardian and protector; and this beneficent character appeared to receive its con- summation in the result of that arduous struggle which re- stored the ancient practice of free election to ecclesiastical dignities. Not long, however, after this triumph had been obtained, the popes began by little and little to interfere with the regular constitution. Their first step was con- formable, indeed, to the prevailing system of spiritual inde- pendency. By the concordat of Calixtus it appears that the decision of contested elections was reserved to the em- peror, assisted hj the metropolitan and suff'ragans. But it was consonant to the prejudices of that age to deem the supreme pontiff a more natural judge, as in other cases of appeal. The point was early settled in England, where a doubtful election to the archbishopric of York, under Ste- phen, was referred to Rome, and there kept five years in lit- igation. Otho TV. surrendered this, among other rights of the empire, to Innocent III. by his capitulation ; and from that pontificate the papal jurisdiction over such controver- sies became thoroughly recognized. But the real aim of In- nocent, and perhaps of some of his predecessors, was to dis- pose of bishoprics, under pretext of determining contests, as a matter of patronage. So many rules were established, s6 356 MANDATS. Chap. VII. Part II. many formalities required by their constitutions, incorpo- rated afterwards into the canon law, that the Court of Rome might easily find means of annulling what had been done by the chapter, and bestowing the see on a favorite candidate. The popes soon assumed not only a right of de- cision, but of devolution ; that is, of supplying the want of election, or the unfitness of the elected, by a nomination of their own. Thus Archbishop Langton, if not absolutely nominated, was at least chosen in an invalid and compulsory manner by the order of Innocent III., as we may read in our English historians. And several succeeding archbishops of Canterbury equally owed their promotion to the papal pre- rogative. Some instances of the same kind occurred in Ger many, and it became the constant practice in Naples, While the popes were thus artfully depriving the chapters of their right of election to bishoprics, they interfered in a more arbitrary manner with the collation of inferior bene- fices. This began, though in so insensible a manner as to deserve no notice but for its consequences, with Adrian IV., who requested some bishops to confer the next benefice that should become vacant on a particular clerk. Alexander III. used to solicit similar favors. These recommendatory letters were called Mwidats. But though such requests grew more frequent than was acceptable to patrons, they were preferred in moderate language, and could not decently be refused to the apostolic chair. But, as we find in the history of all usurping governments, time changes anomaly into system, and injury into right; examples beget custom, and custom ripens into law ; and the doubtful precedent of one genera- lion becomes the fundamental maxim of another. No coun- try was so intolerably treated by the popes as England throughout the ignominious reign of Henry III. Her Church seemed to have been so richly endowed only as the free pas- ture of Italian priests, who were placed, by the mandatory letters of Gregory IX. and Innocent IV., in all the best bene- fices. If we may trust a solemn remonstrance in the name of the whole nation, they drew from England, in the middle of the thirteenth century, sixty or seventy thousand marks every year — a sum far exceeding the royal revenue. This was asserted by the English envoys at the Council of Lyons. But the remedy was not to be sought in remonstrances to the Court of Rome, which exulted in the success of its en- croachments. There was no defect of spirit in the nation to oppose a more adequate resistance ; but the weak-minded in- dividual upon the throne sacrificed the public interest some- EccLES. Power. PROVISIONS AND RESERVES. 357 times through habitual timidity, sometimes through silly am- bition. If England, however, suffered more remarkably, yet other countries were far from being untouched. A German writer about the beginning of the fourteenth century men- tions a cathedral where, out of about thirty-iive vacancies of prebends that had occurred within twenty years, the regular patron had filled only two. The case was not very differ- ent in France, where the continual usurpations of the popes produced the celebrated Pragmatic Sanction of St. Louis (a.d. 1268). This edict contains three important provisions ; namely, that all prelates and other patrons shall enjoy their full rights as to the collation of benefices, according to the canons; that churches shall possess freely their rights of election ; and that no tax or pecuniary exaction shall be levied by the pope, without consent of the king and of the national Church. We do not find, however, that the French Government acted up to the spirit of this ordinance ; and the Holy See continued to invade the rights of collation with less ceremony than they had hitherto used. Clement IV. published a bull in 1266, which, after asserting an absolute prerogative of the supreme pontiff to dispose of all prefer- ments, whether vacant or in reversion, confines itself in the enacting words to the reservation of such benefices as be- long to persons dying at Rome (vacantes in curia). These had for some time been reckoned as a part of the pope's special patronage ; and their number, when all causes of importance were drawn to his tribunal, when metropolitans w^ere compelled to seek their pallium in person, and even, by a recent constitution, exempt abbots were to repair to Rome for confirmation, not to mention the multitude who flocked thither as mere courtiers and hunters after promotion, must have been very considerable. Boniface VIII. repeated this law of Clement IV. in a still more positive tone ; and Clem- ent V. laid down as a maxim, that the pope might freely bestow, as universal patron, all ecclesiastical benefices. In order to render these tenable by their Italian courtiers, the canons against pluralities and non-residence were dispensed with ; so that individuals were said to have accumulated fifty or sixty preferments. It was a consequence from this extravagant principle, that the pope might prevent the ordi- nary collator upon a vacancy ; and, as this could seldom be done with sufficient expedition in places remote from his court, that he might make reversionary grants during the life of an incumbent, or reserve certain benefices specifically for his own nomination. 358 PAPAL TAXATION. Chap. VII. Part II § 6. The persons as well as estates of ecclesiastics were secure from arbitrary taxation in all kingdoms founded upon the ruins of the empire, both by the common liberties of free- men, and more particularly by their own immunities and the horror of sacrilege. Such, at least, was their legal security, whatever violence might occasionally be practised by tyran- nical princes. But this exemption was compensated by an- nual donatives, probably to a large amount, which the bish- ops and monasteries were accustomed, and as it were com- pelled, to make to their sovereigns. They were subject also, generally speaking, to the feudal services and prestations. Henry I. is said to have extorted a sum of money from the English Church, But the first eminent instance of a general tax required from the clergy was the famous Saladine tithe — a tenth of all movable estate, imposed by the kings of France and England upon all their subjects, with the consent of their great councils of prelates and barons, to defray the ex- pense of their intended crusade. Yet even this contribution, though called for by the imminent peril of the Holy Land af ter the capture of Jerusalem, was not paid without reluctance; the clergy doubtless anticipating the future extension of such a precedent. Many years had not elapsed when a new demand was made upon them, but from a diflferent quarter. Innocent HI. (the name continually recurs when we trace the commencement of an usurpation) imposed in 1199 upon the whole Church a tribute of one-fortieth of movable estate, to be paid to his own collectors; but strictly pledging himself that the money should only be applied to the purposes of a crusade. This crusade ended, as is well known, in the cap- ture of Constantinople. But the word had lost much of its original meaning ; or rather, that meaning had been extend- ed by ambition and bigotry. Gregory IX. preached a cru- sade against the Emperor Frederick, in a quarrel which only concerned his temporal principality ; and the Church of En- gland was taxed, by his authority, to carry on this holy war. After some opposition the bishops submitted, and from that time no bounds were set to the rapacity of papal exactions. The usurers of Cahors and Lorabardy, residing in London, took up the trade of agency for the pope ; and in a few years he is said, partly by levies of money, partly by the rev- enues of benefices, to have plundered the kingdom of 950,000 marks ; a sum equivalent, perhaps, to not less than fifteen mil- lions sterling at present. Henry III.'s pusillanimity would not permit any effectual measures to be adopted ; and in- deed he sometimes shared in the booty, and was indulged EccLES. Power. DISAFFECTION TO THE CHURCH. 359 with the produce of taxes imposed upon his own clergy to defray the cost of his projected war against Sicily. A nobler example was set by the kingdom of Scotland : Clement IV. having, in 1267, granted the tithes of its ecclesiastical reve- nues for one of his mock crusades, King Alexander III., with the concurrence of the Church, stood up against this en- croachment, and refused the legate permission to enter his dominions. § 7. These gross invasions of ecclesiastical property, how- ever submissively endured, produced a very general disaf fection towards the Court of Rome. Pillaged upon every slight pretense, without law and without redress, the clergy came to regard their once paternal monarch as an arbitrary oppressor. All writers of the thirteenth and following cen- turies complain in terms of unmeasured indignation, and seem almost ready to reform the general abuses of the Church. They distinguished, however, clearly enough be- tween the abuses which oppressed them and those which it was their interest to preserve, nor had the least intention of waiving their own immunities and authority. But the laity came to more universal conclusions. A spirit of inveterate hatred grew up among them, not only towards the papal tyranny, but the whole system of ecclesiastical independ- ence. The rich envied and longed to plunder the estates of the superior clergy; the poor learned from the Waldenses and other sectaries to deem such opulence incompatible with the character of evangelical ministers. The itinerant min- strels invented tales to satirize vicious priests, which a pre- disposed multitude eagerly swallowed. If the thirteenth century was an age of more extravagant ecclesiastical pre- tensions than any which had preceded, it was certainly one in which the disposition to resist them acquired greater con- sistence. § 8. To resist had, indeed, become strictly necessary, if the temporal governments of Christendom would occupy any better station than that of officers to the hierarchy. About the beginning of the twelfth century the ecclesiastical juris- diction had rapidly encroached upon the secitlar tribunals, and seemed to threaten the usurpation of an exclusive su premacy over all persons and causes. The bishops gave the tonsure indiscriminately, in order to swell the list of their subjects. This sign of a clerical state, though below the lowest of their seven degrees of ordination, implying no spir- itual office, conferred the privileges and immunities of the profession on all who wore an ecclesiastical habit and had 360 ECCLESIASTICAL JURISDICTION Chap. VII. Part II. only once been married. Orphans and widows, the stranger and the poor, the pilgrim and the leper, under the appella- tion of persons in distress (miserabiles personae), came with- in the peculiar cognizance and protection of the Church; nor could they be sued before any lay tribunal. And the whole body of Crusaders, or such as merely took the vow of engag- ing in a crusade, enjoyed the same clerical privileges. But where the character of the litigant parties could not, even with this large construction, be brought within their pale, the bishops found a pretext for their jurisdiction in the nature of the dispute. Spiritual causes alone, it was agreed, could appertain to the spiritual tribunal. But the word was indefinite; and according to the interpreters of the twelfth century the Church was always bound to prevent and chas- tise the commission of sin. By this sweeping maxim, which we have seen Innocent III. apply to vindicate his control over national quarrels, the common differences of individuals, which generally involve some charge of willful injury, fell into the hands of a religious judge. One is almost surprised to find that it did not extend more universally, and might praise the moderation of the Church. Real actions, or suits relating to the property of land, were always the exclusive province of the lay court, even where a clerk was the de- fendant. But the ecclesiastical tribunals took cognizance of breaches of contract, at least where an oath had been pledged, and of personal trusts. They had not only an ex- clusive jurisdiction over questions immediately matrimonial, but a concurrent one with the civil magistrate in France, though never in England, over matters incident to the nup- tial contract, as claims of marriage-portion and of doAver. They took the execution of testaments into their hands, on account of the legacies to pious uses which testators were advised to bequeath. In process of time, and under favor- able circumstances, they made still greater strides. They pretended a right to supply the defects, the doubts, or the negligence of temporal judges; and invented a class of mixed causes, whereof the lay or ecclesiastical jurisdiction took possession according to priority. Besides this exten- sive authority in civil disputes, they judged of some offenses which naturally belong to the criminal law, as well as of some others which participate of a civil and criminal nature. Such were perjury, sacrilege, usury, incest, and adultery, from the punishment of all which the secular magistrate re- frained, at least in England, after they had become the prov- ince of a separate jurisdiction. Excommunication still con- EccLES. PowEK. AND IxMMUNlTY. 361 tinued the only chastisement which the Church could direct- ly inflict. But the bishops acquired a right of having their own prisons for lay offenders, and the monasteries were the appropriate prisons of clerks. Their sentences of excommu- nication were enforced by the temporal magistrate by im- prisonment or sequestration of effects ; in some cases by con- fiscation or death. § 9. The clergy did not forget to secure along with this jurisdiction their own absolute exemption from the crim- inal justice of the state. This had been conceded to them by Charlemagne ; and this privilege was not enjoyed by clerks in England before the Conquest ; nor do we find it proved by any records long afterwards ; though it seems, by what we read about the constitutions of Clarendon, to have grown into use before the reign of Henry II. About the middle of the twelfth century the principle obtained general reception, and Innocent III. decided it to be an inalienable right of the clergy, whereof they could not be divested even by their own consent. Much less were any constitutions of princes, or national usages, deemed of force to abrogate such an important privilege. These, by the canon law, were in- valid when they affected the rights and liberties of Holy Church. But the spiritual courts were charged with scan- dalously neglecting to visit the most atrocious offenses of clerks with such punishment as they could inflict. The Church could always absolve from her own censures; and confinement in a monastery, the usual sentence upon criminals, was frequently slight and temporary. Several instances are mentioned of heinous outrages that remained nearly unpun- ished through the shield of ecclesiastical privilege. And as the temporal courts refused their assistance to a rival juris- diction, the clergy had no redress for their own injuries, and even the murder of a priest, at one time, as we are told, was only punishable by excommunication. § 10. Such an incoherent medley of laws and magistrates, upon the symmetrical arrangement of which all social econ« omy mainly depends, could not fail to produce a violent col- lision. Every sovereign was interested in vindicating the authority of the constitution which had been formed by his ancestors, or by the people whom he governed. But the first who undertook this arduous work, the first who appear- ed openly against ecclesiastical tyranny, was our Henry II. That king, in the constitutions of Clarendon, attempted in three respects to limit the jurisdiction assumed by the Church ; asserting for his own judges the cognizance of con- 16 362 ENDEAVORS TO REPEESS Chap. VII. Part II tracts, however confirmed by oath, and of rights of advow- son, and also that of offenses committed by clerks, whom, as it is gently expressed, after conviction or confession the Church ought not to protect. These constitutions were the leading subject of difference between the king and Thomas a Becket. Most of them were annulled by the pope, as derogatory to ecclesiastical liberty. It is not improbable, however, that, if Louis VII. had played a more dignified part, the See of Rome, which an existing schism rendered dependent upon the favor of those two monarchs, might have receded in some measure from her pretensions. But, France implicitly giving way to the encroachments of ecclesiastical power, it became impossible for Henry completely to withstand them. The constitutions of Clarendon, however, produced some effect, and in the reign of Henry III. more unremitted and successful efforts began to be made to maintain the inde- pendence of temporal government. The judges of the King's Court had until that time been themselves principally ec- clesiastics, and consequently tender of spiritual privileges. But now, abstaining from the exercise of temporal jurisdic- tion, in obedience to the strict injunctions of their canons, the clergy gave place to common lawyers, professors of a system very discordant from their own. These soon began to assert the supremacy of their jurisdiction by issuing writs of prohibition whenever the ecclesiastical tribunals passed the boundaries which approved use had established. Little accustomed to such control, the proud hierarchy chafed un- der the bit ; several provincial synods protest against the pretensions of laymen to judge the anointed ministers whom they were bound to obey ; the cognizance of rights of patron- age and breaches of contract is boldly asserted ; but firm and cautious, favored by the nobility, though not much by the king, the judges receded not a step, and ultimately fixed a barrier which the Church was forced to respect. In the en- suing reign of Edward I., an archbishop acknowledges the ^ abstract right of the King's Bench to issue prohibitions ; and the statute entitled Circumspect^ agatis^ in the thirteenth year of that prince, while by its mode of expression it seems , designed to guarantee the actual privileges of spiritual juris- diction, had a tendency, especially with the disposition of the judges, to yjreclude the assertion of some which are not there- in mentioned. Neither the right of advowson nor any tem- " The statnte Circumspeete agatis, for it is acknowledged as a statute, though not drawn up in the form of one, is founded upon an answer of Edward I. to the prel- ates who had petitioned for some modification of prohibitions. EccLES. Power. ECCLESIASTICAL JURISDICTION. 363 poral contract is specified in this act as pertaining to the Church ; and accordingly the temporal courts have ever since maintained an undisputed jurisdiction over them. They succeeded also partially in preventing the impunity of crimes perpetrated by clerks. It was enacted by the statute of Westminster, in 1275, or rather a construction was put upon that act, which is obscurely worded, that clerks indicted for felony should not be delivered to their ordinary until an inquest had been taken of the matter of accusation ; and, if they were found guilty, that their real and personal estate should be forfeited to the crown. § 11. The vast acquisitions of landed wealth made for many ages by bishops, chapters, and monasteries, began at length to excite the jealousy of sovereigns. They perceived that, although the prelates might send their stipulated proportion of vassals into the field, yet there could not be that active co-operation which the spirit of feudal tenures required, and that the national arm was jjalsied by the diminution of mili- tary nobles. Again, the reliefs upon succession, and similar dues upon alienation, incidental to fiefs, were entirely lost when they came into the hands of these undying corpora- tions, to the serious injury of the feudal superior. Nor could it escape reflecting men, during the contest about investi- tures, that, if the Church peremptorily denied the supremacy of the state over her temporal wealth, it was but a just measure of retaliation, or rather self-defense, that the state should restrain her further acquisitions. Prohibitions of gifts in mortmain, though unknown to the lavish devotion of the new kingdoms, had been established by some of the Koman emperors to check the overgrown wealth of the hie- rarchy. The first attempt at a limitation of this description in modern times was made by Frederick Barbarossa, who, in 1158, enacted that no fief should be transferred, either to the Church or otherwise, without the permission of the superior lord. Louis IX. inserted a provision of the same kind in his Establishments. Castile had also laws of a similar tenden- cy. A license from the crown is said to have been necessary in England, before the Conquest, for alienation in mortmain ; but however that may be, there seems no reason to imagine that any restraint was put upon them by the common law before Magna Charta — a clause of which statute was con- strued to prohibit all gifts to religious houses without the consent of the lord of the fee. And by the 7th Edward I. alienations in mortmain are absolutely taken away ; though the king might always exercise his prerogative of granting a 364 BONIFACE VIII. Chap. VII. Part II. license, which was not supposed to be affected by the stat- ute. § 12. It must appear, I think, to every careful inquirer that the papal authority, though manifesting outwardly more show of strength every year, had been secretly undermined, and lost a great deal of its hold upon public opinion, before the accession of Boniface VIII., in 1294, to the pontifical throne. The clergy were rendered sullen by demands of money, invasions of the legal right of patronage, and unrea- sonable partiality to the mendicant orders; a part of the men- dicants themselves had begun to declaim against the corrup- tions of the papal court : while the laity, subjects alike and sovereigns, looked upon both the head and the members of the hierarchy with jealousy and dislike. Boniface, full of in ordinate arrogance and ambition, and not sufficiently sensi- ble of this gradual change in human opinion, endeavored to strain to a higher pitch the despotic pretensions of former pontiffs. As Gregory VII. appears the most usurping of mankind till we read the history of Innocent III., so Inno- cent III. is thrown into shade by the superior audacity of Boniface VIII. But independently of the less favorable dis- positions of the public, he wanted the most essential quality for an ambitious pope — reputation for integrity. He was suspected of having procured through fraud the resignation of his predecessor, Celestine V., and his harsh treatment of that worthy man afterwards seems to justify the reproach. His actions, however, display the intoxication of supreme self- Confidence. If we may credit some historians, he appeared at the Jubilee in 1300 — a festival successfully instituted by himself to throw lustre around his court and fill his treas- ury^ — dressed in imperial habits, with the two swords borne before him, emblems of his temporal as well as spiritual do- minion over the earth. It was not long after his elevation to the pontificate be- fore Boniface displayed his temper. The two most powerful sovereigns of Europe, Philip the Fair and Edward I., began at the same moment to attack in a very arbitrary manner tiie revenues of the Church. The English clergy had, by their own voluntary grants, or at least those of the prelates in their name, paid frequent subsidies to the crown from the beginning of the reign of Henry III. They had nearly in 3 The Jubilee was a centenary commemoration in honor of St. Peter and St. Paul, established by Boniface VIII. on the faith of an imaginary precedent a century be- fore. The period was soon reduced to fifty years, and from thence to tw«nty-five, as It sti\I continues. EccLES. Power. DISPUTES OF BONIFACE VIII. 365 effect waived the ancient exemption, and retained only the common privilege of English freemen to tax themselves in a constitutional manner. But Edward I. came upon them with demands so frequent and exorbitant, that they were com- pelled to take advantage of a bull issued by Boniface, forbid- ding them to pay any contribution to the state. The king disregarded every pretext, and seizing their goods into his hands, with other tyrannical proceedings, ultimately forced them to acquiesce in his extortion. It is remarkable that the pope appears to have been passive throughout this con- test of Edward I. with his clergy. But it was far otherwise in France. Philip the Fair had imposed a tax on the eccle- siastical order without their consent, a measure perhaps un- precedented, yet not more odious than the similar exactions of the King of England. Irritated by some previous differ- ences, the pope issued his bull known by the initial words Clericis laicos, absolutely forbidding the clergy of every kingdom to pay, under whatever pretext of voluntary grant, gift, or loan, any sort of tribute to their government, with- out his special permission. Though France was not partic- ularly named, the king understood himself to be intended, and took his revenge by a prohibition to export money from the kingdom. This produced angry remonstrances on the part of Boniface ; but the Galilean Church adhered so faith- fully to the crown, and showed, indeed, so much willingness to be spoiled of their money, that he could not insist upon the most unreasonable proj^ositions of his bull, and ultimate- ly allowed that the French clergy might assist their sover- eign by voluntary contributions, though not by way of tax. For a very few years after these circumstances the pope and king of France appeared reconciled to each other; and the latter even referred his disputes with Edward I. to the arbitration of Boniface, " as a private person, Benedict of Gaeta (his proper name), and not as pontiff;" an almost nu- gatory precaution against his encroachment upon temporal authority. But a terrible storm broke out in the first year of the fourteenth century. A bishop of Pamiers, who had been sent as legate from Boniface with some complaint, dis- played so much insolence and such disrespect towards the king, that Philip, considering him as his own subject, was provoked to put him under arrest, with the view to institute a criminal process. Boniface, incensed beyond measure at this violation of ecclesiastical and legatine privileges, pub- lished several bulls addressed to the king and clergy of France, charging the former with a variety of offenses, sonie 366 DISPUTES OF BONIFACE VIII. Chap. VII. Part II, of them not at all concerning the Church, and commanding the latter to attend a council which he had summoned to meet at Rome. In one of these instruments, the genuineness of which does not seem liable to much exception, he declares in concise and clear terms that the king was subject to him in temporal as well as spiritual matters. This proposition had not hitherto been explicitly advanced, and it was now too late to advance it. Philip replied by a short letter in the rudest language, and ordered his bulls to be publicly burned at Paris. Determined, however, to show the real strength of his opposition, he summoned representatives from the three orders of his kingdom. This is commonly reck- oned the first assembly of the States-General. The nobility and commons disclaimed with firmness the temporal au- thority of the pope, and conveyed their sentiments to Rome through letters addressed to the college of cardinals. The clergy endeavored to steer a middle course, and were re- luctant to enter into an engagement not to obey the pope's summons ; yet they did not hesitate unequivocally to deny his temporal jurisdiction. The council, however, opened at Rome; and notwith- standing the king's absolute prohibition, many French prel- ates held themselves bound to be present. In this assembly Boniface promulgated his famous constitution, denominated Unam scmctam. The Church is one body, he therein de- clares, and has one head. Under its command are two swords, the one spiritual, the other temporal ; that to be used by the supreme pontiff himself; this by kings and knights, by his license and at his will. But the lesser sword must be subject to the greater, and the temporal to the spir- itual authority. He concludes by declaring the subjection of every human being to the See of Rome to be an article of necessary faith. Another bull pronounces all persons of whatever rank obliged to appear when personally cited be- fore the audience or apostolical tribunal at Rome ; " since such is our pleasure, who, by divine permission, rule the world." Finally, as the rupture of Philip grew more evi- dently irreconcilable, and the measures pursued by that monarch more hostile, he not only excommunicated him, but offered the crown of France to the Emperor Albert I. This arbitrary transference of kingdoms was, like manj^ other pretensions of that age, an improvement upon the right of deposing excommunicated sovereigns. Gregory VJI. would not have denied that a nation released by his authority from its allegiance must re-enter upon its original right of elect- EccLEs. Power. WITH THE KING OF FRANCE. , 367 ing a new sovereign. But Martin IV. had assigned the crown of Aragon to Charles of Yalois; the first instance, I think, of such an usurpation of power, but which was de- fended by the homage of Peter XL, who had rendered his kingdom feudally dependent, like Naples, upon the Holy See. Albert felt no eagerness to realize the liberal promises of Boniface, who was on the point of issuing a bull absolving the subjects of Philip from their allegiance, and declaring his forfeiture, when a very unexpected circumstance inter- rupted all his projects. Philip gave too much the air of a personal quarrel with Boniface to what should have been a resolute opposition to the despotism of Rome. Accordingly, in an assembly of his states at Paris, he preferred virulent charges against the pope, denying him to have been legitimately elected, imput- ing to him various heresies, and ultimately appealing to a general council and a lawful head of the Church. These measures were not very happily planned; and experience had always shown that Europe would not submit to change the common chief of her religion for the purposes of a single sovereign. But Philip succeeded in an attempt apparent- ly more bold and singular. Nogaret, a minister who had taken an active share in all the proceedings against Boni- face, was secretly dispatched into Italy, and, joining with some of the Colonna family, proscribed as Ghibelins, and rancorously persecuted by the pope, arrested him at Anag- nia, a town in the neighborhood of Rome, to which he had gone without guards. This violent action was not, one would imagine, calculated to place the king in an advanta- geous light; yet it led accidentally to a favorable termina- tion of his dispute. Boniface was soon rescued by the in- habitants of Anagnia ; but rage brought on a fever which ended in his death; and the first act of his successor, Bene- dict XL, was to reconcile the King of France to the Holy See. § 13. The sensible decline of the papacy is to be dated from the pontificate of Boniface VHL, who had strained its authority to a higher pitch than any of his predecessors. There is a spell wrought by uninterrupted good-fortune, which captivates men's understandings, and persuades them, against reasoning and analogy, that violent power is immor- tal and irresistible. The spell is broken by the first change of success. The tacit submission of the successors of Boni- face VHL to the King of France might have been hailed by Europe as a token that their influence was beginning to abate. Imprisoned, insulted, deprived eventually of life by 368 DECLINE OF THE PAPACY. Chap. VII. Part M. the violence of Philip, a prince excommunicated, and who had gone all lengths in defying and despising the papal jurisdic- tion, Boniface had every claim to be avenged by the inherit- ors of the same spiritual dominion. When Benedict XI. re- scinded the bulls of his predecessor, and admitted Philip the Fair to communion, without insisting on any concessions, he acted perhaps prudently, but gave a fatal blow to the tem- poral authority of Rome. Benedict XL lived but a few months, and his successor, Clement Y., at the instigation, as is commonly supposed, of the King of France, by whose influence he had been elected, took the extraordinary step of removing the papal chair to Avignon (a.d. 1305). In this city it remained for more than seventy years ; a period which Petrarch and other writers of Italy compare to that of the Babylonish captivity. The majority of the cardinals w^as always French, and the popes were uniformly of the same nation. Timidly dependent upon the Court of France, they neglected the interests and lost the affections of Italy. Rome, forsaken by her sover- eign, nearly forgot her allegiance ; what remained of papal authority in the ecclesiastical territories was exercised by cardinal legates, little to the honor or advantage of the Holy See. Yet the series of Avignon pontiffs were far from insensible to Italian politics. These occupied, on the con- trary, the greater part of their attention. But engaging in them from motives too manifestly selfish, and being regard- ed as a sort of foreigners from birth and residence, they ag- gravated that unpopularity and bad reputation which from various other causes attached itself to their court. § 14. Though none of the supreme pontiffs after Bonifaqe YIII. ventured upon such explicit assumptions of a general jurisdiction over sovereigns by divine right as he had made in his controversy with Philip, they maintained one memo- rable struggle for temporal power against the Emperor Louis, of Bavaria. His predecessor, Henry YIL, whose measures, much to the alarm of the Court of Avignon, were directed towards the restoration of his imperial rights in Italy, had conferred the rank of vicar of the empire upon Matteo Yis- conti, lord of Milan. The popes had for some time pretend- ed to possess that vicariate, during a vacancy of the empire; and after Llenry's death insisted upon Yisconti's surrender of the title. A war ensued between the pope's legate and the Yisconti family. The Emperor Louis sent assistance to the latter, as heads of the Ghibelin or imperial party. This interference cost him above twenty years of trouble. John EccLES. Power. PAPAL COURT AT AVIGNON. 369 XXII., a mail as passionate and ambitious as Boniface him- self, immediately published a bull in which he asserted the right of- administering the empire during its vacancy (even in Germany, as it seems from the generality of his expres- sion), as well as of deciding in a doubtful choice of the elect- ors, to appertain to the Holy See ; and commanded Louis to lay down his pretended authority until the supreme juris- diction should determine upon his election. Louis's election Iiad, indeed, been questionable ; but that controversy was al- ready settled in the field of Mnhldorf, where he had obtained a victory over his competitor, the Duke of Austria; nor had the pope ever interfered to appease a civil war during sev- eral years that Germany had been internally distracted by the dispute. The emperor, not yielding to this peremptory order, was excommunicated ; his vassals were absolved from their oath of fealty, and all treaties of alliance between him and foreign princes annulled (a.d. 1323). Germany, how- ever, remained firm ; and if Louis himself had manifested more decision of mind and uniformity in his conduct, the Court of Avignon must have signally failed in a contest from which it did not, in fact, come out very successful. But while at one time he went intemperate lengths against John XXII., publishing scandalous accusations in an assem- bly of the citizens of Rome, and causing a Franciscan friar to be chosen in his room, after an irregular sentence of depo sition, he was always anxious to negotiate terms of accom- modation, to give up his own active partisans, and to make concessions the most derogatory to his independence and dignity. From John, indeed, he had nothing to expect ; but Benedict XII. would gladly have been reconciled, if he had not feared the kings of France and Naples, political adversa- ries of the emperor, who kept the Avignon popes in a sort of servitude. His successor, Clement VI., inherited the im- placable animosity of John XXII. towards Louis, who died without obtaining the absolution he had long abjectly so- licited. § 15. Though the want of firmness in this emperor's char- acter gave sometimes a momentary triumph to the popes, it is evident that their authority lost ground during the con- tinuance of this struggle. Their right of confirming imperi- al elections was expressly denied by a Diet held at Frankfort in 1338, which established as a fundamental principle that the imperial dignity depended upon God alone, and that who- ever should be chosen by a majority of the electors became immediately both king and emperor, with all prerogatives 16* 370 RAPACITY OF AVIGNON POPES. Chap. VII. Part 11 of that station, and did not require the approbation of the pope. This law, confirmed as it was by subsequent usage, emancipated the German Empire, which was immediately concerned in opposing the papal claims. But some who were actively engaged in these transactions took more extensive views, and assailed the whole edifice of temporal power which the Roman See had been constructing for more than two centuries. Several men of learning, among whom Dante, Ockham, and Marsilius of Padua are the most conspicuous, investigated the foundations of this superstructure, and ex- posed their insufficiency. Literature, too long the passive handmaid of spiritual despotism, began to assert her nobler birthright of ministering to liberty and truth. Though the writings of these opponents of Rome are not always rea- soned upon very solid principles, they at least taught man- kind to scrutinize what had been received with implicit re- spect, and prepared the way for more philosophical discus^ sions. About this time a new class of enemies had unex- pectedly risen up against the rulers of the Church. These were a part of the Franciscan order who had seceded from the main body on account of alleged deviations from the rigor of their primitive rule. Their schism was chiefly found- ed upon a quibble about the right of property in things con- sumable, whieh they maintained to be incompatible with the absolute poverty prescribed to them. This frivolous sophis- try was united with the wildest fanaticism ; and as John XXII. attempted to repress their follies by a cruel persecu- tion, they proclaimed aloud the corruption of the Church, fixed the name of Antichrist upon the papacy, and warmly supported the Emperor Louis throughout all his contention with the Holy See.* Meanwhile, the popes who sat at Avignon continued to invade with surprising rapaciousness the patronage and rev- enues of the Church. The mandats, or letters, directing a particular clerk to be preferred seem to have given place in a great degree to the more effectual method of appropria- ting benefices by reservation or provision, which was carried to an enormous extent in the fourteenth century. John XXIL, the most insatiate of pontiffs, reserved to himself all the bishoprics in Christendom. Benedict XII. assumed the privilege for his own life of disposing of all benefices vacant by cession, deprivation, or translation. Clement VI. natural •^; * The schism of the rigid Franciscans or Fraticelli is one of the most singular parts 'Vf ecclesiastical history, and had a material tendency both to depress the tempora] authority of the papacy and to pave the way for the Reformation. EccLES. Power. RAPACITY OF AVIGNON POPES. 371 ly thought that his title was equally good with his prede- cessors', and continued the same right for his own time; which soon became a permanent rule of the Roman Chancery. Hence the appointment of a prelate to a rich bishopric was generally but the first link in a chain of translation which the pope could regulate according to his interest. Another cap- ital innovation was made by John XXII. in the establish- ment of the famous tax called A7inates, or first-fruits of ec- clesiastical benefices, which he imposed for his own benefit. These were one year's value, estimated according to a fixed rate in the books of the Roman Chancery, and payable to the papal collectors throughout Europe. Various other devi- ces were invented to obtain money, which these degenerate popes, abandoning the magnificent schemes of their prede- cessors, were content to seek as their principal object. John XXII. is said to have accumulated an almost incredible treasure, exaggerated perhaps by the ill-will of his contem- poraries ; but it may be doubted whether even his avarice reflected greater dishonor on the Church than the licentious profuseness of Clement VI. These exactions were too much encouraged by the kings of France, who participated in the plunder, or at least required a mutual assistance of the popes for their own imposts on the clergy. A manlier spirit was displayed by our ancestors. It was the boast of England to have placed the first legal barrier to the usurpations of Rome, if we except the insu- lated Pragmatic Sanction of St. Louis, from which the prac- tice of succeeding ages in France entirely deviated. The English barons had, in a letter addressed to Boniface VIII., absolutely disclaimed his temporal supremacy over their crown, which he had attempted to set up by intermeddling in the quarrel of Scotland. This letter, it is remarkable, is nearly coincident in point of time with that of the French nobility ; and the two combined may be considered as a joint protestation of both kingdoms, and a testimony to the general sentiment among the superior ranks of the laity. A very few years afterwards the Parliament of Carlisle wrote a strong remonstrance to Clement V. against the system of provisions and other extortions, including that of first-fruits, which it was rumored, they say, he was meditating to de- mand. But the Court of Avignon was not to be moved by remonstrances ; and the feeble administration of Edward II. gave way to ecclesiastical usurpations at home as well as abroad. His magnanimous son took a bolder line. After complaining ineffectually to Clement VI. of the enormous 372 RETURN OF POPES TO ROME. Chap. VII. Part II. abuse which reserved almost all English benefices to the pope, and generally for the benefit of aliens, he passed, in 1350, the famous Statute of Provisors. This act, reciting one supposed to have been made at the Parliament of Carlisle, which, however, does not appear, and complaining in strong language of the mischief sustained through continual reser- vations of benefices, enacts that all elections and collations shall be free, according to law, and that, in case any provision or reservation should be made by the Court of Rome, the king should for that turn have the collation of such a bene- fice, if it be of ecclesiastical election or patronage. This dev- olution to the crown, w^hich seems a little arbitrary, was the only remedy that could be effectual against the connivance and timidity of chapters and spiritual patrons. We can not assert that a statute so nobly planned was executed with equal steadiness. Sometimes by royal dispensation, some- times by neglect or evasion, the papal bulls of provision were still obeyed, though fresh laws were enacted to the same eflTect as the former. It was found, on examination in 1367, that some clerks enjoyed more than twenty benefices by the pope's dispensation. And the Parliaments both of this and of Richard IL's reign invariably complain of the disregard shown to the statute of provisors. This led to other measures, which I shall presently mention. § 16. The residence of the popes at Avignon gave very general offense to Europe, and they could not themselves avoid perceiving the disadvantage of absence from their proper diocese, the city of St. Peter, the source of all their claims to sovereign authority. But Rome, so long aban- doned, ofifered but an inhospitable reception; Urban V. re- turned to Avignon, after a short experiment of the capital; and it was not till 1376 that the promise, often repeated, and long delayed, of restoring the papal chair to the metropolis of Christendom, was ultimately fulfilled by Gregory XL His death, which happened soon afterwards, prevented, it is said, a second flight that he was preparing (a.d. 1378). This was followed by the great schism, one of the most remarka- ble events in ecclesiastical history. It is a diflScult and by no means an interesting question to determine the validity of that contested election Avhich distracted the Latin Church for so many years. In one fi;ict, however, there is a common agreement, that the cardinals, of whom the majority were French, having assembled in conclave for the election of a successor to Gregory XL, were disturbed by a tumultuous .populace, who demanded, wdth menaces, a Roman, or at least EccLES. Power. ORIGIN OF THE GREAT SCHISM. 373 an Italian, pope. This tumult appears to have been suffi- ciently violent to excuse, and in fact did produce, a consid- erable degree of intimidation. After some time the cardi- nals made choice of the Archbishop of Bari, a Neapolitan, who assumed the name of Urban VI. His election satisfied the populace, and tranquillity was restored. The cardinals announced their choice to the absent members of their col- lege, and behaved towards Urban as their pope for several weeks. But his uncommon harshness of temper giving them offense, they withdrew to a neighboring town, and, protest- ing that his election had been compelled by the violence of the Roman populace, annulled the whole proceeding, and chose one of their own number, who took the pontifical name of Clement VII. Such are the leading circumstances which produced the famous schism. The two competitors shared the obedience of Europe in nearly equal proportions. Urban remained at Rome, Clement resumed the station of Avignon. To the former adhered Italy, the empire, England, and the nations of the North ; the latter retained^ in his allegiance France, Spain, Scotland, and Sicily. Fortunately for the Church, no question of religious faith intermixed itself with this schism ; nor did any other impediment to reunion exist than the obstinacy and selfishness of the contending parties. As it was impossible to come to any agreement on the orig inal merits, there seemed to be no means of healing the wound but by the abdication of both popes and a fresh undisputed election. This was the general wish of Europe, but urged with particular zeal by the Court of France, and, above all, by the university of Paris, which esteems this period the most honorable in her annals. The cardinals, however, of neither obedience would recede so far from their party as to suspend the election of a successor upon a vacancy of the pontificate, which would have at least removed one-half of the obstacle. The Roman conclave, accordingly, placed three pontiffs successively — Boniface IX., Innocent VI., and Greg- ory XII. — in the seat of Urban VI. ; and the cardinals at Avig- non, upon the death of Clement in 1394, elected Benedict XIII. (Peter de Luna), famous for his inflexible obstinacy in prolonging the schism. He repeatedly promised to sacrifice his dignity for the sake of union. But there was no subter- fuge to which this crafty pontiff had not recourse in order to avoid compliance with his word, though importuned, threat- ened, and even besieged in his palace at Avignon. Fatigued by his evasions, France withdrew her obedience, and the Gal- ilean Church continued for a few years without acknovvledg- ♦ 37i^ COUNCILS OF PISA AND CONSTANCE. Ch VII. Pt. II. ing ny supreme head. But this step, which was rather the measure of the University of Paris than of the nation, it seemed advisable to retract ; and Benedict was again obey- ed, though France continued to urge his resignation. A sec- ond subtraction of obedience, or at least declaration of neu- trality, was resolved upon, as preparatory to the convocation of a general council. On the other hand, those who sat at Rome displayed not less insincerity. Gregory XII. bound himself by oath, on his accession, to abdicate when it should appear necessary. But while these rivals were loading each other with the mutual reproach of schism, they drew on them- selves the suspicion of at least a virtual collusion in order to retain their respective stations. At length the cardinals of both parties, wearied with so much dissimulation, deserted their masters, and summoned a general council to meet at Pisa. § 17, The council assembled at Pisa (1409), deposed both Gregory and Benedict, without deciding, in any respect, as to their pretensions^ and elected Alexander V. by its own su- preme authority. This authority, however, was not univer- sally recognized ; the schism, instead of being healed, became more desperate ; for, as Spain adhered firml}^ to Benedict, and Gregory was not without supporters, there were now three contending pontiffs in the Church. A general council was still, however, the favorite, and indeed the sole remedy ; and John XXIII., successor to Alexander V., was reluctantly prevailed upon, or perhaps trepanned, into convoking one to meet at Constance (1414). In this celebrated assembly he was himself deposed — a sentence which he incurred by that tenacious clinging to his dignity, after repeated promises to abdicate, which had already proved fatal to his competitors. The deposition of John, confessedly a legitimate pope, may strike us as an extraordinary measure. But, besides the op- portunity it might afford of restoring union, the council found a pretext for this sentence in his enormous vices, which indeed they seem to have taken upon common fame, without any judi- cial process. The true motive, however, of their proceedings against him was a desire to make a signal display of a new system, which had rapidly gained ground, and which I may venture to call the whig principles of the Catholic Church. A great question was at issue — whether the polity of that es- tablishment should be an absolute or an exceedingly limited monarchy. The papal tyranny, long endured, and still in- creasing, had excited an active spirit of reformation which the most distinguished ecclesiastics of France and other coun- EccLEs. Power. COUNCIL OF CONSTANCE. 375 tries encouraged. They recurred, as far as their knowledge allowed, to a more primitive discipline than the canon law, and elevated the supremacy of general councils. But in the formation of these they did not scruple to introduce material innovations. The bishops have usually been considered the sole members of ecclesiastical assemblies. At Constance, however, sat and voted not only the chiefs of monasteries, but the ambassadors of all Christian princes, the deputies of universities, with a multitude of inferior theologians, and even doctors of law. These were naturally accessible to the pride of sudden elevation, which enabled them to control the strong and humiliate the lofty. In addition to this, the adver- saries of the Court of Rome carried another not less impor- tant innovation. The Italian bishops, almost universally in the papal interests, were so numerous that, if suffrages had been taken by the head, their preponderance would have impeded any measures of transalpine nations towards reformation. It was determined, therefore, that the council should divide itself into four nations, the Italian, the German, the French, and the English, each with equal rights; and that, every proposition having been separately discussed, the majority of the four should prevail. This revolutionary spirit was very unacceptable to the cardinals, who submitted reluctantly, and with a determination that did not prove altogether unavail- ing, to save their papal monarchy by a dexterous policy. They could not, however, prevent the famous resolutions of the fourth and fifth sessions, which declare that the council has received, by Divine right, an authority to which every rank, even the papal, is obliged to submit, in matters of faith, in the extirpation of the present schism, and in the reforma- tion of the Church, both in its head and its members ; and that every person, even a pope, who shall obstinately refuse to obey that council, or any other lawfully assembled, is liable to such punishment as shall be necessary. These decrees are the great pillars of that moderate theory, with respect to the papal authority, which distinguished the Galilean Church. The purpose for which these general councils had been re- quired, next to that of healing the schism, was the reformat tion of abuses. All the rapacious exactions, all the scandalous venality of which Europe had complained, while unquestioned pontiffs ruled at Avignon, appeared light in comparison of the practices of both rivals during the schism. Tenths re- peatedly levied upon the clergy, annats rigorously exacted, and enhanced by new valuations, fees annexed to the compli- cated formalities of the papal chancery, were the means by 376 COUNCIL OF CONSTANCE. Chap. VII. Part 1 1. , which each halt of the Church was compelled to reimburse its chief for the subtraction of the other's obedience. Boni face IX., one of the Roman line, Avhose fame is a little worse than that of his antagonists, made a gross traffic of his patron- age — selling the privileges of exemption from ordinary juris- diction, of holding benefices in commendam, and other dis- pensations, invented for the benefit of the Holy See. Noth- ing had been attempted at Pisa towards reformation. At Con- stance the majority were ardent and sincere ; the representa- tives of the French, German, and English Churches met witb a determined and, as we have seen, not always unsuccessful resolution to assert their ecclesiastical liberties. They ap- pointed a committee of reformation, whose recommendations, if carried into effect, would have annihilated almost entirely that artfully constructed machinery by which Rome had ab- sorbed so much of the revenues and patronage of the Church. But men interested in perpetuating these abuses, especially the cardinals, improved the advantages which a skillful gov- ernment always enjoys in playing against a popular assembly. They availed themselves of the jealousies arising out of the division of the council into nations, which exterior political circumstances had enhanced. France, then at war with En- gland, whose pretensions to be counted as a fourth nation she had warmly disputed, and not well-disposed towards the Em- peror Sigismund, joined with the Italians against the English and German members of the council in a matter of the utmost importance — the immediate election of a pope before the arti- cles of reformation should be finally concluded. These two nations, in return, united with the Italians to choose the Car- dinal Colonna, against the advice of the French divines, who objected to any member of the sacred college. The Court of Rome were gainers in both questions. Martin V., the new 2:)ope, soon evinced his determination to elude any substantial reform. After publishing a few constitutions, tending to re- dress some of the abuses that had arisen during the schism, he contrived to make separate conventions with the several nations, and as soon as possible dissolved the council. § 18. By one of the decrees passed at Constance, another general council was to be assembled in five years, a second at the end of seven more, and from that time a similar repre- sentation of the Church was to meet every ten years. Mar- tin V. accordingly convoked a council at Pavia, which, on ac- count of the plague, was transferred to Siena; but nothing of importance was transacted by this assembly. That which he summoned seven years afterwards to the city of Basle had EccLEs. Power. COUNCIL OF BASJiE. 377 very different results (a.d. 1433). The pope, dying before the meeting of this council, was succeeded by Eugenius IV., who, anticipating the spirit of its discussions, attempted to crush its independence in the outset, by transferring the place of session to an Italian city. No point was reckoned so mate- rial in the contest between the popes and reformers as whetli er a council should sit in Italy or beyond the Alps. The Council of Basle began, as it proceeded, in open enmity to the Court of Rome. Eugenius, after several years had elapsed in more or less hostile discussions, exerted his prerogative of removing the assembly to Ferrara, and from thence to Flor- ence. For this he had a specious pretext in the negotiation, then apparently tending to a prosperous issu^, for the re-union of the Greek Church j a triumph, however transitory, of which his council at Florence obtained the glory. On the other hand, the assembly at Basle, though much weakened by the defection of those who adhered to Eugenius, entered into compacts Avith the Bohemian insurgents more essential to the interests of the Church than any union with the Greeks, and completed the work begun at Constance by abolishing the annats, the reservations of benefices, and other abuses of papal authority. In this it received the approbation of most princes ; but w^hen, provoked by the endeavors of the pope to frustrate its decrees, it proceeded so far as lo suspend and even to depose him, neither France nor Germany concur- red in the sentence. Even the Council of Constance had not absolutely asserted a right of deposing a lawful pope, except in case of heresy, though their conduct towards John could not otherwise be justified. This question, indeed, of ecclesi- astical public law seems to be still undecided. The- fathers of Basle acted, however, with greater intrepidity than discre- tion, and, not perhaps sensible of the change that w^as taking place in public opinion, raised Amadeus, a retired duke of Savoy, to the pontifical dignity by the name of Felix V. They thus renewed the schism, and divided the obedience of the Catholic Church for a few years. The empire, how- ever, as well as France, observed a singular and not very consistent neutrality ; respecting Eugenius as a lawful pope, and the assembly at Basle as a general council. England warmly supported Eugenius, and even adhered to his coun- cil at Florence ; Aragon and some countries of smaller note acknowledged Felix. But the partisans of Basle became every year weaker; and Nicolas V., the successor of Euge- nius, found no great difficulty in obtaining the cession of Felix, and terminating: this schism. This victory of the Court 878 COUNCIL OF BASLE, Chap. VII. Part II. of Rome over the Coun-cil of Basle nearly counterbalanced the disadvantageous events at Constance, and put an end to the project of lixing permanent limitations upon the head of the Church by means of general councils. Though the decree that prescribed the convocation of a council every ten years was still unrepealed, twice alone lias the Catholic Church been convoked since the Council of Basle. It is a natural subject of speculation, what would have been the effects of these universal councils, which were so popular in the fifteenth century, if the decree passed at Con- stance for their periodical assembly had been regularly ob- served. Many Catholic writers, of the moderate or Cisal- pine school, have lamented their disuse, and ascribed to it that irreparable breach which the Reformation has made in the fabric of their Church. But beyond the zeal, unques- tionably sincere, which animated their members, especially at Basle, for the abolition of papal abuses, there is nothing to praise in their conduct, or to regret in their cessation. The statesman who dreaded the encroachments of priests upon the civil government, the Christian who panted to see his rites and faith purified from the corruption of ages, found no hope of improvement in these councils. They took upon themselves the pretensions of the popes whom they attempt- ed to supersede. By a decree of the fathers at Constance. all persons, including princes, who should oppose any obsta- cle to a journey undertaken by the Emperor Sigismund, in order to obtain the cession of Benedict, are declared excom- municated, and deprived of their dignities, whether secular or ecclesiastical. Their condemnation of Huss and Jerome of Prague, and the scandalous breach of faith which they in duced Sigismund to commit on that occasion, are notorious. But perhaps it is not equally so that this celebrated assem- bly recognized by a solemn decree the flagitious principle which it had practised, declaring that Huss was unworthy, through his obstinate adherence to heresy, of any privilege ; nor ought any faith or promise to be kept with him, by natu- ral, divine, or human law, to the prejudice of the Catholic religion.^ It will be easy to estimate the claims of this con- 6 This proposition is the great disgrace of the council in the affair of Huss. But the violation of his safe-conduct being a famous event in ecclesiastical history, and which has been very much disputed with some degree of erroneous statement on both sides, it may be proper to give briefly an impartial summary. 1. Huss came to Constance with a safe-conduct of the emperor very loosely worded, and not direct- ed to any individuals. Lenfant, t. i., p. 59. 2. This pass, however, was binding upon the emperor himself, and was so considered by him, when he remonstrated against the arrest of Hnss. Id., p. 73, 83: 3. It was not binding on the council, who Doseessed no temporal power, but had a right to decide upon the question of heresy. EcCLES. Power. STAND AGAINST PAPAL DESPOTISM. 379 gress of theologians to our veneration, and to weigh the re- trenchment of a few abuses against the formal sanction of an atrocious maxim. § 19. It was not, however, necessary for any government of tolerable energy to seek the reform of those abuses which affected the independence of national churches, and the in- tegrity of their regular discipline, at the hands of a general council. Whatever difficulty there might be in overturning the principles founded on the decretals of Isidore, and sanc- tioned by the prescription of many centuries, the more fla^ grant encroachments of papal tyranny were fresh innova- tions, some within the actual generation, others easily to be traced up, and continually disputed. The principal Euro- pean nations determined, with different degrees indeed of energy, to make a stand against the despotism of Rome. In this resistance England was not only the first engaged, but the most consistent ; her free Parliament preventing, as far as the times permitted, that wavering policy to which a court is liable. We have already seen that a foundation was laid in the statute of pro visors under Edward III. In the next" reign many other measui'es tending to repress the interfer- ence of Rome were adopted, especially the great statute of praemunire, which subjects all persons bringing papal bulls for translation of bishops, and other enumerated purposes, into the kingdom to the penalties of forfeiture and perpetual imprisonment. This act received, and probably was de- signed to receive, a larger interpretation than its language appears to warrant. Combined with the statute of provi- sors,it put a stop to the pope's usurpation of patronage, which had impoverished the church and kingdom of England for nearly two centuiies. Several attempts were made to over- throw these enactments; the first Parliament of Henry lY. gave a very large power to the king over the statute of pro- visors, enabling him even to annul it at his pleasure. This, however, does not appear in the statute-book. Henry in- deed, like his predecessors, exercised rather largely his pre- 4. It is not manifest by what civil authority Huss was arrested, nor can I determine how far the imperial safe-conduct was a legal protection within the city of Con- stance. 5. Sigismund was persuaded to acquiesce in the capital punishment of Huss, and even to make it his own act (Lenfant, p. 409) ; by which he manifestly broke his engagement. 6. It is evident that in this he acted by the advice and sanc- tion of the council, who thus became accessory to the guilt of his treachery. The great moral to be drawn from the story of John Huss's condemnation is, that no breach of faith can be excused by our opinion of ill-desert in the party, or by a narrow interpretation of our own engagements. Every capitulation ought to be , construed favorably for the weaker side. In such cases it is emphatically true that fc- if the letter killeth, the spirit should give life. 380 EFFORTS TO RESTRAIN Chap. VII. Part II. rogative of dispensing with the law against papal provisions ; a prerogative which, as to this point, was itself taken away by an act of his own, and another of his son, Henry Y. But the statnte always stood unrepealed; and it is a satisfactory proof of the ecclesiastical supremacy of the legislature that in the concordat made by Martin V., at the Council of Constance, with the English nation, we find no mention of reservation of benefices, of annats, and the other principal grievances of that age ; our ancestors disdaining to accept by compromise with the pope any modification, or even confirmation of their statute law. They had already restrained another flagrant abuse, the increase of first-fruits by Boniface IX. ; an act of Henry IV. forbidding any greater sum to be paid on that account than had been formerly accustomed. It will appear evident to every person acquainted with the contemporary historians, and the proceedings of Parlia- ment, that, besides partaking in the general resentment of Europe against the papal court, England was under the in- fluence of a peculiar hostility to the clergy, arising from the dissemination of the principles of Wicliff. All ecclesiastical possessions were marked for spoliation by the system of this reformer; and the House of Commons more than once endeav- ored to carry it into eflTect, pressing Henry IV. to seize the temporalities of the Church for public exigencies. This rec- ommendation, besides its injustice, was not likely to move Henry, whose policy had been to sustain the prelacy against their new adversaries. Ecclesiastical jurisdiction was kept in better control than formerly by the judges of common law, who, through rather a strained construction of the statute of praemunire, extended its penalties to the spiritual courts when they transgressed their limits. The privilege of clergy in criminal cases still remained ; but it was acknowledged not to comprehend high treason. Germany, as well as England, was disappointed of her hopes of general reformation by the Italian party at Con- stance; but she did not supply the want of the council's de- crees with suflicient decision. The concordats of Aschaflen- burg, in 1448, surrendered great part of the independence for which Germany had contended. The pope retained his an- nats, or at least a sort of tax in their place ; and instead of reserving benefices arbitrarily, he obtained the positive right of collation during six alternate months of every year. Epis- copal elections were freely restored to the chapters, except in case of translation, when the pope still continued to nom» inate ; as he did also if any person, canonically unfit, were EccLES. Power. PAPAL USURPATIONS. 381 N presented to him for confirmation. Rome, for the remainder of the fifteenth century, not satisfied with the terms she had imposed, is said to have continually encroached upon the right of election. But she purchased too dearly her triumph over the weakness of Frederick III., and the Hundred Griev- ances of Germany, presented to Adrian VI. by the Diet of Nuremberg in 1522, manifested the working of a long-treas- ured resentment, that had made straight the path before the Saxon reformer. France, dissatisfied with the abortive termination of her exertions during the schism, rejected the concordat offered by Martin v., which held out but a promise of imperfect ref- ormation. She suff*ered in consequence the papal exactions for some years, till the decrees of the Council of Basle prompted lier to more vigorous efforts for independence, and Charles VII. enacted the famous Pragmatic Sanction of Bourges. This has been deemed a sort of Magna Charta of the Galilean Church ; for though the law was speedily abrogated, its prin- ciple has remained fixed as the basis of ecclesiastical liber- ties. By the Pragmatic Sanction a general council was de- clared superior to the pope ; elections of bishops were made free from all control ; mandats or grants in expectancy, and reservations of benefices, were taken away ; first-fruits were abolished. This defalcation of wealth, which had now be- come dearer than power, could not be patiently borne at Rome. Pius II., the same ^neas Sylvius who had sold him- self to oppose the Council of Basle, in whose service he had been originally distinguished, used every endeavor to pro- cure the repeal of this ordinance. With Charles VII. he had no success; but Louis XL, partly out of blind hatred to his father's memory, partly from a delusive expectation that the pope would support the Angevin faction in Naples, repealed the Pragmatic Sanction. This may be added to other proofs that Louis XL, even according to the measures of worldly wisdom, was not a wise politician. His people judged from better feelings ; the Parliament of Paris constantly refused to enregister the revocation of that favorite law, and it con- tinued in many respects to be acted upon until the reign of Francis L At the States-General of Tours, in 1484, the in- ferior clergy, seconded by the two other orders, earnestly requested that the Pragmatic Sanction might be confirmed ; but the prelates were timid or corrupt, and the regent Anne was unwilling to risk a quarrel with the Holy See. This unsettled state continued, the Pragmatic Sanction neither quite enforced nor quite repealed, till Francis L, having ac- 382 THE GxVLLICAN CHURCH. Chap. VII. Part II. commodated the differences of his predecessor with Rome, agreed upon a final concordat with Leo X., the treaty that subsisted for almost three centuries between the papacy and the kingdom of France. Instead of capitular election or pa- pal provision, a new method was devised for filling the va. cancies of episcopal sees. The king was to nominate a fit person, whom the pope was to collate. The one obtained an essential patronage, the other preserved his theoretical supremacy. Annats were restored to the pope; a conces- sion of great importance. He gave up his indefinite preroga- tive of reserving benefices, and received only a small stipu- lated patronage. This convention met with strenuous op- position in France ; the Parliament of Paris yielded only to force ; the university hardly stopped short of sedition ; the zealous Galileans have ever since deplored it, as a fatal wound to their liberties. There is much exaggeration in this, as far as the relation of the Galilean Church to Rome is concerned; but the royal nomination to bishoprics im- paired of course the independence of the hierarchy. From the principles established during the schism, and in the Pragmatic Sanction of Bourges, arose the far-famed lib- erties of the Galilean Church, which honorably distinguished her from other members of the Roman communion. These liberties do not strictly fall within my limits ; and it will be suflScient to observe that they depended upon two maxims; one, that the pope does not possess any direct or indirect temporal authority; the other, that his spiritual jurisdiction can only be exercised in conformity with such parts of the common law as are received by the kingdom of France. Hence the Galilean Church rejected a great part of the Sext and Clementines, and paid little regard to modern papal bulls, which in fact obtained validity only by the king's approbation. The pontifical usurpations which were thus restrained af fected, at least in their direct operation, rather the Church than the State ; and temporal governments would only have been half emancipated, if their national hierarchies had pre- served their enormous jurisdiction. England, in this also, be- gan the work, and had made a considerable progress, while the mistaken piety or policy of Louis IX. and his successors had laid France open to vast encroachments. But the Par- liament of Paris, instituted in 1304, gradually established a paramount a\ithority over ecclesiastical as well as civil tri- bunals. Their progress was indeed very slow, and it was not till the beginning of the sixteenth century that they devised the'r famous form of procedure, the "appeal because of abuse." EccLES. FowER, DECLINE OF PAPAL INFLUENCE. 