^ urn- ^- . ,J m Artlmr¥inlm1|iilritm5ini ff/1 ii^ *■ x^- ^>>^ 2!I-?^^^;v^ ' \^" 4 ' ■ /r^ ■ i' - ''^' .Z^/;^// 'W MV^ r- . V^'/ ' r /iJ® ^^f^'/i I^^MMHii r # ' T mi ^mmm^Mm ■in I m ■'M i Im ■Ji'^'W--''-^ ' •// ill m /f-i E \t* -x- SUPPLEMENTAL NOTES VIEW THE STATE OF EUROPE THE MIDDLE AGES. BY HENRY HALLAM. LONDON: JOHN MURRAY, ALBEMARLE STREET. 1848. London : Spottiswoode and Shaw, New-Street-Square. \\ \ CONTENTS. Page ix. Preface. - Notes. Edit. 1826. Edit. 1841. 1. Armoricans - Vol. i. 2. Vol. i. 2. 3. Origin of Franks _ - . 2. 2. 4. Testimony of Agathias . 3. 2. 5. Theory of Dubos . 3. 2. 11. Tolerance of Visigoths . 4. 3. 11. Kingdom of Mans . 4. 3. 12. Partitions of the Frank Kingdom 5. 4. 13. Moral Character of the IMerovingian Period - 6. 4. 15. Brunehaut _ 6. 4. 16. Mayors of the Palace - . 7. 5. 18. Aquitaine . 7. 5. 20. Austrasian Ascendancy . 7. 5. 21. Merovingian Kings - - - - 8. 6. 24. Battle of Poitiers - 8. 6. 24. Saxon Wars - . 13. 9. 2G. Charlemagne Emperor - 14. 10. 28. Character of Charlemagne . 17. 12. 29. Succession of Louis - . 18. 13. 32. Treaty of Verdun . 21. 14. 33. Decline of Carlovingians - 23. 15. 42. Feudal Nobles - 23. 15, 42. Saracens . 24, 16. 42. Norman Incursions . 28. 19. 45. First Kings of the Third Race 31. 21. 47. Louis VL . 32. 21. 47. Albigcnsian War . 38. 26. 48. Knights Templars . 61. 41. 53. John I. - - . 63. 42. 53. Robert of Artois . 65. 44. 54. Regency . 68. 45. 54. Flanders - 73. 50. 55. Archers - 75. 51. A 2 IV CONTENTS. Page Notes. 55. The Pestilence . . - - 56. Minority of Charles VI. - 56. Isabel of Bavaria . . . - 57. Louis of Orleans . _ . - 58. Philip le Bon . . . - 58. Joan of Arc - - - - - 59. Agnes Sorel - - - - - 60. Character of Louis XL ... 60. League of the Public Weal . . - 61. Duke of Guienne .... 61. Ambition of Charles . . . - 62. Parliament of Paris - - . - 62. Britany ..... 62. Marriage of Charles VIII. - 63. Artois and Franche-Comte - - ' - 63. Dauphine ..... 63. Histoi-y of France by Velly, Villaret, and Garnier 61. Ancient Germany .... 67. Partition of Lands - - . - 71. Alodial Lands . . . - 72. Salic Laws . . . . - 74. Salic Lands ----- 75. Bishops - . - - . 76. State of former Inhabitants ... 91. Personal Laws . . . - 96. Graf ...... 97. Hereditary Offices - - - 151. 99. Patrician . - . . - 99. Hereditary Succession ... 100. Royal Authority .... 109. Nobility ..... 113. Nobility among Anglo-Saxons 113. Hereditary Benefices .... 116. The Word Feudum . - - - 118. Commendation .... 122. Reliefs ..... 122. Guardianship in Chivalry ... 122. Princes in the Empire ... 123. Analogies to Feudal System ... 125. Nobility ..... Bdit. Edit. 1826. 1841. 78. 53. 95. 65. 95. 65. 96. 66. 104. 70. 110. 75. 112. 76. 120. 81. 120. 82. 123. 83. 126. 86. 134. 90. 136. 92. 138. 94. 139. 94. 139. 94. 140. 95 143. 99. 144. 97. 144. 97. 145. 98. 146. 98. 147. 99. 148. 100. 148. 101. 150. 101. &166. 102.&112. 151. 101. 152. 103. 155. 105. 158. 106. 159. 107. 164. 110. 165. 111. 171. 116. 183. 121. 190. 128. 194. 131. 200. 138. 205. 138. CONTENTS, V Page Notes. Edit. 1826. Edit. 1846. 125. Surnames - . . . 205. 138. 125. Feudal Aristocracy - - - 209. 139. 128. Vavassors in England 211. 142. 129. Freemen - . . . 215. 145. 131. Tributarii, Lidi, Coloni 216. 145. 133. Servitude - . - - 218. 146. 140. Division of the Pound 235. 157. 140. National Assemblies - - - 239. 160. 143. Quotation from Hincmar 240. 161. 146. Scabini elected by Alodial Proprietors 241. 161. 147. Hereditary Succession 242. 162. 147. Dampierre - - . - 248. 166. 148. Beaumanoir - . . . 250. 168. 148. Philip the Fair 252. 169. 149. States of 1356 260. 174. 149. Journal of the States of Tours 271. 182. 149. Charter of Dagobert - - - 273. 183. 150. Establishments of St. Louis - 281. 188. 150. Royal Court - - - - 286. 191. 152. Municipal Institutions 297. 200. 167. Compagnies d'Ordonnance 317. 202. 168. Berenger - - - - 327. 220. 168. Venetian Nobles excluded from Trade 483. 323. 169. Fall of Venice ... 485. 325. 169. Revenues of Venice - - - 489. 327. 170. Statistical Estimates - 533. 356. 171. Count Julian - - - - Vol. ii. 3. 369. 175. Suzerainty of Germany over France - 91. 428. 175. Partition of great Fiefs 125. 446. 176. Character of Frederic III. 124. 450. 178. Genuineness of the Koran 163. 475. 179. Anglo-Saxon Church 204. 502. 180. Parochial Ministers - - - 205. 503. 180. Grant of Ethelwolf - 207. 505. 182. Spoliation of the Church 209. 505. 182. Wealth of English Clergy 209. 506. 183, Capitulary of Charlemagne 211. 508. 183. Ecclesiastical Policy of Charlemagne 219. 513. 184. Deposition of Louis - - - 220. 514. A 3 VI CONTENTS. Fage Notes. 185. Eclwy and Elglva - - - 187. Early Papal Authority - - - 189. Concession of Phocas - - - 190. Wilfrid .... 190. Exemption of Monasteries 191. Marriage of Clergy in early Church 192. Efforts to maintain Clerical Matrimony - 194. Concordat of Worms - . - 195. Decretum of Gratian - - - 196. Pragmatic Sanction of Louis IX. 197. Ecclesiastical Immunity 197. Benefit of Clergy 198. Gallican Church ... 198. Conclusion of the Chapter 199. Bretwaldas . - - . 204. Anglo-Saxon Monarchy 206. Eorls and Ceorls . . - 221. Expulsion of Britons - - - 224. Remains of Welsh in English Language - 225. The Witenagemot . . - 230. Borough Magistrates in the Witenagemot 231. Division of Counties - - - 232. Earl in the County-Court 232. Hundred Court 236, King's Court before the Conquest 241. Trial by Jury - - - - 263. Frank Pledge ... - 264. Bocland and Folcland - - - 268. Anglo-Saxon Use of the Word Vassallus 268. Territorial Jurisdiction 269. Feudal Tenures 271. Array of William ... 272. Risings of the English . - - 273. Gregory VII. in the papal Chair 274. Rejection of the English Language 275. Domesday Book . . - 278. Forest Law . - - - 279. Oath of Fealty 279. Jurisdiction of Feudal Courts - 280. Legislative Power in Anglo-Norman Reigns Edit. Edit. 1826. 1841. 224. 516. 225. 516. 231. 520. 232. 521. 238. 526. 250. 533. 252. 534. 268. 544. 286. Vol.ii. 2. 302. 13. 312. 20. 318. 23. 348. 43. 373. 55. 376. 61. 378. 61. 383. 65. 386. 68. 387. 68. 388. 69. 389. 69. 390. 70. 392. 72. 392. 72. 396. 74. 401. 78. 408. 78. 409. 83. 413. 86. 417. 88. 418. 89. 420. 91. 422. 92. 423. 92. 423. 92. 425. 94. 426. 97, 430. 97. 434. 100. 442. 105. CONTENTS. Vii Page N„„s. E^4 EO^;- 286. Charter of William I. - - - 443. 105. 289. Laws of William I. - - - - 443. 106. 290. Henry I. .... . 443. 106. 291. Thieves hanged at Leicester ... 444. 106. 291. Intermixture of Normans and English •• 444. 106. 293. Vel per Legem Terrfe - - - 449. 109. 294. Omission in the Charters of Henry in. - 453. 112. 294. Bracton ..... 46O. 116. 295. Curia Regis ..... 462. 118 300. Justices of Assise .... 463. 119. 301. Hereditary Succession of Kings - - 472. 125. 304. Private War .... 48O. 130. 305. Etymology of Socage ... 48I. 131. 306. Confirmatio Chartarum - . "Vol. iii. 5. 138. 306. Constitution of Parliament in Norman Reigns 15. 143. 316. Delegates summoned by William I. . - 19. 146. 317. Writs of the Fourth and Ninth Years of Henry HI. 20. 1 47. 318. Writ in the Thirty-Eighth Year of Henry III. 21. 147. 319. Statuteof the Twelfth of Richard IL c. 12. - 25. 150. 319. Electors of Knights - - . - 29. 152. 323. Towns before the Conquest - - - 31. 154. 327. Charter of Henry I. to London . - 33. 155. 328. London ----- 37. 158. 329. Population of London - - - 38. 158, 331. Statute of Acton Burnell - - - 46. 164, 332. Parliaments of Edward L - - - 46. 164. 335. Borough Representation ... 49. 167. 339. Annual Parliaments . - - - 57. 171. 340. Lords Ordainers in 1309 - - - 61. 173. 341. Parliaments of Edward II. - - - 62. 173. 343. Tallages on King's Demesnes - - 63. 175. 344. Council of the Twenty-seventh Your of Edward III. 74. 1 .S2. 344. Repeal of the 15th of Edward IJ I. - - 77. 184. 345. Electors in Boroughs - - - 174. 248. 346. Peerage by Barony - - - - 181. 252. 353. Peerages by Writ - - - - 187. 257. 354. Bannerets - - - - - 188. 257. 355. Council of Advice .... 206. 269 355. Court of Chancery - - - - 211. 272. A 4 Vlll CONTENTS. Page Notes. 364. Prosperity under the House of Lancaster 365. Articles agreed on in the Eighth Year of Henry VI. 216 366. King's Ordinary Council 375. Prerogative of English Kings - 378. Popular Poetry 381. Villenage - - - - 383. Villeins regardant and in gross 386. Battle of St. Albans 387. Avitus . - . - 388. Could Charlemagne write? 389. The Dark Ages 395. Scotus or Erigena ... 396. Libraries in the Dark Ages - 397. Ordeals - - - - 397. Religion of the Middle Ages - 398. Eligius .... 399. Amalfi .... 399. Usury .... 400. Domestic Architecture 403. Jacques Coeur . - _ 403. Chimneys - . . - 404. Cologne Cathedral _ . - 405. Agriculture of the Monks 406. Value of Money 407. Wages of Labour ... 408. Waldenses and Albigenses 408. Versions of Scrip tui'e 409. Chivalry .... 411. Civil Law .... 411. Education before Charlemagne 412. Abelard - - 412. Oxford .... 413. Schoolmen . . . - 413. French Language . . - 414. Poetry of Richard L ... 414. Stories of Arthur ... 415. Petrarch. _ . . - 415. Layamon .... 415. English in Parliamentary Proceedings 417. Quotations in Dark Ages Edit. Edit. 1826. 1841. 216. 276. [.216. 276. 217. 276. 226. 282. 244. 297. 254. 301. 256. 302. 285. 321. 325. 348. 330. 351. 331. 352. 335. 355. 337. 356. 341. 359. 350. 365. 354. 367. 390. 391. 406. 402. 423. 413. 423. 413. 425. 414. 434. 420. 436. 422. 450. 429. 456. 433. 472. 444. 474. 447. 511. 472. 520. 477. 520. 478. 523. 479. 524. 480. 534. 486. 546. 496. 549. 497. 550. 497. 571. 511. 571. 512. 575. 514. 578. 516. P 11 E F A C E. Thirty years have elapsed since the publication of the Work to which the following Notes relate, and almost forty since the first chapter and part of the second were written. The occupations of that time rendered it impossible for me to bestow such undivided attention as so laborious and difficult an undertaking demanded ; and at the outset I had very little inten- tion of prosecuting my researches, even to that degree of exactness which a growing interest in the ascer- tainment of precise truth, and a sense of its difficulty, led me afterwards in some parts to seek, though no- where equal to what with a fuller command of time I should have desired to attain. A measure of public approbation accorded to me far beyond my hopes, has not blinded my discernment to the deficiencies of my own performance ; and as successive editions have been called for, I have continually felt that there was more to correct, or to elucidate, than the insertion of a few foot notes would supply ; while I was always reluctant to make such alterations as would leave to the purchasers of former editions a right to complain. From an author whose science is continually progres- sive, such as chemistry or geology, this is unavoid- X . PKEFACE. ably expected ; but I thought the case not quite the same with a mediseval historian. In the mean time, however, the long period of the Middle Ages had been investigated by many of my distinguished contemporaries with signal success, and I have been anxious to bring my own volumes nearer to the boundaries of the historic domain, as it has been enlarged within our own age. My object has been, accordingly, to reconsider those portions of the Work which relate to subjects discussed by eminent writers since its publication, to illustrate and enlarge some passages which had been imperfectly or ob- scurely treated, and to acknowledge with freedom my own errors. It appeared most convenient to adopt a form of publication by which the possessors of any edition may have the advantage of these Supplemental Notes, which will not much affect the value of their copy. The first two Chapters, on the History of France, and on the Feudal System, have been found to require a good deal of improvement. As a history, indeed, of the briefest kind, the first pages are insufiicient for those who have little previous knowledge ; and this I have, of course, not been able well to cure. The second Chapter embraces subjects which have pe- culiarly drawn the attention of Continental writers for the last thirty years. The whole history of France, civil, constitutional and social, has been more philo- sophically examined, and yet with a more copious erudition, by which philosophy must always be guided, than in any former age. Two writers of high name PREFACE. XI have given the world a regular history of that coun- try ; one for modern as well as mediaeval times, the other for these alone. The great historian of the Italian republics, my guide and companion in that portion of the History of the Middle Ages, published, in 1821, the first volumes of his History of the French ; it is well known that this labour of twenty years was very nearly terminated when he was re- moved from the world. The two histories of Sismondi will, in all likelihood, never be superseded ; if in the latter we sometimes miss, and yet we do not always miss, the. glowing and vivid pencil, guided by the ardour of youtJi and the distinct remembrance of scenery, we find no inferiority in justness of thought, in copiousness of narration, and especially in love of virtue and indignation at wrong. It seems, indeed, as if the progress of years had heightened the stern sentiments of republicanism with which he set out, and to which the whole course of his later work must have afi'orded no gratification, except that of scorn and severity. Measuring not only their actions but characters by a rigid standard, he sometimes demands from the men of past times more than human frailty and ignorance could have given, and his history would leave but a painful impression from the gloominess of the picture, were not this constantly relieved by the pe- culiar softness and easy grace of his style. It cannot be said that Sismondi is very diligent in probing ob- scurities, or in weighing evidence ; his general views, with which most of his chapters begin, are luminous and valuable to the ordinary reader, but sometimes Xll PREFACE. sketched too loosely for the critical investigator of history. Less full than Sismondi in the general details, but seizing particular events or epochs with greater mi- nuteness and accuracy — not emulating his full and flowing periods, but in a style concise, rapid, em- phatic, sparkling with new and brilliant analogies — picturesque in description, spirited in sentiment, a poet in all but his fidelity to truth — M. Michelet has placed his own History of France by the side of that of Sismondi. His quotations are more numerous, for Sismondi commonly gives only references, and when interwoven with the text, as they often are, though not quite according to the strict laws of com- position, not only bear with them the proof which an historical assertion may fail to command, but exhibit a more vivid picture. In praising M. Michelet, we are not to forget his defects. His pencil, always spirited, does not always fill the canvas. The consecutive history of France will not be so well learned from his pages as from those of Sismondi ; and we should protest against his peculiar bitterness towards England, were it not ridiculous in itself by its frequency and exaggera- tion. I turn with more respect to a great name in his- torical literature ; and which is only less great in that sense than it might have been, because it belongs also to the groundwork of all future history — the whole series of events which have been developed on the scene of Europe for twenty years now past. PREFACE. Xlll No envy of faction, no caprice of fortune, can tear from M. Guizot the trophy which time has bestowed, that he, for nearly eight years, past and irrevocable, held in his firm grasp a power so fleeting before, and fell only with the monarchy which he had sustained, in the convulsive throes of his country. " Cras vel atra Nube polum Pater occupato, Vel sole puro : non tamen irritum, Quoclcunque retro est, efficiet." It has remained for my distinguished friend to manifest that high attribute of a great man's mind — a constant and unsubdued spirit in adversity, and to turn once more to those tranquil pursuits of earlier days, which bestow a more unmingled enjoyment, and a more unenvied glory, than the favour of kings, or the applause of senates. The Essais sur I'Histoire de France, by M. Guizot, appeared in 1820 ; the Collection de Memoires rela- tives a I'Histoire de France (a translation generally from the Latin, under his superintendence and with notes by him), if I mistake not, in 1825 ; the Lec- tures on the Civilisation of Europe, and on that of France, are of different dates, some of the latter in 1829. These form, by the confession of all, a sort of epoch in mediaeval history by their philosophical acuteness, the judicious choice of their subjects, and the general solidity and truth of the views which they present. I am almost unwilling to mention several other XIV PKEFACE. eminent names, lest it should seem invidious to omit any. It will sufficiently appear by these Notes to whom I have been most indebted. Yet the writings of Thierry, Fauriel, Raynouard, and not less valuable, though in time almost the latest, Lehuerou, ought not to be passed in silence. I shall not attempt to characterise these eminent men ; but the gratitude of every inquirer into the mediaeval history of France is especially due to the ministry of Public Instruction under the late government, for the numerous volumes of Documens Inedits, illustrating that history, which have appeared under its superintendence and at the public expense, within the last twelve years. It is difficult not to feel, at the present juncture, the greatest apprehension that this valuable publication will at least be suspended. Several Chapters which follow the second in my volumes, have furnished no great store of additions ; but that which relates to the English Constitution has appeared to require more illustration. Many subjects of no trifling importance in the history of our ancient institutions, had drawn the attention of men very conversant with its best sources ; and it was naturally my desire to impart in some measure the substance of their researches to my readers. In not many instances have I seen ground for materially altering my own views ; and I have not of course hesitated to differ from those whom I often quote with much respect. The publications of the Record Commission ; the celebrated Report of the Lords' Committee on the Dignity of a Peer ; the work of PREFACE. XV my learned and gifted friend Sir Francis Palgrave, On the Rise and Progress of the English Common- wealth, replete with omnifarious reading and fearless spirit, though not always commanding the assent of more sceptical tempers ; the approved and valuable contributions to constitutional learning by Allen, Kemble, Spence, Starkie, Nicolas, Wright, and many others; are full of important facts and enlightened theories. Yet I fear that I shall be found to have overlooked much, especially in that periodical litera- ture which is too apt to escape our observation or our memory ; and can only hope that these Xotes, imper- fect as they must be, will serve to extend the know- ledge of my readers, and guide them to the sources of historic truth. They claim only to be supple- mental, and can be of no service to those who do not already possess the History of the Middle Ages. The paging of the editions of 1826 and 1841, one in three volumes, the other in two, has been marked for each Note ; which will prevent, I hope, all incon- venience in reference. June, 1848. ERRATA. Page 1. line 1. for " Zozimus" read " Zosimus." 64. line 3. from bottom of text, for " annuo " read " annua." 111. line 3. from bottom of text, for "mundebunde" read " munde- burde." 206. line 10. for "faventi" read " favente." 281. line 7. from bottom, for " prerogatives" read "prerogative." 326. line 18. from bottom, for " laws " read " lords." YIEW OF THE STATE OF EUROPE DURING THE MIDDLE AGES. SUPPLEMENTx\L NOTES. CHAPTER I. 1. ARMORICANS. Edit. 1826, p. 2. note *. Edit. 1811, p. 2. The evidence of Zozimus, which is the basis of this theory of Dubos, cannot be called very slight, thoug-h per- haps inaccurate. Early in the fifth century, according to him, about the time when Constantine usurped the throne of Britain and (laul, or, as the sense shows, a little later, in consequence of the incursions of the barbarians from beyond the Rliine, the natives of Britain, taking up arms for them- selves, rescued their cities from these barbarians ; and the whole Armorican territory, and other provinces of Gaul, 'Ac>[j.o^L^rjg otTrac:, xrA zrspai Yai^arSiv lifTaoyJon^ in imita- tion of the Britons, liberated themselves in the same man- ner, expelling the Roman rulers, and establishing an inter- nal government : ex^a7^7^ou(rcci [j.si> rohg'V coixrxioug dpyovraSy o]xs7ou ds xoLT i^ou(r{av TroXireu'xa. xadicrroifrai. Lib. vi., apud Rec. des Historiens, vol. i. p. 586. Guizot gives so much authority to this, as to say of the Armoricans : *' lis se B 2 ARMORICANS. [Chap. I. maintinrent toujoiirs libres entre les barbares et les Ro- mains." Introduction a la Collection des Memoires, vol.i. p. 336. Sismondi pays little regard to it. Tlie proofs alleged byDaru for the existence of a kingof Britany named Conan, early in the fifth century, would throw much doubt on the Armorican republic ; but they seem to me rather weak. Britany, it may be observed by the way, was never subject to the Merovingian kings, except sometimes in name. Dubos does not think it probable that there was any central authority in what he calls the Armorican confederacy, but conceives the cities to have acted as independent states during the greater part of the fifth centuiy. (Hist, de I'E'tablissement, &c., vol. i. p. 338.) He gives, however, an enormous extent to Armorica, supposing it to have comprised Aquitaine. But though the contrary has been proved, it is to be observed that Zozimus mentions other provinces of Gaul, srspaiTaJ^araiv S7raf>^iai, as well as Ar- morica. Procopius, by the word 'Af>^6f>v^ot, seems to indi- cate all the inhabitants at least of Northern Gaul ; but the passage is so ambiguous, and his acquaintance with that history so questionable, that little can be inferred from it with any confidence. On the whole, the history of North- ern Gaul in the fifth century is extremely obscure, and the trustworthy evidence Aery scanty. Sismondi (Hist, des Fran9ais, vol. i. p. 134.) has a good passage, which it will be desirable to keep in mind when we launch into medieval antiquities : — " Ce pen des mots a donne matiere a d'amples commentaires, et au deve- loppement de beaucoup de conjectures ingenieuses. L'abbe Dubos, en expliquant le silence des historiens, a fonde sur des sous-entendus une histoire assez complete de la repub- lique Armorique. Nous serous souvent appeles a nous tenir en garde contre le zele des ecrivains qui ne satisfait point I'aridite de nos chroniques, et qui y suppleent par des divinations. Plus d'une fois le lecteur pourra etre surpris en voyant a combien peu se reduit ce que nous savons reellement sur un evenement assez celebre pour avoir motive de gros livres." Note 2.] FRANKS. ORIGIN OF FRANKS. Edit. 1326, p. 2, notef. Edit. 1811, p. 2, The Franks are not among the German tribes mentioned by Tacitus, nor do they appear in history before the year 240. Guizot accedes to the opinion that they were a confederation of the tribes situated between the Rhine, the Weser, and the Main ; as the Alemanni were a similar league to the south of the last river.* Their origin may be derived from the necessity of defending their indej)endence against 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 often the purchased allies of the declining empire. Their history is briefly sketched by Guizot (Essais sur I'Histoire de France," p. 53.^, and more copiously by other antiquarians, among whom M. Lehue- rou, the latest and not the least original or ingenious, conceives them to have been a race of exiles or outlaws from other German tribes, taking the name Franc from J'reck, fierce or boldt, and settling at first, by necessity, near the mouth of the Elbe, whence they moved onwards to seek better habitations at the expense of less intrepid, though more civilised, nations. " Et ainsi naquit la pre- miere nation de I'EurojjC moderne." t Institutions Mero- vingiennes, vol. i. p. 91. An earlier writer considers the Franks as a branch of the great stock of the Suevi, mentioned by Tacitus, who, he tells us, '* majorem Germanite ])artem obtinent, pro- priis adhuc nationibus nominibusque discreti, quanquam in coiimiuni Suevi dicuntur. Insigne geiitis obliquare crinem, nodoque substringere." De Moribus German, c. 38. Ammianus mentions the Salian Franks by name : "Francos * Alemanni is generally supposed to f This etymology had been given mean "all men." IMcyer, however, by Thierry, or was of older origin, takes it for nnother form of Arimanni, \ As M. Lcluicrou belongs to what from Ileermanner, soldiers. — Noiivcaux is called the Roman school of French Memoires de rAcademie de I3ruxelles, antiquaries, he should not have brought vol. iii. p. 439. the nation from beyond the Rhine. 4 TESTIMONY OF AGATHIAS. [Chap. I. eos quos consuetude Salios appellavit." See a memoir in the Transactions of the Academy of Brussels, 1824, by M. Devez, *' sur I'etablissement des Francs dans la Bel- gique." In the great battle of Chalons, the Franks fought on the Roman side against Attila ; and we find them men- tioned several times in the history of Northern Gaul from that time. Lehuerou (Institutions Merovingiennes, c. 11.) endeavours to prove, as Dubos had done, that they were settled in Gaul, far beyond Tournay and Cambray, under Meroveus and Childeric, though as subjects of the empire ; and Luden conjectures that the whole country between the Moselle and the Somme had fallen into their hands even as early as the reign of Honorius. (Geschichte des Deutschen Volkes, vol. ii. p. 381.) This is one of the obscure and debated points in early French history. But the seat of the monarchy appears clearly to have been esta- blished at Cambray before the middle of the fifth century. TESTIMONY OF AGATHIAS. Edit. 18'2G, p. 3. note *. Edit. 1841, p. 2. note f. It is but fair to quote the entire testimony of Agathias to the civilised manners of the Franks, as it makes, to a certain extent, in favour of a theory to which I do not wholly assent. Ylo7s.irsi'a (0$ to. 7ro7\.7vot. ^ocoproci 'Poj^aa/^y], xou voy-oig roig auroig, xa) ra. cOO^ol b[xoia)g a[x<^i re ra (rv[xSo7\.aia xa) yo-ixoug xa) rr^v rou ^bioo ^spairsiav vo[J,i- ^ou(ri .... s/xo/ ys ooxovrri cc^oO^a Bivai xcxTfJAol rs xa) acTTsioTaroi, olifjev rs sp^s/v ro Oiakl^arTOV^ t] [jlovov to ^ap€apixov T% aroArig^ xa) to T7]g Avhich was an overt act of the Roman, or imperial, against the barbarian party. If the latter consented to this in 81 7, it was probably, either because they did not understand it, or because they trusted to setting it aside. And, as is Avell known, the course of events soon did this for them. " It is indisputable," says Ranke, " that the order of suc- cession to the throne, which Louis the Pious, in utter dis- regard of the warnings of his ftiithful adherents, and in opposition to all German modes of thinking, established in the year 81 7, was principally brought about by the in- fluence of the clergy." (Hist, of Reformation, Mrs. Austin's translation, vol. i. p. 9.) He attributes the con- currence of that order, in the subsequent revolt against Louis, to the endeavours he had made to deviate from the provisions of 819, in favour of his youngest son, Charles the Bald. 19. NOTE f. Edit. 18'-'G, p. ]0, Edit. hSll, [). IS. Tins note is not accurate, as has been shown above, so far as it speaks of the conditions of the arrangement in 806 as nearly the same as those of 81 7. 32 TREATY OF VERDUN. [Cuap. L TREATY OF VERDUN. Edit. 1826. p. 21. Edit. 1841. p. 14. The treaty of Verdun, in 843, — not that of Mersen, in 847j — is, in reality, the epoch of a final separation between the French and German members of the empire. Its mil- lenary was celebrated by some of the latter nation, in 1843. The partition, which the treaty of Verdun confirmed, had been made by commissioners specially appointed in the preceding year. " Le nombre total des commissaires fut porte a trois cents ; ils ce distribuerent toute la surface de I'empire, qu'ils s'engagerent a parcourir avant le mois d'aout de I'annee suivante : cet immense travail etoit en effet alors necessaire pour se procurer les connoissances qu'on obtient aujourd'hui en un instant, par I'inspection d'une carte geographique : malheureusement on ecrivoit a cette epoque aussi pen qu'on lisoit. Le rapport des com- missaires ne fut point mis par ecrit, ou point depose dans les archives. S'il nous avoit ete conserve, ce seroit le plus curieux de tons les monumens sur I'etat de I'Europe au moyen age." (Sismondi, Hist, des Fran9. iii. 7^.) For this he quotes Nithard, a contemporary historian. As this division of the Carlovingian empire was per- manent, it ought to have been mentioned in the text that the kingdom of France, which fell to Charles the Bald, had for its eastern boundary the Meuse, the Saone, and the Rhone ; which, nevertheless, can only be understood of the Upper Meuse, since Brabant was certainly not com- prised in it. Lothaire, the elder brother, besides Italy, had a kingdom called Lonain, from his name (Lotha- ringia), extending from the mouth of the Rhine to Pro- vence, bounded by that river on one frontier, by France on the other. Louis took all beyond the Rhine, and was usually styled, The Germanic. Note 21.] DECLINE OF CARLOVINGIANS. 33 21. DECLINE OF CARLOVINGIANS. Edit. 1826, p. 23. Edit. 1841, p. 15. The second period of Carlovingian history, or that which elapsed from the reign of Charles the Bald to the accession of Hugh Capet, must be reckoned the transitional state, through scenes of barbarous anarchy, from the artificial 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 f>f preserving the frame of European policy from disin- tegration, and of elaborating the moral and constitutional ])rinciples upon which it afterwards rested. This period exhibits, upon the whole, a failure of the grand endeavour made by Cliarlemagne for the rege- neration of his empire. This proceeded very much from the common chances of hereditary succession, especially when not counterbalanced by established powers inde- ])endent 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 weakness, the nobility strove to revive the spirit of the seventh century. They entered into a coalition with the bishops, though Carles the Bald had often sheltered himself behind the crosier ; and they compelled his son, Louis the Stammerer, not only to con- firm their own privileges and those of the Church, but to style himself " King, by the grace of God and election of the people;" which, indeed, according to the established constitution, was no more than truth, since the absolute right to succession was only in the family. The inability of the crown to protect its subjects from their invaders, rendered this assumption of aristocratic independence ab- sohitely necessary. In this age of agony, Sismondi well D 34 DECLINE OF CARLOVINGIANS. [CuAr. I. says, the nation began to revive ; new social bodies sprung from the carcase of the great empire. France, so de- fenceless under the Bald and the Fat Charleses, bristled with castles before 930. She renewed the fable of Deu- calion ; she sowed stones, and armed men rose out of them. The lords surrounded themselves with vassals ; and had not the Norman incursions ceased before, they would have met with a much more determined resistance than in the preceding century. (Hist, des Fran9ais, iii. 218. 378. iv. 9.) Notwithstanding the weakness of the throne, the promise of the Franks to Pepin, that they would never elect a king out of any other family, though broken on two or three occasions in the tenth century, seems to have re- tained its hold upon the nation, so that an hereditary right in his house was felt as a constitutional sentiment, until experience and necessity overcame it. The first in- terruption to this course was at the election of Eudes, on the death of Charles the Fat, in 888. Charles the Simple, son of Carloman, a prince whose short and obscure reign over France had ended in 884, and being himself the only surviving branch, in a legitimate line, of the imperial house (for the frequent deaths of those princes without male issue is a remarkable and important circumstance), was an infant of three years old. The kingdom was de- vastated by the Normans, whom it was just beginning to resist with somewhat more energy than for the last half century ; and Eudes, a man of considerable vigour, pos- sessed several counties in the best parts of France. The nation had no alternative but to choose him for their king. Yet, when Charles attained the age of fifteen, a numerous party supported his claim to the throne, which he would probably have substantiated, if the disparity of abilities between the competitors had been less manifest. Eudes, at his death, is said to have recommended Charles to his own party ; and it is certain that he succeeded without opposition. His own weak character, however, exposing him to fresh rebellion, Robert, brother of Eudes, and his son-in-law, Rodolph, became kings of France, that is, we Note 21.] DECLINE OF CARLOVINGIANS. 35 find their names in the royal hst, and a part of the kingdom acknowledged their sovereignty. But the south stood off altogether, and Charles preserved the allegiance of the north-eastern provinces. Robert, in fact, who was killed one year after his partisans had proclaimed him, seems to have no great pretensions, de facto any more than de Jure, to be reckoned at all ; nor does any his- torian give the appellation of Robert II. to the son of Hugh Capet. The father of Hugh Capet, Hugh the Great, son of Robert and nephew of Eudes, being Count of Paris and Orleans, who had bestowed the crown on his brother-in-law, Rodolph of Burgundy, instead of wearing it himself, paid such deference to the prejudices of at least the majority of the nation in favour of the house of Charlemagne, that he procured the election of Louis IV., son of Charles the Simple, a boy of thirteen years, and then an exile in England ; from which circumstance he has borne the name of Outremer. And though he did not reign without some opposition from his powerful vassal, he died in possession of the crown, and transmitted it to be \A'orn by his son, Lothaire, and his grandson, Louis V. It was on the death of this last young man, that Hugh Capet thought it time to set aside the rights of Charles, the late king's uncle, and call himself king, with no more national consent than the prelates and barons who depended on him might afford ; principally, it seems, through the adherence of Adalberon, archbishop of Rheims, a city in which the kings were already wont to receive the crown. Such is the national importance which a merely local privilege may sometimes bestow. Even the voice of the capital, regular or tumultuous, which in so many revolutions has determined the obedience of a nation, may be considered as little more than a local superiority. A writer distinguished among living historians, M. Thierry, has found a key to all the revolutions of two centuries in the antipathy 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 » 2 36 DECLINE OF CARLOVINGIANS. [Chap. I. descendants, Eudes, Robert, and Hugh the Great. And this theory of races, to which M. Thierry is always partial, and recurs on many occasions, has seemed to the judicious and impartial Guizot the most satisfactory of all that have been devised to elucidate the Carlovingian period, though he does not embrace it to its full extent. (Hist, de la Ci- vilisation en France, Le9on 24.) Sismondi (vol. iii. p. 58.) had said in 1821, what he had probably written as early as M. Thierry: " La guerre entre Charles et ses deux freres fut celle des peuples romains des Gaules qui rejetaient le joug germanique ; la querelle insignifiante des rois fut soutenue avec ardeur, parce qu'elle s'unissait a la que- Telle des peuples; et tons ces prejuges hostiles qui s'at- tachent toujours aux differences des langues et des mceurs, donnerent de la Constance et de I'acharnement aux com- battans." This relates, indeed, to an earlier period, but still to the same conflict of races, which M. Thierry has taken as the basis of the resistance made by the Neustrian provinces to the later Carlovingians. Thierry finds a similar contest in the wars of Louis the Debonair. In this he is conipelled to suppose that the Neustrian Franks fell in with the Gauls, among whom they lived. But it may well be doubted whether the distinction of Frank descent, and consequently of national supremacy, was obli- terated in the first part of the ninth century. The name of Franci was always applied to the whole people ; the kings are always regies Francorum ; so that we might in some respects rather say that the Gauls or Romans had been merged in the dominant races than the reverse. Wealth, also, and especially that springing" from hereditary benefices, was chiefly in the hands of the barbarians ; they alone, as is generally believed, so long as the distinction of personal law subsisted, were summoned to county or national assemblies ; they perhaps retained, in the reign of Louis the Debonair, though we cannot speak decisively as to this, their original language. It has been observed that the famous oath in the Romance language, pro- nounced by Louis of Germany at the treaty of Strasburg, in 842, and addressed to the army of his brother, Charles Note 21.] DECLINE OF CARLOVINGIANS. 37 the Bald, bears more traces of the southern or Proven gal, than of the northern dialect ; and it is probable that the inhabitants of the southern provinces, whatever might have been the origin of their ancestors, spoke no other. This would not be conclusive as to the Neustrian Franks. But this is a disputable question. A remarkable presumption of the superiority still re- tained by the Franks as a nation, even in the south of France, may be drawn from the Placitum, at Carcassonne, in 918. (Vaissette, Hist, de Languedoc, vol. ii. Append. Yi.56.; Meyer, Institutions Judiciaires, vol.i.p.419.) Inthis we find named six Roman, four Gothic, and eight Salian judges. It is certain that these judges could not have been taken relatively to the population of the three races in that ])art of France. Does it not seem most probable, that the Franks were still reckoned the predominant peo])le ? Probably, however, the personal distinction, founded on dirterence of laws, expired earlier in Neustria ; not that the Franks fell into the Roman jurisprudence, but that the original natives adopted the feudal customs. This specious theorv of hostile races, in order to ac- count for the downfall of the Carlovingian, or Austrasian, dynasty, has not been unanimously received, especially in the extent to \^hich Thierry has urged it. M. Gaudet, the French editor of Richer (a contemporary historian, whose narrative of the whole period, from the accession of Eudes to the death of Hugh Caj)et, is published by Pertz in the iVIonumenta Germaniee Historica, vol. iii., and contains a great quantity of new and interesting facts, especially from a. d. 966 to 987)} aj)peals to this writer in contradiction of the hypo- thesis of M. Thierry. The a])i)eal, however, is not solely u])on his authority, since the leading circumstances were sulliciently known ; and, to say the truth, I think that more has been made of Richer's testimony in this particu- lar view than it will bear. Richer belonged to a monas- tery at Rheims, and his father had been a man of some rank in the confidence of Louis IV. and Lothaire, He had, therefore, been nursed in respect for the house of V 3 38 DECLINE OF CARLOVINGIANS. [Chap. I. Charlemagne, though, with deference to his editor, 1 do not perceive that he displays any repugnance to the change of dynasty. Though the differences of origin and language, so far as they existed, might be by no means unimportant in the great revolution near the close of the tenth century, they cannot be relied upon as sufficiently explaining its cause. The partisans of either family were not exclusively of one blood. The house of Capet itself was not of Roman, but probably of Saxon descent. The difference of races had been much effaced after Charles the Bald, but it is to be remembered that the great beneficiaries, the most wealthy and potent families in Neustria or France, were of barbarian origin. One people, so far as we can dis- tinguish them, was by far the more numerous ; the other, of more influence in political affairs. The personal dis- tinction of law, however, which had been the test of descent, appears not to have been preserved in the north of France much after the ninth century ; and the Roman, as has been said above, had yielded to the barbaric ele- ment — to the feudal customs. The Romance language, on the other hand, had obtained a complete ascendancy ; and that not only in Neustria, or the parts west of the Somme, but throughout Picardy, Champagne, and part of Flanders. But if we were to suppose that these regions were still in some way more Teutonic in sentiment than Neustria, we certainly could not say the same of those beyond the Loire. Aquitaine and Languedoc, almost wholly Roman, to use the ancient word, or French, as they might now be called, among whose vine-covered hills the barbarians of the Lower Rhine had hardly formed a permanent settle- ment, or having done so, had early cast off the slough of their rude manners, had been the scenes of a long resist- ance to the Merovingian dynasty. The tyranny of Chil- deric and Clotaire, the barbarism of the Frank invaders, had created an indelible hatred of their yoke. But they submitted without reluctance to the more civilised govern- ment of Charlemagne, and displayed a spontaneous loyalty towards his line. Never did they recognise, at least with- Note 21.] DECLINE OF CARLOVINGIANS. 