383 This, in the course of time, and through the decline of eccle- siastical power, not only proved an effectual barrier against encroachments of spiritual jurisdiction, but drew back again to the lay court the greater part of those causes which by prescription, and indeed by law, had appertained to a differ- ent cognizance. Thus testamentary, and even, in a great de- gree, matrimonial causes were decided by the Parliament; and in many other matters that body, being the judge of its own competence, narrowed, by means of the appeal because of abuse, the boundaries of the opposite jurisdiction. Tliis remedial process appears to have been more extensively ap- plied than our English writ of prohibition. The latter mere- ly restrains the interference of the ecclesiastical courts in mat- ters which the law has not committed to them. But the Par- liament of Paris considered itself as conservator of the lib- erties and discipline of the Galilean Church ; and interposed the appeal because of abuse, whenever the spiritual court, even in its proper province, transgressed the canonical rules by which it ought to be governed. § 20. While the bishops of Rome were losing their gen- eral influence over Europe, they did not gain more estimation in Italy. It is indeed a problem of some difficulty, whether they derived any substantial advantage from their temporal principality. From the termination of the schism, as the popes found their ambition thwarted beyond the Alps, it was diverted more and more towards schemes of temporal sover- eignty. In these we do not perceive that consistent policy which remarkably actuated their conduct as supreme heads of the Church. Men generally advanced in years, and born of noble Italian families, made the papacy subservient to the elevation of their kindred, or to the interests of a local fac- tion. For such ends they mingled in the dark conspiracies of that bad age, distinguished only by the more scandalous turpitude of their vices from the petty tyrants and intriguers with whom they were engaged. In the latter part of the fif- teenth century, when all favorable prejudices were worn away, those who occupied the most conspicuous station in Europe disgraced their name by more notorious profligacy than could be paralleled m the darkest age that had preceded^ and at the moment beyond which this work is not carried — the in- vasion of Italy by Charles VIII. — I must leave the pontifi- cal tjhroue in the possession of Alexander VL 384 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part L CHAPTER VIII. THE ANGLO-SAXON CONSTITUTION. PART I. 5 I. Sketch of Aiiglo-Saxou History. §2. Succession to the Crown. §3. Influence of Provincial Governors. §4. Orders of Men. Thanes and Ceorls. 5 5. Britisfc Natives and Slaves. § 6. Witenagemot. § 7. Judicial System. Division into Hundreds. County Court. § 8. Trial by Jury. Its Antiquity investigated. § 9. Law of Frank-pledge. Its several Stages. § 10. Question of Feudal Tenures be- fore the Conquest. § 1. The seven very unequal kingdoms of the Saxon Hep- tarchy, formed successively out of the countries wrested from the Britons, were originally independent of each otlier. Sev- eral times, however, a powerful sovereign acquired a pre- ponderating influence over his neighbors, marked perhaps by the payment of tribute. Seven are enumerated by Bede as having thus reigned over the whole of Britain ; an expression which must be very loosely interpreted/ Three kingdoms became at length predominant — those of Wessex, Mercia, and Northumberland. The first rendered tributary the small estates of the South-east, and the second that of the Eastern Angles. But Egbert, king of Wessex, not only incorporated with his own monarchy the dependent kingdoms of Kent and Essex, but obtained an acknowledgment of his superior- ity from Mercia and Northumberland; the latter of which, though the most extensive of any Anglo-Saxon state, was too much weakened by its internal divisions to offer any re- sistance. Still, however, the kingdoms of Mercia, East An- glia, and Northumberland remained under their ancient line of sovereigns ; nor did either Egbert or his five immediate successors assume the title of any other crown than Wessex. The destruction of those minor states was reserved for a different enemy. About the end of the eighth century the Northern pirates began to ravage the coast of England. Scandinavia exhibited in that age a very singular condition of society. Her population, continually redundant in those barren regions which gave it birth, was cast out in search of plunder upon the ocean. Those who loved riot rather than > See Note L, "The Bretwaldas." Engt/.sh Const. DANISH INVASION. 385 famine embarked in large armaments under chiefs of legit- imate authority as well as approved valor. Sucli were the Sea-kings, renowned in the stories of the North — the young- er^branches, commonly, of royal families, who inherited, as it were, the sea for their patrimony. Without any territory but on the bosom of the waves, without any dwelling but their ships, these princely pirates were obeyed by numerous subjects, and intimidated mighty nations. Their invasions of England became continually more formidable ; and, as their confidence increased, they began first to winter, and ultimate- ly to form permanent settlements in the country. By their command of the sea, it was easy for them to harass every part of an island presenting such an extent of coast as Brit- ian ; the Saxons, after a brave resistance, gradually gave way, and were on the brink of the same servitude or extermina- tion which their own arms had already brought upon the ancient possessors. From this imminent peril, after the three dependent king- doms, Mercia, Northumberland, and East Anglia, had been overwhelmed, it was the glory of Alfred to rescue the An- glo-Saxon monarchy. Nothing less than the appearance of a hero so undesponding, so enterprising, and so just, could have prevented the entire conquest of England. Yet he never subdued the Danes, nor became master of the whole kingdom. The Thames, the Lea, the Ouse, and the Roman road called Watling Street, determined the limits of Alfred's dominion. To the north-east of this boundary were spread the invaders, still denominated the armies of East Anglia and Northumberland; a name terribly expressive of foreign conquerors, who retained their warlike confederacy, without melting into the mass of their subject population. Three able and active sovereigns, Edward, Athelstan, and Edmund, the successors of Alfred, pursued the course of victory, and not only rendered the English monarchy co-extensive with the present limits of England, but asserted at least a su- premacy over the bordering nations.^ Yet even Edgar, the most powerful of the Anglo-Saxon kings, did not venture to interfere with the legal customs of his Danish subjects.' Under this prince, whose rare fortune as well as judicious conduct procured him the surname of Peaceable, the king- dom appears to have reached its zenith of prosperity. But liis premature death changed the scene. The minority and ' See Note II., "Saxon Kings of all England." <* It seems now to be ascertained, by the comparison of dialects, that the inhabit- ants from the Hnmber, or at least the Tyne, to the Firth of Forth, were chiefly Danes. 17 386 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part L feeble character of Etheired II. provoked fresh incursions of our enemies beyond the German Sea. A long series of dis- asters, and the inexplicable treason of those to whom the public safety was intrusted, overthrew the Saxon line, and established Canute of Denmark upon the throne. The character of the Scandinavian nations was in some measure changed from what it had been during their first invasions. They had embraced the Christian faith ; they were consolidated into great kingdoms ; they had lost some of that predatory and ferocious spirit which a religion in- vented, as it seemed, for pirates had stimulated. Those, too, who had long been settled in England became gradually more assimilated to the natives, whose laws and language were not radically different from their own. Hence the ac- cession of a Danish line of kings produced neither any evil nor any sensible change of polity. But the English still out- numbered their conquerors, and eagerly returned, when an opportunity arrived, to the ancient stock. Edward the Con- fessor, notwithstanding his Norman favorites, was endeared by the mildness of his character to the English nation, and subsequent miseries gave a kind of posthumous credit to a reign not eminent either for good-fortune or wise govern- ment. § 2. In a stage of civilization so little advanced as that of the Anglo-Saxons, and under circumstances of such inces- sant peril, the fortunes of a nation chiefly depend upon the wisdom and valor of its sovereigns. No free people, there- fore, would intrust their safety to blind chance, and permit an uniform observance of hereditary succession to prevail against strong public expediency. Accordingly, the Saxons, like most other European nations, while they limited the in- heritance of the crown exclusively to one royal family, were not very scrupulous about its devolution upon the nearest heir. It is an unwarranted assertion of Carte, that the rule of the Anglo-Saxon monarchy was " lineal agnatic succes- sion, the blood of the second son having no right until the extinction of that of the eldest."* Unquestionably the eld- est son of the last king, being of full age, and not manifest- ly incompetent, was his natural and probable successor; nor is it, perhaps, certain that he always waited for an elec- tion to take upon himself the rights of sovereignty, although the ceremony of coronation, according to the ancient form, appears to imply its necessity. But the public security in < Vol. i., p 36.5. Blackstone has labored to prove the same proposition; but his knowledge of English history was rather superficial. English Const. SUCCESSION TO CROWN. 387 those times was thought incompatible with a minor king; and the artificial substitution of a regency, which stricter no- tions of hereditary right have introduced, liad never occurred to so rude a people. Thus, not to mention those instances which the obscure times of the Heptarchy exhibit, Ethelred I., as some say, but certainly Alfred, excluded the progeny of their elder brother from the throne. Alfred, in his tes- tament, dilates upon his own title, which he builds upon a triple foundation, the will of his father, the compact of his brother Ethelred, and the consent of the West-Saxon nobili- ty. A similar objection to the government of an infant seems to have rendered Athelstan, notwithstanding his re- puted illegitimacy, the public choice upon the death of Ed- ward the Elder. Thus, too, the sons of Edmund I. were post- poned to their Uncle Eldred, and again, preferred to his issue. And happy might it have been for England if this exclusion of infants had always obtained. But upon the death of Ed- gar, the royal family wanted some prince of mature years to prevent the crown from resting upon the head of a child; and hence the minorities of Edward II. and Ethelred II. led to misfortunes which overwhelmed for a time both the house of Cerdic and the English nation. § 3. The Anglo-Saxon monarchy, during its earlier period, seems to have suffered but little from that insubordination among the superior nobility which ended in dismembering the empire of Charlemagne. Such kings as Alfred and Ath- elstan were not likely to permit it. And the English coun- ties, each under its own alderman, were not of a size to en- courage the usurpation of their governors. But when the whole kingdom was subdued, there arose, unfortunately, a fashion of intrusting great provinces to the administration of a single earl. Notwithstanding their union, Mercia, Northumberland, and East Anglia were regarded in some degree as distinct parts of the monarchy. A difference of laws, though probably but slight, kept up this separation. Alfred governed Mercia by the hands of a nobleman who had married his daughter Ethelfleda ; and that lady after her husband's death held the reins with a masculine energy till her own, when her brother Edward took the province into his immediate command. But from the era of Edward II.'s succession the provincial governors began to overpower the royal authority, as they had done upon the Continent. En- gland under this prince was not far removed from the con- dition of France under Charles the Bald. In the time of Edward the Confessor the whole kino^dom seems to have 888 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part I. Tjeen divided among five earls ;^ three of whom were God- win and his sons Harold and Tostig. It can not be wonder- ed at that the royal line was soon supplanted by the most powerful and popular of these leaders, a prince well worthy to have founded a new dynasty, if his eminent qualities had not yielded to those of a still more illustrious enemy. § 4. The proper division of freemen was into Eorls and Ceorls, a division corresponding to the phrase " gentle and simple" of later times. The eorl was a gentleman, the ceorl a yeoman, but both freemen. The eorl did not become a ti- tle of office till the eleventh century, when it was used as syn- onymous to alderman for the governor of a county or prov- ince. After the word became used in this restricted sense, the class of persons which it originally designated was called Thanes, and accordingly we have the twofold division of freemen into Thanes and Ceorls. Among all the Northern nations, as is well known, the weregild, or compensation for murder, was the standard measure of the gradations of society. In the Anglo-Saxon laws we find two ranks of freeholders ; the first, called King's Thanes, whose lives were valued at 1200 shillings; the sec- ond, of inferior degree, whose composition was half that sum. That of a ceorl was 200 shillings. If this proportion to the value of a thane points out the subordination of rank, it certainly does not exhibit the lower freemen in a state of complete abasement. The ceorl was not bound, at least uni- versally, to the land which he cultivated. He was occasion- ally called upon to bear arms for the public safety ; he was protected against personal injuries, or trespasses on his land ; he was capable of property, and of the privileges which it conferred. If he came to possess five hides of land (or about 600 acres), with a church and mansion of his own, he was entitled to the name and rights of a thane. And if by owning five hides of land he became a thane, it is plain that he might possess a less quantity without reaching that rank. There were, therefore, ceorls with land of their own, and ceorls without land of their own ; ceorls who might com- mend themselves to what lord they pleased, and ceorls who could not quit the land on which they lived, owing various services to the lord of the manor, but always freemen, and capable of becoming gentlemen. Nobody can doubt that the villani and iorc7am of Dooms- day-book, who are always distinguished from the serfs of the demesne, were the ceorls of Anglo-Saxon law. And I » See D. 402. Enolish Const. ORDERS OF MEN. 389 presume that the socmen, who so frequently occur in that record, though flir more in some counties than in others, were ceorls more fortunate than the rest, who, by purchase, had acquired freeholds, or, by prescription and the indulgence of their lords, had obtained such a property in the outlands allotted to them that they could not be removed, and in many instances might dispose of them at pleasure. They are the root of a noble plant, the free socage tenants, or En- glish yeomanry, whose independence has stamped with pe- culiar features both our constitution and our national char- acter/ §5. Beneath the ceorls in political estimation were the conquered natives or Britons. In a war so long and so ob- stinately maintained as that of the Britons against their in- vaders, it is natural to conclude that in a great part of the country the original inhabitants were almost extirpated, and that the remainder w^ere reduced into servitude. This, till lately, has been the concurrent opinion of our antiquaries; and, with some qualification, I do not see why it should not still be received. In every kingdom of the Continent which was formed by the Northern nations out of the Roman Em- pire, the Latin language preserved its superiority, and has much more been corrupted through ignorance and want of a standard than intermingled with their original idiom. But our own language is, and has been from the earliest times after the Saxon conquest, essentially Teutonic, and of the most obvious affinity to those Low-German dialects which are spoken along the coast from Flanders to Holstein. With such as are extravagant enough to controvert so evident a truth it is idle to contend ; and those who believe great part of our language to be borrowed from the Welsh may doubt- less infer that great part of our population is derived from the same source. If we look through the subsisting Anglo- Saxon records, there is not very frequent mention of British subjects. But some undoubtedly there were in a state of freedom, and possessed of landed estate. A Welshman (that is, a Briton) who held five hides was raised, like a ceorl, to the dignity of thane. In the composition, however, for their lives, and consequently in their rank in society, they were inferior to the meanest Saxon freeman. The slaves, who were frequently the objects of legislation, rather for the pur- pose of ascertaining their punishments than of securing their rights, may be presumed, at least in early times, to have been part of the conquered Britons. For though his own crimes, • For further information upon these points, see Notk III., "Borl au3 CeorJ." 390 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part 1 or the tyranny of others, might possibly reduce a Saxon ceorl to this condition, it is inconceivable that the lowest of those who won England with their swords should, in the establish- ment of the new kingdoms, have been left destitute of per- sonal liberty. § 6. The great council by which an Anglo-Saxon king was guided in all the main acts of government bore the appella- tion of WiTENAGEMOT, or the Assembly of the Wise Men. All their laws express the assent of this council ; and there are instances where grants made without its concurrence have been revoked. It was composed of prelates and ab- bots, of the aldermen of shires, and, as it is generally ex- pressed, of the noble and wise men of the kingdom. Wheth- er the lesser thanes, or inferior proprietors of lands, were en- titled to a place in the national council, as they certainly were in the Shirgemot, or County Court, is not easily to be decided. If, however, all the body of thanes or freeholders were admissible to the witenagemot, it is imlikely that the privilege should have been fully exercised. Very few, I be- lieve, at present imagine that there was any representative system in that age; much less that the ceorls or inferior freemen had the smallest share in the deliberations of the national assembly. Every argument which a spirit of con- troversy once pressed into this service has long since been victoriously refuted. '^ § 7. It has been justly remarked by Hume that, among a people who lived in so simple a manner as these Anglo-Sax- ons, the judicial power is always of more consequence than the legislative. The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spir- its, by the inestimable right of deciding civil and criminal suits in their owm County Court ; an institution which, having survived the Conquest, and contributed in no small degree to fix the liberties of England upon a broad and popular basis, by limiting the feudal aristocracy, deserves attention in fol- lowing the history of the British constitution. The division of the kingdom into counties, and of these into hundreds and decennaries, for the purpose of adminis- tering justice, was not peculiar to England. In the early laws of France and Lombardy, frequent mention is made of the Hundred-court, and, now and then, of those petty village magistrates who in England were called tithing-men. It has been usual to ascribe the establishment of this system among our Saxon ancestors to Alfred, upon the authority of ^ Note IV., "The Witenagemot" English Const. JUDICIAL SYSTEM. 391 Ingulfus, a writer contemporary with the Conquest, but the work which bears his name is now usually considered a for- gery. Neither the biographer of Alfred, Asserius, nor the existing laws of that prince, attribute the system to Alfred. With respect, indeed, to the division of counties, and their government by aldermen and sheriffs, it is certain that both existed long before his time; and the utmost that can be supposed is, that he might in some instances have ascertain- ed an unsettled boundary. There does not seem to be equal evidence as to the antiquity of the minor divisions. Hun- dreds, I think, are first mentioned in a law of Edgar, and tith- ings ill one of Canute. But as Alfred, it must be remem- bered, was never master of more than half the kingdom, the complete distribution of England into these districts can not, upon any supposition, be referred to him. There is, indeed, a circumstance observable in this division which seems to indicate that it could not have taken place at one time, nor upon one system ; I mean the extreme in- equality of hundreds in different parts of England. Wheth- er the name be conceived to refer to the number of free fom- ilies, or of land-holders, or of petty vills, forming so many as- sociations of mutual assurance or frank-pledge, one can hard- ly doubt that, when the term was first applied, a hundred of one or other of these were comprised, at an average reck- oning, within the district. But it is impossible to reconcile the varying size of hundreds to any single hypothesis. The county of Sussex contains sixty-five, that of Dorset forty- three ; Avhile Yorkshire has only twenty-six, and Lancashire but six. No difference of population, though the south of England was undoubtedly far the best peopled, can be con- ceived to account for so prodigious a disparity I know of no better solution than that the divisions of the North, prop erly called wapentakes, were planned upon a different sys- tem, and obtained tlie denomination of hundreds incorrectly after the union of all England under a single sovereign. Assuming, therefore, the name and partition of hundreds to have originated in the southern counties, it will rather, I think, appear probable that they contained only a hundred free families, including the ceorls as well as their landlords. If we suppose none but the latter to have been numbered, we should find 6000 thanes in Kent, and 6500 in Sussex — a reckoning totally inconsistent with any probable estimate. But though we have little direct testimony as to the popula tion of those times, there is one passage which falls in very sufficiently with the former supposition. Bede says tnat iiiQ 392 ANGLO-SAXON CONSTITUTION. Chap. Vlll. Part i. kingdom of the South Saxons, comprehending Surrey as well as Sussex, contained 7000 families. The county of Sussex alone is divided into sixty-five hundreds, which comes at least close enough to prove that free families, rather than proprietors, were the subject of that numeration. The Court of the Hundred was held, as on the Conti- nent, by its own centenarius, or hundied-man, more often called alderman, and, in the Norman times, bailiff or consta- ble, but under the sheriff's writ. It is, in the language of the law, the sheriff's tourn and leet. And in the Anglo-Sax- on age it was a court of justice for suitors within the hun- dred, though it could not execute its process beyond that limit. It also punished small offenses, and was intrusted with the "view of frank-pledge," and the maintenance of the great police of mutual surety. In some cases — that is, when the hundred was competent to render judgment — it seems that the County Court could only exercise an appellate ju- risdiction for denial of right in the lower tribunal. But, in course of time, the former and more celebrated court became the real arbiter of important suits; and the court -leet fell al- most entirely into disuse as a civil jurisdiction, contenting itself with punisliing petty offenses and keeping up a local police.** It was to the County Court that an English free- man chiefly looked for the maintenance of his civil rights. In this assembly, held twice in the year by the bishop and the alderman,® or, in his absence, the sheriff, the oath of alle- giance was administered to all freemen, breaches of the peace were inquired into, crimes were investigated, and claims were determined. In this court alone, the thanes, to the exclusion of inferior freemen, were the judges of civil controversies. The latter, indeed, were called upon to attend its meetings, or, in the language of our present law, were suitors to the court, and it was penal to be absent. But this was on ac- count of other duties, the oath of allegiance which they were to take, or the frank-pledges into which they Avere to enter, not in order to exercise any judicial power; unless we con- • Sir F. Palgrave, in the "Edinburgh Review" for 1822 (xxxvi., 28T>, dednces the hundred from the hcerad of the Scandinavian kingdoms, the integral unit of the Scandinavian commonwealths. He points out that the iuiudred was as much the or- ganic germ of the Anglo-Saxon commonwealth as the haerad was of the Scandina- vian. Thus, the leet, held every month, and composed of the tithing-men or head- boroughs, representing the inhabitants, Avere both the inquest and the jury, possess- ing jurisdiction, as he conceives, in all cases, civil, criminal, and ecclesiastical, though this was restrained after the Conquest. ^ The alderman was the highest rank after the royal ftimily, to which lie sometimes belonged. Every county had its alderman ; but the name is not applied in written documents to magistrates of boroughs before the Conquest. English Const. TRIAL BY JURY. 393 ceive that the disputes of the ceorls were decided by judges of their own rank. No appeal could be made to the roy- al tribunal, unless justice was denied in the County Court. There were, however, royal judges, who, either by way of ap- peal from the lower courts, or in excepted cases, formed a paramount judicature; but how their court was composed un- der the Anglo-Saxon sovereigns, I do not pretend to assert. § 8. It had been a prevailing opinion that trial by jury may be referred to the Anglo-Saxon age, and common tradition has ascribed it to the wisdom of Alfred ; but this opinion is now universally abandoned. The only passage in the laws of Alfred bearing upon this point is as follows : " If any one accuse a king's thane of homicide, if he dare to purge him- self, let him do it along with twelve king's thanes." " If any one accuse a thane of less rank than a king's thane, let him purge himself along with eleven of his equals, and one king's thane." This law, which some contend to mean nothing but trial by jury, really refers to that ancient usage of compurga- tion, where the accused sustained his own oath by those of a number of his friends, who pledged their knowledge, or at least their belief, of his innocence. Other passages in the Saxon laws which have been cited in favor of the antiquity of trial by jury equally refer to compurgators. Their num- bers were sometimes twelve, at other times twenty-four, and occasionally thirty-six. The principle of the whole law of compurgation is to be found in that stress laid upon general character which per- vades the Anglo-Saxon jurisprudence. The law of frank: pledge proceeded upon the maxim that the best guaranty of every man's obedience to the government was to be sought in the confidence of his neighbors. The seeds of our present form of trial by jury may be dis- covered in a law of Ethelred II., by which a court was to be held in every wapentake, where the sheriff and twelve princi- pal thanes should swear that they would neither acquit any criminal nor convict any innocent person. It seems more probable that these thanes were permanent assessors to the sheriff, like the scabini, so frequently mentioned in the oarly laws of France and Italy, than jurors indiscriminately se- lected. Their duties were to present offenders, and they bear analogy to our grand juries. They must be clearly distin- guished from the compurgators already mentioned. The nearest approach to a regular jury which has been pre- served in our scanty memorials of the Anglo-Saxon age oc- curs in the history of the monastery of Ramsey. A contro- 17* 394 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part I. versy relating to lands between that society and a certain no- bleman was brought into the County Court, when each party was heard in his own behalf. After this commencement, on account, probably, of the length and difficulty of the investi- gation, it was referred by the court to thirty-six thanes, equal- ly chosen by both sides. And here we begin to perceive the manner in which those tumultuous assemblies — the mixed body of freeholders in their County Court — slid gradually into a more steady and more diligent tribunal. But this was not the work of a single age. In the Conqueror's reign we find a proceeding very similar to the case of Ramsey, in which the suit had been commenced in the County Court before it was found expedient to remit it to a select body of freehold- ers. In the reign of William Rufus, and down to that of Hen- ry II., when the trial of writs of right by the Grand Assize w^as introduced, there are other instances of the original usage. It is impossible not to be struck with the preference given to twelve, or some multiple of it, in fixing the number either of judges or compurgators. This was not peculiar to En- gland — there are several instances of it in the early German laws ; and that number seems to have been regarded with equal veneration in Scandinavia. It is very immaterial from what caprice or superstition this predilection arose, but its general prevalence shows that, in searching for the origin of trial by jury, we can not rely for a moment upon any analogy which the mere number affords. I am induced to make this observation, because some of the passages which have been alleged by eminent men for the purpose of establishing the existence of that institution before the Conquest seem to have little else to support them.'" § 9. There is certainly no part of the Anglo-Saxon polity which has attracted so much the notice of modern times as the law oi frank-pledge^ or mutual responsibility of the mem- bers of a tithing for each other's abiding the course of justice. This, like the distribution of hundreds and tithings them- selves, and like trial by jury, has been generally attributed to Alfred ; and of this, I suspect, we must also deprive him. The peculiar system of frank-pledges seems to have passed through the following very gradual stages : At first, an ac- cused person was obliged to find bail for standing his trial. At a subsequent period, his relations were called upon to be- come sureties for payment of the composition and other fines to which he w^as liable. They w^ere even subject to be im- prisoned until payment was made, and thifi impnsonment JO Note V., " Trial by Jury." English Const. FRANK-PLEDGE. 395 was commutable for a certain sum of money. The next stage was, to make persons already convicted, or of suspicious repute, give sureties for their future behavior. It is not till the reign of Edgar that we find the iirst general law, which places every man in the condition of the guilty or suspected, and compels him to find a surety, who shall be responsible for his appearance when judicially summoned. This is per- petually repeated and enforced in later statutes, during his reign and that of Ethelred. Finally, the laws of Canute de- clare the necessity of belonging to some hundred and tith- ing, as well as of providing sureties ; and it may, perhaps, be inferred that the custom of rendering every member of a tithing answerable for the appearance of all the rest, as it ex- isted after the Conquest, is as old as the reign of this Danish monarch. It is an error to suppose, as some have stated, that "the members of every tithing were responsible for the conduct of one another ; and that the society, or their leader, might be prosecuted and compelled to make reparation for an inju- ry committed by any individual." In fact, the members of a tithing were no more than perpetual bail for each other. " The greatest security of the public order (say the laws as- cribed to the Confessor) is that every man must bind him- self to one of those societies which the English in general call freeborgs, and the people of Yorkshire ten men's tale." This consisted in the responsibility of ten men, each for the other, throughout every village in the kingdom ; so that, if one of the ten committed any fault, the nine should produce him in justice ; where he should make reparation by his own property or. by personal punishment. If he fled from jus- tice a mode was provided according to which the tithing might clear themselves from participation in his crime or escape ; in default of such exculpation, and the malefactor's estate proving deficient, they were compelled to make good the penalty. And it is equally manifest, from every other passage in which mention is made of this ancient institu- tion, that the obligation of the tithing was merely that of permanent bail, responsible only indirectly for the good be- havior of their members. Every freeman above the age of twelve years was required to be enrolled in some tithing. In order to enforce this es- sential part of police, the courts of the tourn and leet were erected, or rather, perhaps, separated from that of the coun- ty. The periodical meetings of these, whose duty it was to inquire into the state of tithings, whence they were called 396 ANGLO-SAXON CONSTITUTION. C.iap. VIII. Part I the view of frank-pledge, are regulated in Magna Charta. But this custom, which seems to have been in full vigor when Bracton wrote, and is enforced by a statute of Edward II., gradually died away in succeeding times. § 10. It remains only, before we conclude this sketch of the Anglo-Saxon system, to consider the once famous ques- tion respecting the establishment of feudal tenures in En- gland before the Conquest. The distribution of landed property in England by the An- glo-Saxons is clearly explained by Mr. Allen, in his inquiry into the "Rise and Growth of the Royal Prerogative." "Part of the lands they acquired was converted into estates of inheritance for individuals ; part remained the property of the public, and was left to the disposal of the state. The former was called Bodand ; the latter Folcland. " Folcland^ as the word imports, was the land of the folk^ or people. It was the property of the community. It might be occupied in common, or possessed in severalty. But, while it continued to be folcland, it could not be alienated in perpetuity ; and therefore, on the expiration of the term for which it had been granted, it reverted to the community, and was again distributed by the same authority. " Bodand was held by hooh^ or charter. It was land that had been severed by an act of government from the folcland, and converted into an estate of perpetual inheritance. It might belong to the Church, to the king, or to a subject. It might be alienable and devisable at the will of the proprie- tor. It might be limited in its descent without any power of alienation in the possessor. It was often granted for a single life, or for more lives than one, with remainder in per- petuity to the Church. It was forfeited for various delin- quencies to the state. "Folcland was subject to many burdens and exactions from which bocland was exempt. The possessors of folcland were bound to assist in the reparation of royal vills and in other public works. They were liable to have travellers and others quartered on them for subsistence. They were re- quired to give hospitality to kings and great men in their progresses through the country, to furnish them with car- riages and relays of horses, and to extend the same assistance to their messengers, followers, and servants, and even to the persons who had charge of their hawks, horses, and hounds. Such, at least, are the burdens from which lands are libera- ted when converted by charter into bocland. " Bocland wae liable to none of these exactions. It was English Const. FEUDAL TENURES. 397 released from all services to the public, with the exception of contributing to military expeditions, and to the repara- tion of castles and bridges. These duties or services were comprised in the phrase of trinoda oiecessitas^ which were said to be incumbent on all persons, so that none could be excused from them. The Church indeed contrived, in some cases, to obtain an exemption from them ; but in general its lands, like those of others, were subject to them" (p. 142). The obligations of the trinoda necessitas, and especially that of military service, have beea sometimes thought to de- note a feudal tenure. There is, however, a confusion into which we may fall by not sufficiently discriminating the rights of a king as chief lord of his vassals, and as sovereign of his subjects. In every country the supreme power is entitled to use the arm of each citizen in the public defense. The usage of all nations agrees with common reason in establish- ing this great principle. There is nothing, therefore, peculiar- ly feudal in this military service of land-holders ; it was due from the allodial proprietors upon the Continent ; it was de- rived from their German ancestors ; it had been fixed, proba- bly, by the legislatures of the Heptarchy upon the first set- tlement in Britain. It is material, however, to observe that a thane forfeited his hereditary freehold by misconduct in battle — a penalty more severe than was inflicted upon allodial proprietors on the Continent. We even find in the earliest Saxon laws that the sithcundman, who seems to have corresponded to the inferior thane of later times, forfeited his land by neglect of attendance in war ; for which an allodialist in France would only have paid his heribannum,or penalty. Nevertheless, as the policy of different states may enforce the duties of sub- jects by more or less severe sanctions, I do not know that a law of forfeiture in such cases is to be considered as positive- ly implying a feudal tenure. But a much stronger presumption is afforded by passages that indicate a mutual relation of lord and vassal among the free proprietors. The most powerful subjects have not a natural right to the service of other freemen. But in the laws enacted during the Heptarchy we find that the sith- cundman, or petty gentleman, might be dependent on a su- perior lord. This is more distinctly expressed in some eccle- siastical canons, apparently of the tenth century, which dis- tinguish the king's thane from the land-holder, who depend- ed upon a lord. Other proofs of this might be brought from the Anglo-Saxon laws. It is not, however, sufficient to provie 398 ANGLO-SAXON CONSTITUTION. Chap. VIII. Fart L a mutual relation between the higher and lower order of gentry, in order to establish the existence of feudal tenures. For this relation was often personal, and bore the name of commendation. And no nation was so rigorous as the En- glish in compelling every man, from the king's thane to the ceorl, to place himself under a lawful superior. Hence the question is not to be hastily decided on the credit of a few passages that express this gradation of dependence ; feudal vassalage^ the object of our inquiry, being of a 7'eal^r\ot 2i per- sonal nature, and resulting entirely from the tenure of partic- ular lands. But it is not unlikely that the personal relation of client, if I may use that word, might in a multitude of cases be changed into that of vassal. And, certainly, many of the motives which operated in France to produce a very general commutation of allodial into feudal tenure, might have a similar influence in England, where the disorderly condition of society made it the interest of every man to ob- tain the protection of some potent lord. The word thane corresponds in its derivation to vassal ; and the latter term is used by Asserius, the contemporary biographer of Alfred, in speaking of the nobles of that prince. In their attendance, too, upon the royal court, and the fidel- ity which was expected from them, the king's thanes seem exactly to have resembled that class of followers who, under diflerent appellations, were the guards, as w^ell as courtiers, of the Frank and Lombard sovereigns. But I have remarked that the word thane is not applied to the whole body of gen- try in the more ancient laws, where the word earl is opposed to the ceorl, or roturier, and that of sUhcundma?i to the royal thane. It would be too much to infer, from the extension of this latter word to a large class of persons, that we should interpret it with a close attention to etymology, a very un- certain guide in almost all investigations. For the age immediately preceding the Norman invasion we can not have recourse to a better authority than Dooms- day-book. That incomparable record contains the names of every tenant, and the conditions of his tenure, under the Con- fessor, as well as at the time of its compilation, and seems to give little countenance to the notion that a radical change in the system of our laws had been effected during the inter- val. In almost every page we meet with tenants either of the crown or of other lords, denominated thanes, freeholders (liberi homines), or socagers (socmanni). Some of these, it is stated, might sell their lands to whom they pleased ; others were restricted from alienation. Some, as it is expressed, English Const. FEUDAL TENURES. 399 might go with their lands whither they would ; by which I understand the right of commending themselves to any pa- tron of their choice. These, of course, could not be feudal ten- ants in any proper notion of that term. Others could not depart from the lord whom they served ; not, certainly, that they were personally bound to the soil, but that, so long as they retained it, the seigniory of the superior could not be defeated. But I am not aware that military service is speci* fied in any instance to be due from one of these tenants; though it is difficult to speak as to a negative proposition of this kind, with any confidence. No direct evidence appears as to the ceremony of homage, or the oath of fealty, before the Conquest. The feudal ex- action of aid, in certain prescribed cases, seems to have been unknown. Still less could those of wardship and marriage prevail, which w^ere no general parts of the great feudal sys- tem. The English lawyers, through an imperfect acquaint- ance with the history of feuds upon the Continent, have treat- ed these unjust innovations as if they had formed essential parts of the system, and sprung naturally from the relation between lord and vassal. And, with reference to the pres- ent question. Sir Henry Spelman has certainly laid too much stress upon them in concluding that feudal tenures did not exist among the Anglo-Saxons, because their lands were not in ward, nor their persons sold in marriage. It has been shown in another place how the right of terri- torial jurisdiction was generally, and at last inseparably, con- nected with feudal tenure. Of this right we meet frequent instances in the laws and records of the Anglo-Saxons. And Doomsday-book is full of decisive proofs that the English lords had their courts wherein they rendered justice to their suitors, like the Continental nobility — privileges which are noticed with great precision in that record, as part of the sta- tistical survey. For the right of jurisdiction, at a time when punishments were almost wholly pecuniary, was a matter of property, and sought from motives of rapacity as well as pride. Whether, therefore, the law of feudal tenures can be said to have existed in England before the Conquest, must be left to every reader's determination. Perhaps any attempt to decide it positively would end in a verbal dispute. In trac- ing the history of every political institution, three things are to be considered — the principle, the form, and the name. The last will probably not be found in any genuine Anglo-Saxon record. Of the form, or the peculiar ceremonies and inci- 400 NOTES TO CHAPTER VIII. Part I. dents of a regular fief, there is some, though not much, ap- pearance. But those who reflect upon the dependence in which free and even noble tenants held their estates of other subjects, and upon the privileges of territorial jurisdiction, will, I think, perceive much of the intrinsic character of the feudal relation, though in a less mature and systematic shape than it assumed after the Norman Conquest.'* 'i It will probably be never disputed again that lands were granted by a military tenure before the Conquest. But the general tenure of lauds was still allodial. We may probably not err very much in supposing that the state of tenures in England under Canute or the Confessor was a good deal like those in France under Charle- magne or Charles the Bald— an allodial trunk with numerous branches of feudal benefice grafted into it. But the conversion of the one mode of tenure into the oth- er, so frequent iu France, does not appear by evidence to have prevailed on this side of the Channel. Ou this question Professor Stubbs remarks (" Select Charters," etc., p. 13) : "From the end of the tenth century a change sets in which might ultimately, by a slow and steady series of causes and consequences, have produced something like Continental feudalism. The great position taken by Edgar and Canute, to whom the princes of the other kingdoms of the island submitted as vassals, had the effect of centralizing the government and increasing the power of the king. Early in the eleventh century he seems to have entered on the right of disposing of the public land without reference to the witan, and of calling up to his own court by writ suits which had not yet exhausted the powers of the lower tribunals. The number of royal vassals was thus greatly increased, and with them the power of royal and noble jurisdictions. Canute proceeded so far in the direction of imperial feudalism as to rearrange the kingdom under a very small number of great earls, who were strong enough in some cases to transmit their authority to their children, though not without new investiture, and who, had time been given for the system to work, would have no doubt developed the same sort of feudality as prevailed abroad. Al- ready by subinfeudation or by commendation great portions of the land of the coun- try were being held by a feudal tenure, and the allodial tenure, which had once been universal, was becoming the privilege of a few great nobles too strong to be unseat- ed, or a local usage in a class of land-owners too humble to be dangerous," NOTES TO CHAPTER VIII.— Part I. ' I. THE BRETVl'ALDAS. These seven princes enumerated by Bede have been called Bretwaldas, and they have, by some late historians, been ad- vanced to higher importance and to a dif- ferent kind of power than, as it appears to me, there is any sufficient ground to bestow on them. Bede is the original witness for the seven monarchs who be- fore his time had enjoyed a preponder- ance over the Anglo-Saxons south of the Humbert: "Qui cunctis australibus gen- tis Anglorum provinciis, quas Humbrse flu- vio et contiguis ei terminis sequestrantur a Borealibus, imperarunt." (Hist. Eccl., lib. ii., c. 5.) The four first-named had no authority over Northunibria; but the last three being sovereign.* of that kingdom. their sway would include the whole of England. The Saxon Chronicle, under the reign of Egbert, says that he was the eighth who had a dominion over Britain ; using the remarkable word Bretwalda, which is found nowhere else. This, by its root, waldan, a Saxon verb, to rule (whence our word wield), implies a ruler of Britain or the Britons. The Chronicle then copies the enumeration of the other seven in Bede, with a little abridgment. The kings mentioned by Bede are MUi or Ella, founder of the kingdom of the South- Sax(ms about 477 ; Ceaulin, of Wessex, af- ter the interval of nearly a century ; Ethels bert, of Kent, the first Christian king; Redwald, of East Anglia; after him three NOTES TO CHAPTER VIII. 401 Northumbrian kings in succession, Ed- win, Oswald, Oswin, We have, therefore, sufficient testimony that before the mid- dle of the seventh century four Icings, from four Anglo-Saxon kingdoms, had, at intervals of time, become superior to the rest ; excepting, however, the Northum- brians, whom Bede distinguishes, and whose subjection to a southern prince does not appear at all probable. None, therefore, of these conld well have been called Bretwalda, or ruler of the Britons, while not even his own countrymen were wholly under his sway. We now come to three Northumbrian kings, Edwin, Oswald, and Oswin, who ruled, in Bede's language, with greater power than the preceding, over all the in- habitants of Britain, both English and British, with the sole exception of the men of Kent. This he reports in anoth- er place with respect to Edwin, the first Northumbrian convert to Christianity; whose worldly power, he says, increased go much that, what no English sovereign had done before, he extended his domin- ion to the farthest bounds of Britain, *rhether inhabited by Euglisli or by Brit- ons. (Hist. Eccl., lib. ii., c. 9.) There is a remarkable confirmation of this testimony of Bede in a life of St. Columba, publish- ed by the BoUandists, in which Oswald is called " totius Britanniae imperator ordi- natus a Deo." (Acta Sanctorum, Jun. 23.) We have here probably a distinct recog- nition of the Saxon word Bretwalda ; for what else could answer to emperor of Britain ? And, as far as I know, it is the • mly one that exists. It seems more like- ly that this writing refers to a distinct ti- tle bestowed on Oswald by his subjects, than that he means to assert as a fact that he truly ruled over all Britain. This is not very credible, notwithstanding the language of Bede, who loves to amplify the power of favorite monarchs. For though it may be admitted that these Northumbrian kings enjoyed at times a preponderance over the other Anglo-Sax- on principalities, we know that both Ed- win and Oswald lost their lives in great defeats by Penda of Mercia. Nor were the Strathcluyd Britons in any perma- nent subjection. The name of Bretwal- da, as applied to these three kings, though not so absurd as to make it incredible that they assumed it, asserts an untruth. Rapin was the first who broached the theory of an elective Bretwalda, possess- ing a sort of monarchical supremacy in the constitution of the Heptarchy ; something like, as he says, the dignity of stadtholder of the Netherlands. It was taken up in later times by Turner, Liugard, Palgrave, and Lappenberg. But for this there is certainly no evidence whatever ; nor do I perceive in it any thing but the very re verse of probability, especially in the ear- lier instances. With what we read in Bede we may be content, confirmed as with respect to a Northumbrian sover- eign it appears to be by the Life of Co- lumba; and the plain history will be no more than this— that four princes from among the southern Anglo-Saxon king- doms, at difterent times obtained, proba- bly by force, a superiority over the rest ; that afterwards three Northumbrian kings united a similar supremacy with the gov- ernment of their own dominions; and that, having been successful in reduciui.- the Britons of the north and also the Scots into subjection, they assumed the title of Bretwalda, or ruler of Britain. This title was not taken by any later kings, though some in the eighth century were very powerful in England ; nor did it attract much attention, since we find the word only once employed by an historian, and never in a charter. The consequence I should draw is, that too great prominence has been given to the appellation, and un- due inferences sometimes derived from it, by the eminent writers above mentioned. IT. SAXOX KINGS OF ALL ENGLAND. The reduction of all England under a single sovereign was accomplished by Ed- ward the Elder, who may, therefore, be reckoned the founder of our monarchy more justly than Egbert. From this time a striking change is remarkable in the style of our kings. Edward, of whom we have no extant charters after these great submissions of the native princes, calls himself only " Angul-Saxonum rex." But in those of his son Athelstan, such as are reputed genuine (for the tone is still more pompous in some marked by Mr. Kemble with an asterisk), \s-e meet, as early as 927, with "totius Britannise monarchus, rex, rector, or basileus;" "totius Britanniae Bolio sublimatus ;" and other phrases of itiHular sovereignty. What has been at- tributed to the imaginary Bretwaldas, be- longed truly to the kings of the tenth cen- tury. And the grandiloquence of their ti- tles is sometimes almost ridiculous. They affected particularly that of Basileus as something more imperial than king, and less easily understood. Edwy and Edgar are remarkable for th's pomp, which shows itself also in the spurious charters of older kings. But Edmund and Edred with more truth and simplicity had generally denom- inated themselves "rex Anglorum, c«te« 402 NOTES TO CHAPTER VIIL roramque in circuitu persistentium guber- nator et rector." An expressiou which was retained sometimes by Edgar. And though these exceedinglypompousphrases eeem to have become less frequent in the next century, we find "totius Albionis rex," and equivalent terms, in all the charters of Edward the Confessor. "As a general rule it may be observed that before the tenth century the proem is comparatively simple ; that about that time the influence of the Byzantine court began to be felt ; and that from the latter half of that century pedantry and absurd- ity struggle for the mastery." (Kemble's Introduction to vol. ii., p. x.) III. EORLS AND CEORLS. It has been remarked in the text that the proper division of freemen was into EoBLS and Ceorls: ge eorle — ge ceorle; ge eorlische — ge ceorlische, corresponding to the phrase "gentle and simple" of later times. The Eorlcundman was generally, though not necessarily, a freeholder ; he might,'uuless restrained by special tenure, depart from or alienate his land ; he was, if a freeholder, a judge in the County Court ; he might marry, or become a priest, at his discretion; his oath weighed heavily in compurgation; above all, his life was valued at a high composition ; we add, of course, the general respect which attaches itself to the birth and position of a gentle- man. Two classes indeed there were, both Eorlcund, or of gentle birth, and so called in opposition to ceorls, but in a relative subordination. Sir F. Palgrave has point- ed out the distinction in the following pas- sage : " The whole scheme of the Anglo- Saxcm law is founded upon the presump- tion that every freeman, not being a Hla- ford* was attached to a superior, to whom he was bound by fealty, and from whom he could claim a legal protection or war- ranty, when accused of any transgression or crime. If, therefore, the eorlcund indi- vidual did not possess the real property which, either from its tenure or its extent, was such as to constitute a lordship, he was then ranked in the very numerous class whose members, in Wessex and its dependent states, were originally known by the name of sUhcundmen, an appella- tion which we may paraphrase by the he- raldic expression, 'gentle by birth and • Hlaford was the chief, " the Loafgiver, a name which, through a series of softenings and contractions, and with a complete forgetfulness of its primitive meaning, has settled down into the modern form of Zord."— Freeman's " Hist, of the Norman Conquest," L,93. blood.'* The term of sithcundman, hovri ever, was only in use in the earlier periods. After the reign of Alfred it is lost; and the most comprehensive and significant denomination given to this class is that of sixh(endmen, indicating their position between the highest and lowest law-wor- thy classes of society. Other designations were derived from their services and ten- ures. Radechnights, and lesser thanes, seem to be included in this rank, and to which, in many instances, the general name of sokemen was applied. But, how- ever designated, the sithcundman, or six- hoeridman, appears in every instance in the same relative position in the community — classed among the nobility, whenever the eorl and the ceorl are placed in direct opposition to each other; always con- sidered below the territorial aristocracy, and yet distinguished from the villenage by the important right of selecting his hlaford at his will and pleasure. By com- mon right the sixhcendwan was not to be annexed to the glebe. To use the expres- sions employed by the compilers of Dooms- day, he could ' go with his land whereso- ever he chose,' or, leaving his land, he might 'commend' himself to any hlaford who would accept his fealty" (L, 14). The influence of Danish connections pro- duced great change in the nomenclature of ranks. Eorl lost its general sense of good birth and became an ofllcial title, for the most part equivalent to alderman, the governor of a shire or district. It is used in this sense, for the first time, in the laws of Edward the Elder, and in the time of Edgar it had fully acquired its secondary meaning ; in its original sense it seems to have been replaced by Thane. Certain it is that we find thane opposed to ceorl in the later period of Anglo-Saxon monu- ments, as eorl is in the earlier— as if the law knew no other broad line of demarka- tion among laymen, saving always the of- ficial dignities and the royal family.t And the distinction between the greater and the lesser thaues was not lost, though they were put on a level as to composition. * Is not the word sithcundman properly descriptive of his dependence on a lord, from the Saxon verb githi- an, to follow ? t " That the thane, at least originally, was a military follower, a holder by military service, seems certain ; though in later times the rank seems to have been en- joyed by all great land-holders, as the natural concomi- tant of possession to a certain value. By Mercian law, he appears as a ' twelf hynde ' man, his 'wer' being 1200 shillings. That this dignity ceased from being exclusively of a military character is evident from numerous passages in the laws, where thanes are men- tioned in a judicial capacity, and as civil officers."-* Thorpe's " Glossary to Ancient Laws," voc. Thegen. NOTES TO CHAPTER VI J I. 403 Meantime the composition for an earl, whether we confine that word to office or suppose that it extended to the wealthiest land-holders, was far higher in the later period than that for a thane, as was also his heriot when that came into use. The heriot of the king's thane was above that of what was called a medial thane, or mesne vassal, the sithcuudman, or syx- hynder, as I apprehend, of an earlier style. In the laws of the Continental Saxons we find the rank corresponding to the Eorlcunde of our own country denomi- nated Edelingi or noble, as opposed to the Frilingi or ordinary, freemen. This ap- pellation was not lost in England, and was perhaps sometimes applied to nobles ; but we find it generally reserved for the royal family. FAhel or noble, sometimes con- tracted, forms, as is well known, the pe- culiar prefix to the names of our Anglo- Saxon royal house. And the word Athe- limj was used, not as in Germany for a noble, but a prince; and his composition was not only above that of a thane, but of an alderman. He ranked as an archbishop in this respect, the alderman as a bishop. It is necessary to mention this, lest, in speaking of the words eorl and ceorl as originally distributive, I should seem to have forgotten the distinctive superiority of the royal family. But whether this had always been the case I am not prepared to determine. The aim of the later kings, I mean after Alfred, was to carry the mo- narchical principle as high as the temper of the nation would permit. Hence they prefer to the name of king, which was as- sociated in all the Germanic nations with a limited power, the more indefinite appella- tions of imperator and basileus. And the latter of these they borrowed from the By- zantine court, liking it rather better than the other, not merely out of the pompous aff'ectation characteristic of their style in that period, but because, being less intelli- gible, it served to strike more awe, and also probably because the title of Western em- peror seemed to be already appropriated in Germany. It was natural that they would endeavor to enhance the superiority of all atheliugs above the surrounding nobil- ity. In Doomsday-book, which is a record of the state of Anglo-Saxon orders of society under Edward the Confessor, we find new denominations. The word Ceorl does not occur, but is represented by VUlantis, which is also distinguishable. And this word is frequently used in the first Anglo-Norman reigns as the equivalent of ceorl. No one ought to doubt that they expressed the same persons. In Doomsday-book the number of Villani is 108,000. We find also a very numerous class, above 82,000, styled Bordarii, who must have been also Ceorls, distinguished by some legal differ- ence, some peculiarity of service or tenure, well understood at the time. A small num- ber are denominated Coscetz, or Cosceti. There are also several minor denomina- tions in Doomsday, all of which, as they do not denote slaves.and certainly not thanes, must have been varieties of the Ceorl kind. The most frequent of these appellations is Cutarii. But, besides these peasants, there are two appellations which it is less easy, though it would be more important, to define. These are the Libert Homines and the Socmanni. Of the former there are in Doomsday-book about 12,300 ; of the lat- ter, about 23,000; forming together about one-eighth of the whole population, that is, of male adults. It is remarkable that in Norfolk alone we have 44ST liberi homi- nes and 4588 socmen — the whole enumer- ated population being 2T,087. But in Suf- folk, out of a population of 20,491, we find 7470 liberi homines, with 1060 socmen. Thus these two counties contained al- most all the liberi homines of the kingdom. In Lincolnshire, on the other hand, where 11,504 are returned as socmen, the word liber homo does not occur. These Lincoln- shire socmen are not, as usual in other counties, mentioned among occupiers of the demesne lands, but mingled with the villeins and bordars ; sometimes not stand- ing first in the enumeration, so as to show that, in one county, they were both a more numerous and more subordinate class than in the rest of the realm. The concise distinction between what we should call freehold and copyhold is made by the forms of entering each manor throughout Doomsday-book. Liberi ho- mines invariably, and socmen, I believe, except in Ltacolnshire, occupied the one, villani and bordarii the other. Hence liberum tenementum and villenagium. What then, in Anglo-Saxon language, was the kind of the two former classes ? We must, upon the whole, I conceive, take them for ceorls more fortunate than the rest, who had acquired some freehold land, or to whose ancestors possibly it had been allotted in the original settlement. It indi- cates a remarkable variety in the condition of these East-Anglian counties, Norfolk and Suffolk, and a more difl"used freedom in their inhabitants. The population, it must strike us, was greatly higher, rel- atively to their size, than in any other part of England ; and the multitude of small 404 KOTES TO CIIArTER VIII. manors and of parish churches, which still continue, bespeaks this progress. The -soc- men, as well as the liberi homines, in whose condition there may have been little dif- ference, except in Lincolnshire, where we have seen that, for whatever cause, those denominated socmen were little, if at all, better than the villani, were all commend- ed; they had all some lord, though bear- ing to him a relation neither of lief nor of villenage ; they could in general, though with some exceptions, alienate their lands at pleasure ; it has been thought that they might pay some small rent in acknowl- edgment of commendation ; but the one class undoubtedly, and probably the other, were freeholders in every legal sense of the word, holding by that ancient and re- spectable tenure, free and common socage, or iu a manner at least analogous to it. Though socmen are chiefly mentioned in the Danelage, other obscure denomina- tions of occupiers occur in Wessex and Mercia, which seem to have denoted a similar class. It may be remarked here that many of our modern writers draw too unfavorable a picture of the condition of the Anglo- Saxon ceorl. Few, indeed, fall into the capital mistake of Mr. Sharon Turner, by speaking of him as legally in servitude, like the villein of Bracton's age. But we often And a tendency to consider him as in a very uncomfortable condition, little car- ing " to what lion's paw he might fall," as Boliugbroke said in 1T45, and treated by his lord as a miserable dependent. Half a century since, in the days of Sir William Jones, Granville Sharp, and Major Cart- wright, the Anglo-Saxon constitution was built on universal suffrage ; every man iu his tithing a partaker of sovereignty, and sending from his rood of land an annual representative to the witenagemot. Such a theory could not stand the first glimmer- ings of historical knowledge in a mind tolerably sound. But while we absolutely deny political privileges of this kind to the ceorl, we need not assert his life to have been miserable. He had very definite le- gal rights, and acknowledged capacities of acquiring more ; that he was sometimes exposed to oppression is probable enough ; but, in reality, the records of all kinds that have descended to us do not speak in such strong language of this as we may read in those of the Continent. We have uo insurrection of the ceorls, no outrages by themselves, no atrocious punishment by their masters, as in Normandy. Per- haps we are a little too much struck by their obligation to reside on the lands which tbey cultivated ; the term aacriptus I glebce denotes, in our apprehension, an ! ignoble servitude. It is, of course, incon- sistent with our modern equality of rights ; , but we are to remember that he who ; deserted his land, and consequently his I lord, did so in order to become a thief. i Hla/ordlesmen, of whom we read so much, I were invariably of this character — men without land, lord, or law, who lived upon what they could take. For the sake ot protecting the honest ceorl from such men, as well as of protecting the lord in what, if property be regarded at all, must be pro- tected—his rights to services legally due- it was necessary to restrain the cultivator fron^ quitting his land. Exceptions to this might occur, as we find among the liberi Tiomines and others in Doomsday ; but it was the general rule. We might also ask whether a lessee for years at present is not in one sense ascrtptus glebai? It is true that he may go wherever he will, and, if he continue to pay his rent and perform his covenants, no more can be said. But if he does not this, the law will follow his person, and, though it can not I force him to return, will make it by no means his interest to desert the premises. Such remedies as the law now furnishes were not in the power of the Saxon land- lord ; but all that any lord could desire was to have the services performed, or to receive a compensation for them. IV. THE WITENAGEMOT. The best explanation of the history of the Witenagemot has been given by Mr. Freeman in his " Hist, of the Norman Con- quest" (i., 106 seq.). Mr. Freeman points out that every freeman had a theoretical right to attend the assembly of the king- dom, as well as the assembly of the shire, but such a right of attendance became, of course, purely nugatory. "The mass of the people could not attend, they would i not care to attend, they would find them- I selves of no account if they did attend. They would, therefore, without any formal abrogation of their right, gradually cease from attending. The idea of representa- tion had not yet arisen ; those who did not appear in person, had no means of appear- ing by deputy ; of election or delegation there is not the slightest trace, though it might often happen that those who staid j away might feel that their rich or oftici«l I neighbors who went would attend to their j wishes, and would fairly act in their iii- 1 terests. By this process, an originally democratic assembly, without any formal exclusion of any class of its members, I gradually shrunk up into an aristocratic i assembly. • • * * Thus an assembly of NOTES TO CHAPTER VIII. 405 all the freemen of Wessex, when those freemen could not attend personally, and when they had no means of attending by representatives, gradually changed into an assembly attended by few or none but the king's thegns. The great officers of church and state, earldormen, bishops, abbots, would attend ; the ordinary thegns would attend more laxly, but still in considerable numbers; the king would preside ; a few leading men would discuss ; the general mass of the thegns, whether they formally voted or not, would make their approval or disapproval practically fell ; no doubt the form still remained of at least announcing the resolutions taken to any of the ordinary freemen, whom curiosity had drawn to the spot ; most likely the form still remained of demanding their ceremonial assent, though without any fear that the habitual ' yea, yea,' would ever be exchanged for 'nay, nay.' It is thus that, in the absence of representation, a democratic franchise, as applied to a large country, gradually becomes unreal or delusive. • * » • "As to the constitution of these great councils in any English kingdom, our in- formation is of the vaguest kind. The members are always described in the loosest way. We find the witan con- stantly assembling, constantly passing laws, but we find no law prescribing or defining the constitution of the assembly itself. We find no trace of representation or election ; we find no trace of any prop- erty qualification ; we find no trace of nomination by the crown, except in so far as all the great oflicers of the court and the kingdom were constantly present. On the other hand, we have seen that all the lead- ing men, earldormen, bishops, abbots, and a considerable body of other thegns, did attend ; we have seen that the people as a body were in some M'ay associated with the legislative acts of their chiefs, that those acts were in some sort the acts of the peo- ple themselves, to which they had them- selves assented, not merely the edicts of superiors which they had to obey. We have seen that, on some particular occa- sions, some classes at least of the people did actually take a part in the proceedings of the national council ; thus the citizens of London are more than once recorded to have taken a share in the election of kings. No theory that I know of will explain all these phenomena, except that which I have just tried to draw out. This is, that every freeman had an abstract right to be pres- ent, but that any actual participation in the proceedings of the assembly had, gradually and imperceptibly, come to be confined to the leading men, to the king's thegns. strengthened, under peculiarly favorablo circumstances, by the i)resence of excep- tional classes of freemen, like the London citizens." V. TRIAL BY JURY. The following note relates to the subse. quent history of trial by jury. In the " Leges Henrici Primi," a treatise compiled probably early in the reign of Henry IL [Stubbs], and not intended to pass for legislative,* are numerous state- ments as to the usual course of procedure, especially on criminal eharges*. In this treatise we find no allusion to juries ; the trial was either before the Court of the Hundred or that of the territorial judge, assisted by his free vassals. But we do find the great original principle, trial by peers, and, as it is axWec], jter pais ; that is, in the presence of the country, opposed to a distant and unknown jurisdiction — a principle truly derived from Saxon, though consonant also to Norman law, dear to both nations, and guaranteed to both, as it was claimed by both, in the 29th section of Magna Charta. " Unasquisque per pares suos judicandus est, et ejusdem provinciae, peregrina autem judicia modis omnibus submovemus." (Leges H. I., c. 31). As the court had no function but to see that the formalities of the combat, the ordeal, or the compurgation were duly re- garded, and to observe whether the party succeeded or succumbed, no oath from them, nor any reduction of their numbers, could be required. But the law of Nor- mandy had already established the inquest by sworn recognitors, twelve or twenty- four in number, who were supposed to be well acquainted with the facts ; and this in civil as well as criminal proceedings. We have seen an instance of it, not long before the Conquest, among ourselves, in the his- tory of the monk of Ramsey. [See p. 393.] It was in the development of this amelio- ration in civil justice that we find instances during this period where a small number have been chosen from the County Court and sworn to declare the truth, when the judge might suspect the partiality or igno- rance of the entire body. Thus in suits for the recovery of property the public mind was gradually accustomed to see the * It may be here observed, that, in all probability, the title " Leges Henrici Primi " has been continued to the whole book from the first two chapters, which do really contain laws of Henry I., namely, his gener- al charter, and that to the city of London. A similar inadvertence has caused the well-known book com- monly ascribed to Thomas a Kempis to be called " De Imitatione Chrijti," which is merely the title of the flrst chapter. 406 NOTES TO CHAPTER VIII. jurisdiction of tlie freeliolders in their court trangferred to a more select number of sworn and well-informed men. But tiiis was not yet a matter of riglit, nor even probably of very common usage. It was in this state of things that Henry II. brought in the Assize of Novel DissAzin. This gave an alternative to the tenant on a suit for the recovery of land, if he chose not to risk the combat, of putting himself on the assize ; that is, of being tried by four knights summoned by the sheriff and twelve more selected by them, forming the sixteen sworn recognitors, as they were called, by whose verdict the cause was de- termined. This may be regarded as the first step to trial by jury in civil cases. An assize of novel disseizin was always held in the King's Court or that of the justices itinerant, and not before the County or Hundred, whose jurisdiction began in cou- eequence rapidly to decline. Changes not less important were effected in criminal jirocesses during the second part of the Norman period, which wc con- sider as terminating with the accession of Edward I. Henry II. abolished the ancient privilege of compurgation by the oaths of friends, the manifest fountain of unblush- ing perjury ; though it long afterwards was preserved in London and in boroughs by some exemption which does not appear. This, however, left the favorite, or at least the ancient and English, mode of defense by chewing consecrated bread, handling hot iron, and other tricks called ordeals. But near the beginning of Henry III.'s reign the Church, grown wiser and more fond of her system of laws, abolished all kinds of ordeal in the fourth Lateran coun- cil. The combat remained ; but it was not applicable unless an injured prosecutor or appellant came forward to demand it. In cases where a party was only charged on vehement suspicion of a crime, it was nec- essary to find a substitute for the forbid- den superstition. He might be compelled, by a statute of Henry II., to abjure the realm. A writ of 3 Henry III. directs that those against whom the suspicions were very strong should be kept in safe custody. But this was absolutely incompatible with English liberty and with Magna Charta. "No further enactment," says Sir F. Pal- grave, " was made ; and the usages which already prevailed led to a general adoption of the proceedings which had hitherto ex- isted as a privilege or as a favor— that is to say, of proving or disproving the testi- mony of the first set of inquest-men by the testimony of a second array— and the indi- vidual accused by the appeal, or presented by the general opinion of the hundred. was allowed to defend himself by the pa^. ticular testimony of the hundred to which he belonged. For this purpose another inquest was impanelled, sometimes com- posed of twelve persons named from the ' visnc ' and three from each of the adjoin- ing townships ; and sometimes the very same jurymen who had presented the of- fense might, if the culprit thought fit, be examined a second time, as the witnesses or inquest of the points in issue. Bnt it seems worthy of remark that ' trial by in- quest' in criminal cases never seems to have been introduced except into those courts which acted by the king's writ or commission. The presentment or decla- ration of those officers which fell within the cognizance of the hundred jury or the leet jury, the representatives of the ancient cchevins, was final and conclusive ; no traverse, or trial by a second jury, in the nature of a petty jury, being allowed" (p. 269). Thus trial by a petty jury upon criminal charges came in ; itisof the reign of Henry III., and not earlier. And it is to be re- marked, as a confirmation of this view, that no one was compellable to plead; that is, the inquest was to be of his own choice. But if he declined to endure it he was remanded to prison, and treated with a severity which the statute of Westmin- ster 1, in the third year of Edward I., calls peine forte et dure: extended afterwards, by a cruel interpretation, to that atrocious punishment on those who refused to stand a trial, commonly in order to preserve their lands from forfeiture, which was not taken away by law till the last century. Thus was trial by jury established, both in real actions, or suits affecting property in land, and in criminal procedure, the former preceding by a little the latter. But a new question arises as to the prov- ince of these early juries; and the view lately taken is very different from that which has been commonly received. "Trial by jury," says Sir F, Palgrave, "according to the old English law, was a proceeding essentially different from the modern tribunal, still bearing the same name, by which it has been replaced. Jurymen in the present day are triers of the issue ; they are individuals who found their opinion upon the evidence, whether oral or written, adduced before them ; and the verdict delivered by them is their dec- laration of the judgment which they have formed. But the ancient jurymen were not impanelled to examine into the credi- bility of the evidence: the question was not discussed and argued before them . they, the jurymen, were the witnesses NOTES TO CHAPTER VIII. 407 them53lves, and the verdict was substan- tially the examiuatiou of these witnesses, who of their own knowledge, aud without the aid of other testimony, afforded their evidence respecting the facts in question to the best of their belief. In its primitive form a trial by jury was therefore only a trial by witnesses ; and jurymen were dis- tinguished from any other witnesses only by customs which imposed upon them the obligation of an oath and regulated their number. "I And it necessary to introduce this description of the ancient ' Trial by Jury,' because, unless the real functions of the original jurymen be distinctly presented to the reader, his familiar knowledge of the existing course of jurisprudence will lead to the most erroneous conclusions. Many of those who have descanted upon the excellence of our venerated national franchise seem to have sitpposed that it has descended to us unchanged from the days of Alfred ; aud the patriot who claims the jury as the 'judgment by his peers' secured by Magna Charta can never have suspected how distinctly the trial is re- solved into a mere examination of wit- nesses " (i. 243). This theory is sustained by a great dis- play of erudition, which fully establishes that the jurors had such a knowledge, however acquired, of the facts as enabled them to render a verdict without hearing any other testimony in open court than that of the parties themselves, fortified, if it might be, by written documents adduced. Hence the knights of the grand assize are called Recognitors, a name often given to others sworn on an inquest. At what precise period witnesses distinct from the jury themselves, and who had no voice in the verdict, first began to be regularly summoned, can not -be ascer- tained. The first trace of such a practice occurs in the 23d year of Edward III., and had probably been creeping in previously. That it was perfectly established by the middle of the 15th century we have clear evidence from Fortescue's treatise 'De Laudibus Legura Anglite ' (c. 26), written soon after 1450 : "Twelve good and true men being sworn as in the manner above related, legally qualified — that is, having, over and besides their movable possessions, in land sufficient (as was said) wherewith to main- tain their rank and station — neither sus- pected by nor at variance with either of the parties ; all of the neighborhood ; there shall be read to them in English by the court the record and nature of the plea at length which is dependingbetween the parties ; and the issue thereupon shall be plainly laid before them, concerning the truth of which those who are so sworn are to certify the court ; which done, each of the parties, by themselves or their counsel, in presence of the court, shall declare and lay open to the jury all and singular the matters and evidences whereby they think they may be able to inform the court con- cerning the truth of the point in question ; after which each of the parties has a liberty to produce before the court all such wit- nesses as they please, or can get to appear on their behalf, who, being charged upon their oaths, shall give in evidence all that they know touching the truth of the fiict concerning which the parties are at issue. And if necessity so require, the witnesses may be heard and examined apart, till they shall have deposed all that they have to give in evidence, so that what the one has declared shall not inform or induce another witness of the sam'e side to give his evidence in the same words, or to the very same effect. The whole of the evi- dence being gone through, the jurors shall confer together at their pleasure, as they shall think most convenient, upon the truth of the issue before them, with as much deliberation and leisure as they can well desire; being all the while in the keeping of an officer of the court, in a place assigned them for that purpose, lest any one should attempt by indirect methods to influence them as to their opinion, which they are to give in to the court. Lastly, they are to return into court and certify the justices upon the truth of the issue so joined in the presence of the parties (if they please to be present), particularly the person who is plaintiff in the cause : what the jurors shall so certify, in the laws of England, is called the verdict " (c. 26). But personal knowledge of a case con- tinued to be allowed in a juror, who was even required to act upon it; and it was not till a comparatively recent period that the complete separation of the functions of juryman and witness was established. 408 ANGLO-NOKMAN CONSTITUTION. Chap. VIII. Part II PART II. THE ANGLO-NORMAN CONSTITUTION. § 1. The Anglo-Norman Constitution. Causes of the Conquest. § 2, Policy and Character of William, § 3. His Tyranny. § 4. Introduction of Feudal Services. § 5. Difference between the Feudal Governments of France and England. Causes of the great Power of the first Norman Kings. § 6. Arbitrary Character of their Government. § 7. General Taxes. § 8. Right of Legislation. Great Council. § 9. Laws and Charters of the Norman Kings. § 10. Resistance of the Barons to John. Magna Charta. Its principal Articles. § 11. Constitution under Henry III. } 12. Limitations of the Prerogative. § 13. Judicial S3'stem of the Anglo- Normans. Curia Regis, Exchequer, Justices of Assize, Common Pleas. 5 14. Es- tablishment of the Common Law. § 15. Hereditary Right of the Crown estab- lished. § 16. Remarks on the Limitation of Aristocratical Privileges in England. § 1. It is deemed by William of Malmsbury an extraordina- ry work of Providence that the English should have given up all for lost after the battle of Hastings, where only a small though brave army had perished. It was, indeed, the con- quest of a great kingdom by the prince of a single province — an event not easily paralleled, v\ here the vanquished were little, if at all, less courageous than their enemies, and where no domestic factions exposed the country to an invader. Yet William was so advantageously situated that his success seems neither unaccountable nor any matter of discredit to the English nation. The heir of the house of Cerdic had been already set aside at the election of Harold ; and his youth, joined to a mediocrity of understanding, which excited nei- ther esteem nor fear, gave no encouragement to the scheme of placing him upon the throne in those moments of immi- nent peril which followed the battle of Hastings. England was peculiarly destitute of great men. The weak reigns of Ethelred and Edward had rendered the Government a mere oligarchy, and reduced the nobility into the state of retainers to a few leading houses, the representatives of which were every way unequal to meet such an enemy as the Duke of Normandy. If, indeed, the concurrent testimony of histori- ans does not exaggerate his forces, it may be doubted whether England possessed military resources sufficient to have re- sisted so numerous and w^ell-appointed an army. This forlorn state of the country induced, if it did not jus- tify, the measure of tendering the crown to William, which he had a pretext or title to claim, arising from the intentions, perhaps the promise, perhaps even the testament of Edward, English Const. WILLIAM L 409 which had more weight in those times than it deserved, and was at least better than the naked title of conquest. And this, supported by an oath exactly similar to that taken by the Anglo-Saxon kings, and by the assent of the multitude, English as well as Normans, on the day of his coronation, gave as much appearance of a regular succession as the cir- cumstances of the times would permit. Those who yielded to such circumstances could not foresee, and were unwilling to anticipate, the bitterness of that servitude which William and his Norman followers were to bring upon their country. § 2. The commencement of his administration was toler- ably equitable. Though many confiscations took place, in order to gratify the Norman army, yet the mass of proper- ty was left in the hands of its former possessors. Offices of high trust were bestowed upon Englishmen, even upon those whose family renown might have raised the most aspiring thoughts. But, partly through the insolence and injustice of William's Norman vassals, partly through the suspicious- ness natural to a man conscious of having overturned the national government, his yoke soon became more heavy. The English were oppressed ; they rebelled, were subdued, and oppressed again. All their risings were without concert, and desperate ; they wanted men fit to head them, and fortresses to sustain their revolt. After a very few years they sank in despair, and yielded for a century to the indignities of a com- paratively small body of strangers without a single tumult. So possible is it for a nation to be kept in permanent servi- tude, even without losing its reputation for individual cour- age, or its desire of freedom ! The tyranny of William displayed less of passion or inso- lence than of that indifference about human suffering which distinguishes a cold and far-sighted statesman. Impressed by the frequent risings of the English at the commencement of his reign, and by the recollection, as one historian observes, that the mild government of Canute had only ended in the expulsion of the Danish line, he formed the scheme of rivet- ing such fetters upon the conquered nation, that all resist- ance should become impracticable. Those who had obtained honorable ofiices were successively deprived of them ; even the bishops and abbots of English birth were deposed ;^ a 1 This was clone with the concurrence and sanction of the pope, Alexander II., so that the stretch of power was by Rome rather than by William. It must pass for a gross violation of ecclesiastical as well as national rights, and Lanfranc can not be reckoned, notwithstanding his distinguished name, as any better than an intrusive bishop. He showed his arrogant scorn of the English nation in another and rather a singular manner. They were excessively proud of their national saints, some of 18 410 WILLIAM I. Chap. VIIL Part XL stretch of power very singular in that age. Morcar, one of the most illustrious English, suffered perpetual imprison- ment. Waltheoflf, a man of equally conspicuous birth, lost his head upon the scalfold by a very harsh, if not iniquitous, sentence. It was so rare in those times to inflict judicially any capital punishment upon persons of such rank, that his death seems to have produced more indignation and despair in England than any single circumstance. The name of En glishman was turned into a reproach. None of that race for a hundred years were raised to any dignity in the State or Church.'' Several English nobles, desperate of the fortunes of their country, sought refuge in the Court of Constantino- ple, and approved their valor in the wars of Alexius against another Norman conqueror, scarcely less celebrated than their own, Robert Guiscard. Under the name of Varangians, those true and faithful supporters of the Byzantine Empire pre- served to its dissolution their ancient Saxon idiom.^ An extensive spoliation of property accompanied these rev- olutions. It appears by the great national survey of Dooms- day-book, completed near the close of the Conqueror's reign, that the tenants in capite of the crown were generally for- eigners. Undoubtedly there were a few left in almost every county who still enjoyed the estates which they held under Edward the Confessor, free from any superiority but that of the crown, and were denominated, as in former times, the king's thanes. Cospatric, son, perhaps, of one of* that name who had possessed the earldom of Northumberland, held for- ty-one manors in Yorkshire, though many of them are stated in Doomsday to be waste. But inferior freeholders were much less disturbed in their estates than the higher class. It is manifest, by running the eye over some pages of the list of mesne tenants at the time of the survey, how mistaken is the supposition that few of English birth held entire manors. They form a large proportion of nearly 8000 mesne tenants. whom were little known, and whose barbarous names disgusted Italian ears. The Norman bishops, and the primate especially, set themselves to disparage, and in fact to dispossess, St Aldhelm, St. Elflg, and, for aught we know, St. Swithin, St. Werburg, St. Ebb, and St. Alphage ; names, it must be owned, •'That would have made Quintilian stare and gasp." We may judge what the eminent native of Pavia thought of such a hagiology. The English Church found herself, as it were, with an attainted peerage. But the calen- dar withstood these innovations. 2 Becket is said to have been the first Englishman who reached any considerable dignity. ^ No writer, except perhaps the Saxon Chronicler, is so full of William's tyranny as Ordericus Vitalis. Ordericus was an Englishman, but passed at ten years old, a.» 1084, into Normandy, where he became professed in the monastery of Eu. Kngush Const. HIS CHARACTER. 411 And we may presume that they were in a very much greater proportion among the " liberi homines," who held lands, sub- ject only to free services, seldom or never very burdensome. it may be added that many Normans, as we learn from his- tory, married English heiresses, rendered so frequently, nc doubt, by the violent deaths of their fathers and brothers, but still transmitting ancient rights, as well as native blood, to their posterity. This might induce us to suspect that, great as the spolia- tion must appear in modern times, and almost completely as the nation was excluded from civil power in the Common- wealth, there is fcome exaggeration in the language of those writers who represent them as universally reduced to a state of penury and servitude. But, whatever may have been the legal condition of the English mesne tenant, by knight-serv- ice or socage — for the case of villeins is of course not here con- sidered during the first two Norman reigns — it seems evident that he was protected by the charter of Henry I. in the heredi- tary possession of his lands, subject only to a "lawful and just relief towards his lord;" for this charter is addressed to all the liege men of the crown, "French and English," and pur- ports to abolish all the evil customs by which the kingdom had been oppressed, extending to the tenants of the barons as well as those of the crown. The vast extent of the Norman estates in capite is apt to deceive us. In reading of a baron who held forty or fifty or one hundred manors, we are prone to fancy his wealth some- thing like what a similar estate would produce at this day. But if we look at the next words, we shall continually find tliat some one else held of him ; and this was a holding by knight's service, subject to feudal incidents, no doubt, but not leaving the seigniory very lucrative, or giving any right of possessory ownership over the land. The real possessions of the tenant of a manor, whether holding in chief or not, consisted in the demesne lands, the produce of which he ob- tained without cost by the labor of the villeins, and in what- ever other payments they might be bound to make in money or kind. It will be remembered, what has been more than once inculcated, that at this time the villani and bordarii, that is, ceorls, were not, like the villeins of a later time, des- titute of rights in their property; tlieir condition was tend- ing to the lower stage, and, with a Norman lord, they were in much danger of oppression ; but they were "law-worthy" — they had a civil status (to pass from one technical style to another) for a century after the Conquest. 412 WILLIAM I. Chap. VIII. Part II. Yet I would not extenuate the calamities of this great rev- olution, true though it be that much good was brought out of them, and that we owe no trifling part of what inspires self-esteem to the Norman element of our population and our polity. England passed under the yoke — she endured the arrogance of foreign conquerors — her children, even though their loss in revenue may have been exaggerated, and still it was enormous, became a low race, not called to the councils of their sovereign, not sharing his trust or his bounty. They were in a far difl*erent condition from the provincial Romans after the conquest of Gaul, even if, which is hardly possible to determine, their actual deprivation of lands should have been less extensive. For not only they did not for several reigns occupy the honorable stations which sometimes fell to the lot of the Roman subject of Clovis or Alaric, but they had a great deal more freedom and importance to lose. Nor had they a protecting Church to mitigate barbarous superi- ority ; their bishops were degraded and in exile ; the foot- step of the invader was at their altars; their monasteries were plundered, and the native monks insulted. Rome her- self looked with little favor on a Church which had preserved some measure of independence : strange contrast to the tri- umphant episcopate of the Merovingian kings!* § 3. Besides the severities exercised upon the English after every insurrection, two instances of William's unsparing cru- elty are well known — the devastation of Yorkshire and of the New Forest. In the former, w^hich had the tyrant's plea, necessity, for its pretext, an invasion being threatened from Denmark, the whole country between the Tyne and the Hum- ber was laid so desolate that for nine years afterwards tliere was not an inhabited village, and hardly an inhabitant left — the wasting of this district having been followed by a famine which swept away the whole population. That of the New Forest, though undoubtedly less calamitous in its effects, seems more monstrous from the frivolousness of the cause. He afforested several other tracts. And these favorite de- mesnes of the Norman kings were protected by a system of in- iquitous and cruel regulations, called the Forest Laws, which it became afterwards a great object with the assertors of lib- erty to correct. The penalty for killing a stag or a boar was loss of eyes ; for William loved the great game, says the Saxon Chronicle, as if he had been their father. * The oppression of the English during the first reigns after the Conquest is fully described by the Norman historians themselves, as well as by the Saxon Chronicle. Their testimonies are well collected by M.Thierry in the second volume of his val- uable history English Const. HIS TYRANNY. 413 A more general proof of the ruinous oppression of William the Conqueror may be deduced from the comparative condi- tion of the English towns in the reign of Edward the Con- fessor and at the compilation of Doomsday. At the former epoch, there were in York 1607 inhabited houses ; at the latter, 967: at the former, there were in Oxford 721 ; at the latter, 243: of 172 houses -in Dorchester, 100 were destroyed; of 243 in Derby, 103 ; of 487 in Chester, 205. Some other towns had suffered less, but scarcely any one fails to exhibit marks of a decayed population.'^ The demesne lands of the crown, extensive and scattered over every county, were abundantly sufficient to support its dignity and magnificence f and William, far from wasting this revenue by prodigal grants, took care to let them at the highest rate to farm, little caring how much the cultivators were racked by his tenants. Yet his exactions, both feudal and in the way of tallage, from his burgesses and the tenants of his vassals, were almost as violent as his confiscations. No source of income was neglected by him, or, indeed, by his suc- cessors, however trifling, unjust, or unreasonable. His reve- nues, if we could trust Ordericus Vitalis, amounted to £1060 a day. This, in mere weight of silver, would be equal to nearly £1,200,000 a year at present. But the arithmetical statements of these writers are not implicitly to be relied upon. He left at his death a treasure of £60,000, which, in conformity to his dying request, his successor distributed among the Church and poor of the kingdom, as a feeble ex- piation of the crimes by which it had been accumulated ; an act of disinterestedness which seems to prove that Rufus, amidst all his vices, was not destitute of better feelings than historians have ascribed to him. It might appear that Wil- liam had little use for his extorted wealth. By the feudal constitution, as established during his reign, he commanded the service of a vast army at its own expense, either for do- mestic or Continental w^arfare. But this was not sufficient for his purpose ; like other tyrants, he put greater trust in mercenary obedience. Some "of his predecessors had kep\ bodies of Danish troops in pay; partly to be secure against their hostility, partly from the convenience of a regular army, and the love which princes bear to it. But William carried this to a much greater length. He had always stipendiary soldiers at his command. Indeed, his army at the Conquest * The population recorded in Doomsday is about 283,000 ; which, in round nun* bers, allowing for women and children, may be called about a railliou. • They consisted of 1422 manors. 414 FEUDAL SERVICES. Chap. VIII. Part II. could not have been swollen to such numbers by any other means. They were drawn, by the allurement of high pay, not from France and Brittany alone, but Flanders, Germany, and even Spain. When Canute of Denmark threatened an in- vasion in 1085, William, too conscious of his own tyranny to use the arms of his English subjects, collected a mercenary force so vast, that men wondered, says the Saxon Chronicle, how the country could maintain it. This he quartered upon the people, according to the proportion of their estates. § 4. Whatever may be thought of the Anglo-Saxon ten- ures, it is certain that those of the feudal system were thor- oughly established in England under the Conqueror. It has been observed, in another part of this work, that the rights, or feudal incidents, of wardship and marriage were more com- mon in England and Normandy than in the rest of France. They certainly did not exist in the former before the Con- quest ; but whether they were ancient customs of the latter can not be ascertained, unless we liad more incontestable records of its early jurisprudence. There appears, however, reason to think that the seizure of the lands in wardship, the selling of the heiress in marriage, were originally deemed rather acts of violence than conformable to law. For Hen- ry I.'s charter exj^ressly promises that the mother, or next of kin, shall have the custody of the lands as well as person of the heir. And as the charter of Henry II. refers to and con- firms that of his grandfather, it seems to follow that what is called guardianship in chivalry had not yet been established. At least it is not till the assize of Clarendon, confirmed at Northampton in 11 76, that the custody of the heir is clearly reserved to the lord. With respect to the right of consent- ing to the marriage of a female vassal, it seems to have been, as I have elsewhere observed, pretty general in feudal ten- ures. But the sale of her person in marriage, or the exaction of a sum of money in lieu of this scandalous tyranny, was only the law of England, and was not, perhaps, fully author- ized as such till the statute of Merton,in 1236. One innovation made by William upon the feudal law is very deserving of attention. By the leading principle of feuds, an oath of fealty was due from the vassal to the lord of whom he immediately held his land, and to no other. The King of France, long after this period, had no feudal, and scarcely any royal authority over the tenants of his own vas- sals. But William received at Salisbury, in 1085, the fealty of all land-holders in England, both those who held in chief and their tenants ; thus breaking in upon the feudal compact English Const. FEUDAL SERVICES. 415 in its most essential attribute, the exclusive dependence of a vassal upon his lord. And this may be reckoned among the several causes which prevented the Continental notions of. independence upon the crown from ever taking root among the English aristocracy. § 5. The system of feudal policy, though derived to En- gland from a French source, bore a very different appearance in the two countries. France, for about two centuries after the house of Capet had usurped the throne of Charlemagne's posterity, could hardly be deemed a regular confederacy, much less an entire monarchy. But in England a govern- ment feudal, indeed, in its form, but arbitrary in its exercise, not only maintained subordination, but almost extinguished liberty. Several causes seem to have conspired towards this radical difference. In the first place, a kingdom com- paratively small is much more easily kept under control than one of vast extent. And the fiefs of Anglo-Norman barons after the Conquest were far less considerable, even relatively to the size of the two countries, than those of Fi-ance. The Earl of Chester held, indeed, almost all that county '^ the Earl of Shrewsbury nearly the whole of Salop. But these domains bore no comparison with the dukedom of Guienne, or the county of Toulouse. In general, the lordships of Wil- liam's barons, whether this were owing to policy or accident, were exceedingly dispersed. Robert, earl of Moreton, for example, the most richly endowed of his followers, enjoyed 248 manors in Cornwall, 54 in Sussex, 196 in Yorkshire, 99 in Northamptonshire, besides many in other counties. Es- tates so disjoined, however immense in their aggregate, were ill calculated for supporting a rebellion. It is observed by Madox that the knight's fees of almost every barony were scattered over various counties. In the next place, these baronial fiefs were held under an actual derivation from the crown. The great vassals of France had usurped their dominions before the accession of Hugh Capet, and barely submitted to his nominal sovereign- ty. They never intended to yield the feudal tributes of re- lief and aid, nor did some of them even acknowledge the su- premacy of his royal jurisdiction. But the Conqueror and ^ This %vap, upon the whole, more like a great French fief than any English earl- dom. Hugh de Abrincis, nephew of William L, had barons of his own, one of whom held forty-six and another thirty manors. Chester was first called a connty-palatine under Henry II. ; but it previously possessed all regaliau rights of jurisdiction. Af- ter the forfeitures of the house of Montgomery, it acquired all the country between the Mersey and Ribble. Several eminent men inherited the earldom ; but upon the death of the most distinguished, Rauulf, in 1232, it fell into a female line, and soon escheated to the crown. 416 THE NORMAN KINGS. Chap. VIII. Paiit II. his successors imposed what conditions they would upon a set of barons who owed all to their grants ; and as mankind's notions of right are generally founded upon prescriptions, these peers grew accustomed to endure many burdens, re- luctantly indeed, but without that feeling of injury which would have resisted an attempt to impose them upon the vas- sals of the French crown. For the same reasons the barons of England were regularly summoned to the great council ; and by their attendance in it, and concurrence in the meas- ures which were there resolved upon, a compactness and uni- ty of interests was given to the monarchy which was entire- ly wanting in that of France. We may add to the circumstances that rendered the crow^n powerful during the first century after the Conquest, an extreme antipathy of the native English towards their in- vaders. Both William Rufus and Henry I. made use of the former to strengthen themselves against the attempts of their brother Robert, though they forgot their promisee to the En- glish after attaining their object. A fact mentioned by Or- dericus Vitalis illustrates the advantage which the govern- ment found in this national animosity. During the siege of Bridgenorth, a town belonging to Robert de Belesme, one of the most turbulent and powerful of the Norman barons, by Henry Lin 1102, the rest of the nobility deliberated togeth- er, and came to the conclusion that if the king could expel so distinguished a subject he would be able to treat them all as his servants. They endeavored, therefore, to bring about a treaty ; but the English part of Henry's army, hat- ing Robert de Belesme as a Norman, urged the king to pro^ ceed with the siege, which he did, and took the castle. § 6. Unrestrained, therefore, comparatively speaking, by the aristocratic principles which influenced other feudal countries, the administration acquired a tone of rigor and arbitrariness under William the Conqueror which, though sometimes perhaps a little mitigated, did not cease during a century and a half. For the first three reigns we must have recourse to historians whose language, though vague, and perhaps exaggerated, is too uniform and impressive to leave a doubt of the tyrannical character of the government. The intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts, are continually in their mouths. " God sees the wretched people," says the Saxon chronicler, " most unjustly oppressed ; first they are despoiled of their possessions, then butchered. This was a grievous year (11 24). Whoever had any property lost it by heavy taxes and un- English Const. GOVERNMENT OF NORMAN KINGS. 4lT just decrees." The same ancient chronicle, which appears to have been continued from time to time in the Abbey of Peterborough, frequently utters similar notes of lamentation. From the reign of Stephen, the miseries of which are not to my immediate purpose, so far as they j^roceeded from an- archy and intestine war,^ we are able to trace the character of government by existing records.** These, digested by the industrious Madox into his History of the Exchequer, give us far more insight into the spirit of the constitution, if we may use such a word, than all our monkish chronicles. It was not a sanguinary despotism. Henry II. was a prince of re- markable clemency ; and none of the Conqueror's successors were as grossly tyrannical as himself But the system of rapacious extortion from their subjects prevailed to a degree which we should rather expect to iind among Eastern slaves than that high-spirited race of Normandy whoso renown then filled Europe and Asia. The right of wardship was abused by selling the heir and his land to the highest bidder. That of marriage was carried to a still grosser excess. The kings of France, indeed, claimed the prerogative of forbidding the marriage of their vassals' daughters to such persons as they thought unfriendly or dangerous to themselves ; but I am not aware that they ever compelled them to marry, much less that they turned this attribute of sovereignty into a means of revenue. But in England women, and even men, simply as tenants-in-chief, and not as wards, fined to the crown for leave to marry whom they would, or not to be compelled to marry any other. Towns not only fined for original grants of franchises, but for repeated confirmations. The Jews paid exorbitant sums for every common right of mankind, for protection, for justice. In return they were sustained agamst their Christian debtors in demands of usury, which super- stition and tyranny rendered enormous. Men fined for the king's good-will ; or that he w^ould remit his anger ; or to have his mediation with their adversaries. Many fines 8 The following simple picture of that reign from the Saxon Chronicle may he worth inserting: "The nobles and bishops built castles, and filled them with devil- ish and wicked men, and oppressed the people, cruelly torturing men for their mon- ey. They imposed taxes upon towns, and, when they had exhausted them of every thing, set them on fire. You might travel a day and not find one man living in a town, nor any land in cultivation. Never did the country suffer greater evils. If two or three men were seen riding up to a town, all its inhabitants left it, taking them for plunderers. And this lasted, growing worse and worse, throughout Ste- phen's reign. Men said openly that Christ and his saints were asleep " (p. 239). * The earliest record in the Pipe-office is that which Madox, in conformity to the nsage of others, cites by the name of Magnum Rotulum quinto Stephani. But in a particular dissertation subjoined to his History of the Exchequer he inclines, though not decisively, to refer this record to the reign of Henry I. 18* 418 GENERAL TAXES. Chap. VIII. Part II. seem, as it were, imposed in sport, if we look to the cause ; though their extent, and the solemnity with which they were recorded, prove the humor to have been differently relished by the two parties. Thus the Bishop of Winchester paid a tun of good wine for not reminding the king (John) to give a girdle to the Countess of Albemarle ; and Robert de Vaux live best palfreys, that the same king might hold his peace about Henry Pinel's wife. Another paid four marks for leave to eat (pro licentia comedendi). But of all the abuses which deformed the Anglo-Norman government, none was so flagitious as the sale of judicial redress. The king, we are often told, is the fountain of justice ; but in those ages it was one which gold alone could unseal. Men fined to have right done them ; to sue in a certain court ; to im- plead a certain person ; to have restitution of land which they had recovered at law. From the sale of that justice which every citizen has a right to Remand, it was an easy transition to withhold or deny it. Fines were received for the king's help against the adverse suitor ; that is, for per- version of justice, or for delay. Sometimes they were paid by opposite parties, and, of course, for opposite ends. These were called counter-fines.^" § 7. Among a people imperfectly civilized the most out- rageous injustice towards individuals may pass without the slightest notice, while in matters affecting the commimity the powers of government are exceedingly controlled. It becomes, therefore, an important question what prerogative these Norman kings were used to exercise in raising money and in general legislation. By the prevailing feudal customs the lord was entitled to demand a pecuniary aid of his vas- sals in certain cases. These were, in England, to make his eldest son a knight, to marry his eldest daughter, and to ran- som himself from captivity. Accordingly, when such cir- cumstances occurred, aids were levied by the crown upon its tenants, at the rate of a mark or a pound for every knight's fee." These aids, being strictly due in the prescribed cases, were taken without requiring the consent of Parliament. Es- cuage, which was a commutation for the personal service of military tenants in war, having rather the appearance of an indulgence than an imposition, might reasonably be levied by " The most opposite instances of these exactions are well selected from Madoxby Hume, Appendix II. " The reasonable aid was fixed by the statute of Westminster 1, 3 Edw. I., c. 36, at twenty shillings for every knight's fee, and as much for every i;20 value of land held by socage. The aid pour faire fitz chevalier might be raised when he entered into his fifteenth year; pour fille marier when she reached the age of seven. English Const. LEGISLATION. 419 the king. It was not till the charter of John that escuage became a parliamentary assessment ; the custom of commut- ing service having then grown general, and the rate of com- mutation being variable. None but military tenants could be liable for escuage ; but the inferior subjects of the crown wei-e oppressed by tallages. The demesne lands of the king, and all royal towns, were lia- ble to tallage ; an imposition far more rigorous and irregular than those which fell upon the gentry. Tallages were con- tinually raised upon difterent towns during all the Norman reigns without the consent of Parliament, which neither rep- resented them nor cared for their interests. The itinerant justices in their circuit usually set this tax. Sometimes the tallage was assessed in gross upon a town, and collected by the burgesses ; sometimes individually at the judgment of the justices. There was an appeal from an excessive assess- ment to the barons of the Exchequer. Inferior lords might tallage their own tenants and demesne towns, though not, it seems, without the king's permission. Customs upon the im- port and export of merchandise, of which the prisage of wine — that is, a right of taking two casks out of each vessel — seems the most material, were immemorially exacted by the crown. There is no appearance that these originated with Parliament. Another tax, extending to all the lands of the kingdom, was Danegeld, the ship-money of those times. This name had been originally given to the tax imposed under Ethelred II., in order to raise a tribute exacted by the Danes. •It was afterwards applied to a permanent contribution for the public defense against the same enemies. But after the Conquest this tax is said to have been only occasionally re- quired ; and the latest instance on record of its payment is in the 20th of Henry II. Its imposition appears to have been at the king's discretion. § 8. The right of general legislation was undoubtedly placed in the king, conjointly with his Great Council, or, if the expression be thought more proper, with their advice. So little opposition was found in these assemblies by the early Norman kings, that they gratified their own love of pomp, as well as the pride of their barons, by consulting them in every important business. But the limits of legislative pow- er were extremely indefinite.^" New laws, like new taxes, afifecting the community, required the sanction of that as- sembly which was supposed to represent it ; but there was no security for individuals against acts of prerogative which »2 See Note L, "The Legislatiou of the Great CounciL" 420 CHARTERS. Chap. VIII. Part II. we should justly consider as most tyrannical. Henry II., the best of these monarchs, banished from England the relations and friends of Becket, to the number of four hundred. At another time he sent over from Normandy an injunction that all the kindred of those who obeyed a papal interdict should be banished and their estates confiscated. § 9. The statutes of those reigns do not exhibit to us many provisions calculated to maintain public liberty on a broad and general foundation. And although the laws then enact- ed have not all been preserved, yet it is unlikely that any of an extensively remedial nature should have left no trace of their existence. We find, however, what has sometimes been called the Magna Charta of William the Conqueror. "We will, enjoin, and grant," says the king, " that all freemen of our kingdom shall enjoy their lands in peace, free from all tallage, and from every unjust exaction, so that nothing but their service lawfully due to us shall be demanded at their hands.'"^ It is remarkable that no reference is made to this concession of William the Conqueror in any subsequent char- ter. A charter of Henry I., the authenticity of which is un- disputed, though it contains nothing specially expressed but a remission of unreasonable reliefs, wardships, and other feud- al burdens,'* proceeds to declare that he gives his subjects the laws of Edward the Confessor, with the emendations made by his father with consent of his barons. The charter of Stephen not only confirms that of his predecessor, but adds, in fuller terms than Henry had used, an express concession of the laws and customs of Edward. Henry II. is silent about these, al- though he repeats the confirmation of his grandfather's char- ter. The people, however, had begun to look back to a more ancient standard of law. The Norman Conquest, and all that ensued upon it, had endeared the memory of their Sax- on government. Its disorders were forgotten, or, rather, were less odious to a rude nation than the coercive justice *3 This charter contains a clause— "Hoc quoque pr^cipio et volo ut cranes habeant et teneaut legem Edwardi Regis in omnibus rebus, adauctis his quae coustitui ad utilitatem populi Auglorum." This charter seems to be fully established; it de- serves to be accounted the first remedial concession by the crown ; for it indicates, especially taken in connection with public history, an arbitrary exercise of royal power which neither the new nor the old subjects of the^nglish monarchy reckon- ed lawful. It is also the earliest recognition of the Anglo-Saxon laws, such as they subsisted under the Confessor, and a proof both that the English were now endeav- oring to raise their heads from servitude, and that the Normans had discovered some immunities from taxation, or some securities from absolute power, among the con- quered people, in which they desired to participate. " The accession of Henry inspired hopes into the English nation which were not well realized. His marriage with Matilda, "of the rightful English kin," is men- tioned with apparent pleasure by the Saxon chronicler under the year 1100. English Const. CHARTERS. 421 by which they were afterwards restrained. Hence it be- came the favorite cry to demand the laws of Edward the Confessor; and the Normans themselves, as they grew dis- satisfied with the royal administration, fell into these English sentiments.'^ But what these laws were, or more properly, perhaps, these customs subsisting in the Confessor's age, was not very distinctly understood. So far, however, was clear, that the rigorous feudal servitude, the weighty tributes upon poorer freemen, had never prevailed before the Con- quest. In claiming the laws of Edward the Confessor, our ancestors meant but the redress of grievances which tradi- tion told them had not always existed. It is highly probable, independently of the evidence sup- plied by the charters of Henry I. and his two successors, that a sense of oppression had long been stimulating the subjects of so arbitrary a government before they gave any demonstrations of it sufficiently palpable to find a place in history. But there are certainly no instances of rebellion, or even, as far as we know, of a constitutional resistance in Parliament, down to the reign of Richard I. The revolt of the earls of Leicester and Norfolk against Henry IL, which endangered his throne and comprehended his children with a large part of his barons, appears not to have been founded even upon the pretext of public grievances. Under Richard I. something more of a national spirit began to show itself For the king having left his chancellor, William Longchamp, joint regent and justiciary with the Bishop of Dui-ham during his crusade, the foolish insolence of the former, who excluded his coadjutor from any share in the administration, provoked every one of the nobility. A convention of these, the king's brother placing himself at their head, passed a sentence of removal and banishment upon the chancellor. Though there might be reason to conceive that this would not be un pleas- ing to the king, who Avas already apprised how much Long- champ had abused his trust, it was a remarkable assumption of power by that assembly, and the earliest authority for a leading principle of our constitution, the responsibility of ministers to Parliament. ** The distinction between the two nations was pretty well obliterated at the end of Henry II.'s reign, as we learn from the Dialogue on the Exchequer, then written : Jam cohabitantibus Auglicis et Normannis, et alterutriim uxores ducentibus vel nu- bentibtis, sic permixtae sunt nationes, ut vix discern! possit hodie, de liberis loquor, quis Anglicns, quis Norraannus sit genere ; exceptis duntaxat ascriptitiis qui villani dicuntur, quibus non est libernm obstantibus dominis snis a sni status conditione discedere. Eapropter peue quicuuque sic hodie occisus reperitur, ut murdrum puni- tur, exceptis his quibus certa sunt ut diximus servills conditionis indicia (p. 2(Q. See Note II., "On the Duration of Distinction between Norman and Saxon." 422 KING JOHN. Chav. VIII. Part IL § 10. In the succeeding reign of John all the rapacious ex- actions usual to these Norman kings were not only redoub- led, but mingled with other outrages of tyranny still more intolerable. These, too, were to be endured at the hands of a prince utterly contemptible for his folly and cowardice. One is surprised at the forbearance displayed by the barons, till they took up arms at length in that confederacy which ended in establishing the Great Charter of Liberties. As this was the first effort towards a legal government, so is it beyond comparison the most important event in our history, except that Revolution without which its benefits would have been rapidly annihilated. The constitution of England has indeed no single date from which its duration is to be reck- oned. The institutions of positive law, the far more impor- tant changes which time has wrought in the order of society, during six hundred years subsequent to the Great Charter, have undoubtedly lessened its direct application to our pres- ent circumstances. But it is still the key-stone of English liberty. All that has since been obtained is little more than as confirmation or commentary; and if every subsequent law were to be swept away, there would still remain the bold features that distinguish a free from a despotic monarchy. It has been lately the fashion to depreciate the value of Magna Charta, as if it had sprung from the private ambition of a few selfish barons, and redressed only some feudal abuses. It is indeed of little importance by Avhat motives those Avho obtained it were guided. The real characters of men most distinguished in the transactions of that time are not easily determined at present. Yet if we bring these ungrateful suspicions to the test, they prove destitute of all reasonable foundation. An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter. In this just solicitude for the people, and in the moderation which infringed upon no essential prerogative of the monarchy, we may perceive a liberality and patriotism very unlike the selfishness which is sometimes rashly imputed to those an- cient barons. And, as far as we are guided by historical testimony, two great men, the pillars of our Church and State, may be considered as entitled beyond the rest to the gloiy of this monument — Stephen Langton, archbishop of Canterbury, and William, earl of Pembroke. To their tem- perate zeal for a legal government, England was indebted during that critical period for the two greatest blessings that patriotic statesmen could confer — the establishment of civil liberty upon an immovable basis, and the preservation English Const. MAGNA CHARTA. 423 of national independence under the ancient line of sover- eigns, which rasher men were about to exchange for the do- minion of France. By the Magna Charta of John reliefs were limited to a certain sum according to the rank of the tenant, the waste committed by guardians in chivalry restrained, the dispar- agement in matrimony of female wards forbidden, and wid- ows secured from compulsory marriage. These regulations, extending to the sub-vassals of the crown, redressed the worst grievances of every military tenant in England. The fran- chises of the city of London and of all towns and boroughs were declared inviolable. The freedom of commerce was guaranteed to alien merchants. The Court of Common Pleas, instead of following the king's person, was fixed at Westminster, The tyranny exercised in the neighborhood of royal forests met with some check, which was further en- forced by the Charter of Forests under Henry III. But the essential clauses of Magna Charta are those which protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbi- trary spoliation. "No freeman (says the 29th chapter of Henry HL's charter, w^hich, as the existing law, I quote in preference to that of John, the variations not being very material) shall be taken or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed ; nor will we pass upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land.'^ We will sell to no man, we will not deny or delay to any man, justice or right." It is obvious that these words, interpreted by any honest court of law, convey an ample security for the two main rights of civil society. From the era, therefore, of King John's charter, it must have been a clear principle of our constitution that 18 Nisi per legale judicium parium suorum, vel per legem terrse. Several explana- tions have been offered of the alternative clause, which some have referred to judg- ment l^default or demurrer— others to the process of attachment for contempt. Cer- tainly there are many legal procedures besides trial by jury, through which a party's goods or person may be taken. But one may doubt whether these were in contem- plation of the framers of Magna Charta. In an entry of the charter of 1217 by a con- temporary hand, preserved in a book in the town-clerk's office in London, called Li- ber Custumarum et Rcgum antiquorum, a various reading, et per legem terne, occurs. — Blackstone's Charters, p. 42. And the word vel is so frequently used for et, that I am not wholly free from a suspicion that it was so intended in this place. The meaning will be that no person shall be disseized, etc., except upon a lawful cause of action or indictment found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations, but I do not offer it with much confidence. But perhaps the best sense of the disjunctive will be perceived by remembering j,hat judicium parium was generally opposed to the combat or the ordeal, which were 'equally lex terrce. The Magna Charta is printed at length on p. 552 seq. 424 MAGNA CHARTA. Chap. VIII. Paut II. no man can be detained in prison without trial. Whether courts of justice framed the writ of Habeas Corpus in con- formity to the spirit of this clause, or found it already in their register, it became from that era the right of every subject to demand it. That wn-it, rendered more actively remedial by the statute of Charles II., but founded upon the broad basis of Magna Charta, is the principal bulwark of English liberty ; and if ever temporary circumstances, or the doubtful plea of political necessity, shall lead men to look on its denial with apathy, the most distinguishing char- acteristic of our constitution will be effaced. As the clause recited above protects the subject from any absolute spoliation of his freehold rights, so others restrain the excessive amercements which had an almost equally ruinous operation. The magnitude of his offense, by the 14th clause of Henry III.'s charter, must be the measure of his fine ; and in every case the contenement (a word expressive of chattels necessary to each man's station, as the arms of a gentleman, the merchandise of a trader, the plough and w^ag- ons of a peasant) was exempted from seizure. A provision was made in the charter of John that no aid or escuage should be imposed, except in the three feudal cases of aid, wdthout consent of Parliament. And this was extended to aids paid by the city of London. But the clause was omit- ted in the three charters granted by Henry III., though Parliament seem to have acted upon it in most part of his reign. It had, however, no reference to tallages imposed upon towns without their consent. Fourscore years were yet to elapse before the great principle of parliamentary tax- ation was explicitly and absolutely recognized. § 11. From this era a new soul was infused into the peo- ple of England. Her liberties, at the best long in abeyance, became a tangible possession, and those indefinite aspirations for the laws of Edward the Confessor were changed into a steady regard for the Great Charter. Pass but from the history of Roger de Hoveden to that of Matthew Paris, from the second Henry to the third, and judge whether the victo- rious struggle had not excited an energy of public spirit to which the nation was before a stranger. The strong man, in the sublime language of Milton, was aroused from sleep, and shook his invincible locks. Tyranny, indeed, and injustice will, by all historians not absolutely servile, be noted with moral reprobation ; but never shall we find in the English writers of the twelfth century that assertion of positive and national riiiijhts which distinguishes those of the next age, English Const. MAGNA CHARTA. 425 and particularly the monk of St. Alban's. From his prolix history we may collect three material propositions as to the state of the English constitution during the long reign of Henry III. ; a prince to whom the epithet of worthless seems best applicable ; and who, without committing any flagrant crimes, was at once insincere, ill-judging, and pusil- lanimous. The intervention of such a reign was a very for- tunate circumstance for public liberty, which might possibly have been crushed in its infancy if an Edward had imme- diately succeeded to the throne of John. 1. The Great Charter was always considered as a funda- mental law. But yet it was supposed to acquire additional security by frequent confirmation. This it received, with some not inconsiderable variation, in the first, second, and ninth years of Henry's reign. The last of these is in our present statute-book, and has never received any alterations ; but Sir E. Coke reckons thirty-two instances wherein it has been solemnly ratified. Several of these were during the reign of Henry HI., and were invariably purchased by the grant of a subsidy. This prudent accommodation of Parlia- ment to the circumstances of their age not only made the law itself appear more inviolable, but established that cor- respondence between supply and redress which for some cen- turies was the balance-spring of our constitution. The char- ter, indeed, was often grossly violated by their administra- tion. Even Hubert de Burgh, of whom history speaks more favorably than of Henry's later favorites, though a faithful servant of the crown, seems, as is too often the case with such men, to have thought the king's honor and interest con- cerned in maintaining an unlimited prerogative. The gov- ernment was, however, much worse administered after his fall. From the great difl^iculty of compelling the king to ob- serve the boundaries of law, the English clergy, to whom we are much indebted for their zeal in behalf of liberty during this reign, devised means of binding his conscience and ter- rifying his imagination by religious sanctions. The solemn excommunication, accompanied with the most awful threats, pronounced against the violators of Magna Charta, is well known from our common histories. The king was a party to this ceremony, and swore to observe the charter. But Henry HI., though a very devout person, had his own no- tions as to the validity of an oath that affected his power, and indeed passed his life in a series of perjuries. Accord- ing to the creed of that age, a papal dispensation might annul any prior engagement ; and he was generally on suf 426 MAGNA CHARTA. Chap. VIII. Part IL ficiently good terms with Rome to obtain such an indul- gence. 2. Though the prohibition of levying aids or escuages without consent of Parliament had been omitted in all Henry's charters, yet neither one nor the other seems, in fact, to have been exacted at discretion throughout his reign. On the contrary, the barons frequently refused the aids, or rather subsidies, which his prodigality was always demanding. In- deed it would probably have been impossible for the king, however frugal, stripped as he was of so many lucrative though oppressive prerogatives by the Great Charter, to support the expenditure of government from his own re- sources. Tallages on his demesnes, and especially on the rich and ill-aifected city of London, he imposed without scruple ; but it does not appear that he ever pretended to a right of general taxation. We may, therefore, take it for granted that the clauee in John's charter, though not ex- pressly renewed, was still considered as of binding force. The king was often put to great inconvenience by the refusal of supply; and at one time was reduced to sell his plate and jewels, which the citizens of London buying, he was pro- voked to exclaim with envious spite against their riches, which he had not been able to exhaust. 3. The power of granting money must of course imply the power of withholding it ; yet this has sometimes been lit- tle more than a nominal privilege. But in this reign the English Parliament exercised their right of refusal, or, what was much better, of conditional assent. Great discontent was expressed at the demand of a subsidy in 1237 ; and the king alleging that he had expended a great deal of money on his sister's marriage with the emperor, and also upon his own, the barons answered that he had not taken their ad- vice in those affairs, nor ought they to share the punishment of acts of imprudence they had not committed. In 1241, a subsidy having been demanded for the war in Poitou, the barons drew up a remonstrance, enumerating all the grants they had made on former occasions, but always on condition that the imposition should not be turned into precedent. Their last subsidy, it appears, had been paid into the hands of four barons, who were to expend it at their discretion for the benefit of the king and kingdom — an early instance of parliamentary control over public expenditure. Finally, the barons positively refused any money, and he extorted 1500 marks from the city of London. Some years afterwards they declared their readiness to burden themselves more than eve/ English Const. UNDER HENRY III. 427 if they could secure the observance of the charter ; and re- quested that the justiciary, chancellor, and treasurer might be appointed with consent of Parliament, according, as they asserted, to ancient custom, and might hold their oiRces dur- ing good behavior. Forty years of mutual dissatisfaction had elapsed, when a signal act of Henry's improvidence brought on a crisis which endangered his throne. Innocent IV., out of mere animosity against the family of Frederick II., left no means untried to raise up a competitor for the crown of Naples, which Man- fred had occupied. Richard, earl of Cornwall, having been prudent enough to decline this speculation, the pope offered to support Henry's second son. Prince Edmund. Tempted by such a prospect, the silly king involved himself in irre- trievable embarrassments by prosecuting an enterprise which could not possibly be advantageous to England, and upon which he entered without the advice of his Parliament. Des- titute himself of money, he was compelled to throw the ex- pense of this new crusade upon the pope ; but the assistance of Rome-w^as never gratuitous, and Henry actually pledged his kingdom for the money which she might expend in a war for her advantage and his own. He did not even want the effrontery to tell Parliament in 1257, introducing his son Ed- mund as king of Sicily, that they were bound for the repay- ment of 14,000 marks with interest. The pope had also, in furtherance of the Neapolitan project, conferred upon Henry the tithes of all benefices in England, as well as the first-fruits of such as should be vacant. Such a concession drew upon the king the implacable resentment of his clergy, already complaining of the cowardice or connivance that had during all his reign exposed them to the shameless exactions of Rome. Henry had now, indeed, cause to regret his precip- itancy. Alexander IV., the reigning pontiff, threatened him not only with a revocation of the grant to his son, but with an excommunication and general interdict, if the money ad- vanced on his account should not be immediately repaid, and a Roman agent explained the demand to a Parliament as- sembled in London. The sum required was so enormous, we are told, that it struck all the hearers with astonishment and horror. The nobility of the realm were indignant to think that one man's supine folly should thus bring them to ruin. Who can deny that measures beyond the ordinary course of the constitution were necessary to control so prodigal and injudicious a sovereign ? Accordingly, the barons insisted that twenty-four persons should be nominated, half by the 428 STATE OF THE CONSTITUTION Chap. VIII. Part II. king and half by themselves, to reform the state of the king- dom. These were appointed on the meeting of the Parlia- ment at Oxford, after a prorogation. The seven years that followed are a revolutionary period, the events of which we do not find satisfactorily explained by the historians of the time. A king divested of preroga- tives by his people soon appears even to themselves an in- jured party. And, as the baronial oligarchy acted with that arbitrary temper which is never pardoned in a government that has an air of usurpation about it, the Royalists began to gain ground, chiefly through the defection of some who had joined in the original limitations imposed on the crown, usually called the provisions of Oxford. An ambitious man, confident in his talents and popularity, ventured to display too marked a superiority above his fellows in the same cause. But neither his character nor the battles of Lewes and Eves- ham, fall strictly within the limits of a constitutional histo- ry. It is, however, important to observe that, even in the moment of success, Henry III. did not presume to revoke any part of the Great Charter. His victory had been achieved by the arms of the English nobility, who had, generally speak- ing, concurred in the former measures against his govern- ment, and whose opposition to the Earl of Leicester's usurpa- tion was compatible with a steady attachment to constitu- tional liberty. § 12. The opinions of eminent lawyers are, undoubtedly, where legislative or judicial authorities fail, the best evidence that can be adduced in constitutional history. It will, there- fore, be satisfactory to select a few passages from Bracton, himself a judge at the end of Henry III.'s reign, by which the limitations of prerogative by law will clearly appear to have been fully established. " The king," says he, " must not be subject to any man, but to God and the law ; for the law makes him king. Let the king, therefore, give to the law what the law gives to him — dominion and power ; for there is no king where will, and not law, bears rule." " The king (in another place) can do nothing on earth, being the minis- ter of God, but what he can do by law; nor is what is said (in the Pandects) any objection, that whatever the prince pleases shall be law; because by the words that follow in that text it appears to design not any mere will of the prince, but that which is established by the advice of his councillors, the king giving his authority, and deliberation being had upon it." This passage is, undoubtedly, a misrepresentation of the famous Lex Regia, which has ever been interpreted English Const. UNDER HENRY III. 429 to convey the unlimited power of the people to their emper- ors. But the very circumstance of so perverted a gloss put upon this text is a proof that no other doctrine could be ad- mitted in the law of England. In another passage Bracton reckons as superior to the king, " not only God and the law, by which he is made king, but his court of earls and barons; for the former (comites) are so styled as associates of the king, and whoever has an associate has a master ; so that, if the king were without a bridle, that is, the law, they ought to put a bridle upon him." Several other passages in Brac- ton might be produced to the same import; but these are sufficient to demonstrate the important fac.t that, however extensive or even indefinite might be the royal prerogative in the days of Henry III., the law was already its superior, itself but made part of the law, and was incompetent to overthrow it. It is true that in this very reign the practice of dispensing with statutes by a non-obstante was intro- duced, in imitation of the papal dispensations. But this prerogative could only be exerted w^ithin certain limits, and, however pernicious it may be justly thought, was, when thus understood and defined, not, strictly speaking, incompatible with the legislative sovereignty of Parliament. § 13. In conformity with the system of France and other feudal countries, there was one standing council, which as- sisted the kings of England in the collection and manage- ment of their revenue, the administration of justice to suit- ors, and the dispatch of all public business. This was styled Curia Regis (the King's Court), and held in his palace, or wherever he was personally present. It was composed of the great oflUcers; the chief justiciary, ^Hhe chancellor, the constable, marshal, chamberlain, steward, and treasurer, with any others whom the king might appoint. Of this great court there was, as it seems, from the beginning, a particular branch, in which all matters relating to the revenue w^ere exclusively transacted. This, though composed of the same I'' The chief justiciary (capitalis jmticiarius) was the greatest subject in England. Besides presiding in the King's Court and in the Exchequer, he was originally, by vir- tue of his office, the regent of the kingdom during the absence of the sovereign, which, till the loss of Normandy, occurred very frequently. The first time when the dignity of this office was impaired was at the death of John, when the justiciary, Hubert de Burgh, being besieged in Dover Castle, those who proclaimed Henry III. at Glouces- ter constituted the Earl of Pembroke governor of the king and kingdom, Hubert still retaining his office. In 1241 the Archbishop of York Avas appointed to the regency during Henry's absence in Poitou, without the title of justiciary. Still the office was 80 considerable that the barons who met in the Oxford Parliament of 1258 insisted that the justiciary should be annually chosen with their approbation. But the sub- sequent successes of Henry prevented this being established, and Edward I. discon- tinued the office altogether. 430 LAW COUETS. Chap. VIII. Part IL persons, yet, being held in a different part of the palace, and for different business, was distinguished from the King's Court by the name of the Exchequer — a separation which became complete when civil pleas were decided and judg- ments recorded in this second court. In the Exchequer the justices were called barones, or barones scaccarii. Henry II., in 1176, reduced the justices in the Curia Regis from eighteen to five, and ordered that they should hear and determine all writs of the kingdom. From this time, and probably from none earlier, we may date the commence- ment of the Court of King's Bench, which very soon acquired, at first indifferently with the council, and then exclusively, the appellation of Curia Regis. ^^ It is probable that in the age next after the Conquest few causes in which the Crown had no interest were carried be- fore the royal tribunals, every man finding a readier course of justice in the manor or county to which he belonged. But by degrees this supreme jurisdiction became more fa- miliar ; and, as it seemed less liable to partiality or intimida- tion than the provincial courts, suitors grew willing to sub- mit to its expensiveness and inconvenience. It was obvious- ly the interest of the King's Court to give such equity and steadiness to its decisions as might encourage this disposi- tion. But because few, comparatively speaking, could have recourse to so distant a tribunal as that of the King's Court, and perhaps also on account of the attachment which the English felt to their ancient right of trial by the neighbor- ing freeholders, Henry IL established itinerant justices to decide civil and criminal pleas within each county." To this excellent institution we have owed the uniformity of our common law, which would have otherwise been split, like that of France, into a multitude of local customs ; and we still owe to it the assurance, which is felt by the poorest and most remote inhabitant of England, that his right is weighed by the same incorrupt and acute understanding upon which the decision of the highest questions is reposed. '8 For much information about the Curia Regis, and especially this branch of it, the student of our constitutional history should have recourse to Madox's History of the Exchequer, aud to the Dialogus de Scaccario, written in the time of Henry II. by "Richard, bishop of London, Treasurer of the Exchequer, son of Nigel, bishop of Ely, his predecessor in the office."— [Stubbs.] The reader must still keep in mind the threefold meaning of Curia Regis : the common council of the realm ; the select coun- cil for judicial as well as administrative purposes ; and the Court of King's Bench, separated from the last in the reign of Henry II., aud soon afterwards acquiring, ex- clusively, the denomination Curia Regis. >* Justices in eyre, or, as we now call them, of assize, do not appear to have gono their circuits regularly before 22 Henry II. (1170). English Const. JUSTICES OF ASSIZE. 