39 out force, the Neustrian usurpers of the tenth century, or date their legal instruments, in truth the chief sign of subjection that they gave, by any other year than that of the Carlovingian sovereign. If Charles the Simple reaped little but this nominal allegiance from his southern subjects, he had the satisfaction to reflect that they owned no one else. But a rapacious aristocracy had pressed so hard on the weakness of Charles the Bald and his descendants that, the kingdom being wholly parcelled in great fiefs, they had not the resources left to reward self-interested services as before, nor to resist a vassal far superior to themselves. Laon was much behind Paris in wealth and populousness, and yet even the two capitals were inadequate represent- atives of the proportionate strength of the king and the count. Power, as simply taken, was wholly on one side ; yet on the other w^as prejudice, or rather an abstract sense of hereditary right ; and this sometimes became a source of power. But the long greatness of one family, its mani- fest influence over the succession to the throne, the con- spicuous men whom it produced in Eudes and Hugh the Great, had silently prepared the way for a revolution, neither unnatural nor premature, nor in any way dan- gerous to the public interests. It is certainly probable 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 dynasty, they ascribe to these degraded classes both the will and the |)ower to eflect it. The proud V 4 40 DECLINE OF CARLOVINGIANS. [Chap. I. nationality which spurned a foreign line of princes, could not be felt by an impoverished and afflicted commonalty. Yet when M. Thierry alludes to the rumour that the family of Capet was sprung from the commons (some said, as we read in Dante, from a butcher), he adds : — " Cette opinion, qui se conserva durant plusieurs siecles, ne fut pas nuisible a sa cause," — as if there had been as effective a tiers-etat in 987) as 800 years afterwards. If, however, we are meant only to seek this sentiment among the nobles of France, I fear that self-interest, personal attachments, and a predominant desire of maintaining their independence against the crown, were motives far more in operation than the wish to hear the king speak French instead of German. It seems, upon the whole, that M. Thierry's hypothesis, countenanced as it is by M. Guizot, will not afford a com- plete explanation of the history of France between Charles the Fat and Hugh Capet. The truth is, that the accidents of personal character have more to do with the revolutions of nations, than either philosophical historians, or demo- cratic politicians like to admit. If Eudes and Hugh the Great had been born in the royal line, they would have preserved far better the royal power. If Charles the Simple had not raised too high a favourite of mean ex- traction, he might have retained the nobles of Lorraine and Champagne in their fidelity. If Adalberon, arch- bishop of Rheims, had been loyal to the house of Charle- magne, that of Capet would not, at least so soon, have ascended the throne. If Louis V. had lived some years, and left a son to inherit the lineal right, the more pre- carious claim of his uncle would not have undergone a disadvantageous competition with that of a vigorous usurper. M. Guadet has well shown, in his notice on Richer, that the opposition of Adalberon to Charles of Lorraine was wholly on personal grounds. No hint is given of any national hostility ; but whatever of na- tional approbation was given to the new family, and doubtless in Neustrian France it was very prevalent, must rather be ascribed to their own reputation than to any Note 21.] DECLINE OF CARLOVINGIANS. 41 peculiar antipathy towards their competitor. Hugh Capet, it is recorded, never wore the crown, though styling him- self king, and took care to procure, in an assembly held in Paris, the election of his son Robert to succeed him ; an example which was followed for several reigns, A late Belgian writer, M. Gerard, in a spirited little work, La Barbaric Franque et la Civilisation Romaine (Bruxelles, 1845), admitting the theory of the conflict of races, indignantly repels the partisans of what has been called the Roman element. Thierry, Michelet, and even Guizot, are classed by him as advocates of a corrupted race of degenerate provincials, who called themselves Romans, endeavouring to set up their pretended civilisa- tion against the free and generous spirit of the barbarians from whom Europe has derived her proudest inheritance. Avoiding the aristocratic arrogance of Boulainvilliers, and laughing justly at the pretensions of modern French nobles, if any such there are, which I disbelieve, who vaunt their descent as an order from the race of Franks, he bestows his admiration on the old Austrasian portion of the monarchy, to which, as a Belgian, he belongs. But in his persuasion that the two races were in distinct opposi- tion to each other, and have continued so ever since, he hardly falls short of Michelet. I will just add to this long note a caution to the reader, that it relates only to the second period of the Carlovingian kings, that from 888 to 987* In the reigns of Louis the Debonair and Charles the Bald, I do not deny that the desire for the separation of the empire was felt on both sides. But this separation was consummated at Verdun in 843, except that the kingdom of Lorraine being not long afterwards dismembered, a small portion of the modern Belgium fell into that of France. 4'i FEUDAL NOBLES. SARACENS. [Chap. I. FEUDAL NOBLES. Edit. 1826, p. 23. Edit. 1841, p. 15. At the close of the ninth century, there were twenty-nine hereditary fiefs of the crown. At the accession of Hugh Capet, in 987) they had increased to fifty-five. (Guizot, Civihs. en France, Le9on 24.) Thierry maintains that those between the Loire and the Pyrenees were strictly independent, and bound by no feudal tie. (Lettres sur FHist. de France, Lett, ix.) 23. SARACENS. Edit, 1826, p. 24. Edit. 1841, p. 16. These Saracens established themselves more inland than Frassineto. Creeping" up the line of the Alps, they took possession of St. Maurice, in the Valais, from which the feeble kings of Transjurane Burgundy could not dislodge them. 24. NORMAN INCURSIONS. Edit. 1826, p. 28. Edit. 1841, p. 19. The cowardice of the French, during the Norman in- cursions of the ninth century, has struck both ancient and modern writers, considering that the invaders were by no means numerous, and not better armed than the inhabitants. No one, says Paschasius Radbert, could have anticipated that a kingdom so powerful, extensive, and populous, would have been ravaged by a handful of barbarians. Note 24.] NORMAN INCURSIONS. 43 (Mem. de I'Acad. des Iiiscr. vol. xv. p. 639.) Two hundred Normans entered Paris, in 865, to take away some wine, and retired unmolested ; their usual armies seem to have heen only of a few hundreds. (Sismondi, vol. iii. p. lyO*) Miche- let even fancies that the French could not have fought so obstinately at Fontenay as historians relate, on account of the effeminacy which ecclesiastical influence had produced. This is rather an extravagant supposition. But panic is very contagious, and sometimes falls on nations by no means deficient in general courage. It is to be remem- bered that the cities, even Paris, were not fortified (Mem. de I'Acad. vol. xvii. p. 289.) ; that the government of Charles the Bald was imbecile ; that no efforts were made to array and discipline the people ; that the feudal polity was as yet incomplete and unorganised. Can it be an excessive re- proach, that the citizens fled from their dwellings, or re- deemed them by money from a terrible foe against whom their mere superiority of numbers furnished no security ? Every instance of barbarous devastation aggravated the general timidity. Aquitaine was in such a state that the pope removed the archbishop of Bordeaux to Bourges, because his province was entirely wasted by the pagans. (Sismondi, vol.iii. p. 210.) Never was France in so deplor- able a condition as under Charles the Bald ; the laity seem to have deserted the national assemblies ; almost all his capitularies are ecclesiastical, he was the mere servant of his bishops. The clergy were now at their zenith ; and it lias been supposed that noble families becoming extinct (for few names of laymen appear at this time in history), the Church, which always gained and never lost, took the ascendant in national councils. And this contributed to render the nation less warlike, by depriving it of its na- tural leaders. It might be added, according to Sismondi's very probable suggestion, that the faith in relics, encouraged by the Church, lowered the spirit of the people. (Vol. iii. passim. Michelet, vol. ii. p. 120, et post). And it is a quality of superstition not to be undeceived by experience. Some have attributed the weakness of France at this period to the bloody battle of Fontenay, in 841. But if we 44 NORMAN INCURSIONS. [Chap. I. should suppose the loss of the kingdom on that day to have been forty thousand, which is a high reckoning, this would not explain the want of resistance to the Normans for half a century. The beneficial effect of the cession of Normandy has hardly been put by me in sufficiently strong terms. No measure was so conducive to the revival of France from her abasement in the ninth century. The Normans had been distinguished by a peculiar ferocity towards priests ; yet when their conversion to Christianity was made the condition of their possessing Normandy, they were ready enough to comply, and in another generation became among the most devout of the French nation. It may be ob- served, that pagan superstitions, though they often take great hold on the imagination, seldom influence the con- science or sense of duty ; they are not definite or moral enough for such an effect, which belongs to positive reli- gions, even when false. And as their efficacy over the imagination itself is generally a good deal dependent on local associations, it is likely to be weakened by a change of abode. But a more certain explanation of the new zeal for Christianity which sprung up among the Normans, may be found in the important 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 manner can we so well account for the rapid extinction of that of Scan- dinavia in that province of France. Sismondi discovers two causes for the determination of the Normans to settle peaceably in the territory assigned to them : the devastation which they had made along the coast, rendering' it difficult to procure subsistence; and the growing spirit of resistance in the French nobility, who were fortifying their castles and training their vassals on every side. But we need not travel far for an inducement to occupy the fine lands on the Seine and Eure. Piracy and plunder had become their resource, because thev could no longer find subsistence at home ; they now found it Note 25.] FIRST KINGS OF THE THIRD RACE. 45 abundantly in a more genial climate. They would pro- bably have accepted the same terms fifty years before. 25. FIRST KINGS OF THE THIRD RACE. Edit. 1826, p. 31. Edit. 1841, p. 21. This has been put in the strongest language by Sis- mondi, Thierry, and other writers. Guizot, however, thinks that this has been urged too far, and that the first four Capetians were not quite so insignificant in their kingdom as has been asserted. " When we look closely at the documents and events of their age, we see that they have played a more important part, and exerted more in- fluence, than is ascribed to them. Read their history ; you will see them interfere incessantly, whether by arms or by negotiation, in the affairs of the county of Burgundy, of tlie county of Anjou, of the county of Maine, of the duchy of Guienne ; in a woid, in the affairs of all their neigh- bouis, and even of very distant fiefs. No other suzerain certainly, except the dukes of Normandy, who conquered a kingdom, took a part at that time so frequently, and at so great a distance from the centre of his domains. Turn over the letters of contemporaries, for example those of Fulbert and of Yves, bishops of Chartres, or those of William III., duke of Guienne, and many others, you will see that the king of France was not without im])ortance, and that the most powerful suzerains treated liim with great deference." He ap])eals especially to the extant act of the consecration of Philip I., in 1059, where a duke of Guienne is mentioned among the great feudataries, and asks whether any other suzerain took possession of his rank with so much solemnity. (Civilisation en France, Le^on 42.) " As there was always a country called France and a French people, so there was always a king of the French ; very far indeed from ruling the country called his kingdom, and without influence on the greater part of 46 FIRST KINGS OF THE THIRD RACE. [Chap. I. the population, but yet no foreigner, and with his name inscribed at the head of the deeds of all the local sove- reigns, as one who was their superior, and to whom they owed several duties." (Le9on 43.) It may be observed also that the Church recognised no other sovereign ; not that all the bishops held of him, for many depended on the great fiefs, but the ceremony of consecration gave him a sort of religious character, to which no one else aspired. And Suger, the politic minister of Louis VI. and Louis VII., made use of the bishops to maintain the royal au- thority in distant provinces. (Le9on 42.) This never- theless rather proves, that the germ of future power was in the kingly office, than that Hugh, Robert, Henry, and Philip exercised it. The most remarkable instance of authority during their reigns was the war of Robert in Burgundy, which ended in his bestowing that great fief on his brother. I have observed that the duke of Guienne subscribes a charter of Henry I. in 1051. (Rec. des His- toriens, vol. xi. p. 589.) Probably there are other instances. Henry uses a more pompous and sovereign phraseology in his diplomas than his father ; the young lion was trying his roar. I concur on the whole in thinking with M. Guizot, that in shunning the languag^e of uninformed historians, who spoke of all kings of France as equally supreme, it had become usual to depreciate the power of the first Capetians rather too much. He had, however, to appearance, done the same a very few years before the delivery of these lectures, in 1829 ; for in his Collection of Memoirs (vol. i. p. 6, published in 1825) he speaks speaks rather differently of the first four reigns : — C'est I'epoque oii le royaume de France et la nation fran^aise n'ont existe, a vrai dire, que de nom. He observes, also, that the chroniclers of the royal domain are peculiarly meagre, as compared with those of Normandy. Notes 26, 27.] LOUIS VI. ALCIGENSIAN WAR. 4<7 26. LOUIS VL Edit. 1826, p. 32. Edit. 1841, p. 21. SiSMONDi has given a relative scale of the great fiefs, according to the number of modern departments which they contained. At the accession of Louis VI. the crown possessed about five departments ; the count of Flanders held four ; the count of Vermandois, two ; the count of Boulo^'ne, one ; the count of Champagne, six ; the duke of Burgundy, three ; of Normandy, five ; of Britany, five ; the count of Anjou, three. Thirty-three departments, south of the Loire, he considers as hardly connected with the crown ; and twenty-one were at that time dependent on the empire. (Vol. v. p. 70 It is to be understood of course, that these divisions are not rigorously exact ; and also that, in every instance, owners of fiefs with civil and criminal jurisdiction had the full possession of their own territories, subject more or less to their immediate lord, whether it were the king or another. The real do- main of Louis VL was almost confined to the five towns — Paris, Orleans, Estampes, Melun, and Compiegne (Id. p. 86.) ; and to estates, probably large, in their neigh- bourhood. 27. ALBIGENSIAN WAR. Edit. 1826, p. 38. Edit. 1841, p. 26. M. Fauriel edited for the Collection des Documciis Inedits, in 1837, a metrical history of the Albigensian crusade, by a contemporary, calling himself William of Tudela, which seems to be an imaginary name. It con- tains 9578 verses. The author begins as a vehement enemy of the heretics and favourer of the crusade ; but 48 KNIGHTS TEMPLARS. [Chap. 1. becomes, before his poem is half completed, equally ad- verse to Montfort, Folquet, and the other chiefs of the persecution, though never adopting heretical opinions. Sismondi says — bitterly, but not untruly — of Simon de Montfort : — '* Habile guerrier, austere dans ses moeurs, fanatique dans sa religion, inflexible, cruel et perfide, 11 re- unissait toutes les qualites qui pouvaient plaire a un moine." (Vol. vi. p. 2970 ^^^^ Albigensian sectaries had insulted the clergy, and hissed St. Bernard; which, of course, ex- asperated that irritable body, and aggravated their revenge. (Michelet iii. o06.) But the atrocities of that war have hardly been equalled, and Sismondi was not the man to conceal them. 28. KNIGHTS TEMPLARS. Edit. 1826, p. 61. Edit. 1841, p. 41. It may excite surprise that in any sketch, however slight, of the reign -of Philip IV., no mention should be made of an event, than which none in his life is more celebrated — the fate of the Knights Templars. But the truth is, that when I first attended to the subject, almost forty years since, I could not satisfy my mind on the dis- puted problem, as to the guilt imputed to that order, and suppressed a note which I had written, as too inconclusive to afford any satisfactory decision. Much has been pub- lished since on the Continent, and the question has as- sumed a different aspect ; though, perhaps, I am not yet more prepared to give an absolutely determinate judgment than at first. The general current of popular writers in the eighteenth century was in favour of the innocence of the Templars ; in England it would have been almost paradoxical to doubt of it. The rapacious and unprincipled character of Philip, the submission of Clement V. to his will, the apparent incredibility of the charges from their monstrousness, the Note 28.] KNIGHTS TEMPLARS. 49 jnst prejudice ag'ainst confessions obtained by torture and retracted afterwards — the other prejudice, not always so just, but in the case of those not convicted on fair evidence deserving- a better name, in favour of assertions of inno- cence made on the scaffold and at the stake — created, as they still preserve, a strong willingness to disbelieve the accu- sations which came so suspiciously before us. It was also often alleged that contemporary writers had not giv^en credit to these accusations, and that in countries where the in- quiry had been less iniquitously conducted no proof of them was brought to light. Of these two grounds for acquittal, the former is of little value in a question of legal evidence, and the latter is not quite so fully established as we could desire. Raynouard, who might think himself pledged to the vindication of the Knights Templars by the tragedy he had written on their fate, or at least would naturally have thus imbibed an attachment to their cause, took up their de- fence in a History of the Procedure. This has been reckoned the best work on that side, and was supposed to confirm their innocence. The question appears to have assumed something of a party chaiacter in France, as most history does ; the honour of the crown, and still more of the church, had advocates ; but there was a much greater number, especially among men of letters, who did not like a decision the worse for being derogatory to the credit of both. Sismondi, it may easily be supposed, scarcely treats it as a question with two sides ; but even Michaud, the firm supporter of church and crowii, in his History of the Crusades, takes the favourable view. M. Michelet, however, not under any bias towards either of these, and manifestly so desirous to acquit the Templars that he labours by every ingenious device to elude or ex- ])lain away the evidence, is so overcome by the force and number of testimor *es, that he ends by admitting so much as leaves little worth contending for by their patrons. He is the editor of the "Proces des Templiers" in the "Documens Inedits, 181-1," and had previously given abundant evi- £ 50 KNIGHTS TEMPLARS. [Chap. I. dence of his acquaintance with the subject, in his " Histoire de France," voh iv. p. 243. 34-5. (Bruxelles edition). But the great change that has been made in this pro- cess, as carried forward before the tribunal of pubhc opi- nion from age to age, is owing to the production of fresh evidence. The deeply learned orientalist, M. von Ham- mer, now Count Hammer Purgstal, in the sixth volume of a work published at Vienna in 1818, with the title " Mines de I'Orient exploitees," * inserted an essay in Latin, " Mysterium Baphometis Revelatum, seu Fratres Militise Templi qua Gnostici et quidem Ophiani, Apostasige, Idoloduliie, et Impuritatis convicti per ipsa eorum Monu- menta." This is designed to establish the identity of the idolatry ascribed to the Templars with that of the ancient Gnostic sects, and especially with those denominated Ophites, or worshippers of the Serpent ; and to prove also that the extreme impurity, which forms one of the revolting and hardly credible charges adduced by Pbilip IV., is similar in all its details to the practice of the Gnostics. This attack is not conducted with all the coolness which bespeaks impartiality ; but the evidence is startling enough to make refutation apparently difficult. The first part of the proof, which consists in identifying certain Gnostic idols, or, as some suppose anmlets, though it comes much to the same, with the description of what are called Ba- ])hometic, in the proceedings against the Tem])lars, pub- lished by Dupuy, and since in the "Documens Inedits," is of itself sufficient to raise a considerable presumption. We find the word metis continually on these images, of which Von Hammer is able to describe twenty-four. Baphomet is a secret word ascribed to the Templars. But the more important evidence is that furnished by the comparison of sculptures extant on some Gnostic and Ophitic bowls, with those in churches built by the Templars. Of these there are many in Germany, and some in France. Von * I give this French title, but there the memoirs are either in that language is also a German title-page, as most of or in Latin. XoTE 28] KNIGHTS TEMPLARS. 51 riaimiier has examined several in the Austrian dominions, and collected accounts of others. It is a striking- fact, that in some we find, concealed from the common ob- server, images and symbols extremely obscene ; and as these, which cannot here be more particularly adverted to, betray the depravity of the architects, and cannot be ex- plained away, we may not so much hesitate as at first to believe that impiety of a stiange kind was mingled up with this turpitude. The presumptions of course, from the absolute identity of many eniblems in churches with the Gnostic superstitions in their worst form, grow stronger and stronger by multiplication of instances ; and though coincidence might be credible in one, it becomes infinitely improbable in so many. One may here be men- tioned, though amon.g the slightest resemblances. The Gnostic emblems exhibit a peculiar form of cross j ; and this is common in the churches built by the Templars. But the freemasons, or that society of architects to whom we owe so many s])lendid churches, do not escape M. von Hammer's ill opinion better than the Templars. Though he conceives them to be of earlier origin, they had drunk at the same foul spring of impious and impure Gnosticism. It is rather amusing to compare the sympathy of our own modern ecclesiologists with those who raised the mediseval cathedrals, their im})licit confidence in the piety which en- nobled the conceptions of these architects, with the fol- lowing ])assage, in a memoir by M. von Hammer, *' Sur deux Coffrets Gnostiques du moyen Age, du cabinet de M. le due de Blacas. Paris, 183!^." " Les architectes du moyen age inities dans tous les mysteres du Gnosticisme le plus deprave, se plaisaient a en multiplier les symboles au dehors 6t au dedans de leurs eglises ; symboles dont le veritable sens n'etait en- tendu que des adeptes, et devaient rester voiles aux yeux des profanes. Des figures scandaleuses, semblables a celles des eglises de Montmorillon et de Bordeaux, se retrouvent sur les eglises des Templiers a Eger en Boheme, a Schon- grabern en Autriche, a Fornuovi ])res de Parme, et en d'autres lieux ; nommement le chien (canis aut gattus j: 2 52 KNIGHTS TEMPLARS. [Chap. I niger) sur les bas-reliefs cle I'eglise gnostique d'Erfurt." (p. 9.) The Stadinglii, heretics of the thirteenth century, are charged, in a bull of Gregory IX., with exactly the same profaneness, even including the black cat, as the Templars of the next century. This is said by Von Ham- mer to be confirmed by sculptures, (p. 7«) The statutes of the Knights Templars were compiled in 1128, and, as it is said, by St. Bernard. They have been published in 1 840 from manuscripts at Dijon, Rome, and Paris, by M. Maillard de Chambure, Conservateur des Archives de Bourgogne. The title runs : — "Regies et Statuts secrets des Tem- pliers." But as the French seems not so ancient as the above date, they may perhaps be a translation. It will be easily supposed that they contain nothing but what is pious and austere. The knights, however, in their intercourse with the East, fell rajjidly into discredit for loose morals and many vices ; so that Von Hammer rather invidiously be- gins his attack upon them by arguing the a priori pro- bability of what he is about to allege. Some have ac- cordingly endeavoured to steer a middle course ; and, discrediting the charges brought generally against the order, have admitted that both the vice and the irreligion were truly attributed to a great number. But this is not at all the question ; and such a pretended compromise is notJiing less than an acquittal. The whole accusations which destroyed the order of the Temple relate to its secret rites, and to the mode of initiation. If these were not stained by the most infamous turpitude, the unhappy knights perislied innocently, and the guilt of their deaths lies at the door of Philip the Fair. The novel e\'idence furnished by sculpture against the Templars has not been universally received. It was early refuted, or attempted to be refuted, by Raynouard and other French writers. " II est reconnu aujourd'hui, meme en Allemagne," says M. Chambure, editor of the Regies et Statuts secrets des Templiers, *' que le pretendu culte baphometique n'est qu'une chimere de ce savant, fondce sur un erreur de numismatique et d'architectonographie." NoTKS 29, 30.] JOHN I. ROBERT OF ARTOIS. 53 (p. 82.) As I am not competent to form a decisive opinion, I nuist leave this for the more deeply learned. The proofs of M. von Hammer are at least very striking, and it is not easy to see how they liave been overcome. Bnt it is also necessary to read the answer of Raynouard in the "Journal des Savans" for 1819, who has been partially successful in repelling some of his opponent's arguments, though it appeared to me that he had left much untouched. It seems that the architectural evidence is the most posi- tive, and can only he resisted by disproving its existence, or its connexion with the Freemasons and Templars. 29. JOHN I. Edit. 1826, p. G3. Edit. 1841, p. 42. Ancient writers, Sismondi tells us (ix. 344^.), do not call this infant any thing but the child who was to be king ; the maxim of later times, " Le roi ne meurt pas," was unknown. I suspect, nevertheless, that the strict hereditary succession was better recognised before this time than Sismondi here admits ; compare what he says afterwards of a period very little later, vol. xi. G. 30. ROBERT OF ARTOIS. Edit. 1826, p. 65. Edit. 1841, p. 44. Sismondi (x. 44.) does not seem to be convinced that Robert of Artois was guilty of forgery ; but perhaps he is led away by his animosity against kings, especially those of the house of Valois. M. Michelet informs us (v. 30.) that the deeds ])roduced by the demoiselle Divion, on which Robert founded his claims, are in the Tresor des Chartes, and palpable forgeries. E 3 54 REGENCY. FLANDERS. [Chap. I. 31. REGENCY. Edit. 1826, p. 68. Edit. 1841, p. 45. SiSMONDi does not nieiition the claim of Edward to the regency after the death of Cliarles IV., though he sup- poses his pretensions to have been taken into consideration by the lords and doctors of law, \\'hom he asserts, follow- ing the continuator of William de Nangis, to have con- sulted together, before Philip of Valois took the title of regent. (Vol. x. p. 10.) Michelet, more studious of effect than minute in details, makes no allusion to the subject. 32. FLANDERS. Edit. 1826, p. 73. Edit. 1841, p. 50. Michelet dwells on the advantage which Edward gained by the commerce of England with Flanders : " Le secret des batailles de Crecy, de Poitiers, est aux comptoirs des marchands de Londres, de Bordeaux, et de Bourges." (vol. V. p. 6.) France had no internal trade ; the roads were dangerous on account of robbers, and heavy tolls were to be paid ; fiscal officers had replaced the feudal lords. The value of money was perpetually varying far more than in England. (Id. p. 12.) Certainly the com- parative prosperity of the latter country supplied Edw^ard with the sinews of war. France could not afford to main- tain a well appointed infantry. " Une tactique nouvelle," M. Michelet afterwards very well observes (p. 81.), " sortait de I'etat nouveau de la societe ; ce n'etait pas un ceuvre de genie, ni de reflexion. Edouard III. n'etait ni un Gustave Adolphe ni un Frederic II. II avait employe les fantassins faute de cavaliers. . . . La bataille de Crecy reveilla un secret dont personne ne se Notes 33, 31.] ARCHEllS THE PESTILENCE 55 tloutait, rimpuissaiice inilitaire de ce moiide feodal, qui s'etait cru le seul monde militaire." Courtray might have given some suspicion of this ; hut Courtray was much less of a '* hataille rang-ee" than Crecy. 33. ARCHEllS. Edit. 1826, p. 75. Edit. 1841, p. 51. It is by an odd oversight that Sismondi has said (x. 295.), " Les Anglais etaient accoutumes a se servir sans cesse de rarbaVde.'" The cross-how was looked upon as a wea})on unworthy of a hraA'e man ; a prejudice which afterwards prevailed with respect to fire-arms. A romancer praises the emperor Conrad, " Par un effort de lance et d'ecu, Conquerant tons ses ennemis, Y a arbalestreis ni fu mis ; " quoted by Boucher in his translation of " II Consolato del Mare," p. 518. Even the long-bow might incur this cen- sure ; or any weapon in which the combatants fought eminus. But if we look at the plate-armour of the fifteenth century, it may seem that a knight had not much to boast of the danger to which he exposed himself, espe- cially when encountering infantry. 34. THE PESTILENCE. Edit. 1826, p. 78. Edit. 1841, p. 53, Another pestilence, only less destructive than the former, wasted both France and England in 1361. Sismondi bitterly remarks (x. 312.), that between four and five millions who died of the former plague in France merely diminished the number of the oppressed, producing no E 4 5(i ISABEL OF BAVARIA. [CiiAr. I. perceptible effect. But this is exag-gerated. The plague caused a truce of several months. The war was in fact carried on with less vigour for some years. It is, however, by no means unlikely, that the number of deaths has been overrated. Nothing can be more loose than the statistical evidence of mediseval writers. Thus 30,000 are said to have died at Narbonne. (Michelet, v. 94.) ButhadNar- bonne so many to lose ? At least, would not the depopu- lation have been out of all proportion to other cities? 35. FROM HIS MINORITY, Edit. 1826, p. 95. Edit. 1841, p. 65. This is incorrectly expressed, as the history shows. The minority of Charles ceased soon after his accession ; it should have run, " from his assumption of power into his own hands." 36. ISABEL OF BAVARIA. Edit. 1826, p 95. Edit. 1841, p. 65. SiSMONDi inclines to speak more favourably of this queen than most have done : " Dans les temps posterieurs on s'est plu a faire un monstre de Isabeau de Baviere." 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, sometimes even from hunger, (xii. 218. 225.) Was this no imputation on his wife? See too Michelet, vi. 42. XoTE 37.] LOUIS OF ORLEANS. ^7 LOUIS OF ORLEANS. Edit. 1826, p. 96. Edit. 18-Jl, p 66. MiCHELET represents this young prince as regretted and beloved ; but his languaiie is fall of those strange contrasts and inconsistencies, which, for tlie sake of effect, tliis most brilliant writer sometimes employs. " 11 avait, dans ses emportemens de jeunesse, terriblement vexe le peuple ; il fut mandit du penple, pleure du peuple. Vivant, il couta bien de larmes ; mais combien plus, mort ! Si vous eus- siez demande a la France si ce jeune horn me etait bien digne de tant d'amonr, elle eut repondu, Je I'aimais. Ce n'est pas seulement pour le bien qu'on aime ; qui aime, ainie tout, les defauts aussi. Celui-ci jdut comme il etait, mele de bien et de mal." (Hist, de France, vi. 6.) What is the meaning of this love for one who, he has just told us, was cursed by the people ? And if Paris was the rej)resen- tative of France, how did the people show their affection for the Duke of Orleans, when they were openly and vehe- mently the partisans of his murderer ? On the first return of the Duke of Burgundy to Paris after the assassination, the citizens shouted Noel, the usual cry on the entrance of the king, to the great displeasure of the queen and other princes. "Et pour vrai, connne dit est dessus, il estoit tres fort ayme du commun peuple de Paris, et avoient grand esperance qu'iceluy Due eust tres-grand affection an Roy- aume, et ci la chose ])ublicque, et avoient souvenance des grans tailles (pii avoient este mises sus depuis la mort du Due Philij)pe de Rourgogne ])ere d'iceluy, jusques ii riieure ))resente, lesquelles ils entendoient que feust par le moyen dudit Due d' Orleans. Et pource estoit grandement encouru en I'indignation d'iceluy peuple, et leur semMoit que Dieu de sa grace les avoit tres-grandement pour rocom- mandez, quand il avoit souffert qu'ils fussent hors de sa subjection et governement, et qu'ils en estoient delivrez." 58 PHILIP LE EON. JOAN OF ARC. [CiiAr. I. Moiistrelet, oi. Compare this with what M. Michelet has written. 38. PHILIP LE BON. Edit. IS'26, p. 104. Edit. 1841, p. 70. It should have been said, "not all his depravity;" for Philip II. was a very bad man, and a very bad sovereign, and would have passed for such in another age. 39. JOAN OF ARC. Edit. 182G, p. 110. Edit. 1841, p. 75. I have followed the common practice of translating Jeanne d'Arc, by Joan of Arc. It has been taken for granted, that Arc is the name of her birthplace. Southey says : " She thought of Arc, and of the dingled brook Whose waves, oft leaping in their craggy course, INIadc dance tlie low-hung willow's dripping twigs ; And, where it spread into a glassy lake, Of that old oak, which on the smooth expanse Imaged its hoary mossy-mantled boughs." And in another place, " her mind's eye Beheld Domremy and the plains of Arc." ■ It does not appear, however, that any such place as Arc exists in that neighbourhood, though there is a town of that name at a considerable distance. Joan was, as is known, a native of the village of Domremy in Lorraine. The French writers all call her Jeanne d'Arc, with the exception of one, M. Michelet (vii. 02.), who spells her name Dare, which in a person of her birth seems more XoTE 40.] AGNES SOIIEL. 59 probable, thoug-h I cannot account for the unifoi ni usage of an apostrophe and ca])ital letter. I cainiot pass Southey's Joan of Arc without rendering- homage to that early monument of his genius, which perhaps he rarely surpassed. It is a noble epic, never languid, and seldom diliiise ; full of generous enthusiasm, of magnificent inventions, and with a well constructed fable, or rather selection of history. Michelet, who thinks the story of the Maid unfit for poetry, had apparently never read Southey ; but the author of an article in the "Biographic Universelle" says very well : — *'Le poeme de M. Southey en Anglais, intitule Joan of Arc, est la ten- tative la plus heureuse que les Muses aient faites jusqu' ici pour celebrer I'heroiue d'Orleans. C'est encore une des singularites de son histoire, de voir le genie de la poesie Anglaise inspirer de beaux vers en son honneur, tandis que celui de la poesie Francaise a ete jusqu'ici re- belle a ceux qui out voulu la chanter, et n'a favorise que celui qui a outrage sa memoire." If, however, the muse of France has done little justice to her memory, it has been reserved for another Maid of Orleans, as she has well been styled, in a different art, to fix the image of the first in our minds, and to combine, in forms only less enduring than those of poetry, the purity and inspiration Avith the unswerving heroism of the immortal Joan. 40. AGNES SOREL. Edit. 182G, p. 112, Edit. 1841, p. 76. SisMONDi (vol. xiii. p. 20 L), where he first mentions Agnes Sorel, says that many of the circumstances told of her influence over Charles VII. are fabulous. " Ce- })endant il faut bien qu' Agnes ait merite, en quelque ma- niere, la reconnoissance qui s'est attachee li son nom." This is a loose and inconclusive way of reasoning in his- tory ; many popular traditions have no basis at all. And Go LOUIS XI. — THE LEAGUE. [Ciiai>. I. ill p. 345. he slights the story told in Brantome to the honour of Agnes, as well he might, since it is ridiculously- untrue that she threatened Charles to go to the court of Henry VI., knowing herself to be born to be the mistress of a great king. Sismondi afterwards (p. 497* and 604.), quotes, as I have done, Chartier and Jacques du Clercq; but without adverting to the incongruity of their dates with the current story. M. Michelet does not seem to attach much credit to it, though he adopts the earlier date for the king's attachment to Agnes. 41. CHARACTER OF LOUIS XL Edit. 1826, p. 120. Edit. 1841, p. 81. Sismondi (vol.xiv. p. 312.) and Michelet (vol. ix. p. 3 170 agree in thinking Louis XI. no worse than other kings of his age ; in fact the former seems to make no distinction between one king and another. Louis was just and even attentive towards the lower people, and spared the blood of his soldiers. But he had imbibed a notion that treachery and cruelty could not be carried too far against his ene- mies, and especially against his rebellious subjects. Louis composed for his son's use, or caused to be composed, a political treatise entitled " Le Rosier des Guerres," which has never been published. It is written in a spirit of public morality very unlike his practice. (Sismondi, vol. xiv. p. ()1().) Thus two royal Anti-Machiavels have satirised themselves. 42. LEAGUE OF THE PUBLIC WEAL. Edit. 1826, p. 120. Edit. 1841, p. 82. Sismondi has a just observation on the League of the Public Weal. " Le iiom seul du Bien Public qui fat donne XoTi;s 43. 44 ] AMBITION OF CHARLES. Gl a cette ligue, etait iiii lioiniiiag'e au progres des luniieres ; c'etait la profession d'un priiicipe qui n'avait point encore ete proclame ; c'est que le bien public doit etre le but du g-ouvernement ; mais les princes qui s'associaient pour I'obtenir, etaient encore bien pen en etat de connaitre sa nature." (xiv. Ifjl.) 43. DUKE OF GUIENNE. Edit. 1826, p. 123. Edit. 1S41, p. 83. SiSMONDi and Michelet do not ])elieve that the Duke of Guienne was poisoned by his brother ; he had been ill for several months. 44. AMBITION OF CHARLES. Edit. 1826, p. 12G. Edit. 1 841, p. 86. CiL\RLES had a vague notion of history, and confounded the province or duchy of Burgundy, which had always appertained to the French crown, xA'ith Franche-Comte and other countries wliich liad belonwd to the kingdom of Burgundy. Hence he talked at Dijon, in 147£), to the Estates of the former, about the kingdom of Burgundy, " (jue ceux de France out longtems usurj)e, et d'icelui fait duclie ; que tons les sujets doivent bien avoir a regret, et dit qu'il avait en soi des choses qu'il n'appartenait de savoir a nul og ; but it had been pecu- liarly applied to the lands assigned by the Romans to the soldiery after a conquest, which some suppose, I know not on what evidence, to have been by lot. (Du Cange, voc. Sors.) And hence this term was most probably adopted by the barbarians, or rather those who rendered their laws into Latin. If the Teutonic word loos was sometimes used for a ma)isus or manor, as M. Guizot informs us, it seems most probable that this was a literal translation of so7's, bearing with it the secondary sense. F 4 7^ SALIC LAWS. CCuAr. 