431 The justices of assize seem originally to have gone their cir- cuits annually ; and as part of their duty was to set tallages upon royal towns, and superintend the collection of the rev- enue, we may be certain that there could be no long interval. This annual visitation was expressly confirmed by the twelfth section of Magna Charta, which provides also that no assize of novel disseizin, or mort d'ancestor, should be taken except in the shire where the lands in controversy lay. Hence this clause stood opposed, on the one hand, to the encroachments of the King's Court, which might otherwise, by drawing pleas of land to itself, have defeated the suitor's right to a jury from the vicinage ; and, on the other, to those of the feudal aristocracy, who hated any interference of the crown to chas- tise their violations of law, or control their own jurisdiction. Accordingly, while the confederacy of barons against Henry HI. was in its full power, an attempt was made to prevent the regular circuits of the judges. Long after the separation of the Exchequer from the King'b Court, another branch was detached for the decision of pri- vate suits. This had its beginning, in Madox's opinion, as early as the reign of Richard I. But it was completely es- tablished by Magna Charta. " Common Pleas," it is said in the fourteenth clause, " shall not follow our court, but be held in some certain place." Thus was formed the Court of Common Bench at Westminster,^" with full and, strictly speaking, exclusive jurisdiction over all civil disputes, where neither the king's interest, nor any matter savoring of a crim- inal nature, was concerned. For of such disputes neither the Court of King's Bench nor that of Exchequer can take cognizance, except by means of a legal fiction, which, in the one case, supposes an act of force, and in the other a debt to the crown. § 14. The principal oflScers of state, who had originally been efiective members of the King's Court, began to with- draw from it, after this separation into three courts of jus- tice, and left their places to regular lawyers, though the treasurer and chancellor of the Exchequer have still seats on the equity side of that court, a vestige of its ancient consti- tution. It would, indeed, have been difficult for men bred in camps or palaces to fulfill the ordinary functions of judica- ture under such a system of law as had grown up in En- *" After the erection of the Common Bench the style of the Superior Court began to alter. It ceased by degrees to be called the King's Court. Pleas were said to be held coram rege, or coram rege ubicunqne fuerit. And thus the Court of King's Banch was formed out »)f the remains of the ancient Curia Regis (see above, p. 430). 432 ORIGIN OF COMMON LxVW. Chap. VIII. Part II. gland. The rules of legal decision among a rude people are always very simple ; not serving much to guide, far less to control, the feelings of natural equity. Such were those which prevailed among the Anglo-Saxons ; requiring no sub- tler intellect or deeper learning than the earl or sheriff at the head of his County Court might be expected to possess. But a great change was wrought in about a century after the Conquest. Our English lawyers, prone to magnify the antiquity like the other merits of their system, are ajn to carry up the date of the common law, till, like the pedigree of an illustrious family, it loses itself in the obscurity of an- cient time. Even Sir Matthew Hale does not hesitate to say that its origin is as undiscoverable as that of the Nile. But though some features of the common law may be distin- guishable in Saxon times, while our limited knowledge pre- vents us from assigning many of its peculiarities to any de- terminable period, yet the general character and most essen- tial parts of the system were of much later growth. The laws of the Anglo-Saxon kings are as different from those collected by Glanvil as the laws of tw^o different nations. The pecuniary compositions for crimes, especially for homi- cide, which run through the Anglo-Saxon code down to the laws ascribed to Henry I., are not mentioned by Glanvil. Death seems to have been the regular punishment of murder, as well as robbery. Though the investigation by means of ordeal w^as not disused in his time, yet trial by combat, of which we find no instance before the Conquest, was evident- ly preferred. Under the Saxon government, suits appear to have commenced, even before the king, by verbal or written complaint ; at least, no trace remains of the original writ, the foundation of our civil procedure. The descent of lands before the Conquest was according to the custom of gavel- kind, or equal partition among the children ; in the age of Henry I, the eldest son took the principal fief to his own share ; in that of Glanvil, he inherited all the lands held by knight-service ; but the descent of socage lands depended on the particular custom of the estate. By the Saxon laws, upon the death of the son without issue, the father inherited; by our common law, he is absolutely, and in every case, ex- cluded. Lands were, in general, devisable by testament be- fore the Conquest, but not in the time of Henry H., except by particular custom. These are sufficient samples of the differences between our Saxon and Norman jurisprudence ; but the distinct character of the two will strike more forci- bly every one who peruses successively the laws publi-sjied English Const. CHARACTER OF ENGLISH LAW. 433 by Wilkins, and the treatise ascribed to Glanvil. The for- mer resemble the barbaric codes of the Continent, and the capitularies of Charlemagne and his family, minute to an ex- cess in apportioning punishments, but sparing and indefinite in treating of civil rights ; while the other, copious, discrim- inating, and technical, displays the characteristics, as well as unfolds the principles, of English law. It is difficult to as- sert any thing decisively as to the period between the Con- quest and the reign of Henry II. which presents fewer mate- rials for legal history than the preceding age ; but the trea- tise denominated the Laws of Henry I., compiled at the soonest about the end of Stephen's reign, b(?ars so much of a Saxon character, that I should be inclined to ascribe our present common law to a date, so far as it is capable of any date, not much antecedent to the publication of Glanvil. At the same time, since no kind of evidence attests any sudden and radical change in the jurisprudence of England, the ques- tion must be considered as left in great obscurity. Perhaps it might be reasonable to conjecture that the treatise called Leges Henrici Primi contains the ancient usages still prevail- ing in the inferior jurisdictions, and that of Glanvil the rules established by the Norman lawyers of the King's Court, which would of course acquire a general recognition and efficacy, in consequence of the institution of justices holding their assizes periodically throughout the country. The capacity of deciding legal controversies was now only to be found in men who had devoted themselves to that pe- culiar study ; and a race of such men arose, whose eagerness, and even enthusiasm, in the profession of the law were stim- ulated by the self-complacency of intellectual dexterity in threading its intricate and thorny mazes. The Normans are noted in their own country for a shrewd and litigious tem- per, which may have given a character to our courts of jus- tice in early times. Something, too, of that excessive sub- tlety, and that preference of technical to rational principles which runs through our system, may be imputed to the scho- lastic philosophy which was in vogue during the same period, and is marked by the same features. But we have just rea- son to boast of the leading causes of these defects — an ad- herence to fixed rules, and a jealousy of judicial discretion, which have in no country, I believe, been carried to such a length. Hence, precedents of adjudged cases, becoming authorities for the future, have been constantly noted, and form, indeed, almost the sole ground of argument in questions of mere law. But, these authorities being frequently unrea- 19 434 CHARACTER OF ENGLISH LAW. Chap. VIU. Pari IL sonable and inconsistent — partly from the infirmity of all human reason, partly from the imperfect manner in which a number of unwarranted and incorrect reporters have handed them down — later judges grew anxious to elude by impalpa- ble distinctions what they did not venture to overturn. In some instances this evasive skill has been applied to acts of the legislature. Those who are moderately conversant with the history of our law will easily trace other circumstances that have co-operated in producing that technical and subtle system which regulates the course of real property — for, as that formed almost the whole of our ancient jurisprudence, it is there that we must seek its original character. But much of the same spirit pervades every part of the law, No tri- bunals of a civilized people ever borrowed so little, even of illustration, from the writings of philosophers, or from the institutions of other countries. Hence law has been studied, in general, rather as an art than a science — with more solici- tude to know its rules and distinctions than to perceive their application to that for which all rules of law ought to have been established — the maintenance of public and private rights. § 15. Whatever may be thought of the effect which the study of the law had upon the rights of the subject, it con- duced materially to the security of good order by ascertain- ing the hereditary succession of the crown. Five kings out of seven that followed William the Conqueror were usurpers, according, at least, to modern notions. Of these, Stephen alone encountered any serious opposition upon that ground ; and, with respect to him, it must be remembered that all the barons, himself included, had solemnly sworn to maintain the succession of Matilda. Henry II. procured a parliamentary settlement of the crown upon his eldest and second sons — a strong presumption that their hereditary right was not abso- lutely secure. A mixed notion of right and choice, in fact, prevailed as to the succession of every European monarchy. The coronation oath," and the form of popular consent then required, were considered as more material, at least to perfect a title, than we deem them at present. They gave seizin, as it were, of the crown, and, in cases of disputed pretensions, had a sort of judicial efficacy. The Chronicle of Dunstable says, concerning Richard I., that he w^as "elevated to the throne by hereditary right, after a solemn election by the clergy and people:" words that indicate the current principles of that 21 The early kings always date their reign from their coronation, and not from the decease of .neir predecessors. English Const. HEREDITARY RIGHT TO CROWN. 435 age. It is to be observed, however, that Richard took upon him the exercise of royal prerogatives without waiting for his coronation. The succession of John has certainly passed, in modern times, for an usurpation : I do not find that it was considered as such by his own contemporaries on this side of the Channel. The question of inheritance betw^een an uncle and the son of his deceased elder brother was yet unsettled, as we learn from Glanvil, even in private succession. In the case of sovereignties, which were sometimes contended to require different rules from ordinary patrimonies, it was, and continu- ed long to be, the most uncertain point in public law. John's pretensions to the crown might, therefore, be such as the En- glish were justified in admitting, especially as his reversion- ary title seems to have been acknowledged in the reign of his brother Richard. In a charter of the first year of his reign John calls himself king " by hereditary right, and through the consent and favor of the Church and people." It is deserving of remark that, during the rebellions against this prince and his son Henry III., not a syllable was breathed in favor of Eleanor, Arthur's sister, who, if the present rules of succession had been established, was the un- doubted heiress of his right. The barons chose rather to call in the aid of Louis, with scarcely a shade of title, though with much better means of maintaining himself. One should think that men whose fathers had been in the field for Matil- da could make no difficulty about female succession. But I doubt whether, notwithstanding that precedent, the crown of England ^as universally acknowledged to be capable of descending to a female heir. Great averseness had been shown by the nobility of Henry I. to his proposal of settling the kingdom on his daughter. And from a remarkable pas- sage which I shall produce in a note, it appears that even in the reign of Edward III. the succession was supposed to be confined to the male line." At length, about the middle of the thirteenth century, the lawyers applied to the crown the same strict principles of 22 This is intimated by the treaty made in 1339 for a marriage between the eldest son of Edward III. and the Duke of Brabant's daughter. Edward therein promises that, if his son should die before him, leaving male issue, he will procure the consent of his barons, nobles, and cities (that is, of Parliament ; nobles here meaning knights, if the word has any distinct sense) for such issue to inherit the kingdom; and if he die leaving a daughter only, Edward or his heir shall make such provision for her as belongs to the daughter of a king.— Rymer, t. v., p. 114. It may be inferred from this instrument that, in Edward's intention, if not by the constitution, the Salic law was to regulate the succession of the English crown. This law, it must be remembered, he was compelled to admit in his claim on the kingdom of France, though with a car tain modification which gave a pretext of title to himself. 436 EXCLUSIVE PRIVILEGES. Chap. VIII. Part II. descent which regulate a private inheritance. Edward I. was proclaimed immediately upon his father's death, though absent in Sicily. Something, however, of the old principle may be traced in this proclamation, issued in his name by the guardians of the realm, where he asserts the crown of England " to have devolved upon him by hereditary succes- sion and the will of his nobles." These last words were omit- ted in the proclamation of Edward 11. ; since whose time the crown has been absolutely hereditary. The coronation oath, and the recognition of the people at that solemnity, are for- malities which convey no right either to the sovereign or the people, though they may testify the duties of each. § 16. I can not conclude the present chapter without ob- serving one most prominent and characteristic distinction between the constitution of England and that of every other country in Europe — I mean its refusal of civil privileges to the lower nobility, or those whom we denominate the gen- try. In France, in Spain, in Germany, wherever, in short, we look, the appellations of nobleman and gentleman have been strictly synonymous. Those entitled to bear them by de- scent, by tenure of land, by office or royal creation, have formed a class distinguished by privileges inherent in their blood from ordinary freemen. Marriage with noble families, or the purchase of military fiefs, or the participation of many civil offices, were, more or less, interdicted to the commons of France and the empire. Of these restrictions nothing, or next to nothing, was ever known in England. The law has never taken notice of gentlemen. From the reign of Henry III. at least, the legal equality of all ranks below the peerage was, to every essential purpose, as complete as at prpsent. Compare two writers nearly contemporary, Bracton with Beaumanoir, and mark how the customs of England are dis- tinguishable in this respect. The Frenchman ranges the people under three divisions — the noble, the free, and the servile ; our countryman has no generic class, but freedom and villenage. No restraint seems ever to have lain upon marriage ; nor have the children even of a peer been ever deemed to lose any privilege by his union with a common- er. The purchase of lands held by knight-service was al- ways open to all freemen. A few privileges, indeed, were con- fined to those who had received knighthood ; but, upon the whole, there was a virtual equality of rights among all the commoners of England. What is most particular is, that the peerage itself imparts no privilege except to its actual possessor. In every other country the descendants of no- English Const. EQUALITY AMONG FREEMEN. 437 bles can not but themselves be noble, because their nobility is the immediate consequence of their birth. But though we commonly say that the blood of a peer is ennobled, yet this expression seems hardly accurate, and fitter for heralds and lawyers ; since, in truth, nothing confers nobility but the actual descent of a peerage. The sons of peers, as we well know, are commoners, and totally destitute of any legal right beyond a barren precedence. There is no part, perhaps, of our constitution so admirable as this equality of civil rights — this isonomia^ which the phi- losophers of ancient Greece only hoped to find in democratic- al government." From the beginning our law has been no respecter of persons. It screens not the gentleman of ancient lineage from the judgment of an ordinary jury, nor from ig- nominious punishment. It confers not, it never did confer, those unjust immunities from public burdens which the su- perior orders arrogated to themselves upon the Continent. Thus, while the privileges of our peers, as hereditary legis- lators of a free people, are incomparably more valuable and dignified in their nature, they are far less invidious in their exercise than those of any other nobility in Europe. It is, I am firmly persuaded, to this peculiar democratical character of the English monarchy that we are indebted for its long permanence, its regular improvement, and its present vigor. It is a singular, a providential circumstance, that, in an age when the gradual march of civilization and commerce was so little foreseen, our ancestors, deviating from the usages of neighboring countries, should, as if deliberately, have guard- ed against that expansive force which, in bursting through obstacles improvidently opposed, has scattered havoc over Europe. This tendency to civil equality in the English law may, I think, be ascribed to several concurrent causes. In the first place, the feudal institutions were far less military in England than upon the Continent. From the time of Henry II. the escuage or pecuniary commutation for personal service be- came almost universal. The armies of our kings were com- posed of hired troops, great part of whom certainly were knights and gentlemen, but who, serving for pay, and not by virtue of their birth or tenure, preserved nothing of the feud- al character. It was not, however, so much for the ends of ^^ n\;;#09 apxov, wpioTOv /ufv ovvofia KaWtarov f-'xf'i to^ovoniav, SayS the advOCate of democracy, in the discussion of forms of government which Herodotus (iii., 80) has put into the mouths of three Persian satraps, after the murder of Smerdis ; a scene conceived in the spirit of Corneille. 438 EQUALITY AMONG FREEMEN. Chap. VIII. Part 1L national as of private warfare, that the relation of lord and vassal was contrived. The right which every baron in France possessed, of redressing his own wrongs and those of his ten- ants by arms, rendered their connection strictly military. But we read very little of private wars in England. Notwith- standing some passages in Glanvil, which certainly appear to admit their legality, it is not easy to reconcile this witli the general tenor of our laws. They must always have been a breach of the king's peace, which our Saxon lawgivers were perpetually striving to preserve, and which the Conqueror and his sons more effectually maintained. Nor can we trace many instances of actual hostilities among the nobility of Ep- gland after the Conquest, except during such an anarchy as the reign of Stephen, or the minority of Henry III. The most prominent instance, perhaps, of what may be deemed a private war arose out of a contention between the earls of Glouces- ter and Hereford, in the reign of Edward I., during which acts of extraordinary violence were perpetrated ; but, far from its having passed for lawful, these powerful nobles were both committed to prison and paid heavy fines. Thus the tenure of knight-service was not, in effect, much more pecul- iarly connected with the profession of arms than that of soc- age. There was nothing in the former condition to generate that high self-estimation which military habits inspire. On the contrary, the burdens?)me incidents of tenure in chivalry rendered socage the more advantageous, though less honora- ble, of the two. In the next place, we must ascribe a good deal of effica- cy to the old Saxon principles that survived the conquest of William and infused themselves into our common law. A respectable class of free socagers, having, in general, full rights of alienating their lands, and holding them probably at a small certain rent from the lord of the manor, frequent- ly occur in Doomsday-book. Though, as I have already ob- served, these were derived from the superior and more for- tunate Anglo-Saxon ceorls, they were perfectly exempt from all marks of villenage both as to their persons and estates. Most have derived their name from the Saxon soc, which signifies a franchise, especially one of jurisdiction, and they undoubtedly were suitors to the court-baron of the lord, to whose soc, or right of justice, they belonged. They were con- sequently judges in civil causes, determined before the ma- nerial tribunal'. Such privileges set them greatly above the roturiers or censiers of France. They were all Englishmen, and their tenure strictly English ; whicli seems to have giveu Snglish Const. NOTES TO CHAPTEli VIII. 43d it credit in the eyes of our lawyers, when the name of English- man was affected even by those of Norman descent, and the laws of Edward the Confessor became the universal demand. Certainly Glanvil, and still more Bracton, treat the tenure in free soca^-e with great respect. And we have reason to think that this^lass of freeholders was very numerous even before the reign of Edward I. But, lastly, the change which took place in the constitu- tion of Parliament consummated tlie degradation, if we must use the word, of the lower nobility : I mean, not so much their attendance by representation instead of personal sum- mons, as their election by the whole body of freeholders, and their separation, along with citizens and burgesses, from the House of Peers. These changes will fall under consideration in the following chapter. NOTES TO CHAPTER VIII.— Part II. r. THE LEGISLATION OF THE GREAT COUNCIL. On this Council, the Commune Concilium Regni, see the remarks in the Report of Lords' Committee on the Dignity of a Peer (1819, 2d edition, 1829), with the criti- cisms upon it by Mr. Allen in the "Edin- burgh Review " (vol. xxxv.). The custom of the Anglo-Saxon kings had been to hold meetings of their witan very frequently, at least in the regular course of their government. And this was also the rule in the grand fiefs of France. The pomp of their court, the maintenance of loyal respect, the power of keeping a vigilant eye over the behavior of the chief men, were sufficient motives for the Nor- man kings to preserve this custom ; and the nobility of course saw in it the security of their privileges as well as the exhibition of their importance. Hence we find that William and his sons held their courts de •more, as a regular usage, three times a year, and generally at the great festivals, and in different parts of the kingdom. Here the public business was transacted. Aids were not regularly granted, and laws much more rarely enacted in them, yet they were still a national council. It is to be remarked that, with the ex- ception of the charters granted by William, Henry, and Stephen, which are in general rather like confirmations of existing privi- leges than novel enactments, though some clauses appear to be of the latter kind, lit- tle authentic evidence can be found of any legislative proceedings from the Conquest to the reign of Henry II. But the Consti- tutions of Clarendon, in 1164, are certainly a regular statute ; whoever might be the consenting parties, these famous pro- visions were enacted in the great council of the nation. This is equally true of the Assizes of Northampton, in 1178. But the earliest Anglo-Norman law which is ex- tant in a regular form is the assize made at Clarendon for the preservation of the peace, issued by the king early in 11G6. (This important document is given at length on p. 550.) In other instances the royal prerogative may perhaps have been held sufficient for innovations which, after the constitution became settled, would have required the sanction of the whole legislature. No act of Parliament is known to have been made under Richard I. ; but an ordinance, setting the assize of bread, in the fifth of John, is recited to be established " communi concilio baronum nostrorum." Whether these words afford sufficient ground for believing that the assize was set in a full council of the realm, may pos- sibly be doubtful. ir. DURATION OF DISTINCTION BETWEEN NORMAN AND SAXON. The passage in a contemporary writer, quoted on p. 421, being so unequivocal as it is, ought to have much weight in the question as to the duration of the distinc 440 NOTES TO CHAPTER VIII. tion between the Norman and English races. It is the favorite theory of M. Thierry, pushed to an extreme length both as to his own country and ours, that the conquering nation, Franks in one case, Normans in the other, remained down to a late period— a period indeed to which he assigns no conclusion — unmingled, or at least undistinguishable, constituting a double people of sovereigns and subjects, becoming a noble order in the state, haughty, oppressive, powerful, or, what is, in one word, most odious to a French ear in the nineteenth century, aristocratic. It may be worthy of consideration, whether the Norman blood were really blended with the native quite so soon as the reign of Henry II. ; that is, whether intermarriages in the superior classes of society had become so frequent as to efface the distinction. M. ThieiTy produces a few passages which seem to intimate its continuance. But these are too loosely worded to warrant much regnrd ; and he admits that aftf ^ the reign of Henry I. we have no proof of any hostile spirit on the part of the English towards the new dynasty ; and that some efforts were made to conciliate them by representing Henry II. as the descendant of the Saxon line. (Vol. ii., p. 374.) This, in fact, was true ; and it was still more important that the name of English was studiously assumed by our kings (ignorant though they might be, in M. Thierry's phrase, what was the vernacular word for that dignity), and that the Anglo-Normans are seldom, if ever, mentioned by that separate designa- tion. England was their dwelling-place, English their name, the English law their inheritance ; if this was not wholly the case before the separation of the mother country under John, and yet we do not perceive much limitation necessary, it can admit of no question afterwards. It is, nevertheless, manifest that the de- scendants of William's tenants in capite, and of others who seized on so large a portion of our fair country from the Chan- nel to the Tweed, formed the chief part of that aristocracy which secured the liber- ties of the Anglo-Saxon race, as well as their own, at Runnymede ; and which, sometimes as peers of the realm, some- times as well-born commoners, placed successive barriers against the exorbi- tances of power, and prepared the way for that expanded scheme of government which we call the English constitution. The names in Dugdale's Baronage and in his Summonitiones ad Parliamentura speak for themselves; in all the earlier periods, and perhaps almost through the , Plantagenet dynasty, we find a great pre- pouderauce of such as indicate a French source. New families sprang up by de- grees, and are now sometimes among our chief nobility ; but in general, if we find any at this day who have tolerable preten- sions to deduce their lineage from the Conquest, they are of Norman descent ; the very few Saxon families that may re- main with an authentic pedigree in the male line are seldom found in the wealth- ier class of gentry. And on this account I must confess that M. Thierry's opinion of a long-continued distinction of races has more semblance of truth as to this kingdom than can be pretended as to France, without a blind sacrifice of un- deniable facts at the altar of plebeian ma- lignity. III. STATUTES OF WILLIAM THE CON- QUEROR. Professor Stubbs remarks ("Select Charters," etc., p. 80) : "The following short record, which is found in this, its earl'est form, in the ' Textus Roffeusis,' a manuscript written during the reign of Henry I., contains what is probably the sum and substance of all the legal enact- ments actually made by the Conqueror, independent of his confirmations of the earlier laws ; they are probably the alter- ations or emendations referred to by Hen- ry I. in his charter, as made by his father in the laws of King Edward :" Hie intimatur quid Willelmua Rex Anglo- rum cum principibus suis con^tituit post Conquisitionem Angliae. 1. In primis quod super omnia unum vellet Deum per totum regnum suum ve- nerari, unam fidem Christi semper iuvio- latam castodiri, pacem et securitatem in- ter Anglos et Normannos servari. 2. Statuinius etiam ut omnis liber homo foedere et sacramento aflirmet, quod infra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fide- litate cum eo servare, et ante eum contra inimicos defendere. 3. Volo autem ut oranes homines quos mecum adduxi aut post me venerunt siut in pace mea et quiete. Et si quis de illis occisus fuerit, dominus ejus habeat infra quinque dies homicidam ejus si potuerit; sin autem, incipiat persolvere mihi xlvi. marcas argenti quamdiu substantia illius domini perdnraverit. Ubi vero substantia defecerit, totus hundredus in quo occisio facta est communiter persolvat quod re- manet. 4. Et omnis Francigena qui tempore re- gis Edwardi propinqui mei fuit in Anglia particeps consuetudinum Anglorura, quod y,j^(ii.wn Const. THE ENGLISH CONSTITUTION. 441 ipsi diciint ouhlote et auscote, persolva- tur secuudum legem Auglorum. Hoc de- cretum sancitum est in civitate Claudia. 5. Iiiterdiciraus etiam ut nulla viva pe- cuuia vendatur aut ematur nisi infra civi- tates, et hoc ante tres fldeles testes ; uec aliquam rem velustam sine fidejussore et waranto. Quod si aliter fecerit, solvat et persolvat, et postea forisfacturam. 6. Decretum est etiam ibi, ut, si Franci- gena appellaverit Anglum de perjurio aut murdro, furto, homicidio, ran, quod Angli dicunt apertam rapiuam quae uegari uon potest, Anglus se defendat per quod me- lius voluerit, aut judicio ferri aut duello. Si amem Anglus infirmus fuerit, inveniat alinra qui pro eo faciat. Si quis eorum victus fuerit, emendet xl. solidos regi. Si Anglus Francigeuam appellaverit et pro- bare noluerit judicio aut duello, volo ta- men Francigeuam purgare se sacramento uon fractu. 7. Hoc quoque praecipio et volo, ut om- nes habeaut et teneant legem Edwardi re- gis in terris et in omnibus rel)us, adanctis iis quae constitui ad utilitatem populi An- glorum. 8. Omnis homo qui voluerit se tenei'/ pro libero sit in plegio, ut plegius teneai et habeat ilium ad justitiam si quid offen- derit. Et si quisquam talium evaserit, vi- deant plegii nt simpliciter solvaut quod calumniatum est, et purgent se quia in evaso nullam fraudem uoverint. Reqni- ratur hundredus et comitatus, sicut ante- cessores nostri statuerunt. Et qui juste venire deberent et venire noluerint, semel suramoneantur ; et si secundo venire nolu- erint, accipiatur unus bos, et suramonean- tur tertio. Et si non tertio venerint, ac- cipiatur alius bos: quarta autem vice si non venerint, reddatur de rebus hominis illius qui venire noluerit quod calumnia- tum est, quod dicitur ceapgeld ; et insuper forisfactura regis. 9. Ego prohibeo ut nullns vendat homi- nem extra patriam super plenam forisfac- turam meam. 10. Interdico etiam ne quis occidatur aut snspendatur pro aliqua culpa, sed eru- antur oculi, et testiculi abscidantur. Et hoc praeceptum uon sit violatum super forisfacturam meam plenam. — ("MS. Bodl. Rawlinson," C. 641.) PART III. THE ENGLISH CONSTITUTION. I \ Reign of Edward 1. § 2. Confirmatio Chartarum. § 3. Constitution of Parlia- ment. 5 4. The Spiritual Peers. § 5. The Temporal Peers. Tenure by Barony. Difficulty of the Subject. § 6. Origin of Representation of the Commons. Knights of Shires. Their Existence doubtfully traced through the Reign of Henry IIL 3 7. State of English Towns at the Conquest and afterwards. § 8. Their Progress. 5 9. Representatives from them summoned to Parliament by Earl of Leicester. Improbability of an earlier Origin. § 10. Parliaments under Edward L § 11. Separation of Knights and Burgesses from the Peers. § 12. Edward II. § 13. Gradual Progress of the Authority of Parliament traced through the Reigns of Edward III. § 14. Of Richard II. § 15. Of Henry IV. § 16. Authority of the House of Commons under the House of Lancaster. (1.) Right of Taxation. (2.) Appropriation of Supplies. (3.) Redrcs? of Grievances. (4.) Legislative Rights. (5.) Controlling the Royal Expenditure. (6.) Impeachment of Ministers. (7.) Privilege of Parliament. § 17. Election of Knights and Burgesses. § 18. House of Lords. Baronies of Tenure. By Writ. Nature of the latter discussed. § 19. Creation of Peers by Act of Parliament. § 20. And by Patent. § 21. Summons of Clergy to Parliament. § 22. King's Ordinary Council. Its judicial and other Power. § 23. Character of the Plantagenet Govern^nent. Prerogative. Its Ex> cesses. § 24. Erroneous Views corrected. Testimony of Sir John Fortescue to the Freedom of the Constitution. § 25. Causes of the superior Liberty of England considered. § 26. State of Society in England. § 27. Habits of Rapine. § 28. Villenage. Its gradual Extinction. § 29. Popular Outbreaks. 5 30. Manumis- sion of Villeins. § 31. Latter Years of Henry VI. § 32. Regencies. Instances of them enumerated. 5 33. Pretensions of the House of York, and War of the Roses. § 34. Edward IV. § 35. Conclusion. § 1. Though the undisputed accession of a prince like Edward I. to the throne of his father does not seem so con- 19* 442 CONFIRMATION OF CHARTERS. Chap. VIII. Part HI. venient a resting-place in history as one of those revolutions which interrupt the natural chain of events, yet the changes wrought during his reign make it properly an epoch in the progress of these inquiries. And, indeed, as ours is emphat- ically styled a government by king, lords, and commons, we can not, perhaps, in strictness, carry it farther back than the admission of the latter into Parliament ; so that if the con- stant representation of the Commons is to be referred to the age of Edward I., it will be nearer the truth to date the En- glish constitution from that than from any earlier era. § 2. The various statutes affecting the law of property and administration of justice, which have caused Edward I. to be named, rather hyperbolically, the English Justinian, bear no immediate relation to our present inquiries. In a constitu- tional point of view, the principal object is that statute enti- tled the Confirmation of the Charters, which was very reluc- tantly conceded by the king, in the twenty-fifth year of his reign. I do not know that England has ever produced any patriots to whose memory she ow^es more gratitude than Humphrey Bohun, earl of Hereford and Essex, and Roger Bigod, earl of Norfolk. In the Great Charter the base spirit and deserted condition of John take off something from the glory of the triumph, though they enhance the moderation of those who pressed no farther upon an abject tyrant. But to withstand the measures of Edward, a prince unequalled by any who had reigned in England since the Conqueror for prudence, valor, and success, required a far more intrepid patriotism. Their provocations, if less outrageous than those received from John, were such as evidently manifested a dis- position in Edward to reign without any control — a constant refusal to confirm the charters, which in that age were hardly deemed to bind the king without his actual consent ; heavy impositions, especially one on the export of w^ool, and other unwarrantable demands. He had acted with such unmeas- ured violence towards the clergy, on account of their refusal of further subsidies, that, although the ill-judged policy of that class kept their interests too distinct from those of the people, it was natural for all to be alarmed at the precedent of despotism.^ These encroachments made resistance justi- fiable, and the circumstances of Edward made it prudent. His ambition, luckily for the people, had involved him in for- ^ The fullest account we possess of these domestic transactions from 1294 to 1298 is in Walter Hemingford, one of the historians edited by Hearne, pp. 52-108. They have been vilely perverted by Carte, but extremely well told by Hume, the first writer who had the merit of exposing the character of Edward I. I English Const. CONSTITUTION OF PARLIAMENT. 443 eign warfare, from which he could not recede without disap- pointment and dishonor. Thus was wrested from him that famous statute, inadequately denominated the Confirma* tion of the Charters, because it added another pillar to our constitution, not less important than the Great Charter itself. It was enacted by the 25 Edward I. that the Charter of Liberties, and that of the Forest, besides being explicitly confirmed, should be sent to all sheriffs, justices in eyre, and other magistrates throughout the realm, in order to their publication before the people ; that copies of them should be kept in cathedral churches, and publicly read twice in the year, accompanied by a solemn sentence of excommunication against all who should infringe them ; that any judgment given contrary to these charters should be invalid, and holden for nought. This authentic promulgation, those awful sanc- tions of the Great Charter, would alone render the statute of which we are speaking illustrious. But it went a great deal farther. Hitherto the king's prerogative of levying money, by name of tallage, or prize, from his towns and tenants in demesne, had passed unquestioned. Some impositions, that especially on the export of wool, affected all his subjects. It was now the moment to enfranchise the people, and give that security to private property which Magna Charta had given to personal liberty. By the 5th and 6th sections of this stat- ute, " the aids, tasks, and prizes " before taken are renounced as precedents ; and the king " grants for him and his heirs, as well as to archbishops, bishops, abbots, priors, and other folk of Holy Church, as also to earls, barons, and to all common- alty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor prizes, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prizes due and accustomed." The toll upon wool, so far as levied by the king's mere prerogative, is expressly released by the Yth section.' § 3. We come now to a part of our subject exceedingly important, but more intricate and controverted than any oth- er, the Constitution of Parliament, I have taken no notice of this in the last section, in order to present uninterruptedly 3 The Conflrmatio Chartarnm is properly denominated a statute, and always printed as such ; but in form, like Magna Charta, it is a charter, or letters patent, proceeding from the crown, without even reciting the consent of the realm. And its "teste " is at Ghent, 2 Nov., 1297— Edward having engaged, conjointly with the Count of Flan- ders, in a war with Philip the Fair. But a Parliament had been held at London, when the barons insisted on these concessions. The circumstances are not whollji unlike those of Magna Charta. The Conflrmatio Chartarum is printed on p. 557. 444 TEMPORAL PEERS. Chap. VIll. Part III to the reader the gradual progress of our legislature down to its complete establishment under the Edwards. § 4. The Spiritual Peers. — One constituent branch of the great councils held by William the Conqueror and all his successors was composed of the bishops and the heads of re- ligious houses holding their temporalities immediately of the crown. It has been frequently maintained that these spirit- ual lords sat in Parliament only by virtue of their baronial tenure. And certainly they did all hold baronies, which, ac- cording to the analogy of lay peerages, were sufficient to give them such a share in the legislature. Nevertheless, I think that this is rather too contracted a view of the rights of the English hierarchy, and, indeed, by implication, of the peerage ; for a great council of advice and assent in matters of legis- lation, or national importance, was essential to all the North- ern governments. And all of them, except, perhaps, the Lom- bards, invited the superior ecclesiastics to their councils ; not upon any feudal notions, which at that time had hardly be- gun to prevail, but chiefly as representatives of the Church and of religion itself; next, as more learned and enlightened councillors than the lay nobility ; and in some degree, no doubt, as rich proprietors of land. It will be remembered, also, that ecclesiastical and temporal affairs w^ere originally decided in the same assemblies, both upon the Continent and in England. The Norman Conquest, which destroyed the Anglo-Saxon nobility, and substituted a new race in their stead, could not affect the immortality of Church possessions. The bishops of William's age were entitled to sit in his coun- cils by the general custom of Europe, and by the common law of England, which the Conquest did not overturn. § 5. The Temporal Peers. — Next to these spiritual lords are the earls and barons, or lay peerage of England. The former dignity was, perhaps, not so merely official as in the Saxon times, although the earl was entitled to the third pen- ny of all emoluments arising from the administration of jus- tice in the County Courts, and might, perhaps, command the militia of his county, when it was called forth. Every earl was also a baron, and held an honor or barony of the crown, for which he paid a higher relief than an ordinary baron, probably on account of the profits of his earldom. It is universally agreed that the only baronies known for two centuries after the Conquest were incident to the tenure of land held immediately from the crown. There are, how- ever, material difficulties in the way of rightly understanding their nature which require careful examination. All tenants- b English Const. PARLIAMENTARY REPRESENTATION. 445 in-chief of the crown, by knight-service, were summoned to the king's council, and were peers of his court. To all of these the term Baron was originally applied, a word of very wide significance.' But in course of time a distinction arose between the Greater Barons and Lesser Barons^ the former holding their lands by barony {per baroniam)^ and the latter simply by knight-service ; and gradually the name of baron was confined to the former class. It is difficult to determine the characteristic differences of the two, or the way in which the distinction arose; but it would seem that the Greater Barons held, under one title, a number of knight's fees — that is, of estates, from each of which the feudal service of a knight was due. There is, however, complete proof of the separation between the two classes of barons before the reign of John, and the term baron came to be applied exclusively to the greater barons. Tenants-in-chief are enumerated dis- tinctly from earls and barons in the charter of Henry I. (See p. 548.) Knights, as well as barons, are named as present in the Parliament of Northampton in 1165, in that held at the same town in 1176, and upon other occasions. We learn from the Great Charter that the greater barons were summoned to the king's council by particular writs; the other tenants-in-chief by one general summons through the sheriffs of their several counties, w^henever an aid or scutage was required.* The consent of all the tenants-in-chief was required for taxation ; and there appears sufficient evidence that they were occasionally present for other important pur- poses. It is, however, very probable that writs of summons were actually addressed only to those of distinguished name, to those resident near the place of meeting, or to the serv- ants and favorites of the crown. This seems to be deduci- ble from the words in the Great Charter, which limit the king's engagement to summon all tenants-in-chief, through the sheriff, to the case of his requiring an aid or scutage, and still more from the withdrawing of this promise in the first year of Henry III. The privilege of attending on such occa- sions, though legally general, may never have been generally exercised. The result of the whole inquiry into the constitution of 3 Tlie word haro originally meant only a man, and is not unfreqnently applied to common freeholders, as in the phrase of conrt-barou. It was used too for the magis- trates or chief men of cities, as it is still for the judges ct tibe Exchequer, and the representatives of the Cinque Ports. *"Faciemus summoneri archiepiscopos, episcopos, ahbates, comites et raajorea barones regni sigillatim per literas nostras. Et praeterea faciemus summoneri in gGnerali per vicecomites et ballivos nostros oranes alios qui in capite tenent d* notls." 446 ORIGIN AND PROGRESS OF Chap. VIII. Part III Parliament, down to the reign of John, seems to be — 1. That the Norman kings explicitly renounced all prerogative of levying pioney on the immediate military tenants of the crown, without their consent given in a great council of the realm ; this immunity extending, also, to their sub-tenants and dependents. 2. That all these tenants-in-chief had a con- stitutional right to attend, and ought to be summoned; but whether they could attend without a summons is not mani- fest. 3. That the summons was usually directed to the high- er barons, and to such of a second class as the king pleased, many being omitted for difterent reasons, though all had a right to it. 4. That on occasions when money was not to be demanded, but alterations made in the law, some of these second barons, or tenants-in-chief, were at least occasionally summoned, but whether by strict right or usage does not ful- ly appear. 5. That the irregularity of passing many of them over when councils were held for the purpose of levying money, led to the provision in the Great Charter of John by which the king promises that they shall all be summoned through the sheriff on such occasions ; but the promise does not extend to any other subject of parliamentary deliber- ation. 6. That even this concession, though but the recog- nition of a known right, appeared so dangerous to some in the government that it was withdrawn in the first charter of Henry III. But this attendance in Parliament of inferior tenants-in- chief, some of them too poor to have received knighthood, grew insupportably vexatious to themselves, and was not well liked by the king. He knew them to be dependent upon the barons, and dreaded the confluence of a multitude who assumed the privilege of coming in arms to the appointed place. So inconvenient and mischievous a scheme could not long subsist among an advancing people, and fortunately the true remedy was discovered with little difficiilty. § 6. The principle of representation, in its widest sense, can hardly be unknown to any government not purely dem- ocratical. The system of ecclesiastical councils, considered as organs of the Church, rested upon the principle of a virtu- al or an express representation, and had a tendency to ren- der its application to national assemblies more familiar. We find nothing that can arrest our attention, in search- ing out the origin of county representation, till we come to a writ in the fifteenth year of John, directed to all the sher- iffs in the following terms: "Rex Vicecomiti N., salutem. Prsecipimus tibi quod omnes milites ballivae tuae qui sum- English Const. PARLIAMENTARY REPRESENTATION. 447 moniti fuerunt esse apud Oxoniam ad Nos a die Omnium Sanctorum in quindecim dies venire facias cum armis suis: corpora vero baronum sine armis singulariter, et qiiat/iior dis- cretos milites de comitatu tuo, illuc venire facias, ad eundem terminum, ad loquendum nobiscum de negotiis regni nostri." Still it remains problematical whether these four knights (the only clause which concerns our purpose) were to be elect- ed by the county or returned in the nature of a jury, at the discretion of the sheriff. Since there is no sufficient proof whereon to decide, we can only say with hesitation that there ma]/ have been an instance of county representation in the fifteenth year of John. We may next advert to a practice, of which there is very clear proof in the reign of Henry III. Subsidies granted in Parliament were assessed, not as in former times by the jus- tices upon their circuits, but by knights freely chosen in the County Court. This appears by two writs, one of the fourth and one of the ninth year of Henry IH. At a subsequent period, by a provision of the Oxford Parliament in 1258, every county elected four knights to inquire into grievances, and deliver their inquisition into Parliament. The next writ now extant, that wears the appearance of parliamentary representation, is in the thirty-eighth of Hen- ry HI. This, after reciting that the earls, barons, and other great men (caeteri magnates) were to meet at London, three weeks after Easter, with horses and arms, for the purpose of sailing into Gascony, requires the sheriff to compel all within his jurisdiction, who hold twenty pounds a year of the king in chief, or of those in ward of the king, to appear at the same time and place. And that, besides those mentioned, he shall cause to come before the king's council at Westminster, on the fifteenth day after Easter, two good and discreet knights of his county, whom the men of the county shall have chosen for this purpose, in the stead of all and each of them, to con- sider, along with the knights of other counties, what aid they will grant the king in such an emergency. In the principle of election, and in the object of the assembly, which was to grant money, this certainly resembles a summons to Parlia- ment. There are, indeed, anomalies sufficiently remarkable upon the face of the writ which distinguish this meeting from a regular Parliament. But when the scheme of obtaining money from the commons of shires through the consent of their representatives had once been entertained, it was easily applicable to more formal councils of the nation. A few years later there appears another writ analogous to 448 PROGRESS OF TOWNS. Chap. VIII. Part III. a summons. During the contest between Henry III. and the confederate barons in 1261, they presumed to call a sort of Parliament, summoning three knights out of every county, " secum tractaturos super communibus negotiis regni." This we learn only by an opposite writ issued by the king, direct- ing the sheriff to enjoin these knights who had been con- vened by the earls of Leicester and Gloucester to their meet- ing at St. Alban's, that they should repair instead to the king at Windsor, and to no other place, " nobiscum super prae- raissis colloquium habituros." It is not absolutely certain that these knights were elected by their respective counties. But even if they were so, this assembly has much less the appearance of a Parliament than that in the thirty-eighth of Henry III. At length, in the year 1265, the forty-ninth of Henry HI., while he was a captive in the hands of Simon de Montfort, writs were issued in his name to all the sheriffs, directing them to return two knights for the body of their county, with two citizens or burgesses for every city and borough contained within it. This, therefore, is the epoch at which the representation of the commons becomes indisputably manifest ; even should we reject altogether the more equiv- ocal instances of it which have just been enumerated. Whether the knights were still elected by only the king's military tenants, to spare them the inconvenience of personal attendance, or by the freeholders in general, is a difficult question. The legal antiquaries are divided. Prynne does not seem to have doubted but that the knights were " elect- ed in the full county, by and for the whole county," without respect to the tenure of the freeholders. But Brady and Carte are of a different opinion. Yet their disposition to narrow the basis of the constitution is so strong, that it creates a sort of prejudice against their authority. And if I might offer an opinion on so obscure a subject, I should be much inclined to believe that, even from the reign of Henry HI., the election of knights by all freeholders in the County Court, without regard to tenure, was little, if at all, different from what it is at present.^ § 7. The progress of towns in several Continental countries, from a condition bordering upon servitude to wealth and lib- erty, has more than once attracted our attention in other parts of the present work. Their growth in England, both from general causes and imitative policy, was very shnilar » This qnestion has been discnssed with much ability iu tho " Edinburgh Keview," vol. xxvi., p. 341. English Const. PROGRESS OF TOWNS. 449 and nearly coincident. Some of the greater towns, and Lon- don in particular, enjoyed the right of electing magistrates with a certain jurisdiction before the Conquest/ But at the time of the Conquest we find the burgesses or inhabitants of towns living under the superiority or protection of the king, or of some other lord, to whom they paid annual rents, and determinate dues or customs. Besides these regular pay- ments, which were in general not heavy, they were liable to tallages at the discretion of their lords. One of the earliest and most important changes in the condition of the burgesses was the conversion of their indi- vidual tributes into a perpetual rent from the whole bor- ough. The town was then said to be affirmed, or let in fee- farm, to the burgesses and their successors forever. Previ- ously to such a grant the lord held the town in his demesne, and was the legal proprietor of the soil and tenements ; though I by no means apprehend that the burgesses were destitute of a certain estate in their possessions. But of a town in fee-farm he only kept the superiority and the inherit- ance of the annual rent, which he might recover by distress. The burgesses held their lands by burgage-tenure, nearly analogous to, or rather a species of, free socage. Perhaps before the grant they might correspond to modern copy- holders. It is of some importance to observe that the lord, by such a grant of the town in fee-farm, whatever we may think of its previous condition, divested himself of his prop- erty, or lucrative dominion over the soil, in return for the perpetual rent ; so that tallages subsequently set at his own discretion upon the inhabitants, however common, can hard- ly be considered as a just exercise of the rights of proprie- torship. Under such a system of arbitrary taxation, however, it was evident to the most selfish tyrant that the wealth of his burgesses was his wealth, and their prosperity his interest ; much more were liberal and sagacious monarchs, like Henry II., inclined to encourage them by privileges. From the time of William Rufus there was no reign in which charters were not granted to diiferent towns of exemption from tolls on rivers and at markets — those lighter manacles of feudal tyranny ; or of commercial franchises ; or of immunity from the ordinary jurisdictions ; or, lastly, of internal self-regula- tion. Thus the original charter of Henry I. to the city of London concedes to the citizens, in addition to valuable commercial and fiscal immunities, the rio;ht of choosinsf theii: * On the Municipal Rights of London, see Note I. 450 CHARTERS OF INCORPORATION. Chap. VIII. Part III. own sheriff and justice, to the exclusion of every foreign jurisdiction. These grants, however, were not in general so extensive till the reign of John. Before that time the in- terior arrangement of towns had received a new organiza- tion. In the Saxon period we find voluntary associations, sometimes religious, sometimes secular; in some cases for mutual defense against injury, in others for mutual relief in poverty. These were called guilds, from the Saxon verb gUdan^ to pay or contribute, and exhibited the natural, if not the legal, character of corporations. At the time of the Conquest, such voluntary incorporations of the burgesses possessed in some towns either landed property of their own, or rights of superiority over that of others. An in- ternal elective government seems to have been required for the administration of a common revenue, and of other busi- ness incident to their association. They became more nu- merous and more peculiarly commercial after that era, as well from the increase of trade as through imitation of simi- lar fraternities existing in many towns of France. The spirit of monopoly gave strength to those institutions, each class of traders forming itself into a body, in order to exclude competition. Thus were established the companies in cor- porate towns, that of the Weavers in London being perhaps the earliest; and these were successively consolidated and sanctioned by charters from the crown. In towns not large enough to admit of distinct companies, one merchant guild comprehended the traders in general, or the chief of them ; and this, from the reign of Henry II. downward, became the subject of incorporating charters. The management of their internal concerns, previously to any incorporation, fell naturally enough into a sort of oligarchy, which the tenor of the charter generally preserved. Though the immunities might be very extensive, the powers were more or less re- strained to a small number. Except in a few places, the right of choosing magistrates was first given by King John ; and certainly must rather be ascribed to his poverty than to any enlarged policy, of which he was utterly in- capable. § 8. From the middle of the twelfth century to that of the thirteenth, the traders of England became more and more prosperous. The towns on the southern coast exported tin and other metals in exchange for the wines of France ; those on the eastern sent corn to Norway ; the Cinque Ports bar- tered wool against the stuffs of Flanders. Though bearing no comparison with the cities of Italy or the Empire, they English Const. FKOSPERITY OF ENGLISH TOWNS. 451 increased sufficiently to acquire importance at home. Ti^at vigorous prerogative of the Norman monarchs which kept down the feudal aristocracy compensated for whatever in- feriority there might be in the population and defensible strength of the English towns, compared with those on the Continent. They had to fear no petty oppressors — no local hostility; and, if they could satisfy the rapacity of the crown, were secure from all other grievances. London, far above the rest — our ancient and noble capital — might, even in those early times, be justly termed a member of the political sys- tem. This great city, so admirably situated, was rich and populous long before the Conquest. Bede, at the beginning of the eighth century, speaks of London as a great market, which traders frequented by land and sea. It paid £15,000 out of £82,000 raised by Canute upon the kingdom. If we believe Roger Hoveden, the citizens of London, on the death of Ethelred II., joined with part of the nobility in raising Ed- mund Ironside to the throne ; Harold I., according to better authority — the Saxon Chronicle and William of Malmsbury — was elected by their concurrence. Descending to later his- tory, we find them active in the civil war of Stephen and Ma- tilda. The famous Bishop of Winchester tells the Londoners that they are almost accounted as noblemen on account of' the greatness of their city — into the community of which it appears that some barons had been received. Indeed, the citizens themselves, or at least the principal of them, were called barons. It was certainly by far the greatest city in England. There have been different estimates of its popu- lation, some of which are extravagant; but I think it could hardly have contained less than thirty or forty thousand souls within its walls, and the suburbs were very populous. These numbers, the enjoyment of privileges, and the consciousness of strength, infused a free and even a mutinous spirit into their conduct. The Londoners were always on the barons' side in their contests with the crown. They bore a part in deposing William Longchamp, the chancellor and justiciary of Richard I. They were distinguished in the great struggle for Magna Charta — the privileges of their city are express- ly confirmed in it, and the Mayor of London was one of the twenty-five barons to whom the maintenance of its provisions was delegated. In the subsequent reign the citizens of Lon- don were regarded with much dislike and jealousy by the court, and sometimes suffered pretty severely at its hands, especially after the battle of Evesham. Notwithstanding the influence of London in these seasons 452 DEPUTIES FROM BOROUGHS. Chai-. VIII. Part lit of disturbance, we do not perceive that it was distinguished from the most insignificant town by greater participation in national councils. Rich, powerful, honorable, and high-spirit- ed as its citizens had become, it was very long before they found a regular place in Parliament. The prerogative of im- posing tallages at pleasure, unsparingly exercised by Henry III., even over Londonj left the crown no inducement to sum- mon the inhabitants of cities and boroughs. As these, in- deed, were daily growing more considerable, they were cer- tain, in a monarchy so limited as that of England became in the thirteenth century, of attaining, sooner or later, this emi- nent privilege. Although, therefore, the object of Simon de Montfort in calling them to his Parliament, after the battle of Lewes, was merely to strengthen his own faction, which prevailed among the commonalty, yet their permanent admis- sion into the Legislature may be ascribed to a more general cause ; for otherwise it is not easy to see why the innovation of an usurper should have been drawn into precedent, though it might, perhaps, accelerate what the course of affairs was gradually preparing. § 9. It is w^ell known that the earliest writs of summons to cities and boroughs, of which we can prove the existence, are those of Simon de Montfort, earl of Leicester, bearing date 12th of December, 1264, in the forty-ninth year of Hen- ry III. (See page 558.) After a long controversy, almost all judicious inquirers seem to have acquiesced in admitting this origin of popular representation. The argument may be very concisely stated : we find, from innumerable records, that the king imposed tallages upon his demesne towns at discre- tion. No public instrument, previous to. the forty-ninth of Henry III., names the citizens and burgesses as constituent parts of Parliament, though prelates, barons, knights, and sometimes freeholders, are enumerated ; while, since the un- doubted admission of the Commons, they are almost invari- ably mentioned. No historian speaks of representatives ap- pearing for the people, or uses the word citizen or burgess in describing those present in Parliament. Such convincing, though negative, evidence is not to be invalidated by some general and ambiguous phrases, whether in writs and records or in historians. Those monkish annalists are poor authori- ties upon any point where their language is to be delicately measured. But it is hardly possible that, writing circum- stantially, as Roger de Hoveden and Matthew Paris some- times did, concerning proceedings in Parliament, they could have failed to mention the Commons in unequivocal expres* English Const. DEPUTIES FROM BOROUGHS. 453 sions, if any representatives from that order had actually formed a part of the assembly. § 10. There is no great difficulty in answering the question why the deputies of boroughs were finally and permanently ingrafted upon Parliament by Edward I. The Government was becoming constantly more attentive to the wealth that commerce brought into the kingdom, and the towns were becoming more flourishing and more independent. But chiefly there was a much stronger spirit of general liberty, and a greater discontent at violent acts of prerogative from the era of Magna Charta ; after which authentic recognition of free principles, many acts which had seemed before but the regular exercise of authority were looked upon as infringe- ments of the subject's right. Among these, the custom of setting tallages at discretion would naturally appear the most intolerable ; and men were unwilling to remember that the burgesses who paid them were indebted for the rest of their possessions to the bounty of the crown. In Edward I.'s reign, even before the great act of Confirmation of the Charters had rendered arbitrary impositions absolutely un- constitutional, they might, perhaps, excite louder murmurs than a discreet administration would risk. Though the ne- cessities of the king, therefore, and his imperious temper often led him to this course, it was a more prudent counsel to try the willingness of his people before he forced their reluctance. And the success of his innovation rendered it worth repeti- tion. Whether it were from the complacency of the Com- mons at being thus admitted among the peers of the realm, or from a persuasion that the king would take their money if they refused it, or from inability to withstand the plausible reasons of his ministers, or from the private influence to which the leaders of every popular assembly have been accessible, much more was granted in subsidies after the representation of the towns commenced than had ever been extorted in tallages. To grant money was, therefore, the main object of their meeting ; and if the exigencies of the administration could have been relieved without subsidies, the citizens and bur- gesses might still have sat at home and obeyed the laws which a council of prelates and barons enacted for their govern- ment. But it is a diflicult question whether the king and the peers designed to make room for them, as it were, in legisla- tion; and whether the power of the purse drew after it im- mediately, or only by degrees, those indispensable rights of consenting to laws which they now possess. There are no 454 DIVISION OF PABLIAMENT Chap. VIII. Part IIL sufficient means of solving this doubt during the reign of Edward I. f but it must be highly questionable whether the Commons, who had so recently taken their place in Parlia- ment, gave any thing more than a constructive assent to the laws enacted during this reign. They are not even named in the preamble of any statute till the last year of Edward I. Upon more than one occasion the sheriffs were directed to return the same members who had sat in the last Parliament, unless prevented by death or infirmity. § 11. It has been a very prevailing opinion that Parliament was not divided into two houses at the first admission of the Commons. If by this is only meant that the Commons did not occupy a separate chamber till some time in the reign of Edward III., the proposition, true or false, will be of little importance. They may have sat at the bottom of Westmin- ster Hall, while the Lords occupied the upper end. But that they were ever intermingled in voting appears inconsistent with likelihood and authority. The usual object of calling a Parliament was to impose taxes; and these, for many years after the introduction of the Commons, were laid in different proportions upon the three estates of the realm. Thus, in 23 Edward I., the earls, barons, and knights gave the king an eleventh, the clergy a tenth ; while he obtained a seventh from the citizens and burgesses: in the twenty-fourth of the same king the two former of these orders gave a twelfth, the last an eighth : in the thirty-third year a thirtieth was tne grant of the barons and knights and of the clergy, a twen- tieth of the cities and towns. In the first of Edward IT. the counties paid a twentieth, the towns a fifteenth. In the sixth of Edward III. the rates were a fifteenth and a tenth. These distinct grants imply distinct grantors; for it is not to be imagined that the Commons intermeddled in those affecting the Lords, or the Lords in those of the Commons. In fact, however, there is abundant proof of their separate existence ' The writ in 22 Edward I. directs two knights to be chosen "cum plenfi potestate pro se et totii commnnitate comitatus praedicti ad consulendum et conpentienduir, pro se et communitate iHa, his qua; comites, barones, et proceres praedicti concorditei ordinaveriut in praemissis." That of the next year runs, "ad faciendum tunc quo(} dc comrauni consilio ordinabitur in praemissis." The same words are inserted in the writ of 26 Edward I. In that of 28 Edward I. the knights are directed to be sent " cum plena potestate audiendi et faciendi quae ibidem ordinari coutigerint pro communl commodo." Several others of the same reign have the words " ad faciendum," The diflSculty is to pronounce whether this term is to be interpreted in the sense of per- furming or of enacting; whether the representatives of the Commons were merely to learn from the Lords what was to be done, or to bear their part in advising upon it. The earliest writ, that of 22 Edward I., certainly implies the latter ; and I do not know that any of the rest are conclusive to the contrary. In the reign of Edward If. the words "ad consentiendum" alone, or "ad faciendum et conseutiendara," be- gin ; and from that of Edipard III. this form has been constantly used. English Const. INTO TWO HOUSES. 455 long before the seventeenth of Edward III., which is the epoch assigned by Carte, or even the sixth of that king, which has been chosen by some other writers. Thus the Commons sat at Acton Burnell in the eleventh of Edward L, while the upper house was at Shrewsbury. In the eighth of Edward II. " the Commons of England complain to the king and his council," etc. These must surely have been the Commons assembled in Parliament, for who else could thus have enti- tled themselves ? In the nineteenth of the same king we find several petitions, evidently proceeding from the body of the Commons in Parliament, and complaining of public griev- ances. As the knights of shires correspond to the lower nobility of other feudal countries, we have less cause to be surprised that they belonged originally to the same branch of Parlia- ment as the barons, than at their subsequent intermixture with men so inferior in station as the citizens and burgesses. It is by no means easy to define the point of time when this distribution was settled ; but I tliink it may be inferred from the rolls of Parliament that the houses were divided as they are at present in the eighth, ninth, and nineteenth years of Edward II. This appears, however, beyond doubt in the first of Edward III. Yet in the sixth of the same prince, though the knights and burgesses are expressly mentioned to have consulted together, the former taxed themselves in a smaller rate of subsidy than the latter. § 12. The proper business of the House of Commons was to petition for redress of grievances, as much as to provide for the necessities of the crown. In the prudent fiction of English law no wrong is supposed to proceed from the source of right. The throne is fixed upon a pinnacle which perpetual beams of truth and justice irradiate, though cor- ruption and partiality may occupy the middle region and cast their chill shade upon all below. In his high court of Parliament a king of England was to learn where injustice had been unpunished and Avhere right had been delayed. The common courts of law, if they were sufficiently honest, were not sufficiently strong, to redress the subject's injuries where the officers of the crown or the nobles interfered. To Parliament he looked as the great remedial court for relief of private as well as public grievances. For this cause it was ordained in the fifth of Edward II. that the king should hold a Parliament once, or, if necessary, twice every year; " that the pleas which have been thus delayed, and those where the justices have differed, may be brought to a close." 