11. SALIC LAWS. Edit. 1826, p. 145. Edit. 1841, p. 98. The Salic law exists in two texts ; one purely Latin, of which there are fifteen manuscripts ; the other ming-led with German words, of which there are three. Most have considered the latter to he the original ; the ma- nuscripts containing" it are entitled Le.v Salica anti- guissima or vetustior ; the others generally run, Le.v Sallca recentior^ or emendafa. This seems to create a presumption. But M. Wraida, who published a history of the Salic law in 1808, inclines to think the pure Latin older than the other. M. Guizot adopts the same opinion (Civilisation en France, Le^on 9.)' M. Wraida refers its orio^inal enactment to the period when the Franks w^ere still on the left bank of the Rhine ; that is, long before the reign of Clovis. And this seems an evident inference from what is said in the prologue to the law, written long afterwards. But of course it cannot apply to those passages which allude to the Romans as subjects, or to Christianity. M. Guizot is of opinion that it bears marks of an age when the Franks had long been mingled with the Roman population. This is consistent with its having been revised by the sons of Clovis, Childebert and Clo- taire, as is asserted in the prologue. One manuscript has the words : — " Hoc decretum est apud regem et principes ejus, et apud cunctum populum Christianum qui infra regnum Merwingorum consistunt." Neither Wraida nor Guizot think it older in its present text than the seventh century ; and as Dagobert L appears in the prologue as one reviser, we may suppose him to be the king men- tioned in the words just quoted. It is to be observed, however, that two later writers, M. Pertz, in Monumenta Germanise Historica, and M. Pardessus, in Mem. de I'Acad. des Inscriptions, vol. xv. (Nouvelle Serie), have entered anew on this discussion, and do not agree with M. Wraida, nor wholly with each other. M. Lehuerou is clearly of opinion that, in all its substance, the Salic Note o4.] SALIC LAWS. 7^ code is to be referred to Germany for its birthplace, and to the period of heathenism for its date. (Institutions Meroving'iennes, p. 83.) The Ripuarian Franks Guizot, with some apparent reason, takes for the progenitors of the Austrasians; the Salian, of the Neustrians. The former were settled on the left bank of the Rhine, as Lceti, or defenders of the frontier, mider the emj)ire. These tribes were united under one government through the assassination of Si- gebert at Cologne, in the last years of Clovis, who as- sumed his crown. Such a theory might tend to explain the subsequent rivalry of these great portions of the Frank monarchy, though it is hardly required for that purpose. The Ripuarian code of law is referred by Guizot to the reign of Dagobert ; Eccard, however, had con- ceived it to have been compiled under Thierry, the eldest son of Clovis. (Rec. des Hist. vol. iv.) It may still have been revised by Dagobert. " We find in this," says M. Guizot, " more of the Roman law, more of the royal and ecclesiastical power ; its provisions are more precise, more extensive, less barbarous ; it indicates a further step in the transition from the German to the Roman form of social life." (Civil, in France, Le9on 10.) The Burgundian law, though earlier than either of these in their recensions, displays a far more advanced state of manners. The Burgundian and Roman are placed on the same footing ; more is borrowed from the civil law ; the royal power is more developed. This code re- mained in force after Charlemagne ; but Hincmar says, that few continued to live by it. In the Visigothic laws enacted in Spain, to the exclusion of the Roman, in 642. all the barbarous elements have disappeared ; it is the work of the clergy, half ecclesiastical, half imperial. It has been remarked by acute writers, Guizot and Troja, that the Salic law does not answer the purpose of a code, being silent on some of the most important regu- lations of civil society. The former adds, that we often read of matters decided *' secundum legem Salicam,'* con- cerning which we can find nothing in that law. He pre- sumes, therefore, that it is only a part of their jurisprudence. 7'i SALIC LANDS. [Chap. II. Troja (Storia d'ltalia nel medio evo, v. 8.), quoting' Buat for the same opinion, thinks it probable that the Franks made use of the Roman law where their own was de- fective. It may perhaps be not less probable than either hypothesis, that the judges gradually introduced principles of decision which, as in our common law, acquired the force of legislative enactment. The rules of the Salic code principally relate to the punishment or compensation of crimes ; and the same will be found in our earliest Anglo-Saxon laws. The object of such written laws, with a free and barbarous people, was not to record their usages, or to lay down rules which natural equity would suggest, as the occasion might arise, but to prevent the arbitrary infliction of penalties. Chapter Ixii. " On Successions," may have been inserted for the sake of the novel provision about Salic lands, which could not have formed a part of old Teutonic customs. 55. SALIC LANDS. Edit, ISSG, p. 146. Edit. 1841, p. 98. The o])inion expressed in the text, that the terra SaUctti which females could not inherit, was the land acquired by the barbarians on their first conquest, is confirmed by Sismondi (i. 196.), and by Guizot (Essais sur I'Hist. de France, p. 94.). M. Guerard, however, the learned editor of the chartulary of Chartres (Documens Inedits, 1840, p. 22.), is persuaded that Salic land was that of the domain, from sala, the hall or principal residence, as opposed to the portion of the estate which was occupied by tenants, beneficiary or servile. This, he says, he has proved in another work, which I have not seen. Till I have done so, much doubt remains to me as to this expla- nation. Montesquieu had already started the same theory, which Guizot, justly as it seems, calls " incomplete et hypothetique." Besides other objections, it seems not to NoTB 56.2 BISHOPS. 75 explain the manifest identity between the terra Salica and the licereditas aviatica of the Ripuarian law, or the alodia parcntiim of Marculfus. I ought, however, to mention a remark of Grimm, that, throughout the Frank domination, other countries made use of the word terra Saliea. In them it could not mean lands of partition or assignment, but mere alodia. And he thinks that it may, in most cases, be interpreted of the terra dominicalis. (Deutsche Rechts Alterthumer, p. 493.) M. Fauriel maintains (Hist.de la Gaule Meridion. ii. 18.), that the Salic lands were beneficiary, as opposed to the alodial. But the " htereditas aviatica" is repugnant to this. Marculfus distinctly opposes alodia to comparata^ and limits the exclusion of daughters to the former. Ac- cording to one of the most recent inquirers, " terra Saliea" was all the land held by a Salian Frank (Lehuerou, i. 86.). But the same objections apply to this solution ; in addition to which it may be said that the whole Salic law relates to that people, while " terra Saliea" is plainly descriptive of a peculiar character of lands. 56. BISHOPS. Edit. 1826, p. 147. Edit. 1841, p. 99. The barbarians, by degrees, got hold of bishoprics. In a list of thirty-four bishops or priests, present at a council in 506, says M. Fauriel (iii. 459.), the names are all Roman or Greek. This was at Agde, in the dominion of the Visigoths. In 511, a council at Orleans exhibits one German name. But at the fifth council of Paris, in 577j where forty-five bishops attended, the Romans are in- deed much the more numerous, but mingled with barbaric names, six of whom M. Thierry mentions. (Recits des Temps Merovingiens, vol. ii. p. 183.) In 585, at Macon, out of sixty- three names but six are German. Fauriel asserts that, in a diploma of Clovis II. dated (}i)r,y there are but five Roman names out of forty-five witnesses ; and 7f) STATE OF FORMER INHABITANTS. [Chap. II. Iience he infers that, by this time, the Franks had seized on the Church as their spoil, filling it with barbarian prelates. But on reference to Rec. des Hist. (iv. 636. '), I find but four of the witnesses to this instrument qualified as episco- pus : and of these two have Roman names. The majority- may have been laymen for any evidence which the dip^ loma presents. In one, however, of Clovis III., dated 093 (Id. p. 672.), I find, among twelve bishops, only three names which appear Roman. We cannot always judge by the modernisation of a proper name. St. Leger sounds well enough ; but in his life we find a " Beatus Leodega- rius ex progenie celsa Francorum ac nobilissima exortus." Greek names are exceedingly common among the bishops ; but these cannot mislead an attentive reader. This inroad of Franks into the Church probably accele- rated the utter prostration of intellectual power, at least in its literary manifestation, which throws so dark a shade over the seventh century. And it still more unquestionably tended to the secular, the irregular, the warlike character of the higher clergy in France and Germany for many following centuries. Some of these bishops, according to Gregory of Tours, were profligate barbarians. .57. STATE OF FORMER INHABITANTS. Edit. 1826, p. 148. Edit. 1 841, p. 100. The position of the former inhabitants, after the conquest of Gaul by the Burgundians, the Visigoths, and the Franks, both relatively to the new monarchies and to the barbarian settlers themselves, is a question of high im- portance. It has, of course, engaged the philosophical school of the present day, and has led to much diversity of hypotheses. The extreme poles are occupied by M. Raynouard in his " Hist, du Droit Municipal," and by a somewhat earlier writer. Sir Francis Palgrave, who, fol- lowing the steps of Dubos, bring the two nations, con- querors and conquered, almost to an equality, as the KoTE 57.] STATE OF FORMER INHABITANTS. 77 common subjects of a sovereign who had assumed the pre- rogatives of a Roman emperor ; and, on the opposite side, by Signor Troja*, and by M. Thierry, who finds no closer analogy for their relative conditions than that of the Greeks and Turks in the days that have lately gone by. "It is no more a proof," he contends, " that the Roman natives were treated as free, because a few might gain the favour of a despotic court, than that the Christian and Jew stand on an even footing with the Mussulman, because an Eastern sultan may find his advantage in employing some of either religion." (Lettres sur I'Hist. de France, Lett, vii.) This is is not quite consistent with his language in a later work : *' Sous le regne de la premiere race se montrent deux conditions de liberte : la liberte par excellence, qui est la condition du Franc ; et la liberte du second ordre, le droit de cite romaine." (Recits des Temps Merovingiens, i. 242 Bruxelles, 1840.) It is, however, as it seems to me, and as the French writers have generally held, impossible to maintain either of these theories. The Roman *' conviva regis" (by which Me may perhaps better understand one who had been ac- tually admitted to the royal table, thus bearing an analogy to the Frank Antrustion, than what I have said in the text, one of a rank not unworthy of such an honour t) was estimated in his weregild at half the price of the barbarian Antrustion, the highest known class at the Merovingian court, and above the common alodial proprietor. But be- tween two such landholders the same proportion subsisted ; the Frank was valued twice as high as the Roman ; but the Roman proprietor was set more than as much above the tributary, or semi-servile husbandman, whose nation is not distinguished by the letter of the Salic code. We have, therefore, in this notorious distinction, subordination witli- * La Storia di Francia sotto i re though much by Frank kings. Tlie della prima razza puo dirsi non con- conquerors may have been nationally sistere che negli esenipj delle oppres- insolent ; but this is not recorded, sioni de' Franchi so]>ra i cittadini Ko- f I do not give this as very highly mani, e della generosa protezione de' probable : conviva re(/is seems an odd vescovi o llomani o Franchi. (Storia phrase; but it mai/ have included all d'Ttali,-), vol. i. i)art v. p. 421.) This tlie seratorial families, who e\iilenlly is not borne out by history. We find made a noble class among th^^ Romans, no oppression of Romans by Franks, 78 STATE OF FORMER INHABITANTS. [Cuap. II. out servitude ; exactly what tlie circumstances of the con- quest, and the general relation of the barbarians to the empire, would lead us to anticipate, and what our historical records unequivocally confirm. The oppression of the people, which Thierry infers from the history of Gregory of Tours, under Gontran and Chilperic, was on the part of violent and arbitrary princes, not of the Frank nation ; nor did the latter by any means escape it. It is true that the civil wars of the early Merovingian kings were most disastrous, especially in Aquitaine, and of course the native inhabitants suifered most ; yet this is very distinguishable from a permanent condition of servitude. " The Romans," Sir F. Palgrave has said, " retained their own laws. Their municipal administration was not abrogated or subverted ; and wherever a Roman popula- tion subsisted, the barbarian king was entitled to command them with the prerogatives that had belonged to the Roman emperors." (Rise and Progress of the English Common- wealth, vol. i. p. 362.) In this I demur only to the word entitled^ which seems designed to imply something more than the right of the sword. But this is the right, and I can discern no real evidence of any other, which Clovis, and Clotaire, and Chilperic exercised ; very like, of course, to the prerogatives of the Roman emperors, since one despotism must be akin to another ; and a provincial of Gaul, whose ancestors had for centuries obeyed an un- limited monarch, could not claim any better privileges by becoming the subject of a conqueror. It is universally agreed, at least 1 apprehend so, that the Roman, as a mere possessor, and independently of any personal dignity with which he might have been honoured, did not attend the national assemblies in the Field of March ; nor had he any business at the j)hicitum or malhis of the Count among the Rachimburgii, or freeholders, who there de- termined causes, according to their own jurisprudence, and transacted other business relating to their own nation. The kings were always styled merely *' Reges Francorum :" * * One instance of an apparent ex- rope, p. 240.), has met my eyes. Dago- ception, for leading me to which I am bert I. calls himself in an instrument, indebted to Mr. Spence (I^aws of Eu- found in Vita Beati Martini, apud Note 57.] STATE OF FORMER INHABITANTS. 7D whenever, in Gregory of Tours' history, the popular will is expressed, it is by the Franks ; no other nation sepa- rately, nor the Franks as blended with any other nation, appear in his pages to have acted for themselves. It must be almost unnecessary to remind the reader that the word Roman is uniformly applied, especially in the barbarian laws, to the Gaulish subjects of the empire, whose allegiance had been transferred, more or less re- luctantly, but always through conquest, to the three bar- barian monarchies, two of which were ultimately subverted by the Franks. But it is only in two senses that this can be reckoned a proper appellation ; one, inasmuch as pri- vileges of Roman citizenship had been extended to the whole of Gaul by the emperors ; and another, as appli- cable, with more correctness, to that population of Roman or Italian descent, which had gradually settled in the cities. This, during so many ages, must have become not incon- siderable ; the long continuance of the same legions in the province, the w^ealth and luxury of many cities, the com- parative security, up to the close of the fourth century, from military revolution and civil war, the facility, per- haps, of purchasing lands, would naturally create a re- spectable class, to whose highly civilised manners the records of the fourth and fifth centuries especially bear w^itness.* The Latin language became universal in cities ; and if in country villages some remains of the Celtic might linger, they have left very few traces behind. Sismondi has indeed gone much too far, when he infers, especially from this disuse of the old language, an almost complete extinction of the Gaulish population. And for this he accounts by their reduction to servitude, by the Duchesne, i. 653., " Rex Francorum florulenta pratis, aut distincta cultiiris, et pnpuli lionutni princcf/s." The an- aut consita pomis, aut aiucciiata Uicis, theiitieity of tliis charter deserves to be aut irrigata fontibus, aut interfusa flu- considered. But, sup))osing it to be minibus, aut circunidata messibus erat, genuine, it does not go a great way ut vere jiossessores et domini terra> illius tonards tlie imperial style. non tarn soli illius ])ortionem quam * Salvian, in the middle of the fifth paradisi imaginem possedisse viilean- century, descants on the beautits of tur." ( De Gubernat. Dei, lib. vii. p. Aquitaine: " Adeo illic omnis admo- 299 edit. 1611.) dum regio aut intertexta vineis, aut 80 STATE OF FORMER INHABITANTS. [Chap. II. exactions of their new lords, and the facihty of purchasing- slaves in the markets of the empire (vol. i. p. 84.). But such a train of events is wholly without evidence ; without at least any evidence that has been alleged. We do not know that the peasantry were ever proprietors of the soil which they cultivated before the Roman invasion, but may much rather believe the contrary from the lana^uage of Csesar — Plebs pceiie servorum hahettir loco. We do not know that they fell into a worse condition afterwards. We do not know that they were oppressed in a greater degree than other subjects of Rome, not surely so as to extinguish the population. We may believe that slaves were occa- sionally purchased, ac ording to the usage of the empire, Avithout denying the existence of colonic indigenous and personally free, of whom the Theodosian code is so full. Nor is it evident why even serfs may not have been of native, as easily as of foreign origin. All this is presumed by Sismondi, because the Latin language, and not the Celtic, is the basis of French. And a similar hypothesis must, by parity of reasoning, be applied to the condition of Spain during the centuries of Roman dominion. But it is assumed the more readily, through the tendency of this eminent writer to place in the worst light what seldom can be placed in a very favourable one, the social institu- tions and usages of mankind. The change of language is no doubt remarkable. But we may be deceived by laying too much stress on this single circumstance, in tracing the history of nations. It is very difficult to lay down a rule as to the tendency of one language to gain ground upon another. Some appear in their naturt to be aggressive ; such is the Latin, and probably the Arabic. But why is it that so much of the Walachian language, it is said, comes from Latin, in consequence of a merely military occupation ; while a more lasting possession of Britain (where flourishing colonies were filled with Roman inhabitants, and the natives borrowed in some degree the arts and manners of their conquerors, connected with them also by religion in the latter part of their dominion) did not hinder the preservation of the original Celtic idiom, NoTK 57.] STATE OF rOU?.IER INHABITANTS. 81 with scarcely any infusion of Latin ? Why is it that in- numerable Arabic words, and even some Arabic sounds of letters, are found in the Castilian language, the language of a people foreign and hostile, while scarcely a trace is left of the Visigothic tongue, that of their fathers ; so that for one word, it is said, of Teutonic origin remaining" in Spain, there are ten in Italy, and a hundred in France ? * If we were to take Sismondi literally, the barbarians must have found nothing in Gaul but a Roman or Romanized aristocracy, surrounded by slaves ; and these as much im- ported, or the offspring of importation, as the Negroes in America. This is rather a humiliating origin, an iUad quod dicer e nolo^ for the French nation. For it is the French nation that is descended from the inhabitants of Gaul at the epoch of the barbarian conquest. We have, however, a strong- ethnographical argument against this imaginary depo})ulation, in the national charac- teristics of the French. A brilliant and ing-enious writer has well called our attention to the Celtic element, that under all the modifications which difference of race, poli- tical constitutions, and the stealthy progress of commerce and learning have brought in, still distinguishes the French- man : " La base originaire, celle qui a tout re9u, tout accepte, c'est cette jeune molle et mobile race de Gaels, brillante, sensuelle et legere, prompte a apprendre, prompte Ji dedaigner, avide des choses nouvelles. Voih\ I'element primitif, I'element perfectible." (Michelet, Hist, de France, i. loG.) This is very good, and we cannot but see the resemblance to the Celtic character. Michelet goes after- wards too far, and endeavours to show that a great part of the French language is Celtic ; failing wholly in his quotations from early writers, wliich either relate to the period immediately subsequent to the Roman conquest, or to the lincjua Romana rustica which ultimately became French. It is nevertheless true that a certain number of Celtic words have been retained in French, as has been shown even of Visigothic by M. Fauriel. He has found *■ * Edinl). Review, vol. xxxi. p. 109. G 82 STATE OF FORMER INHABITANTS. [Chap. II. 3000 words in Proven9al, which are not Latin. All of these which are not Gothic, Iberian, Greek, or Arabic, may be reckoned Celtic ; and though the former languages can have left few traces in northern French, we may pre- sume the last to have been retained in a scarcely less de- gree. (Ampere, Hist. Litt. de la France, vol. i. p. 34.) Many French monosyllables are Celtic. But if we try to read any French of the twelfth century, we shall feel no doubt, that a vast majority of words are derived from the Latin ; and it may be added that the terms of rural occu- pation, and generally of animals, are full as much Latin as those more familiar in towns. The cities of Gaul were occupied probably by a more mingled population than the villages. Li the cities dwelt the more ancient and wealthy families, called senators, and distinct, as far as we can see our way in a very perplexed inquiry, from the ordinary curiah's, or decurions. It is true that these also are sometimes called senators ; but the word has not, as Guizot observes (Collect, des Me- moires, i. 247. )> i" Gregory and other writers, a precise sense. Families were often elevated to the senatorial rank by the emperors, which gave their members the title of clarisshni ; and these were probably meant by Gregory, in the expression e primis GcdUarum senatoribus, which naturally must be rendered — ' of the first Gaulish nobility.' The word is several times employed by him in what seems the same sense. It is, however, also used, as Guizot and Raynouard think, for the highest class of curiales who had served municipal offices. But more will be said of this in another note. Sismondi has remarked (i. 198.), that in the lives of the saints, during the Merovingian period, most part of whom were of Roman descent, it is generally mentioned that they were of good family. The Church afforded the means of preserving their respectability; and thus (without much weight in the monarchy, and often with diminished patrimony, but in return less oppressed by taxation than under the imperial fisc, deriving also a reflected impor- tance from the bishop when he was a Roman, and shel- Note 57.] STATE OF FORMER INHABITANTS. 83 tered by his protection) this class of the native inhabitants held not only a free but an honourable position. Yet this was still secondary. In a free commonwealth the exclusion from political rights, by a broad line of legal separation, brings with it an indelible sense of inferiority. But this inferiority is not allowed by all our inquirers. " The nations who were unequal before the law, soon became equal before the sovereign, if not in theory yet in practice ; and the children of the companions of Clovis were subjected, ^ith few and not very material exceptions, to the same positive dominion as the descendants of the pro-consul or the senator. It is not difficult to form plau- sible conjectures concerning the causes of this equalisation ; nor are the means by which it was effected entirely con- cealed. Considered in relation to the Romans, the Franks, for we will continue to instance them, constituted a distinct state ; but, compared to the Romans, a very small one ; and the individuals composing it, dispersed over Gaul, were almost lost among the tributaries. Experience has shown, that whenever a lesser or poorer dominion is conjoined in the person of the same sovereign, to a greater or more opulent one, the minuter mass is always in the end subju- gated by the larger." (Rise and Progress of the English Commonwealth, vol. i. p. 363.) Such is, in a few words, the view taken of the Mero- vingian history by a very learned writer, Sir F. Palgrave. And, doubtless, the concluding observation is just, in the terms wherein he expresses it. But there seems a fallacy in applyinof the word *' poorer" to the Franks, or any bar- barian conquerors of Gaul. They were poorer before their conquest ; they were richer afterwards. At the battle of Hastings, the balance of wealth was, I doubt not, on the side of Harold more than of William ; but twenty years afterwards, Domesday Book tells us a very different story. If an allotment was made among the Franks, or if they served themselves to land without any allotment, on either hypothesis they became the great pro})rietors of northern France ; and on whom els(; did the beneficiary donations, the rewards of faithful Antrustions, generally devolve ? It o 2 84 STATE OF FORMER INHABITANTS. [Chap. II. is perfectly consistent with the national superiority of the Franks in the sixth and seventh centuries, that in the last age of the Carlovingian line, when the distinction of laws had been abolished or disused, the more numerous people should, in many provinces, have (not, as Sir F. P. calls it, subjugated but) absorbed the other. We find this to have been the case at the close of the Anglo-Norman period at home. One essential difference is generally supposed to have separated the Frank from the Roman. The latter was subject to personal and territorial taxation. Such had been his condition under the empire ; and w^hether the burthen might or not be equal in degree (probably it was not such), it is not at all reasonable to believe without proof, that he was ever exempted from it. It is, however, true that some French writers have assumed all territorial impositions on free landholders to have ceased after the conquest. (Recits des Temps Meroving. i. 268.*) This controversy I do not absolutely undertake to determine ; but the proof evidently lies on those who assert the Roman to have been more favoured than he was under the empire ; when all were liable to the land-tax, though only those destitute of freehold possessions paid the ca- pitation or census. We cannot infer such a distinction on the ground of tenure from a passage of Gregory (lib. ix. c. SO.) : — " Childebertus vero rex descriptores in Pictavos, invitante Marovio episcopo, jussit abire ; id est, Floren- tianum majorem domus regise, et Romulfum palatii sui comitem, ut scilicet populus censum quem tempore patris functi fuerant, facta ratione innovaturae, reddere deberet. Multi enim ex his defuncti fuerant, et ob hoc viduis or- phanisque ac debilibus tributi pondus inciderat. Quod hi discutientes per ordinem, relaxantes pauperes ac infirmos, illos quos justiticc conditio tributaries dabat, censu publico subdiderunt." These collectors were repelled by the ci- * M. Lehuerou imputes the same be subject to taxation in the earlier theory to Montesquieu. But his Merovingian period ; though afterwards, words (Espr. des Loix, xxx. l.S. ) do as he supposes, this obligation was re- not assert that the Romans might not placed by that of military service. Note 57.] STATE OF FORMER INHABITANTS. 85 tizens of Tours, who proved that Clotaire I. had released their city from any pubhc tribute, out of respect for St. Martin. And the reigning king acquiesced in tliis im- munity. It may also be inferred from another passage (Lib. X. c. 7-)' ^^^^ ^^^" ecclesiastical property was not exempt from taxation, unless by special privilege, which indeed seems to be implied in the many charters con- ceding this immunity, and in the forms of Marculfus. * It seems, however, clear that the Frank landholder, the Franciis im/enuus, born to his share, according to old notions, of national sovereignty, gave indeed his voluntary donation annually to the king, but reckoned himself en- tirely free from compulsory tribute. We read of no tax imposed by the assemblies of the Field of March ; and if the kings had possessed the prerogative of levying money at will, the monarchy nmst have become wholly absolute without opposition. The barbarian was distinguished by his abhorrence of tribute. Tyranny might strip one mau of his possessions, banish another from his country, de- stroy the life of a third ; the rest v.ould at the utmost nmrrjuir in silence ; but a general imposition on them as a ])eople was a yoke under v/hich they would not pass without resistance. I shall mention a few instances in a future note. The Roman, on the other hand, complained doubtless of new or unreasonable taxation ; but he could not avoid acknowledging a principle of government to which his forefathers had for so many ages submitted. The house of Clovis stood to him in place of the Ctesars ; • This note was written before I tribute. Of this IM. Lehueroi: makes liad looked at a work i)ublished in no (h)iibt ; nor, perhaps, has any one I84.i, by >M. I^ehuerou, " Ilistoire des doubted it, excejjt Uubos. But, under Institutions IMerovingiennes," in whicii, tlie sons and grandsons of Clovis, en- with much impartiality and erudition, deavours were made, to which I have he draws a line between thj theories of drawn attention in a subsequent note, Dubos and Montesquieu ; and, upon by those despotic princes, eager to as- tlus i)articular subject of taxation, suine the imperial prerogatives over all clearly proves, in my opinion, that the their subject-;, to rob them of their na- land-tax imposed imder the empire, tional immunity ; and a struggle of the continued to be levied on tlie Roman (ieniian aristocracy ensued, whicli an- subjects of Clovis and the next two iiihilated the personal authority of the geneiations. (Vol. i. p. 271,ef post.) sovereign. (Hist, des Inst, Meroving. The Franks, such as were ingeniii, were i. 4'J5, ct pout.) originally exempt from this and all other o 3 86 STATE OF FORMER INHABITANTS. [Chap. IT. this part of the theory of Dubos cannot be disputed. But when that writer extends the same to the Frank, as a con- stitutional position, and not merely referring to acts pro- tested against as illegal, the voice of history refutes him. Dubos has asserted, and is followed by many, that the army of Clovis was composed of but a few thousand Salian Franks. And for this the testimony of Gregory has been adduced, who informs us only that 3000 of the army of Clovis, which a later writer calls 6000, were baptized with him. (Greg. Tur. lib. ii. c. 33,) But Clovis was not the sole chieftain of his tribe. It has been seen that he enlarged his command towards the close of his life, by violent measures with respect to other kings as inde- pendent apparently as himself, and some of whom be- longed to his family. Thus the Ripuarian Franks, who occupied the left bank of the Rhine, came under his sway. And besides this, the argument from the number of soldiers baptized with Clovis assumes that the whole army em- braced Christianity with their king. It is true that Gre- gory seems to imply this. But, even in the seventh cen- tury, the Franks on the Meuse and Scheldt were still chiefly pagan, as the Lives of the Saints are said by Thierry to prove. We have only, it is to be remembered, a de- clamatory and superficial history for this period, derived, as I believe, from the panegyrical life of St. Remy, and bearing traces of legendary incorrectness and exaggeration. We may, however, appeal to other criteria. It cannot be too frequently inculcated on the reader who desires to form a general, but tolerably exact, notion of the state of France under the first line of kings, that he is not hastily to draw inferences from one of the three divisions, Austrasia, Neustria, and Aquitaine, to which, for a part of the period, we must add Burgundy, to the rest. The difference of language, though not always de- cisive, furnishes a presumption of different origin. We may therefore estimate, with some probability, the pro- portion of Franks settled in the monarchy on the left bank of the Rhine, by the extent of country wherein the Teu- tonic language is spoken, unless we have reason to suspect Note 57.] ST.VTE OF FORMER INHABITANTS. 87 that any change in the boundaries of that and the French has since taken place. Tlie Latin was certainly an en- croaching language, and its daughter has in some mea- sure partaken of the same character. Many causes are easy to assign, why either might have gained ground on two dialects, the German and Flemish, contiguous to it on the eastern frontier, while we can hardly perceive one for an opposite result. We find, however, that both have very nearly kept their ancient limits. It has been proved by M. Raoux, in the Memoirs of the Academy of Brussels (vol. iv. p. 411. J, that few towns or villages have changed their language since the ninth century. The French or Walloon followed in that early age the irregular line which, running from Calais and St. Omer to Lisle and Tournay, stretches north of the Meuse as far as Liege, and bending thence to the south-westward, passes through Longwy to Metz. These towns speak French, and spoke it under Charlemagne, if we can say that under Charle- magne French was spoken anywhere ; at least they spoke a dialect of Latin origin. The exceptions are few ; but where they exist, it is from the progress of French rather than the contrary. A writer of the sixteenth century says of St. Omer, that it was " Olim baud dubie mere Flandri- cum, deinde tamen bilingue, nunc autem in totum fere Gallicum." There has also been a slight movement to- ward French in the last fifty years. The most remarkal)le evidence for the duration of the limit is the act of ])artition between Lothaire of Lorrain and Charles the Bald, in 87O, whence it appears that the names of places where French is now spoken were then French. Yet most of these had been built, esj)ecially the abbeys, subsequently to the Frank conquest ; "d'ou on pent cx)nclure, que mcme duns le periode franque, le langage vulgaire du grand nombre des habitans du pays, (pii sont presentement Wallons, n'etait pas teutonique ; car on en verrait des traces dans les actes historiques et googra- phiques de ce temps-la." (p. 131.) Nothing, says M. Mich('l(!t, can be more French than the Walloon country. (Hist, de France, viii. ^87.) He expatiates almost with en- G 4 "88 STATE OF FORMER lNHABrrANTS= [Chap. II. tliusiasm on the praise of this people, who seem to liave retained a large share of his favourite Celtic element. It appears that the result of an investigation into the lan- guages on the Alsatian frontier would be much the same. Here, therefore, we have a very reasonable presumption, that the forefathers of the Flemish Belgians, as well as of the people of Alsace, \^'ere barbarians ; some of the former may be sprung from Saxon colonies planted in Bra- bant by Charlemagne ; but we may derive the majority from Salian and Ripuarian Franks. These were the strength of Austrasia, and among these the great restorer of the empire fixed his capital at Aix-la-Chapelle. In Aquitaine, on the other hand, everything appears Roman, in contradistinction to Frank, except the reigning family. The chief difficulty thei efore concerns ISeustria ; that is, fi'om the Sciieldt to the Loire ; and to this impor- tant kingdom the advocates of the two nations, Roman and Frank, lay claim. M. Thierry has paid much atten- tion to the subject, and come to the conclusion, that in the seventh century the number of Frank landholders, from the Rhine to the Loire, much exceeded that of the Roman. And this excess he takes to have been increased through the seizure of Church lands in the next age, by Charles Martel, who bestOAved them on his German troops enlisted beyond the Rhine. The method which Thierry has pur- sued, in order to ascertain this, is ingenious and pre- sumpti\'ely right. He remarked that the names of places will often indicate whether the inhabitants, or more often the chief proprietor, Mere of Roman or Teutonic origin. Thus Franconville and Romainville, near Paris, are dis- tinguished in charters of the ninth century, as Francorum villa, and Romanoi'um villa. This is an instance where the population seems to have been of different race. But commonly the owner's christian name is followed by a familiar termination. In that same neighbourhood proper names of German origin, with the terminations ville., court, mont, ral, and the like, are very frequent. And this lie finds to be generally the case north of the Loire, compared with the left bank of thfit river. It is of course to be un- Note 57.] STATE OF FORMER INHABITANTS. 89 derstood, that this proportion of superior landholders did not extend to the general population. For that, in all Neustrian France, was evidently composed of those who spoke the rustic Roman tongue ; the corrupt language which, in the tenth or eleventh century, became %A'orthy of the name of French ; and this was the case, as we have just seen, in part of Austrasia, as Champagne and Lorrain. We may therefore conclude that the Franks, even in the reign of Clovis, were rather a numerous people ; in- cluding, of course, the Ripuarian as well as the Salian tribe. They certainly appear in great strength soon after- wards. If we believe Procopius, the army which Theode- bert, king only of Austrasia, led into Italy, in 539, amounted to 100,000. And admitting the probability of great exaggeration, we could not easily reconcile this with a very low estimate of Frank numbers. But, to say the truth, I do not rely much on this statement. It is at all events to be remembered, that the dominions of Theode- bert, on each side of the Rhine, would furnish barbarian soldiers more easily than those of the western kingdoms. Some may conjecture that the army was partly composed of Romans ; yet it is doubtful whether they served among" the Franks at so early a peiiod, though we find them some years afterwards under Chilperic, a Neustrian sove- reign. The armies of Aquitaine, it is said, were almost wholly composed of Romans or Goths ; it could not have been otherwise. The iiistory of Gregory, which terminates in 598, affords numerous instances of Romans in the hiahest offices, not merely of trust but of power. Such were Celsus, Amatus, Munnnolus, and afterwards Protadius in Burgundy, and Desiderius in Aquitaine. But in these two parts of the monarchy Ave might anticipate a greater influence of the native population. In Neustria and Aus- trasia, the Roman count, or mayor of the palace, might have been unfavourably beheld. Yet in the latter king- dom, all Fraidv as it was in its general character, we find, even before the middle of the sixth century, Luj)us, duke of Champagne, a man of considerable weight, and a 90 STATE OF FORMER INHABITANTS. [Cmap. H. Roman by birtli ; and it was the policy afterwards of Brimehaut to employ Romans. But this not only excited the hostility of the Austrasian Franks, but of the Burgun- dians themselves ; nor did any thing more tend to the ruin of that ambitious woman. Despotism, through its most ready instruments, was her aim ; and when she signally failed in the attempt, the star of Germany prevailed. From that time, Austrasia at least, if not Neustria, became a Frank aristocracy. We hear little more of Romans, ecclesiastics excepted, in considerable power. If, indeed, we could agree with Montesquieu and Mably, that a Roman subject might change his law and live by the Salic code at his discretion, his equality with the Franks would have been virtually recognised ; since every one might place himself in the condition of the more favoured nation. And hence Mably accounts for the pre- valence of the Frank jurisprudence in the north of France; since it was more advantageous to adopt it as a personal law. The Roman might become an alodial land-holder, a member of the sovereign legislature in the Field of March. His wereffild would be raised, and with that his relative situation in the connnonwealth ; his lands would be exempt from taxation. But this theory has been latterly rejected. We cannot indeed conceive one less consonant to the prin- ciples of the barbarian kingdoms, or the general language of the laws. Montesquieu was deceived by a passage in an early capitulary, of which the best manuscripts furnish a different reading. Mably was pleased with an hypo- thesis, which rendered the basis of the state more demo- cratical. But the first who propagated this error, and on more plausible grounds than Montesquieu, though he (Esprit des Loix, liv. xxviii. c.4.) seems to claim it as a dis- covery of his own, were Ducange and Muratori. They were misled by an edict of the enqjeror Lothaire I, in 824, which I have also erroneously quoted for the same purpose : " Volumusutcunctus populusRomanus interrogetur quali lege vult vivere, ut tali, quali professi fuerint vivere velle, vivant." But Savigny has proved that this was a peculinr exception of favour granted at that time to the Romans, Note 58.] PERSONAL LAWS. 91 or rather separately to each person ; and tliat not as a privilege of the ancient population, but for the sake of the barbarians who had settled at Rome. Raynouard is one of those who have been deceived by the more obvious meaning of this law, and adopts the notion of Mably on its authority. V/ere it even to bear such an interpretation, we could not draw a general inference from it. In the case of married women, or of the clergy, the liberty of changing the law of birth was really permitted. (See Savigny, i. 134, et post, Engl, transl.) It should, however, be mentioned, that a late very learned writer, Troja, admits the hypothesis of a change of law in France, not as a right in every Roman's power, but as a special privilege sometimes conceded by the king. And we may think this conjecture not unworthy of regard ; since it serves to account for what is rather anomalous, the admission of mere Romans, at an early period, to the great offices of the monarchy, and especially to that of count, which involved the rank of presiding in the Frank mallus. It is said that Romans sometimes assumed Ger- man names, though the contrary never happened ; and this of itself seems to indicate a change, as far as was ])os- sible, of national connexion. But it is of little service to the hypothesis of Montesquieu and Mably. Of the edict of Lothaire Troja thinks like Savigny; but he adopts the reading of the capitulary, as quoted by Montesquieu, "Fran- cum, aut barbarum, aiit hominem qui lege Salica vivit;" where the best manuscripts omit the second aut. PERSONAL LAWS, Edit, 182G, p. 148. Edit. 1841, p. 101. Tins subject has been fully treated in the celebrated work by Savigny, " History of Roman Law in the Middle Ages." The diligence and fidelity of this eminent writer have been acknowledged on all sides ; nor lias ;iny one been so 92 PERSONAL LAWS. [Chap. II. copious ill collecting materials for the history of mediseval jurisprudence, or so perspicuous in arranging them. In a few points, later inquirers have not always concurred with him. But, with the highest respect for Savigny, we may say, that of the two leatiing propositions ; namely, first, the continuance of the Theodosian code, copied into the Breviarium Aniani, as the personal law of the Roman inhabitants, both of France and Italy, for several centuries after the subjugation of those countries by the barbarians ; and secondly, the quotation of the Pandects and other parts of the law of Justinian by some few writers, before the pretended discovery of a manuscript at Amalfi, the former has been perfectly well known, at least ever since the publication of the glossary of Ducange in the seven- teenth century, and that of Muratori's Dissertations on Italian Antiquities in the next ; nor indeed could it pos- sibly have been overlooked by any one who had read the barbarian codes, full as they are of reference to those who followed the laws of Rome ; while the second is also proved, though not so abundantly, by several writers of the last age. Guizot, praising Savigny for his truthful- ness, and for having shown the permanence of Roman jurisprudence in Europe, well asks how it could ever have been doubted. (Civil, en France, Lefon 11.) A late writer indeed has maintained, that the Romans did not preserve their law under the Lombards ; elaborately repelling the proofs to the contrary, alleg'ed by Muratori and Savigny. (See Troja, Discorso della Condizione dei Romani vinti dai Longobardi, subjoined to the fourth volume of his Storia d'ltalia.) He does not admit that the inhabitants were treated by the Lombard conquerors as any thing better than tributaries or coloni. Even the bishops and clergy were judged according to the Lombard law (vol. V. p. 80.). The personal law did not come in till the conquest of Charlemagne, who established it in Italy. And though later, according to this writer, in its origin, the distinctions introduced by it subsisted much longer than they did in France. Instances of persons professing to live by the Lombard law are found very Note 58.] PERSONAL LAWS. 93 late in the middle ages ; the last is at Bergamo, in 1388. But Bergamo was a city in which the Lombard popula- tion had predominated. (Savigny, vol. i. p. 378.) Whatever may have been the case in Lombardy, the existence of personal law in France is beyond question. It is far more difficult to fix a date for its termination. These national distinctions were indelibly preserved in the south of France by a law of Valentinian III., copied into the Breviarium Aniani, which prohibited the intermar- riage of Romans with barbarians. This was abolished so far as to legalise such unions, with the permission of the count, by a law of the Visigoths in Spain, between 653 and GT'S. But such an enactment could not have been obligatory in France. Whether the Franks ever took Roman wives, I cannot say ; we have, as far as I am aware, no instance of it in their royal family. Proofs might, perhaps, be found, with respect to private families, in the Lives of the Saints ; or, if none, presumptions to the contrary. Troja (Storia d'ltalia, p. 1204^.) says, that St. Medard was the offspring of a marriage between a Frank and a Roman mother, befoi-e the conquest by Clovis, and that the father lived in the Vermandois. Savigny observes, that the prohibition could only have existed among the Visigoths ; else a woman could not have changed her law by marriage. This, however, seems rather apj)licable to Italy than to the north of France, where we have no proof of such a regulation. Raynouard, whose constant endeavour is to elevate the Roman popula- tion, assumes that they would have disdained intermarriage with barbarians. (Hist, du Droit Municij)al, i. 288.) But the only instance which he adduces, strangely enough, is that of a Goth with a Frank ; which, we are informed, was reckoned to disparage the former. It is very likely, nevertheless, that a Frank Antrustion would not have held himself highly honoured by an alliance with either a Goth or a Roman. Each nation had its own pride ; the con- queror in arms and dominion, the conquered in polished manners and ancient renown. " At the beginning of the ninth century," says M. 94 PERSONAL LAWS. [Chap. II. Giiizot, "the essential diaracteristic is that laws are per- sonal and not territorial. At the beginning of tlie eleventh, the reverse prevails, except in a very few instances." (Le- ^on 25.) But can we approximate no nearer ? The ter- ritorial element, to use that favourite w^ord, seems to show itself in an expression of the edict of Pistes, 864 : " In iis regionihus quse legem Romanam sequuntur." (Capit. Car. Calvi.) This must be taken to mean the south of France, where the number of persons who followed any other law, may have been inconsiderable, relatively to the rest, so that the name of the district is used collectively for the inhabitants. (Savigny, i. 1C2.) And this became the pays du droit ecrif, bounded, at least in a loose sense, by the Loire, wherein the Roman was the common law down to the French revolution ; the laws of Justinian, in the progress of learning, having naturally taken place of the Theodosian. But in the same capitulary we read : "De illis qui secundum legem Romanam vivunt, nihil aliud nisi quod in iisdem continetur legibus, definimus." And the king (Charles the Bald) emphatically declares, that neither that nor any other capitulary, which he or his pre- decessors had made, is designed for those who obeyed the Roman law. The fact may be open to some limitation ; but we have here an express recognition of the continuance of the separate races. It seems highly probable, that the in- terference of the bishops, still in a great measure of Roman birth, and, even AA'here otherwise, disposed to favour Ro- man policy, contributed to protect the ancient inhabitants from a legislature wherein they were not represented. And this strongly corroborates the probability that the Romans had never partaken of the legislative power in the national assemblies. In the middle of the tenth century, however, according to Sismondi, the distinction of races was lost ; none were Goths, or Romans, or even Franks, but Aquitanians, Bur- Si'undians, Flemings. French had become the language of the nation (iii. 400.). French must here be understood to include Proven9a], and to be used in opposition to Ger- man. In this sense the assertion seems to be nearly true ; Note 58.] PERSONAL LAWS. 95 and it may naturally have been the consequence^ that all difference of jjersonal laws had come to an end. The feu- dal customs, the local usages of counties and fiefs, took as much tlie lead in noi them France as the Roman code still preserved in the south. The pays coidumiers sepa- rated themselves by territorial distinctions from the pays du droit * Still the instance quoted in my original note from Vaissette (where at Carcassonne, so late as 918, we find Roman, Goth, and Frank judges enumerated), is a striking evidence that, even far to the south, the terri- torial principle had not yet wholly subverted those pri- vileges of races, to which the barbarians, and also the Romans, clung as honourably distinctive. It is only by the force of very natural prejudices, acting on both the polished and the uncivilised, that we can ac- count for the long continuance of this inconvenient sepa- ration. If the Franks scorned the complex and wordy jurisprudence of Rome, it was just as intolerable for a Roman to endure the rude usages of a German tribe. The traditional glory of Rome, transferred by the adoption of that name to the provincials, consoled them in their subjection ; and in the continuance of their law, in the knowledge that it was the guarantee of their civil rights against a litigious barbarian, though it might afford them but imperfect security against his violence, in the con- * A work, which I had not seen code had been compiled on a different wlien this note was written, " Histoire motive or leading ))rinciplc. This is du Droit Fran9ais," by IVL Laferriere very much what took ])lace in England, (p. 85. ) treats at some length the origin and perhaps more rapidly, in the twelfth of the customary law of France. It century; the Norman law, with its was not, in any considerable degree, feudal principle, replaced the Anglo- borrowed from the barl)aric codes, nor .Saxon. greatly, as be thinks, from the Roman Rut a Belgian writer, ISI. Raepsaet law. He points out the manifold dis- (Nouveaux Memolrcs de I'Acad^-mie de crepancies from the former of these. Rruxelles, t. iii.), contends that the But tliese codes appear to have been in Salic and Ripuarian laws had authority force under Charlemagne. The feudal in the Netherlands, down to the thir- customs, which became tlie sole law on teenth century, for towns and for alodial the right bank of the Loire, lie refers projirietors. Wc find lex Salica in to the ninth and two following cen- several instruments : Otlio of l-Visin- turies. And I suppose there can be gen says, " Lege qua- Salica uscpie ad no doubt of this. The spirit of the Iutc tempora vocatur, nobilissimos French customs, both territorial and Francoruni adhuc uti." But this must personal, was wholly feudal ; the Salic have been chiefly as to successions. 96 GRAF. [Chap. II. nexioii wliicli it streiiotheiied with the Churcli (for church- men of all nations followed it), they found no trifling" re- commendations of this distinction from the conquerors. It seems to be proved that, in lapse of ages, each had gradu- ally borrowed something from the other. The melting down of personal into territorial, that is, uniform law, as it cannot be referred to any positive enactment or to any distinct period, seems to have been the result of such a process. The same judges, the counts and inissi, appear to have decided the controversies of all the subject nations, whether among themselves or one with another. Mar- culfus tells us this in positive terms : "Eos recto tramite se- cundum legem et consuetudinem eorum regas." (Marculf. Formulae, lib. i. c. 8.) Nor do we find any separate judges, except the drfensores of cities, who were Romans, but had only a limited jurisdiction. It was only as to civil rights, as ought to be remarked, that the distinction of per- sonal law was maintained. The penalties of crime were defined by a law of the state. And the same must of course be understood as to military service. 59. GRAF. Edit. 1826, p. 150. Edit. 1841, p. 101. The word p'af was not always equivalent to comes ; it took in some countries^ as in England, the form gerefa, and stood for the ricecomcs or sheriff, the count or alderman's deputy. Some have derived it from (/yau^ on the hypothesis that the elders presided in the German assemblies. Note GO.] HEREDITARY OFFICES. 9? HEREDITARY OFFICES. Edit. 1826, pp. 151. and 166. Edit. 1841, pp. 102. and 112. The German dukes of the Alemanni and Bavarians belonged to once royal families ; their hereditary rights may be considered as those of territorial chiefs. Again, in Aquitaine the Merovingian kings had so little autho- rity that the counts became nearly independent. But we do not find reason, as far as I am aware, to believe any regular succession of a son to his father, in Neustria or Austrasia, under the first dynasty ; much less would Charlemagne have permitted it to grow up. It could never have become an established usage, except in a monarchy too weak to maintain any of its prerogatives. Such a monarchy was that of Charles the Bald. I have said that, in the famous capitulary of Kiersi, in 877> the succession of a son to his father appears to be recognised as a known usage. M. Fauriel, on the other hand, denies that this capitulary even confirms it at all. (Hist, de la Gaule Meridionale, iv. 383.) We both, therefore, agree against the current of French writers who take, this for the epoch of hereditary succession. It seems evident to me, that an iismfc^ sufficient, in common parl- ance, to entitle the son to recei\'e the honour wliich his father had held, is implied in this capitulary. But the object of the enactment was to provide for the contin- gency of a territorial government becoming vacant by death, during the intended absence of the emperor Charles in Italy ; and that in cases only where the son of the deceased count should be with the army, or in his mi- nority, or where no son survived. "It is obvious," Palgrave says, *' that the law relates to the custody of the county or fief, during the interval between the death of the father and the investiture of the heir." (English Commonwealth, 392.) But the case of a heir, that is, a son — for collateral inheritance is excluded by H 98 HEREDITARY OFFICES. [CiiAr. II. the terms of the capitulary — being of full age and on the spot, is not specially mentioned ; so that we must presume that he would have assumed the government of the county, awaiting the sovereign's confirmation on his return from the Italian expedition. The capitulary should be understood as applicable to temporary circumstances, rather than as a permanent law. But I must think that the lineal succession is taken for granted in it.* We find that, so long at least as the kings retained any power, their confirmation or consent was required on every succession to an honour, that is, a county or other govern- ment ; though it was very rarely refused. Guadet (Notices sur Richer, p. 62.) supposes this to have been the case even in the last reigns of the Caroline family, that is, in the tenth century ; but this is doubtful, at least as to the southern dukes and counts. These honours gradually, after the accession of the house of Capet, assumed a new character, and were confounded together with benefices under the general name of fiefs of the crown. The counts indeed, according to Montesquieu and to probability, held beneficiary lands attached to their office. (Esprit des Loix, xxvi. 27.) The county, it may here be mentioned, was a territorial division, generally of the same extent as the parjiis of the Roman empire. The latter appellation is used in the Merovingian period, and long afterwards. The word county, comitatus, is said to be rare before 800 ; but the royal officer was called comes from the beginning. Tlie number of pagii or counties, I have not found. The epi- scopal dioceses were 118 in the Caroline period, and were * Si comes obierit, ciijus filius no- Si vero filium non habuerit, filius nos- bisciim sit, filius noster cum ceteris ter cum caeteris fidelibus iiostris or- fidelibus nostris ordinet de his qui illi dinet, qui cum ministerialibus ipsius plus familiares et propinquiores fuerint, comitatus et episcopo ipsum comita- qui cum ministerialibus ipsius comi- tuni pr£evideat, donee jussio nostra tatuset episcopo ipsum comitatum pro;- inde fiat. Et pro hoc nullus irascatur, videat, usque cum nobis renuntietur. si eundem comitatum alteri, qui nobis Si autem filium parvulum habuerit, placuerit dederimus, quam illi qui iisdem cum ministerialibus ipsius comi- earn hactenus pravidit. Similiter et tatiis et episcopo, in cuj us parocb la con- de vassallis nostris faciendum est. sistit, eundem comitatum pravideat, (Script. Rer, Gall. vii. 701.) donee ad nostram notitiam perveuiat. Notes G1,G2.] HEREDITARY SUCCESSION. 99 frequently, but not always, coincident in extent \\ith the civil divisions. (See Guerard, Cartulaire de Chartres, Prolegomenes, p. 0. in Documens Inedits, 1840.) 61. PATRICIAN. Edit. 182G, p. 151. Edit. 1841, p. 101. This office was, as far as I recollect, confined to the kingdom of Burgundy. But the Franks of this kingdom may have borrowed it from the Burgundians, as the latter did from the empire. Marculfus gives a form for the grant of the office of patrician, which seems to have dif- fered only in local extent of authority from that of a duke or a count, which was the least of the three ; as the same formula expressing their functions is sufficient for all. 62. HEREDITARY SUCCESSION. Edit. 1826, p. 152. Edit. 1841, p. 103. It would now be admitted by the majority of French an- tiquaries, that the nearest heir would not have a strict right to the throne ; but if he were of full age, and in lineal descent, his expectation would be such as to con- stitute a moral claim never to be defeated or contested, provided no impediment, such as his minority or weakness of mind, stood in the way. After the middle of the seventh century, the mayors of the palace selected whom they would. As it is still clearer from history that the Carlovingian kings did not assume the crown without an election, we may more probably su])pose this to have been the ancient constitution. The passages in Gregory of Tours, which look like a mere hereditary succession, such as, Quatuor Jilii rcf/ninu accipiunt^ ct inter se cequd lance H 2 100 ROYAL AUTHORITY. [Chap. II. dividunf^ do not exclude a popular election, which he would consider a mere formality, and which in that case must have been little more. I must admit, however, that M. Guizot, whose au- thority is deservedly so high, gives more weight to lineal inheritance than many others have done ; and conse- quently treats the phrases of historians seeming to imply a choice by the people, as merely recognitions of a legal right. " The principle of hereditary right," he says, *' must have been deeply implanted when Pepin was forced to obtain the pope's sanction, before he ventured to depose the Merovingian prince, obscure and despised as he was." (Essais sur I'Hist. de France, p. 298.) But surely this is not to the point. Childeric III. was a reign- ing king ; and, besides this, the question is by no means as to the right of the Merovingian family to the throne, which no one disputes, but as to that of the nearest heir. The case was the same with the second dynasty. The Franks bound themselves to the family of Pepin, not to any one heir within it. QS. ROYAL AUTHORITY. Edit. 1826, p. 155. Edit. 1841. p. 105. A RECONSIDERATION of the Mcrovingian history has led me to doubt whether I may not, like several others, hav^e rather exaggerated the change in the prerogative of the French kings from Clovis to Clotaire II. Though the famous story of the vase of Soissons is not insigni- ficant, it now seems to me that an excessive stress has sometimes been laid upon it. In the first place, there is a general objection to founding a large political theory on any anecdote, which proving false, the whole would crumble for want of a basis. This, however, is rather a general remark than intended to throw doubt upon the story told by Gregory of Tours, who, though he came so iSToTE 63.] ROYAL AUTHORITY. 101 long afterwards, and though there is every appearance of rhetorical exaggeration and inexactness in the detail, is likely to have learned the principal fact by tradition or some lost authority. * But even taking the circumstances exactly according to his relation, do they go much farther than to inform us, what our knowledge of barbarian man- ners might lead any one to presume, that the booty ob- tained by a victory was divided among the army ? Clovis was not refused the vase which he requested ; the army gave their assent in terms which Gregory, we may well believe, has made too submissive ; he took it without re- gard to the insolence of a single soldier, and revenged himself on the first opportunity. The Salian king was, I believe from other evidence, a limited one ; he was obliged to consult his army in war, his chief men in peace ; but the vase of Soissons does not seem to warrant us in deeming him to have been more limited than from history and analogy we should otherwise infer. If indeed the language of Gregory were to be trusted, the whole result N^'ould tell more in favour of the royal authority than against it. And thus Dubos, who has written on the principle of believing all that he found in history to the very letter, has inter])reted the story. Two French writers, the latter of considerable reputa- tion, Boulainvilliers and Mably, have contributed to render current a notion that the barbarian kings, before the con- quest of Gaul, enjoyed scarcely any authority beyond that of leaders of the army. And this theory has lately been maintained by two of our countrymen, whose researches have met with great aj)probation. *' It is plain," says Mr. Allen, *' the monarchical theory cannot have been de- rived from the ancient Germans. In the most considerable * Since this sentence was written I served only in extracts when Ilincinar have found the story of the vase of compiled his own biograjjliy of that Soissons in Illncniar's Life of St. famous bishop, is, in all likeliliood, the Remi, which, as I have oljserved in a basis of wliatcver Gregory of Tours former note, appears to be taken from has recorded concerning tlie founder a document neaiJy contcmjiorary with of the monarchy ; very rhetorical, and the saint, tliat is, witli Clovis. And probably not accurate, but essentially this original Life of St. Remi, pre- deserving belief. H 3 102 ROYAL AUTHORITY. [Chap. II. of the German tribes the form of government was re- pubhcan. Some of them had a cliief, whom the Romans designated with the appellation of king ; but his authority was limited, and in the most distinguished of their tribes the name as well as the office of king was unknown.* The supreme authority of the nation resided in the free- men of whom it was composed. From them every de- termination proceeded which affected the general interests of the community, or decided the life or death of any member of the commonwealth. The territory of the state was divided into districts, and in every district there was a chief who presided in its assemblies, and, with the as- sistance of the other freemen, regulated its internal concerns, and in matters of inferior importance administered justice to the inhabitants. This form of government subsisted among the Saxons of the Continent so late as the close of the seventh cen- tury, and probably continued in existence till their final conquest by Charlemagne. Long before that period, how- ever, the tribes that quitted their native forests, and estab- lished themselves in the empire, had converted the tem- porary general of their army into a permanent magistrate, with the title of king. But that the person decorated with this appellation was invested with the attributes essential to royalty in after times, is utterly incredible. Freemen ^vith arms in their hands, accustomed to participate in the exercise of the sovereign power, were not likely without cause to divest themselves of that high prerogative, and transfer it totally and inalienably to their general. Chiefs who had been recently his equals, might, in consideration of his military talents, and from regard to their common interest, acquiesce in his permanent superiority as com- mander of their united forces ; but it cannot be supposed that they would gratuitously and universally submit to him as their master. There are no written accounts, it is true, of the conditions stipulated by the German war- * This is by no means an unqiies- torian, as has been observed in a former tionabie representation of what Tauitiis note, is not sufficiently perspicuous on lias said; but the language of that his- this subject of German royalty. Note 6-3.] ROYAL AUTHORITY. 103 riors when they converted him into a king-. But there is abundance of facts recorded by historians, which show- beyond a doubt that, though he might occasionally abuse his jDower by acts of violence and injustice, the authority he possessed by law was far from being unlimited. (In- quiry into the Rise and Growth of Royal Prerogative, p. 11.) It may be observed, in the first place, that Mr. Allen appears to have combated a shadow. Few^, I presume, contend for an unlimited authority of the Germanic kings, either before or after their concpests of France and Eng-- land. A despotic monarchy was utterly uncongenial to the mediaeval polity. Sir F. Palgrave follows in the same direction : — *' When the ' three tribes of Germany' first invaded Britain, royalty, in our sense of the term, was unknow^n to them. Amongst the Teutons in g'eneral the word ' king,' probably borrowed from the Celtic tongue, though now naturalised in all the Teutonic languages, was as yet not introduced or invented. Their patriarchal rulers were their 'aldermen,' or seniors. In 'old Saxony' there was such an alderman in every pagus. Predominant or pre- eminent chieftains, whom the Romans called 'reg'es,' and M'ho were often confirmed in their dominions by the Ro- mans themselves, existed at an earlier period amongst several of the German tribes ; but it must not be sup- posed that these leaders possessed any of the exalted func- tions and complex attributes which, according to our ideas, constitute royal dignity. A king must be in- vested with permanent and paramount authority. For the material points at issue are not affected by showing that one powerful chieftain might receive the complimentary title of rex from a foreign ])o\ver, or that another chieftain, with powers apj)roaching to royalty, may not have been created occasionally, and during greater emer- gencies. Tbe real question is, whether the king had be- come the lord of the soil, or at least the greatest landed proprietor, and the first ' estate' of the conmionwTalth, endued with prerogatives which no other member of the H 4 104 ROYAL AUTHORITY. [Cuap. II. community could claim or exercise. The disposal of the military force, the supreme administration of justice, the light of receiving taxes and tributes, and the character of supreme legislator and perpetual president of the councils of the realm, must all belong to the sovereign, if he is to be king in deed as well as in name." (Rise and Pro- gress of the English Commonwealth, vol. i. p. 553.) The prerogatives here assigned to royalty as part of its definition, are of so various a nature, and so indefinitely expressed, that it is difficult to argue about them. Cer- tainly a ' king in deed' must receive taxes, and dispose, though not necessarily without consent, of the military force. He must preside in the councils of the realm ; but he need not be supreme legislator, if that is meant to ex- clude the participation of his subjects ; much less need he be the lord of the soil — a very modern notion, and merely technical, if indeed it could be said to be true in any proper sense, nor even the greatest landed proprietor. " A king's a king for a' that ; " and we have never in England knouai any other. But why do these eminent writers de]}reciate so confi- dently the powers of a Frank or Saxon king ? Even if Caesar and Tacitus are to be implicitly confided in for their own times, are we to infer that no consolidation of the German clans, if that word is a right one, had been ef- fected in the four succeeding centuries ? Are we even to reject the numerous testimonies of Latin writers during those ages, who sjjeak of kings, hereditary chieftains, and leaders of the barbarian armies ? If there is a notorious fact, both as to the Salian Franks and the Saxons of Germany, it is that each had an acknowledged royal family. Even if they sometimes chose a king not accord- ing to our rules of descent, it was invariably from one ancestor. The house of Meroveus was probably recog- nised before the existence of that obscure prince ; and in England, Hengist could boast the blood of Woden, the demi-god of heroic tradition, A government hy //i'ofs, or ealdornien of the (jau, might suit a people whose forests protected them from invasion, but was utterly incompatible Note 63.] ROYAL AUTHORITY. 105 AA'Ith the aggressive warfare of the Franks, or of the first conquerors of Kent and Wessex. Grimm, in his ex- cellent Antiquities of German Law, has fully treated of the old Teutonic monarchies, not always hereditary, and never absolute, but easily capable of receiving- an enlargement of ])Ower in the hands of brave and ambitious princes, such . as arose in the great westward movement of Germany. If, however, the authority of Clovis has been rated too low in my text, it may also be questioned whether that of the next two generations, his sons and grandsons, has not been exaggerated in contrast. It is certainly true, that Gregory of Tours exhibits a picture of savage ty- ranny in several of these sovereigns. But we are to remember that particular acts of arbitrary power, and especially the putting obnoxious persons to death, were so congenial to the whole manners of the age, that they do not prove the question at issue, whether the government may be called virtually an absolute monarchy. Every Frank of wealth and courage was a despot within his sphere ; but his sphere of power was a bounded one ; and so, too, might be that of the king. Probably, when Gon- tran or Fredegonde ordered a turbulent chief to be assas- sinated, no icere(jUd was paid to his kindred ; but his death would excite hardly any disajjprubation, except among those who thought it undeserved. Gregory of Tours, it should be kept in mind, was a Roman ; he does not always distinguish the two nations ; but a great part of the general oppression which we find under the grand-children of Clovis, seems to have fallen on the subject people. As to these, few are inclined to doubt that the king was truly absolute. The most re- markable instances of arbitrary power exerted upon the Franks are in the imposition of taxes. These, as has been said in another note, were rej)ugnant to the whole genius of barbarian society. We find, however, that on the death of Tlieodebert, king of Austrasia, in 547, the Franks murdered one Parthenius, evidently a Roman, and a minister of the late king — " pro eo quod iis tributa antedicti regis tempore infiixisset." (Greg. Tur. lib. iii. lOG ROYAL AUTHORITY. [Chap. II. c. 36.) Whether these tributes continued afterwards to be paid we do not read. Chilperic, the most oppressive of his hne, at a later period, in 579} laid a tax on freehold lands — " ut possessor de terra propria amphoram vini per aripennem redderet." (Id. lib. v. c. 29.) It is, indeed, pos- sible that this affected only the Romans, though the lan- guag-e of the historian is general — " descriptiones novas et graves in omni regno suo fieri jussit." A revolt broke out in consequence at Limoges ; but the inhabitants of that city were Roman. Chilperic put this down by the help of his faithful Antrustions — " unde multum molestus rex, dirigens de latere suo personas, innnensis damnis ])opulum afflixit, suppliciisque conterruit." Mr. Spence (Laws of Modern Europe, p. 269.) is clearly of opinion, against Montesquieu, who confines this tax to the Romans, that it comprehended the Franks also, and was in the nature of the indiction, or land-tax, imposed on the sub- jects of the Roman empire by an assessment renewed every fifteen years ; and this, perhaps, on the whole, is the more probable hypothesis of the two. Mr. S. says (p. 267.), that lands subject to tribute still continued liable when in the possession of a Frank. This is not perhaps improbable, but he refers to texts which do not prove it. The next passage which I shall quote is more un- equivocal. The death of Chilperic exposed his instru- ments of tyranny, as it had Parthenius in Austrasia, to the vengeance of an oppressed people. Fredegonde, though she escaped condign punishment herself, could not screen these vile ministers : — " Habebat tunc temporis secum Audonem judicem, qui ei tempore regis in multis consenserat malis. Ipse enim cum Mummolo prsefecto multos de Francis, qui tempore Childeberti regis senioris ingenui fuerant, publico tributo subegit. Qui, post mortem regis Chilperici, ab ipsis spoliatus ac denudatus est, ut nihil ei, prseter quod super se auferre potuit, re- maneret. Domos enim ejus incendio subdiderunt ; ab- stulissent utique et ipsam vitam, ni cum regina eccle- siam expetisset." (Lib. vii. c. 15.) The word inr/Piivi, in the above passage, means the superior class — alodial Note G3.] ROYAL AUTHORITy. 107 landholders or beneficiaries, as distinguished from the class named Udij who are also perhaps sometimes called tribii- tarii, as well as the Romans, and from whom a public census, as some think, was due. We may remark here, that the removing of a number of Franks from their own pbice as inqenui, to that of tributaries, was a particular act of oppression, and does not stand quite on the footing of a general law. The passage in Gregory is chiefly important, as it shows that the ingenui were not legally subject to public tribute. M. Guizot has adduced a constitution of Clotaire II. in 615, as a proof that endeavours had been made by the kings to impose undue taxes. This contains the following article : " Ut ubicunque census novus impie additus est, et a populo reclamatur, justa inquisitione misericorditer emen- detur." (C. 8.) But does this warrant the inference that any tax had been imposed on the free-born Frank ? " Census'' is generally understood to be the capitation paid by the tributarii, and the words imply a local exaction rather than a national imposition by the royal authority. It is not even manifest that this provision was founded exclusively on any oppression of the crown ; several other articles in this celebrated law are extensively remedial, and forbid all undue spoliation of the weak. But if we should incline to Guizot's interpretation, it will not prove, of course, the right of the kings to impose taxes on the Franks, since that to which it adverts is called census novus impie additus. The inference which I have drawn, in page 15.5, Note*, from the language of the laws, is inconclusive. Bouquet, in the Recueil des Historiens (vol. iv.), admits only seven laws during the Merovingian period, differing from Baluze as to the particular sovereigns by whom several of them were enacted. Of these the first is by Childebert I. king of Paris, in 53% according to him ; by Childebert II. of Austrasia, according to Baluze ; which, as the date is Cologne, and several Austrasian cities are mentioned in it which never belonged to the first Childebert, I cannot but think more likely. This constitution, as I have observed, 108 KOYAL AUTHORITY. [Chap. II. has inid cum nostris optimatibus, and, convenit una cum leudis nostris. And the expressions lead to two infe- rences ; first, that the assemljly of the Field of March was, in that age, annually held ; secondly, that it was customary to send round to the people the determinations of the optimates in this council : — " Cum nos omnes ca- lendas Martias de quascunque conditiones una cum opti- matibus nostris pertractavimus, ad unumquemque notitiam volumus pervenire." The grammar is wretched, but such is the evident sense. The second law, as it is called, is an agreement between Childebert and Clotaire ; the first of each name according to Bouquet, the second, according to Baluze. This wants all enacting words except " Decretum est." The third is an ordinance of Childebert for abolishing idolatrous rites, and keeping festivals. It is an enforcement of ecclesi- astical regulations, not perhaps reckoned at that time to require legislative sanction. The fourth, of Clotaire I. or Clotaire II. begins " Decretum est," and has no other word of enactment. But this does not exclude the pro- bability of consent by the leudes. Clotaire I. in another constitution, speaks authoritatively. But it will be found, on reading it, that none except his Roman subjects are concerned. The sixth is merely a prece])t of Gontran, directed to the bishops and judges, enjoining them to maintain the observance of the Lord's day and other feasts. The last is the edict of Clotaire II. in 61-5, already quoted, and here we read : — " Hanc deliberationem quam cum pontificibus vel tam magnis viris optimatibus, aut fidelibus nostris in spiodali concilio instituimus." After 615, no law is extant enacted in any of the Frank kingdoms, before the reign of Pepin. This, however, cannot of itself warrant the assertion that none were enacted which do not remain. It is more surprising, perhaps, that even a few have been preserved. The language of Childebert above cited leads to the belief that, in the sixth century, whatever we may suppose as to the next, an assembly with powers of legislation was regularly lield by the Frank sovereigns. Nothing, on the whole, Note G4.] NOBILITY. 109 warrants the supposition that the three generations after Clevis possessed an acknowledged right, either of legislat- ing for their Frank subjects, or imposing taxes upon them. But after the assassination of Sigebert, under the walls of Tournay, in 575, the Austrasian nobles began to display a steady resistance to the authority which his widow Brunei haut endeavoured to exercise in her son's name. This, after forty years, terminated in her death, and in the re- union of the Frank monarchy with a much more aristocratic character than before, under the second Clotaire. It is a revolution to which we have already drawn attentign in the note on Brunehaut. 64. NOBILITY. Edit. 1826, p. 158. Edit. 1841, p. 106. *' The existence," says Savigny, " of an original nobility, as a particular patrician order, and not as a class indefi- nitely distinguished by their wealth and nobility, cannot be questioned. It is difficult to say from what origin this distinction may have proceeded ; whether it was connected with the services of religion, or with the possession of the heritable offices of counts. We may affirm, however, with certainty, that the honour enjoyed was merely personal, and conferred no preponderance in the political or judicial systems." (Ch. iv. p. 17~- English translation.) This admits all the theory to which I have inclined in the text, namely, the non-existence of a privileged order, though antiquity of family was in high respect. The eorl of Anglo-Saxon law was, it may be said, distinguished by certain ])rivileges from the cporL Why could not the same have been the case with the Franks ? We may answer, that it is by the laws and records of those times that we j)rove the former distinction in England ; and it is by the absence of all such proof that the non-existence of such a distinction in France has been presumed. But if the lidi, of whom 110 NOBILITY. [Chap. II. we SO often read, were Franks by origin, and moreover personally free, which I do not discuss, they will be the corresponding- rank to the Anglo-Saxon ceorU superior as, from whatever circumstances, the latter may have been in his social degree. All the Franci inyenui will thus have constituted a class of nobility ; in no other sense, however, than all men of white race constitute such a class in those of the United States where slavery is abolished ; which is not what we usually mean by the word. In some German nations we have, indeed, a distinct nobility of blood. The Bavarians had five families, for the death of a member of whom a double composition was paid. They had one, the Agilolfungi, whose composition was fourfold. ' Troja also finds proof of two classes among the Alemanns (v. l68.). But we are speaking- only of the Franks ; a cognate people indeed to the Saxons and Alemanns, but not the same, and whose origin is not that of a pure single tribe. The Franks were collectively like a new people in comparison with some others of Teutonic blood. It does not therefore appear to me so unquestionable as to Savigny, that a con- siderable number of families formed a patrician order in the French monarchy, without reference to hereditary possessions or hereditary office. A writer of considerable learning and ingenuity, but not always attentive to the strict meaning of what he quotes, has found a proof of family precedence among the Franks, in the words cn'nosus and crinitus, employed in the Salic law and in an edict of Childebert. (Meyer, Institut. Judiciaires, vol. i. p. 104.) This priv'ileg'e of wearing long hair he supposes peculiar to certain families, and observes that crinosus is opposed to tonsoratus. But why should we not believe that all superior freemen, that is, all Franks, whose composition was of two hundred solidi, wore this long hair, though it might be an honour denied to the Udi? Gibert, in a memoir on the Merovin- gians (Acad, des Inscript. xxx. 583.), quotes a passage of Tacitus, concerning the manner in w hich the nation of the Suevi wore their hair, from whom the Franks are sup- posed by him to be descended. And there is at least Note 64.] NOBILITY. Ill something remarkable in the language of Tacitus, which indicates a distinction between the royal family and other freemen, as well as between these and the servile class. The words have not been, I think, often quoted : — " Nunc de Suevis dicendum est, quorum non una ut Cattorum Tencterorumque gens ; majorem enim Germanise partem obtinent, propriis adhuc nationibus discreti, quamquam in communi Suevi dicuntur. Insigne gentis obliquare crinem, nodoque substringere. Sic Suevi a ceteris Germanis, sic Suevorum ingenui a servis separantur. In aliis genti- bus seu cognatione aliqua Suevorum, seu, quod accidit, imitatione, rarum et intra juventa? spatium, apud Suevos usque ad canitiem, horrentem capillum retro sequuntur, ac ssepe in ipso solo vertice religant ; principes et ornatiorem hahent^'' (De Mor. German, c. 38.) This last expression may account for the word crinitus being sometimes applied to the royal family, as it were exclusively ; sometimes to the Frank nation, or its freemen.