466 EDWARD III. Chap. VIII. Part III. And a short act of 4 Edward III., which was not very strict- ly regarded, provides that a Parliament shall be held'" every year, or oftener, if need be." By what persons, and under wliat limitations, this jurisdiction in Parliament was exer- cised will come under our future consideration. The efficacy of a king's personal character in so imperfect a state of government was never more strongly exemplified that in the two first Edwards. The father, a little before his death, had humbled his boldest opponents among the nobil- ity ; and as for the Commons, so far from claiming a right of remonstrating, we have seen cause to doubt wlhether they were accounted effectual members of the legislature for any purposes but taxation. But in the very second year of the son's reign they granted the twenty-fifth penny of their goods, " upon this condition, that the king should take ad- vice and grant redress upon certain articles wherein they are aggrieved." These were answered at the ensuing Parlia- ment, and are entered with the king's respective promises of redress upon the roll. It will be w^orth while to extract part of this record, that we may see what were the com- plaints of the Commons of England, and their notions of right, in 1309. " The good people of the kingdom who are come hither to Parliament pray our lord the king that he will, if it please him, have regard to his poor subjects, who are much ag- grieved by reason that they are not governed as they should be, especially as to the articles of the Great Charter ; and for this, if it please him, they pray remedy. Besides which, they pray their lord the king to hear what has long ag- grieved his people, and still does so from day to day, on the part of those who call themselves his officers, and to amend it, if he pleases." The articles, eleven in number, are to the following purport: 1. That the king's purveyors seize great quantities of victuals without payment ; 2. That new cus- toms are set on wine, cloth, and other imposts ; 3. That the current coin is not so good as formerly ; 4, 5. That the stew- ard and marshal enlarge their jurisdiction beyond measure, to the oppression of the people; 6. That the commons find none to receive petitions addressed to the council; V. That the collectors of the king's dues (pernours des prises) in towns and at fairs take more than is lawful ; 8. That men are delayed in their civil suits by writs of protection ; 9, That felons escape punishment by procuring charters of par- don ; 10. That the constables of *the king's castles take cog- nizance of common pleas; 11. That the king's escheators English Const. . EDWARD III. 457 oust men of lands held by good title, under pretense of an inquest of office. These articles display in a short compass the nature of those grievances which existed under almost all the princes of the Plantagenet dynasty, and are spread over the rolls of Parliament for more than a century after this time. Edward gave the amplest assurances of putting an end to them all, except in one instance, the augmented customs on imports, to which he answered, rather evasively, that lie would take them off till he should perceive whether himself and his peo- ple derived advantage from so doing, and act thereupon as he should be advised. Accordingly, the next year, he issued writs to collect these new customs again. But the Lords Ordainers superseded the writs, having entirely abrogated all illegal impositions. It does not appear, however, that, regard had to the times, there was any thing very tyrannical in Edward's government. He set tallages sometimes, like his father, on his demesne towns, without assent of Parlia- ment. In the nineteenth year of his reign the Commons show that, " Whereas we and our ancestors have given many tallages to the king's ancestors to obtain the charter of the forest, which charter we have had confirmed by the present king, paying him largely on our part ; yet the king's officers of the forest seize on lands, and destroy ditches, and oppress the people, for which they pray remedy, for the sake of God and his father's soul." They complain at the same time of arbitrary imprisonment, against the law of the land. To both these petitions the king returned a promise of redress ; and they complete the catalogue of customary grievances in tliis period of our constitution. During the reign of Edward II. the rolls of Parliament are imperfect, and we have not much assistance from other sources. The assent of the Commons, which frequently is not specified in the statutes of this age, appears in a remarkable and revolutionary proceeding, the appointment of the Lords Ordainers in 1312. In this case it indicates that the aristo- cratic party then combined against the crown were desirous of conciliating popularity. An historian relates that some of the Commons were consulted upon the ordinances to be made for the reformation of government. § 13. During the long and prosperous reign of Edward III. the efforts of Parliament in behalf of their country were rewarded with success in establishing upon a firm footing three essential principles of our Government — the illegality of raising money without consent ; the necessity that the 20 458 ILLEGALITY OF EAISING Chap. VIII. Part IIL two houses should concur for any alterations in the law ; and, lastly, the right of the Commons to inquire into public abuses, and to impeach public counsellors. By exhibiting proofs of each of these from Parliamentary records I shall be able to substantiate the progressive improvement of our free constitution, which was principally consolidated during the reigns of Edward III. and his two next successors. I. Illegality of raising Money icithout Consent. — In the sixth year of Edward III. a Parliament was called to pro- vide for the emergency of an Irish rebellion, wherein, " be- cause the king could not send troops and money to Ireland without the aid of his people, the prelates, earls, barons, and other great men, and the knights of shires, and all the Com- mons, of their free will, for the said purpose, and also iu order that the king might live of his own, and not vex his people by excessive prizes, nor in other manner, grant to him the fifteenth penny, to levy of the commons,^ and the tenth from the cities, towns, and royal demesnes. And the king, at the request of the same, in ease of his people, grants that the commissions lately made to certain persons assigned to set tallages on cities, towns, and demesnes throughout En- gland shall be immediately repealed; and that in time to come he will not set such tallage, except as it has been done in the time of his ancestors, and he may reasonably do." These concluding words arc of dangerous implication ; and certainly it was not the intention of Edward, inferior to none of his predecessors in the love of power, to divest himself of that eminent prerogative which, however illegally since the Confirmatio Chartarum, had been exercised by them all. But the Parliament took no notice of this reservation, and continued with unshaken perseverance to insist on this in- contestable and fundamental right, which he was prone enough to violate. In the thirteenth year of this reign the Lords and Commons gave their answer to commissioners sent to open the Parlia- ment, and to treat with them on the king's part, in separate sealed rolls. The Commons declared that they could grant no subsidy without consulting their constituents ; and there- fore begged that another Parliament might be summoned, and in the mean time they would endeavor, by using persua- sion with the people of their respective counties, to procure the grant of a reasonable aid in the next Parliament. They demanded also that the imposition on wool and lead should * "La commonaltee" seems in this place to mean the tenants of land, or commons of the counties, in contradistinction to citizens Hud burgesses. English Const. MONEY WITHOUT CONSENT. 459 be taken as it used to be in former times, " inasmuch as it is enhanced without assent of the Commons, or of the Lords, as we understand ; and if it be otherwise demanded, that any one of the Commons may refuse it without being troubled on that account." Wool, however, the staple export of that age, was too easy and tempting a prey to be relinquished by a prince engaged in an impoverishing war. Seven years afterwards, in 20 Edward III., we find the Commons praying that the great subsidy of forty shillings upon the sack of wool be taken off; and the old custom paid as heretofore was assented to and granted. Tiie Government spoke this time in a more authoritative tone. "As to this point," the answer runs, "the prelates and others, seeing in what need the king stood of an aid before his passage beyond sea, to recover his rights and defend his kingdom of England, consented, with the con- currence of the merchants, that he should have in aid of his said war, and in defense of his said kingdom, forty shillings of subsidy for each sack of wool that should be exported beyond sea for two years to come. And upon this grant divers merchants have made many advances to our lord the king in aid of his war; for which cause this subsidy can not be repealed without assent of the king and his lords." It is probable that Edward's counsellors wished to estab- lish a distinction, long afterwards revived by those of James I., between customs levied on merchandise at the ports and internal taxes. The statute entitled Confirmatio Chartarum had manifestly taken away the prerogative of imposing the latter, which, indeed, had never extended beyond the ten- ants of the royal demesne. But its language was not quite so explicit as to the former, although no reasonable doubt could be entertained that the intention of the legislature was to abrogate every species of imposition unauthorized by Parliament. The thirtieth section of Magna Charta had pro- vided that foreign merchants should be free from all tributes except the ancient customs ; and it was strange to suppose that natives were excluded from the benefit of that enact- ment. Yet, owing to the ambiguous and elliptical style so frequent in our older laws, this was open to dispute, and could, perhaps, only be explained by usage. Edward I., in despite of both these statutes, had set a duty of threepence in the pound upon goods imported by merchant-strangers. This imposition was noticed as a grievance in the third year of his successor, and repealed by the Lords Ordainers, . It 460 CONCURRENCE OF BOTH HOUSES Chap. VIII. Part III. was revived, however, by Edward III., and continued to be levied ever afterwards. Edward was led by the necessities of his unjust and ex- ^^ensive w^ar into another arbitrary encroachment, of which kve find as many complaints as of his pecuniary extortions. The Commons pray, in the same Parliament of 20 Edward fll., that commissions should not issue for the future out of jhancery to charge the people with providing men-at-arms, hobelers (or light cavalry), archers, victuals, or in any other manner, without consent of Parliament. The king in reply alleges absolute necessity; and the roll of Parliament in the next two years, the 21st and 22d of Edward III., is full of the same complaints on one side, and the same allegations of necessity on the other. In the latter year the Commons grant a subsidy, on condition that no illegal levying of money should take place, with several other remedial pro- visions ; " and that these conditions should be entered on the roll of Parliament, as a matter of record, by which they may have remedy, if any thing should be attempted to the contrary in time to come." From this year the complaints of extortion became rather less frequent ; and soon after- wards a statute was passed, " that no man shall be con- strained to find men-at-arms, hobelers, nor archers, other than those which hold by such services, if it be not by com- mon assent and grant made in Parliament." II. The Concurrence of both Houses in Legislation neces- sary. — The second constitutional principle established in the reign of Edward III. was that the king and two houses of Parliament, in conjunction, possessed exclusively the right of legislation. Laws were now declared to be made by the king at the request of the Commons, and by the assent of the Lords and prelates. Such at least was the general form, though for many subsequent ages there was no invariable regularity in this respect. The Commons, who till this reign were rarely mentioned, were now as rarely omitted in the enacting clause. In fact, it is evident from the rolls of Par- liament that statutes were almost always founded upon their petition. These petitions, with the respective answers made to them in the king's name, were drawn up after the end of the session in the form of laws, and entered upon the stat- ute-roll. But here it must be remarked that the petitions were often extremely qualified and altered by the answer, insomuch that many statutes of this and some later reigns by no means express the true sense of the Commons. Some- times they contented themselves with showing their griev- English Const. IN LEGISLATION NECESSARY. 461 ance, and praying remedy from the king and his council. Of this one eminent instance is the great statute of treasons. In the petition whereon this act is founded it is merely prayed that, "whereas the king's justices in different coun- ties adjudge persons indicted before them to be traitors for sundry matters not known by the Commons to be treason, it would please the king by his council, and by the great and wise men of the land, to declare what are treasons in this present Parliament." The answer to this petition contains the existing statute, as a declaration on the king's part. But there is no appearance that it received the direct assent of the lower house. In the next reigns we shall find more remarkable instances of assuming a consent which was never positively given. The statute of treasons, however, was supposed to be de- claratory of the ancient law : in permanent and material in- novations a more direct concurrence of all the estates was probably required. A new statute, to be perpetually incor- porated with the law of England, was regarded as no light matter. It was a very common answer to a petition of the Commons, in the early part of this reign, that it could not be granted without making a new law. After the Parliament of 14 Edward III. a certain number of prelates, barons, and counsellors, with twelve knights and six burgesses, were ap- pointed to sit from day to day in order to turn such peti- tions and answers as were fit to be perpetual into a stat- ute ; but for such as were of a temporary nature the king issued his letters patent. This reluctance to innovate with- out necessity, and to swell the number of laws which all were bound to know and obey with an accumulation of transitory enactments, led apparently to the distinction between stat- utes and ordinances. The latter are indeed defined by some lawyers to be regulations proceeding from the king and Lords without concurrence of the Commons. But if this be applicable to some ordinances, it is certain that the word, even when opposed to statute, with which it is often synon- ymous, sometimes denotes an act of the whole legislature. In the 37th of Edward III., when divers sumptuary regula- tions against excess of apparel were made in full Parliament, "it was demanded of the Lords and Commons, inasmuch as the matter of their petitions was novel and unheard of be- fore, whether they would have them granted by way of or- dinance or of statute. They answered that it would be best to have them by way of ordinance and not of statute, in order that any thing which should need amendment might 462 STATUTES DISTINGUISHED Chap. VIII. Part III. be amended at the next Parliament." So much scruple did they entertain about tampering with the statute law of the land. Ordinances which, if it were not for their partial or tem- porary operation, could not well be distinguished from laws' were often established in great councils. These assemblies, which frequently occurred in Edward's reign, w^ere hardly distinguishable, except in name, from Parliaments; being constituted not only of those who were regularly summoned to the House of Lords, but of deputies from counties, cities, and boroughs. Several places that never returned burgesses to Parliament have sent- deputies to some of these coun- cils. The most remarkable of these was that held in the 2'7th of Edward III., consisting of one knight for each coun- ty, and of two citizens or burgesses from every city or bor- ough wherein the ordinances of the staple were established. These were previously agreed upon by the king and Lords, and copies given, one to the knights, another to the burgesses. The roll tells us that they gave their opinion in writing to the council, after much deliberation, and that this was read and discussed by the great men. These ordinances fix the staple of wool in particular places within England, prohibit English merchants from exporting that article under pain of death, inflict sundry other penalties, create jurisdictions, and in short have the eifect of a new and important law. After they were passed the deputies of the Commons granted a subsidy for three years, complained of grievances, and re- ceived answers, as if in a regular Parliament. But they were aware that these proceedings partook of some irregu- larity, and endeavored, as was their constant method, to keep up the legal forms of the constitution. In the last pe- tition of this council the Commons pray, "because many ar- ticles touching the state of the king and common profit of his kingdom have been agreed by him, the prelates. Lords, and Commons of his land, at this council, that the said ar- ticles may be recited at the next Parliament, and entered upon the roll ; for this cause, that ordinances and agreements made in council are not of record, as if they had been made in a general Parliament." This, accordingly, was done at the ensuing Parliament, when these ordinances were expressly confirmed, and directed to be "holden for a statute to en- dure always." * " If there be any diiference between an ordinance and a statute, ae some have col- lected, it is but only this, that an ordinance is but temporary till confirmed and made perpetual, but a statute is perpetual at first, and so have some ordinances also been." — Whitelocke on Parliamentary Writ, vol. ii., p. 297. English Const. FROM ORDINANCES. 4(J3 It must be confessed that the distinction between ordi- nances and statutes is very obscure, and perhaps no precise and uniform principle can be laid down about it. But it sufficiently appears that whatever provisions altered the common law or any former statute and were entered upon the statute- roll, transmitted to the sheriffs, and promulgated to the people as general obligatory enactments, were holden to require the positive assent of both houses of Parliament, duly and formally summoned. Before we leave this subject it will be proper to take no- tice of a remarkable stretch of prerogative which, if drawn into precedent, would have effectually subverted this prin- ciple of parliamentary consent in legislation. In the 15th of Edward III. petitions were presented of a bolder and more innovating cast than was acceptable to the court ; that no peer should be put to answer for any trespass except before his peers; that commissioners should be assigned to examine the accounts of such as had received public moneys ; that the judges and ministers should be sworn to observe the Great Charter and other laws ; and that they should be ap- pointed in Parliament. The last of these was probably the most obnoxious ; but the king, unwilling to defer a supply which was granted merely upon condition that these peti- tions should prevail, suffered them to pass into a statute with an alteration which did not take off much from their efficacy — namely, that these officers should indeed be ap- pointed by the king with the advice of his council, but should surrender their charges at the next Parliament, and be there responsible to any who should have cause of complaint against them. The chancellor, treasurer, and judges entered their protestation that they had not assented to the said statutes, nor could they observe them, in case they should prove contrary to the laws and customs of the kingdom, which they were sworn to maintain. This is the first instance of a protest on the roll of Parliament against the passing of an act. Nevertheless they were compelled to swear on the cross of Canterbury to its observance. This excellent statute was attempted too early for com- plete success. Edward's ministers plainly saw that it left them at the mercy of future Parliaments, who would readily learn the wholesome and constitutional principle of sparing the sovereign while they punished his advisers. They had recourse, therefore, to a violent measure, but which was likely in those times to be endured. By a proclamation ad- dressed to all the sheriffs the kinsj revokes and annuls the 464 RIGHT OF ^;Ox\IMONS Chap. VIII. Part III. statute, as contrary to the laws and custems of England and to his own just rights and prerogatives, which he had sworn to preserve; declaring that he had never consented to its passing, but, having previously protested that he would re- voke it, lest the Parliament should have been separated in wrath, had dissembled, as was his duty, and permitted the great seal to be affixed ; and that it appeared to the earls, barons, and other learned persons of his kingdom with whom he had consulted, that, as the said statute had not proceeded from his own good- will, it was null, and could not have the name or force of law. This revocation of a statute, as the price of which a subsidy had been granted, was a gross in- fringement of law, and undoubtedly passed for such at that time; for the right was already clear, though the remedy was not always attainable. Two years afterwards Edward met his Parliament, when that obnoxious statute was formal- ly repealed. Notwithstanding the king's unwillingness to permit this control of Parliament over his administration, he suffered, or rather solicited, their interference in matters which have since been reckoned the exclusive province of the crown. This was an unfair trick of his policy. He was desirous, in order to prevent any murmuring about subsidies, to throw the war upon Parliament as their own act, though none could have been commenced more selfishly for his own benefit, or less for the advantage of the people of England. It is called " the war which our lord the king has undertaken against his adversary of France, by common assent of all the Lords and Commons of his realm in divers parliaments." And he sev- eral times referred it to them to advise upon the subject of peace. But the Commons showed their humility or discre- tion by treating this as an invitation which it would show good manners to decline, though in the eighteenth of the king's reign they had joined with the Lords in imploring the king to make an end of the war by a battle or by a suitable peace. in. Right of the Commons to inquire into Public Abuses. — A third important acquisition of the House of Commons during this reign was the establishment of their right to in- vestigate and chastise the abuses of administration. The most memorable example of the exercise of this right occurred in the fiftieth of Edward HI. It will be remember- ed by every one who has read our history that in the latter years of Edward's life his fame w^as tarnished by the ascend- ency of the Duke of Lancaster and Alice Perrers. The for English Const. TO INQUIRE INTO ABUSES. 463 mer, a man of more ambition than his capacity seems to have warranted, even incurred the suspicion of meditating to set aside the heir of the crown when the Black Prince should have sunk into the grave. Whether he were wronged or not by these conjectures, they certainly appear to have operated on those most concerned to take alarm at them. A Parlia- ment met, in April, 1376, wherein the general unpopularity of the king'^ administration, or the influence of the Princ'e of Wales, led to very remarkable consequences. The Commons alleged three particular grievances : the re- moval of the staple from Calais, where it had been fixed by Parliament, through the procurement and advice of the pri- vate counsellors about the king; the participation of the same persons in lending money to the king at exorbitant usury ; and their purchasing at a low rate, for their own benefit, old debts from the crown, the whole of which they had after- wards induced the king to repay to themselves. For these and for many more misdemeanors the Commons accused and impeached the lords Latimer and Nevil, with four merchants, Lyons, Ellis, Peachey, and Bury. Latimer had been cham- berlain, and Nevil held another oflUce. The former was the friend and creature of the Duke of Lancaster. Nor was this Parliament at all nice in touching a point where kings least endure their interference. An ordinance was made that, "whereas many women prosecute the suits of others in courts of justice by way of maintenance, and to get profit there- by, which is displeasing to the king, he forbids any woman henceforward, and especially Alice Perrers, to do so, on pain of the said Alice forfeiting all her goods, and suffering ban- ishment from the kingdom." The part which the Prince of Wales, who had ever been distinguished for his respectful demeanor towards Edward, bore in this unprecedented opposition, is strong evidence of the jealousy with which he regarded the Duke of Lancaster; and it was led in the House of Commons by Peter de la Mare, a servant of the Earl of March, who, by his marriage with Philippa, heiress of Lionel, duke of Clarence, stood next after the young Prince Richard in lineal succession to the crown. The proceedings of this session were, indeed, highly popular. But no House of Commons would have gone such lengths on the mere support of popular opinion, unless insti- gated and encouraged by higher authority. Without this, their petitions might, perhaps, have obtained, for the sake of subsidy, an immediate consent ; but those who took the lead in preparing them must have remained unsheltered after 20* 466 KICHARD III. Chap. VIII. Part III. dissolution, to abide the vengeance of the crown, with no as- surance that another Parliament would espouse their cause as its own. Such, indeed, was their fate in the present in- stance. Soon after the dissolution of Parliament, the Prince of Wales, who, long sinking by fatal decay, had rallied his expiring energies for this domestic combat, left his inher- itance to a child ten years old, Richard of Bordeaux. Im- mediately after this event Lancaster recovered his influence, and the former favorites returned to court. Peter de la Mare was confined at Nottingham, where he remained two years. The citizens, indeed, attempted an insurrection, and threat- ened to burn the Savoy, Lancaster's residence, if De la Mare were not released ; but the Bishop of London succeeded in appeasing them. A Parliament met next year which over- threw the work of its predecessor, restored those who had been impeached, and repealed the ordinance against Alice Perrers. So little security will popular assemblies ever af- ford against arbitrary power, when deprived of regular lead- ers and the consciousness of mutual fidelity. The policy adopted by the Prince of Wales and Earl of March, in employing the House of Commons as an engine of attack against an obnoxious ministry, was perfectly novel, and indicates a sensible change in the character of our con- stitution. In the reign of Edward II., Parliament had little share in resisting the Government ; much more was effected by the barons through risings of their feudal tenantry. Fif- ty years of authority better respected, of law better enforced, had rendered these more perilous, and of a more violent ap- pearance than formerly. A surer resource presented itself in the increased weight of the lower house in Parliament. And this indirect aristocratical influence gave a surprising impulse to that assembly, and particularly tended to estab- lish beyond question its control over public abuses. It is no less just to remark that it also tended to preserve the rela- tion and harmony between each part and the other, and to prevent that jarring of emulation and jealousy which, though generally found in the division of power between a noble and a popular estate, has scarcely ever caused a dissension, except in cases of little moment, between our two houses of Parlia- ment. § 14. The Commons had sustained with equal firmness and discretion a defensive war against arbitrary power under Ed- ward III. ; they advanced with very different steps towards his successor. Upon the king's death, though Richard's cor- onation took place without delay, and no proper regency was English Const. CHARACTER OF RICHARD 11. 467 constituted, yet a council of twelve, whom the great officers of state were to obey, supplied its place to every efi'ectual intent. Among these the Duke of Lancaster was not num- bered, and he retired from court in some disgust. In the first Parliament of the young king a large proportion of the knights who had sat in that which impeached the Lancas- trian party were returned. Peter de la Mare, now released from prison, was elected speaker. The prosecution against Alice Perrers was revived — not, as far as appears, by direct impeachment of the Commons ; but articles were exhibited against her in the House of Lords on the king's part, for breaking the ordinance made against her intermeddling at court ; upon which she received judgment of banishment and forfeiture. At the request of the lower house, the Lords, in the king's name, appointed nine persons of different ranks — three bishops, two earls, two bannerets, and two bachelors — to be a permanent council about the king, so that no business of importance should be transacted without their unanimous consent. The king was even compelled to consent that, dur- ing his minority, the chancellor, treasurer, judges, and oth- er chief officers, should be made in Parliament ; by which provision, combined with that of the Parliamentary council, the whole executive government was transferred to the two houses. For the first few years of Richard's reign we find from the rolls repeated demands of subsidy on one side, remonstrance and endeavors at reformation on the other. But the power of the Commons steadily increases. After the tremendous insurrection of the villeins in 1382, a Parliament was con- vened to advise about repealing the charters of general man- umission, extorted from the king by the pressure of circum- stances. Li this measure all concurred ; but the Commons were not afraid to say that the late risings had been pro- voked by the burdens which a prodigal court had called for in the preceding session. The character of Richard IL was now developing itself, and the hopes excited by his remarkable presence of mind in confronting the rioters on Blackheath were rapidly de- stroyed. Not that he was wanting in capacity, as has becR sometimes imagined. For if we measure intellectual power by the greatest exertion it ever displays, rather than by its average results, Richard IL was a man of considerable tal- ents. He possessed, along with much dissimulation, a deci- sive promptitude in seizing the critical moment for action* Of this quality, besides his celebrated behavior towards tha 468 POWER OF RICHARD II. Chap. VIII. Part 111 insurgents, he gave striking evidence in several circumstances which we shall have shortly to notice. But his ordinary con- duct belied the abilities Avhich on these rare occasions shone forth, and rendered them ineffectual for his security. Ex- treme pride and violence, with an inordinate partiality for the most worthless favorites, were his predominant charac- teristics. Though no king could be less respectable than Richard, yet the constitution invested a sovereign with such ample prerogative, that it was far less easy to resist his personal exercise of power than the unsettled councils of a minority. Though the Commons did not relax in their importunities for the redress of general grievances, they did not venture to intermeddle as before with the conduct of administration. Tliey did not even object to the grant of the marquisate of Dublin, with almost a princely dominion over Ireland ; which enormous donation was confirmed by act of Parlia- ment to Vere, a favorite of the king. A petition that the officers of state should annually visit and inquire into his household was answered that the king would do what he pleased. There is nothing, however, more deceitful to a monarch unsupported by an armed force, and destitute of wary ad- visers, than this submission of his people. A single effort was enough to overturn his government. Parliament met in the tenth year of his reign, steadily determined to reform the administration, and especially to punish its chief leader, Michael de la Pole, earl of Suffolk and lord chancellor. The charges against this minister, without being wholly frivolous, were not so weighty as the clamor of the Commons might have led us to expect. Besides forfeiting all his grants from the crown, he was committed to prison, there to remain till he should have paid such fine as the king might impose — a sentence that would have been outrageously se- vere in many cases, though little more than nugatory in ihe present. This was the second precedent of that grand constitutional resource. Parliamentary impeachment ; and more remarkable, from the eminence of the person attacked, than that of Lora Latimer in the fiftieth year of Edward III. The Commons were content to waive the prosecution of any other minis ters ; but they rather chose a scheme of reforming the ad- ministration which should avert both the necessity of pun- ishment and the malversations that provoked it. They pe- titioned the kins to ordain in Parliament certain chief offi- English Const. COMMISSION OF REFORM. 469 cers of his household and other lords of his council, with power to reform those abuses by which his crown was so much blemished that the laws were not kept, and his rev- enues were dilapidated, confirming by a statute a commission for a year, and forbidding, under heavy penalties, any one from opposing, in private or openly, what they should advise. With this the king complied, and a commission founded upon the prayer of Parliament was established by statute. It comprehended fourteen persons of the highest eminence for rank and general estimation ; princes of the blood and an- cient servants of the crown, by whom its prerogatives were not likely to be unnecessarily impaired. Still, the design as w^ell as tendency of this commission was no doubt to throw the whole administration into their hands during the period of their sway. Many have exclaimed against this Parliamentary commis- sion as an unwarrantable violation of the king's sovereignty, and even impartial men are struck at first sight by a meas ure that seems to overset the natural balance of our consti- tution. But it would be unfair to blame either those con- cerned in this commission, some of whose names at least have been handed down with unquestioned respect, or those high- spirited representatives of the people whose patriot firmness has been hitherto commanding all our sympathy and grati- tude, unless we could distinctly pronounce by what gentler means they could restrain the excesses of goverment. Thir- teen Parliaments had already met since the accession of Rich- ard ; in all the same remonstrances had been repeated, and the same promises renewed. Subsidies, more frequent than in any former reign, had been granted for the supposed exi- gencies of the war; but this was no longer illuminated by those dazzling victories which give to fortune the mien of wisdom : the coasts of England were perpetually ravaged, and her trade destroyed, while the administration incurred the suspicion of diverting to private uses that treasure which they so feebly and unsuccessfully applied to the public serv- ice. No voice of his people, until it spoke in thunder, would stop an intoxicated boy in the wasteful career of dis- sipation. He loved festivals and pageants, the prevailing folly of his time, with unusual frivolity ; and his ordinary living is represented as beyond comparison more showy and sumptuous than even that of his magnificent and chivalrous predecessor. Acts of Parliament were no adequate barriers to his misgovernment. By yielding to the will of his Par- liament and to a temporary suspension of prerogative, this 470 ANSV7ERS TO RICHARD'S QUESTIONS. Ch. VIII. Pt III. unfortunate prince might probably have reigned long and peacefully ; the contrary course of acting led eventually to his deposition and miserable death. Before the dissolution of Parliament, Richard made a ver- bal protestation that nothing done therein should be in prej- udice of his rights — a reservation not unusual when any re- markable concession was made, but which could not decently be interpreted, whatever he might mean, as a dissent from the statute just passed. Some months had intervened when the king, who had already released SuiFolk from prison and restored him to his favor, procured from the judges, whom he had summoned to Nottingham, a most convenient set of an- swers to questions concerning the late proceedings in Parlia- ment. Tresilian and Belknap, chief justices of the King's Bench and Common Pleas, with several other judges, gave it under their seals that the late statute and commission were derogatory to the prerogative ; that all who procured it to be passed, or persuaded or compelled the king to consent to it, were guilty of treason ; that the king's business must be proceeded upon before any other in Parliament; that he may put an end to the session at his pleasure ; that his ministers can not be impeached without his consent ; that any mem- bers of Parliament contravening the three last articles incur the penalties of treason, and especially he who moved for the sentence of deposition against Edward II. to be read ; and that the judgment against the Earl of Suffolk might be revoked as altogether erroneous. These answers, perhaps extorted by menaces, as all the judges, except Tresilian, protested before the next Parlia- ment, were for the most part servile and unconstitutional. The indignation which they excited, and the measures suc- cessfully taken to withstand the king's designs, belong to general history ; but I shall pass slightly over that season of turbulence, which afforded no legitimate precedent to our constitutional annals. Of the five lords appellants, as they were called — Gloucester, Derby, Nottingham, Warwick, and Arundel — the three former, at least, have little claim to our esteem ; but in every age it is the sophism of malignant and peevish men to traduce the cause of freedom itself, on ac- count of the interested motives by which its ostensible ad- vocates have frequently been actuated. The Parliament, who had the country thoroughly with them, acted no doubt hon- estly, but with an inattention to the rules of law, culpable indeed, yet from which the most civilized of their succes- sors, in the heat of passion and triumph, have scarcely been English Const. APPARENT HARMONY. 471 exempt. Whether all with whom they dealt severely, some of them apparently of good previous reputation, merited such punishment, is more than, upon uncertain evidence, a modern writer can profess to decide. Notwithstanding the death or exile of all Richard's favor- ites, and the oath taken not only by Parliament, but by ev- ery class of the people, to stand by the lords appellants, we find him, after about a year, suddenly annihilating their pre- tensions, and snatching the reins again without obstruction. The secret cause of this event is among the many obscurities that attend the history of his reign. It was conducted with a spirit and activity which broke out two or three times in the course of his imprudent life; but we may conjecture that he had the advantage of disunion among his enemies. For some years after this the king's administration was prudent. The great seal, which he took away from Archbishop Arun- del, he gave to Wykeham, bishop of Winchester, another member of the reforming commission, but a man of great moderation and political experience. Some time after he restored the seal to Arundel, and reinstated the Duke of Gloucester in the council. The Duke of Lancaster, who had been absent during the transactions of the tenth and eleventh years of the king, in prosecution of his Castilian war, formed a link between the parties, and seems to have maintained some share of public favor. There was now a more apparent harmony between the court and the Parliament. It seems to have been tacitly agreed that they should not interfere with the king's house- hold expenses ; and they gratified him in a point where his honor had been most ^vounded, declaring his prerogative to be as high and unimpaired as that of his predecessors, and repealing the pretended statute by virtue of which Edward II. was said to have been deposed. They were provident enough, however, to grant conditional subsidies, to be levied only in case of a royal expedition against the enemy ; and several were accordingly remitted by proclamation, this con- dition not being fulfilled. Richard never ventured to recall his favorites, though he testified his unabated afiection for Vere by a pompous funeral. Few complaints unequivocally affecting the ministry were presented by the Commons. In one Parliament, the chancellor, treasurer, and counsel re- signed their ofiices, submitting themselves to its judgment in case any matter of accusation should be alleged against them. The Commons, after a day's deliberation, probably to make their approbation nppcar more solemn, declared in full 472 DISUNION AMONG LEADING PEERS. Ch. Vlll. Tt. in Parliament that nothing amiss had been found in the con- duct of these ministers, and that they held them to have faithfully discharged their duties. The king reinstated them accordingly, with a protestation that this should not be made a precedent, and that it was his right to change his servants at pleasure. But this summer season was not to last forever. Richard had but dissembled with those concerned in the transactions of 1388, none of whom he could ever forgive. These lords, in lapse of time, were divided among each other. The earls of Derby and Nottingham were brought into the king's in- terest. The Earl of Arundel came to an open breach with the Duke of Lancaster, whose pardon he was compelled to ask for an unfounded accusation in Parliament. Gloucester's ungoverned ambition, elated by popularity, could not brook the ascendency of his brother Lancaster, who was much less odious to the king. And the latter had given keener provo- cation by speaking contemptuously of that misalliance witli Katherine Swineford which contaminated the blood of Plan- tagenet. To the Parliament summoned in the 20th of Rich- ard, one object of which was to legitimate the Duke of Lan- caster's ante-nuptial children by this lady, neither Glouces- ter nor Arundel would repair. There passed in this assem- bly something remarkable, as it exhibits not only the arbi- trary temper of the king, a point by no means doubtful, but the inefficiency of the Commons to resist it without suppoi-t from political confederacies of the nobility. The circum- stances are thus related in the record : During the session the king sent for the lords into Parlia- ment one afternoon, and told them how he had heard of cei-- tain articles of complaint made by the Commons in confer- ence with them a few days before, some of which appeared to the king against his royalty, estate, and liberty, and com- manded the chancellor to inform him fully as to this. The chancellor accordingly related the whole matter, which con- sisted of four alleged grievances — namely, that sheriffs and escheators, notwithstanding a statute, are continued in their offices beyond a year;'" that the Scottish marches were not " Home has represented this as if the Commons had petitioned for the continn- ance of elieriffs beyond a year, and grounds upon this mistalce part of his defense of Richard II. (Note to vol. ii., p. 2T0, 4to edit.) For this he refers to Cotton's Abridg- ment ; whether rightly or not I can not say, being little acquainted with that inaccu- rate book, upon which it is unfortunate that Hume relied so much. The passage from Walsingham in the same note is also wholly perverted ; as the reader will discover without further observation. An historian must be strangely warped who quotes a passage explicitly complaining of illegal acts in order to infer that those very acts were legal. English Const. PROSECUTION OF HAXEY. 473 well kept ; that the statute against wearing great men's liv- eries was disregarded ; and, lastly, that the excessive charges of the king's household ought to be diminished, arising from the multitude of bishops and of ladies who are there main- tained at his cost. Upon this information the king declared to the Lords that through God's gift he is by lineal right of inheritance King of England, and will have the royalty and freedom of his crown, from which some of these articles derogate. The first petition, that sheriifs should never remain in office be- yond a year, he rejected ; but, passing lightly over the rest, took most offense that the Commons, who are his lieges, should take on themselves to make any ordinance respect- ing his royal person or household, or those whom he might please to have about him. He enjoined, therefore, the Lords to declare plainly to the Commons his pleasure in this mat- ter; and especially directed the Duke of Lancaster to make the speaker give up the name of the person who presented a bill for this last article in the lower house. The Commons were in no state to resist this unexpected promptitude of action in the king. They surrendered the obnoxious bill, with its proposer, one Thomas Haxey, and with great humility made excuse that they never designed to give offfense to his majesty, nor to interfere with his house- hold or attendants, knowing well that such things do not be- long to them, but to the king alone ; but merely to draw his attention, that he might act therein as should please him best. The king forgave these pitiful suppliants; but Haxey was adjudged in Parliament to suffer death as a traitor. As, however, he was a clerk,^* the Archbishop of Canterbury, at the head of the prelates, obtained of the king that his life might be spared, and that they might have the custody of his person; protesting that this was not claimed by way of right, but merely of the king's grace.^^ This was an open defiance of Parliament, and a declaration of arbitrary power ; for it would be impossible to contend " The record calls him Sir Thoraas Haxey, a title at that time regularly given to the parson of a parish. If this be so, it is a remarkable authority for the clergy's ca- pacity of sitting in Parliament. 12 In Henry IV. 's first Parliament the Commons petitioned for Haxey's restoration, and truly say that his sentence was en aneantissement des custumes de la commune, p. 434. His judgment was reversed by both houses. There can be no doubt with any man who looks attentively at the passages relative to Haxey that he was a mem- ber of Parliament ; though this was questioned some years ago by the committee of the House of Commons, who made a report on the right of the clergy to be elected : a right which, I am inclined to believe, did exist down to the Eeformation, as the grounds alleged for Nowell's expulsion in the first of Mary, besides this infitauce of Haxey, conspire to prove, though it has since been lost by disuse. 474 ARBITRAEY MEASURES Chap. VIII. Part III. that, after the repeated instances of control over public ex* penditure by the Commons since the 50th of Edward III., this principle was novel and nnauthoi'ized by the constitu- tion, or that the right of free speech demanded by them in every Parliament was not a real and indisputable privilege. The king, however, was completely successful, and, having proved the feebleness of the Commons, fell next upon those he more dreaded. By a skillful piece of treachery he seized the Duke of Gloucester, and spread consternation among all his party. A Parliament was summoned, in which the only struggle was to outdo the king's wishes, and thus to ef- face their former transgressions. Gloucester, who had been murdered at Calais, was attainted after his death ; Arundel was beheaded, his brother, the Archbishop of Canterbury, deposed and banished, Warwick and Cobham sent beyond sea. The commission of the tenth, the proceedings in Parlia- ment of the eleventh, year of the king were annulled. The answers of the judges to the questions put at Nottingham, which had been punished with death and exile, were pro- nounced by Parliament to be just and legal. It was de- clared high treason to procure the repeal of any judgment against persons therein impeached. Their issue male were disabled from ever sitting in Parliament or holding place in council. These violent ordinances, as if the precedent they were then overturning had not shielded itself with the same sanction, w^ere sworn to by Parliament upon the cross of Canterbury, and confirmed by a national oath, with the pen- alty of excommunication denounced against its infringers. Of those recorded to have bound themselves by this adjura- tion to Richard, far the greater part had touched the same relics for Gloucester and Arundel ten years before, and two years afterwards swore allegiance to Henry of Lancaster. In the fervor of prosecution this Parliament could hardly go beyond that whose acts they w^ere annulling ; and each is alike unworthy to be remembered in the way of precedent. But the leaders of the former, though vindictive and turbu- lent, had a concern for the public interest ; and, after punish- ing their enemies, left the government upon its right foun- dation. In this all regard for liberty was extinct ; and the Commons set the dangerous precedent of granting the king a subsidy upon wool during his life. Their remarkable act of severity was accompanied by another, less unexampled, but, as it proved, of more ruinous tendency. The petitions of the Commons not having been answered during the ses- Bion, which they were always anxious to conclude, a commis- English Const. OF RICHARD II. 475 sion was granted for twelve peers and six commoners to sit after the dissolution, and " examine, answer, and fully deter- mine, as well all the said petitions, and the matters therein comprised, as all other matters and things moved in the king's presence, and all things incident thereto not yet determined, as shall seem best to them." The " other matters" mentioned above were, I suppose, private petitions to the king's council in Parliament, which had been frequently dispatched after a dissolution. For in the statute which establishes this com- mission, 21 R. II., c. 16, no powers are committed but those of examining petitions ; which, if it does not confirm the charge afterwards alleged against Richard, of falsifying the Parliament roll, must, at least, be considered as limiting and explaining the terms of the latter. Such a trust had been committed to some lords of the council eight years before, in very peaceful times ; and it was even requested that the same might be done in future Parliaments. But it is obvious what a latitude this gave to a prevailing faction. These eighteen commissioners, or some of them (for there were who disliked the turn of affairs), usurped the full rights of the legislature, which undoubtedly were only delegated in respect of busi- ness already commenced. They imposed a perpetual oath on prelates and lords for all time to come, to be taken before obtaining livery of their lands, that they would maintain the statutes and ordinances made by this Parliament, or " after- wards by the lords and knights having power committed to them by the same." They declared it high treason to dis- obey their ordinances. They annulled the patents of the dukes of Hereford and Norfolk, and adjudged Henry Bowet, the former's chaplain, who had advised him to petition for his inheritance, to the penalties of treason. And thus, hav- ing obtained a ravenue for life, and the power of Parliament being notoriously usurped by a knot of his creatures, the king was little likely to meet his people again, and became as truly absolute as his ambition could require. It had been necessary for this purpose to subjugate the an- cient nobility ; for the English constitution gave them such paramount rights that it was impossible either to make them surrender their country's freedom or to destroy it without their consent. But several of the chief men had fallen or were involved with the party of Gloucester. Two, who, hav- ing once belonged to it, had lately plunged into the depths of infamy to ruin their former friends, were still perfectly obnoxious to the king, who never forgave their original sin. These two, Henry of Bolingbroke, earl of Derby, and Mow- 476 HEREFORD AND NORFOLK QUARREL. Ch. VIII. Pt. IIL bray, earl of Nottingham, now dukes of Hereford and Nor- folk, the most powerful of the remaining nobility, were, by a singular conjuncture, thrown, as it were, at the king's feet. Of the political mysteries which this reign affords, none is more inexplicable than the quarrel of these peers. In the Parliament at Shrewsbury, in 1398, Hereford was called upon by the king to relate what had passed between the Duke of Norfolk and himself in slander of his majesty. He detailed a pretty long and not improbable conversation, in which Norfolk had asserted the king's intention of destroying them both for their old offense in impeaching his ministers. Nor- folk had only to deny the charge and throw his gauntlet at the accuser. It was referred to the eighteen commissioners who sat after the dissolution, and a trial by combat was awarded. But when this, after many delays, was about to take place at Coventry, Richard interfered and settled the dispute by condemning Hereford to banishment for ten years and Norfolk for life. This strange determination, which treat- ed both as guilty where only one could be so, seems to ad- mit of no other solution than the king's desire to rid himself of two peers, w^hom he feared and hated, at a blow. But it is difficult to understand by what means he drew the crafty Bolingbroke into his snare. However this might have been, he now threw away all appearance of moderate government. The indignities he had suffered in the eleventh year of his reign were still at his heart, a desire to revenge which seems to have been the mainspring of his conduct. Though a gen- eral pardon of those proceedings had been granted, not only at the time, but in his own last Parliament, he made use of them as a pretense to extort money from seventeen counties, to whom he imputed a share in the rebellion. He compelled men to confess under their seals that they had been guilty of treason, and to give blank obligations, which his officers filled up with large sums. Upon the death of the Duke of Lancaster, who had passively complied throughout all these transactions, Richard refused livery of his inheritance to Hereford, whose exile implied no crime, and Avho had letters patent enabling him to make his attorney for that purpose during its continuance. In short, his government for nearly two years was altogether tyrannical ; and, upon the same principles that cost James II. his throne, it was unquestiona- bly far more necessary, unless our fathers would have aban- doned all thought of liberty, to expel Richard II. Far be it from us to extenuate the treachery of the Percies towards this unhappy prince, or the cruel circumstances of his death, English Const. ACCESSION OF HENRY IV. 477 or in any way to extol either his successor or the chief men of that time, most of whom were ambitious and faithless ; but after such long experience of the king's arbitrary, dis- sembling, and revengeful temper, I see no other safe course, in the actual state of the constitution, than what the nation concurred in pursuing. The reign of Richard II. is, in a constitutional light, the most interesting part of our earlier history ; and it has been the most imperfectly written. Some have misrepresented the truth through prejudice, and others through carelessness. It is only to be understood — and, indeed, there are great difficulties in the way of understanding it at all — by a pe- rusal of the rolls of Parliament, with some assistance from the contemporary historians, Walsingham, Knyghton, the anonymous biographer published by Hearne, and Froissart. These, I must remark, except occasionally the last, are ex- tremely hostile to Richard ; and although we are far from being bound to acquiesce in their opinions, it is at least un- warrantable in modern writers to sprinkle their margins with references to such authority in support of positions decidedly opposite.^^ § 15. The revolution which elevated Henry TV. to the throne was certainly so far accomplished by force that the king was in captivity, and those who might still adhere to him in no condition to support his authority. But the sin- cere concurrence which most of the prelates and nobility, with the mass of the people, gave to changes that could not have been otherwise effected by one so unprovided with for- eign support as Henry, proves this revolution to have been, if not an indispensable, yet a national act, and should pre- vent our considering the Lancastrian kings as usurpers of the throne. Nothing, indeed, looks so much like usurpation in the whole transaction as Henry's remarkable challenge of the crown, insinuating, though not avowing, as Hume has justly animadverted upon it, a false and ridiculous title by right line of descent, and one equally unwarrantable by con- quest. The course of proceedings is worthy of notice. As the renunciation of Richard might well pass for the effect of compulsion, there was a strong reason for propping up its instability by a solemn deposition from the throne, found- ed upon specific charges of misgovernment. Again, as the ^3 It is fair to observe that Froissart's testimony makes most in favor of the king, or rather against his enemies, where it is most valuable; that is, in his account of what he heard in the English court in 1395, 1. iv., c. 62, where he gives a very indif- ferent character of the Duke of Gloucester. In general this writer is ill-informed o * English affairs, and undeserving to be quoted as an authority. 478 . CIRCUMSTANCES ATTENDING Chap. VIII. Part III. right of dethroning a monarch was nowhere found in the law, it was equally requisite to support this assumption of power by an actual abdication. But as neither one nor the other filled up the Duke of Lancaster's wishes, who was not contented with owing a crown to election, nor seemed al- together to account for the exclusion of the house of March, he devised this claim, which was preferred in the vacancy of the throne, Richard's cession having been read and approved in Parliament, and the sentence of deposition, " out of abun- dant caution, and to remove all scruple," solemnly passed by seven commissioners appointed out of the several estates. " After which challenge and claim," says the record, " the lords spiritual and temporal, and all the estates there pres- ent, being asked, separately and together, what they thought of the said challenge and claim, the said estates, with the whole people, without any difficulty or delay, consented that the said duke should reign over them." The claim of Henry, as opposed to that of the Earl of March, was, indeed, ridicu- lous ; but it is by no means evident that, in such cases of ex- treme urgency as leave no security for the common weal but the deposition of a reigning prince, there rests any positive obligation upon the estates of the realm to fill his place with the nearest heir. A revolution of this kind seems rather to defeat and confound all prior titles ; though in the new set- tlement it will commonly be prudent, as well as equitable, to treat them with some regard. Were this otherwise, it would be hard to say why William III. reigned to the exclusion of Anne, or even of the Pretender, who^ had surely commit- ted no ofi*ense at that time ; or why (if such, indeed, be the true construction of the Act of Settlement) the more distant branches of the royal stock, descendants of Henry VH. and earlier kings, have been cut oif from their hope of succession by the restriction to the heirs of the Princess Sophia. In this revolution of 1399 there was as remarkable an at- tention shown to the formalities of the constitution, allow- ance made for the men and the times, as in that of 1688. The Parliament was not opened by commission ; no one took the office of president ; the Commons did not adjourn to their own chamber; they chose no speaker; the name of Parlia- ment was not taken, but that only of estates of the realm. But as it would have been a violation of constitutional prin- ciples to assume a parliamentary character without the king's commission, though summoned by his writ, so it was still more essential to limit their exercise of power to the neces- sity of circumstances. Upon the cession of the king, as upon English Const. HENRY IV. 'S ACCESSION. 479 his death, the Parliament was no more ; its existence, as the council of the sovereign, being dependent upon his will. The actual convention summoned by the writs of Richard could not legally become the Parliament of Henry ; and the valid- ity of a statute declaring it to be such would probably have been questionable in that age, when the power of statutes to alter the original principles of the common law was by no means so thoroughly recognized as at the Restoration and Revolution. Yet Henry was too well pleased with his friends to part with them so readily ; and he had much to effect be- fore the fervor of their spirits should abate. Hence an ex- pedient was devised of issuing writs for a new Parliament, returnable in six days. These neither were nor could be com- plied with ; but the same members as had deposed Richard sat in the new Parliament, which was regularly opened by Henry's commissioner as if they had been duly elected. In this contrivance, more than in all the rest, we may trace the hand of lawyers. § 1 6. If we look back from the accession of Henry IV. to that of his predecessor, the constitutional authority of the House of Commons will be perceived to have made surprising prog- ress during the course of twenty-two years. Of the three capital points in contest while Edward reigned — that money could not be levied, or laws enacted, without the Commons' consent, and that the administration of Government was sub- ject to their inspection and control — the first was absolutely decided in their favor, the second was at least perfectly ad- mitted in principle, and the last was confirmed by frequent exercise. The Commons had acquired two additional engines of immense efficiency — one, the right of directing the appli- cation of subsidies, and calling accountants before them ; the other, that of impeaching the king's ministers for misconduct. All these vigorous shoots of liberty throve more and more under the three kings of the house of Lancaster, and drew such strength and nourishment from the generous heart of England that in after-times, and in a less prosperous season, though checked and obstructed in their growth, neither the blasts of arbitrary power could break them ofif, nor the mil- dew of servile opinion cause them to wither. I shall trace the progress of Parliament till the civil wars of York and Lan- caster : 1, in maintaining the exclusive right of taxation ; 2, in directing and checking the public expenditure ; 3, in making supplies depend on the redress of grievances ; 4, in securing the people against illegal ordinances and interpolations of the statutes; 5, in controlling the royal administration; 6, 480 RIGHT OF TAXATION. Chap. VIII. Part III. in punishing bad ministers ; and lastly, in establishing their own immunities and privileges. 1. Bight of Taxation. — The pretense of levying money without consent of Parliament expired with Edward III., who had asserted it, as we have seen, in the very last year of his reign. A great council of lords and prelates, summoned in the second year of his successor, declared that they could advise no remedy for the king's necessities without laying taxes on the people, which could only be granted in Parlia- ment. Nor was Richard ever accused of illegal tallages, the frequent theme of remonstrance under Edward. Doubtless his innocence in this respect was the effect of weakness ; and if the revolution of 1399 had not put an end to this newly- acquired despotism, this, like every other right of his people, would have been swept away. A less palpable means of evading the consent of the Commons was by the extortion of loans, and harassing those who refused to pay by summonses before the council. These loans, the frequent resource of ar- bitrary sovereigns in later times, are first complained of in an early Parliament of Richard II. ; and a petition is grant- ed that no man shall be compelled to lend the king money. But how little this was regarded we may infer from a writ directed, in 1386, to some persons in Boston, enjoining them to assess every person who had goods and chattels to the amount of twenty pounds, in his proportion of two hundred pounds, which the town had promised to lend the king, and giving an assurance that this shall be deducted from the next subsidy to be granted by Parliament. After his triumph over the popular party, towards the end of his reign, he ob- tained large sums in this way. Under the Lancastrian kings there is much less appearance of raising money in an unparliamentary course. Henry IV. obtained an aid from a great council in the year 1400; but they did not pretend to charge any besides theinselves, though it seems that some towns afterwards gave the king a contri- bution. A few years afterwards he directs the sheriflTs to call on the richest men in their counties to advance the money voted by Parliament. This, if any compulsion was threat- ened, is an instance of overstrained prerogative, though con- sonant to the practice of the late reign. 2. Appropriation of Supplies. — The right of granting sup- plies would have been very incomplete, had it not been ac- companied with that of directing their application. The prin- ciple of appropriating public moneys began, as we have seen, in the minority of Richard, and was among the best fruits of Knglish Const. REDRESS OF GRIEVANCES. 481 that period. It was steadily maintained under the new dy- nasty. The Parliament of 6 Henry lY. granted two-fifteenths and two-tenths, with a tax on skins and wool, on condition that it should be expended in the defense of the kingdom, and not otherwise, as Thomas lord Furnival and Sir John Pel- ham, ordained treasurers of war for this Parliament to receive the said subsidies, shall account and answer to the Commons at the next Parliament. These treasurers were sworn in Par- liament to execute their trusts. A similar precaution was adopted in the next session. 3. Redress of Grievances. — The Commons made a bold at- tempt in the second year of Henry IV. to give the strongest security to their claims of redress, by inverting the usual coxirse of parliamentary proceedings. It was usual to answer their petitions on the last day of the session, which put an end to all further discussion upon them, and prevented their making the redress of grievances a necessary condition of supply. They now requested that an answer might be given before they made their grant of subsidy. This was one of the articles which Richard II.'s judges had declared it high treason to attempt. Henry was not inclined to make a con- cession which would virtually have removed the chief im- pediment to the ascendency of Parliament. He first said that he would consult with the Lords, and answer according to their advice. On the last day of the session the Com- mons were informed that " it had never been known in the time of his ancestors that they should have their petitions answered before they had done all their business in Par- liament, whether of granting money or any other concern ; wherefore the king will not alter the good customs and usages of ancient times." Notwithstanding the just views these Parliaments appear generally to have entertained of their power over the public purse, that of the third of Henry V. followed a precedent from the worst times of Richard II., by granting the king a subsidy on wool and leather during his life. This, an histo- rian tells us, Henry IV. had vainly labored to obtain ; but the taking of Harfleur intoxicated the English with new dreams of conquest in France, which their good sense and constitutional jealousy were not firm enough to resist. The continued expenses of the war, however, prevented this grant from becoming so dangerous as it might have been in a sea- son of tranquillity. Henry V.,like his father, convoked Par- liament almost in every year of his reign. 4. Legislative Bights. — It had long been out of all question 21 482 DISPENSING POWER Chap. VIII. Part IIL that the legislature consisted of the king, Lords, and Com- mons ; or, in stricter language, that the king could not make or repeal statutes without the consent of Parliament. But this fundamental maxim was still frequently defeated by va- rious acts of evasion or violence; which, though protested against as illegal, it was a difficult task to prevent. The king sometimes exerted a power of suspending the observ- ance of statutes, as in the ninth of Richard II., when a peti- tion that all statutes might be confirmed is granted, with an exception as to one passed in the last Parliament, forbidding the judges to take fees or give counsel in cases where the king was a party ; which, " because it was too severe and needs declaration, the king would have of no effect till it should be declared in Parliament." The dispensing power, as exercised in favor of individuals, is quite of a different character from this general suspension of statutes, but indirectly weakens the sovereignty of the legislature. This power was exerted, and even' recognized, throughout all the reigns of the Plantagenets. In the first of Henry V. the Commons pray that the statute for driving aliens out of the kingdom be executed. The king assents, saving his prerogative and his right of dispensing with it when he pleased. To which the Commons replied that their intention was never otherwise, nor, by God's help, ever should be. At the same time one Rees ap Thomas petitions the king to modify, or dispense with, the statute prohibiting Welsh- men from purchasing lands in England, or the English towns in Wales; which the king grants. In the same Parliament the Commons pray that no grant or protection be made to any one in contravention to the statute of provisors, saving the king's prerogative. He merely answers, "Let the stat- utes be observed;" evading any allusion to his dispensing power. The practice of leaving statutes to be drawn up by the judges, from the petition and answer jointly, after a disso- lution of Parliament, presented an opportunity of falsifying the intention of the legislature, whereof advantage was often taken. Some very remarkable instances of this fraud occur- red in the reigns of Richard II. and Plenry IV. An ordinance was put upon the roll of Parliament, in the fifth of Richard II., empowering sheriffs of counties to arrest preachers of heresy and their abettors, and detain them in prison till they should justify themselves before the Church. This was introduced into the statutes of the year; but the assent of Lords and Commons is not expressed. In the next English Const. OF THE CROWN. 483 Parliament the Commons, reciting this ordinance, declare that it was never assented to nor granted by them, but what had been proposed in this matter was without their concurrence (that is, as I conceive, had been rejected by them), and pray that this statute be annulled ; for it was never their intent to bind themselves or their descendants to the bishops more than their ancestors had been bound in times past. The king returned an answer agreeing to this petition. Never- theless the pretended statute was untouched, and remains still among our laws,** unrepealed, except by desuetude, and by inference from the acts of much later times. This commendable reluctance of the Commons to let- the clergy forge chains for them produced, as there is much ap- pearance, a similar violation of their legislative rights in the next reign. The statute against heresy in the second of Henry IV. is not grounded upon any petition of the Com- mons, but only upon one of the clergy. It is said to be en- acted by consent of the Lords ; but no notice is taken of the lower house in the Parliament roll, though the statute re- citing the petition asserts the Commons to have joined in it. The petition and the statute are both in Latin, which is un- usual in the laws of this time. In a subsequent petition of the Commons this act is styled "the statute made in the second year of your majesty's reign at the request of the prelates and clergy of your kingdom ;" which affords a pre- sumption that it had no regular assent of Parliament. And the spirit of the Commons during this whole reign being re- markably hostile to the Church, it would have been hardly possible to obtain their consent to so penal a law against heresy. Several of their petitions seem designed indirectly to weaken its efficacy. These infringements of their most essential right were re- sisted by the Commons in various ways, according to the measure of their power. But even where there was no de- sign to falsify the roll it was impossible to draw up statutes which should be in truth the acts of the whole legislature, so long as the king continued to grant petitions in part, and to ingraft new matter upon them. Such was still the case till the Commons hit upon an effectual expedient for screening 1* 5 R. II., stat. 2, c. 5 ; Rot. Pari. 6 R. II., p. 141. Some other instances of the Com- Tnous attempting to prevent these unfair practices are adduced by RufFhead, in hiJs preface to the Statutes, and in Prynne's preface to Cotton's Abridgment of the Rec- ords. The act 13 R. II., stat. 1, c. 15, that the king's castles and jails which had been separated from the body of the adjoining counties should be reunited to them, is not founded upon any petition that appears on the roll ; and probably, by making search^ other instances equally flagrant might be discovered. 484 CONTROLLING THE Chap. VIIL Part IIL themselves against these encroachments, which has lasted without alteration to the present day. This was the intro- duction of complete statutes under the name of bills, instead of the old petitions ; and these containing the royal assent and the whole form of a law, it became, though not quite immediately, a constant principle that the king must admit or reject them without qualification. This alteration, which wrought an extraordinary effect on the character of our con- stitution, was gradually introduced in Henry VL's reign. From the first years of Henry V., though not, I think, earlier, the Commons began to concern themselves with the petitions of individuals to the Lords or Council. The nature of the jurisdiction exercised by the latter will be treated more fully hereafter ; it is only necessary to mention in this place that many of the requests preferred to them were such as could not be granted without transcending the boundaries of law. A just inquietude as to the encroachments of the king's council had long been manifested by the Commons; and finding remonstrances ineffectual, they took measures for preventing such usurpations of legislative power by in- troducing their own consent to private petitions. These were now presented by the hands of the Commons, and in very many instances passed in the form of statutes with the express assent of all parts of the legislature. Such was the origin of private bills, which occupy the greater part of the rolls in Henry V. and VL's Parliament. 5. Controlling the Royal Expeyiditure. — If the strength of the Commons had lain merely in the weakness of the crown, it might be inferred that such harassing interference with the administration of affairs as the youthful and frivolous Richard was compelled to endure would have been sternly lepelled by his experienced successor. But, on the contrary, the spirit of Richard might have rejoiced to see that his mor- tal enemy suffered as hard usage at the hands of Parliament as himself. After a few years the government of Henry be- came extremely unpopular. Perhaps his dissension with the great family of Percy, which had placed him on the throne, and was regarded with partiality by the people, chiefly con- tributed to this alienation of their attachment. The Com- mons requested, in the fifth of his reign, that certain persons might be removed from the court ; the Lords concurred in displacing four of these, one being the king's confessor. Henry came down to Parliament and excused these four per- sons, as knowing no special cause why they should be re- moved ; yet, well understanding that what the Lords and English Const. ROYAL EXPENDITURE. 