* The references of M. Meyer are so far from sustaining his theory, that they rather lead me to an opposite conclusion. M. (Naudet in Mcmoires de 1' Academic des Inscrip- tions (Nouvelle Serie), vol. viii. p. 502.) enters upon an elaborate discussion of the state of persons under the first dynasty. He distinguishes, of course, the infjenui from the lidi. But among the former he conceives that there were two classes : the former absolutely free as to their persons, valued in their wercqihl at 200 solidi, meeting in the county maUiiSi and sometimes in the national as- sembly ; in a word, the populus of the Fiank monarchy ; the latter valued, as he supposes, at 100 solidi, living under the protection or vniinlvbundc of some rich man, and though still free, and said to be iuf/cnnili ordiuv srr- vientcsy not very distinguishable at present from the /idi. * The royal family seem also to put to death : "quid de his fieri debcat; have worn lon empowered his Jif/rirs to dispose of their benefices as they thought fit, provided it were to persons capable of serving- the estate. But this is too largely expressed ; the ])ower given is to those vassals who might desire to take up their abode in a cloister ; and it could only be exercised in I Hi HEREDITARY BENEFICES. [Cuap. II. fiivour of a son or other kinsman. * But the right of inheritance had, prohab])% been estabhshed before. Still, so deeply was the notion of a personal relation to the grantor implanted in the minds of men, that it was common, notwithstanding the largest terms of inheritance in a grant, for the new tenant to obtain a confirmation from the CroN^n. This might also be for the sake of security. And this is precisely the renewal of homage and fealty on a change of tenancy, which belonged to the more matured stage of the feudal polity. Mr. Allen observes, with respect to the formula of Marculfus quoted in my note: — "Some authors have considered this as a precedent for the grant of an here- ditary benefice. But it is only necessary to read with attention the act itself, to perceive that what it creates is not an hereditary benefice, but an alodial estate. It is viewed in this light in his (Bignon's) notes on a subsequent formula (sect. 170' confirmatory of what had been done under the preceding one, and it is only from inadvertence that it could have been considered in a different point of view." (Inquiry into Royal Prerogative, Appendix, p. 47.) But Bignon took for granted that benefices were only for t(!rm of life, and consequently that words of inheritance, in the age of Marculfus, implied an alodial grant. The question is ; What constituted a benefice ? Was it not a grant by favour of the King or other lord ? If the words used in the formula of Marculfus are inconsistent wdth a beneficiary property, we must give up the inference from the treaty of Andely, and from all other phrases which have seemed to convey hereditary benefices. It is true that the formula in JMarculfus gives a larger power of alienation than belonged afterwards to fiefs ; but did it put an end to the peculiar obligation of the holder of the benefice towards the crown ? It does not appear to me unreasonable to suppose an estate so conferred to have * Si aliquis ex fidelibiis nostiis post bucrit qui reipublica prodesse valeat, obitum nostrum, Dei ct nostro amove suos boiiores prout melius volucrit ei com]uinctiis, sftculo rcr.untiare.vcliicrit, valeat placitare. — Script. Rer. Gall, et filiuni vel takm propinqmim lia- vii. 701. Note GG.] HEREDITARY BENEFICES. 115 been strictly a benefice, according to the notions of tlie seventli century. Sub-infeudation could hardly exist to any considerable degree until benefices became hereditary. But as soon as that change took place, the principle was very natural, and sure to suggest itself. It prodigiously strengthened the aristocracy, of which they could not but be aware ; and they had acquired such extensive possessions out of the royal domains, that they could well afford to take a rent for them in iron instead of silver. Charlemagne, as Guizot justly conceives, strove to counteract the growing feudal spirit, by drawing closer the bonds between the sovereign and the subject. He demanded an oath of alle- giance, as William afterwards did in England, from the vassals of mesne lords. But after his death, and after the complete establishment of an hereditary right in the grants of the Crown, it was utterly impossible to prevent the general usage of sub-infeudation. Mably distinguishes the lands granted by Charles Martel to his German followers, from the benefices of the early kings, reserving' to the former the name of fiefs. These he conceives to have been granted only for life, and to have involved, for the first time, the obligation of military service. (Observations surl'Hist. de France, vol. i. p. o'2.) But as they were not styled fiefs so early, but only bene- fices, this distinction seems likely to deceive the reader ; and the oath of fidelity taken by the Antrustion, which, though personal, could not be a weaker obligation after he had acquired a benefice, carries a very strong presumption that military service, at least in defensive wars, not always distinguishable from wars to re\'enge a wrong, as most are presumed to be, ^^'as demanded by the usages and moral sentiments of the society. We have not a great deal of testimony as to the grants of Charles Martel ; but in the capitularies of Charlemagne, it is evident that all holders of benefices were bound to follow the sovereign to the field. M. Gucrard (Cartulaire de Chartres, i. 23.), is of opinion that, though benefices were ultimately fiefs, in the 1 2 116 THE WORD FEUDUM. [Chap.II. first Stage of tlie monarchy they were only usufructs ; and the word will not be clearly found in the restrained sense during that period. *' Cette difference entre deux in- stitutions nees I'une de I'autre, quoique assez delicate, etait essentielle. Elle ne pourrait etre meconnue que par ceux qui considereraient seulement les benefices a la fin, et les fiefs au commencement de leur existence ; alors en effet les uns et les autres se confondaient. That they were not mere usufructs, even at first, appears to me more probable. G7. THE WORD FEUDUM. Edit. 1826, p. 165. note*. Edit. 1841, p. 111. note*. Sir F. Palgrave answers this by producing the word Jelin. (English Commonwealth, ii. 208.) And though M. Thierry asserts (Recits des temps Merovingiens, i. 21'5.) that tliis is modern German, he seems to be alto- gether mistaken. (Palgrave, ibid.) But when Sir F. P. proceeds to say — " The essential and fundamental principle of a territorial fief or feud is, that the land is held by a limited or conditional estate — the property being in the lord, and the usufruct in the tenant," we must think this not a very exact definition of feuds in their mature state, however it might apply to the early benefices for life. The property, by feudal law, was, I conceive, strictly in the tenant ; what else do we mean by fee simple ? Mili- tary service in most cases, and always fealty, were due to the lord, and an abandonment of the latter might cause forfeiture of the land ; but the tenant was not less the owner, and might destroy it or render it unprofitable if he pleased. Feudum Sir F. Palgrave boldly derives from emphy- teusis ; and, in fact, by processes familiar to etymologists, that is, cutting off the head and legs, and extracting the back bone, it may thence be exhibited in the old form, NoteG?.] the word feudum. 117 feum, or fevum. M. Thierry, liowever, thinks fe/i, tliat is, fee or pay, and or///, property, to be the true root. (Lettres sur I'Hist. de France, Lettre x.) Guizot inclines to the same derivation ; and it is, in fact, given by Ducange and others. The derivation of alod from r///and odh seems to be analogous ; and the word Kdaller, for the freeholder of the Shetland and Orkney Isles, strongly confirms this derivation, being only the two radical elements reversed, as I remember to have seen observed in Gilbert Stuart's View of Society. A charter of Charles the Fat is sus- pected on account of the word feudum, which is at least of very rare occurrence till late in the tenth century. The great objection to emphyteasis is, that a fief is a dif- ferent thing. Sir F. Palgrave, indeed, contends that an "emphyteusis" is often called a " precaria," and that the word " precaria" was a synonym of " beneficium," as be- neficium was of " feudum." But does it appear from the ancient use of the words "precaria" and "beneficium" that they were convertible, as the former is said, by Muratori and Lehueron, to have been with emphyteusis ? (Murat. Antiq. Ital. Diss, xxxvi. Lehueron, Inst. Caroling. ]). 183.) The tenant by cmphijteusis, whom we find in the Codes of Theodosius and Justinian, was little more than a cohmis, a demi-serf attached to the soil, though incapable of being dispossessed. Is this like the holder of a benefice, the progenitor of the great feudal aristocracy ? How can we compare emphyteusis with beneficium, without remember- ing that one was commonly a grant for a fixed return in value, answering to tlie " terrae censuales" of later times, and the latter, as the word implies, a free donation, with no condition but gratitude and fidelity ? The word pi'e- caria is for the most part aj)plied to ecclesiastical property, which, by some usurpation, had fallen into the hands of laymen. These afterwards, by way of compromise, were ])ermitted to continue as tenants of the Church, for a limited term, generally of life, on payment of a fixed rate. Marculfus, however, gives a form in which the grjintor of the precaria a])pears to be a layman. Military service was not contcniplated in the emphyteusis or the 118 COMMENDATION. [Cuap. II. precaria, nor were either of them perpetuities ; at least this was not their common condition. Meyer derives feudnm from Jides, qaotlng; Almoin : " Leudibus suis In Jide disposult." (Inst. Judic. i. I87.) 68. COMMENDATION. Edit. 182C, p. 171. Edit. 1841, p. 116. M. GuizoT with the highest prohablhty refers the con- version of alodial Into feudal lands to the prInci])lo of commendation. (Essals sur I'HIst. de France, p. 166.) Though originally this had no relation to land, but created a merely personal tie — fidelity in return for protection, it Is easy to conceive that the alodialist who obtained this pri- vilege, as it might justly appear, in an age of rapine, must often do so by subjecting himself to the law of tenure ; a law less burdensome at a time when warfare, if not always defensive, as It was against the Normans, was always carried on In the neighbourhood, at little expense beyond the ravages that might attend its want of success. Raynouard has ])ubllshed a curious passage from the Life of St. Gerald, a count of Aurillac, where he Is said to have refused to subject his alodial lands to the duke of Gulenne, with the exception of one farm, peculiarly situ- ated. " Erat enim semotim, inter pessimos vicinos, longe a cseterls disparatum." His other lands were so situated that he was able to defend them. Nothing can better explain the principle which rivetted the feudal yoke upon alodiallsts. (Hist, du Droit Municipal, il. 261.) In my text, though M. Gulzot has done me the Iionour to say, " M. Montlosler et M. Hallam en out mieux demele la nature et les causes," the subject Is not suffi- ciently disentangled, and the territorial character whicli commendation ultimately assumed Is too much separated from the personal. The latter preceded even the conquest of Gaul, both among the barbarian Invaders themselves NoTK G8.] COMMENDATlOxV. 119 and tlie provincial subjects*, and was a sort of cUcntela ; but the former deserves also the name of commendation, though the Franks had a word of their own to express it. We hnd in Marculfus the form by which the King- took an ecclesiastical person, with his property and follow- ers, under his own mundehurde, or safeguard. (Lib. i. c. 44.) This was equivalent to commendation, or rather another word for it ; except as one rather expresses the act of the tenant, the other that of the lord. Letters of safeguard were not by any means confined to the Church. They were frequent as long as the Crown had any power to protect, and revived again in the decline of the feudal system. Nor were they limited to the Crown ; we have the form by which the poor might place themselves under the mundcburde of the rich, still being free, " ingenuili ordine servientes." (Formulae Veteres Bignonii, c. 44., quoted by Naudet.) They were then even sometimes called, as the latter supposes, lidi or lifi, so tliat a free- man, even of the higher class, might, at his option, fall, for the sake of protection, into an inferior position. I have no hesitation in agreeing with Guizot, that the conversion of alodial into feudal property was nothing more than an extension of the old commendation. It was not necessary that there should be an express surrender and regrant of the land ; the acknowledgment of seigniory * jM. Lehucrou has gone very (Iccjily contemporary antiquaries. W. Giraud into the mutidittm, or personal safe- and M. Rlignet (Seances ct Travaiix guard, by which the inferior chiss de TAcadeniie des Sciences ]Morales et among the Germans were commended Politi(|ues, pour Novembre, 1843), to a lord and placed under his pro- especially the latter, dissent from this tection, in return for their own fidelity explication of tlic origin of feudal and service. (Institutions Carolin- jxjlity, which was in no degree of a giennes, liv. i. ch. i. §2.) It is a c/o//(C6Y/c character. The most we could subject, as he conceives, of the highest allow is, that territorial jurisdiction importance in these inquiries, being, was extended to feudal vassals, by in fact, the real origin of the feudal analogy to that which the patron, or j)olity afterwards established in Eu- chief of the mundium, had exercised rope; though, from the circumstances over those who recognised him as pro- of ancient Germany, it was of neces- tector, as well as over his family and sity a jjcrsonal and not a territ(n-ial servants. There is, nevertheless pcr- vassalage. It fell in very natuially haps, a larger basis of truth in ]M. with the similar princijile of commen- Leiuierou's system than they admit, dation existing in the lioman enii)ire. though I do not conceive it to explain This bold and original theory, how- the whole feudal system, ever, has not been admitted by his I 4 l:-20 COMMENDATION. [Ciiap. II. by the commendatiis would supply the place. M. Naudet (Mem. de I'Acad. du Inscript. vol. viii.) accumulates proofs of commendation : it is surprising that so little was said of it by the earlier antiquaries. One of his instances deserves to be mentioned. " Isti homines," says a writer of Charlemagne's age, " fuerunt liberi et ingenui; sed quod militiam regis non valebant exercere, tradiderunt alodos suos sancto Germano." * (p. 567.) We may per- haps infer from this, that the tenants of the Church were not bound to military service. " No general law," says M. Guizot (Collect, de Mem. i. 419.), " exempted them from it ; but the clergy endeavoured constantly to secure such an immunity, either by grant or by custom, which was one cause that their tenants were better off than those of laymen." The difference was indeed most inq)ortant, and must have prodigiously enhanced the wealth of the Church. But after the feudal polity became established, we do not find that there was any dispensation for eccle- siastical fiefs. The advantage of their tenants lay in the comparatively pacific character of their spiritual lords. It may be added, that from many passages in the laws of the Saxons, Alemanns, and Bavarians, all the " commendati " appear to liave been denominated vassals, whether they possessed benefices or not. That word afterwards implied a more strictly territorial limitation. Thus then, let the reader keep in mind, that the feudal system, as it is commonly called, was the general estab- lishment of a peculiar relation between the sovereign (not as king, but as lord) and his immediate vassals ; between these again, and others standing to them in the same relation of vassalage, and thus frequently through several links in the chain of tenancy. If this relation, and espe- cially if the latter and essential element, sub-infeudation, is not to be found, there is no feudal system, though there may be analogies to it, more or less remarkable or strict. But if he asks, what were the immediate causes of esta- blishing this polity, we must refer him to three alone : to * It will be rcniaiked that lihcri pruislicd ; " not only free, but gtiitle- and iiir/titui appear here to lie distin- men." Note G8.] COMMENDATION. 1'21 the grants of beneficiary lands to the vassal and his heirs, without which there could hardly be sub-infeudation ; to the analogous grants of official honours, particularly that of count or governor of a district ; and lastly, to the voluntaiy conversion of alodial into feudal tenure, through free land- holders submitting their persons and estates, by way of t'onimendation, to a neighbouring lord or to the count of a district. All these, though several instances, especially of the first, occurred much earlier, belong generally to the ninth century, and may be supposed to have been fully accomplished about the beginning of the tenth ; to M'hich })eriod therefore, and not to an earlier one, we refer the feudal system in France. We say in France, because our attention has been chiefly directed to that kingdom ; in none was it of earlier origin, but in some it cannot be traced so high. An hereditary benefice was strictly a fief, at least if we ])rcsume it to have implied military service ; hereditary governments were not : something more therefore was required to assimilate these, which were far larger and more important than donations of land. And perhaps it was only by degrees that the great chiefs, especially in the south, who, in the decay of the Caroline race, established their patrimonial rule over extensive regions, conde- scended to swear fealty, and put on the condition of vassals dependent on the Crown. Such at least is the opinion of some modern French wiiters, who seem to deny all sub- jection duiing the evening of the second and dawn of the third race. But if they did not repair to Paris or Laon in order to swear fealty, they kej)t the name of the reigning king in their charters. The hereditary benefices of the ninth century, or in other words, fiefs, preserved the nominal tie, and ke|)t France from utter dissolution. They deserve also the greater praise of having been the means of regenerating the national character, and giving its warlike hearini'' to the I'^rench j)eople ; not indeed as yet coll(>ctively, but in its separate centres of force, after the pusillanimous reign of Ciiarles the Bald. Thev produced much evil and 1'22 PRINCES IN THE EMPIRE. [Cuap. H. misery, but it is reasonable to believe that they preyented more. France was too extensive a kingdom to be go- "V'erned by a central administration, nnless Charlemagne had possessed the gift of propagating a race of Alfreds and Edwards, instead of Louis the Stammerers and Charles the Balds. Her temporary disintegration by the feudal system, was a necessary consequence ; without that system there would have been a final dissolution of the monarchy, and perhaps its conquest by barbarians. ()9. RELIEFS. Edit. 182G, p. 183. Edit. 1841, p. 121. It seems to have been generally the rule, in the cus- tomary law of France, that reliefs were not due, except on collateral succession. Ducange. 70. GUARDIANSHIP IN CHIVALRY. Edit. 1826, p. 190. Edit. 1841, p. 128. M. GuizoT observes on this (Hist, de la Civilisation en France, Le^on 39.), that the feudal incidents of guardian- ship in chivalry and marriage were moie frequent in France than I seemed to su])pose. 71. PRINCES IN THE EMPIRE. Edit. 182G, p. 194. Edit. 1841, p. 131. The Count of Anjou, under Louis VL, claimed the office of Great Senesclial of France ; that is, to carry dishes to NoTi; 72.] ANALOGIES TO FEUDAL SYSTE?.iS. 12?j tlie king's table on state days. (Sismondi, v. 13.5.) Thus the feudal notions of grand seijeanty prepared the way for the restoration of royal supremacy, as the military tenures had impaired it. The wound and the remedy came from tlie same lance. If the feudal system was incompatible ^vith despotism, and even, while in its full vigour, with legitimate authority, it kept alive the sense of a supreme chief, of a superiority of rank, of a certain subjection to an hereditary sovereign, not yet testified by unlimited obedience, but by homage and loyalty. 72. ANALOGIES TO FEUDAL SYSTEMS. Edit. 1825, p. 200. Edit. 1811, p. 133. ^ The advocates of a Roman origin for most of the insti- tutions Avhich we find in the kingdoms erected on the ruins of the empire, are naturally prone to magnify the analogies to feudal tenure which Rome presents to us, and even to deduce it, either from the ancient relation of patron and client, and that of personal commendation, wliich was its representative in a later age, or from the frontier lands granted in the third century to the L^eti, or barbarian soldiers, who held them, doubtless, subject to a condition of military service. And I am willing to confess, that these are mentioned too slightly in my text, as " seeming analogies, which vanish away when closely observed." The usage of coinnirndation es})ecially, so frecpient in tlie fifth century before the conquest of Gaul, as well as after- wards, does certainly bear a strong analogy to vassalage, and I have already pointed it out as one of its sources. It wanted, however, that definite relation to the tenure of land, which distinguished the latter. The royal Antrustio (whether the word coninicndntus were applied to him or not, but it was ])erha])s confined to Romans), stood bound by gratitude and loyalty to his sovereign, and ill a very dillereiit degree from a common subject ; but he 1^4 ANALOGIES TO FEUDAL SYSTEMS. [Cuap. II. was not perliaps a vassal till he had received a territorial benefice. The complexity of sub-iiifeudation could have no analogy in connnendation. The grants to veterans and to the Laeti 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 alodial freeholder was bound to render for the defence of the realm ; it was more commonly required, because the lands were on a barbarian frontier ; but the duty was not even very analogous to that of a feudal tenant.* The essence of a fief seems to be, that its tenant owed fealty to a lord, and not to the state or the sovereign ; the lord might be the latter, but it was not, feudally speaking, as a sovereign that he was obeyed. There is, therefore, sufficient to warrant us in tracing the real theory of feuds no higher than the Merovingian history in France; their full establishment, as has been seen, is considerably later. But the preparatory steps in the constitutions of the declining empire are of considerable importance ; and these I had passed over without suffi- ciently directing the reader to them, not merely as ana- logies, but as predisposing circumstances, and even germs to be subsequently developed. The beneficiary tenure of lands could not well be brought by the conquerors from Germany ; but the donatives of arms or precious metals bestowed by the chiefs on their followers, were also ana- logous to fiefs ; and, as the Roman institutions were one source of the law of tenure, so these were another. * If Gothofred is right in his con- tit. 20. c. 12.) Sir Francis Palgrave, striiction of the tenure of these Laeti, they however, says — "The duty of bearing were not even generally liable to this arms was insepariibly connected with part uf our ?ri«or/a Heces«/ 38.) I do not know that any later inquirers have adopted this hypothesis. 92. ROYAL COURT. Edit. 1826, p. 286. Edit. 1841, p. 191. The court of the palace possessed a considerable juris- diction from the earliest times. We have its judgments under the Merovingian kings. Thus in a diploma of Clovis IIL, A.D. 693, dated at Valenciennes — "Cum ad universorum causas audiendas vel recta judicia termi- nanda resideremus." (Rec. des Hist. iv. 67!^.) Lender the house of Charlemagne it is fully described by Hincmar, in the famous passage above mentioned. It was not so much in form a court of appeal as one acting by the sove- reign's authority, to redress the oppression of the subject by inferior magistrates. Mr. Allen has well rejected the singular opinion of Meyer, that an erroneous or corrupt judgment of the inferior court was not reversible by this royal tribunal, though the judges might be punished for giving it. (Inquiry into Royal Prerogative, Appendix, Notes 91, 92.] ROYAL COURT. 151 p. 29.) Tliougli, according to what is said by M. Beuo;- not, the ap])eal was not made in regular form, we can- not doubt that, where the case of injury by the inferior judge was made out, justice must be done by annulhno;' his sentence. The emperor or king often presided here ; or, in his absence, the count of the palace. Bishops, counts, household officers, and others constituted this court, which is not to be confounded with that of the seneschal, having only a local jurisdiction over the domains of the crown, and which did not continue under the house of Capet. (Beugnot, Registres des Arrets, vol. i. pp. 15. 18. in Documens Inedits, 1839.) This tribunal, the court of the palace, was not founded upon any feudal principle ; and M'hen the right of terri- torial justice and the subordination of fiefs came to be thoroughly established, it ought, according to analogy, to have been replaced by one wherein none but the great vassals of France should have sat. Such, however, was not the case. This is a remarkable anomaly, and a proof that the spirit of monarchy was not wholly extinguished. For, weak as was the crown under the first Ca])ets, their court, though composed of persons by no means the peers of all who were amenable to it, gave several judgments affecting some considerable feudataries, such as the count of Anjou under Robert. (Id. p. 22.). No court composed only of great vassals appears in the eleventh or twelfth centuries ; no notion of judicial subordination prevailed ; the vassals of the cro\vn sat with those of the duchy of France ; and latterly even clerks came in as assessors or advisers, thouoh without suffrage (p. 31.). But an im- portant event brought forward, for the first time, the true feudal principle. This was the summons of John, as duke of Normandy, to justify himself as to the death of Arthur. It has been often said, that twelve peers of France had appeared at the coronation of Philip-Augustus, in 1 179. This, however, a late writer has denied, and does not place them higher than the proceedings against John, in 1204. (Id. p. 44.) In civil causes, as has above been said, there had been several instances wherein the king's L 4 15^ MUNICIPAL INSTITUTIONS. [Chap. II. court had pronounceil judgment against vassals of the crown. The idea had gained ground that the king, by virtue of his full prerogative, communicated to all who sat in that court a portion of his own sovereignty. Such an opinion would be sanctioiied by the bishops, and by all who leaned towards the imperial theory of government, never quite eradicated in the Church. But the high rank of John, and the important consequences likely to result from his condemnation, forbad any irregularity of which advantage might be taken. John is alwavs said to have been sentenced, " judicio parium suorum; " whence we may conclude that inferior lords did not take a part. (Id. ibid.) And from that time we find abundant proofs of the ])eerage of Fiance, composed of six lay and six spi- ritual persons ; though upon this supposition Normandy was never a substantial member of that class, having only appeared fur a moment, to vanish in the next by its reunion to the domain. The feudal principle seemed now to have recovered strength ; a right which the vassals had never enjoyed, though in consistency their due, was formally conceded. But it was too late in the thirteenth century to render any new privilege available against the royal power. Though it was from that time an uncontested right of the peers to be tried by some of their order, this was construed so as not to exclude others, in any number, and with equivalent suffrage. One or more peers being present, the court was, in a later phrase, *' suffisamment garnie de pairs ; " and thus the lives and rights of the dukes of Guienne or Bur- S'undv were at the mercv of mere lawyers. 93. MUNICIPAL INSTITUTIONS. Edit. 1826, p. 297. Edit. 1841, p. 200. Savigxy, in his History of Roman Law in tlie Middle Ages, and Raynouard, in his Histoire du Droit Municipal NoTF. 93.] :\IUNICIPAL IXSTITUTIOXS. 15o (1828), have, since tlie first publication of this work in 1818, traced the continuance of municipal institutions, in several French cities, from the age of the Roman empire to the twelfth century, when the formal charters of com- nmnilies first appear. But it will render the subject clearer, if we look at the constitution which Rome gave to the cities of Italy, and ultimately of the provinces. We are not concerned with the privileges of Roman citizenship, whether local or personal, but with those appertaining to each city. These were originally founded on the republican institutions of Rome herself ; the su- preme power, so far as it nas conceded, and the choice of magistrates rested with the assembly of the citizens. But after Tiberius took this away from the Roman comitia to vest it in the senate, it appears that, either through imita- tion, or by some imperial edict, this example was followed in every provincial city. We find everywhere a class named " curiales," or " decuriones " (synonymous words), in whom, or in those elected by them, resided whatever authority was not reserved to the proconsul or other Roman magistrate. Though these words occur in early writers, it nmst be admitted that our chief knowledge of the internal constitution of provincial cities is derived from the rescripts of the later emperors, especially in the Theodosian Code. The decurions are several times mentioned by Pliny. In Greek or Asiatic towns, the word ^vjJ^Ti answered to curia, and ^(ju'/^i-Wr^g to decurio. Pliny refers to a lex Pompeia, probably of the great Pompey, which appears to have regulated the internal constitution, at least of the Pontic and Bithynian cities. According to this, the members of the council, or ^o-j'Ari, were named by certain censors, to whose list the emperor, in the time of Pliny, added a few by especial favour. (Plin. Epist. x. 11 cJ.") In later times, the decurions are said to have chosen their own members ; which can mean little more tban that the form of election was required, for birth or pro- perty gave an inchoate title. They were a local aristo- 154 MUNICIPAL INSTITUTIONS. [Cuap. II. cracy*, requiring- perhaps originally tlie qualification of wealth, which, in the time of Pliny, at least in Asia, was of a hundred thousand sesterces, or about 800/. (Epist. i. 190 But latterly it appears that every son of a decurion in- herited the rights, as well as the liabilities, of his father. We read, " qui origine sunt curiales," and " honor quem iiascendo meruit." Property, however, gave a similar title ; every one possessing twenty-five jugera of freehold, ought to be inscribed in the order. This title, honourable to Roman ears, ordo decurioHum, or simply ordo^ is always applied to them ; and it may be observed, by the way, that the word " order " was used as descriptive of the Christian clergy, by analogy to this abbreviated ex- pression. They were summoned on the Kalends of March to choose municipal officers, of whom the most remarkable were the duumvirs, answering- to the consuls of the im- perial city. These possessed a slight degree of ci\'il and criminal jurisdiction, and were bound to maintain the peace. They belonged, however, only to cities enjoying the jus Italicum, a distinction into which we need not now inquire ; and Savigny maintains that, in Gaul espe- cially, which we chiefly regard, no local magistrate, in a proper sense, ever existed ; the whole jurisdiction devol- ving on the imperial officers. This is far from the repre- sentation of Raynouard, who, though writing after Savigny, seems ignorant of his work, nor has it been adopted by later French inquirers. But another institution is highly remarkable, and does peculiar honour to the great empire which established it, that of Defensor Civitatis — a standing advocate for the city against the oppression of the provincial governor. His office is only known by the laws from the middle of the fourth century, the earliest being of Valerftinian and Valens, in 365 ; but both Cicero (Epist. xii. 5iy.') and Pliny (Epist. x. 3.) mention an Ecdicus with something * Though I use this word, which prasditi dignitate." (Cod. Theod. 12. expresses a general truth, yet, in strict- 1.6.) iiess of law, the dccurions were " nulhi Note 93.] MUNICIPAL INSTITUTIONS. * 155 like the same functions ; and Justinian always uses tliat word to express the Defensor Civitatis. He was chosen for five years, not by the curiales, but by the citizens at large. Nor could any decurion be defensor ; he was to betaken "ex aliis idoneis personis;" which Raynouard translates, '* among the most distinguished inhabitants ; " a sense neither necessary nor probable. (Cod. Theod. i. tit. xi. Ducange. Troja, iii. 1066. Raynouard, i. 710 The duties of the defensor will best appear by a pas- sage in a rescript of a. d. 385, inserted in the Code of Justinian : — " Scilicet, ut in ])rimis parentis vicem plebi exhibeas, descriptionibus rusticos urbanosque non patiaris affligi ; officialium insolentite et judicum procacitati, salva reverentia pudoris, occurras ; inorediendi cum voles ad judicem liberam habeas facultatem ; super exigendi damna, vel spolia plus petentium ab his quos liberorum loco tueri debes, excludas \_sic~\ ; nee patiaris quidquam ultra delegationem solitam ab his exigi, quos certum est nisi tali remedio non posse reparari." (Cod. i. 55. 4.) But the Defensores were also magistrates and preservers of order : — " Per omnes regiones in quibus fera et periculi sui nescia latronum fervet insania, probatissimi quique et districtissimi defensores adsint disciplinse, et quotidianis actibus prsesint, qui non sinant crimina impunita coalescere ; removeant patrocinia quse favorem reis, et auxilium scele- rosis impartiendo, maturari scelera fecerunt. (Id. i. 55. 6. See, too, Cod. Theod. iibi supra.) It may naturally be doubted whether the principles of freedom and justice, which dictated these municipal insti- tutions of the empire, were fully carried out in effect. Perhaps it might be otherwise, even in the best times — those of Trajan and the Antonines. But, in the decline of the empire, we find a striking revolution in the con- dition of the decurions. Those evil days rendered neces- sary an immense ])ressure of taxation ; and the artificial scheme of imperial policy, introduced by Diocletian, and perfected by Constantine, had for its main object to drain the resources of the provinces for the imperial treasury. The decurions were made liable to such heavy burthens. 156 MUNICIPAL INSTITUTIOXS. [Ciiap. II. tlieir responsibility for local as well as public charges was so extensive (in every case their private estates being re- quired to make up the deficiency in the general tax), that the barren honours of the office afforded no compensation, and many endeavoured to shun them. This responsibility, indeed, of the decurions, and their obligation to remain in the city of their domicile, as well as their frequent desire to escape from the burthens of their lot, is manifest even in the Digest ; that is, in the beginning of the third century (when the opinions of the lawyers therein collected were given), while the empire was yet unscathed ; but the evil became more flagrant in subsequent times. The laws of the fourth and fifth centuries, in the Theodosian Code, per- petually compel the decurions, under severe penalties, to remain at home, and undergo their onerous duties. These laws are 192 in number, filling the first title of the twelfth book of that Code. Guizot indeed, Savigny, and even Raynouard (though his bias is always to magnify munici- pal institutions), have drawn from this source such a picture of the cojidition of the decurions in the last two centuries of the western empire, that we are almost at a loss to reconcile this absolute impoverishment of their order with other facts which apparently bear witness to a better state of society. For, greatly fallen as the decurions of the provincial cities must be deemed, in comparison with their earlier condition, there was still, at the beginning of the fifth century, especially in Gaul, a liberal class of good family, and not of ruined fortimes, dwelling mostly in cities, or sometimes in villas or country houses not remote from cities, from whom the Church was replenished, and who kept up the politeness and luxury of the empire.* The senators or senatorial families are often mentioned ; and by the latter term we perceive that an hereditary nobility, whatever might be the case with some of the * The letters of Sidonius Apol- better before. Salvian, too, in his de- linaris bear abundant testimony to clamation against the vices of the pro- this, even for his age, which was after vincials, gives us to understand that the middle of the century ; and the they were the vices of wealth, state of Gaul must have been much Note 9.3.] MUNICIPAL INSTITUTIONS. ]57 barbarian nations, subsisted in public estimation, if not in privilege, among their Roman subjects. The word senate appears to be sometimes used for the curia at large* ; but when we find senatorius ordo, or senatorium fjeniis, we may refer it to the higher class, who had served municij)al ofhces, or had become privileged by imperial favour, and to whom the title of " clarissimi " legally belonged. It seems probable that this appellative senator, rather than senior, has given rise to seigneur, sire,, and the like, in modern languages. The word senatorius- ajjpears early to have acquired the meaning, noble or gentlemanlike ; though I do not find this in the dictionaries. This is, I conceive, what Pliny means by the " quidam senatorius decor," which he ascribes to his young son-in-law Acilia- nus. (Epist. i. 14.) It is the air nohJe^ the indescribable look, rarely met with except in persons of good birth and liberal habits. In the age of Pliny this could only refer to the Roman senate, t A great number of laws in this copious title of the Theodosian Code, many of which are cited by Raynouard (vol. i. p. 80.), manifest a distinction between the curia and the senate, or, as it is sometimes called, " nobilissima curia ;" and though perhaps, in certain instances, they may be referred to tlie great senates of Rome or Con- stantinople, which were the fountains of all provincial dignity of this kind, there are others which can only be explained on the supposition that they relate to de- curions, as it were enierifi, and j)romoted to a higher rank. Thus one of Valentinian and Valens, in 3()4, which is the earliest that seems explicit : — " Nemo • This was ratlier by aiiahigy than frcd, hi k\:c. S5. sujira citat. ) Some in strictness: thus, " Sua', ^i sic did opor- modern wiitcrs too much confound all tet, cuiiie senatorcm. (Lib. 12. tit. 1. who are denominated senators with tlie lex 85.) But jjcrliaps the language in curialcs. diH'erent i)arts of the em|)ire, or in dif- f I presume that Sidonius Apol- ferent jieriods, might not l)c the same, linaris means something complinicn- The law just cited is of Arcadius. tary, where he says — " Prandel)aini:s But INIiijorian says, in the next age breviter, copiose, senatorium ad mo- and in the West, of the curiales, rem ; quo insitum institutunKjue multas " (Juorimi coctum recte appcllavit an- cpulas paucis par()i)sidil)us apjjoni." — tiquitns minorcm scnatuin." (Golho- ICpist. ii. 9. 158 MUNICIPAL INSTITUTIONS. [Chap. II. ad ordinem senatoriiiin ante functionem omnium munerum inunicij3a]ium senator accedat. Cum autem universis trans- acts, patriae stipendia fuerit emensus, tum eum ita ordinis senatorii complexus excipiet, ut reposcentium civium flagi- tatio non fatiget." (Lex. Ivii.) The second title of the sixth book of the Theodosian Code, " De Senatoribus," is un- fortunately lost ; but Gothofred has restored a Paratitlon from other parts of the same code, and especially from the title above mentioned, in the twelfth book, by reference to which this part of the imperial constitution will be best understood. It appears difficult to explain every passage. But on the whole we cannot hesitate to agree with Guizot and Savigny, that the name of senator was given to a j)rivileged class in the provincial cities, who having served through all the public functions of the curia, were entitled to a legal exemption in future, and ascended to the dignity of " clarissimi." Many others, independent of the decurions, obtained this rather by the emperor's favour, or by the performance of duties which regularly led to it. They were nominated by the emperor, and might be removed by him ; but otherwise their rank was hereditary. Those decurions, therefore, who could bear the burthens of muni- cipal liabilities without impoverishment, rose so far above them, that their families were secure in wealth as well as privilege. Thus the word senator must be taken, in re- lation to them, as merely an aristocratic distinction, without regard to its original sense.* It is sufficiently clear that senatorial families, by whatever means separated from the rest, constituted the nobility of Gaul. Thus we read in Gregory of Tours (lib. ii.c. ^1. suh ann.4rj5.^ — " Sidonius vir secundum sseculi dignitatem nobilissimus, et de primis Galliarum senatoribus, ita ut filiam sibi Aviti imperatoris in matrimonio sociarit." Another is called, " vir valde nobilis et de primis senatoribus Galliarum." Other pas- * For this distinction between Ciir/a- ISO. 182, 183.; all of which throw Ics and senatores, the reader may con- some light upon, or relate to, this suit the title of the Theodosian code rather obscure subject. Guizot, Sa- on Decurions, above cited, Leg. 82. 90. vigny, and Raynouard are the modern 93. 108. 110, 111. 118. 122. 129, 130, guides. Note 9;}.] MUNICIPAL INSTITUTIONS. 1,0g- IGO MUNICIPAL INSTITUTIONS. [Chap. II. iiize the efficacy of episcopal government in sustaining iniuiicipal rights during the first dynasty. The bishops were a link, or rather a shield, between the barbarians who respected them, and the people whom they protected, and to whose race they, for a long time, commonly belonged. But the bishop was legally, and sometimes actually, elected, as the defensor had been, by the people at large. This, indeed, ceased to be the case before the reign of Charle- magne ; and the crow^^, or (in the progress of the feudal system) its chief vassals, usurped the power of nomination, though the formality of election was not abolished. Certain it is, that from this analogy to the defensor, and from the still closer analogy to the feudal vassal, after royal grants of jurisdiction and immunity became usual, not less than by the respect due to his station, the bishop became as much the civil governor of his city, as the count was of the rural district. This was a great revolution in the internal history of citieSj and one which generally led to the discoistinuance of their popular institutions ; so that after the reign of Char- lemagne, if not earlier, we may perhaps consider a muni- cipality choosing its own officers, as an exception, though not a very unfrequent one, to the general usage. But in- stances of this are more commonly found to the south of the Loire, where Roman laws prevailed, and the feudal spirit was less vigorous, than in the northern provinces. Thus Raynouard has deduced the municipal government of ten cities from the fifth to the t^velth century. Seven of these are of the south — Perigueux, Bourges, Aries, Nismes, Marseilles, Toulouse, and Narbonne ; three only of the north — Paris, Rheims, and Metz. (Vol. ii. p. 1770 ^^ seems, how- ever, more than probable, that these were not the whole ; even in the north, Meaux and Chalons might be added, and, what in early times was undoubtedly to be reckoned a Frank city, Cologne. The corporate character of many of these is displayed by their coins. '* Civitas Massiliensis," or " Narbonensis," will be found on the reverse of pieces bearing the heads of the French kings of the three dynas- ties, especially under Louis the Debonair, and Charles the Note 93.] MUNICIPAL AUTHORITIES. Kjl Bald (p. 152.). But it seems to me that the evidence of a popular assembly or curia, even in Rheims, which has always been wont to boast peculiarly of the antiquity of her privileges, is weak comparatively with what M. Raynouard has alleged for the cities of Provence. As to Paris, it is absolutely none at all. This assembly appears to have hardly survived in the north of France, and to have been replaced by scahini. These were originally chosen by the citizens, but gradually on the bishop's nomination. Those of Rheims appear in 847> exercising their functions under an officer of the archbishop. (Archives Administratifs de la Ville de Rheims, Preface, p. 7* i" Documens Inedits, 1839.) Tlie editor, however (M. Varin), inclines to adopt the theory of a Roman origin for the privileges of that city. The citizens called themselves in 991, addressing- the archbishop, '*cives tui ; " whence M. Varin infers that they took an oath of allegiance to that prelate, and that their claims to a prescriptive independence must be given up. (Vol. I. p. 150.) Such independence (that is, of all but the sovereign) can at most only be admitted as to the great cities of Provence and Languedoc, which, in the twelfth and thirteenth centuries, entei'ed into treaties with foreign powers, and conducted themselves as independent republics, though perhaps under the nominal superiority of the counts. Emulous, as it appears, of Italian liberty, they adopted the government by consuls elected by the commu- nity. And this honourable title was given to the chief magistrates in most cities south of the Loire, though a different system, as we shall see, prevailed on the other bank. It is evident that if extensiv^e privileges of internal go- vernment had been preserved in the north of France, there could have been no need for that great movement towards the close of the eleventh century, which ended in esta- blishing civic freedom ; much less could the contemporary historians have spoken of this as a new era in the state of France, The bishops w^ere now almost sovereign in their cities ; the episcopal, the municipal, the feudal titles, con- spired to enhance their power ; and from being the pro- lyl 162 MUNICIPy^L AUTHORITIES. [Chap. II. tectors of the people, from the glorious office of def en- sores civitatis, they had, in many places at least, become odious by their own exactions. Hence the citizens of Cambray first revolted against their bishop in 957» and, after several ineffectual risings, ultimately constituted themselves into a community in IO76. The citizens of Mans, about the latter time, had the courage to resist William, duke of Normandy ; but this generous attempt at freedom was premature. The cities of Noyon, Beau- vais, and St. Quentin, about the beginning of the next century, were successful in obtaining charters of immunity and self-government from their bishops ; and where these were violated, on one side or the other, the king, Louis VI., came in to redress the injured party, or to compose the dissensions of both. Hence arose the royal charters of the Picard cities, which soon extended to other parts of France, and were used as examples by the vassals of the crown. This subject, and especially the struggles of the cities against the bishops before the legal establishment of communities by charter, is abundantly discussed by M. Thierry, in his Lettres sur I'Histoire de France. But even where charters are extant, they do not always create an incorporated community, but, as at Laon, recognise and regulate an internal society already established. (Guizot, Civilisation en France, Le9on 47.) We must here distinguish the cities of Flanders and Holland, which obtained their independence much earlier ; in fact, their self-government goes back beyond any as- signable date. (Sismondi, iv. 432.) They appear to have sprung from a distinct source, but still from the great reservoir of Roman institutions. The cities on the Rhine retained more of their ancient organisation than we find in northern France. The Roman language, says Thierry, had here perished ; the institutions survived. At Cologne we find from age to age a corporation of citizens exactly resembling- the curia, and whose members set up hereditary pretensions to a Roman descent ; we find there a particular tribunal for tlie " cessio bonorum," a part of Roman law unknown to the old jurisprudence of Note 93.] MUNICIPAL AUTHORITIES. l63 Germany as much as to that of the feudal system. In the twelfth century the free constitution of Cologne passed for ancient. From Cologne and Treves, municipal rights spread to the Rhenish cities of less remote origin, and reached the great communities of Flanders and Brahant. Thierry hias quoted a remarkable passage from the Life of the Empress St. Adelaide, who died in 999, whence we may infer the continuance, at least in common estimation, of Roman privileges in the Rlienish cities. " Ante duo- decimum circiter annum obitus sui, in loco qui dicitur Salsa (Seltz in Alsace), urbem decrevit fieri sub lihertate Romano,^ quern affectum postea ad perfectum perducit eifectum. (Recits des T. M. i. 274.) But the acuteness of this writer has discovered a wholly different origin for the communes in the north of France. He deduces them from the old Teutonic institution of guilds, or fraternities by voluntary compact, to relieve each other in ])overty, or to protect each other fvom injury. Two essential characteristics belonged to them ; the common banquet, and the common puise. They had also in many instances a religious, sometimes a secret, ceremonial to knit more firmly the bond of fidelity. They became, as usual, suspicious to governments, as se- veral capitularies of Charlemagne proxe. But they spoke both to the heart and to the reason in a voice which no government could silence. They readily became con- nected with the exercise of trades, with the training of apprentices, with the traditional rules of art. AVe find them in all Teutonic and Scandinavian countries ; they are frequently mentioned in our Anglo-Saxon documents, and are the basis of those corporations which the Norman kings recognised or founded. Tlie guild was, of course, in its primary character a personal association ; it was in the state, but not the state ; it belonged to the city without embracing all the citizens ; its purposes were the good of the fellows alone. But when their good was inseparable from that of their little country, their walls and churches, the ])rinciple of voluntary association was readily extended; and from the jirivate guild, possessing already the vital 164 MUNICIPAL AUTHORITIES. [Chap. II. spirit of faithfulness and brotherly love, sprung the sworn community, the body of citizens, bound by a voluntary but perpetual obligation to guard each other's rights against the thefts of the weak or the tyranny of the powerful. The most remarkable proof of this progress from a merchant guild to a corporation, is exhibited in the local history of Paris. No mention of a curia or Roman mu- nicipality in that city has been traced in any record : we are driven to Raynouard's argument — Could Paris be destitute of institutions which had become the right of all other cities in Gaul ? A couple of lines, however, from the poem of Gulielmus Brito, under Philip Augustus, are his only proof (vol. ii. p. 219.). But at Paris there was a great college or corporation of nautcB or ynarchands d'eau ; that is, who supplied the town with commodities by the navigation of the Seine. * These, indeed, do not seem to be traced very far back, but the necessary do- cuments may be deficient. They appear abundantly in the twelfth century, with a provost and scahini of their own. And to this body the kings in that age conceded certain rights over the inhabitants. The arms borne by the city, a ship, are those of the college of nautce. The subsequent process by which this corporation slid into a municipality is not clearly developed by the writer to whom I must refer. Thus there were several sources of the municipal insti- tutions in France ; first, the Roman system of decurions, handed down prescriptively in some cities, but chiefly in the south ; secondly, the German system of voluntary societies or guilds, spreading to the whole community for a common end ; thirdly, the forcible insurrection of the inhabitants against their lords or prelates ; and lastly, the charters, regularly granted by the king or by their immediate superior. Few are likely now to maintain the * If an inscription quoted by tlie as a corporate institution under Tibe- editors of Ducange, voc. Nautte, be rius. But this must prima facie bo genuine, the Nautae Parisiaci existed suspicious in no trifling degree. Note 93.] MUNICIPAL AUTHORITIES. l65 old theory of Robertson, that the king's of France en- couraged the conniiunities, in order to make head \Aith their help against the nobility, Avhich a closer attention to history refutes. We must here, however, distinguish the corporate towns or communities from another class, called burgages, bourgeoisies. The chatelains encouraged the growth of villages around their castles, from whom they often derived assistance in war, and conceded to these burgesses some privileges, though not any municipal independence. Guizot observes, as a difference between the curial system of the empire and that of the French communes in the twelfth century, that the former aa^s aristocratic in its spirit ; the decurions filled up vacancies in their body, and ultimately their privileges became hereditary. But the latter were grounded on poj^ular election, though with certain modifications as to eligibility. Yet some of the aristocratic elements continued among the communes of the south. (Le9on 48.) It is to be confessed that while the kings, from the end of the thirteenth century, altered so much their former policy as to restrain, in great measure, and even in some instances to overthrow the liberties of French cities, there was too much pretext for this in their lawless spirit and proneness to injustice. The better class, dreading the populace, gave aid to the royal authority, by adjnitting bailiffs and provosts of the crown to exercise jurisdiction within their walls. But by this the privileges of the city were gradually subverted. (Guizot, Le9on 49- Thierry, Lettre xiv.) The ancient registers of the parliament of Paris, called Glim, prove this contimial interference of the crown to estaldish peace and order in towns, and to check their encroachment on the rights of others. " Nulle part," says M. Beugnot, " on ne voit aussi bien (jue les com- munes etaient un instrument puissant pour operer dans I'etat de grands et d'heureux changemens, mais non une institution qui eut en elle-meme des conditions de duree." (Registres des Arrets, vol. i. p. \[Y2. in Documens Inedits, 1839.) M n 166 MUNICIPAL AUTHORITIES. CChap. 11. A more favourable period for civic liberty commenced and possibly terminated with the most tyrannical of French kings, Louis XI. Though the spirit of rebellion, which actuated a large part of the nobles in his reign, was not strictly feudal, but sprung much more from the com- bination of a few princes, it equally put the crown in jeopardy, and required all his sagacity to withstand its encroachments. He encouraged, therefore, with a policy unusual in the house of Valois, the Tiers Etat, the middle orders, as a counterpoise. What has erroneously been said of Louis VJ. is true of his subtle descendant. '* His ordinances," it is remarked by Sismondi (xiv. 314.), "are distinguished by liberal views in government. He not only gave the citizens, in several places, the choice of their magistrates, but established an urban militia, training the inhabitants to the use of arms, and placing in their hands the appointment of officers." And thus, at the close of our mediaeval period, we leave the municipal authority of France in no slight vigour. It may only be added that, for miscellaneous information as to the French communes, the reader should have recourse to that great repository of curious knowledge, the *' Histoire des Fran9ais, par Monteil, Siecle XV." The continuance of Italian municipalities has been more disputed of late than that of the French, which both Sa- vigny and Raynouard have placed beyond question. The former of these writers maintains, that not only under the Ostrogoths and Greeks (the latter indeed might naturally be expected), we have abundant testimony to the ordo decurionum and other Roman institutions in the Italian cities, but that, even under the Lombard dominion, the same privileges were unimpaired, or at least not sub- verted. This is naturally connected with the general question as to the condition of the natives in that period ; those who deny them any rights of citizenship or even protection by the law, will not be inclined to favour the supposition of an internal jurisdiction. Troja accordingly, following older Avriters, rejects the notion of civic govern- ment in those cities which endured the Lombard yoke, Note 94] COMPAGXIES d'oRDONNANCE. iGj and elaborately refutes the proofs alleged by Savigny. In this, however, he does not seem always successful ; but the early records of Italian communities are by no means so decisive as those that we have found in France. Liutprand, as Troja conceives, established communities of Lombards alone. But he suggests that even before the reign of Liutprand, there may have been such a district government as we find mentioned by Tacitus among the Germans ; and this might possibly be deno- minated by the Lombards curia or oi'do, in imitation of the Roman names. If therefore, we meet with these terms in the laws or records of Italy before Charlemagne, there is no reason why they should not relate to Lombards (p. 125.). This is hardly, perhaps, a conjecture that will be favoured. Charlemagne, however, when he introduced the distinction of personal law, constituted in every city a new Lombard community, taking its name from the most numerous people, but in which each nation chose its own scabini or judges (p. 295.). 94. COMPAGNIES D'ORDONNANCE, Edit. 1826, p. 317. Edit. ]841, p. 202. SiSMONDl observes (vol. xiii. p. 352.) that very little is to be found in historians about the establishment of these compagnies d'ordonnance, though the most important event in the reign of Charles VII. The old soldiers of fortune who pillaged the country, either entered into these companies or were disbanded, and after their dispersion were readily niade amenable to the law. This writer is exceedingly full on the subject. M 4 168 NOBLES EXCLUDED FROM TRADE. [Chap. IIL CHAP. IIL ITALY. [)5. BERENGER. Edit. 1826, p. 327. Edit. 1841, p. 220. Berenger being grandson, by a daughter, of Louis the Debonair, may be reckoned of the Carlovingian family. He was a Frank b?/ law, according to Troja, who denies to him and his son, Berenger IL, the name of Italians. It was Otho I. that put an end to the Frank dominion. (Storia d'ltalia, v. 357.) " Or gia tutto all' apparir degli Ottoni si cangia da capo in Italia, nel modo stesso che tutto erasi cangiato alia venuta de' Franchi. Le citta Longobarde prendono altra faccia, la possanza de' vescovi s' aumenta, i patti fra il sacerdozio e 1' imperio guardano a piu vasto scopo, ed i pontifici Romano sono dalla forza delle cose chiamati a tenere il freno intellettuale della civita de' popoli di tutta Europa." Troja deduces the Italian communes — " dopo il mille" from a German rather than a Roman origin. " La sono veramente i comuni dov' e la spada per difen- dergli ; ma nel regno Longobardico da lunga stagione la spada pill non pendeva dal fianco del Romano." (p. 068.) 96. NOBLES EXCLUDED FROM TRADE. Edit. 1826, p. 483. notef. Edit. 1841, p. 323. note*. This prohibition was by a law, the date of which has been disputed, but enacted, according to Daru, in 1400. It Notes 95 — 98.] REVENUES OF VENICE. 169 was little regarded ; the nobility have almost alu'ays par- taken of the ])rofits of trade by secret partnership with merchants. (Hist, de Venise, vol. i. p. 589.) 97. FALL OF VENICE. Edit. I82G, p. 485. Edit. 1841, p. 325. The circumstances to which Venice was reduced in her last agony by the violence and treachery of Napoleon, and the apparent impossibility of an effective resistance, so fully described by Darn, and still better by Botta, induce me to modify the severity of this remark. I should add, that the last doge, Manini, is not buried in the church of the Scalzi, as by a lapse of memory I have said in my note, but in that of the Jesuits. The former church was built by the contribution of noble families, among others the Manini, who have their own chapel, and most of whom are interred therein. 98. REVENUES OF VENICE. Edit. 1826, p. 489. Edit. 1841, p. 327. I SUSPECT that 1,000,000 ducats is a mistake of the printer, overlooked at the moment, and running through all the editions. For I find the figures in Daru, and on reference, in Sanuto himself, to be 1,()54,000. The cal- culations, however, are so strange and manifestly inexact, that they deserve little regard. Daru has given them more at length (Hist, de Venise, vol. ii. j). 120.5.) The revenues of Venice, which had amounted to 996,^290 ducats in 1423, were but 945,7.30 in 14(i9, notwithstanding her acquisition, in the mean time, of Brescia, Bergamo, Ra- venna, and Crema. (Id. ii. 462.) They increased con- 170 STATISTICAL ESTIMATES. [Chap. III. siderably in the next twenty years. The taxes, however, were light in the Venetian dominions ; and Daru con- ceives the revenues of the repubhc, reduced to a corn price, to have not exceeded the vahie of 11,000,000 francs at the present day (p. 542.). 99. STATISTICAL ESTIMATES. Edit. 1826, p. 533. Edit. 1841, p. 356. These estimates are not quite accurate as to Venice, and probably much less so as to other states. Notes 99, 100.] COUNT JULIAI>r. I7I CHAP. IV. SPAIN. 100. COUNT JULIAN. Edit. 182G, vol. ii. p. 3. Edit. 184], vol. i. p. 369. 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 nar- ratives of every historian. It cannot, however, be traced in extant writings higher than the eleventh century, when it appears in the Chronicle of the Monk of Silos. There are Spanish historians of the eighth and ninth centuries ; m the former Isidore, bishop of Beja (Pacensis), who wrote a chronicle of Spain ; in the latter, Paulus Diaconus of Merida, Sebastian of Salamanca, and an anonymous chronicler. It does not appear, however, that these d\^'ell much on Roderic's reign. (See Masdeu, Historia Critica de Espana, vol. xiii. p. 182.) The most critical investi- gators of history, therefore, have treated the story as too apocryphal to be stated as a fact. A sensible writer in the History of Spain and Portugal, published by the So- ciety for the Diffusion of Useful Knowledge, has defended its probability, quoting a passage from Ferreras, a Spanish writer of the eighteenth century, whose authority stands high, and who argues in favour of the tradition from the brevity of the old chroniclers who relate the fall of Spain, and from the want of likelihood that Julian, who had hitherto defended his country ^vith great valour, would have invited the Saracens, except through some strong motives. This, if we are satisfied as to the last fact, ap- pears plausible ; but another hypothesis has been sug- 17'2 COUNT JULIAN. [Chap, IV. gested, and is even mentioned by one of the early writers, that Juhan, being of Roman descent, was ill-affected to the Gothic dynasty, who had never attached to themselves the native inhabitants. This I cannot but reckon the less likely explanation of the two. Roderic, who became arch- bishop of Toledo in 1208, and our earliest authority after the monk of Silos, calls Julian, " vir nobilis de nobili Gothorum prosapia ortus, illustris in officio Palatino, in armis exercitatus," &c. (See Schottus, Hispania Illus- trata, ii. 63.) Few, however, of those who deny the truth of the story, as it relates to Cava, admit the defec- tion of Count Julian to the Moors, and his existence has been doubted. The two parts of the story cohere together, and we have no better evidence for one than for the other. Southey, in his notes to the poem of Roderic, says, "The best Spanish historians and antiquaries are persuaded that there is no cause for disbelieving the uniform and concur- rent tradition of both Moors and Christians." But this is on the usual assumption, that those are the best who agree best with ourselves. Southey took, generally, the credu- lous side, and his critical judgment is of no superlative value. Masdeu, in learning and laboriousness the first Spanish antiquary, calls the story of Julian's daughter "a ridiculous tale, framed in the age of romance, when his- tories were thrust aside (arrinconadas), and any lovetale was preferred to the most serious truth." (Hist. Crit. de Espana, vol. x. p. 223.) And when, in another passage (vol. xii. p.().), he recounts the story at large, he says that the silence of all writers before the monk of Silos " should be sufficient, in my opinion, to expel from our history a romance so destitute of foundation, which the Arabian romancers doubtless invented for their ballads." A modern writer of extensive learning says: " This fa- ble which has found its way into most of the sober his- tories of Spain, was first introduced by the monk of Silos, a chronicler of the eleventh century. There can be no doubt that he borrowed it from the Arabs, but it seems hard to believe that it was altogether a tale of their inven- tion. There are facts in it which an Arab could not have Note 100.] COUNT JULIAN. 173 invented, unless lie drew them from Christian sources ; and, as I shall sho^v hereafter, the Arabs knew and con- sulted the writing's of the Christians." (Gayangos, His- tory of the Mohammedan Dynasties of Spain, vol. i. p. 513.) It does not appear to be a conclusion from this passage that the story is a fable. For if a chronicler of the eleventh century borrowed it from the Arabs, and they again from Christian sources, we get over a good deal of the chasm of time. But if writers antecedent to the monk of Silos have related the Arabian invasion and the fall of Roderic, without alluding to so important a ])oint as the treachery of a great Gothic noble, it seems difficult to resist the inference from their silence. Gayangos investigates in a learned note (vol. i. p. 537.) the following points: — By whom and when was the name of Ilyan, the Arabic form of Julian, first introduced into Spanish history ? Did such a man ever exist ? What were his country and religion ? Was he an independent prince, or a tributary to the Gothic monarchs ? What part did he take in the conquest of Spain by the Arabs ? The account of Julian, in the Chronicon Silense, ap- pears to Gayangos indisputably borrowed from some Arabian authority ; and this he proves by several writers from the ninth century downwards, " all of whom mention more or less explicitly, the existence of a man living in Africa, and named Ilyan, who helped the Arabs to make a conquest of Sj)ain ; to which I ought to add, that the rape of Ilyan's daughter and the circumstances attending it may also be read in detail in the Mahommedan authors who preceded the monk of Silos." The result of this learned writer's investigation is, that Ilyan really existed, that he was a Christian chief, settled, not in Spain, but on the African coast, and that he betrayed, not his country (except indeed as he was probably of Spanish descent), but the interests of his religion, by assisting the Saracens to subjugate the Gothic kingdom.* * The Arabian writer whom Ga- speaks of Ilyan as governor of Couta, yangos translates, one of late date, but tells the story of Cava in the usuai 174 COUNT JULIAN. [Chap. IV. The story of Cava is not absolutely overthrown by this hypothesis, though it certainly may be the invention of some Christian or Arabian romancer. It is perfectly true that of itself it contains no apparent improbability. In- juries have been thus inflicted by kings, and thus resented by subjects. But for this very reason it was likely to be invented ; and the unwillingness with which many seem to surrender so romantic a tale, attests the probability of its obtaining currency in an uncritical period. We must reject it as false or not, according as we lay stress on the negative argument from the silence of very early writers (an argument, strong even as it is, and which would be insuperable if they were less brief and imperfect), and on the presumptions adduced by Gayangos, that Julian was not a noble Spaniard ; but we cannot receive this celebrated legend at any rate with more than a very sceptical assent, not sufficient to warrant us in placing it among the authentic facts of history. manner. The Goths may very proba- be incompatible with his being truly a bly have possessed some of the African Spaniard. Ilyan is evidently not an coast ; so tliat the residence of Julian European form of the name. on that side of the straits would not Notes 101, 102.] PARTITION OF GREAT FIEFS. 175 CHAP. V. GERMANY. 101. SUZERAINTY OF GERMANY OVER FRANCE. Edit. 1S2G, vol. ii. p. 91. Edit. 1841, vol. i. p. 42S. This acknowledg'ment of sovereignty in Arnulf king" of Germany, who did not even pretend to be em])eror, by both the claimants of the throne of France, for such it virtually was, though they do not appear to have rendered homage, cannot affect the independence of the crown in that age, which had been established by the treaty of Verdun in 843, but proves the weakness of the competitors, and their want of patriotism. In Eudes it is more remark- able than in Charles the Simple, a man of feeble character, and a Carlovingian by birth. 102. PARTITION OF GREAT FIEFS. Edit. 1826, vol. ii. p. 125. Edit. 1841, vol. i. p. 446. Notwithstanding these subdivisions, and the most re- markable of those which I have mentioned are of a date rather subsequent to the middle ages, the antagonist principle of consolidation by various means of ac({uisition was so actively at work that several princely houses, es- pecially those of Hohenzollern or Brandeburg, of Hesse, Wirtemburg, and the Palatinate, derive their importance from the same era, the fourteenth and fifteenth centuries, in which the prejudice agaiust partition was the strongest. And thus it it will often be found in private ])atrimonies; the tendency to consolidation of proj)erty works more ra- pidly than that to its disintegration by a law of gavelkind. 176 CHARACTER OF FREDERIC III. [Cuap. V. 103. CHARACTER OF FREDERIC III. Edit 1826, vol. ii. p.. 124. Edit. 1841, vol. i. p. 450. Ranke has drawn the character of Frederic III. more favourahly, on the whole, than preceding historians, and with a discrimination which enables us to account better for his success in the objects which he had at lieart. *' From his youth he had been inured to trouble and adversity. When comjielled to yield, he never gave up a point, and always gained the mastery in the end. The maintenance of his prerogatives w^as the governing prin- cij)le of all his actions, the more because they acquired an ideal value from their connection with the imperial dig- nity. It cost him a long and severe struggle to allow his son to be crowned king of the Romans ; he wished to take the supreme authority undivided with him to the grave : in no case would he grant Maximilian any inde- pendent share in the administration of government ; but kept him, even after he was king, still as " son of the house;" nor would he ever give him any thing but the countship of Cilli ; " for the rest he would liave time enough." His frugality bordered on avarice, his slow- ness on inertness, his stubbornness on the most determined selfishness ; yet all these faults are removed from vul- garity by high qualities. He had at bottom a sober depth of judgment, a sedate and inflexible honour ; the aged prince, even when a fugitive imploring succour, liad a personal bearing which never allowed the majesty of the empire to sink." (Hist. Reformation (Translation), vol. i. p. 103.) A character of such obstinate passive resistance was well fitted for his station in that age ; spite of his poverty and weakness, he was hereditary sovereign of extensive and fertile territories ; he was not loved, feared, or re- spected, but he was necessary ; he was a German, and therefore not to be exchanged for a king of Hungary or Note 103.] CHARACTER OF FREDERIC III. 177 Bohemia ; he was, not as Frederic of Austria, but as elected emperor, the sole hope for a more settled rule, for public peace, for the maintenance of a confederacy so ill held together by any other tie. Hence he succeeded in what seemed so difficult — in procuring the election of Maximilian as king of the Romans ; and interested the German diet in maintaining the Burgundian inheritance, the western provinces of the Netherlands, which the latter's marriage brought into the house of Austria. N 178 GENUINENESS OF THE KORAN. [Cuap. VI. CHAP. VI. GREEKS AND SARACENS. 104. GENUINENESS OF THE KORAN. Edit. 1826, vol. ii. p. 163, note *. Edit. 1841, vol. i. p. 475. note *, I APPREHEND tlhit there are no doubts worth naming* with respect to the genuineness of tlie Koran, as the work of Mohammed himself. Note 105.] ANGLO-SAXON CHURCH. 179 CHAP. VII. ECCLESIASTICAL POWER. This Chapter, though written more rapidly than any otlier of equal length, has been considered by some the best in the present Work. I have not seen cause for much alteration ; but perhaps the tone taken towards the mediaeval Church is in some places too severe, or at least too one-sided. The same remark might be made as to the ninth Chapter. It is exceedingly difficult to hold the scales, on this subject, with impartiality, and yet without that indifference to moral right, which the habit of perpetual indulgence to past ages sometimes has a tendency to generate. Guizot is a model of justice and candour ; but I was trained in the Protestant school of ecclesiastical history, and in that of the eighteenth century, which now and then failed in these points. 10.5. ANGLO-SAXON CHURCH. Edit. 1826, vol. ii. p. 204. Edit. 1841, vol. i. p. 502. Palgrave has shown that the Anglo-Saxon clergy were not exempt from the trinoda necessitas imposed on all alo- dial proprietors. They were better treated on the Conti- nent ; and Boniface exclaims, that in no part of the world was such servitude imposed on the Church as among the English. (English Commonwealth, i. 158.) But when we look at the charters collected in Kemble's Codex Di- plomaticus (most or nearly all of them in favour of the Church), we shall hardly think they were ill off", though they might be forced sometimes to repair a bridge or send their tenants against the Danes. N 2 180 GRANT OF ETHEL WOLF. [Chap. YIL 106. PAROCHIAL MINISTERS. Edit. 1826, vol. ii. p. 205. Edit. 1841, vol. i. p. 503. These were not always itinerant; commonly, perhaps, they were dependants of the lord, appointed by the bishop on his nomination Lehuerou, Institut. Caroling'iennes, p. 526. who quotes a capitulary of the emperor Lothaire in 825. "De clericis vero laicorum, unde nonnulli eorum con- queri videantur, eo quod quidam episcopi ad eorum preces nolint in ecclesiis suis eos, cum utiles sint, ordinare, visum nobis fuit, ut . . . . et cum caritate et ratione utiles et idonei eligantur; et si laicus idoneum utilemque clericum obtulerit, nulla qualibet occasione ab episcopo sine ratione certa re])el]atur ; et si rejiciendus est, propter scandalum vitandum evidenti ratione manifestetur." Another capitu- lary of Charles the Bald, in 864, forbids the establish- ment of priests in the churches of patrons, or their ejection without the bishop's consent : — " De his qui sine consensu episcopi presbyteros in ecclesiis suis constituunt, vel de ec- clesiis dejiciunt." Thus the churches are recognised as the property of the lord ; ar.d the parish may be considered as an established division, at least very commonly, so early as the Carlovingian empire. I do not by any means deny that it was partially known in France before that time. Guizot reckons the patronage of churches by the laity among the circumstances which diminished or retarded ecclesiastical power. (Le9on 13.) It may have been so; but without this patronage there would have been very few parish churches. It separated, in some degree, the interests of the secular clergy from those of the bishops and the regulars. 107. GRANT OF ETHELWOLF. Edit. 1826, vol. ii. p. 207. Edit. 1841, vol. i. p. 505. This grant is recorded in two charters differing ma- terially from each other ; the first transcribed in Ingulfus's Note 107.] GRANT OF ETIIELWOLF. 181 history of Croyland, and dated at Winchester on the Nones of November, 855 ; the second extant in two chartularies, and bearing date at Wilton, April 22. 854. This is marked by Mr. Kemble as spurious (Codex Aug.- Sax. Diplom. ii. 52.) ; and the authority of Ingulfus is not sufficient to support the first. The fact, however, that Ethel wolf made some great and general donation to the Church rests on the authority of Asser, whom Ifiter writers have principally copied. His words are : — " Eodem quoque anno [^855^ Adelwolfus venerabilis, rex Occidentalium Sax- onum, decimam totius regni sui partem ab omni regali servitio et tributo liberavit, et in sempiterno grafio in cruce Christi, pro redemptione animse suae et antecessorum suo- rum, 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 im- possible to construe his words of a grant of tithes. The charter in Ingulfus rather leads to suppose, but that in the Codex Diplomaticus decisively proves, that the grant conveyed a tenth part of the land, and not of its j)roduce. Sir F. Palgrave, by quoting only the latter charter, renders Selden's hypothesis, that the general right to tithes dates from this concession of Ethelwolf, more un- tenable than it is. Certainly the charter copied by In- gulfus, which Sir F. Palg'rave passes in silence, docs grant " decimam partem bonorum ;" that is, I presume, of chattels, which, as far as it goes, implies a tithe ; while the words a])plicable to laud are so obscure and a])parently corrupt, that Selden might be warranted in giving them the like construction. Both charters probably are spurious ; but there may have been an extensive grant to the Church, not only of inmiunity from the trinoda nccessifas, \\\\nA\ they express, but of actual possessions. Since, however, it must have been impracticable to endow the Church with a tenth part of appropriated lands, it might possibly be conjectured, that she took Ji tenth part of the produce, either as a composition, or until means should be found N 3 18^ WEALTH OF ENGLISH CLERGY. [Cuap. VII. of putting her in possession of the soil. And although, according to the notions of those times, the actual pro- perty might be more desirable, it is plain to us that a tithe of the produce was of much greater value than the same proportion of the land itself. 108. SPOLIATION OF THE CHURCH. Edit. 1826, vol. ii. p. 209. Edit. 1841, vol. i. p. 505. The church was often compelled to grant leases of her lands, under the name of precaricB, to laymen, who pro- bably 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 were frequently renewed. They are not to be confounded with terrcB cen- suales^ or lands let to a tenant at rack-rent, which of course formed a considerable branch of revenue. The grant was called precaria 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 precarice, and in other ways, than at any former time. — See Ducange for a long article on Precariee. 109. WEALTH OF ENGLISH CLERGY. Edit. I82fi, vol.ii. p. 209. note §. Edit. 1841, vol. i. p. 506. Anthoky Harmer (Henry Wharton), says that tlie monasteries did not possess one fifth of the land ; and I incline to think that he is nearer the truth than Mr. Turner, who puts the wealth of the church at above 28,000 knights' fees, out of 53,215. The bishops' lands could not by any means account for the difference ; so that Mr. Turner was probably deceived by his authority. Notes 110, 111.] TOLICY OF CHARLEMAGNE. 1S3 110. CAPITULARY OF CHARLEMAGNE. Edit. 1826, vol. ii. p. SH. Edit. 1841, vol. i. p. 508. This capitulary is erroneously ascribed to Cliarleinagne. It is only found in one of the three books subjoined by Benedict Levita to the four books of capitularies collected by Ansegisus ; the latter relating" only to Charlemagne and Louis, but the former comprehending many of later emperors and kings. And, what is of more importance, it seems exceedingly doubtful whether this is any genuine capitulary at all. It is not referred to any prince by name, nor is it found in any other collection. I w'as misled by a passage in the Memoires de I'Acad. des In- script. vol. xxxix. (erroneously printed xxxvii.), where M. Pouilly says — " Charlemagne voulut qu'elle fut suivie dans toute I'etendue des pays soumis a sa domination." Though I looked at the reference to Baluze, which I have given, my attention was not turned to the weakness of the proof. Fleury and Schmidt, in the passages referred to in my note, have fallen into the same error. 111. ECCLESIASTICAL POLICY OF CHARLEMAGNE. Edit. 182G, vol. ii. p. 219. Edit. 1841, vol. i. p. 51:5. CiL\RLEi\iAGNE had a])parently devised an ecclesiastical theory, which would now Ije called Erastian, and, j)erhaps, not very short of that of Henry VIII. He directs the clergy what to ])reach in his own name, and uses the first j)erson in ecclesiastical canons. A et, if we may judge by the events, the bishops lost no ])art of their permanent ascendancy in the state through this interference, though compelled to acknowledge the supremacy of a great mind. By a vigorous repression of those secular pro])ensities which Avere displaying themselves among the sujierior N 4 184 DEPOSITION OF LOUIS. [Chap. VII. clergy, he endeavoured to render their moral influence more effective. This, however, could not be achieved in the ninth century ; nor could it have been brought about by any external power. Nor was it easily con- sistent with the continual presence of the bishops in na- tional assemblies, which had become essential to the polity of his age, and with which he would not, for several reasons, have wholly dispensed. Yet it appears, by a remarkable capitulary of 811, that he had perceived the inconvenience of allowing the secular and spiritual powers to clash with each other; — " Discutiendum est atque interveniendum in quantum se episcopus aut abbas rebus secularibus debeat inserere, vel in quantum comes, vel alter laicus, in ecclesiastica negotia." But as the laity, himself excepted, had probably interfered very little in church affairs, this capitulary seems to be restrictive of the prelates. 