485 Commons should ordain would be for his and his kingdom's interest, and therefore anxious to conform himself to their wishes, consented to the said ordinance, and charged the per- sons in question to leave his palace; adding, that he would do as much by any other about his person whom he should find to have incurred the ill affection of his people. But no Parliament came near, in the number and boldness of its demands, to that held in the eighth year of Henry IV. The Commons presented thirty-one articles, none of which the king ventured to refuse, though pressing very severely upon his prerogative. He was to name sixteen counsellors, by whose advice he was solely to be guided, none of them to be dismissed without conviction of misdemeanor. The chancellor and privy seal to pass no grants or other matter contrary to law. Any persons about the court stirring up the king or queen's minds against their subjects, and duly convicted thereof, to lose their offices and be fined. The king's ordinary revenue was wholly appropriated to his house- hold and the payment of his debts; no grant of wardship or other profit to be made thereout, nor any forfeiture to be pardoned. The king, " considering the wise government of other Christian princes, and conforming himself thereto," was to assign two days in the week for petitions, " it being an honorable and necessary thing that his lieges, who desired to petition him, should be heard." No judicial officer, nor any in the revenue or household, to enjoy his place for life or term of years. No petition to be presented to the king by any of his household at times when the council were not sit- ting. The council to determine nothing cognizable at com- mon law, unless for a reasonable cause and with consent of the judges. The statutes regulating purveyance were af- firmed — abuses of various kinds in the council ?.nd in courts of justice enumerated and forbidden — elections of knights for counties put under regulation. The council and officers of state were sworn to observe the common law and all statutes, those especially just enacted. It must strike every reader that these provisions were of themselves a noble fabric of constitutional liberty, and hard- ly perhaps inferior to the petition of right under Charles I. We can not account for the submission of Henry to condi- tions far more derogatory than ever were imposed on Rich- ard, because the secret politics of his reign are very imper- fectly understood. Power deemed to be ill gotten is naturally precarious ; and the instance of Henry IV. has been well quoted to 48e TREATY OF TROYES. Chap. VIII.* Part III. prove that public liberty flourishes with a bad title in the sovereign. None of our kings seem to have been less be- loved ; and indeed he had little claim to affection. But what men denied to the reigning king they poured in full measure upon the heir of his throne. The virtues of the Prince of Wales are almost invidiously eulogized by those Parliaments who treat harshly his fiither ; and these records afford a strong presumption that some early petulance or riot has been much exaggerated by the vulgar minds of our chroniclers. One can scarcely understand, at least, that a prince who was three years engaged in quelling the danger- ous insurrection of Glendower, and who in the latter time of his father's reign presided at the council, was so lost in a cloud of low debauchery as common fame represents. Loved he certainly was throughout his life, as so intrepid, affable, and generous a temper well deserved; and this sentiment was heightened to admiration by successes still more rapid and dazzling than those of Edward III. During his reign there scarcely appears any vestige of dissatisfaction in Parliament — a circumstance very honorable, whether we ascribe it to the justice of his administration or to the affection of his people. The Parliament confirmed the league of Henry V. with the Emperor Sigismund ; and the treaty of Troyes, which was so fundamentally to change the situation of Henry and his successors, obtained, as it evidently required, the sanction of both houses of Parliament. These precedents conspiring with the weakness of the executive government, in the mi- nority of Henry VI., to fling an increase of influence into the scale of the Commons, they made their concurrence necessa- ry to all important business both of a foreign and domestic nature. Thus commissioners were appointed to treat of the deliverance of the King of Scots, the duchesses of Bedford and Gloucester were made denizens, and mediators were ap- pointed to reconcile the dukes of Gloucester and Burgundy, by authority of the three estates assembled in Parliament. Leave was given to the dukes of Bedford and Gloucester, and others in the king's behalf, to treat of peace with France, by both houses of Parliament, in pursuance of an ar- ticle in the treaty of Troyes, that no treaty should be set on foot with the dauphin without consent of the three estates of both realms. This article was afterwards repealed. Some complaints are made by the Commons, even during the first years of Henry's minority, that the king's sub- jects, underwent arbitrary imprisonment, and were vexed by English Const. IMPEACHMENT OF MINISTERS. 487 summonses before the council and by the newly-invented writ of subpoena out of chancery. But these are not so com- mon as formerly; and so far as the rolls lead us to any in- ference, there was less injustice committed by the govern- ment under Henry VI. and his father than at any former pe- riod. Wastefulness, indeed, might justly be imputed to the regency, who had scandalously lavished the king's revenue. This ultimately led to an act for resuming all grants since his accession, founded upon a public declaration of the great of- ficers of the crown that his debts amounted to £372,000, and the annual expense of the household amounted to £24,000, while the ordinary revenue was not more than £5000. 6. Impeachment of Ministers. — But before this time the sky had begun to darken, and discontent with the actual ad- ministration pervaded every rank. The causes of this are familiar — the unpopularity of the king's marriage with Mar- garet of Anjou, and her impolitic violence in the conduct of affairs, particularly the imputed murder of the-people's favor- ite, the Duke of Gloucester. This provoked an attack upon her own creature, the Duke of Suffolk. Impeachment had lain still, like a sword in the scabbard, since the accession of Henry IV. In Suffolk's case the Commons seem to have proceeded by bill of attainder, or at least to have designed the judgment against that minister to be the act of the whole legislature; for they delivered a bill containing arti- cles against him to the Lords, with a request that they would pray the king's majesty to enact that bill in Parliament, and that the said duke might be proceeded against upon the said articles in Parliament according to the law and custom of England. These articles contained charges of high treason, chiefly relating to his conduct in France, which, whether treasonable or not, seems to have been grossly against the honor and advantage of the crown. At a later day the Com- mons presented many other articles of misdemeanor. To the former he made a defense, in presence of tb'^ king as well as the Lords, both spiritual and temporal ; and indeed the articles of impeachment were directly addressed to the king, which gave him a reasonable pretext to interfere in the judg- ment. But from apprehension, as it is said, that Suffolk could not escape conviction upon at least some part of these charges, Henry anticipated with no slight irregularity tho course of legal trial, and, summoning the peers into a private chamber, informed the Duke of Suffolk, by mouth of his chan- cellor, that, inasmuch as he had not put himself upon his 488 PRIVILEGE OF PARLIAMENT. Chap. VIII. Part III. peerage, but submitted wholly to the royal pleasure, the king, acquitting him of the first articles containing matter of treason, by his own advice and not that of the Lords, nor by way of judgment, not being in a place where judgment, could be delivered, banished him for five years from his dominions. The lords then present besought the king to let their protest appear on record, that neither they nor their posterity might lose their rights of peerage by this prece- dent. It was justly considered as an arbitrary stretch of prerogative, in order to defeat the privileges of Parliament and screen a favorite minister from punishment. But the course of proceeding by bill of attainder instead of regular impeachment was not judiciously chosen by the Commons. Privilege of Parliament. — Privilege of Parliament, an ex- tensive and singular branch of our constitutional law, be- gins to attract attention under the Lancastrian princes. It is true, indeed, that we can trace long before by records, and may infer with probability as to times whose records have not survived, one considerable immunity — a freedom from arrest for persons transacting the king's business in his na- tional council. But in those rude times members of Parlia- ment were not always respected by the officers executing legal process, and still less by the violators of law. After several remonstrances, w^hich the crown had evaded, the Commons obtained the statute 11 Henry VI.,c. ll,for the punishment of such as assault any on their way to the Par- liament, giving double damages to the party. They had more difficulty in establishing, notwithstanding the old prec- edents in their favor, an immunity from all criminal process except in charges of treason, felony, and breach of the peace, which is their present measure of privilege. The most cele- brated, however, of these early cases of privilege is that of Thomas Thorp, speaker of the Commons in 31 Henry VI. This person, who was, moreover, a baron of the Exchequer, had been imprisoned on an execution at suit of the Duke of York. The Commons sent some of their members to com- plain of a violation of privilege to the king and Lords in Par- liament, and to demand Thorp's release. It was alleged by the Duke of York's counsel that the trespass done by Thorp was since the beginning of the Parliament, and the judgment thereon given in time of vacation, and not during the sitting. The Lords referred the question to the judges, who said, after deliberation, that " they ought not to answer to that question, for it hath not be used aforetyme that the judges should in any wise determine the privilege of this high court English Const. PRIVILEGE OF PARLIAMENT. 489 of Parliament ; for it is so high and so mighty in his nature that it may make hiw, and that that is law it may make no law ; and the determination and knowledge of that privilege belongeth to the Lords of the Parliament, and not to the jus- tices." They went on, however, after observing that a gen- eral writ of supersedeas of all processes upon ground of priv- ilege had not been known to say that, " if any person that is a member of this high court of Parliament be an-ested in such cases as be not for treason, or felony, or surety of the peace, or for a condemnation had before the Parliament, it is used that all such persons should be released of sucli arrests and make an attorney, so that they may have their freedom and liberty freely to intend upon the Parliament." Notwithstanding this answer of the judges, it was con- cluded by the Lords that Thorp should remain in prison, with- out regarding the alleged privilege ; and the Commons were directed in the king's name to proceed " with all goodly haste and speed" to the election of a new speaker, vlt is curious to observe that the Commons, forgetting their griev- ances, or content to drop them, made such haste and speed according to this command that they presented a new speak- er for approbation the next day. This case, as has been strongly said, was begotten by the iniquity of the times. The state was verging fast towards civil war ; and Thorp, who afterwards distinguished himself for the Lancastrian cause, was an inveterate enemy of the Duke of York. That prince seems to have been swayed a little from his usual temper in procuring so unwarrantable a determination. In the reign of Edward IV. the Commons claimed privilege against any civil suit during the time of their session ; but they had recourse, as before, to a particu- lar act of Parliament to obtain a writ of supersedeas in favor of one Atwell, a member, who had been sued. The present law of privilege seems not to have been fully established, or at least effectually maintained, before the reign of Henry VIIL No privilege of the Commons can be so fundamental as liberty of speech. This is claimed at the opening of every Parliament by their speaker, and could never be infringed without shaking the ramparts of the constitution. Richard .IL's attack upon Haxey has been already mentioned as a fla- grant evidence of his despotic intentions. No other case oc- curs until the 33d year of Henry VI., w^hen Thomas Young, member for Bristol, complained to the Commons that, " for matters by him showed in the house accustomed for the 21* 490 PRIVILEGE OF PARLIAMENT. Chap. VIIL Part III. Commons in the said Parliaments, he was therefore taken, arrested, and rigorously in open wise led to the Tower of London, and there grievously in great duress long time im- prisoned against the said freedom and liberty ;" with much more to the like effect. The Commons transmitted this peti- tion to the Lords, and the king " willed that the lords of his council do and provide for the said suppliant as in their dis- cretions shall be thought convenient and reasonable." This imprisonment of Young, however, had happened six years before, in consequence of a motion made by him that, the king then having no issue, the Duke of York might be de- clared heir-apparent to the crown. In the present session, when the duke was protector, he thought it well-timed to prefer his claim to remuneration. There is a remarkable precedent in the 9th of Henry lY., and perhaps the earliest authority for two eminent maxims, of Parliamentary law — that the Commons possess an exclu- sive right of originating money bills, and that the king ought not to take notice of matters pending in Parliament. A quarrel broke out between the two houses upon this ground ; and as Ave have not before seen the Commons venture to clash openly with their superiors, the circumstance is for this additional reason worthy of attention. As it has been little noticed,! shall translate the whole record.^* IS " Friday, the second day of December, which was the last day of the Parliameut, the Commons came before the king and the Lords in Parliament, and there, by com- mand of the king, a schedule of indemnity touching a certain altercation moved be- tween the Lords and Commons was read ; and on this it was commanded by onrsaid lord the king that the said schedule should be entered of record in the roll of Parlia- ment ; of which schedule the tenor is as follows : Be it remembered, that on Mon- day, the 21st day of November, the king our sovereign lord being in the council- chamber in the abbey of Gloucester, the lords spiritual and temporal for this present Parliament assembled being then in his presence, a debate took place among them about the state of the kingdom, and its defense to resist the malice of the enemies who on every side prepare to molest the said kingdom and its faithful subjects, and how no man can resist this malice unless, for the safeguard and defense of his said kingdom, our sovereign lord the king has some notable aid and subsidy granted to him in his present Parliament. And therefore it was demanded of the said Lords by way of question what aid would be sufficient and requisite in these circumstances? To which question it was answered by the said Lords severally, that, considering the necessity of the king on one side and the poverty of his people on the other, no less aid could be sufficient than one-tenth and a half from cities and towns, and one-fif- teenth and a half from all other lay persons ; and, besides, to grant a continuance of the subsidy on wool, wool-fells, and leather, and of three shillings on the tun (of wine), and twelve pence on the pound (of other merchandise), from Michaelmas next ensuing for two years thenceforth. Whereupon, by command of our said lord the king, a message was sent to the Commons of this Parliament to cause a certain . number of their body to come before our said lord the king and the Lords, in order to hear and report to their companions what they should be commanded by our said lord the king. And upon this the said Commons sent into the presence of our said lord the king and the said Lords twelve of their companions ; to whom, by command of our said lord the king, the said question was declared, with the answer by the said lords severally given to it. Which answer it was the pleasure of our said lord the English Const. PRIVILEGE OF PARLIAMENT. 491 Every attentive reader will discover this remarkable pas- sage to illustrate several points of constitutional law. For hence it may be perceived — first, that the king was used in those times, to be present at debates of the Lords, personal- ly advising with them upon the public business ; which also appears by many other passages on record ; and this prac- tice, I conceive, is not abolished by the king's present dec- laration, save as to grants of money, which ought to be of the free-will of Parliament, and without that fear or influ- ence which the presence of so high a person might create : secondly, that it was already the established law of Parlia- ment that the Lords should consent to the Commons' grant, and not the Commons to the Lords' ; since it is the inversion of this order whereof the Commons complain, and it is said expressly that grants are made by the Commons, and agreed to by the Lords : thirdly, that the lower house of Parliament is not, in proper language, an estate of the realm, but rather the image and representative of the Commons ot England ; who, being the third estate, with the nobility and clergy make up and constitute the people of this kingdom and liege subjects of the crown. ^" king that they should report to the rest of their fellow?, to the end that they might take the shortest course to comply with the intention of the siiid Lords. Which re- port being thus made to the said commons, they were greatly disturbed at it, saying and asserting it to be much to the prejudice and derogation of their liberties. And after that our said lord the king had heard this, not willing that any thing should be done at present, or in time to come, that might anywise turn against the liberty of the estate for which they are come to Parliament, nor against the liberties of the said Lords, wills and grants and declares, by the advice and consent of the said Lords, as follows : to wit, that it shall be lawful for the Lords to debate together in this pres- ent Parliament, and in every other for time to come, in the king's absence, concern- ing the condition of the kingdom, and the remedies necessary for it. And in like manner it shall be lawful for the Commons, on their part, to debate together concern- ing the said condition and remedies. Provided always that neither the Lords on their part, nor the Cxjmmons on theirs, do make any report to our said lord the king of any grant granted by the Commons, and agreed to by the Lords, nor of the communica- tions of the said grant, before that the said Lords and Commons are of one accord and agreement in this matter, and then in manner and form accustomed— that is to say, by the mouth of the speaker of the said Commons for the time being— to the end that the said Lords and Commons may have what they desire (avoir puissent leur gree) of our said lord the king. Our said lord the king willing, moreover, by the consent of the said Lords, that the communication had in this present Parliament as above be not drawn into precedent in time to come, nor be turned to the prejudice or deroga- tion of the liberty of the estate for which the said Commons are now come, neither in this present Parliament nor in any other time to come. But wills that himself and all the other estates should be as free as they were before. Also, the said last day of Parliament, the said speaker prayed our said lord the king, on the part of the said Commons, that he would grant the said Commons that they should depart in as great liberty as other Commons had done before. To which the king answered that this pleased him well, and that at all times it had been his desire." i« A notion is entertained by many people, and not without the authority of some very respectable names, that the king is one of the three estates of the realm, the lords spiritual and temporal forming together the second, as the Commons in Parlia- ment do the third. This is contradicted by the general tenor of our ancient records 492 RIGHT OF VOTING FOR KNIGHTS. Chap. VIII. Part III It was not only in money bills that the originating power was supposed to reside in the Commons. The course of pro- ceedings in Parliament, as has been seen, from the commence- ment at least of Edward III.'s reign, was that the Commons presented petitions, which the Lords by themselves, or with the assistance of the council, having duly considered, the sanction of the king was notified or withheld. This was so much according to usage, that on one occasion, when the Commons requested the advice of the other house on a mat- ter before them, it was answered that the ancient custom and form of Parliament had ever been for the Commons to report their own opinion to the king and Lords, and not to The contrary; and the king would have the ancient and laud- able usages of Parliament maintained. It is singular that, m the terror of innovation, the Lords did not discover how materially this usage of Parliament took off from their own legislative influence. The rule, however, was not observed in succeeding times ; bills originated indiscriminately in either house; and indeed some acts of Henry V., which do not ap- pear to be grounded on any petition, may be suspected, from the manner of their insertion in the rolls of Parliament, to have been proposed on the king's part to the Commons. §17. Whoever may have been the original voters for county representatives, the first statute that regulates their election, so far from limiting the privilege to tenants in cap- ite, appears to place it upon a very large and democratical foundation. For (as I rather conceive, though not without much hesitation) not only all freeholders, but all persons whatever present at the County Court, were declared, or rendered, capable of voting for the knight of their shire. Such at least seems to be the inference from the expressions of 7 Henry IV., c. 15, "all who are there present, as well suit- ors duly summoned for that cause as others." And this ac- quires some degree of confirmation from the later statute, 8 Henry VI., c. 7, which, reciting that "elections of knights of shires have now of late been made by very great, outra- geous, and excessive number of people dwelling within the same counties, of the which most part was people of small substance and of no value," confines the elective franchise to freeholders of lands or tenements to the value of forty shillings. and law-books ; and indeed the analogy of other governments ought to have the greatest weight, even if more reason for doubt appeared upon the face of our own authorities. But the instances where the three estates are declared or implied to be the nobility, clergy, and commons, or at least their representatives in Parliament, are too numerous for insertion. English Const. ELECTION OF BURGESSES. 493 The representation of towns in Parliament was founded upon two principles — of consent to public burdens, and of advice in public measures, especially such as related to trade and shipping. Upon both these accounts it was natural for the kings who first summoned them to Parliament, little fore- seeing that such half-emancipated burghers would ever clip the loftiest plumes of their prerogative, to make these as- semblies numerous, and summon members from every town of consideration in the kingdom. Thus the writ of 23 Ed- ward I. directs the sheriffs to cause deputies to be elected to a general council from every city, borough, and trading- town. And although the last words are omitted in subse- quent writs, yet their spirit was preserved ; many towns having constantly returned members to Parliament by reg- ular summonses from the sheriffs, which were no chartered boroughs, nor had apparently any other claim than their populousness or commerce. These are now called boroughs by prescription.*^ Besides these respectable towns, there were some of a less eminent figure which had writs directed to them as ancient demesnes of the crown. During times of arbitrary taxation the crown had set tallages alike upon its chartered boroughs and upon its tenants in demesne. When Parliamentary con- sent became indispensable, the free tenants in ancient de- mesne, or rather such of them as inhabited some particular vills, were called to Parliament among the other representa- tives of the Commons. They are usually specified distinctly from the other classes of representatives in grants of subsi- dies throughout the Parliaments of the first and second Ed- wards, till, about the beginning of the third's reign, they were confounded with ordinary burgesses. This is the foun- dation of that particular species of elective franchise incident to what we denominate burgage tenure ; which, however, is not confined to the ancient demesne of the crown. The proper constituents, therefore, of the citizens and bur- gesses in Parliament appear to have been — 1. All chartered boroughs, whether they derived their privileges from the crown or from a mesne lord, as several in Cornwall did from Richard, king of the Romans ; 2. All towns which were the ancient or the actual demesne of the crow^n ; 3. All consid- erable places, though unincorporated, which could afford to defray the expenses of their representatives, and had a nota- ble interest in the public welfare. But no Parliament ever »' The majority of prescriptive boroughs have prescriptive corporations which carry the legal, which is not always the moral, presumption of an original charter. 494 POWER OF SHERIFF. Chap. VIII. Part III. perfectly corresponded with this theory. The writ was ad- dressed ill general terms to the sheriff, requiring him to cause two knights to be elected out of the body of the county, two citizens from every city, and two burgesses from every borough. It rested altogether upon him to de- termine what towns should exercise this franchise; and it is really incredible, with all the carelessness and ignorance of those times, what frauds the sheriffs ventured to commit in executing this trust. Though Parliaments met almost every year, and there could be no mistake in so notorious a fact, it was the continual yjractice of sheriffs to omit boroughs that had been in recent habit of electing members, and to return upon the writ that there were no more within their county. Thus in the 1 2th of Edward III. the Sheriff of Wilt- shire, after returning two citizens for Salisbury, and burgesses for two boroughs, concludes with these words: "There are no other cities or boroughs within my bailiwick." Yet, in fact, eight other towns had sent members to preceding Parlia- ments. So in the 6th of Edward II. the Sheriff of Bucks declared that he had no borough within his county except Wicomb; though Wendover, Agmondeshain, and Marlow had twice made returns since that king's accession. And from this cause alone it has happened that many towns called boroughs, and having a charter and constitution as such, never returned members to Parliament ; some of which are now among the most considerable in England — as Leeds, Birmingham, and Macclesfield. It has been suggested, indeed, that these returns may not appear so false and collusive if we suppose the sheriff to mean only that there were no resident burgesses within these boroughs fit to be returned, or that the expense of their Avages would be too heavy for the place to support. And no doubt the latter plea, whether implied or not in the re- turn, was very frequently an inducement to the sheriffs to spare the smaller boroughs. The wages of knights were four shillings a day, levied on all freeholders, or at least on all holding by knight-service, within the county. Those of burgesses were half that sum ;"* but even this pittance was ^8 The wages of knights and bnrgesses were first rednced to this certain snm by the writs De levandis expensis, 10 Edward II. These were issued at the request of those who had served, after the dissolution of Parliament, and included a certain number of days, according to the distance of the county whence they came, forgoing and returning. It appears by these that thirty-live or forty miles were reckoned a day's journey ; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. The latest entries of writs for expenses in the close rolls are of 2 Henry V. ; bnt they may be proved to have issued much longer ; and Prynne traces them to the end English Const. ELECTORS IN BOROUGHS. 495 raised with reluctance and difficulty from miserable burghers little solicitous about political franchises. Poverty, indeed, seems to have been accepted as a legal excuse. The elective franchise was deemed by the boroughs no privilege or blessing, but rather, during the chief part of this period, an intolerable grievance. Where they could not persuade the sheriff to omit sending his writ to them they set it at defiance by sending no return. And this seldom failed to succeed, so that, after one or two refusals to comply, which brought no punishment upon them, they were left in quiet enjoyment of their insignificance. The partiality of sheriffs in leaving out boroughs, which w^ere accustomed in old time to come to the Parliament, was repressed, as far as law could repress it, by a statute of Richard IL, which imposed a fine on them for such neglect, and upon any member of Parliament who should absent him- self from his duty. But it is, I think, highly probable that a great part of those who were elected from the boroughs did not trouble themselves with attendance in Parliament. The sheriff even found it necessary to take sureties for their exe- cution of so burdensome a duty, whose names it was usual, down to the end of the fifteenth century, to indorse upon the writ along with those of the elected. This expedient is not likely to have been very successful, and the statute of Rich- ard 11. produced no sensible effect. By what persons the election of burgesses w*as usually made is a question of great obscurity. It appears to have been the common practice for a very few of the principal members of the corporation to make the election in the County Court, and their names, as actual electors, are generally returned upon the writ by the sheriff. But we can not surely be war- ranted by this to infer that they acted in any other capacity than as deputies of the whole body, and indeed it is frequent- ly expressed that they chose such and such persons by the assent of the community ; by which word, in an ancient cor- porate borough, it seems natural to understand the freemen participating in its general franchises, rather than the ruling body, which, in many instances at present, and always per- haps in the earliest age of corporations, derived its authority by delegation from the rest. The consent, however, of the inferior freemen we may easily believe to have been merely of Henry VIIL's reign, p. 547. Withonh the formality of this writ a very few instances of towns remunerating their bnrgesses for attendance in Parliament are known to have occurred in later times. Andrew Marvel is commonly said to have been the last who received this honorable salary. 496 MEMBERS OF THE COMMONS. Chap. VIII. Part III. nominal ; and, from being nominal, it would in many places come by degrees not to be required at all — the corporation, specially so denominated, or municipal government, acquiring iby length of usage an exclusive privilege in election of mem- bers of Parliament, as they did in local administration. This, at least, appears to me a more probable hypothesis than that of Dr. Brady, who limits the original right of election in all corporate boroughs to the aldermen or other capital bur- gesses.^^ The members of the House of Commons, from this occa- sional disuse of ancient boroughs as well as from the creation of new ones, underwent some fluctuation during the period subject to our review. Two hundred citizens and burgesses sat in the Parliament held by Edward I. in his twenty-third year, the earliest epoch of acknowledged representation. But in the reigns of Edward III. and his three successors about ninety places, on an average, returned members, so that we may reckon this part of the C/ommons at one hundred and eighty. These, if regular in their duties, might appear an overbalance for the seventy-four knights who sat with them. But the dignity of ancient lineage, territorial wealth, and military character, in times when the feudal spirit was hard- ly extinct and that of chivalry at its height, made these burghers veil their heads to the landed aristocracy. It is pretty manifest that the knights, though doubtless with some support from the representatives of towns, sustained the chief brunt of battle against the crown. The rule and in- tention of our old constitution was, that each county, city, or borough should elect deputies out of its own body, resident among themselves, and consequently acquainted with their necessities and grievances. It would be very interesting to discover at what time, and by what degrees, the practice of election swerved from this strictness. But I have not been able to trace many steps of the transition. The number of practising lawyers who sat in Parliament, of which there ai"e several complaints, seems to aftbrd an inference that it had begun in the reign of Edward III. Besides several petitions of the commons that none but knights or reputable squires should be returned for shires, an ordinance was made in the forty-sixth of his reign that no lawyer practising in the King's Court, nor sheriff during his shrievalty, be returned knight for a county, because these lawyers put forward many peti- tions in the name of the Commons which only concerned their clients. This, probably, was truly alleged, as we may guess >» Brady on Borough?, p. 132, etc. English Coxst. MEMBERS OF THE COMMONS. 497 from the vast number of proposals for changing the course of legal process which fill the rolls during this reign. It is not to be doubted, however, that many practising lawyers were men of landed estate in their respective counties. An act in the first year of Henry V. directs that none be chosen knights, citizens, or burgesses who are not resident within the place for which they are returned on the day of the date of the writ. This statute apparently indicates a point of time when the deviation from the line of law was frequent enough to attract notice, and yet not so established as to pass for an unavoidable irregularit}^ Even at the time when it was enacted, the law had probably, as such, very little effect. But still the plurality of elections were made according to ancient usage, as well as statute, out of the con- stituent body. The contrary instances were exceptions to the rule, but exceptions increasing continually till they sub- verted the rule itself Prynne has remarked that we chiefly find Cornish surnames among the representatives of Corn- wall, and those of Northern families among the returns from the North. Nor do the members for shires and towns seem to have been much interchanged — the names of the former belonging to the most ancient families, while those of the lat- ter have a more plebeian caste. In the reign of Edward IV., and not before, a very few of the burgesses bear the addition of esquire in the returns, which became universal in the mid- dle of the succeeding century. Even county elections seem in general, at least in the four- teenth century, to have been ill attended, and left to the in- fluence of a few powerful and active persons. A petitioner against an undue return, in the 12th of Edward II., complains that, whereas he had been chosen knight for Devon by Sir William Martin, bishop of Exeter, with the consent of the county, yet the sherifl* had returned another. In several in- dentures of a much kter date a few persons only seem to have been concerned in the election, though the assent of the com- munity be expressed. These irregularities, which it would be exceedingly erroneous to convert, with Hume, into law^ful cus- toms, resulted from the abuses of the sherifl*'s power, which, when Parliament sat only for a few weeks, with its hands full of business, were almost sure to escape wdth impunity. They were sometimes, also, countenanced, or rather instigated, by the crown, which, having recovered in Edward II.'s reign the prerogative of naming the sheriff's, surrendered by an act of his father, filled that office with its creatures, and constantly disregarded the statute forbidding their continuance beyond a 498 HOUSE OF LORDS. Chap. VIII. Part III. year. Without searching for every passage that might illus- trate the interference of the crown in elections, I will mention one or two leading instances. When Richard II. was medi- tating to overturn the famous commission of reform, he sent for some of the sheriffs, and required them to permit no knight or burgess to be elected to the next Parliament without the approbation of the king and his council. The sheriffs replied that the commons would maintain their ancient privilege of electing their own representatives. The Parliament of 1397, which attainted his enemies and left the constitution at his mercy, was chosen, as we are told, by dint of intimidation and influence. § 1 8. The House of Lords, as we left it in the reign of Hen- ry HI., was entirely composed of such persons holding lands by barony as were summoned by particular writ of Parlia- ment. Tenure and summons were both essential at this time in order to render any one a lord of Parliament — the first, by the ancient constitution of our feudal monarchy from the Con- quest; the second, by some regulation or usage of doubtful origin, which was thoroughl}'^ established before the conclu- sion of Henry IIL's reign. This produced, of course, a very marked difference between the greater and the lesser, or un- parliamentary barons. The tenure of the latter, however, still subsisted ; and, though too inconsiderable to be members of the legislature, they paid relief as barons, they might be chal- lenged on juries, and, as I presume, by parity of reasoning, were entitled to trial b}'- their peerage. These lower barons, or more commonly tenants by parcels of baronies,'^" may be dimly traced to the latter years of Edward IH. But many of them were successively summoned to Parliament, and thus recovered the former lustre of their rank, while the rest fell gradually into the station of commoners, as tenants by simple knight-service. As tenure without summons did not entitle any one to the privileges of a Lord of Parliament, so no spiritual person at least ought to have been summoned without baronial tenure. Great irregularities prevailed in the rolls of Chancery, from which the writs to spiritual and temporal peers were taken — arising in part, perhaps, from negligence, in part from will- ful perversion ; so that many abbots and priors, who had no baronial tenure, were summoned at times and subsequently 20 Baronies were often divided by descent among females into many parts, each retaining its character as a fractional member of a barony. The tenants in such case were said to hold of the king by the third, fourth, or twentieth part of a barony, and did service or paid relief in such proportion. English Const. TENURE OF LORDS SPIRITUAL. 499 omitted, of whose actual exemption we have no record. Out of 122 abbots and 41 priors who at some time or other sat in Parliament, but twenty-five of the former and two of the latter were constantly summoned ; the names of forty occur only once, and those of thirty-six others not more than five times. Their want of baronial tenure, in all probability, pre- vented the repetition of writs which accident or occasion had caused to issue." The ancient temporal peers are supposed to have been in- termingled with persons who held nothing of the crown by barony, but attended in Parliament solely by virtue of the king's prerogative exercised in the writ of summons. These have been called Barons by Writ; and it seems to be denied by no one that, at least under the first three Edwards, there were some of this description in Parliament. But, after all the labors of Dugdale and others in tracing the genealogies of our ancient aristocracy, it is a problem of much difficulty to distinguish these from the territorial barons. As the lat- ter honors descended to female heirs, they passed into new families and new names, so that we can hardly decide of one summoned for the first time to Parliament that he did not inherit the possession of a feudal barony. Husbands of ba- ronial heiresses were frequently summoned in their wives' right, but by their own names. They even sat after the death of their wives, as tenants by the courtesy. If we judge, however, by the lists of those summoned, according to the best means in our power, it will appear that the regu- lar barons by tenure were all along very far more numerous than those called by writ ; and that from the end of Edward III.'s reign no spiritual persons, and few if any laymen, ex- cept peers created by patent, were summoned to Parliament who did not hold territorial baronies. With respect to those who were indebted for their seats among the Lords to the king's writ, there are two material questions — whether they acquired an hereditary nobility by virtue of the writ ; and, if this be determined against them, whether they had a decisive or merely a deliberative voice in the house. Now, for the first question, it seems that, if the writ of summons conferred an estate of inheritance, it 9» It is worthy of observation that the spiritual peers summoned to Parliament 'vere in general considerably more numerous than the temporal. This appears, among other causes, to have saved the Church from that sweeping reformation of its wealth, and perhaps of its doctrines, which the Commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by the dissolution of monasteries was indispensably required to bring the ecclesias- tical order into due subjection to the state. 500 BARONS CALLED BY WRIT. Chap. VIII. Part III. must have done so either by virtue of its terms or by estab- lished construction and precedent. But the writ contains no words by which such an estate can in law be limited ; it summons the person addressed to attend in Parliament in order to give his advice on the public business, but by no means implies that his advice will be required of his heirs, or even of himself, on any other occasion. We find that no less than ninety-eight laymen were summoned once only to Par- liament, none of their names occurring afterwards ; and fifty others two, three, or four times. Some were constantly sum- moned during their lives, none of whose posterity ever at- tained that honor. The course of proceeding, therefore, pre- vious to the accession of Henry VIL, by no means warrants the doctrine which was held in the latter end of Elizabeth's reign, and has since been too fully established by repeated precedents to be shaken by any reasoning. The foregoing observations relate to the more ancient history of our consti- tution, and to the plain matter-of-fact as to those times, with- out considering what political cause there might be to pre- vent the crown from introducing occasional counsellors into the House of Lords. It is manifest by many passages in these records that ban- nerets were frequently summoned to the upper house of Par- liament, constituting a distinct class inferior to barons, though generally named together, and ultimately confounded with them. Barons are distinguished by the appellation of Sire ; bannerets have only that of Monsieur, as le Sire de Berke- ley, le Sire de Fitzwalter, Monsieur Richard Scrop, Monsieur Richard Stafford. The distinction, however, between barons and bannerets died away by degrees. In the second of Hen- ry VI., Scrop of Bolton is called le Sire de Scrop — a proof that he was then reckoned among the barons. The bannerets do not often appear afterwards by that appellation as members of the upper house. Bannerets, or, as they are called, ban- rents, are enumerated among the orders of Scottish nobility in the year 1428, when the statute directing the common lairds or tenants in capite to send representatives was enact- ed ; and a modern historian justly calls them an intermedi- ate order between the peers and lairds. Perhaps a consider- ation of these facts, which have frequently been overlooked, may tend in some measure to explain the occasional discon- tinuance, or sometimes the entire cessation, of writs of sum- mons to an individual or his descendants ; since we may con- ceive that bannerets, being of a dignity much inferior to tiiat of barons, had ho such inheritable nobility in their blood as English Const. BANNERETS IN THE LORDS. 601 rendered their Parliamentary privileges a matter of right. But whether all those who without any baronial tenure re- ceived their writs of summons to Parliament belonged to the order of bannerets, I can not pretend to affirm ; though some passages in the rolls might rather lead to such a supposition. The second question relates to the right of suffrage pos- sessed by these temporary members of the upper house. It might seem plausible, certainly, to conceive that the real and ancient aristocracy would not permit their powers to be im- paired by numbering the votes of such as the king might please to send among them, however they might allow them to assist in their debates. But I am much more inclined to suppose that they were in all respects on an equality with other peers during their actual attendance in Parliament. For, 1. They are summoned by the same writ as the rest, and their names are confused among them in the lists ; whereas the judges and ordinary counsellors are called by a separate writ, vobiscum et cgeteris de consilio nostro, and their names are entered after those of the peers. 2. Some, who do not appear to have held land baronies, were constantly summon- ed from father to son, and thus became hereditary lords of Parliament through a sort of prescrijjtive right, which prob- ably was the foundation of extending the same privilege af- terwards to the descendants of all who had once been sum- moned. There is no evidence that the family of Scrope, for example, which was eminent under Edward III. and subse- quent kings, and gave rise to two branches, the lords of Bolton and Masham, inherited any territorial honor. 3. It is very difficult to obtain any direct proof as to the right of voting, because the rolls of Parliament do not take notice of any debates ; but there happens to exist one remarkable pas- sage in which the suffrages of the Lords are individually specified." 22 In the first Parliament of Henry IV, the Lords were requested by the Earl of North- nmberland to declare what should be done with the late King Richard. The lords then present agreed that he should be detained in safe custody; and on account of the importance of this matter it seems to have been thought necessary to enter their names upon the roll in these words: The names of the lords concurring in their answer to the said question here follow ; to wit, the Archbishop of Canterbury and fourteen other bishops; seven abbots; the Prince of Wales, the Duke of York, and six earls ; nineteen barons, styled thus— le Sire de Roos, or le Sire de Grey de Ruthyu. Thus far the entry has nothing singular ; but then follow these nine names : Mon- sieur Henry Percy, Monsieur Richard Scrop, le Site Fitz-hngh, le Sire de Bergeveny, le Sire de Lomley, le Baron de Greystock, le Baron de Hilton, Monsieur Thomas Erpyngham, chamberlayu. Monsieur Mayhew Gournay. Of these nine five were un- doubtedly barons, from whatever cause misplaced in order. Scrop was summoned by writ ; but his title of Monsieur, by which he is invariably denominated, would of itself create a strong suspicion that he was no baron, and in another place we find him reckoned among the bannerets. The other three do not appear to have been 502 CREATION OF PEERS. Chap. VIII. Pabt III. § 19. The next method of conferring an honor of peerage was by creation in Parliament. This was adopted by Ed- ward III. in several instances, though always, I believe, for the higher titles of duke or earl. It is laid down by lawyers that whatever the king is said in an ancient record to have done in full Parliament must be taken to have proceeded from the whole legislature. As a question of fact, indeed, it might be doubted whether, in many proceedings where this expression is used, and especially in the creation of peers, the assent of the Commons was specifically and deliberately given. It seems hardly consonant to the circumstances of their or- der under Edward III. to suppose their sanction necessary in what seemed so little to concern their interest. Yet there is an instance in the fortieth year of that prince where the Lords individually, and the Commons with one voice, are declared to have consented, at the king's request, that the Lord de Coucy, who had married his daughter, and was al- ready possessed of estates in England, might be raised to the dignity of an earl, whenever the king should determine what earldom he would confer upon him. Under Richard II. the marquisate of Dublin is granted to Vere by full consent of all the estates. But this instrument, besides the unusual name of dignity, contained an extensive jurisdiction and au- thority over Ireland. In the same reign Lancaster was made Duke of Guienne, and the Duke of York's son created Earl of Rutland, to hold during his father's life. The consent of the Lords and Commons is expressed in their patents, and they are entered upon the roll of Parliament. Henry V. cre- ated his brothers dukes of Bedford and Gloucester, by re- quest of the Lords and Commons, But the patent of Sir John Cornwall, in the tenth of Henry VI,, declares him to be made Lord Fanhope " by consent of the Lords, in the presence of the three estates of Parliament ;" as if it were designed to show that the Commons had not a legislative voice in the creation of peers. § 20. The mention I have made of creating peers by act of Parliament has partly anticipated the modern form of let- ters patent, with which the other was nearly allied. The first instance of a barony conferred by patent was in the tenth snmmoned, their writs probably being lost. One of them, Sir Thomas Erpyngham, a statesman well known in the history of those times, is said to have been a ban- neret ; certainly he was not a baron. It is not unlikely that the two others, Henry Percy (Hotspur) and Gournay, an officer of the household, were also bannerets ; they can not, at least, be supposed to be barons, neither were they ever summoned to any subsequent Parliament. Yet in the only record we possess of votes actually givcu iu the House of Lords they appear to have been reckoned among the rest. English Const. CLERGY TO ATTEND PARLIAMENT. 503 year of Richard II., when Sir John Holt, a judge of the Com- mon Pleas, was created Lord Beaucharap, of Kidderminster. Holt's patent, however, passed while Richard was endeavor- ing to act in an arbitrary manner ; and in fact he never sat in Parliament, having been attainted in that of the next year by the name of Sir John Holt. In a number of subsequent patents, down to the reign of Henry VII., the assent of Par- liament is expressed, though it frequently happens that no mention of it occurs in the Parliamentary roll. And in some instances the roll speaks to the consent of Parliament where the patent itself is silent. § 21. It is now, perhaps, scarcely known by many persons not unversed in the constitution of their country that, be- sides the bishops and baronial abbots, the inferior clergy were regularly summoned at every Parliament. In the writ of summons to a bishop he is still directed to cause the dean of his cathedral church, the archdeacon of his diocese, with one proctor from the chapter of the former, and two from the body of his clergy, to attend with him at the place of meet- ing. This might by an inobservant reader be confounded with the summons to the convocation, which is composed of the same constituent parts, and by modern usage is made to assemble on the same day. But it may easily be distin- guished by this difference — that the convocation is provin- cial, and summoned by the metropolitans of Canterbury and York ; whereas the clause commonly denominated lyrmynu- nientes (from its first woi'd) in the writ to each bishop pro- ceeds from the crown, and enjoins the attendance of the cler- gy at the national council of Parliament. The first unequivocal instance of representatives appear- ing for the lower clergy is in the year 1255, when they are expressly named by the author of the Annals of Burton. They preceded, therefore, by a few years the House of Com- mons ; but the introduction of each was founded upon the same principle. The king required the clergy's money, but dared not take it without their consent. In the double Par- liament, if so we may call it, summoned in the 11th of Ed- ward I., to meet at Northampton and York, and divided ac- cording to the two ecclesiastical provinces, the proctors of chapters for each province, but not those of the diocesan clergy, were summoned through a royal writ addressed to the archbishops. Upon account of the absence of any depu- ties from the lower clergy, these assemblies refused to grant a subsidy. The proctors of both descriptions appear to have been summoned by the prtcmunientes clause in the 22d, 23d, 604 CLERGY TO ATTEND PARLIAMENT. Ch. VIII. Pt. III. 24tb, 28th, and 35th years of the same king; but in some other Parliaments of his reign the prtemunientes clause is omitted. The same irregularity continued under his successor ; and the constant usage of inserting this clause in the bishop's writ is dated from the 28th of Edward III. It is highly probable that Edward I., whose legislative mind was engaged in modelling the constitution on a com- prehensive scheme, designed to make the clergy an effective branch ofParliament, however their continual resistance may have defeated the accomplishment of this intention. We find an entry upon the roll of his Parliament at Carlisle, contain- ing a list of all the proctors deputed to it by the several dio- ceses of the kingdom. This may be reckoned a clear proof of their Parliamentary attendance during his reign under the prsemunientes clause; since the province of Canterbury could not have been present in convocation at a city beyond its limits. And, indeed, if w^e were to found our judgment mere- ly on the language used in these writs, it would be hard to resist a very strange paradox, that the clergy were not only one of the three estates of the realm, but as essential a mem- ber of the legislature by their ivpresentatives as the Com- mons." They are summoned in the earliest year extant (23 Edward I.) "ad tractandum, oidmandum et faciendum nobis- cum, et cum ca?teris praelatis, proceribus, ac aliis incolis regni nostri;" in that of the next year, "ad ordinandum de quan- titate et modo siibsidii ;" in that of the twenty-eighth, " ad faciendum et consentiendum his, qua? tunc de communi con- silio ordinari contigerit." In later times it ran sometimes "ad faciendum et consentiendum," sometimes only ad con- sentiendum ; which, from the fifth of Richard II., has been the term invariably adopted. Now, as it is usual to infer from the same words, when introduced into the writs for elec- tion of the Commons, that they possessed an enacting power, implied in the words ad faciendum, or at least to deduce the necessity of their assent from the words ad consentiendum, it should seem to follow that the clergy were invested, as a branch of the Parliament, with rights no less extensive. It '• The lower house of convocation in 1547, terrified at the progress of reformation, petitioned that, " according to the tenor of the king's writ, and the ancient customs of the realm, they might have room and place and be associated with the Commons in the nether house of this present Parliament, as members of the commonwealth and the king's most humble subjects."— Burnet's Hist, of Reformation, vol. ii. ; Ap- pendix, No. IT. This assertion that the clergy had ever been associated as one body with the Commons is not borne out by any thing that appears on our records, and is contradicted by many passages. But it is said that the clergy were actually so united with the Commons in the Irish Parliament till the Reformation.— Gilbert's Hist, of the Exchequer, p. 57. English Const. CLERGY TO ATTEND PARLIAMENT, 505 is to be considered how we can reconcile these apparent at- tributes of political power with the unquestionable facts that almost all laws, even while they continued to attend, were passed without their concurrence, and that, after some time, they ceased altogether to comply with the writ.'^* The solution of this difficulty can only be found in that estrangement from the common law and the temporal courts which the clergy throughout Europe were disposed to effect. In this country their ambition defeated its own ends; and while they endeavored by privileges and immunities to sep- arate themselves from the people, they did not perceive that the line of demarkation thus strongly traced would cut them off from the sympathy of common interests. Every thing which they could call of ecclesiastical cognizance was drawn into their own courts; while the administration of what they contemned as a barbarous system, the temporal law of the land, fell into the hands of lay judges. But these were men not less subtle, not less ambitious, not less attached to their profession than themselves; and wielding, as they did in the courts of Westminster, the delegated sceptre of judicial sov- ereignty, they soon began to control the spiritual jurisdic- tion, and to establish the inherent supremacy of the comnion law. From this time an inveterate animosity subsisted be- tween the two courts, the vestiges of which have only been effaced by the liberal wisdom of modern ages. The general love of the common law, however, with the great weight of its professors in the king's council and in Parliament, kept the clergy in surprising subjection. None of our kings after Henry III. were bigots ; and the constant tone of the Com- mons serves to show that the English nation was thorough- ly averse to ecclesiastical influence, whether of their own Church or the See of Rome. It was natural, therefore, to withstand the interference of the clergy summoned to Parliament in legislation, as much as that of the spiritual court in temporal jurisdiction. With the ordinary subjects, indeed, of legislation they had little concern. The oppressions of the king's purveyors, or escheat- ors, or officers of the forests, the abuses or defects of the common laws, the regulations necessary for trading-towns and sea-ports, were matters that touched them not, and to which their consent was never required. And, as they w^ell 2* The prjemunientes clause in a bishop's writ of summons was so far regarded down to the Reformation, that proctors were elected, and their names returned upon the writ ; though the clergy never attended from tlie beginning of the fifteenth certury, and gave their money only in convocation. Since the Reformation the clanse has been preserved for form merely in the writ. 22 606 CLERGY TO ATTEND PARLIAMENT. Ch. VIII. Pt. III. knew there was no design in summoning their attendance but to obtain money, it was with great reluctance that they obeyed the royal writ, which was generally obliged to be en- forced by an archiepiscopal mandate. Thus, instead of an assembly of deputies from an estate of the realm, they be- came a synod or convocation. And it seems probable that in most, if not all, instances where the clergy are said in the roll of Parliament to have presented their petitions, or are otherwise mentioned as a deliberative body, we should sup- pose the convocation alone of the province of Canterbury to be intended. For that of York seems to have been always considered as inferior, and even ancillary, to the greater province, voting subsidies, and even assenting to canons, with- out deliberation, in compliance with the example of Canter- bury ; the convocation of which province consequently as- sumed the importance of a national council. But in either point of view the proceedings of this ecclesiastical assembly, collateral in a certain sense to Parliament, yet very intimate- ly connected with it, whether sitting by virtue of the prae- munientes clause or otherwise, deserve some notice in a con- stitutional history. In the sixth year of Edward III. the proctoi-s of the clergy are specially mentioned as present at the speech pronounced by the king's commissioner, and retired, along with the prel- ates, to consult together upon the business submitted to their deliberation. They proposed, accordingly, a sentence of ex- communication against disturbers of the peace, which was assented to by the Lords and Commons. The clergy are said afterwards to have had leave, as well as the knights, citizens, and burgesses, to return to their homes, the prel- ates and peers continuing with the king. This appearance of the clergy in full Parliament is not, perhaps, so decisively proved by any later record. But in the eighteenth of the same reign several petitions of the clergy are granted by the king and his council, entered on the roll of Parliament, and even the statute roll, and in some respects are still part of our law. To these it seems highly probable that the Com- mons gave no assent ; and they may be reckoned among the other infringements of their legislative rights. It is remarka- ble that in the same Parliament the Commons, a^ if appre- hensive of what was in preparation, besought the king that no petition of the clergy might be granted till he and his council should have considered whether it would turn to the prejudice of the Lords or Commons. in the fii-st session of Richard IL the prelates and clergy English CoxNst. JUKISDICTION OF KING'S COUNCIL. 507 of both provinces are said to have presented their schedule of petitions whicli appear upon the roll, and three of which are the foundation of statutes unassented to in all probability by the Commons. If the clergy of both provinces were act- ually present, as is here asserted, it must of course have been as a House of Parliament, and not of convocation. It rather seems, so far as we can trust to the phraseology of records, that the clergy sat also in a national assembly under the king's writ in the second year of the same king. Upon other occasions during the same reign, where the representatives of the clergy are alluded to as a deliberative body, sitting at the same time with the Parliament, it is impossible to ascer- tain its constitution ; and, indeed, even from those already cited we can not draw any positive inference. But whether in convocation or in Parliament, they certainly formed a legislative council in ecclesiastical matters by the advice and consent of which alone, without that of the Commons (I can say nothing as to the Lords), Edward IIL and even Richard II. enacted, laws to bind the laity. There is a still more con- spicuous instance of this assumed prerogative in the memo- rable statute against heresy in the second of Henry IV. ; which can hardly be deemed any thing else than an infringe- ment of the rights of Parliament, more clearly established at that time than at the accession of Richard II. Petitions of the Commons relative to spiritual matters, however fre- quently proposed, in few or no instances obtained the king's assent so as to pass into statutes, unless approved by the convocation. But, on the othfer hand, scarcely any temporal laws appear to have passed by the concurrence of the clergy. Two instances only, so far as I know, are on record ; the Parliament held in the eleventh of Richard II. is annulled by that in the twenty-first of his reign, " with the assent of the lords spiritual and temporal, and the proctors of the clergy^ and the Commons ;" and the statute entailing the crown on the children of Henry IV, is said to be enacted on the peti- tion of the prelates, nobles, clergy, and commons. Both these were stronger exertions of legislative authority than ordinary acts of Parliament, and were very likely to be ques- tioned in succeeding times. § 22. The supreme judicature, Avhich had been exercised by the King's Court, was diverted, about the reign of John, into three channels — the tribunals of King's Bench, Common Pleas, and the Exchequer. These became the regular fount- ains of justice, which soon almost absorbed the provincial jurisdictions of the sheriff and lord of mandr. : But the orig- 608 JURISDICTION OF Chap. VIII. Part III. inal institution, having been designed for ends of state, po- lice, and revenue, fully as much as for the determination of private suits, still preserved the most eminent parts of its authority ; for the king's ordinary or privy council, which is the usual style from the reign of Edward I., seems to have been no other than the King's Court (curia regis) of older times, being composed of the same persons, and having, in a principal degree, the same subjects of deliberation. It con- sisted of the chief ministers ; as the chancellor, treasurer, lord steward, lord admiral, lord marshal, the keeper of the privy seal, the chamberlain, treasurer, and comptroller of the household, the chancellor of the Exchequer, the master of the wardrobe ; and of the judges, king's sergeant, and attorney- general, the master of the rolls, and justices in eyre, who at that time were not the same as the judges at Westmin- ster. When all these were called together, it was a full council ; but where the business was of a more contracted nature, those only who were fittest to advise were sum- moned — the chancellor and judges for matters of law ; the officers of state for what concerned the revenue or house- hold." The business of this council, out of Parliament, may be re- duced to two heads — its deliberative office as a council of advice, and its decisive power of jurisdiction. With respect to the first, it obviously comprehended all subjects of polit- ical deliberation, which were usually referred to it by the king ; this being in fact the administration or governing council of state, the distinction of a cabinet being intro- duced in comparatively modern times. But there were like- wise a vast number of petitions continually presented to the council, upon which they proceeded no farther than to sort, as it were, and forward them by indorsement to the proper courts, or advise the suitor what remedy he had to seek. Thus some petitions are answered, " this can not be done without a new law ;" some were turned over to the regular court, as the Chancery or King's Bench ; some of greater moment were indorsed to be heard " before the Great Coun- ts The words "privy council" are said not to be used till after the reign of Henry VI. ; the former style was "ordinary" or "continual council." But a distinction had always been made, according to the nature of the business ; the great officers of state, or, as we might now say, the ministers, had no occasion for the- presence of judges or any lawyers in the secret councils of the crown. They become, therefore, a council of government, though always members of the consilium ordinarium; and, in the former capacity, began to keep formal records of their proceedings. The acts of this council— though, as I have just said, it bore as yet no distinguishing name- are extant from the year 1386, and for seventy years afterwards are known through the valuable publication of Sir Harris Nicolas. English Const. THE KING'S COUNCIL. 609 cil ;" some, concerning the king's interest, were referred to the Chancery, or select persons of the council. The coercive authority exercised by this standing council of the king was far more important. It may be divided into acts, legislative and judicial. As for the first, many ordi- nances were made in council ; sometimes upon request of the Commons in Parliament, who felt themselves better qualified to state a grievance than a remedy ; sometimes without any pretense, unless the usage of government, in the infancy of our constitution, may be thought to afford one. These were always of a temporary or partial nature, and were considered as regulations not sufficiently important to demand a new statute. But the council frequently so much exceeded what the growing spirit of public liberty would permit, that it gave rise to complaint in Parliament. The Commons peti- tion, in 13 R. II., that "neither the chancellor nor the king's council, after the close of Parliament, may make any ordi- nance against the common law, or the ancient customs of the land, or the statutes made heretofore or to be made in this Parliament ; but that the common law have its course for all the people, and no judgment be rendered without due legal process." The king answers, " Let it be done as has been usual heretofore, saving the prerogative ; and if any one is aggrieved, let him show it specially, and right shall be done him." This unsatisfactory answer proves the ar- bitrary spirit in which Richard was determined to govern. The judicial power of the council was in some instances founded upon particular acts of Parliament, giving it power to hear and determine certain causes. Many petitions like- wise were referred to it from Parliament, especially where they were left unanswered by reason of a dissolution. But, independenily of this delegated authority, it is certain that the king's council did anciently exercise, as well out of Par- liament as in it, a very great jurisdiction, both in causes criminal and civil. Some, however, have contended that whatever they did in this respect was illegal, and an en- croachment upon the common law and Magna Charta. And be the common law what it may, it seems an indisputable violation of the charter in its most admirable and essential article, to drag men in questions of their freehold or liberty before a tribunal which neither granted them a trial by their peers nor always respected the law of the land. Against this usurpation the patriots of those times never ceased to lift their voices. Nothing, however, would prevail on the coun- cil to surrender so eminent a power, and, though usurped, 510 JURISDICTION OF Chap. VIII. Part III yet of so long a continuance. Cases of arbitrary imprison- ment frequently occurred, and were remonstrated against by tbe Commons. The right of every freeman in that cardinal point was as indubitable, legally speaking, as at this day ; but the courts of law were afraid to exercise their remedial functions in defiance of so powerful a tribunal. After the accession of the Lancastrian family, these, like other griev- ances, became rather less frequent ; but the Commons re- monstrated several times, even in the minority of Henry VI., against the council's interference in matters cognizable at common law. In these later times the civil jurisdiction of the council was principally exercised in conjunction with the Chancery, and accordingly they are generally named to- gether in the complaint. The chancellor having the great seal in his custody, the council usually borrowed its process from his court. This was returnable into chancery even where the business was depending before the council. Nor were the two jurisdictions less intimately allied in their char- acter, each being of an equitable nature ; and equity, as then practised, being little else than innovation and encroachment on the course of law. This part, long since the most impor- tant of the chancellor's judicial function, can not be traced beyond the time of Richard II., when, the practice of feoff- ments to uses having been introduced, without any legal remedy to secure the cestui que use, or usufructuary, against his feoffees, the Court of Chancery undertook to enforce this species of contract by process of its own. Such was the nature of the king's ordinary council in it- self, as the organ of his executive sovereignty, and such the jurisdiction which it habitually exercised. But it is also to be considered in its relation to the Parliament, during whose session, either singly or in conjunction with the Lords' house, it was particularly conspicuous. The great officers of state, whether peers or not, the judges, the king's sergeant, and at- torney-general, w^ere, from the earliest times, as the latter still continue to be, summoned by special writs to the upper house. But while the writ of a peer runs "ad tractandum nobiscum et cum caeteris praelatis, magnatibus et proceri- bus," that directed to one of the judges is only "ad tractan- dum nobiscum et cum caeteris de consilio nostro;" and the seats of the latter are upon the wool-sacks at one extremity of the house. In the reigns of Edward I. and II. the council appear to have been the regular advisers of the king in passing laws to which the houses of Parliament had assented. The pre- English Const. THE KING'S COUNCIL. 