112. DEPOSITION OF LOUIS. Edit. 1826, vol. ii. p. 220. Edit. 1841, vol. i. p. 514. A LATE writer has taken a different view of this event, the deposition of Louis at Compeigne. It was not, he thinks, " uue hardiesse sacerdotale, une temerite ecclesi- astique, mais bien une lachete politique. Ce n'etait point une tentative pour clever I'autorite religieuse au-dessus de I'antorite royale dans les affaires temporelles ; c'etait, au contraire, un abaissement servile de la premiere devant le monde." (Fauriel, Hist, de la Gaule Meridionale, iv. 150.) In other words, the bishops lent themselves to the aris- tocratic faction which was in rebellion against Louis. Ranke, as has been seen in an early note, thinks that they acted out of revenge for his deviation from the law of 817j which established the unity of the empire. The bishops, in fact, had so many secular .and personal in- terests and sympathies, that we cannot always judge of their behaviour upon general principles. Note 113.] EDWY AND ELGIVA. 185 113. EDWY AND ELGIVA. Edit. 1826, vol. ii. p. 224. note*. Edit. 1811, vol. i. p. 510'. This note is not as carefully written as it inioht have been. The subject has been since discussed by Dr. Lin- gard in his histories both of England and of the Anglo- Saxon Church, by the Edinburgh reviewer of that history, vol. xlii. (Mr. Allen), and by other late writers. It must ever be impossible, unless unknown documents are brougltt to light, to clear u]) all the facts of this litigated story. But though some Protestant writers, as I have said, in maintaining the matrimonial connexion of Edwy and Elgiva, quote authorities who give a different colour to it, there is a presumption of the marriage from a passage of the Saxon Chronicle, A. d. 958 (wanting in Gibson's edition, but discovered by Mr. Turner, and now restored to its place by Mr. Petrie), which distinctly says that Archbishop Odo separated Edwy the king and Elgiva, because they were too nearly related. It is tlierefore highly probable that she was queen, though Dr. Lingard seems to hesitate. This passage was written as early as any other which we have on the subject, and in a more placid and truthful tone. The royalty, however, of Elgiva will be out of all pos- sible doubt, if we can depend on a document, being a reference to a charter, in the Cotton library (Claudius, B. vi.), wherein she appears as a witness. Turner says of this: — "Had the charter even been forged, the monks would have taken care that the names appended were correct." This Dr. Linsfard inexcusablv calls " confessing that the instrument is of very doubtful authenticity." The Edinburgh reviewer, who had seen the manuscript, believes it genuine, and gives an account of it. Mr. Kemble has printed it without mark of spuriousness. (Cod. Diploin. vol. v. p. 378.) In this document we have the names of /lilfgifu the king's wife, and of TEthel- gifu the king's wife's mother. The signatures are only 186 EDWY AND ELGIVA. [Cuap. VII. recited, so that the document itself cannot be properly styled a charter ; but we are only concerned with the testimony it bears to the existence of the queen Elgiva and her mother. If this charter, thus recited, is established, we ad- vance a step, so as to ])rove the existence of a mother and daughter, bearing nearly the same names, and such names as apparently imply royal blood, the latter being married to Edvvy. This would tend to corroborate the coronation story, divesting it of the gross exaggerations of the monk- ish biographers and their followers. It might be supposed that the young king, little more than a boy, retired from the drunken revelry of his courtiers, to converse and ])eihaps romp with his cousin and her mother ; that Dunstan audaciously broke in upon him, and forced him back to the banquet ; that both he and the ladies resented this insolence as it deserved, and drove the monk into exile, and that the marriage took place. It is more difficult to deal with the story, originally re- lated by the biographer of Odo, that after his marriage Edwy carried oil" a woman with whom he lived, and whom Odo seized and sent out of the kingdom. This lady is called by Eadmer, una de praescriptis mulieribus ; whence Dr. Lingard assumes her to have been Ethelgiva, the queen's mother. This was in his History of England (i. .517-) ; but in the second edition of the Antiquities of the Anglo-Saxon Church he is far less confident than either in the first edition of that work, or in his history. In fact, he plainlv confesses, that nothing can be clearly made out beyond the circumstances of the coronation and the subsequent marriage. Although the writers before the conquest do not bear witness to the cruelties exercised on some woman con- nected with the king, either as queen or mistress, at Glou- cester, yet the subsequent authorities of Eadmer, Osbern, and Malmsbury may lead us to believe that there was truth in the main facts, though we cannot be certain that the person so treated was the queen Elgiva. If indeed their accounts are accurate, it seems at first that they do not agree with their predecessors ; for they repre- Note 114.] EARLY PAPAL AUTHORITY. 187 sent the lady as being in tlie king's company up to ]iis flight from the insurgents : — " Regem cum adultera fugi- tantem persequi non desistunt." But though we read in the Saxon Chronicle that Odo divorced Edwy and Elgiva, we are not sure that they submitted to the sentence. It is, therefore, possible, that she was with him in this dis- astrous flight, and having fallen into the hands of the pursuers, was put to death at Gloucester. True it is, that her proximity of blood to the king would not warrant Osbern to call her adultera ; but bad names cost nothing. Malmsbury's words look more like it, if we might supply something, " proxime cognatam invadens uxorem [cu- jusdam ?J ejus forma deperibat;" but as they stand in his text, they defy my scanty knowledge of the Latin tongue. On the whole, however, no reliance is to be placed on very passionate and late authorities. What is manifest alone is, that a young king was persecuted and dethroned by the insolence of monkery exciting a super- stitious people against him. 114. EARLY PAPAL AUTHORITY. Edit. 182G, vol. ii. p. 225. Edit. 1841, vol. i. p. 516. I AM induced, by further study, to modify what is said in the text with respect to the well knowui passages in Irenseus and Cyprian. The former assigns, indeed, a considerable weight to the Cliurcli of Rome, sim])ly as testimony to aj)ostolical teaching ; but this is })lain]y not limited to the bishop of that city, nor is he personally mentioned. It is therefore an argument, and no slight one, against the pretended supremacy rjither than the contrary. The authority of Cyjirian is not, perhaps, much more to the purpose. For tlie only words in his treatise De Unitate Ecclesi?p, which assert any authority in the chair of St. Peter, or indeed coiuiert Rome with Peter at all, are interpolations, not found in the best manuscripts, or 188 EARLY PAPAL AUTHORITY. [Cuap. VIl. in the oldest editions. They are printed within brackets in the best modern ones. (See James on Corruptions of Scripture in the Church of Rome, 1612.) True it is, however, that in his Epistle to Cornelius, bishop of Rome, Cyprian speaks of " Petri cathedram, atque ecclesiani principalem unde unitas sacerdotalis exorta est. (Epist. lix. in edit. Lip. ] 8c^8 ; Iv. in Baluze and others.) And in another he exhorts Stephen, successor of Cornelius, to write a letter to the bishops of Gaul, that they should de- pose Marcian of Aries for adherinef to the Novatian he- resy. (Epist. Ixviii., or ixvii.) This is said to be found in very few manuscripts. Yet it seems too long, and not sufficiently to the purpose, for a popish forgery. All bishops of the Catholic Church assumed a right of inter- ference with each other by admonition ; and it is not en- tirely clear from the language, that Cyprian meant any thing more authoritative ; though I incline, on the whole, to believe that, when on good terms with the see of Rome, he recognised in her a kind of primacy derived from that of St. Peter. The case, nevertheless, became very different when she was no longer of his mind. In a nice question which arose, during the pontificate of this very Stej.hen, as to the re- baptism of those to ^vhom the rite had been administered by heretics, the bishop of Rome took the negative side ; while Cyprian, with the utmost vehemence, maintained the contrary. Then we find no more honeyed phrases about the principal Church and the succession to Peter, but a very different style : — " Cur in tantum Stephani, fratris nostri, obstinatio dura prorupit?" (Epist. Ixxiv.) And a cor- respondent of Cyprian, doubtless a bishop, Firmilianus by name, uses more violent language : — " Audacia et insolentia ejus — aperta et manifesta Stephani stultitia — de episco- pates sui loco gloriatur, et se successionem Petri tenere contendit." (Epist. Ixxv.) Cyprian proceeded to summon a council of the African bishops, who met, seventy-eight in number, at Carthage. They all agreed to condemn heretical baptism as absolutely invalid. Cvprian addressed them, requesting that they would use full liberty, not without a manifest reflection on the pretensions of Rome : XoTE 115.] CONCESSION OF THOCAS. 189 — *' Neqiie eiiim qulsquam nostrum episcopiim se esse epl- scoporuni constltuit, aut tyrannico terrore ad obsequendi ne- cessitatem collegas siios adigit, quando habeat oiniiis epi- scopus pro llcentia libertatis et potestatis sute arbitrium proprium, tamque judicari ab alio non possit, quam iiec ipse potest alter um judicare." We liave here an allusion to what Tertullian had called horrenda vox, " episcopus episco- poruin ;" manifestly intimating that the see of Rome had begun to assert a superiority and right of control, by the beginning of the third century, but at the same time that it was not generally endured. Probably the notion of their superior authority, as witnesses of the faith, grew up in the Church of Rome very early ; and v/hen Victor, towards the end of the second century, excommunicated the churches of Asia for a difference as to the time of keeping Easter, we see the germination of that usurpation, that tyranny, that uncharitableness, v/hich reached its culmi- nating point in the centre of the mediaeval period. 115. CONCESSION OF FIIOCAS. Edit. 182G, vol. ii. p. L'31. note f . Edit. 1841, vol. i. p. 520. note f. The earliest mention of this transaction that I have found, and one which puts an end to the pretended concession of such a title as Universal Bishop, is in a brief general chronology, by Bede, entitled " De Temporum Ratione." He only says of Phocas : — '* Hie, rogante papa Bonifacio, statuit sedem Romaiife et apostolicfe ecclesife caput esse omnium ecclesiarum, quia ecclesia Constantino})olitana primam se omnium ecclesiarum scribebat." (Bedce Opera, cura Giles, vol. vi. p. 323.) This was probably the exact truth ; and the subsequent additions were made by some zealous ])artisans of Rome, to be seized hold of in a later age, and turned against her by some of her equally zealous enemies. The distinction generally made is, that the pope is " universalis ecclesiiu episcopus," but not " epi- scopus universalis ; that is, he has no immediate juris- 190 EXEMPTION OF MONASTERIES. [Ciiap. VII. diction in the dioceses of other bishops, though he can correct them for the undue exercise of their own. The Ultra-montanes of course go farther. 116. WILFRID. Edit. 1826, \ol. ii. p. 232. note*. Edit. 1841, vol. i. p. 521. note f . THEhistory of Wilfrid has been lately put in alight as favour- able as possible to himself and to the authority of Rome, by Dr. Lingard. We have for this to rely on Eddius (pub- lished ill Gale's Scrijjtores), a panegyrist in the usual style of legendary biography, — a style which has, on me at least, the effect of producing utter distrust. Mendacity is the badge of all the tribe. Bede is more respectable ; but in this case we do not learn much from him. It seems impossible to deny that, if Eddius is a trustworthy his- torian. Dr. Lingard has made out his case ; and that we must own appeals to Rome to have been recognised iti the Anglo-Saxon Church. Nor do I perceive any improbabi- lity in this, considering that the Church had been founded by Augustin, and restored by Theodore, both under the authority of the Roman see. This intrinsic presumption is worth more than the testimony of Eddius. But we see by the rest of Wilfrid's history, that it was not easy to put the sentence of Rome in execution. The plain facts are, that having gone to Rome claiming the see of York, and having had his claim recognised by the pope, he ended his days as bishop of Hexham. 117. EXEMPTION OF MONASTERIES. Edit. 1826, vol. ii. p. 238. Edit. 1841, vol. i. p. 526. The bishops had exercised an arbitrary, and sometimes a tyrannical power over the secular clergy ; and after the Note 118.] MARRIAGE OF CLERGY. 191 monks became part of the Church, Avhich was before the close of the sixth century, they also fell under a control not always fairly exerted. Both coin])lained g-reatly, as the acts of councils bear witness: — " Iln fait important et trop peu remarque se revele 9;i et la dans le cours de cette epoque ; c'est la lutte des pretres de paroisse contre les eveques." (Guizot, Hist, de la Civilis. en France, Le^on 13.) In this contention the weaker must have given way; but the regulars, sustained by public respect, and having- the countenance of the see of Rome, which began to en- croach upon episcopal authority, came out successful in securing themselves by exemptions from the jurisdiction of the bishops. The latter furnished a good pretext by their own relaxation of manners. The monasteries, in the eighth and ninth centuries, seem not to have given occa- sion to much reproach, at least in comparison with the prelacy. " Au commencement du huitieme siecle, I'eglise etait elle tombee dans un desordre presque egal «'i celui de la societe civile. Sans superieurs et sans inferieurs li redouter, degages de la surveillance des metropolitains comme des conciles et de I'influence des pretres, une foule d'eveques se livraient aux plus scandaleux exces." 118. MARRIAGE OF CLERGY IN EARLY CHURCH. Edit. 182G, vol. ii. p. 250. note *. Edit. 1841, vol. i. p. 533. LiNGARD says of the Anglo-Saxon Church: — "During more than 200 years from the death of Augustin, the laws respecting clerical celibacy, so galling to the natural propensities of man, but so calculated to enforce an elevated idea of the sanctity which becomes the ])riest- hood, w^ere enforced with the utmost rigour ; but (hning part of the ninth century and most of the tenth, when the repeated and sanguinary devastations of the Danes threatened the destruction of the hierarchy no less than of the government, the ancient canons oj)posed but a feeble barrier to the impulse of the passions." (Ang.-Sax. 192 CLERICAL MATRIMONY. [Chap. VII. Church, p. 176') Whatever may have been tlie case in England, those who look at the abstract of the canons of French and Spanish councils, in Dupin's Ecclesiastical History, from the sixth to the eleventh century, will find hardly one wherein there is not some enactment against bishops or priests retaining wdves in their houses. Such provisions were not repeated certainly without reason ; so that the remark of Fleury, that he has found no instance of clerical marriage before 893, cannot weigh for a great deal. It is probable that bishops did not often marry after their consecration ; but this cannot be presumed of priests. Sonthey, in his " Vindiciee Ecclesise Anglicanse," p. 290., while he produces some instances of clerical matrimony, endeavours to mislead the reader into the supposition that it was ever conformable to ecclesiastical canons.* 119. EFFORTS TO MAINTAIN CLERICAL MATRIMONY. Edit. 1826, vol. ii. p. 252. Edit. 1841, vol. i. p. 534. The English clergy long set at nought the fulminations of the pope against their domestic happiness ; and the common law, or at least irresistible custom, seems to have been their shield. There is some reason to believe that their children were legitimate for the purposes of inherit- ance, which, however, I do not assert. The sons of priests are mentioned in several instruments of the twelfth and thirteenth centuries ; but we cannot always be sure * A late writer, who has glosed prohibition of marriage to priests was over every fact in ecclesiastical history an established custom of some antiquity which could make against his own par- at the time of the Nicene Council, ticular tenets, asserts : — " In the earliest Tlie question agitated there was, not ages of the Church no restriction what- whether priests should marry, contrary, ever had been placed on the clergy in as it was admitted by their advocate, this respect." (Palmer's Compendious to dpxaia, t/c/cA.Tjcrtoy TrapdSocris, but Ecclesiastical History, p. 115. ) This whether married men should be or- may be, and I believe it is, very true dained. I do not see any difference in of the Apostolical period ; but the principle ; but the Church had made " earliest ages " are generally imder- one. stood to go farther ; and certainly the Note 119.] CLERICAL MATRIMONY. 193 that they were not born before their father's ordination, or that they were reckoned legitimate.* An instance however occurs in the Rot. Cur. Regis, A.D. 119 Is where the assize find that there has been no presentation to the church of Dunston, but the parsons have held it from father to son. Sir Francis Palgrave, in his Introduction to these records (p. 29.), gives other proofs of this hereditary succession in benefices. Giraldus Cambrensis, about the end of Henry IT.'s reign (jipud Wright's Political Songs of England, p. 353.), mentions the marriage of the parochial clergy as almost universal. *' More sacerdotum parochialium Anglise fere cunctorum damnabili quidem et detestabili, publicam secuin habebat comitem individuam, et in foco focariam, et in cubiculo concubinam." They were c?i\\eA focarice, as living at the same hearth ; and this might be tolerated, perhaps, on pretence of service ; but the fellowship, we perceive, was not confined to the fireside. It was about this time that a poem, De Concubinis Sacerdotum, commonly attributed to Walter Mapes, but alluding by name to Pope Innocent III., humorously defends the uncanonical usage. It begins thus : — " Prisciani rcgula pcnit'is cassatur, Sacerdos per liic et liac oliin declinabatur, Sed per hie solummodo nunc articulatur. Cum per nostrum praesulem hcec amoveatur." The last lines are better known, having been often quoted : — " Ecce jam pro c-lericis multum allegavi, Necnon pro prusbyteris multa coni))robavi ; Pater-noster nunc pro me, quoniam peccavi, Dicat quisque presbyter cum sua suavi." Poems ascribed to Mapes, p. 171. (Camden Society, IS'Il.) * Among the witnesses to some in- rest are described by tlie father's sur- struments in the reign of Edward I., name, except one, wlio is called filius printed by ]\Ir. Hudson Gurneyfrom Beatricis ; and as be may be suspected the court-rolls of the manor of Kes- of being illegitim:ite, we cannot infer wick in Norfolk, we have more than the contrary as to tlie priest's son. once Walter filius presbytcri, IJut the O 194 CONCORDAT OF WORMS. [Chap. VII. Several other poems in this very curious vokime allude to the same subject. In a dialogue between a priest and a scholar, the latter having taxed him with keeping a presbytera in his house, the parson defends himself by recrimination : — " Malo cum presbytera pulcra fornicari, Servituros domino filios lucrari, Quam vagas satellites per antra sectari ; Est inhonestissimum sic dehonestari." (p. 256.) It is said by Raumer (Gesch. der Hohenstauffen, vi. 9,S5.^i that there was a married bishop of Prague during the pontificate of Innocent III., and that the custom of clerical marriages lasted in Hungary and Sweden to the end of the thirteenth century. 120. CONCORDAT OF WORMS. Edit. 1826, vol. ii. p. 268. Edit. 1841, vol. i. p. 544. Ranke observes, that according to the Concordat of Worms predominant influence was yielded to the emperor in Germany, and to the pope in Italy; an agreement, how- ever, which was not expressed with precision, and which contained the germ of fresh disputes. (Hist, of Refor. i. 34.) But even if this victory should be assigned to Rome in respect of Germany, it does not seem equally clear as to England. Lingard says of the agreement between Henry I. and Paschal II. : — " Upon the whole, the Church gained little by this compromise. It might check but did not abolish the principal abuse. If Henry surrendered an unnecessary ceremony, he still retained the substance. The right which he assumed of nominating bishops and abbots was left unimpaired." (Hist, of Eng. ii. 169-) But if this nomination by the crown was so great an abuse, why did the popes concede it to Spain and France ? The real truth is, that no mode of choosing bishops is alto- Note 121.] DECRETUM OF GRATIAN. 195 gether unexceptionable. But, upon the whole, nomination by the crown is likely to work better than any other, even for the religious good of the Church. As a means of pre- serving the connexion of the clergy with the state, it is almost indispensable. Schmidt observes, as to Germany, that the dispute about investitures was not wholly to the advantag'e of the Church ; though she seemed to come out successfully, yet it produced a hatred on the part of the laity, and above all, a determination in the princes and nobility to grant no more lands over which their suzerainty was to be disputed, (iii. 269.) The emperors retained a good deal — the regale, or possession of the temporalities during a vacancy ; the prerogative, on a disputed election, of in- vesting whichever candidate they pleased ; above all, per- haps, the recognition of a great principle, that the Church was, as to its temporal estate, the subject of the civil ma- gistrate. The feudal element of society was so opposite to the ecclesiastical, that whatever was gained by the former was so much subtracted from the efficacy of the latter. This left an importance to the imperial investiture after the Calixtin Concordat, which was not intended pro- bably by the ])ope. For the words, as quoted by Schmidt (iii. 301.) — Habeat imperatoria dignitas electum libere, consecratum canonice, regaliter per sceptrum sine pretio tamen investire solenniter — imply nothing more than a formality. The emperor is, as it were, commanded to invest the bishop after consecration. But in practice the emperors always conferred the investiture before conse- cration. (Schmidt, iv. 153.) 121. DECRETUM OF GRATIAN. Edit. 1826, vol. ii. p. 286. Edit. 18!1, vol. ii. p. 2. TiRABOSciii has fixed on 1140, as the date of its ap- pearance (iii. 313.) ; but others bring it down some years later. o 2 196 PRAGMATIC SANCTION OF LOUIS IX. [Chap. VII. 1^2. PRAGMATIC SANCTION OF LOUIS IX. Edit. 1826, vol. ii. p. 302. Edit. 1841, vol. ii. p. 13. The pragmatic sanction has probably been called in ques- tion on insufficient grounds. It was published in 1268. Of this law Sismondi has said : — En lisant la pragmatique sanction, on se demande avec etonnement ce qui a pu causer sa prodigieuse celebrite. Elle n' introduit ancun droit nou- veau ; elle ne change rien a I'organisation ecclesiastique ; elle declare seulement que tous les droits existans seront conserves, que toute la legislation canonique soit executee. A I'exception de I'article v, sur la levees d'argent de la cour de Rome, elle ne contient rien que cette cour n'eut pu publier elle-meme ; et quant a cet article, qui paroit seul dirige contre la chambre apostolique, il n'est pas plus precis que ceux que bien d'autres rols de France, d'Angleterre et d'Allemagne, avaient deja prom.ulguees a plusieurs reprises et toujours sans effet. (Vol. v, p. 106.) But Sismondi overlooks the fourth article, which enacts that all colla- tions of benefices shall be made according to the maxims of councils and fathers of the Church. This was designed to repress the dispensations of the pope ; and if the French lawyers had been powerful enough, it would have been successful in that object. He goes on, indeed, him- self to say : — Ce qui changea la pragmatique sanction en une barriere puissante contre les usurpations de la cour de Rome, c'est que les legistes s'en emparerent ; ils prirent soin de I'expliquer, de la commenter ; plus elle etait vague, et plus, entre leurs mains habiles, elle pouvoit recevoir d'ex- tension. Elle suffisait seule pour garantir toutes les libertes du royaume ; une fois que les parlemens etoient resolus de ne jamais permettre qu'elle fut violee, tout empietement de la cour de Rome ou des tribunaux ecclesiastiques, toute levee de deniers ordonee par elle, toute election irreguliere, toute excommunication, tout interdit, qui touchoient 1' au- torite royale ou les droits du sujet, furent denonces par les Notes 123, 124.] BENEFIT OF CLERGY. 197 legistes en parlement, comme contraires aux franchises des eg-Jises de France, et a la pragmatique sanction. Ainsi s'introduisait F appel comme d' abus, qui reussit seul a con- tenir la jurisdiction ecclesiastique dans de justes bornes. 123. ECCLESIASTICAL IMMUNITY. Edit. 1826, vol. ii. p. 312. Edit. 1841, vol. ii p. 20. The privilege of exemption from criminal justice 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. My expressions therefore in the text are too feeble. As to France and Germany, I cannot pretend to say that the law of Charlemagne enacting that exemption was ever abroerated. 124. BENEFIT OF CLERGY. Edit. 1826, vol. ii. p. 318. Edit. 1841, vol. ii. p. 2.3. This is not likely to mislead a well-informed reader ; but it ought, perhaps, to be mentioned, that by the *' clerical pri- vilege" we are only to understand what is called benefit of clergy ; which in fact is, or rather was, till recent alterations of the law since the first edition of this Work, no more than the remission of caj)ital punishment for the first conviction of felony ; and that not for the clergy alone, but for all culprits alike. They were not called upon at any time, I believe, to prove their claim as clergy, except by reading the neck-verse, after trial and conviction in the king's court. They were then in strictness to be committed to the ordinary or ecclesiastical superior, which probably was not often done. o 3 198 CONCLUSION OF THE CHAPTER. [Chap. VII. 125. GALLICAN CHURCH. Edit. 1826, vol. ii. p. 348. Edit. 1841, vol. ii. p. 43. This was written in 1816. The present state of opinion among those who sincerely belong to the Gallican Church, seems to have become exceedingly different from what it was in the last two centuries. [1847-] 126. CONCLUSION OF THE CHAPTER. Edit. 1826, vol. ii. p. 3Y3. Edit. 1841, vol. ii. p. 55. This was also written in 181 (i; and would not have been similarly expressed in 1847- Note 127.] BIIETWALDAS. ^ 199 CHAP. VIII. CONSTITUTIONAL HISTORY OF ENGLAND. 127. BRETW ALDAS. Edit. 1826, vol. ii. p. 376. Edit. 1841, vol. ii. p. 61. These seven princes enumerated by Bede have been called Bretwaldas, and they have, by late historians, been advanced to higher importance, and to a different kind of power than, as it appears to me, there is any sufficient ground to bestow on them. But as I have gone more fully into this subject, in a paper about to be published in the S2nd volume of the " Archseologia," I shall content myself ^^'ith giving the most material parts of what will there be found. Bede is the original witness for the seven monarchs, who before his time had enjoyed a preponderance over the Anglo-Saxons south of the Humber : — " Qui cunctis australibus gentis Anglorum provinciis, quseHumbrte fiuvio et contigiiis ei terminis sequestrantur a Borealibus, impera- runt." (Hist. Eccl. lib. ii. c. 5.) The four first-named had no authority over Northumbria ; but the last three being sovereigns of tluit kingdom, their sway would include the whole of England. The Saxon Chronicle, under the reign of Egbert, says that he was the eighth who liad 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 irivhT), implies a ruler of Britain or the Britons. The Clironicle then copies the enumeration of the other seven in Bede, with a little abridgment. The kings mcntioiu'd by Bede; are iEUi or Ella, fitunder of the o 4 200 BRETWALDAS. [Chap, VIII. kingdom of the South- Saxons, about 477 j Ceauhn, of Wessex, after the interval of nearly a century ; Ethelbert, of Kent, the first Christian King ; Redwald, of East Anglia ; after him three Northumbrian kings in succession, Edwin, Oswald, Oswin. We, have, therefore, sufficient tes- timony that, before the middle of the seventh century, four kings, from four Anglo-Saxon kingdoms, had, at intervals of time, become superior to the rest ; excepting, however, the Northumbrians, whom Bede distinguishes, and whose subjection to a southern prince does not appear at all pro- bable. None, therefore, of these could 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 inhabitants of Britain, both English and British, with the sole exception of the men of Kent. This he reports in another place with respect to Edwin, the first Northumbrian convert to Christianity ; whose worldly power, he says, increased so much that, what no English sovereign had done before, he extended his dominion to the farthest bounds of Britain, whether inhabited by English or by Britons. (Hist. Eccl. lib. ii. c. 9.) Dr. Lingard has pointed out a remarkable con- firmation of this testimony of Bede, in a life of St. Columba, published by the Bollandists. He names Cuminius, a con- temporary writer, as the author of this life ; but I find that these writers give several reasons for doubting whether it be his. The words are as follow : — " Oswaldum regem, in procinctu belli castra metatum, et in ])apilione supra pulvillum dormientem allocutus est, et ad helium procedere jussit. Processit et secuta est victoria ; reversusque postea totius Britannise imperator ordinatus a Deo, et tota incredula gens baptizata est." (Acta Sanctorum, Jun. 23.) This passage, on account of the uncertainty of the author's age, might not aj)pear sufficient. But this anonymous life of Columba is chiefly taken from that by Adamnan, written about 7OO ; and in that life we find the important expression about Oswald — *' totius Britannise imperator Note 127.] BRETWALDAS. 201 ordinatus a Deo." We have, therefore, here probably a distinct recognition of tlie Saxon word Bretwalda ; for what else coidd answer to emperor of Britain ? And, as far as I know, it is the only one that exists. It seems more likely that Adamnan refers to a distinct title bestowed on Oswald by his subjects, than that he means to assert as a fact, that he truly ruled over all Britain. This is not very credible, notwithstanding the language of Bede, who loves to amplify the power of favourite monarchs. For though it may be admitted that these Northumbrian kings enjoyed, at times, a preponderance over the other Anglo- Saxon principalities, we know that both Edwin and Oswald lost their lives in great defeats by Penda of Mercia. Nor were the Strathcluyd Britons in any permanent subjec- tion. The name of Bretwalda, as applied to these three kings, though not so absurd as to make it incredible that they assumed it, asserts an untruth. It is however, at all events plain from history, that they obtained their superiority by force ; and ^ve may probably believe the same of the four earlier kings enu- merated by Bede. An elective dignity, such as is now sometimes supposed, cannot be presumed in the absence of every semblance of evidence, and against manifest pro- bability. What appearance do we find of a federal union among the kites and crows, as Milton calls them, of the Heptarchy ? What but the law of the strongest could have kept these rapacious and restless warriors from tearing the vitals of their common country ? The influence of Christianity in effecting' a comparative civi- lisation, and producing a sense of political as well as re- ligious unity, had not yet been felt. Mercia took the place of Northumberland as the lead- ing kingdom of the Heptarchy, in the eighth century. Even before Bede brought his Ecclesiastical History to a close, in 7^1, Ethelbald of Mercia had become paramount over the southern kingdoms ; certainly more so than any of the first four, who are called by the Saxon Chronicler Bretwaldas. " Et hie omnes provincisR cseterseque aus- trales ad confinium usque Hymbrse fluminis cum suis 202 BRETWALDAS. [Chap. Vllf. quseque regibus, Merciorum reg"i Ethelbaklo subjectse sunt." (Hist. Ecc. V. 23.) In some charters of Ethelbakl he styles himself, " non solum Marcensium seel et univ^er- sarum provinciarum qufe communi vocabulo dicuntur Suthangli divina largiente gratia rex." (Codex Aug.- Sax. Diplom. i. 96. 100. 107.) Ofta, his successor, retained great part of this ascendancy, and in his charters some- times styles himself '* rex Anglorum," sometimes " rex Merciorum simulque aliarum circumquaque nationum." (lb. 162. 1(36, IC7, et alibi.) It is impossible to define the subordination of the southern kingdoms, but we cannot reasonably imagine it to have been less than they paid in the sixth century to Ceaulin and Ethelbert. Yet to these potent sovereigns the Saxon Chronicle does not give the name bretwakla, nor a place in the list of British rulers. It copies Bede in this passage servilely, without regard to events which had occurred since the termination of his history. I am, however, inclined to believe, combining the passage in Adannian \\'\i\\ this less explicitly worded of the Saxon Chronicle, that the three Northumbrian kings having been victorious in war and paramount over the minor king- doms, were really designated, at least among their own subjects, by the name Bretwakla, or ruler of Britain, and totius Britannia) imperator. The assumption of so pompous a title is characteristic of the vaunting tone which continued to increase down to the Conquest. We may therefore admit as ])robable, that Oswald of North- umbria in the seventh century, as well as his father Edwin and his son Oswin, took the appellation of Bretwalda to indicate the supremacy they had obtained, not only over Mercia and the other kingdoms of their countrymen, but, by dint of successful invasions, over the Strathcluyd Britons and the Scots beyond the Forth. I still entertain the greatest doubts, to say no more, whether this title was ever applied to any but these Northumbrian kings. It would have been manifestly ridiculous, too ridiculous, one would think, even for Anglo-Saxon grandiloquenc(!, to confer it on the first four in Bede's list ; and if it ox- Note 127.] BRETWALDAS. 203 pressed an acknowledged supremacy over the wliole nation, why was it never assumed in the eighth century ? We do not derive much additional information from later historians. Florence of Worcester, who usually copies the Saxon Chronicle, merely in this instance tran- scribes the text of Bede with more exactness than that had done : he neither repeats nor translates the word bretwalda. Henry of Huntingdon, after repeating the passage in Bede, adds Egbert to the seven kings therein mentioned, calling him " rex et monarcha totius Bri- tannise," doubtless as a translation of the word Bret- walda in the Saxon Chronicle ; subjoining the names of Alfred and Edgar as ninth and tenth in the list. Egbert, he says, was eighth of ten kings remarkable for their bravery and power (fortissimorum), who have reigned in England. It is strange that Edward the Elder, Athel- stan, and Edred are passed over. Rapin was the first who broached the theory of an elective bretwalda, possessing a sort of constitutional supremacy in the constitution of the Heptarchy ; some- thing like, as he says, the dignity of stadtholder of the Netherlands. It was taken up in later times by Turner, Lingard, Palgrave, and Lappenberg. But for this there is certainly no evidence whatever ; nor do I perceive in it any thing but the very reverse of probability, especially in the earlier instances. With what we find read in Bede we may be content, confirmed as with re- spect to a Northumbrian sovereign it appears to be by the Life of Columba ; and the plain history will be no more than this ; that four princes from among the southern Anglo-Saxon kingdoms, at different times obtained, probably by force, a superiority over the lest ; that after- wards tbree Northumbrian kings united a similar supre- macy with the government of their own dominions ; and that having been successful in reducing the Britons of the north and also the Scots into su!)jection, 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 at- 204< ANGLO-SAXON MONARCHY. [Chap. VIII. tract much attention, since we find the word only once employed by an historian, and never in a charter. The consequence I should draw is, that too great prominence has been given to the appellation, and undue inferences sometimes derived from it, by the eminent writers above mentioned. 128. ANGLO-SAXON MONARCHY. Edit. 1826, vol. ii. p. 378. Edit. 1841, vol. ii. p. 61. The assertion in the text, that Edward, Athelstan, and Edmund finally rendered the English monarchy co-exten- sive with the present limits of England, requires consider- able modification. The reduction of all England under a single sovereign was accomplished by Edward the Elder, who may, therefore, be reckoned the founder of our mo- narchy more justly than Egbert. The five Danish towns, as they were called, Leicester, Lincoln, Stamford, Derby, and Nottingham, had been brought under the obedience of his gallant sister iEthelfleda, to whom Alfred had en- trusted the vice-royalty of Mercia. Edward himself sub- dued the Danes of East Anglia and Northumberland. In 922 " the kings of the North Welsh sought him to be their lord." And in 924, " chose him for father and lord, the king of the Scots and the whole nation of the Scots, and Regnald, and the son of Eadulf, and all those who dwell in Northumberland, as well English as Danes and Northmen and others, and also the king of the Strathcluyd Britons, and all the Strathcluyd Britons." (Sax. Chronicle.) Edward died next year ; of his son Athelstan it is said that " he ruled all the kings who were in this island ; first, Howel, king of West Welsh, and Constantine king of the Scots, and Uwenking of the Gwentian (Silurian) peo- ple, and Ealdred son of Ealdalf of Bamborough, and they confirmed the peace by pledge and by oaths at the place Note 128.] ANGLO-SAXON MONARCHY. 205 which is called Earnot, on the fourth of the Ides of July ; and they renounced all idolatry, and after that submitted to him in peace." (Id. a.d. 926.) From this time a striking change is remarkable in the style of our kings. Edward, of whom we have no extant charters after these great submissions of the native jjrinces, calls himself only Angul-Saxonum rex. But in those of Athelstan, such as are reputed genuine (for the tone is still more pompous in some marked by Mr. Kemble with an asterisk), we meet, as early as 927, with " totius Bri- tannise monarchus, rex, rector, or basileus;" " totius Britan- nise solio sublimatus ;" and other phrases of insular so- vereignty. (Codex Diplom. vol. ii. passim, vol. v. 198.) What has been attributed to the imaginary bret- waldas, belonged truly to the kings of the tenth century. And the grandiloquence of their titles is sometimes almost ridiculous. They affected particularly that of basileus, as something more imperial than king, and less easily under- stood. Edwy and Edgar are remarkable for this pomp, which shows itself also in the spurious charters of older kings. But Edmund and Edred with more truth and simplicity had generally denominated themselves "rex Anglorum, ca^terorumque in circuitu persistentium guber- nator et rector." (Codex Diplom. \6[.\\. passim.^ An ex- pression which was retained sometimes by Edgar. And though these exceedingly pompous phrases seem to have become less frequent in the next century, we find " totius Albionis rex," and etjuivalent terms, in all the charters of Edward the Confessor.* But looking from these charters, where our kings asserted what they pleased, to the actual truth, it may be inquired whether Wales and Scotland were really subject, and in what degree, to the self-styled basileus at Win- chester. This is a debatable land, which, as merely his- * " As a gpneral rule it may be ob- and that from tbe latter li;ilf of that served, that i)efore the tenth century century, pedantry and absurdity strug- the proem is comparatively simple; gle for the mastery." — Kcmhle's In- tliat about ihat time the influence of tvoduction to vol. ii. p. x. the Byzantine coiut began to be felt ; 206 EORLS AND CEORLS. [Chap, VIII. torical antiquities are far from being the object of this Work, I shall leave to national prejudice or philosophical impartiality. Edgar, it may be mentioned, in a celebrated charter, dated in 964, asserts his conquest of Dublin and great part of Ireland : — " Mihi autem concessit propitia divinitas cum Anglorum imperio omnia regna insularum oceani cum suis ferocissimis regibus usque Norwegiam, maximamque partem Hibernise cum sua nobilissima civi- tate Dublinia Anglorum regno subjugare ; quos etiam omnes meis imperiis colla subdere, Dei faventi gratia, coegi." (Codex Diplom. ii. 404.) No historian mentions any conquest or even expedition of this kind. Sir Francis Palgrave (ii. 2.58.) thinks the charter " does not contain any expression which can give rise to suspicion ; and its tenor is entirely consistent with history :" meaning, I pre- sume, that the silence of history is no contradiction. Mr. Kemble, however, marks it with an asterisk. I will mention here, that an excellent summary of Anglo-Saxon history, from the earliest times to the Conquest, has been drawn up by Sir F. Palgrave, in the second volume of the Rise and Progress of the English Commonwealth. 