511 ambles of most statutes during this period express their con- currence. Thus the statute Westminster I. is said to be the act of the king by his council, and by the assent of archbish- ops, bishops, abbots, priors, earls, barons, and all the com- monalty of the realm being hither summoned. Still more striking conclusions are to be drawn from the petitions ad- dressed to the council by both houses of Parliament. In the eighth of Edward II. there are four petitions from the Commons to the king and his council, one from the Lords alone, and one in which both appear to have joined. Later Parliaments of the same reign present us with several more instances of the like nature. Thus in 18 Edward II. a peti- tion begins, " To our lord the king, and to his council, the archbishops, bishops, prelates, earls, barons, and others of the commonalty of England, show," etc. But from the beginning of Edward III.'s reign it seems that the council and the Lords' house in Parliament were often blended together into one assembly. This was de- nominated the great council, being the lords spiritual and temporal, with the king's ordinary council annexed to them, as a council within a council. And even in much earlier times the Lords, as hereditary councillors, were, either when- ever they thought fit to attend, or on special summonses by the king (it is hard to say which), assistant members of this council, both for advice and for jurisdiction. This double capacity of the peerage, as members of the Parliament or legislative assembly and of the deliberative and judicial council, throws a very great obscurity over the subject. However, we find that private petitions for redress were, even under Edward I., presented to the Lords in Parliament as much as to the ordinary council. The Parliament was considered a high court of justice, where relief was to be given in cases where the course of law was obstructed, as well as where it was defective. Hence the intermission of Parliaments was looked upon as a delay of justice, and their annual meeting is demanded upon that ground. " The king," says Flete, " has his court in his council, in his Parliaments, in the presence of bishops, earls, barons, lords, and other wise men, where the doubtful cases of judgments are re- solved, and new remedies are provided against new injuries, and justice is rendered to every man according to his desert." In the third year of Edward II. receivers of petitions began to be appointed at the opening of every Parliament, who usually transmitted them to the ordinary, but in some in- stances to the great couiicil. These receivers were com- 512 THE GREAT COUNCIL. Chap. VIII. Part III. monly three for England, and three for Ireland, Wales, Gas- cony, and other foreign donimions. There were likewise two corresponding classes of auditors or triers of petitions. These consisted partly of bishops or peers, partly of judges and other members of the council ; and they seem to have been instituted in order to disburden the council by giving an- swers to some petitions. But about the middle of Edward III.'s time they ceased to act juridically in this respect, and confined themselves to transmitting petitions to the Lords of the council. The great council, according to the definition we have given, consisting of the lords spiritual and temporal, in con- junction with the ordinary council, or, in other words, of all who were severally summoned to Parliament, exercised a considerable jurisdiction, as well civil as criminal. In this jurisdiction it is the opinion of Sir M. Hale that the coun- cil, though not peers, had right of suffrage — an opinion very probable, when we recollect that the council by themselves, both in and out of Parliament, possessed in fact a judicial authority little inferior; and that the king's delegated sov- ereignty in the administration of justice, rather than any intrinsic right of the peerage, is the foundation on which the judicature of the Lords must be supported. But in the time of Edward III. or Richard 11. the Lords, by their as- cendency, threw the judges and rest of the council into shade, and took the decisive jurisdiction entirely to them- selves, making use of their former colleagues but as assist- ants and advisers, as they still continue to be held in all the judicial proceedings of that house. Those statutes which restrain the king's ordinary council from disturbing men in their freehold rights, or question- ing them for misdemeanors, have an equal application to the Lords' house in Parliament, though we do not frequent- ly meet with complaints of the encroachments made by that assembly. There was, however, one class of cases tacitly excluded from the operation of those acts, in which the co- ercive jurisdiction of this high tribunal had great conven- ience — namely, where the ordinary course of justice was so much obstructed by the defending party, through riots, combinations of maintenance, or overawing influence, that no inferior court would find its process obeyed. Those ages, disfigured in their quietest season by rapine and oppression, afibrded no small number of cases that called for this inter- position of a paramount authority. Another indubitable branch of this jurisdiction was in writs of error; but it may English Const. CHARACTER OF GOVERNMENT. 613 be observed that their determination was very frequently left to a select committee of peers and councillors. These, too, cease almost entirely with Henry IV., and were scarcely revived till the accession of James I. § 23. Although the restraining hand of Parliament was continually growing more effectual, and the notions of legal right acquiring more precision, from the time of Magna Charta to the civil wars under Henry VI., we may justly say that the general tone of adininistration was not a little arbitrary. The whole fabric of English liberty rose step by step, through much toil and many sacrifices, each generation adding some new security to the work, and trusting that posterity would perfect the labor as well as enjoy the reward. There is a material distinction to be taken between the exercise of the king's undeniable prerogative, however re- pugnant to our improved principles of freedom, and the abuse or extension of it to oppressive purposes. For we can not fairly consider as part of our ancient constitution what the Parliament was perpetually remonstrating against, and the statute-book is full of enactments to repress. It would be necessary to shut our eyes with deliberate preju- dice against the whole tenor of the most unquestionable au- thorities, against the petitions of the Commons, the acts of the legislature, the testimony of historians and lawyers, be- fore we could assert that England acquiesced in those abuses and oppressions which it must be confessed she was unable fully to prevent. The word prerogative is of a peculiar import, and scarcely understood by those who come from the studies of political philosophy. We can not define it by any theory of execu- tive functions. All these may be comprehended in it, but also a great deal more. It is best, perhaps, to be understood by its derivation, and has been said to be that law in case of the king which is law in no case of the subject.^" Of the higher and more sovereign prerogatives I shall here say nothing ; they result from the nature of a monarchy, and have nothing very peculiar in their character. But the smaller rights of the crown show better the original linea- ments of our constitution. It is said commonly enough that all prerogatives are given for the subject's good. I must confess that no part of this assertion corresponds with my view of the subject. It neither appears to me that these prerogatives were ever given nor that they necessarily re- dound to the subject's good. Prerogative, in its old sei?€e, 28 Blackstone's Comment, from Fiuch, vol. i., c. 7. 22* 514^ PURVEYANCE. Chap. VIII. Paut Hi. might be defined an advantage obtained by the crown over the subject, in cases where their interests came into compe- tition, by reason of its greater strength. This sprang from the nature of the Norman government, which rather resem- bled a scramble of wild beasts, where the strongest takes the best share, than a system founded upon principles of common utility. And, modified as the exercise of most pre- rogatives has been by the more liberal tone which now per- vades our course of government, whoever attends to the common practice of courts of justice, and, still more, who' ever consults the law-books, will not only be astonished at their extent and multiplicity, but very frequently at their injustice and severity. 1. Purveyance. — The real prerogatives that might formerly be exerted were sometimes of so injurious a nature that we can hardly separate them from their abuse: a striking in- stance is that of purveyance, which will at once illustrate the definition above given of a prerogative, the limits within which it was to be exercised, and its tendency to transgress them. This was a right of purchasing w^hatever was nec- essary for the king's household at a fair price, in preference to every competitor, and without the consent of the ownen By the same prerogative, carriages and horses were impress* ed for the king's journeys, and lodgings provided for his at^ tendants. This was defended on a pretext of necessity, or at least of great convenience to the sovereign, and was both of high antiquity and universal practice throughout Europe. But the royal purveyors had the utmost temptation, and doubtless no small store of precedents, to stretch this power beyond its legal boundary ; and not only to fix their own price too low, but to seize what they wanted without any payment at all, or with tallies, which were carried in vain to an empty exchequer. This gave rise to a number of petitions from the Commons, upon which statutes were often framed ; but the evil was almost incurable in its nature, and never ceased till that prerogative was itself abolished. Purvey- ance, as I have already said, may serve to distinguish the defects from the abuses of our constitution. It was a re- proach to the law that men should be compelled to send their goods without their consent ; it was a reproach to the administration that they were deprived of them without payment. The right of purchasing men's goods for the use of the kinsf was extended, by a sort of analogy, to their labor. Thus Ed- ward III. announces to all sheriffs that William, of Walsin^'' English Const. FEUDAL EIGHTS. 515 ham, had a commission to collect as many painters as might suffice for "our works in St. Stephen's Chapel, Westminster, to be at our wages as long as shall be necessary," and to arrest and keep in prison all who sliould refuse or be refractory, and enjoins them to lend their assistance. Windsor Castle owes its massive magnificence to laborers impressed from ev- ery part of the kingdom. There is even a commission from Edward IV. to take as many workmen in gold as were want- ing, and employ them at the king's cost upon the trappings of himself and his household. 2. Feudal Rights. — Another class of abuses, intimately con- nected with unquestionable though oppressive rights of the crown, originated in the feudal tenure which bound all the lands of the kingdom. The king had indisputably a right to the wardship of his tenants in chivalry, and to the escheats or forfeitures of persons dying without heirs or attainted for treason. But his officers, under pretense of wardshij), took possession of lands not held immediately of the crown, claim- ed escheats where a right heir existed, and seized estates as forfeited which were protected by the statute of entails. The real owner had no remedy against this disposition but to pre- fer his petition of right in Chancery, or, which was probably more effectual, to procure a remonstrance of the House of Commons in his favor. Even where justice was finally ren- dered to him, he had no recompense for his damages ; and the escheaters were not less likely to repeat an iniquity by which they could not personally suffer. 3. Forest XcM^JS.^The charter of the forests, granted by Henry HI. along with Magna Charta, had been designed to crush the flagitious system of oppression which prevailed in those favorite haunts of the Norman kings. They had still, however, their peculiar jurisdiction, though from the time at least of Edward IH. subject in some measure to the control of the King's Bench. The foresters, I suppose, might find a compensation for their want of the common law in that easy and licentious way of life which they affected ; but the neigh- boring cultivators frequently suffered from the king's officers who attempted to recover those adjacent lands, or, as they were called, purlieus, which had been disafforested by the charter, and protected by frequent perambulations. Many petitions of the Commons relate to this grievance. 4. Jurisdiction of Constable and Marshal. — The constable and marshal of England possessed a jurisdiction, the proper limits whereof were sufficiently narrow, as it seems, to have extended only to appeals of treason committed beyond sea, 516 CHARACTER OF THE CONSTITUTION. Ch. VIII. i^x. III. which were determined by combat, and to military oiFenses within the realm. But these high officers frequently took upon them to inquire of treasons and felonies cognizable at common law, and even of civil contracts and trespasses. This is no bad illustration of the state in which our constitution stood under the Plantagenets. No color of right or of su- preme prerogative was set up to justify a procedure so mani- festly repugnant to the great charter. For all remonstrances against these encroachments the king gave promises in re- turn ; and a statute was enacted, in the thirteenth of Rich- ard IL, declaring the bounds of the constable and marshal's jurisdiction. It could not be denied, therefore, that all in- fringements of these acknowledged limits were illegal, even if they had a hundred-fold more actual precedents in their favor than can be supposed. But the abuse by no means ceased after the passing of this statute, as several subse- quent petitions that it might be better regarded will evince. § 24. If I have faithfully represented thus far the history of our constitution, its essential character will appear to be a monarchy greatly limited by law, though retaining much power that was ill calculated to promote the public good, and swerving continually into an irregular course, which there was no restraint adequate to correct. But of all the notions that have been advanced as to the theory of this con- stitution, the least consonant to law and history is that which represents the king as merely an hereditary executive mag' istrate, the first officer of the state. What advantages might result from such a form of government this is not the place to discuss. But it certainly was not the ancient constitution of England. There was nothing in this, absolutely nothing, of a republican appearance. All seemed to grow out of the monarchy, and was referred to its advantage and honor. The voice of supplication, even in the stoutest disposition of the Commons, was always humble ; the prerogative was always named in large and pompous expressions. Still more natu- rally may we expect to find in the law-books even an obse- quious deference to power, from judges who scarcely ventured to consider it as their duty to defend the subject's freedom, and who beheld the gigantic image of prerogative, in the full play of its hundred arms, constantly before their eyes. Through this monarchical tone, which certainly pervades all our legal authorities, a writer like Hume, accustomed to phil- osophical liberality as to the principles of government, and to the democratical language which the modern aspect of the constitution and the liberty of printing have produced, iSNGLiSH Const. TORTESCUE ON OUR CONSTITUTION. 517 fell hastily into the error of believing that all limitations of royal power during the fourteenth and fifteenth centuries were as much unsettled in law and in public opinion as they were liable to be violated by force. Though a contrary po- sition has been sufficiently demonstrated, I conceive, by the series of Parliamentary proceedings which I have already produced, yet there is a passage in Sir John Fortescue's trea- tise " De Laudibus Legum Angliae," so explicit and weighty, that no writer on the English constitution can be excused from inserting it. This eminent person, having been chief justice of the King's Bench under Henry VI., was governor to the young Prince of Wales during his retreat in France, and received at his hands the office of chancellor. It must never be forgotten that, in a treatisQ^ purposely composed for the instruction of one who hoped to reign over England, the limitations of government are enforced as strenuously by Fortescue as some succeeding lawyers have inculcated the doctrines of arbitrary prerogative. "A king of England can not at his pleasure make any alterations in the laws of the land, for the nature of his government is not only regal, but po- litical. Had it been merely regal, he would have a power to make what in- novations and alterations he pleased in the laws of the kingdom, impose tal- lages and other hardships upon the people Avhether they would or no, with- out their consent, Avhich sort of government the civil laws point out when they declare 'Quod principi placuit, legis habet vigorem.' But it is much otherwise with a king whose government is political, because he can neither make any alteration or change in the laws of the realm without the consent of the subjects, nor burden them against their wills with strange impositions ; so that a people governed by such laws as are made by their own consent and approbation enjoy their properties securely and -without the hazard of being deprived of them, either by the king or any other. The same things may be effected under an absolute prince, provided he do not degenerate into the ty- rant. Of such a prince, Aristotle, in the third of his 'Politics,' says, 'It is better for a city to be governed by a good man than by good laws.' But be- cause it does not always happen that the person presiding over a people is so qualified, St. Thomas, in the book which he writ to the King of Cyprus, ' De Kegimine Principum,' wishes that a kingdom could be so instituted as that the king might not be at liberty to tyrannize over his people; which only comes to pass in the present case : that is, when the sovereign power is re- strained by political laws. Rejoice, therefore, my good prince, that such is the law of the kingdom which you are to inherit, because it will afford, both to yourself and subjects, the greatest security and satisfaction.'"*' The two great divisions of civil rule, the absolute, or regal as he calls it, and the political, Fortescue proceeds to deduce from the several originals of conquest and compact. Con- cerning the latter he declares emphatically a truth not ah ways palatable to princes, that such governments were insti- 8T Fortescue, "De Laudibus Legum Angliae," c. 9. 518 FORTESCUE ON OUR CONSTITUTION. Ch. VIII. Pt. III. tuted by the people and for the people's good ; quoting St. Augustin for a' similar definition of a political society : "As the head of a body natural can not change its nerves and sinews, can not deny to the several parts their proper energy, their due proportion and aliment of blood ; neither can a king, who is the head of a body poHtic, change the laws thereof, nor take from the people what is theirs by right against their consent. Thus you have, sir, the formal institution of every political kingdom, from whence you may guess at the power which a king may exercise with respect to the laws and the subject. For he is appointed to protect his subjects in their lives, properties, and laws ; for this very end and purpose he has the delegation of power from the people, and he has no just claim to any otlier power but tliis. Wherefore, to give a brief an- swer to that question of yours, concerning the different powers which kings claim over their subjects, I am firmly of opinion that it arises solely from the different natures of their original institution, as you may easily collect from what has been said. So the kingdom of England had its original from Brute, and the Trojans who attended him from Italy and Greece, and be- came a mixed kind of government, compounded of the regal and political."'^'* It would occupy too much space to quote every other pas- sage of the same nature in this treatise of Fortescue, and in that entitled, " Of the Difference between an Absolute and Limited Monarchy," which, so far as these points are con- cerned, is nearly a translation from the former." But these, corroborated as they are by the statute-book and by the rolls of Parliament, are surely conclusive against the notions which pervade Mr. Hume's history. I have already remarked that a sense of the glaring prejudice by which some Whig writers had been actuated, in representing the English constitution from the earliest times as nearly arrived at its present per- fection, conspired with certain prepossessions of his own to lead this eminent historian into an equally erroneous system on the opposite side. And as he traced the stream back- ward, and came last to the times of the Plantagenet dynasty, with opinions already biased and even pledged to the world in his volumes of earlier publication, he was prone to seize hold of, and even exaggerate, every circumstance that indi- cated immature civilization, and law perverted or infringed. To this his ignorance of English jurisprudence, which cer- tainly in some measure disqualified him from writing our his- tory, did not a little contribute; misrepresentations frequent- ly occurring in his work which a moderate acquaintance with the law of the land would haA'e prevented. 28 Fortescue, "De Landibus Legara Anglise," c. 13. 2^ The latter treatise having been written under Edward IV. — whom Fortescue, as ft restored Lancastrian, would be anxious not to offend, and whom, in fact, he took some pains to conciliate both in this and other writings— it is evident that the princi- ples of limited monarchy were as fully recognized in his reign, whatever particular acts of violence might occur, as they had been under the Lancastrian princes. English Const. ERRONEOUS VIEWS OF HUME. 519 It is an honorable circumstance to England t'jat the histo- ry of no other country presents so few instances of illegal condemnations upon political charges. The judicial torture was hardly known, and never recognized by law. The sen- tence in capital crimes, fixed unalterably by custom, allowed nothing to vindictiveness and indignation. There hardly oc- curs an example of any one being notoriously put to death without form of trial, except in moments of flagrant civil war. If the rights of juries were sometimes evaded by ir- regular jurisdictions, they were at least held sacred by the courts of law ; and through all the vicissitudes of civil liber- ty, no one ever questioned the primary right of every free- man, handed down from his Saxon forefathers, to the trial by his peers. A just regard for public safety prescribes the necessity of severe penalties against rebellion and conspir- acy ; but the interpretation of these offenses, when intrusted to sovereigns and their counsellors, has been the most tre- mendous instrument of despotic power. In rude ages, even though a general spirit of political liberty may prevail, the legal character of treason will commonly be undefined ; nor is it the disposition of lawyers to give greater accuracy to this part of criminal jurisprudence. The nature of treason appears to have been subject to much uncertainty in En- gland before the statute of Edward III. If that memorable law did not give all possible precision to the off*ense, which we must certainly allow, it prevented at least those stretches of vindictive tyranny which disgrace the annals of other countries. The praise, however, must be understood as com- parative. Some cases of harsh if not illegal convictions could hardly fail to occur in times of violence, and during changes of the reigning family. Perhaps the circumstances have now and then been aggravated by historians. Nothing could be more illegal than the conviction of the Earl of Cambridge and Lord Scrope in 1415, if it be true, according to Carte and Hume, that they w^ere not heard in their defense. But wheth- er this is to be absolutely inferred from the record is per- haps open to question. There seems at least to. have been no suflicient motive for such an irregularity, their participa- tion in a treasonable conspiracy being manifest from their own confession. The proceedings against Sir John Morti- mer in the 2d of Henry YI. are called by Hume highly irreg- ular and illegal. They were, however, by act of attainder, which can not well be styled illegal. Nor are they to be considered as severe. Mortimer had broken out of the Tow- er, where he was confined on a charge of treason. This was 520 CAUSES TENDING TO EORM Chap. VIII. Part III. a capital felony at common law ; and the chief irregularity seems to have consisted in having recourse to Parliament in order to attaint him of treason, when he had already forfeit- ed his life by another crime. § 25. By what means the English acquired and preserved this political liberty, which, even in the fifteenth century, was the admiration of judicious foreigners,^" is a very rational and interesting inquiry. Their own serious and steady attach- ment to the laws must always be reckoned among the prin- cipal causes of this blessing. The civil equality of all free- men below the rank of peerage, and the subjection of peers themselves to the impartial arm of justice and to a due share in contribution to public burdens — advantages unknown to other countries — tended to identify the interests and to as- similate the feelings of the aristocracy with those of the peo- ple; classes whose dissension and jealousy have been in many instances the surest hope of sovereigns aiming at arbitrary power. This freedom from the oppressive superiority of a privileged order was peculiar to England. In many king- doms the royal prerogative was at least equally limited. The statutes of Aragon are more full of remedial provisions. The right of opposing a tyrannical government by arms was more frequently asserted in Castile. But nowhere else did the people possess by law, and I think upon the whole, in effect, so much security for their personal freedom and property. Accordingly, the middling ranks flourished remarkably, not only in commercial towns, but among the cultivators of the soil. " There is scarce a small village," says Sir J. Fortescue, " in which you may not find a knight, an esquire, or some substantial householder (paterfamilias), commonly called a frankleyn,^' possessed of considerable estate ; besides others who are called freeholders, and many yeomen of estates suffi- cient to make a substantial jury." I would, however, point out more particularly two causes which had a very leading eflficacy in the gradual development of our constitution: first, the schemes of Continental ambition in which our govern- so Philip de Comines takes seveml opportnnities of testifying his esteem for the English government. See particnlarly 1. iv., c. i., and 1. v., c. xix. 31 By a franlcleyn in this place we are to understand what we call a country squire, like the frankleyn of Chaucer; for the word esquire in Fortescue's time was only used in its limited sense, for the sons of peers and knights, or such as had obtained the title by creation or some other legal means. The mention of Chaucer leads me to add that the prologue to his "Canterbury Tales" is of itself a continual testimony to the plenteous and comfortable situation of the middle ranks in England, as well as to that fearless independence and fre- quent originality of character among them which liberty and competence have coi>- epired to produce. English Const. THE CONSTITUTION. 521 ment was long engaged ; secondly, the manner in which feud- al principles of insubordination and resistance were modified by the prerogatives of the early Norman kings. 1. At the epoch when William the Conqueror ascended the throne, hardly any other power was possessed by the King of France than what he inherited from the great fiefs of the Capetian family. War with such a potentate was not exceedingly to be dreaded, and William, besides his immense revenue, could employ the feudal services of his vassals, which were extended by him to continental expeditions. These circumstances were not essentially changed till after the loss of Normandy ; for the acquisitions of Henry II. kept him fully on an equality with the French crown, and the di- lapidation which had taken place in the royal demesnes was compensated by several arbitrary resources that filled the exchequer of these monarchs. But in the reigns of John and Henry HI., the position of England, or rather of its sovereign with respect to France, underwent a very disadvantageous change. The loss of Normandy severed the connection be- tween the English nobility and the Continent ; they had no longer estates to defend, and took not sufficient interest in the concerns of Guienne to fight for that province at their own cost. Their feudal service was now commuted for an escuage, which fell very short of the expenses incurred in a protracted campaign. Tallages of royal towns and demesne lands, extortion of money from the Jews, every feudal abuse and oppression, were tried in vain to replenish the treasury, which the defense of Eleanor's inheritance against the in- creased energy of France was constantly exhausting. Even in the most arbitrary reigns a general tax upon land-holders, in any cases but those prescribed by the feudal law, had not been ventured ; and the standing bulwark of Magna Charta, as well as the feebleness and unpopularity of Henry HI., made it more dangerous to violate an established principle. Subsidies were therefore constantly required ; but for these it was necessary for the king to meet Parliament, to hear their complaints, and, if he could not elude, to acquiesce in their petitions. These necessities came still more urgently upon Edward I., whose ambitious spirit could not patiently endure the encroachments of Philip the Fair, a rival not less ambitious, but certainly less distinguished by personal prow- ess, than himself What advantage the friends of liberty reaped from this ardor for continental warfare is strongly seen in the circumstances attending the Confirmation of the Charters. 522 CAUSES TENDING TO FORM Chap. VIII. Part III: But after this statute had rendered all tallages without consent of Parliament illegal, though it did not for some time prevent their being occasionally imposed, it was still more difficult to carry on a war with France or Scotland, to keep on foot naval armaments, or even to preserve the court- ly magnificence which that age of chivalry affecte(j, without perpetual recurrence to the House of Commons. ' Edward III. very little consulted the interests of his prerogative when he stretched forth his hand to seize the phantom of a crown in France. It compelled him to assemble Parliament almost annually, and often to hold more than one session within the year. Here the representatives of England learned the habit of remonstrance and conditional supply ; and though, in the meridian of Edward's age and vigor, they often failed of immediate redress, yet they gradually swelled the statute-roll with provisions to secure their country's free- dom ; and, acquiring self-confidence by mutual intercourse and sense of the public opinion, they became able, before the end of Edward's reign, and still more in that of his grandson, to control, prevent, and punish the abuses of administration. Of all these proud and sovereign privileges, the right of re- fusing supply was the key-stone. But for the long wars in which our kings were involved, at first by their possession of Guienne, and afterwards by their pretensions upon the crown of France, it would have been easy to suppress re- monstrances by avoiding to assemble Parliament. For it must be confessed that an authority was given to the king's proclamations, and to ordinances of the council, which difier- ed but little from legislative power, and would very soon have been interpreted by complaisant courts of justice to give them the full extent of statutes. It is common, indeed, to assert that the liberties of England were bought with the blood of our forefathers. This is a very magnanimous boast, and in some degree is consonant enough to the truth. But it is far more generally accurate to say that they were purchased by money. A great proportion of our best laws, including Magna Charta itself, as it now stands confirmed by Henry III., were, in the most literal sense, obtained by a pecuniary bargain with the crown. In many Parliaments of Edward HI. and Richard II. this sale of redress is chafi*ered for as distinctly, and with as little apparent sense of disgrace, as the most legitimate business between two merchants would be transacted. So little was there of voluntary benevolence in what the loyal courtesy of our constitution stvles concessions from the throne ; and Enulish Const. THE CONSTITUTION. 523 SO little title have these sovereigns, though we can not re- fuse our admiration to the generous virtues of Edward III. and Henry V., to claim the gratitude of posterity as the ben- efactors of their people ! 2. The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This ex- tended as much to the sovereign as to inferior lords ; the authority of the former in France, where the system most flourished, being for several ages rather feudal than political. If a vassal were aggrieved, and if justice were denied him, he sent a defiance, that is, a renunciation of fealty, to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, ad- vantageous or otherwise, according to the fortune of war. This privilege, suited enough to the situation of France, the great peers of which did not originally intend to admit more than a nominal supremacy in the house of Capet, was evi- dently less compatible with the regular monarchy of England. The stern natures of William the Conqueror and his succes- sors kept in control the mutinous spirit of their nobles, and reaped the profit of feudal tenures without submitting to their reciprocal obligations. They counteracted, if I may so say, the centrifugal force of that system by the application of a stronger power ; by preserving order, administering justice, checking the growth of baronial influence and riches, with habitual activity, vigilance, and severity. Still, however, there remained the original principle that allegiance de- pended conditionally upon good treatment, and that an ap- peal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern times a king compelled by his subjects' swords to abandon any pretension would be supposed to have ceased to reign ; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force; and men accustomed to see the king's authority defied by private riot were not much shocked when it was resisted in defense of public freedom. The Great Charter of John was secured by the election of twenty-five barons as conservators of the compact. If the king, or the justiciary in his absence, should transgress any 524 INFLUENCE OF THE NOBILITY. Chap. VIIL Part II) article, any four might demand reparation, and on denial carry their complaint to the rest of their body. "And those barons, with all the commons of the land, shall distrain and annoy us by every means in their power ; that is, by seizing our castles, lands, and possessions, and every other mode, till the wrong shall be repaired to their satisfaction ; saving our person, and our queen and children. And when it shall be repaired they shall obey us as before." It is amusing to see the common law of distress introduced upon this gigantic scale, and the capture of the king's castles treated as analo- gous to impounding a neighbor's horse for breaking fences. These feudal notions, which placed the moral obligation of allegiance very low, acting under a weiglity pressure from the real strength of the crown, were favorable to constitu- tional liberty. The great vassals of France and Germany aimed at living independently on their fiefs, with no further concern for the rest than as useful allies having a common interest against the crown. But in England, as there was no prospect of throwing oif subjection, the barons endeav- ored only to lighten its burden, fixing limits to prerogative by law, and securing their observation by parliamentary re- monstrances or by dint of arms. Hence, as all rebellions in England were directed only to coerce the government, or at the utmost to change the succession of the crowm, without the smallest tendency to separation, they did not impair the national strength nor destroy the character of the constitu- tion. In all these contentions it is remarkable that the peo- ple and clergy sided w^ith the nobles against the throne. No individuals are so popular with the monkish annalists, who speak the language of the populace, as Simon, earl of Lei cester, Thomas, earl of Lancaster, and Thomas, duke of Glou- cester — all turbulent opposers of the royal authority, and probably little deserving of their panegyrics. Very few English historians of the Middle Ages are advocates of pre- rogative. This may be ascribed both to the equality of our laws and to the interest which the aristocracy found in court- . ing popular favor, when committed against so formidable an adversary as the king. § 26. From the time of Edward I. the feudal system and all the feelings connected with it declined very rapidly. But what the nobility lost in the number of their military tenants was in some degree compensated by the state of manners. The higher class of them, who took the chief share in public afiairs, were exceedingly opulent ; and their mode of life gave wealth an incredibly greater efficacy than it po«- English Const. PREVALENCE OF RAPINE. 525 sesses at present. Gentlemen of large estates and good fam- ilies who had attached themselves to these great peers, who bore offices which we should call menial in their households, and sent their children thither for education, were of course ready to follow their banner in rising, without much inquiry into the cause. Still less would the vast body of tenants and their retainers, who were fed at the castle in time of peace, refuse to carry their pikes and staves into the field of battle. Many devices were used to preserve this aristocratic influ- ence, which riches and ancestry of themselves rendered so formidable. Such was the maintenance of suits, or confed- eracies for the purpose of supporting each other's claims in litigation, which was the subject of frequent complaints in Parliament, and gave rise to several prohibitory statutes. By help of such confederacies parties were enabled to make violent entries upon the lands they claimed, which the law itself could hardly be said to discourage. Even proceedings in courts of justice were often liable to intimidation and in- fluence. A practice much allied to confederacies of mainte- nance, though ostensibly more harmless, was that of giving liveries to all retainers of a noble family ; but it had an ob- vious tendency to preserve that spirit of factious attachments and animosities which it is the general policy of a wise gov- ernment to dissipate. From the first year of Richard II. we find continual mention of this custom, with many legal pro- visions asjainst it, but it was never abolished till the reign of Henry VII. § 27. These associations under powerful chiefs were only in- cidentally beneficial as they tended to withstand the abuses of prerogative. In their more usual course they were designed to thwart the legitimate exercise of the king's government in the administration of the laws. All Europe was a scene of intestine anarchy during the Middle Ages; and though England was far less exposed to the scourge of private war than most nations on the Continent, we should find, could we recover the local annals of every country, such an accumula- tion of petty rapine and tumult as would almost alienate us from the liberty which served to engender it. This was the common tenor of manners, sometimes so much aggravated as to find a place in general history, more often attested by records during the three centuries that the house of Plantag- enet sat on the throne. Disseizin, or forcible dispossession of freeholds, makes one of the most considerable articles in our law-books. Highway robbery was from the earliest times a sort of national crime. Capital punishments, though very 526 PREVALENT HABITS Chap. VIII. Part IIL frequent, made little impression on a bold and a licentious crew, who had at least the sympathy of those who had noth- ing to lose on their side, and flattering prospects of impunity. We know how long the outlaws of Sherwood lived in tradi- tion — men who, like some of their betters, have been permit- ted to redeem by a few acts of generosity the just ignominy of extensive crimes. These, indeed, were the heroes of vul- gar applause ; but when such a judge as Sir John Fortescue could exult that more Englishmen were hanged for robbery in one year than French in seven, and that, " if an English man be poor, and see another having riches which may be taken from him by might, he will not spare to do so," it may be perceived how thoroughly these sentiments had pervaded the public mind. Such robbers, I have said, had flattering prospects of im- punity. Besides the general want of communication, which made one who had fled from his own neighborhood tolerably secure, they had the advantage of extensive forests to facili- tate their depredations and prevent detection. When out- lawed or brought to trial, the worst oflenders could frequent- ly purchase charters of pardon, which defeated justice in the moment of her blow. Nor were the nobility ashamed to patronize men guilty of every crime. Several proofs of this occur in the rolls.^'' It is perhaps the most meritorious part of Ed ward T.'s gov- ernment that he bent all his power to restrain these breaches of tranquillity. One of his salutary provisions is still in con- stant use — the statute of coroners. Another, more extensive, and, though partly obsolete, the foundation of modern laws, is the statute of Winton, which enacts that hue and cry shall be made upon the commission of a robbery, and that the hundred shall remain answerable for the damage unless the felons be brought to justice. It may be inferred from this provision that the ancient law of frank-pledge, though re- 32 A strange policy, for which no rational cause can be alleged, kept Wales and even Cheshire distinct from the rest of the kingdom. Nothing could be more injuri- ous to the adjacent counties. Upon the credit of their immunity from the jurisdic- tion of the king's courts, the people of Cheshire broke with armed bands into the neighboring counties, and perpetrated all the crimes in their power. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our shepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow- subjects. Instead of this, they satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Welshmen were absolutely excluded from bearing offices in Wales. The English living in the English towns of Wales earnestly petition (23 Henry VI., Rot. Pari., vol. v., p. 104, 154) that this exclusion may be kept in force. Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 Edward IV., vol. vi., p. 8. English Const. OF RAPINE. 621^ tained longer in form, had lost its efficiency. By the same act, no stranger or suspicious person was to lodge even in the suburbs of towns; the gates were to be kept locked from sunset to sunrising ; every host to be answerable for his guest ; the highways to be cleared of trees and under- wood for two hundred feet on each side, and every man to keep arms, according to his substance, in readiness to follow the sheriff on hue and cry raised after felons. The last pro- vision indicates that the robbers plundered the country in formidable bands. One of these, in a subsequent part of Edward's reign, burned the town of Boston during a fair, and obtained a vast booty, though their leader had the ill fortune not to escape the gallows. The preservation of order throughout the country was originally intrusted not only to the sheriff, coroner, and con- stables, but to certain magistrates called conservators of the peace. These, in conformity to the democratic character of our Saxon government, were elected by the freeholders in their County Court. But Edward I. issued commissions to carry into effect the statute of Winton ; and from the be- ginning of Edward III.'s reign the appointment of conserv- ators was vested in the crown, their authority gradually en- larged by a series of statutes, and their titles changed to that of justices. They were empowered to imprison and punish all rioters and other offenders, and such as they should find by indictment or suspicion to be reputed thieves or vagabonds, and to take sureties for good behavior from persons of evil fame. Such a jurisdiction was hardly more arbitrary than, in a free and civilized age, it has been thought fit to vest in magistrates ; but it was ill endured by a people who placed their notions of liberty in personal ex- emption from restraint rather than any political theory. An act having been passed (2 Richard II., stat. 2, c. 6), in conse- quence of unusual riots and outrages, enabling magistrates to commit the ringleaders of tumultuary assemblies without waiting for legal process till the next arrival of justices of jail delivery, the Commons petitioned next year against this " horrible grievous ordinance," by which " every freeman in the kingdom would be in bondage to these justices," con- trary to the great charter, and to many statutes, which for- bid any man to be taken without due course of law. So sensitive was their jealousy of arbitrary imprisonment, that they preferred enduring riot and robbery to chastising them by any means that might afford a precedent to oppression, or weaken men's reverence for Maojna Charta. B2& VILLENAGE OF Chap. VIII. Part III. There are two subjects remaining to which this retrospect of the state of manners naturally leads us, and which I would not pass unnoticed, though not perhaps absolutely essential to a constitutional history ; because they tend in a very ma- terial degree to illustrate the progress of society, with which civil liberty and regular government are closely connected. These are, first, the servitude or villenage of the peasantry, and their gradual emancipation from that condition; and, secondly, the continual increase of commercial intercourse with foreign countries. But as the latter topic will fall more conveniently into the next part of this work, I shall postpone its consideration for the present. § 28. In a former passage I have remarked of the Anglo- Saxon ceorls that neither their situation nor that of their de- scendants for the earlier reigns after the Conquest appears to have been mere servitude. But from the time of Henry II., as we learn from Glanvil, the villein, so called, was abso- lutely dependent upon his lord's will, compelled to unlim- ited services, and destitute of property, not only in the land he held for his maintenance, but in his own acquisitions. If a villein purchased or inherited land, the lord might seize it ; if he accumulated stock, its possession was equally precarious. Against his lord he had no right of action ; because his indemnity in damages, if he could have recov- ered any, might have been immediately taken away. If he fled from his" lord's service, or from the land which he held, a writ issued de nativitate probanda, and the master recov- ered his fugitive by law. His children were born to the same state of servitude ; and, contrary to the rule of the civil law, where one parent was free and the other in villen- age, the offspring followed their father's condition. This was certainly a severe lot ; yet there are circum- stances which materially distinguish it from slavery. The condition of villenage, at least in later times, was perfectly relative; it formed no distinct order in the political econ- omy. No man was a villein in the eye of law unless his master claimed him : to all others he was a freeman, and might acquire, dispose of, or sue for property without im- pediment. This class was distinguished into villeins regardant,, who had been attached from time immemorial to a certain, manor, and villeins in gross, where such territorial prescription had never existed, or had been broken. In the condition of these, whatever has been said by some writers, I can find no manner of difference; the distinction was merely teclinicai, English Const. THE PEASANTRY 529 and affected only the mode of pleading. The term "in gross" is appropriated in our legal language to property held absolutely and without reference to any other. Thus it is applied to rights of advovvson or of common when pos- sessed simply and not as incident to any particular lands. And there can be no doubt that it was used in the same sense for the possession of a villein. But there was a class of persons, sometimes inaccurately confounded with villeins, whom it is more important to separate. Villenage had a double sense, as it related to persons or to lands. As all men were free or villeins, so all lands were held by a free or villein tenure. As a villein might be enfeoffed of freeholds, though they lay at the mercy of his lord, so a freeman might hold tenements in villenage. In this case his per- sonal liberty subsisted along with the burdens of territorial servitude. He was bound to arbitrary service at the will of the lord, and he might by the same will be at any mo- ment dispossessed ; for such was the condition of his ten- ure. But his chattels were secure from seizure, his per- son from injury, and he might leave the land whenever he pleased. From so disadvantageous a condition as this of villenage it may cause some surprise that the peasantry of England should have ever emerged. The law incapacitating a vil- lein from acquiring property placed, one would imagine, an insurmountable barrier in the way of his enfranchisement. It followed from thence, and is positively said by Glanvil, that a villein could not buy his freedom, because the price he tendered would already belong to his lord. And even in the case of free tenants in villenage it is not easy to com- prehend how their uncertain and unbounded services could ever pass into slight pecuniary commutations; much less how they could come to maintain themselves in their lands, and mock the lord with a nominal tenure according to the custom of the manor. This, like many others relating to the progress of society, is a very obscure inquiry ; but the following observations may tend a little to illustrate our immediate subject, the gradual extinction of villenage. The services of villenage were gradually rendered less on- erous and uncertain. Lords of generous tempers granted in- dulgences which were either intended to be or readily be- came perpetual. And thus, in the time of Edward I., we find the tenants in some manors bound only to stated serv- ices, as recorded in the lord's book. Some of these, pei"^ 23 530 VILLENAGE OF PEASANTRY. Chap. VIII. Part III. haps, might be villeins by blood ; but free tenants in villen- age were still more likely to obtain this precision in their services ; and, from claiming a customary right to be en- tered in the court-roll upon the same terms as their prede- cessors, prevailed at length to get copies of it for their secu- rity. Proofs of this remarkable transformation from ten- ants in villenage to copy-holders are found in the reign of Henry III. ; and in that of Edward IV. the judges permit- ted the copy-holder to bring his action of trespass against the lord for dispossession. While some of the more fortunate villeins crept up into property as well as freedom under the name of copy-holders, the greater part enfranchised themselves in a different man- ner. The law which treated them so harshly did not take away the means of escape ; nor was this a matter of diffi- culty in such a country as England. To this, indeed, the unequal progression of agriculture and population in differ- ent counties would have naturally contributed. Men emi- grated, as they always must, in search of cheapness or em- ployment, according to the tide of human necessities. But the villein, who had no additional motive to urge his steps away from his native place, might well hope to be forgotten or undiscovered when he breathed a freer air, and engaged his voluntary labor to a distant master. The lord had in- deed an action against liim ; but there was so little commu- nication between remote parts of the country that it might be deemed his fault, or singular ill-fortune, if he were com- pelled to defend himself Even in that case the law inclined to favor him; and so many obstacles were thrown in the way of these suits to reclaim fugitive villeins, that they could not have operated materially to retard their general enfranchisement. In one case, indeed — that of unmolested residence for a year and a day within a walled city or bor- ough — the villein became free, and the lord was absolutely barred of his remedy. This provision is contained even in the laws of William the Conqueror, as contained in Hove- den, and, if it be not an interpolation, may be supposed to have had a view to strengthen the population of those places which were designed for garrisons. This law, whether of William or not, is unequivocally mentioned by Glanvil. By such means a large proportion of the peasantry before the middle of the fourteenth century had become hired la- borers instead of villeins. We first hear of them on a grand scale in an ordinance made by Edward III. in the twenty- third year of his reign. This was just after the dreadful English Const. POPULAR OUTBREAKS. 531 pestilence of 1348, and it recites that, the number of work- men and servants having been greatly reduced by that ca- lamity, the remainder demanded excessive wages from their employers. Such an enhancement in the price of labor, though founded exactly on the same principles as regulate the value of any other commodity, is too frequently treated as a sort of crime by lawgivers, who seem to grudge the poor that transient melioration of their lot which the prog- ress of population, or other analogous circumstances, will, without any interference, very rapidly take away. This or- dinance, therefore, enacts that every man in England of whatever condition, bond or free, of able body, and within sixty years of age, not living of his own, nor by any trade, shall be obliged, when required, to serve any master who is willing to hire him at such wages as were usually paid three years since, or for some time preceding ; provided that the laws of villeins or tenants in villenage shall have the prefer- ence of their labor, so that they retain no more than shall be necessary for them. More than these old wages is strict- ly forbidden to be offered, as well as demanded. Xo one is permitted, under color of charity, to give alms to a beggar. And, to make some compensation to the inferior classes for these severities, a clause is inserted, as wise, just, and prac- ticable as the rest, for the sale of provisions at reasonable prices. § 29. This ordinance met with so little regard that a stat- ute was made in Parliament two years after, fixing the wages of all artificers and husbandmen with regard to the nature and season of their labor. From this time it became a fre- quent complaint of the Commons that the statute of laborers was not kept. The king had in this case, probably, no other reason for leaving their grievance unredressed than his in- ability to change the. order of Providence. A silent altera- tion had been wrought in the condition and character of the lower classes during the reign of Edw^ard III. This was the effect of increased knowledge and refinement, which had been making a considerable progress for full half a cen- tury, though they did not readily permeate the cold region of poverty and ignorance. It was natural that the country people, or uplandish folk, as they were called, should repine at the exclusion from that enjoyment of competence and security for the fruits of their labor which the inhabitants of towns so fully possessed. The fourteenth century was, in many parts of Europe, the age when a sense of political servitude was most keenly felt. Thus the insurrection of 532 POPULAR OUTBREAKS. Chap. VIII. Part III. the Jacquerie in France, about the year 1358, had the same character, and resulted in a great measure from the same causes, as that of the Englisli peasants in 1382. And we may account in a similar manner for the democratical tone of the French and Flemish cities, and for the prevalence of a spirit of liberty in Germany and Switzerland.^^ I do not know whether we should attribute part of this revolutionary concussion to the preaching of Wicliffe's disci- ples, or look upon both one and the other as phenomena be- longing to that particular epoch in the progress of society. New principles, both as to civil rule and religion, broke sud- denly upon the uneducated mind, to render it bold, presump- tuous, and turbulent. But at least I make little doubt that the dislike of ecclesiastical power, which spread so rapidly among the people at this season, connected itself with a spirit of insubordination and an intolerance of political sub- jection. Both were nourished by the same teachers, the lower secular clergy ; and however distinct we may think a religious reformation from a civil anarchy, there was a good deal common in the language by which the populace were inflamed to either one or the other. Even the scriptural moralities which were then exhibited, and which became the foundation of our theatre, aflbrded fuel to the spirit of sedi- tion. The common original and common destination of man- kind, with every other lesson of equality which religion sup- plies to humble or to console, were displayed with coarse and glaring features in these representations. The familiar- ity of such ideas has deadened their effects upon our minds ; but when a rude peasant, surprisingly destitute of religious instruction during that corrupt age of the Church, was led at once to these impressive truths, we can not be astonished at the intoxication of mind they produced. The storm that almost swept away all bulwarks of civ- ilized and regular society seems to have been long in collect- ing itself. Perhaps a more sagacious legislature might have contrived to disperse it; but the Commons only presented complaints of the refractoriness with which villeins and ten- ants in villenage rendered their due services; and the exi- gencies of government led to the fatal poll-tax of a groat, which was the proximate cause of the insurrection. By the demands of these rioters we perceive that territorial servi- tude was far from extinct ; but it should not be hastily con- cluded that they were all personal villeins, for a large pro- portion were Kentishmen, to whom that condition could not 83 NoTK II.. " Popular Poetry." English Const. MANUMISSION OF VILLEINS. 533 have applied ; it being a good bar to a writ de nativitate probanda that the party's father was born in the county of Kent. After this tremendous rebellion it might be expected that the legislature would use little indulgence towards the lower commons. Such unhappy tumults are doubly mischievous, not more from the immediate calamities that attend them than from the fear and hatred of the people which they gen- erate in the elevated classes. The general charter of manu- mission extorted from the king by the rioters of Blackheath was annulled by proclamation to the sheriffs, and this revo- cation approved by the Lords and Commons in Parliament ; who added, as was very true, that such enfranchisement could not be made without their consent ; " which they would never give to save themselves from perishing all together in one day." Riots were turned into treason by a law of the same Parliament. By a very harsh statute in the 12th of Richard II. no servant or laborer could depart, even at tlie expiration of his service, from the hundred in which he lived w^ithout permission under the king's seal; nor might any who had been bred to husbandry till twelve years old exer- cise any other calling. A i'ew years afterwards the Com- mons petitioned that villeins might not put their children to school in order to advance them by the Church ; " and this for the honor of all the freemen of the kingdom." In the same Parliament they complained that villeins fly to cities and boroughs, whence their masters can not recover them, and, if they attempt it, are hindered by the people ; and prayed that the Lords might seize their villeins in such places without regard to the franchises thereof But on both these petitions the king jjut in a negative. From henceforward we find little notice taken of villenage in Parliamentary records, and there seems to have been a rajjid tendency to its entire abolition. § 30. I can not presume to conjecture in what degree vol- untary manumission is to be reckoned among the means that contributed- to the abolition of villenage. Charters of en- franchisement were very common upon the Continent. They may perhaps have been less so in England. Instances, how- ever, occur from time to time, and we can not expect to dis- cover many. One appears as early as the fifteenth year of Henry III., who grants to all persons born or to be born within his village of Contishall, that they shall be free from all villenage in body and blood, paying an aid of twenty shillings to knight the king's eldest son, and six shillings a 534 KEIGN OF HENRY VI. Chap. VIU. Part III. year as a quitrent. So in the twelfth of Edward III. certain of the king's villeins are enfranchised on payment of a fine. In strictness of law, a fine from the villein for the sake of en- franchisement was nugatory, since all he could possess was already at his lord's disposal. But custom and equity might easily introduce different maxims ; and it was plainly for the lord's interest to encourage his tenants in the acquisition of money to redeem themselves, rather than to quench the ex- ertions of their industry by availing himself of an extreme right. Deeds of enfranchisement occur in the reigns of Mary and Elizabeth ; and perhaps a commission of the latter prin- cess in 1574, directing the enfranchisement of her bondmen and bondwomen on certain manors upon payment of a fine, is the last unequivocal testimony to the existence of villen- age ; though it is highly probable that it existed in remote parts of the country some time longer. § 31. From this general view of the English constitution, as it stood about the time of Henry VI., we must turn our eyes to the political revolutions which clouded the latter years of his reign. The minority of this prince, notwith- standing the vices and dissensions of his court and the in- glorious discomfiture of our arms in France, w^as not perhaps a calamitous jjeriod. The country grew more wealthy ; the law was, on the whole, better observed ; the power of Par- liament more complete and effectual than in preceding times. But Henry's weakness of understanding becoming evident as he reached manhood, rendered his reign a perpetual mi- nority. His marriage with a princess of strong mind, but ambitious and vindictive, rather tended to weaken the gov- ernment and to accelerate his downfall — a certain reverence that had been paid to the gentleness of the king's disposition being overcome by her unpopularity. By degrees Henry's natural feebleness degenerated almost into fatuity; and this unhappy condition seems to have overtaken him nearly about the time when it became an arduous task to withstand the assault in preparation against his government. This may properly introduce a great constitutional subject, to which some peculiar circumstances in the reign of George HI. im- periously directed the consideration of Parliament. Though the proceedings of 1788 and 1810 are undoubtedly prece- dents of far more authority than any that can be derived from our ancient history, yet, as the seal of the legislature has not yet been set upon this controversy, it is not perhaps altogether beyond the possibility of future discussion ; and at least it can not be uninterestino: to look back on those English Const. HISTORICAL INSTANCES. 635 parallel or analogous cases by which the deliberations of Par- liament upon the question of regency were guided. § 32. While the kings of England retained their continent- al dominions, and were engaged in the wars to which those gave birth, they were of course frequently absent from this country. Upon such occasions the administration seems at first to have devolved officially on tlie justiciary, as chief servant of the crown. But Henry III. began the practice of appointing lieutenants, or guardians of the realm (custodes regni), as they were more usually termed, by way of tem- porary substitutes. They were usually nominated by the king without consent of Parliament; and their office carried with it the right of exercising all the prerogatives of the crown. The most remarkable circumstance attending those lieutenancies was that they were sometimes conferred on the heir-apparent during his infancy. The Black Prince, then duke of Cornwall, was left guardian of the realm in 1339, when he was but ten years old ; and Richard his son, when still younger, in 1372, during Edward III.'s last expedition into France. These do not, however, bear a very close analogy to re- gencies in the stricter sense, or substitutions during the nat- ural incapacity of the sovereign. Of such there had been several instances before it became necessary to supply the deficiency arising from Henry's derangement. 1. At the death of John, William, earl of Pembroke, assumed the title of rector regis et regni, with the consent of the loyal barons who had just proclaimed the young king, and probably con- ducted the government in a great measure by their advice. But the circumstances were too critical, and the time is too remote, to give this precedent any material weight. 2. Ed- ward I. being in Sicily at his father's death, the nobility met at the Temple Church, as we are informed by a contempora- ry writer, and, after making a new great seal, appointed the Archbishop of York, Edward, earl of Cornwall, and the earl of Gloucester, to be ministers and guardians of the realm ; who accordingly conducted the administration in the king's name until his return.^* It is here observable that the Earl of Cornwall, though nearest prince of the blood, was not sup- posed to enjoy any superior title to the regency, wherein lie was associated with two other persons. But while the crown itself was hardly acknowledged to be unquestionably hereditary, it would be strange if any notion of such a right to the regency had been entertained. 3. At the accession 34 Matt. Westmoiiast. ap. Brady's History of England, vol. ii., p. 1. 636 mSTOKICAL INSTANCES Chap. VIII. Part 111. of Edward III., then fourteen years old, the Parliament, which was immediately summoned, nominated four bishops, four earls, and six barons as a standing council, at the head of which the Earl of Lancaster seems to have been placed, to advise the king in all business of government. It was an ar- ticle in the charge of treason, or, as it w^as then styled, of ac- croaching royal power, against Mortimer, that he intermed- dled in the king's household without the assent of this coun- cil. They may be deemed, therefore, a sort of Parliamenta- ry regency, though the duration of their functions does not seem to be defined. 4. The proceedings at the commence- ment of the next reign are more worthy of attention. Ed- ward III. dying June 21, 1377, the keepers of the great seal next day, in absence of the chancellor beyond sea, gave it into the young king's hands before his council. He imme- diately delivered it to the Duke of Lancaster, and the duke to Sir Nicholas Bode, for safe custody. Four days after- wards the king in council delivered the seal to the Bishop of St. David's, who afllixed it the same day to divers letters patent. Richard was at this time ten years and six months old ; an age certainly very unfit for the personal execution of sovereign authoi-ity. Yet he was supposed capable of reigning without the aid of a regency. This might be in virtue of a sort of magic ascribed by lawyers to the great seal, the possession of which bars all further inquiry, and renders any government legal. The practice of modern times requiring the constant exercise of the sign-manual has made a public confession of incapacity necessary in many cases where it might have been concealed or overlooked in earlier periods of the constitution. But though no one was invested with the office of regent, a council of twelve Avas named by the prelates and peers at the king's coronation, July 16, 1377, without whose concurrence no public measure was to be carried into effect. I have mentioned in another place the modifications introduced from time to time by Par- liament, which might itself be deemed a great council of re- gency during the first years of Richard. (See p. 467.) 5. The next instance is at the accession of Henry VI. This prince was but nine months old at his father's death ; and whether from a more evident incapacity for the conduct of government in his case than in that of Richard II., or from the progress of constitutional principles in the forty years elapsed since the latter's accession, far more regularity and deliberation were shown in supplying the defect in the ex- ecutive authority. Upon the news arriving that Henry V. English Const. OF REGENCIES. 537 was deadj several lords spiritual and temporal assembled, on account of the imminent necessity, in order to preserve peace, and provide tor the exercise of offices appertaining to the king. These peei*s accordingly issued commissions to judges, sheriffs, escheators, and others, for various purposes, and writs for a new Parliament. This was opened by com- mission under the great seal directed to the Duke of Glouces- ter, in the usual form, and with the king's teste. Some ordi- nances were made in this Parliament by the Duke of Glouces- ter as commissioner, and some in the king's name. The acts of the peers who had taken on themselves the adminis- tration, and summoited Parliament, were confirmed. On the twenty-seventh day of its session, it is entered upon the roll that the king, " considering his tender age, and inability to direct in person the concerns of his realm, by assent of Lords and Commons, appoints the Duke of Bedford, or, in his ab- sence beyond sea, the Duke of Gloucester, to be protector and defender of the kingdom and English Church, and the king's chief counsellor." Letters patent were made out to this effect, the appointment being, however, expressly during the king's pleasure. Sixteen councillors were named in Par- liament to assist the protector in his administration ; and their concurrence was made necessary to the removal and appointment of officers, except some inferior patronage spe- cifically reserved to the protector. This arrangement was in contravention of the late king's testament, which had con- ferred the regency on the Duke of Gloucester, in exclusion of his elder brother. But the nature and spirit of these pro- ceedings will be better understood by a remarkable passage in a roll of a later Parliament ; where the House of Lords, in answer to a request of Gloucester that he might know what authority he possessed as protector, remind him that in the first Parliament of the king — "Ye desii-ed to have had ye governaunce of yis land; affermyng yat hit belonged unto you of rygzt, as well by ye mene of your birth as by ye laste wylle of ye kyng yat was your broyer, whome God assoile ; alleggyng for you such groundes and motyves as it was yought to your discretion made for your intent ; whereupon, the lords spiritual and temporal assembled there in Parliament, among which were there my lordes your uncles, the Bishop of Winchester that now liveth, and the Duke of Exeter, and your cousin the Earl of March that be gone to God, and of Wanvick, and other in great number that now live, had great and long deliberation and advice, searched precedents of the governail of the land in time and case semblable, when kings of this land have been tender of age, took also information of the laws of the land, of such persons as be notably learned therein, and finally found your said desire not caused nor grounded in precedent, nor in the law of the land ; the which the king that dead is, in his life nor might by his last 23* 538 HISTORICAL REGENCIES. Chap. VIII. Fait III. will nor otherwise altre, change, nor abroge, without the assent of the three estates, nor commit or grant to any person governance or rule of this land longer than he lived ; but on that other behalf, the said lords found your said desire not according with the laws of this land, and against the right and fredome of the estates of the same land. Howe were it tliat it be not thought that any such thing wittingly proceeded of your intent ; and never- theless to keep peace and tranquillity, and to the intent to ease and appease you, it was advised and aj^ointed by authority of the king, assenting the three estates of this land, that ye, in absence of my lord your bi-other of Bed- ford, should be chief of the king's council, and devised unto you a name dif- ferent from other counsellors, not the name of tutor, lieutenant, governor, nor of regent, nor no name that should impoit authority of governance of the land, but the name of protector and defensor, Avhich importeth a personal duty of attendance to the actual defense of the land, as well against enemies outward, if case required, as against rebels inward, if any were, that God for- bid; granting you therewith certain power, the which is specified and con- tained in an act of the said Parliament, to endure as long as it liked the king. In the which, if the intent of the said estates had been that ye more power and authority should have had, more should have been expressed therein ; to the which appointment, ordinance, and act, ye then agreed you as for your person, making nevertheless protestation that it was not your intent in any wise to deroge or do prejudice unto my lord your brother of Bedford by your said agreement, as toward any right that he would pretend or claim in the governance of this land ; and as toward any pre-eminence that you might have or belong unto you as chief of council, it is plainly declared in the said act and articles, subscribed by my said lord of Bedford, by yourself, and the other lords of the council. But as in Parliament to which ye be called upon your faith and ligeance as Duke of Glocester, as other lords be, and not oth- erwise, we know no power nor authority that ye have, other than ye as Duke of Glocester should have, the king being in Parliament, at years of most discretion : We man'ailing with all our hearts that, considering the open declaiation of the authority and power belonging to my lord of Bedford and to you in his absence, and also to the king's council subscribed purely and simply by my said lord of Bedford and by you, that you should in any wise be stirred or moved not to content you therewith or to pretend you any oth- er : Namely, considering that the king, blessed be our Lord, is, sith the time of the said power granted unto you, far gone and grown in person, in wit, and understanding, and like with the grace of God to occupy his own royal power within few years : and forasmuch considering the things and causes abovesaid, and other many that long were to write. We lords aforesaid pray, exhort, and require you to content you with the power abovesaid and de- clared, of the which my lord your brother of Bedford, the king's eldest uncle, contented him : and that ye none larger power desire, will, nor use ; giving you this that is aboven written for our answer to your foresaid demand, the which we will dwell and abide with, withouten variance or changing. Over this beseeching and praying you in our most humble and lowly wise, and also requiring you in the king's name, that ye, according to the king's command- ment, contained in his writ sent unto you in that behalf, come to this his present Parliament, and intend to the good effect and speed of matters to be demesned and treted in the same, like as of right ye owe to do." — Rot. Pari., 6 Henry VI., vol. iv., p. 326. It is evident that this plain, or rather rude, address to the Duke of Gloucester was dictated by the prevalence of Car- dinal Beaufort's party in council and Parliament. But the English Const. DUKE OF YORK PROTECTOR. 539 transactions in the former Parliament are not unfairly rep- resented ; and, comparing them with the passage extracted above, we may perhaps be entitled to infer : ]. That the king does not possess any constitutional prerogative of appoint- ing a regent during the minority of his successor; and 2. That neither the heir presumptive, nor any other person, is entitled to exercise the royal prerogative during the king's infancy (or, by parity of reasoning, his infirmity), nor to any title that conveys them ; the sole right of determining the persons by whom, and fixing the limitations under which, the executive government shall be conducted in the king's name and behalf, devolving upon the great council of Parlia- ment. In two years the party hostile to Gloucester's influence had gained ground enough to abrogate his office of protect- or, leaving only the lionorary title of chief counsellor. For this the king's coronation, at eight years of age, was thought a fair pretense. The government was conducted as before by a selfish and disunited council ; but the king's name was sufficient to legalize their measures, nor does any objection appear to have been made in Parliament to such a mockery of the name of monarchy. In the year 1454, the thirty-sec- ond of Henry's reign, his unhappy malady, transmitted per- haps from liis maternal grandfather, assumed so decided a character of derangement or imbecility, that Parliament could no longer conceal from itself the necessity of a more efficient ruler. An act was passed accordingly, constituting the Duke of York protector of the Church and kingdom, and chief counsellor of the king, during the latter's pleasure ; or until the Prince of Wales should attain years of discretion, on whom the said dignity was immediately to devolve. It may be conjectured by the provision made in favor of the Prince of Wales, then only two years old, that the king's condition was supposed to be beyond hope of restoration. But in about nine months he recovered sufficient speech and recollection to supersede the Duke of York's protectorate. The succeeding transactions are matter of familiar, though not, perhaps, very perspicuous history. The king was a pris- oner in his enemies' hands after the affair at St. Albans, when Parliament met, in July, 1455. In this session little was done except renewing the strongest oaths of allegiance to Henry and his family. But the tw^o houses meeting again after a prorogation to November 12, during which time the Duke of York had strengthened his party, he was reappoint- ed to his charge of protector. It is worthy of notice that in 540 YORK'S CLAIM TO THE CROWN. Chap. VIII. Part III this transaction the House of Peers assumed an exclusive right of choosing the protector, though, in the act passed to ratify their election, the Commons' assent, as a matter of course, is introduced. The last year's precedent was fol- lowed in the present instance, excepting a remarkable devia- tion ; instead of the words " during the king's pleasure," the duke was to hold his office " until he should be discharged of it by the Lords in Parliament." This extraordinary clause, and the slight allegations on which it was thought lit to substitute a vicegerent for the reigning monarch, are sufficient to prove, even if the common historians were silent, that whatever passed as to this sec- ond protectorate of the Duke of York w^as altogether of a revolutionary complexion. In the actual circumstances of civil blood already spilled, and the king in captivity, we may justly wonder that so much regard was shown to the regular forms and precedents of the constitution. But the duke's natural moderation will account for part of this, and the temper of the Lords for much more. That assembly appears for the most part to have been faithfully attached to the house of Lancaster. The partisans of Richard were found in the Commons and among the populace. Several months elapsed after the victory of St. Albans before an attempt was thus made to set aside a sovereign, not laboring, so far as we know, under any more notorious infirmity than before. It then originated in the Commons, and seems to have re- ceived but an unwilling consent from the upper house. Even in constituting the Duke of York protector over the head of Henry, whom all men despaired of ever seeing in a state to face the dangers of such a season, the Lords did not forget the rights of his son. By this latter instrument, as well as by that of the preceding year, the duke's office was to cease upon the Prince of Wales arriving at the age of discretion. § 33. But what had long been propagated in secret soon became familiar to the public ear — that the Duke of York laid claim to the throne. He was unquestionably heir gen- eral of the royal line, through his mother, Anne, daughter of Roger Mortimer, earl of March, son of Philippa, daughter of Lionel, duke of Clarence, third son of Edward III. Roger Mortimer's eldest son, Edmund, had been declared heir pre- sumptive by Richard II. ; but his infancy during the revolu- tion that placed Henry IV. on the throne had caused his pre- tensions to be passed over in silence. The new king, how- ever, was induced, by a jealousy natural to his situation, to detain the Earl of March in custody. Henry V. restored his English Const. YORK'S CLAIM TO THE CROWN. 541 liberty ; and, though he had certainly connived for a while at the conspiracy planned by his brother-in-law, the Earl of Cambridge, and Lord Scrope of Mashani, to place the crown on his head, that magnanimous prince gave him a free par- don, and never testified any displeasure. The present Duke of York was honored by Henry VI. with the highest trusts in France and Ireland, such as Beaufort and Gloucester could never have dreamed of conferring on him if his title to the crown had not been reckoned obsolete. It has been very pertinently remarked that the crime perpetrated by Marga- ret and her counsellors in the death of the Duke of Glouces- ter was the destruction of the house of Lancaster. From this time the Duke of York, next heir in presumption while the king was childless, might innocently contemplate the prospect of royalty; and when such ideas had long been passing through his mind, w,e may judge how reluctantly the birth of Prince Edward, nine years after Henry's marriage, would be admitted to disturb them. The queen's adminis- tration unpopular, careless of national interests, and partial to his inveterate enemy, the Duke of Somerset; the king in- capable of exciting fear or respect, himself conscious of pow- erful alliances and universal favor — all these cii'cumstances combined could hardly fail to nourish those opinions of he- reditary right which he must have imbibed from his infancy. The Duke of York preserved through the critical season of rebellion such moderation and humanity that we may par- don him that bias in favor of his own pretensions to which he became himself a victim. Margaret, perhaps, by her san- guinary violence in the Coventry Parliament of 1460, where the duke and all his adherents were attainted, left him not the choice of remaining a subject with impunity. But with us, who are to weigh these ancient factions in the balance of wisdom and justice, there should be no hesitation in decid- ing that the house of Lancaster were lawful sovereigns of England. I am, indeed, astonished that not only such histo- rians as Carte, who wrote undisguisedly upon a Jacobite sys- tem, but even men of juster principles, have been inadvert- ent enough to mention the right of the house of York. If the original consent of the nation, if three descents of the crown, if repeated acts of Parliament, if oaths of allegiance from the whole kingdom, and more particularly from those who now advanced a contrary pretension, if undisturbed, unquestioned possession during sixty years, could not secure the reigning family against a mere defect in their genealogy, when were the people to expect tranquillity? No prejudice 542 WAR OF THE ROSES. Chap. VIII. Part UL has less in its favor, and none has been more fatal to the peace of mankind, than that which regards a nation of sub- jects as a family's private inheritance. The law of England has been held to annex the subject's fidelity to the reigning monarch, by whatever title he may have ascended the throne, and whoever else may be its claimant. ^^ But the statute of the 11th of Henry VII., c. 1, has furnished an unequivocal commentary upon this principle, when, alluding to the con- demnations and forfeitures by which those alternate successes of the white and red roses had almost exhausted the noble blood of England, it enacts that " no man for doing true and faithful service to the king for the time being be convict or attaint of high treason, nor of other offenses, by act of Par- liament or otherwise." Though all classes of men and all parts of England were di- vided into factions by this unhappy contest, yet the strength of the Yorkists lay in London and the neighboring counties, and generally among the middling and lower people. And this is what might naturally be expected. For notions of hereditary right take easy hold of the populace, who feel an honest sympathy for those whom they consider as injured; while men of noble birth and high station have a keener sense of personal duty to their sovereign, and of the baseness of desertinor their allesriance. Notwithstandhio: the wide- spreading influence of the Nevils, most of the nobility were well affected to the reigning dynasty. They acquiesced re- luctantly in the second protectorate of the Duke of York af- ter the battle of St. Albans. Thirty-two temporal peers took an oath of fealty to Henry and his issue in the Coventry Par- liament of 1460, which attainted the Duke of York and the earls of Warwick and Salisbury. And in the memorable circumstances of the duke's claim personally made in Parlia- ment, it seems manifest that the Lords complied not only with hesitation but unwillingness, and in fact testified their respect and duty for Henry by confirming the crown to him during his life. The rose of Lancaster blushed upon the ban- ners of the Staffords, the Percies, the Veres, the Hollands, and the Courtneys. All these illustrious families lay crushed for a time under the ruins of their party. But the course of for- tune, which has too great a mastery over crowns and scep- tres to be controlled by men's affection, invested Edward IV. with a possession which the general consent of the nation both sanctioned and secured. This was effected in no slight degree by the furious spirit of Margaret, who began a system 35 Hale's Pleas of the Crown, vol. i., pp. Gl, 101 (edit. 1T36). English Const. EDWARD IV. 543 of extermination by acts of attainder and execution of pris- oners that created abhorrence, though it did not prevent im- itation. And the barbarities of her Northern army, whom she led towards London after the battle of Wakefield, lost the Lancastrian cause its former friends, and might justly convince reflecting men that it were better to risk the chances of a new dynasty than trust the kingdom to an ex- asperated faction. § 34. A period of obscurity and confusion ensues, during which we have as little insight into constitutional as general nistory. The/e are no contemporary chroniclers of any value, and the rolls of Parliament, by whose light we have hitberto Bteered, become mere registers of private bills,, or of petitions relating to commerce. The reign of Edward IV. is the first during which no »tatute was passed for the redress of griev- ances or maintenance of the subject's liberty. Nor is there, if I am correct, a single petition of this nature upon the roll. The reign of Edward IV. was a reign of terror. One half of the noble families had been thinned by proscription ; and though generally restored in blood by the reversal of their attainders — a measure certainly deserving of much approba- tion — were still under the eyes of vigilant and inveterate en- emies. Besides the severe proceedings against the Lancas- trian party, which might be extenuated by the common pre- tenses — retaliation of similar proscriptions, security for the actual government, or just punishment of rebellion against a legitimate heir — there are several reputed instances of vio- lence and barbarity in the reign of Edward IV. which have not such plausible excuses. Every one knows the common stories of the citizen who was attainted of treason for an idle speech that he would make his son heir to the crown, the house where he dwelt ; and of Thomas Burdett, who wished the horns of his stag in the belly of him who had advised the king to shoot it. Of the former I can assert nothing, though I do not believe it to be accurately reported. But certainly the accusation against Burdett, however iniquitous, was not confined to these frivolous words ; which, indeed, do not ap- pear in his indictment, or in a passage relative to his convic- tion in the roll of Parliament. Burdett was a servant and friend of the Duke of Clarence, and sacrificed as a prelimin- ary victim. It was an article of charge against Clarence that he had attempted to persuade the people that " Thomas Bur- dett, his servant, which was lawfully and truly attainted of treason, was wrongfully put to death." There could, indeed, be no more oppressive usage inflicted upon meaner persons 644 EDWARD IV. Chap. VIII. Part IIL than this attainder of the Dnke of Clarence — an act for which a brother could not be pardoned, had he been guilty, and which deepens the shadow of a tyrannical age, if, as it seems, his offense towards Edward was but levity and rashness. But whatever acts of injustice we may attribute, from au- thority or conjecture, to Edward's government, it was very far from being unpopular. His love of pleasure, his affability, his courage and beauty, gave him a credit with his subjects which he had no real virtue to challenge. This restored him to the throne, even against the prodigious influence of War- wick, and compelled Henry VII. to treat his memory witli respect, and acknowledge him as a lawful king. The latter years of his reign were passed in repose at home after scenes of unparalleled convulsions, and in peace abroad after more than a century of expensive warfare. He was the first who practised a new method of taking his subjects' money with- out consent of Parliament, under the plausible name of be- nevolences. These came in place of the still more plausible loans of former monarchs, and were principally levied on the wealthy traders. Though no complaint appears in the Par- liamentary records of his reign, which, as has been observed, complain of nothing, the illegality was undoubtedly felt and resented. In Richard III.'s only Parliament an act was passed which, after reciting in the strongest terms the grievances lately endured, abrogates and annuls forever all exactions un- der the name of benevolence. The liberties of this country were at least not directly impaired by the usurpation of Rich- ard ; but from an act so deeply tainted with moral guilt, as well as so violent in all its circumstances, no substantial ben- efit was likely to spring. Whatever difiiculty there may be in deciding upon the fate of Richard's nephews after they were immured in the Tower, the more public parts of the transac- tion bear unequivocal testimony to his ambitious usurpation.^" It would, therefore, be foreign to the purpose of this chapter to dwell upon his assumption of the regency, or upon the sort of election, however curious and remarkable, which gave a pretended authority to his usurpation of the throne. Neither of these has ever been alleged by any party in the way of constitutional precedent. § 35. At this epoch I terminate these inquiries into the >• The long-debated question as to the murder of Edward and his brother seems to toe more probably solved on the common supposition that it was really perpetrated by the orders of Richard, than on that of Walpole, Carte, Henry, and Laing:, who maintain that the Duke of York, at least, was in some way released from the Tower, and reappeared as Perkin Warbeck. But a very strong conviction either way is not readily attainable. English Const. CONCLUSION. 545 English constitution. From the accession of the house of Tudor a new period is to be dated in our history, far more prosperous in the diffusion of opulence and the preservation of general order than the preceding, but less distinguished by the spirit of freedom and jealousy of tyrannical power. We have seen, through the twilight of our Anglo-Saxon records, a form of civil policy established by our ancestors, marked, like the kindred governments of the Continent, with aborig- inal Teutonic features; barbarous indeed, and insufficient for the great ends of society, but capable and worthy of the im- provement it has received, because actuated by a sound and vital spirit, the love of freedom and of justice. From these principles arose that venerable institution, which none but a free and simple people could have conceived, trial by peers — an institution common in some degree to other nations, but which, more widely extended, more strictly retained, and better modified among ourselves, has become perhaps the first, certainly among tlie first, of our securities against arbi- trary government. We have seen a foreign conqueror and his descendants trample almost alike upon the prostrate nation and upon those who had been companions of their victory, introduce the servitudes of feudal law with more than their usual rigor, and establish a large revenue by con- tinual precedents upon a system of universal and prescrip- tive extortion. But the Norman and English races, each unfit to endure oppression, forgetting their animosities in a common interest, enforce by arms the concession of a great charter of liberties. Privileges wrested from one faithless monarch are preserved with continual vigilance against the machinations of another; the rights of the people become more precise, and their spirit more magnanimous, during the long reign of Henry III. With greater ambition, and great- er abilities than his father, Edward I. attempts in vain to govern in an arbitrary manner, and has the mortification of seeing his prerogative fettered by still more important limitations. The great council of the nation is opened to the representatives of the Commons. They proceed by slow and cautious steps to remonstrate against public grievances, to check the abuses of administration, and sometimes to chastise public delinquency in the officers of the crown. A number of remedial provisions are added to the statutes ; ev- ery Englishman learns to remember that he is the citizen of a free state, and to claim the common law as his birthright, even though the violence of power should interrupt its enjoy- ment. It were a strange misrepresentation of history to as- 546 NOTES TO CHAPTER VIII. Part III. sert that the constitution had attained any thing like a per- fect state in the fifteenth century; but I know not whether there are any essential privileges of our countrymen, any fundamental securities against arbitrary power, so far as they depend upon positive institution, which may not be traced to the time when the house of Plantagenet filled the English throne. NOTES TO CHAPTER VIII.— Part III. I. MUNICIPAL RIGHTS OF LONDON. London was, from a very early period, divided into wards, answering to hun- dreds in the county ; each having its own ward-mote, or leet, under its elected alder- man. " The city of London, as well with- in the walls as its liberties without the walls, has been divided from time im- memorial into wards, bearing nearly the same relation to the city that the hundred anciently did to the shire. Each ward is, for certain purposes, a distinct jurisdic- tion. The organization of the existing municipal constitution of the city is, and always has been, as far as can be traced, entirely founded upon the ward system." (Introduction to the French Chronicle of London.— Camden Society, 1S44.) But the portreeve of London, their principal mag- istrate, appears to have been appointed by the crown. It was not till 118S, the year before the death of Henry II., that Henry Fitzalwyn, ancestor of the present Lord Beaumont,* became the first mayor of London. But he also was nominated by the crown, and remained twenty -four years in office. In the same year the first sheriffs are said to have been made {fac.~ if). But John, immediately after his ac- cession in 1199, granted the citizens leave to choose their own sheriffs. And his charter of 1215 permits them to elect an- nually their mayor. (Maitland's Hist, of London, pp. 74, 76.) We read, however, under the year 1200, in the ancient chron- icle previously quoted, that twenty-five of the most discreet men of the city were chosen and sworn to advise for the city, together with the mayor. These were ev- idently different from the aldermen, and *' This pedigree is elaborately traced by Mr. Staple- ton, in his excellent introduction to the old chronicle of London, already quoted. The name Alwyn appears rather Saxon than Norman, so that we may presume the first mayor to have been of English descent ; but whether he were a merchant, or a land-owner living in the city, must be undecided. are the original common council of the city. They were perhaps meant in a later entry (1229) : " Omnes aldermauni et mag- nates civitatis per assensum universorum civium," who are said to have agreed nev- er to permit a sheriff' to remain in office during two consecutive years. The city and liberties of London were not wholly under the jurisdiction of the several ward-motes and their aldermen. Land-holders, secular and ecclesiastical, possessed their exclusive sokes, or juris- dictions, in parts of both. One of these has left its name to the ward of Portso- ken. The prior of the Holy Trinity, in right of this district, ranked as an alder- man, and held a regular ward -mote. The wards of Farringdon are denomi- nated from a family of that name, who held a part of them by hereditary right as their territorial franchise. These sokes gave way so gradually before the power of the citizens, with whom, as may be supposed, a perpetual conflict was main- tained, that there were nearly thirty of them in the early part of the reign of Henry III., and upward of twenty in that of Edward I. With the exception of Port- soken, they were not commensurate with the city wards, and we find the juries of the wards, in the third of Edward I., pre- senting the sokes as liberties enjoyed by private persons or ecclesiastical corpora- tions, to the detriment of the croAvn. But, though the lords of these sokes trenched materially on the exclusive privileges of the city, it is remarkable that, no condi- tion but inhabitancy being required in the thirteenth centnry for civic franchises, both they and their tenants were citizens, having individually a voice in municipal affairs, though exempt from municipal ju- risdiction. I have taken most of this par- agraph from a valuable though short no- tice of the state of London in the thir- teenth century, published in the fourth vol- ume of the Archaeological Journal (p. 273). English Const. NOTES TO CHAPTER VIII. 547 The inference which suggests itself from ! these facts is that London, for more than two centuries after the Conquest, was not BO exclusively a city of traders, a demo- cratic municipality, as we have been wont to conceive. And as this evidently ex- tends back to the Anglo-Saxon period, it both lessens the improbability that the citizens bore at times a part in political affairs, and exhibits them in a new light, as lords and tenants of lords, as well as, what of course they were in part, engaged in foreign and domestic commerce. It will strike every one, in running over the list of mayors and sheriffs in the thirteenth ceu- tnry, that a large proportion of the names are French ; indicating, perhaps, that the territorial proprietors whose sokes were intermingled with the city had influence enough, through birth and wealth, to ob- tain an election. The general polity, Sax- on and Norman, was aristocratic ; whatev- er infusion there might be of a more pop- ular scheme of government, and much cer- tainly there was, could not resist, even if resistance had been always the people's de- sire, the joint predominance of rank, rich- es, military habits, and common alliance, which the great baronage of the realm enjoyed. London, nevertheless, from its populousness, and the usual character of cities, was the centre of a democratic pow- er, which, bursting at times into precipi- tate and needless tumult easily repressed by force, kept on its silent course till, near the end of the thirteenth century, the rights of the citizens and burgesses in the legisla- ture were constitutionally established. II. POPULAR POETRY. The public history of Europe in the Middle Ages inadequately represents the popular sentiment, or only when it is ex- pressed too loudly to escape the regard of writers intent sometimes on less important subjects. But when we descend below the surface, a sullen murmur of discontent meets the ear, and we perceive that man- kind was not more insensible to wrongs and sufferings than at present. Besides the various outbreakings of the people in several counties, and their complaints in Parliament, after the Commons obtained a representation, we gain a conclusive in- sight into the spirit of the times by their popular poetry. Two very interestins: col- lections of this kind have been published by the Camden Society: one, the poems attributed to Walter Mapes ; the other, the Political Songs of England, from John to Edward II. Mapes lived under Henry II., and has 'long been knovrn as the reputed author of humorous Latin verses ; but it seems much more probable that the far greater part of the collection lately printed is not from his hand. They may pass, not for the production of a single person, but rather of a class, during many years, or, in general words, a century, ending with the death of Henry III. in 12T2. Many of them are professedly written by an imag- inary Golias. "They are not the expressions of hos- tility of one man against an order of monks, but of the indignant patriotism of a considerable portion of the English nation against the encroachments of civ- il and ecclesiastical tyranny."— (Introduc- tion to Poems ascribed t6 Walter Mapes, p. 21.) The poems in this collection reflect almost entirely on the pope and the high- er clergy. They are all in rhyming Latin, and chiefly, though with exceptions, in the loose trochaic metre called Leonine. The authors, therefore, must have been clerks, actuated by the spirit which, in a Church of great inequality in its endowments, and with a very numerous body of poor clergy, is apt to gain strength, but certainly, as ec- clesiastical history bears witness, not one of mere envious malignity towards the prelates and the court of Rome. These deserved nothing better, in the thirteenth century, than biting satire and indignant reproof; and the poets were willing enough to bestow both. But this popular poetry of the Middle Ages did not confine itself to the Church. In the collection eut'tled "Political Songs" we have some reflecting on Henry III., some on the general administration. The famous song on the battle of Lewes, in 1264, is the earliest in English ; but in the reign ofEdward I. several occur in thatlanguage. Others are in French or in Latin ; one com- plaining of the taxes is in an odd mixture of these two languages ; which, indeed, is not Avithout other examples in mediaeval poetry. These Latin songs could not, of course, have been generally understood. But what the priests sung in Latin, they said in English; the lower clergy fanned the flame, and gave utterance to what oth- ers felt. It may, perhaps, be remarked, as a proof of general sympathy with the democratic spirit which was then ferment- ing, that we have a song of exultation on the great defeat which Philip IV. had just sustained at Courtrai, in 1.302, by the bur- gesses of the Flemish cities, (m whose I liberties he had attempted to trample (p. I 187). It is true that Edward I. was on ill I terms with France, bnt the political inter- I ests of the king would not, i)erhaps, hav» 1 dictated the popular bal'.ad. 548 NOTES TO CHAFTEK VIII. Part III. Some of the political songs are written in France, though relating to our kings John and Henry III. Deducting these, we have two in Latin for the forn^er reign; seven in Latin, three in French (or what the editor calls Anglo-Norman, which is really the same thing), one in a mixture of the two, and one in English, for the reign of Henry III, In the reigns of Edward I. and Edward II. we have eight in Latin, three in French, nine in English, and four in mixed languages— a style employed probably for amusement. It must be observed that a large propor- tion of these songs contain panegyric and exultation on victory rather than satire ; and that of the satire much is general, and much falls on the Church ; so that the animadversions on the king and the no- bility are not very frequent, though with considerable boldness ; but this is more shown in the Latin than the English poems. ORIGINAL DOCUMENTS. I. CHARTER OF LIBERTIES OF HENRY I. Anno Incai'natiouis Dominicae M°C°I''. Henkious filius Willelmi kegis post obitum fralris sui Willelmi, Dei gratia rex Anglorum, omnibus fldelibus salu- tem. 1. Sciatis me Dei misericordia et com- muni consilio baronum totius rcgni An- gliae cjusdera regni legem coronatnm esse; et quia rcgnum oppressum erat iu- justis exactionibus, ego, Dei respectu et amore quern erga vos habeo, sauctam Dei ecclesiam imprimis liberam facio, ita quod nee vendam nee ad firmam ponam, nee mortuo archiepiscopo sive episcopo sive abbafe aliqnid accipiam de clominico ec- clesiae vel de hominibus ejus donee suc- cessor in earn ingrediatur. Et omnes ma- las consuetudines qnibus regnum Angliae injuste opprimebatur inde aufero quas ma- las consuetudines ex parte hie pono : 2. Si quis baronum, comitum meoram sive aliorum qui de me tenent, mortuus fuerit, haeres suns non redimet terram suam sicut faciebat tempore fratris mei, sed justa et legitima relevatione relevabit earn. Similiter et homines baronum me- orum justa et legitima relevatione releva- bunt teiTas suas de dominis suis. 3. Et si quis baronum vel aliorum ho- minum meorum filiam suam nuptum tra- dere voluerit sive sororem sive neptim 3ive cognatam, mecum inde loqnatur ; sed neque ego illiquid de suo pro hac licentia accipiam neque defendam ei qnin earn det. excepto si cam velletjungere inimico meo. Et si mortuo barone sive alio homine meo filia haeres remanserit, illam dabo consi- lio baronum meorum cum terra sua. Et si mortuo viro uxor ejus remanserit et sine liberis fuerit, dotem suam et marita- tionem habebit, et eam non dabo marito nisi secundum velle suura. 4. Si vero uxor cum liberis remanserit, dotem quidem et maritationem habebit, dum corpus suum legitime servaverit, et eam non dabo nisi secundum velle suum. Et terrae et liberorum custos erit sive uxor sive alius propinquorum qui justius esse debeat. Et praecipio quod barones mei similiter se contineant erga Alios et Alias vel uxores hominura suorum. 5. Monetagium commune quod capie- batur per civitates et comitatus quod non fuit tempore regis Edwardi, hoc ne amt)do fiat omnino detendo. Si quis captus fue- rit sive monetarius sive alius cum falsa moueta, justitia recta inde fiat. 6. Omnia placita et omnia debita quae fratri meo debebantur condono, exceptis rectis firmis meis et exceptis illis quae pacta erant pro aliorum haereditatibus vel pro eis rebus quae justius aliis contin- gebant. Et si quis pro haereditate sua aliquid pepigerat, illud condono, et omnes relevationes quae pro rectis haereditatibus pactae fueraut. 7. Et si quis baronum vel hominum meorum infirmabitnr, sicut ipse dabit vel dare disponet pecuniam suam, ita datam esse concedo. Quod si ipse praeventus arniis vel infirmitate, pecuniam suam non dederit vel dare disposnerit, uxor sua sive liberi aut parentes, et legitimi homines ejus eam pro anima ejus dividant, sicut eis melius visum fuerit. 8. Si quis baronum sive hominum me- orum forisfecerit, non dabit vadium in misericordia pecuniae, sicut faciebat tem- pore patris mei vel fratris mei, sed secun- dum modum forisfacti, ita emendabit sicut emendasset retro a tempore patris mei, in tempore aliorum antecessorum meorum. Quod si perfidiae vel sceleris convictus fuerit, sicut justum fuerit, sic emendet. 9. Murdra etiam retro ab ilia die qua in regem coronatus fui omnia condono : et ea quae amodo facta fuerint, juste emenden- tnr secundum lagam regis Edwardi. 10. Forestas communi consensu baro- num meorum in manu mea retinui, sicut pater mens eas habnit. 11. Militibus qui per loricas terras suas defendunt, terras dominicarum carruca- rum suarum quietas ab omnibus gildis, et omni opere, proj^rio dono meo concedo, nt sicut tarn niagno allevamine alleviati sint, ita se equis et armis bene instruant English Const. NOTES TO CHAPTER VIII. 549 ad servitium meum et ad defensiouem | te Ganfredo de Mandevilla, Hugone comite rcj^ni mei. i Cestriae, Willelmo comite de Arundel, co* 12. Pacem flrmam in toto regno raeo i mite Patricio, Willelmo comite de Ferra- pono et teneri amodo praecipio. riis, Ricardo tie Luci, Eeginaldo de Sane- 13. Lagam Edwardi regis vobis reddo ' to Walerico, Rogero Bigot, Reginaldo de cnm illis emeudationibus qnibus pater Warenuia,Richero deAqnila, Willelmo de mens earn emendavit cousilio baroiium suoriim. 14. Si quis aliquid de rebus meis vel de rebus alicnjns post obitum Willelmi regis fratris mei ceperit, totum cito sine emen Braiosa, Ricardo de Camvilla, Nigello de Moubrai, Simone de Bello Campo, Hnm- frido de Bonn, Malthaeo de Herefordia, Waltero de Meduana, Manassero Biseth dapifero, Willelmo Malet, Willelmo de datioue reddatur, et si quis inde aliquid j Curci, Roberto de Dunstanvilla, Jocelino retiuuerit, ille super quem iuveutura fue- rit mihi graviter emendabit. Testibus Matiricio Luudouiae episcopo et Giiudulfo episcopo et Willelmo electo episcopo et Henrico comite et Simone co- mit-e et Waltero Giffardo et Rodberto de Monfort et Rogero Bigoto et Henrico de Portu, apud Lundoniam qnando fui coro- natus. — ("Ancient Laws and Institutes," p. 215.) II. CONSTITUTIONS OF CLARENDON. Anno ab lucarnatione Domini M^CoLX^IV", papains Alexandri anno IV'", illustrissimi regis Anglornni Henrici de Baillolio, Willelmo de Lanvalis, Wil- lelmo de Caisneto, Ganfrido de Ver, Wil- lelmo de Hastiuges, Hngone de Morevilla, Alano de Nevilla, Simone filio Petri, Wil- lelmo Malduit camerario, Johanne Maldii- it, Johanne Mariscallo, Petro de Mara, et multis aliis proceribns et nobilibus regni, tam clericis quam laicis. Consuetndinnm vero et dignatatum reg- ni recognitarum quaedam pars praesenti pcripto continetur. Cnjns partis capitula haec sunt : I Cap. i. De advocationeetpraesentatione j ecclesiarum si controversia emerserit inter j laicos, vel inter laicos ct clericos, vel inter secuudi anno decimo, in praesentia ejus- ( clericos, in curia domini regis tractetur vel dem regis, facta est ista recordatio vel re- j terminetnr. cognitio cujusdam partis consuetndinnm | Cap. ii. Ecclesiae de feudo domini regis et libertatnm et dignitatnm antecessornm I non possunt in pei-petuum dari absque suorura, videlicet regis Henrici avi sui, et j assensu et concessione ipsius. aliorum quae observari et teneri debent in Cap. iii. Clerici rectati et accusati de regno. Et propter dissensiones et discor- qnacunque re, summoniti a Justitia regis dias quae emerserant inter clerum et Jus- titias domini regis et baroncs regni de con- snetndinibus et diguitatibns, facta est ista recognitio coram archiepiscopis et episco- pis et clero et comitibus et baronilms et proceribus regni. Et easdem consuetudi- nes recognitas per archiepiscopos et epi«?- copos et comites et barones et per nobili- ores et antiqulores regni, Thomas Cantu- ariensis archiepiscopus, et Rogerus Ebora- censis archiepiscopus, et Gillebertns Lon- doniensis episcopus, et Henricus Wiltoni- ensis episcopus, et Nigellus Eliensis epis- copns, et Willelmus Norwicensis episco- pus, et Robertus Lincolniensis episcopus, et Hilarius Cicestrensis episcopus, et Jo- celinus Sarisberiensis episcopus, et Ricar- dus Cestrensis episcopus, et Bartholomae- us Exoniensis episcopus, et Robertas He- refordensis episcopus, et David Meneven- sis episcopus, et Rogerus Wigorneusis electus, concesserunt, et in Verbo Verita- tis viva voce firmiter i)romiserunt tenan- das et observandas, domino regi et haere- veuient in curiam ipsius, responsuri ibi* dem de hoc nude vidobitur curiae regis quod ibidem sit respondendum ; et in cu- ria ecclesiastica, uude videbitur quod ibi- dem sit respondendum ; ita quod Justitia regis mittet in curiam sanctae ecclesia ad videndum qua ratione res ibi tractabitur. Et si clericus couvictus vel confessus fue- rit, non debet de cetero eum ecclesia tueri. Cap. iv. Archiepiscopis, episcopis, et per- sonis regni, non licet exire de regno absque licentia domini regis. Et ei exierint, si domino regi placuerit, assecnrabunt, quod nee ineuudo, nee in moram faciendo, nee in redeundo, perquirent malum vel dam- num regi vel regno. Cap. V. Excommuuicati non debent dare vadium ad remanens, nee praestare jura- mentnm, sed tantum vadium et plegium standi judicio ecclesiae ut absolvantur. Cap. vi. Laici non debent accusari nisi per certos et legales accusatores et testes in praesentia episcopi, ita quod archidia- conus non perdat jns suum ; nee quic- dibus suis, bona fide et absque malo inge- ! quam quod inde habere debeat. Et si ta- nio, praesentibus istis: Roberto comite \ les fuerint qui culpantur, quod non velit Leghestriae, Reginaldo comite Cornubiae, vel non andeat aliquis eos accusare, vice- ConaHO comite Britauniae, Johanne com-- ! comes requisitus ab episcopo faciet jurare te de Augo, Rogero comite de Clara, comi- ' duodecim legales homines de vicineto. sen 550 NOTES TO CHAPTER VIII. Part HI. de villa, coram episcopo, quod inde veri- tatem secundum conscientiam suam ma- iiifestabuut. Cap. vii. Nnllus qui de rege tenet in capite, nee aliquis dominicoium miuis- trorum ejus, excommuuicetur, uec terrae alicujus illorum sub interdicto ponantur, uisi prius dominus rex, si in terra fuerit, conveniatur, vel Justitia ejus, si fuerit ex- tra regnum, nt rectum de ipso faciat : et ita ut quod pertinebit ad curiam regiam ibidem terminetur, et de eo quod specta- bit ad ecclesiasticam curiam, ad eandem mittatur ut ibidem tractetur. Cap. viii. De appellatiouibus si emerse- rint, ab archidiacono debent procedere ad episcopum, ab episcopo ad archiepisco- pum. Et si archiepiscopus defecerit in justitia exhibeuda, ad dorainura regem IKjrvcuiendum est postremo, ut praecepto ipsius in curia archiepiscopi controversia terminetur, ita quod uon debet ulterius procedere absque asseusu domini regis. Cap. ix. Si calumnia emerserit inter clericum et laicum, vel inter laicum et clericum, de ullo tenemento quod clericus slA eleemosinam velit attrahere, laicus vero ad laicum feudum, recoguitione duodecim legalium hominum, per capitalis Justitiae j regis considerationem termiuabitur, utrum teuementum sit pertinens ad eleemosinam sive ad laicum feudum coram ipso Justitia regis. Et si rccognitura fuerit ad eleemo- sinam pertiuere, placitum erit in curia ec- clesiastica, si vero ad laicum feudum, uisi ambo de eodem episcopo vel barone ad- vocaveriut, erit placitum iu curia regia. Sed si uterque advocaverit de feudo illo ante eundem episcopum vel baronem, erit placitum in curia ipsius ; ita quod propter factam recoguitionem seisinam non amit- tat, qui prior seisitus fuerat, donee per placitum dirationatum fuerit. Cap. X. Qui de civitate, vel burgo, vel domiuico manerio domini regis fuerit, si ab archidiacono vel episcopo super aliquo delicto citatus fuerit, unde debeat eisdem respondere et ad citationes eorum satis- facere noluerit, bene licet eum sub inter- dicto ponere, sed non debet excommuui- cari priusquam capitalis minister domini regis villae illius conveniatur, et justiciet eum ad satisfactiouem venire. Et si mi- nister regis inde defecerit, ipse erit in misericordia domini regis, et exinde pote- rit episcopus ipsum accusatum ecclesias- tica justitia cohibere. Cap. xi. Archiepiscopi, episcopi, et uni- versae personae regni, qui de rege tenent iu capite, habent possessiones suas de domino rege sicut baroniam, et inde re- spondent Justitiis et ministris regis, et sequuutur et faciunt omnes rectitudines et consuetudines regias, et s\cut barones ceteri, debent interesse judiciis curiae do- mini regis cum baronibus, usque dum per- veniatur in judicio ad dimiuutionem mem- brorum vel mortem. Cap. xii. Cum vacaverit archiepiscopa- tus, vel episcopatus, vel abbatia, vel prio- ratus de dominio regis, debet esse in manu ipsius, et inde percipiet omnes reditus et exitus sicut dominicos. Et cum ventum fuerit ad consulendum ecclesiae, debet dominus rex mandare potiores personas ecclesiae, et in capella ipsius domini regis debet fieri electio assensn domini regis et consilio personarum regni, quas ad hoc faciendum vocaverit. Et ibidem faciet electus homagium et fidelitatem domino regi sicut ligio domino, de vita sua et de membris et de honore suo terreno, salvo ordine suo, priusquam sit consecratus. Cap. xiii. Si quisquam de proceribus regni defortiaverit archiepiscopo, vel epis- copo, vel archidiacono, de se vel de suis justitiam exhiberc, dominus rex debet eos justiciare. Et si forte aliquis defortiaverit domino regi rectitudinem suam, archiepis- copi et episcopi et archidiaconi debent eum justiciare ut domino regi satisfaciat. Cap. xiv. Catalla eorum qui sunt iu forisfacto regis non detiueat ecclesia vel cimiterium contra justitiam regis, quia ipsius regis sunt, sivc in ecclesiis sive extra fueriut inventa. Cap. XV. Placita de debitis, quae fide in- terposita debentur, vel absque interposi- tione fidei, sint in justitia regis. Cap. xvi. Filii rusticorum non debent ordinari absque assensn domini de cujus terra nati diguoscuntur. Facta est autem praedictarum consuetn- dinum et dignitatum recordatio regiarum a praefatis archiepiscopis et episcopis et comitibus et baronibus, et nobilioribus, et antiquioribus regni, apud Clarendonara quarto die ante Purificationem Beatae Mariae perpetuae Virginis, domino Hen- rico cum patre suo domino rege ibidem praesente. Sunt autem et aliae multae et magnae consuetudines et dignitates sanc- tae matris ecclesiae et domini regis et ba- ronum regni, quae in hoc scripto non con- tinentur. Quae saWae sint sanctae eccle- siae et domino regi et haeredibus suis et baronibus regni, et in perpetuum inviola- biliter observentur. — (Lyttelton's "Life of Henry II.," vol. iv., pp. 182-185, from MS. Cotton, Claudius B. 2.) HI. ASSIZE OF CLARENDON. Incipit Asaisa de Clarenduna facta a rege Henrico, scilicet secundo, de asaensu arch^ iepiscopornm, episcoporum, abbatum, co- mitum, haronum, totius Angliac. English Const. NOTES TO CHArTEK Vlll. 651 1. luprimis statuit praedictus rex Henri- ciis de consilio omnium barounm suorum, pro pace servanda et justitia teneuda, quod per singulos cumitatns inquiratur, et per gingulos huudredos per xii. legaliores ho- mines de hundredo, et per iv. legaliores homines de qualibet villata, per sacramen- tum quod illi verum dicent : si in hundre- do suo vel villata sua sit aliquis homo qui sit rettatus vel publicatus quod ipse sit robator vel raurdrator vel latro vel aliquis qui sit receptor robatorum vel murdrato- rnm vel latronum, postquam dominus rex fuit rex. Et hoc inquiraut Justitiae coram se, et vicecomites coram se. 2. Et qui iuvenietur per sacramentum praedictorum rettatus vel publicatus quod fuerit robator vel murdrator vel latro vel receptor eorum, postquam dominus rex fuit rex, capiatur et eat ad juisara aquae, et juret quod ipse uon fuit robator vel murdrator vel latro vel receptor eorum postquam dominus rex fuit rex, de valen- tia V. solidorum quod sciat. 3. Et si dominus ejus qui captus fuerit vel dapifer ejus vel homines ejus requisi- erint eum per plegium infra tertium diem postquam captus fuerit, replegiatur ipse ct catalla ejus donee ipse faciat legem suam. 4. Et quando robator vel murdrator vel latro vel receptores eorum capti fuerint per praedictum sacramentum, si Justitiae uon fuerint tam cito venturae in ilium comitatum ubi capti fuerint, vicecomites mandent propinijuori Justitiae per ali- quem intelligentem hominem, quod tales homines ceperint; et Justitiae remanda- bunt vicecomitibus ubi voluerint quod illi ducantur ante illos: et vicecomites illos ducant ante Justitias ; et cum illis ducant de hundredo et de villata ubi capti fuerint, duos legales homines ad portandum recor- dationem comitatus et hundredi, quare capti fuerint, et ibi ante Justitiam facieut legem suam. 5. Et de illis qui capti fuerint per prae- dictum sacramentum hujus Assisae, nullus habeat curiam vel justitiam uec catalla, nisi dominus rex in curia sua coram Jus- titiis ejus, et dominus rex habebit omnia catalla eorum. De illis vero qui capti fu- erint aliter quam per hoc sacramentum, sit sicut esse solet ei debet. 6. Et vicecomites qui cos ceperint du- cant eos ante Justitiam sine alia sumrao- nitione quam inde habeant. Et cum roba- tores vel raurdratores vel latrones et re- ceptores eorum, qui capti fuerint per sa- cramentum vel aliter, tradantur vicecomi- tibus, et ipsi recipiant eos statim sine di- latione. 7. Et in singulis comitatibus ubi non sunt gaiolac, llaut in burgo vel aliquo castello regis de denariis regi set bosco ejus si prope fuerit, vel de alio bosco pro- piuquo, per visum servientium regis, ad hoc ut vicecomites in illis possiut illos qui capti fuerint per ministros qui hoc facere Solent et per servientes suos, custodire. 8. Vult etiam dominus rex quod omnes veniant ad comitatus ad hoc sacramentum faciendum, ita quod nullus remaueat pro libertale aliqua quam habeat, vel curia vel soca quam habuerit, quin veniant ad hoc sacramentum faciendum. 9. Et non sit aliquis infra castellum vel extra castellum, nee etiam in honore de Walingeford, qui vetet vicecomites intrare in curiam vel terram suam ad videndos francos plegios, et quod omnes sint sub plegiis : et ante vicecomites mittautur sub libero plegio. 10. Et in civitatibus vel burgis nullus habeat homines vel recipiat in domo sua vel terra sua vel soca sua, quos uon in manu capiat quod eos habebit coram Jus- titia si requisiti fuerint, vel sint sub fran- coplegio. 11. Et nulli sint in civitate vel burgo vel castello vel extra, nee in honore etiam de Walingeford, qui vetent vicecomites intrare in terram suam vel socam suam, ad capiendum illos qui rettati fuerint vel publicati quod sint robatores vel murdra- tores vel latrones vel receptores eorum, vel utlagati vel rettati deforesta; sed prae- cipit quod juvent illos ad capiendum eos. 12. Et si aliquis fuerit captus qui fuerit saisiatus de roberia vel latrocinio, si ipse fuerit diffamatus et habeat malum testi- monium de publicamento, et non habeat warantum, non habeat legem. Et si non fuerit publicatus pro saisina quam habet, eat ad aquam. 13. Et si aliquis fuerit recognoscens co- ram legalibus hominibus vel hundredis de roberia vel murdro vel latrocinio vel de receptione eorum, et postea uegare voluerit, uon habeat legem. 14. Vult etiam dominus rex quod ipsi qui facient legem suam et mundi erant per legem, si ipsi fuerint de pessimo testimo- nio, et publice et turpiter diffamati testi- monio multorum et legalium hominum, foras jurent terras regis, ita quod infra viii. dies mare transibunt, nisi aura eos detinuerit ; et cum prima aura quam ha- bebunt postea mare transibunt, et ultra in Angliam non revertentur nisi per miseri- cordiam domini regis: et ibi sint utlagati et si redierent ; et si redieriut capiantur sicut utlagati. 15. Et prohibet dominus rex ne aliquis vaivua, id est vagus vel ignotus, hospite- tur alicubi nisi in burgo, et ibi non ho- epitetur nisi una nocte, nisi ibi infirraetur, 552 NOTES TO CHAFTER Vlll. P..Kr III. vel equus ejus, ita quod monstrare possit monptrabile essonium. 16. Et si ibi fuerit plusquam una nocte, capiatni- ille et teueatur donee dominus ejus veuerit ad earn plegiandum, vel do- nee ipse habeat salvos plegios ; et ille si- militer capiatur qui hospitatiis fuerit. 17. Et si aliquis vicecomes mandaverit alii vieeeoiniti quod homines fiigeriut de comitatu suo iu alium eomitatum pro ro- beria vel pro murdro vel latrocinio vel re- ceptione eorum, vel pro utlagia vel pro retta forestae regis, ille capiat eos: et etiara si per se vel per alios sciat quod ta- les homines fugerint in eomitatum sunm, capiat eos et custodiat douec de eis habeat salvos plegios. 18. Et omnes vicecoraites faciant inbre- viari omnes fugitivos, qui fugerint de suis comitatibus; et hoe faciant coram comi- tatibus, et illornm uomina scripta porta- bunt ante Justitias cum primo ad illos venerint, ut illi quaerantur per totam An- gliam, et eorum catalla capiautur ad opus regis. 19. Et vult dominus rex quod ex quo vieecomites suseeperint summon itioues Justitiarum errautium, ut ipsi cum comi- tatibus suis siut ante illos, ipsi congrcga- bunt comitatus suos et inquirent omnes qui de novo venerint in suos comitatus post banc assisam; et illos mittent per plegios, qnod erunt coram Justitias, vel illos cnstodient, donee Jnstitiae ad eos venerint, et tunc habebnnt coram Justi- tias. 20. Prohibet etiam dominus rex ne mo- naehl vel canouici vel aliqua domus reli- gionum recipiant aliquem de populo mi- uuto in monachum vel canonicum vel fra- trem, donee sciatur de quali testimonio ipse fuerit, nisi ipse fuerit infirmus ad mortem. 21. Prohibet etiam dominus rex, quod nullus in tota Anglia receptet in terra sna vel soca sua vel domo sub se, aliquem de secta illornm renegatorum qui excommu- nieati et signati fuerunt apud Oxeneforde. Et si quis eos reeeperit, ipse erit in miseri- cordia domini regis : et domus, in qi^a illi fuerint portetur extra villam et combura- tur, Et hoc jurabit unusquisque viceco- mes quod hoc tenebit, et hoc jurare faciet omnes ministros suos, et dapiferos baro- num, et omnes milites et franco tenentes de comitatibus. 22. Et vult dominus rex quod baec assisa teneatur in regno suo quamdiu ei plaenerit. --("M.S. Bodl. Rawlinson," C. 641.) IV. MAGNA CUARTA. •Tohannes Dei gratia rex Angliae, do- Boinus Hyberoiae, dux Normauniae et Aquitanniae, comes Audegaviae, archie- piscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, viceco- mitibns, praepositis, ministris et omnibus ballivis et lidelibus suis salutem. Sciatis nos intuitu Dei et pro salute animae nos- trae et omnium antecessornm et haeredum nostrorum, ad honorem Dei et exaltatio- nem sanctae ecelesiae, et emendationem regni nostri, per concilium venerabilium patrum nostrorum, Stephani Cantuarien- sis arehiepiscopi totius Angliae primatis et sanctae Romanae ecelesiae cardinalis, Henriei Dnblinensis arehiepiscopi, Willel- mi Loudouiensis, Petri Wintoniensis, Jo- scelini Bathoniensis et Glastoniensis, Hu- gonis Lincolnieusis, Walteri Wygornen- sis, Willelmi Coveutreusis, et Benedict! Roflfensis episcoporum ; magistri Pandulfl domini papae subdiaconi et familiaris, fratris Eymerici magistri milit'ae templl in Anglia ; et nobilium virorum Willelmi Marisealli comitis Pembrok, Willelmi co- mitis Saresberiae, Willelmi comitis Wa- renniae, Willelmi comitis Arnndelliae, Alani de Galweya constabularii Scottiae, Warini filii Gerokli, Petri tilii Hereberti, Huberti de Burgo senescalli Pictaviae, Hngonis de Nevilla, Mathei filii Hereber- ti, Thomae Basset, Alani Basset, Philippi de Albiuiaco, Roberti de Roppelay, Jo- hannis Marisealli, Jobaunis filii Hugonis et aliorum fldelium nostrorum ; 1. In primis concessisse Deo et hac prae- seuti carta nostra eonfirmasse, pro nobis et haeredibus nostris in perpetuum, quod Anglieana ecelesia libera sit, et habeat jura sua Integra, et libertates suas illaesas ; et ita volnmus observari ; quod apparet ex eo quod libertatem electiouum, quae maxima et magis necessaria reputatur ecelesiae Anglicanae, mera et spontanea voluntate, ante discordiam inter nos et barones nos- tros motam, concessimus et carta nostra eonfirmavimus, et eam optiuuimus a do- mino papa Innoeeutio tertio confirmari; quam et nos observabimus et ab haeredi- bus nostris in perpetuum bona fide voln- mus observari. Concessimus etiam omni- bus liberis hominibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus nostris ; 2. Si quis comitum vel baronnm nos- trorum, sive aliorum tenentium de nobis in capite per servitium militare, mortuus fuerit, etcum deeesserithaeres suus plenae aetatis fuerit et relevium debeat, habeat haeredita tern suam per antiquum relevium; scilicet haeres vel haeredes comitis, de baronia comitis integra per centum libras ; haeres vel haeredes baronis, de baronia in- English Const. NOTES TO CHAPTER Vlll. 553 tegra per centum libras ; haeres vel haere- des militis, de feodo railitis iutegro per cen- tum solidos ad plus ; et qui minus debue- rit miuus det secundum antiquam consne- tudinem feodorum. 3. Si autem tiaeres alicujus talium fuerit infra aetatem et fuerit in custodia, cum ad aetatem pervenerit, habeat haereditatera suam gine relevio et sine tine. 4. Custos terrae iiiijusmodi haeredis qui Infra aetatem fuerit, uon capiat de terra haeredis nisirationabiles exitus, et rationa- biles consuetudine?, et rationabilia servi- tia, et hoc sine destructicme et vasto homi- num vel rerum ; et si nos commiserimus custodiam alicujus talis terrae vicecomiti vel alicui alii qui de exitibns, illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de cxitibus respondeant nobis vel ei cui eos assignaverimus ; et si dederimus vel vendiderirans alicui costo- diam alicujus talis terrae, et ille destruc- tionem inde fecerit vel vastum, amittat ip- sam custodian! et tradatnr duobus legali- bus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut prae- dictura est. 5. Custos autem, quaradiu custodiam rerrae habuerit, susteutet doraos, parcos, vivaria, stagna, molendina, et cetera ad terram illam ])ertinentia, de exitibus terrae ejnsdem ; et reddat haeredi, cum ad ple- nam aetatem pervenerit, terram suam to- tam instauratam de carrucis et wainnagiis secundum quod tempus wainnagii exiget et exitus terrae rationabiliter poteruut sus- tincre. 6. Haeredes maritentur absque dispara- gatione, ita tamen quod, antequam contra- hatur matrimonium, ostendatur propin- quis de consanguiuitate ipsius haeredis. 7. Vidua post mortem mariti sui statim et sine diflScultate habeat maritagium et haereditatem suam, nee aliquid det pro dote sua, vel pro maritagio suo, vel haere- ditate sua quam haereditatem maritus suus et ipsa teuuerint die obitus ipsius mariti, et maneat in domo rnariti sui per quadra- ginta dies post mortem ipsius infra quos assign etur ei dos sua. 8. Nulla vidua distringatur ad se mari- tandum dum voluerit vivere sine marito, ita tamen quod secnritatem faciat quod se nou maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu domini Bui de quo tenuerit, si de alio tenuerit. 9. Nee nos nee ballivi nostri seisiemus lerram aliquam uec redditum pro debito iliquo, quamdiu catalladebitoris sufflciunt lb deb:tum reddendum nee pleggii ipsius 24 debitoris distringantur quamdiu ipse capi- talis debitor sufficit ad solutionem debiti ; et si capitalis debitor defecerit in'solutione debiti, non habens unde solvat, pleggii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris donee sit eis satisfactum de debito quod ante pro eo solveriut, nisi capitalis debitor monstra- verit se esse quietum inde versus eosdem pleggios. 10. Si quis mutuo ceperit aliquid a Ju- daei8,plus vel minu8,et moriatur antequam debilura ilium solvatur, debitumnou usu- ret quamdiu haeres fuerit infra aetatem, de quocumque teneat ; et si debitum illud inciderit in manus nostras, nos non capie- mus nisi catallum contentum in carta. 11. Et si quis moriatur, et debitum de- beat Judaeis, uxor ejus habeat dotem su- am, et nihil reddat de debito illo ; et si li- beri ipsius defuncti qui fuerint infra aeta- tem remanseriut, provideantur eis neces- saria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servitio dominornm ; simili modo tiat de debitis quae debentur aliis quam Judaeis. 12. Nullum scutagium vel auxilium po- natur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nos- trum redimendum, et primogenitum filium nostrum railitem faciendum, et ad liliam uostram primogenitam semel maritaudam, et ad haec uon fiat nisi rationabile auxili- um : simili raodo flat de auxiliis de civi- tate Londoniarum. 13. Et civitas Londoniarum habeat om- nes autiquas libertates et liberas consue- tudiues suas, tarn per terras, quam per aquas. Praeterea volumus et concedimus quod omnes aliae civitates, et burgi, et villae, et portus, habeant omnes libertates et libera*" consuetiidines suas. 14. Et ad habendum commune consiliam regni, de auxilio assidendo aliter quam in tribus casibus praedictis, vel de scutagio assidendo, summoneri faciemus archie- piscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras ; et praeterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite ; ad certum d^em, scilicet ad ter- minum qnadraginta dierem ad minus, et ad certum locum ; et in omnibus litteris illius summonitionis causam summouiti- onis exprimemus ; et sic facta summoni- tione uegotinm ad diem assignatum pro- cedat secundum consilium illorum qui praesentes fuerint, quamvis non omnes snmmoniti venerint. 15. Nos non concedemus de cetero alicui quod capiat auxilium de liberis homini- 554 NOTES TO CHAPTER VHI. Part IIL bus Buis, nisi ad corpus suum redimendum, et ad facieudum priiuogeuitum filium suum militem, et ad primogeuitara filiam suain semel maritandam, et ad haec nou fiat nisi rationabile auxiliurn, 16. Nullus distringatur ad faciendum majus servitium de feodo militis, nee de alio libero tenemento, quam iude debetur. 17. Communia placita non sequautur curiam nostram sed teneantur in aliquo loco certo. 18. Recognitiones de nova dissaisina, de morte antecessoris, et de ultima praesen- tatione, non capiautur nisi in suis comi- tatibus et hoc modo ; nos, vel si extra reg- num fnerimus, capitals jnsticiariusnoster, mittemus duos justiciar; o& per uimmquem- que comitatura per quataor vices iu anno, qui, cum quatuor miiitibus cnjuslibet comi- tatus electis per comitatum. cipiaut iu ' comitatu et in die et loco comitatus assisas praedictas. 19. Et si in die comitatus assisae prae- dictae capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerint comitatui die alio, per quos possint judicia sufficienter fieri, secundum quod negotium fuerit majus vel minus. 20. Liber homo nou amercietur pro parvo delicto, nisi secundum modum de- licti ; et pro magno delicto amercietur se- cundum magnitudinem delicti, salvo con- tenemento suo ; et mercator eodem modo salva mercandisa sua ; et villanus eodem modo amercietur salvo wainuagio suo, si inciderint in misericordiam nostram ; et nulla praedictarum misericordiarnm poua- tur, nisi per sacrameutum proborum ho- minum de visneto. 21. Comites et barones non amercientur nisi per pares snos, et nou nisi secundum modum delicti. 22. Nullus clericus amercietur de laico tenemento suo, nisi secundum modum aliorum praedictorum, et nou secundum quantitatem beneflcii sui ecclesiastici. 23. Nee villa nee homo distringatur fa- cere pontes ad riparias, nisi qui ab anti- quo et de jure facere debent. 24. Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita coronae nostrae. 25. Omnes comitatus, hundredi, wapen- takii, et trethingii, sint ad antiquas firmas absque uUo incremento, exceptis domini- cis maneriis nostris. 26. Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel ballivus noster ostendat litteras nostras patentes de summonitione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et inbreviare catalla defuncti inventa in laico feodo. ad valentiam illius debiti, per visum legalium homiuum, ita tamen quod nihil inde amo- veatur, donee persolvatur nobis debitum quod clarum fuerit ; et residuum reliuqna- tur executoribus ad faciendum testamen- tum defuncti ; et, si nihil nobis debeatur ab ipso, omuia catalla cedaut defuncto, salvis uxori ipsius et pueris rationabilibus partibus suis. 27. Si aliquis liber homo intestatus de- cesserit, catalla sua per manus propinquo- rnm pareutum et amicorum suorum, per visuDd ecclesiae distribuautur, salvis uui- cuique debitis quae defunctus ei debebat. 28. Nullus constabularius, vel alius bal- livus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de volun- tate venditoris. 29. Nullus constabularius distringat ali- qu^m militem ad daudum denarios pro custodia castri, si facere voluerit custodiam illam in propria persona sua, vel per aliura probum hominem, si ipse cam facere non possit propter rationabilem causam ; et si nos duxerimus vel raiserimus eum iu ex- ercitum, erit quietus de custodia, secun- dum quantitatem temporis quo per nos fuerit in exercitu. 30. Nullus vicecomes, vel ballivus nos- ter, vel aliquis alias, capiat equos vel ca- reta alicujus libcri hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis. 31. Nee nos nee ballivi nostri capiemus alieuum boscum ad ca^tra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit. 82. Nos non tenebirans terras illoi-utn qui convict! fueriut de felonia, nisi per nnum annum et nnnra diem, et tunc red- dantur terrae dominis feodorum. 33. Omnes kydelli de cetero deponantur penitus de Thamisia, et de Medewaye, et per totam Angliam, nisi per costeram ma- ris. 34. Breve quod vocatnr Praecijje de ce- tero non flat alien de aliquo tenemento unde liber homo amittere possit curiam suam. 35. Una mensura vini sit per totnro regnum nostrum, et una mensura cer^ visiae, et una mensura bladi scilicet quar- terium Londoniense, et una latitndo i)an- norum tinctorum, et russettorum, et hal- bergettorum, scilicet duae ulnae infra lis- tas ; de ponderibus autem sit nt de men- suris. 36. Nihil detua vel capiatur de cetero pro bievi inquisitionis de vita vei mem- bris, sed gratis concedatnr ct non negetur. 37. Si aliquis teneat de nobis per feodi- flrmam, vel per eokagium, vel per burgac English Const. NOTES TO CHAPTER VIII. 555 gium, et de alio terrara teneat per servitl- iiin militare, nos non habebimus custodi- ara haeredis uec terrae suae quae est de feodo alterius, occasioue illius feodifirmae, vel eokagii, vel burgagii ; uec habebimus cnstodiam Illius feodilirmae, vel sokagii, vel burgagii, iiiai ipsa feoditirraa debeat eervitium militare. Nos non habebimus custodiam haeredis vel terrae alicnjus, quam tenet de alio per servitium militare, occasione alicujus parvae sergenteriae quam tenet de nobis per servitium red- dendi nobis cultellos, vel sagittas, vel hu- jusmodi. 38. Nullus ballivus ponat de cetero ali- quem ad legem simplici loquela sua, sine testibus fldelibus ad hoc inductis. 39. Nullus liber homo capiatur, vel im- prisouetur, aut dissaisiatur, aut utlagetur, aut exuleter, aut aliquo modo destruatur, nee super eum ibimus, nee super eum mit- temus, nisi per legale judicium parium euorum, vel per legem terrae. 40. Nulli venderaus, nulli negabimus, aut differemus, rectum aut justiciam. 41. Omnes mercatores habeant salvum et securum exire de Anglia, et venire in Angliam, et morari et ire per Angliam, tam per terram quam per aqnam, ad emendum et vendendum, sine omnibus mails toltis, per antiquas et rectas consue- tudines, praeterquam in tempore gwerrae, et si sint de terra contra nos gwerriua ; et gi tales inveuiantur in terra nostra in prin- cipio gw&rrae, attachientur sine dampno corporum et rerum, donee sciatur a nobis vel capital! justiciario nostro, quoraodo mercatores terrae nostrae tractentur, qui tunc invenientur in terra contra nos gwer- riua; et si nostri salvi sint ibi, alii salvi sint in terra nostra. 42. Liceat unicuiqne de cetero exire de regno nostro, et redire, salvo et secure, per terram et per aquam, salva fide nostra, nisi tempore gwerrae per aliquod breve tem- pus, propter communem utilitatem regni, exceptis imprisonatis et utlagatis secun- dum legem regni, et gente de terra contra nos gwerrina, et mercatoribus de quibus flat sicut praedictnm est. 43. Si quis tenuerit de aliqua escaeta, sicut de honore Walingeford, Notingeham, Bononiae, Lainkastriae, vel de aliis eskae- tis, quae sunt in manu nostra, et sunt ba- roniae, et obierit, haeres ejus non det aliud relevium, nee faciat nobis alind servitium quam faceret baroni si baronia ilia esset in manu baronis ; et nos eodem modo eam tenebimus quo baro eam tenuit. 44. Homines qui manent extra forestam non veniant de cetero coram justiciariis nostris de foresta per communes summoni- lioues, nisi sint in placito, vel ploggii ali- cujus vel aliquorura, qui attachiati sint pro foresta. 45. Nos non faciemus justiciarios, con- stabularios, vicecomites, vel ballivos, nisi de talibus qui sciant legem regni et eam bene velint observare. 46. Omnes barones qui fundaverunt ab- batias, unde habent cartas regum Angliae, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent. 47. Omnes forestae quae aforestatae sunt tempore nostro, statim deafForestentur ; et ita flat de ripariis quae per nos tempore nostro positae sunt in defense. 48. Omnes malae consuetudines de fo- restis et warennis, et de forestariis et wa- rennariis, vicecomitibus et eorum raiui- stris, ripariis et earum custodibus, statim inquirantur in quolibet comitatu per duo- decim milites juratos de eodem comitatu, qui debent eligi per probos homines ejus- dem comitatus, et infra quadraginta dies post inquisitionem factam, peuitus, ita quod nunquam revocentur, deleantur per eosdem, ita quod nos hoc sciamus prius, vel jnsticiarius noster, si in Anglia non fuerimus. 49. Omnes obsides et cartas statim red- demus quae liberatae fuerunt nobis ab Anglicis in securitatem pacis vel fidelis servitii. 50. Nos amovebimus penitus de balliis parentes Gerardi de Athyes, quod de cetero nullam habeant balliam in Anglia ; Enge- lardum de Cygoniis, Audream, Petrum et Gyonem de Cancellis, Gyonemde Cygoniis, Galfridum de Martyni et fratres ejus, Phi- lippum Mark et fratres ejus, et Galfridum nepotem ejus, et totam sequelam eorum- dem. 51. Et statim post pacis reformationem amovebimus de regno omnes alienigenas milites, balistarios, servientes, stipendia- rios, qui veneriut cum equis et armis ad nocumentum regni. 52. Si quis fuerit disseisitus vel elon- gatus per nos sine legali judicio parium suorum, de terris, castallls, libertatibus, vel jure suo, statim ea ei restituemus ; et si contentio super hoc orta fuerit, tunc inde flat per judicium viginti quinque ba- ronum, de quibus flt mentio inferius in se- curitate pacis : de omnibus autem illis de quibus aliquis disseisitus fuerit vel elouga- tus sine legali judicio parium suorum, per Henricum regem patrem nostrum vel per Ricardum regem fratrem nostrum, quae in manu nostra habemus, vel quae alii tenent, quae nos oporteat warantizare, respectum habebimus usque ad communem terrainum crncesignatorum ; exceptis illis de quibus placitum motnm fuit vel inquisitiq facta 556 ^OTES TO CHAPTER VIII. Fakt IIL per praeceptum nostrnm, ante susceptio- uem crucis nostrae: cum autem redieri- mus de peregrinatione nostra, vel si forte remanserimus a peregrinatione nostra, sta- tira inde plenam jnsticiam exhibebimus. 53. Euudem autem respectura habebi- mus, ei eodem modo, de justicia exhiben- da de forestis deafforestandis vel reniansu- ris forestis, quas Henricus pater noster vel Ricardus frater uoster aftbreslaveruut, et de custodiis terrarum quae sunt de alieuo feodo, cnjasmodi custodias hucusque ha- buimus occasione feodi quod aliquis de nobis tenuit per servitium militare, et de abbatiis quae fiindatae fuerint in feodo alterins quam uostro, in quibus dominus feodi dixerit se jus habere ; et cum redieri- mus, vel si remanserimus a peregrinatione nostra, super fails conquereutibus plenam justiciam statim exhibebimus. 54. NuUus capiatur nee imprisonetur propter appellum foemiuae de morte al- terius quam viri sui. 55. Omnes fines qui injuste et contra legem terrae facti sunt nobiscum, et omnia amerciamenta facta iujuste et contra legem terrae, omnino condonentur, vel fiat inde per judicium viginti quiuque baronum de quibus fit meutio inferius in securitate pacis, vel per judicium majoris partis eonimdeni, una cum praedicto Stephano Cantuarieusi archiepiscopo, si inieresi-e po- terit, et aliis quos secum ad hoc vocare voluerit ; et si interesse non poterit, nihi- iominns procedat negotium sine eo, ita quod, si aliquis vel aliqui de praedictis viginti qninque baronibus fuerint in si- mili querela, amoveantur quantum ad hoc judicium, et alii loco illorum per residuos de eisdem viginti quinque, tantum ad hoc faciendum electi et jurati substituantur. 56. Si uos dissaisivimus vel elongavimns Walenses de terris vel libertatibus vel rebus aliis, sine legali judicio parium suorum, in Anglia vel in Wallia, eis statim reddantur; et si coiitentio super hoc orta fuerit, tunc iude fiat in marchia per judi- cium parium siiornm, de teuementis An- gliae secundum legem Angliae, de tene- raentis Walliae secundum legem Walliae, de tenementis marchiae secundum legem marchiae. Idem facient Walenses nobis et nostris. 57. De omnibus au'.um illis de quibus aliquis Walensium dissaisitus fuerit vel elongatus sine legali judicio parium suo- rum, per Uenricum regem patrem nostrum vel Kicardum regem fratrem nostrum, quae nos in manu nostra habemus, vel quae alii tenent quae nos oporteat wa- rantizare, respectum habebimus usque ad commnnem terminum crucesignatorum, illis exceptitf de quibus placitum motum fuit vel inquisitio facta per praeceptum nostrum ante susceptioneni crucis nostrae : cum autem redierimus, vel si forte reman- serimus a peregrinatione nostra, statim eis inde plenam justiciam exhibebimus, secundein lc;j;es Walensium et partes prae- dictas. 53. NosreddemusfiliumLewelini tatira, et omnes obsides de Wallia, et cartas quae nobis liberatae fuerunt in securitatem pa- cis. 59. Nos faciemus Allexandro regi Scot- torum de sororibus suis, et obtidibus red dendis, et libertatibus suis, et jure suo, secundum formam in qua faciemus aliis baronibus nostris Angliae, nisi aliter esse debeat per cartas quas kabemns de Willel- mo patre ipsius, quondam rege Scottorum ; et hoc erit per judicium parium suorum in-^ curia nostra. 60. Omnes autem istas consuetudines praedictas et libertates quas nos concessi- raus in regno nostro teuendas quantum ad nospertinet erga nostros, omnes de regno nostro, tarn clerici quam laici, observeut quantum ad se pertiuet erga suos. 61. Cum autem pro Deo, et ad emenda- tionem regni nostri, et ad melius sopien- dum discordiam inter nus et barones nos- tros ortam, haec omnia praedicta conces- serimns, vulentes ea Integra et firma sta- bilitate gaudere in perpetuum, faciemus et concedimus eis securitatem subscriptam ; videlicet quod barones eligant viginti quin- que barones de regno quos voluerint, qui debeant pro totis viribus suis observare, tenere, et facere observari, pacem et liber- tates quas eis concessimns, et hac prae- senti carta nostra confirma vim us, ita scili- cet quod, si nos, vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris nos- tris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum pacis aut securi- tatis transgressi fuerimus, et delictum os- tensum fuerit quatuor baronibus de prae- dictis viginti quinque baronibus, illi qua- tuor barones accedant ad nos vel ad jus- ticiarium nostrum, si fuerimus extra reg- num, proponentes nobis excessum : petent ut excessum ilium sine dilatione faciamus emendari. Et si uos excessum non emen- daverimns, vel, si fuerimus extra regnum, justiciarius noster non emendaverit infra terapus quadraginta dierum computan- dum a tempore quo monstratum fuerit no- bis vel justiciario nostro si extra regnum fuerimus, praedicti quatuor barones refe- rant causam illam ad residuos de viginti quinque baronibus, et illi viginti quinque barones eum communa totius lerrae dis- tringent et gravabunt nos modis omnibus quibus poternnt, scilicet per captionemcas- trorum, terrarum, possessrtonum, et aliis English Const. NOTES TO CHAPTER VIII. 657 modis quibuspotei-unt, donee fuerit emen- datum secundum arbitrium eorum, salva persona nostra et rc<2;iuae nostrae et liber- orum nostrorum ; et cum fuerit emeuda- tum iutendent nobis sicut prius fecerunl. Et quicumque voluerit de terra juret quod ad praedicta omnia exsequenda parebit mandatis praedictorum vigiuti quinque ba- rouum, et quod gravabit nos pro posise suo cum ipsis, et nos publico et libere damns licentiam juraudi cuilibet qui jurare volu- eriL, et null! umquam jurare prohibebiinus. Omnes autem illos de terra qui per se et } eponte sua uohieriut jurare vigiuti quiuque | barouibus, de distriiigeudo et gravando | nos cum eis, faciemus jurare eosdem de I mandato uostro, t