129. EORLS AND CEORLS, Edit. 182G, vol. ii. p. 383. note f. Edit. 1841, vol. ii. p. 65. note \. The proper division of freemen was into eorls and ceorls ; ge eorle — ge ceorle, ge eorlische — ge ceorlische, occur in several Anglo-Saxon texts. The division corresponds to the phrase *' gentle and simple," of later times. Pal- grave, (p. 11.) agrees with this. Yet in another place (vol. ii. p. 352. )he says *' It certainly designated a person of noble race. This is the form in which it is employed in the laws of Ethelbert. The earl and the churl are put in opposition to each other, as the two extremes of society." I cannot assent to this ; the second thoughts of my learned friend I like less than the first. It seems like saying, Note 1:9.] EORLS AND CEORLS. 207 men and women are the extremes of humanity, or odd and even of number. What was in the middle ? * Mr. Kemble, in his Glossary to Beowulf, explains eorl by vir fort is, jnu/il vir ; and proceeds thus : — " Eorl is not a title, as with us, any moie than heorn .... We may safely look upon the origin of earl, as a title of rank, to be the same as that of the comites, who, according to Tacitus, especially attached themselves to any distinguished chief. That these ^r/f'/e.y became under a warlike prince something more important than the early constitution of our tribes contemplated, is natural, and is, moreover, proved by history, and they laid the foundations of that system which recognises the king as the fountain of honour. In the later Anglo-Saxon constitution, ealdorman was a prince, a governor of a country or small kingdom, sub-re(julus ; he was a constitutional officer ; the earl was not an officer at all, though afterwards the government of counties came to be intrusted to him ; at first, if he had a benejicium or feud at all, it was a horse, or rings, or arms ; afterwards, lands. This appears constantly in Beowulf, and requires no further remark." A speech, indeed, ascribed to Wi- thred, king of Kent, in 696, by the Saxon Chronicle, would prove earls to have been superior to aldermen in that early age. But the forgery seems too gross to impose on any one. Ceorl, in Beowulf, is a man, vir. ; it is some- times a husband ; a woman is said ceorlian, i. e. viro se adjungere. Dr. Lingard has clearly apprehended, and that long before Mr. Kemble's publication, the distributive character of the words eorl and ceorl. *' Among the Anglo-Saxons, the free population was divided into the eorl and ceorl, the man of noble and ignoble descent ;" and he well observes that "by not attending to this meaning of the word eorl and rendering it earl, or rather comes, the translators of * An earlier writer has fallen into opposed, as the lowest description of the same mistake, which should be cor- freemen, to eorls, as the highest of the rected, as tlio equivocal meaning of the nobility." — Ileywood " On Hanks word eorl migiit easily deceive the among the Anglo-Saxons," p. 278. reader. " Ceorls, or cyrlisc men, are 208 EORLS AND CEORLS. [Chap. VIII. the Saxon laws have made several passages unintelligible." (Hist, of England, i. 468.) Mr. Thorpe has not, as I conceive, explained the word as accurately or perspicuously as Mr. Kemble. He says, in his Glossary to Ancient Enolish Laws : — " Eorl, comes, satelles principis. This is the prose definition of the word ; in Anglo-Saxon and Old Saxon poetry, it signifies man, though generally ap- plied to one of consideration on account of his rank or valour. Its etymon is unknoA\Ti, one deriving it from Old Norse, cn\ minister, satelles ; another from jara, proelium." (See B. Hald voc. Jarl, and the Gloss, to Soemund, by Edda, t. i. p. 5970 '^^^^^ title, which seems introduced by the Jutes of Kent, occurs frequently in the lajkvs of the kings of that district, the first mention of it being in Ethelbert, 13. Its more general use among us dates from the later Scandinavian invasions ; and thou oh originally only a title of honour, it became in later times one of office, nearly supplanting the older and more Saxon one of ealdormaii." The editor does not here particularly advert to the use of the word in opposition to ceorl. That a word merely expressing man may become appropriate to men of dignity appears from bar and ba7'o ; and some- thing analogous is seen in the Latin vir. Lappenberg, (vol. ii. p. 13.) says : — " The title of eorl occurs in early times among the laws of the Kentish kings, but became more general only in the Danish times, and is probably of old Jutish origin." This is a confusion of words ; in the laws of the Kentish kings, eorl means only imjemms, or, if we please, nohilis; in the Danish times it was comes, as has just been pointed out. Such was the eorl, and such the ceorl, of our fore- fathers ; one a gentleman, the other a yeoman, but both freemen. We are liable to be misled by the new meaning which from the tenth century was attached to the former word, as well as by the inveterate prejudice that nobility of birth must carry with it something of privilege above the most perfect freedom. But we do not appreciate highly enough the value of the latter in a semi-barbarous society. The eorlcundman was generally, though not Note 129. J EORLS AND CEORLS. 209 necessarily, a freeholder ; he might, unless restrained by- special tenure, depart from, or alienate his land ; he was, if a freeholder, a judge in the county court ; he might marry, or become a priest, at his discretion ; his oath weighed heavily in compurgation ; above all, his life was valued at a high composition ; we add, of course, the general respect which attaches itself to the birth and position of a gentleman. Two classes indeed there were, both " eorlcund," or of gentle birth, and so called in opposition to ceorls, but in a relative subordination. Sir F. Palgrave has pointed out the distinction in a passage which I shall extract : — " The whole scheme of the Anglo-Saxon law is founded upon the presumption that every freeman, not being a * hlaford,* was attached to a superior, to whom he was bound by fealty, and from whom he could claim a legal protection or warranty, when accused of any transgression or crime. If, therefore, the * eorlcund' individual did not possess the real property which, either from its tenure or its extent, was such as to constitute a lordship, he was then ranked in the very numerous class whose members, in Wessex and its dependent states, were originally known by the name of ' sithcundmen,' an appellation which we may paraphrase by the heraldic expression, * gentle by birth and blood.' * This term of sithcundman, however, was only in use in the earlier periods. After the reign of Alfred it is lost ; and the most comprehensive and sig- nificant denomination given to this class is that of ' six- hoendmen,' indicating their position between the highest and lowest law-worthy classes of society. Other desig- nations were derived from their services and tenures. 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, however designated, the sithcundman, or sixhoendman, appears, in every instance, in the same relative position in the community : * Is not the word sithcundman j)i'o- a lord, from the Saxon verb silhian, to perly descriptive of his dependence on follow ? P 210 EORLS AND CEORLS. [Chap. VIII. classed amongst the nobility, whenever the eorl and the ceorl are placed in direct opposition to each other ; always considered below the territorial aristocracy, and yet dis- tinguished from the villainage by the important right of selecting his hlaford at his will and pleasure. By common right the * sixhoendman' was not to be annexed to the glebe. To use the expressions employed by the compilers of Domesday, he could * go with his land wheresoever he chose,' or leaving his land, he might ' commend' himself to any hlaford who would accept of his fealty." (Vol. i. p. 14.)* It may be pointed out, however, which Sir F. P. has here forgotten to observe, that the distinction of weregild between the twelfhjTid and syxhynd was abolished by a treaty between Alfred and Guthrum. (Thorpe's Ancient Laws, p. 66.^ This indeed affects only the reciprocity of law between English and Danes. Yet it is certain, that from that time we rarely find mention of the intermediate rank between the twelfhynd, or superior thane, and the twyhynd or ceorl. The sithcundman, it would seem, was from henceforth rated at the same composition as his lord ; yet there is one apparent exception (I have not ob- served any other) in the laws of Henry I. It is said here (C. 76.) — " Liberi alii tuyhyndi, alii sjTchyndi, alii twelf- hyndi. Twyhyndus homo dicitur, cujus wera est 22 so- lidorum, qui faciunt 4 libras. Twelfhyndus est homo plene nobilis, id est, thaiuus, cujus wera est 1200 solido- rum, qui faciunt libras 25." It is remarkable that, though the syxhyndman is named at first, nothing more is said of him ; and the twelfhj^ndman is defined to be a thane. It appears from several passages that the laws recorded in this treatise are chiefly those of the West Saxons, which differed in some respects from those of Mercia, Kent and the Danish counties. With regard to the word sithcund, which I have said to be found only in * This right of choosing a lord at tenure in the eleventh century, what- pleasure, so little feudal, seems not in- ever they may have been, had become disputable enough to warrant so gene- exceedingly various, ral a proposition. The conditions of Note 129.] EORLS AND CEORLS. 211 the age of the Heptarchy, it does occur once or twice in the laws of Edward the Elder. It might be supposed that the Danes had retained the principle of equality among all of gentle birth, common, as we read in Grimm, to the northern nations, Avhich the distinction brought in by the kings of Kent between two classes of eorls or thanes, seemed to contravene. We shall have occasion, however, to quote a passage from the laws of Canute, which indi- cates a similar distinction of rank among the Danes them- selves, whatever might be the rule as to composition for life. The influence of Danish connexions produced another great change in the nomenclature of ranks. Eorl lost its general sense of good birth, and became an official title, for the most part equivalent to alderman, the governor of a shire or district. It is used in this sense, for the first time, in the laws of Edward the Elder. Yet it had not wholly lost its primary meaning, since w^e find eoi'lish and ceorUsh opposed, as distributive appellations, in one of Athelstan. (Id. p. 96.) It is said in a sort of compilation, entitled, " On Oaths, Weregilds, and Ranks," subjoined to the laws of Edward the Elder, but bearing no date, that " It was whilom in the laws of the English .... that if a thane thrived so that he became an eorl, then was he thenceforth of eorl-right worthy." (Ancient Laws. p. 81.*) But this passage is wanting in one manuscript, though not in the oldest, and we find, just before it, the old distributive opposition of eorl and ceorl. It is certainly a remarkable exception to the common use of the word eorl in any age, and has led Mr. Thorpe to suppose that the rank of earl could be obtained by landed wealth. The learned editor thinks that " these pieces cannot have had a later origin than the period in which they here stand. Some of them are probably much earlier." (p. 76.) But the mention of the "Danish law" in p. 79'j seems much * The references are to the folio this may cause some trouble to those edition of " Ancient Laws and Insti- wlio possess the octavo edition, which tutes of England," 1840, as published is much more common, by the Record Commission. I fear p 2 212 EORLS AND CEORLS. [Chap. VIIT. against an earlier date ; and this is so mentioned as to make us think that the Danes were then in subjection. In the time of Edgar, eorl had fully acquired its secondary meaning ; in its original sense it seems to have been re- placed by thane. Certain it is that we find thane opposed to ceorl in the later period of Anglo-Saxon monuments, as eorl is in the earlier ; as if the law knew no other broad line of demarcation among laymen, saving always the of- ficial dignities and the royal family.* And the distinction between the greater and the lesser thanes was not lost, though they were put on a level as to composition. Thus, in the Forest Laws of Canute : — '* Sint jam deinceps quat- tuor ex liberalioribus hominibus qui habent salvas suas consuetudines, quos Angli thegnes appellant, in qualibet regni mei provincia constituti. Sint sub quolibet eorum quattuor ex mediocribus hominibus, quos Angli les- thegenes nuncupant, Dani vero yoongmen vocant, locati." (Ancient Laws, p. 183.) Meantime, the composition for an earl, whether we confine that word to office, or suppose that it extended to the wealthiest landholders, was far higher in the later period than that for a thane, as was also his heriot when that came into use. The heriot of the king's thane was above that of what was called a me- dial thane, or mesne vassal, the sithcundman, or sixhynder, 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, deno- minated edelingi or noble, as opposed to \h& frilimji or ordinary freemen. This appellation was not lost in Eng- land, and was, perhaps, sometimes applied to nobles, but we find it generally reserved for the royal family, t Ethel or noble, sometimes contracted, forms, as is well known, • " That the thane, at least origin- shillings. That this dignity ceased ally, was a military follower, a holder from being exclusively of a military by military service, seems certain ; character is evident from numerous though, in later times, the rank seems passages in the laws, where thanes are to have been enjoyed by all great land- mentioned in a judicial capacity, and holders, as the natural concomitant of as civil officers." — Thorpe's Glossary possession to a certain value. By Mer- to Ancient Laws, voc. Thegen. cian law, he appears as a ' twelf- f Thorpe's Glossary, hynde ' man, his ' wer ' being 1 200 Note 129.] EORLS AND CEORLS. 213 the peculiar prefix to the names of our Anglo-Saxon royal house. And the word athelirifj was used, not as in Ger- many 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. (Leges Ethelredi, p. 141.) 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 cany the monarchical principle as high as the temper of the nation would permit. Hence they pre- fer to the name of king, which was associated in all the Germanic nations with a limited power, the more inde- finite appellations of imperator and basileus. And the latter of these they borrowed from the Byzantine court, liking it rather better than the other, not merely out of the pompous atfectation, characteristic of the nation in that period, but because, being less intelligible, it served to strike more awe ; and also, probably, because the title of western emperor seemed to be already appropriated in Germany. It was natural that they would endeavour to enhance the superiority of all athelings above the surrounding nobility. A learned German writer, who distributes freemen into but two classes, considers the ceorl of the Anglo- Saxon laws as corresponding to the ingenuiis^ and the thrall or esne, that is, slave, to the lidus of the Continent. '* ^delingus und liber, nobilis und im/enuiis, edelmgus MvA frilingus, jarl und karl, stehen hier iinmer als stand der freien dem der unfreien, dem serrus, lifas, lazzus, thrall entgegen." (Grimm, Deutsche Rechts-Alterthiimer, (Gottingen, 1828,) p. 226. et alibi.^ Ceorl, however, he owns to have " etwas befremdendes," something peculiar. ** Der sinn ist bald mas ; bald liber, allein colonus, rusticus, ignobilis ; die mitte zwischen nobilis und serviis.^' It does not appear from the continental laws, that the p 3 ^14 EORLS AND CEORLS. [ Chap. VIII. lit US, or liduSi was strictly a slave, but rather a cultivator of the earth for a master, something- like the Roman colomis, though of inferior estimation.* No slave had a composition clue to his kindred by law ; the price of his life was paid to his lord. By some of the barbaric laws, one-third of the composition for a lidus went to the kindred ; the remainder was the lord's share. This indi- cates something above the Anglo-Saxon theoiv or slave, and yet considerably below the ceorl. The word, indeed, has been puzzling to continental antiquaries ; and if, in deference to the authorities of Gothofred and Grimm, we find the lidi in the barbaric Iceti of the Roman empire, we cannot think these at least to have been slaves, though they may have become coloni. But I am not quite con- vinced of the identity resting on a slight resemblance of name. The ceorl, or viUanus, as we find him afterwards called in Domesday, was not generally an independent free- holder ; but his condition was not always alike. He might acquire land ; and, if he did this to the extent of five hydes, he became a thane, t He required no en- * Mr. Spence remarks (Equitable tribe, the Romans, through memory of Jurisdiction, p. 51.) — " In the con- republican institutions carried on into dition of the ceorls, we observe one of the empire, repudiated the personal the many striking examples of the servitude of citizens, while they main- adaptation of the German to the Roman tained very strict obligations of prandial institutions — the ceorls and servile tenure ; and thus the coloni of the cultivators or adscriptitii in England, lower empire on the one hand, the lidi as well as in the Continental states, and ceorls on the other, were neither exactly corresponded with the coloni absolutely free, nor merely slaves, 'and iji^wi'/iwi of the Roman provinces." "In the Lex Frisiorum," says Sir Yet he immediately subjoins — "The F. Palgrave, in one of his excellent con- condition of the rural slaves of the tributions to the Edinburgh Review Germans nearly resembled that of the (xxxii. 16.), "we find the usual dis- Roman coloni and Anglo-Saxon ceorls," tinctions of nobilis, liber, and litus. quoting Tacitus, c. 21. But did the The rank of the Teutonic litus has Germans, at that time, adapt their in- been much discussed ; he appears to stitutions to those of the Romans ? have been a villein, owing many ser- Do we not rather see here an illustra- vices to his lord, but above the class of tion of what appears to me the true slaves." The word villein, it should be theory, that similarity of laws and cus- remembered, bore several senses : the toms may often be traced to natural litus was below a Saxon ceorl, but he was causes in the state of society rather also above the villein of Bracton and than to imitation ? My notion is, that Littleton. the Germans, through principles of f This is not in the laws of Athel- common sympathy among the same stan, to which I have referred in p. 384., Note 129.] EORLS AND CEORLS. 215 franchisement for this ; his own industry might make him a gentleman. This was not the case, at least not so easily, in France. I have interpreted a text in the laws of Alfred (c. 33. in Wilkins, c. 37. in Thorpe), as giving a right to the ceorl, \^ith the consent of his alderman, of changing his lord ; that is, leaving the land on which he dwelt. This seems contradictory to other passages ; and the general theory of Anglo-Saxon antiquaries has been, that the ceorl, though a freeman, answered analogically, but not strictly, to the fnlvi^iis of the Saxons, to the colomis of the Romtm empire, and to the villein, or homme de poote, of the feudal la\^yers. It appears indeed, by the will of Alfred, published in I788, that certain ceorls might choose their own lord ; and the text of his law above quoted furnishes some ground for supposing that he extended the privilege to all. The editor of his will says — " All ceorls by the Saxon constitution might choose such man for their landlord as they would." (p. 26.) But even though we should think that so high a privilege was conferred by Alfred, it is almost certain that they did not continue to enjoy it. I retract, however, the conjecture that the ceorls generally had been sinking into a lower state before the conquest. For the passages which recog- nise the capacity of a ceorl to become a thane, are found in the later period of Anglo-Saxon law. And if, by owning five hydes of land he became a thane, it is plain that he might possess a less quantity without reaching that rank. There were therefore ceorls with land of their own, and ceorls without land of their own ; ceorls who might commend themselves to what lord they pleased, nor ill any regular statute, but in a ceorl he enriched to that degree that kind of brief summary of law, printed he have five hydes of land, and any one by Wilkins and Tliorpe. But I think slay him, let him be paid for with 2000 that Sir Francis Palgrave treats this thrymsas." (Thorpe, p. 79.) This, too slightly, when he calls it ' a tra- a few sentences before, is named as the ditionary notice of an unknown writer, composition for a thane in the Dane- who says, " whilom it was the law of lage. And, indeed, though no king's England ; " leaving it doubtful -rt-hether name appears, I have little doubt that it were so still, or had been at any these are real statutes, collected pro- definite time.' (Edinb. Rev. xxxiv. bably by some one who has inserted a 263.) Though this phrase is once little of his own. used, it is said also expressly : — " If a p 4 216 EORLS AND CEORLS. [Chap. VIII. 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. * In the Anglo-Saxon charters, the Latin words for the cultivators are " manentes" or " casati." Their number is generally mentioned ; and sometimes it is the sole de- scription of land, except its title. The French word ma- nant is evidently derived from manentes. There seems more difficulty about casati^ which is sometimes used for persons in a state of servitude, sometimes even for vassals (Ducange). In our charters it does not bear the latter meaning. See Codex Diplomaticus, passim. Spence on Equitable Jurisdiction (p. 50.). But when we turn over the pages of Domesday Book, a record of the state of Anglo-Saxon orders of society under Edward the Confessor, we find another kind of difficulty. New denominations spring up, evidently dis- tinguishable, yet such as no information communicated either in that survey or in any other document enables us definitively and certainly to distinguish. Nothing runs more uniformly through the legal documents antecedent to the Conquest, than the broad division of freemen into eorls, afterwards called thanes, and ceorls. In Domesday, which enumerates, as I need hardly say, the inhabitants of every manor, specifying their ranks, not only at the epoch of the survey itself, about 1086, but as they were in the time of King Edward, we find abundant mention of the thanes, generally indeed, but not ahvays, in re- ference to the last-named period. But the word ceorl never occurs. This is immaterial ; for by the name vil- lani we have upwards of 108,000. And this word is frequently used in the first Anglo-Norman reigns, as the * It is said in the Introduction to word does not occur, we have the the Supplementary Records of Domes- sense, in " ire cum terra ubi voluerit," day, which I quote from Cooper's Ac- or '• quaerere dominum ubi voluerit," count of Public Records (i. 223.), that which meet our eyes perpetually in the the word commeiidatio is confined to the first volume of Domesday. The dif- three counties in the second volume of ference of phrases in this record must, Domesday, except that it occurs twice in great measure, be attributed to that in the Inquisitio Eliensis for Cam- of the persons employed, bridgeshire. But, if this particular Note 129.] EORLS AND CEORLS. 217 equivalent of ceoil. No one ought to doubt that they ex- pressed the same persons. But we find also a very nu- merous class, above 82,000, styled hordarii ; a word un- known, I apprehend, to any other document ; certainly not used in the laws anterior to the Conquest. They must, however, have been also ceorls, distinguished by some legal difference, some peculiarity of service or tenure, well understood at the time. A small number are denominated coscetz or cosceti ; a word which does in fact appear in one Anglo-Saxon document. There are also several minor denominations in Domesday, all of which, as they do not denote slaves, and certainly not thanes, must have been varieties of the ceorl kind. The most frequent of these appellations is " cotarii." But, besides these peasants, there are two appellations which it is less easy, though it would be more important, to define. These are the liberi homines and the soc- manni. Of the former Sir Henry Ellis, to whose in- defatigable diligence we owe the only real analysis of Domesday Book that has been given, has counted up about 12,300; of the latter, about 23,000, forming to- gether about one-eighth of the whole population, that is, of male adults. This, it must be understood, was at the time of the survey ; but there is no appearance, as far as I have observed, that any material difference in the pro- portion of these respective classes, or of those below them, had taken place. The confiscation fell on the principal tenants. It is remarkable that in Norfolk alone we have 4487 fiberi homines, and 4588 socmen ; the whole enu- merated population being 27O87. But in Suffolk, out of a population of 20,491 we find 7>470 liberi homines^ with 1,0(30 socmen. Thus these two counties contained almost all the hberi homines of the kingdom. In Lin- colnshire, on the other hand, where 11,504 are returned as socmen, the word liber homo does not occur. These Lincolnshire socmen are not, as usual in other counties, mentioned among occupiers of the demesne lands, but mingled with the villeins and bordars ; sometimes not standing first in the enumeration, so as to show that, in 218 EORLS AND CEORLS. [Chap. Vm. 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 Domesday Book. Liberi homines invariably, and socmen I believe, except in Lincolnshire, occupied the one, villani ?i\A.hordarii the other. Hence liberum tenementum and villenac/iiim. What then, in Anglo-Saxon languasi'e, was the kind of these two classes ? They belong, it will be observed, almost wholly to the Danish counties ; not one of either denomination appears in Wessex, as will be seen by reference to Sir H. Ellis's abstract. Were they thanes or ceorls, or a class distinct from both ? What was their icere ? We cannot think that a poor cultivator of a few acres, though of his own land, was estimated at 1200 shillings, like a royal thane. The intermediate composition of the sixhyndman would be a convenient guess ; but unfortunately this seems not to have existed in the Danelage. We gain no great light from the laws of Edward the Confessor, Avhich fix the manbote^ or fine to the lord for a man slain, regulated according to the icere due to his children. Manbote, in Danelage, " de villano et de sokemanno 12 oras ; de li- beris hominibus, tres marcas." (C. 12.) Thus, in the Danish counties, of which Lincolnshire was one, the soc- man was estimated like a villanus, and much lower than a liber homo. The ora is said to have been one-eighth of a mark, consequently the liber homo's manbote was double that of the villein or socman. If this bore a fixed ratio to the were, we have a new and unheard of rank who might be called fourhjTidmen. But such a distinction is never met with. It would not in itself be improbable that the liberi homines who occupied freehold lands, and * Socmen are returned in not a few for the counties in which we find soc- instances as sub-tenants of whole manors, men so much elevated, liad not be- but only in Cambridgeshire and some longed to the same Anglo-Saxon king- nein-hbourinc counties. (Ellis's Introd. dom ; some were East- Anglian, some to Domesday, ii. 389.) But this could, Mercian, some probably, as Hertford- it seems, have only originated in the shire, of the Kent or Wessex law. phraseology of different commissioners ; Note 129.] EORLS AND CEORL'S. 219 owed no prsedial service, should be raised in the com- position for their hves above common ceorls. But in these inquiries new difficulties are always springing forth. We must, upon the whole, I conceive, take the socmen for twyhyndi, for ceorls more fortunate than the rest, who had acquired some freehold land, or to whose ancestors, possibly, it had been allotted in the original settlement. It indicates a remarkable variety in the condition of these East-Anglian counties, Norfolk and Suffolk, and a more diffused freedom in their inhabitants. The population, it must strike us, was greatly higher, relatively to their size, than in any other part of England ; and the multi- tude of small manors and of parish churches, which still continue, bespeaks this progress. The socmen, as well as the liberi homines, in whose condition there may have been little difference, except in Lincolnshire, where we have seen, that for \vhatever cause, the socmen were little, if at all, better than the viUani, were all commended ; they had all some lord, though bearing to him a relation neither of fief nor of villenage ; they could in general, though with some exceptions, alien their lands at pleasure; it has been thought that they might pay some small rent in acknowledgment of commendation ; but the one class, undoubtedly, and probably the other, were freeholders in every legal sense of the word, holding by that ancient and respectable tenure, free and common socage, or in a man- ner at least analogous to it. Though socmen are chiefly mentioned in the Danelage, other obscure denominations of occupiers occur in Wessex and Mercia, which seem to have denoted a similar class. But the style of Domesday is so concise, and so far from uniform, that we are very liable to be deceived in our conjectural inferences from it. It may be remarked here, that many of our modern writers draw too unfavourable a picture of the condition of the Anglo-Saxon ceorl. Few indeed fall into the ca- pital mistake of Mr. Sharon Turner, bv speaking of him as legally in servitude, like the villein of Bracton's age. But we often find a tendency to consider him as in a very uncomfortable condition, little caring " to what lion's paw 220 EORLS AND CEORLS. [Chap. VIII. he might fall," as Bolingbroke said in IJ^^'^i ^"d treated by his lord as a miserable dependant. Half a century since, in the days of Sir William Jones, Granville Sharp, and Major Cartwright, the Anglo-Saxon constitution was built on universal suffrage ; every man in his tything a partaker of sovereignty, and sending from his rood of land an annual representative to the Witenagemot. Such a theory could not stand the first glimmerings of histo- rical knowledge in a mind tolerably sound. But while we absolutely deny political privileges of this kind to the ceorl, we need not assert his life to have been miserable. He had very definite legal rights, and acknowledged ca- pacities of acquiring more ; that he was sometimes ex- posed 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 no insurrection of the ceorls, no outrages by themselves, no atrocious punish- ment by their masters, as in Normandy. Perhaps we are a little too much struck by their obligation to reside on the lands which they cultivated ; the term ascriptus glehce denotes, in our apprehension, an ignoble servitude. It is, of course, inconsistent with our modern equality of rights ; but we are to remember, that he who deserted his land, and consequently his lord, did so in order to become a thief. Hlafordles men, of whom we read so much, were invariably of this character. What else, indeed, could he become ? Children have an idle play, to count buttons, and say : — Gentleman, apothecary, ploughman, thief. Now this, if we consider the second as representa- tive of burgesses in towns, is actually a distributive enu- meration, setting aside the clergy, of the Anglo-Saxon population ; a thane, a burgess, a ceorl, a hlafordles man ; that is, a man without land, lord, or law, who lived upon what he could take. For the sake of protecting the honest ceorl from such men, as well as of protecting the lord in what, if property be regarded at all, must be pro- tected, his rights to services legally due, it vvas necessary to restrain the cultivator from quitting his land. Excep- Note 130.] EXPULSION OF BRITONS. 221 tions to this might occur, as we find among the liberi ho- mines and others in Domesday, but it was the general rule. We might also ask, whether a lessee for years at present, is not in one sense, ascriptiis glebes. It is true, that he may go wherever he will ; and if he con- tinue 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 cannot 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 landlord ; but all that any lord could desire was to have the services performed, or to receiv^e a compensation for them. 130. EXPULSION OF BRITONS. Edit. 1826, vol. ii. p. 386. Edit. 1841, vol. ii. p. 68. Those who treat this opinion as chimerical, and seem to suppose that a very large portion of the population of England, during the Anglo-Saxon period, must have been of British descent, do not, I think, sufficiently consider — first, the exterminating character of barbarous warfare, not here confined, as in Gaul, to a single and easy conquest, but protracted for two centuries with the most obstinate resistance of the natives ; secondly, the facilities which the possessions of the Welsh and Cumbrian Britons gave to their countrymen for retreat ; and thirdly, the natural in- crease of population among the Saxons, especially when settled in a country already reduced into a state of culture. Nor can the successive migrations from Germany and Norway be shown to have been insignificant. Nothing can be scantier than our historical materials for the fifth and sixth centuries. We cannot also but observe, that the silence of the Anglo-Saxon records, at a later time, as to Welsh inhabitants, except in a few passages, affords a presumption that they were not very considerable. Yet 222 EXPULSION OF BRITONS. [Chap. VIIL these passages, three or four in number (I do not include those which ob\ iously relate to the independent Welsh, whether Cambrian or Cumbrian), repel the hypothesis that they may have been wholly overlooked and confounded with the ceorls. Their composition was less than that of the ceorl in Wessex and Northumbria ; would not this have been mentioned in Kent if they had been found there ? It is by no means unimportant in this question, that we find no mention of bishops or churches remaining in the parts of England occupied by the Saxons before their conversion. If a large part of the population was British, though in subjection, what religion did they profess ? If it is said that the worshippers of Thor persecuted the Christian priesthood, why have we no records of it in hagiology ? Is it conceivable that all alike, priests and people, of that ancient Church, pusillanimously relinquished their faith ? Sir F. Palgrave, indeed, meets this difficulty by supposing that the doctrines of Christianity were never cordially embraced by the British tribes, nor had become the national religion. (Engl. Commonwealth, i. 154.) Perhaps this was in some measure the case, though it must be received with much limitation ; for the retention of heathen superstitions was not incompatible in that age with a cordial faith ; but it will not account for the disap- pearance of the original clergy in the English kingdoms. Their persecution, which I do not deny, though we have no evidence of it, would be part of the exterminating system ; they fled before it into the safe quarters of Wales. And to obtain the free exercise of their religion was pro- bably an additional motive with the nation, to seek liberty where it was to be found. It must have struck every one who has looked into Domesday Book, that we find for the most part the same manors, the same parishes, and known by the same names, as in the present age. England had been as completely appropriated by Anglo-Saxon thanes as it was by the Normans who supplanted them. This indeed, only carries us back to the eleventh century. But in all charters, with Note 130.] EXPULSION OF BRITONS. 223 which the excellent Codex Diplomaticus supplies us, we find the boundaries assigned ; and these, if they do not establish the identity of manors as well as Domesday Book, give us at least a great number of local names, which subsist, of course with the usual changes of lan- guage, to this day. If British names of places occur, it is rarely, and in the border counties, or in Cornwall. No one travelling through England would discover that any people had ever inhabited it before the Saxons ; save so far as the mighty Rome has left traces of her empire in some enduring walls, and a few names that betray the colonial city, the Londinium, the Camalodunum, the Lin- dum. And these names show that the Saxons did not systematically innovate, but often left the appellations of places where they found them given. Their own favourite terminations were ton and by ; both words denoting a village or township, like ville in French.* In each of these there gradually arose a church, and the ecclesiastical divi- sion for the most part corresponds to the civil ; though to this, as is well known, there are frequent exceptions. The central point of every township or manor was its lord, the thane to whose court the socagers and ceorls did service ; we may believe this to have been so from the days of the Heptarchy, as it was in those of the Confessor. The servi enumerated in Domesday Book are above 25,000, or nearly one-eleventh part of the whole. These seem generally to have been domestic slaves, and ])artly employed in tending the lord's cattle or swine, as Gurth, * The word tun denotes originally upon the continent of Europe it is any inclosure. " But its more usual, never used for such a purpose. In the though restricted sense, is that of a first two volumes of the Codex Di- dwelling, a homestead, the house and plomaticus, Dr. Lee computes the inland ; all, in short, that is surrounded proportion of local names compounded and bounded by a hedge or fence. It with tun at one-eighth of the whole is thus capable of being used to express number; a ratio which imavoidably what we mean by the word town, viz. leads us to the conclusion, that in- a large collection of dwellings; or, like closures were as much favoured by the the Scottish town, even a solitary farm- Anglo-Saxons as they were avoided by liouse. It is very remarkable that the their German brethren beyond the sea." largest proportion of the names of — Preface to Kemble's Codex Diplom. places among the Anglo-Saxons should vol. iii. p. xxxix. have been formed with this word, while 224 WELSH IN ENGLISH. [Chap. VIII. whom we all remember, the (hoj; tid^ooQyg of the thane Cedric in Ivanhoe. They are never mentioned as occu- piers of land, and have nothing to do with the villeins of later times. A genuine Saxon, as I have said, could oidy become a slave by his own, or his forefather's default, in not paying a weregild, or some legal offence ; and of these there might have been many. The few slaves whose names Mr. Turner has collected from Hickes and other authorities, appear to be all Anglo-Saxon. (Hist, of An- glo-Saxons, vol. iii. p. 92.) Several others are mentioned in charters quoted by Mr. Wright, in the 30th volume of the " Archseologia," p. 220. But the higher proj)ortion which servi bore to villani and bordarii, that is, free ceorls, in the western counties, those in Gloucestershire being almost one-third, may naturally induce us to suspect that many were of British origin ; and these might be sometimes in preedial servitude. All inference, however, from the census in Domesday as to the particular state of the enumerated inhabitants, must be conjecturally proposed. 131. REMAINS OF WELSH IN ENGLISH LANGUAGE. Edit. 1826, vol. ii. p. 387. Edit. 1841, vol. ii. p. 68. It is but just to mention a partial exception, according to a considerable authority, to what has been said in the text as to the absence of British roots in the English language ; though it can but slightly affect the general proposition. Mr. Kemble remarks the number of minute distinctions in describing the local features of a country, which abound in the Anglo-Saxon charters, and the difficulties which occur in their explanation. One of these relates to the language itself. " It cannot be doubtful that local names, and those devoted to distinguish the natural features of a country, possess an inherent vitality, which even the urgency of conquest is frequently unable to destroy. A race is rarely so entirely removed as not to form an integral, Note 132.] THE WITENAGEMOT. 225 although subordinate, part of the new state based upon its ruins ; and in the case where the cukivator continues to be occupied with the soil, a change of master will not necessarily lead to the abandonment of the names by which the land itself, and the instruments or processes of labour are designated. On the contrary, the conquering race are apt to adopt these names from the conquered ; and thus, after the lapse of twelve centuries and innumerable civil convulsions, the principal words of the class described yet prevail in the language of our people, and partially in our literature. Many, then, of the words which we seek in vain in the Anglo-Saxon dictionaries, are, in fact, to be sought in those of the Cymri, from whose practice they were adopted by the victorious Saxons, in all parts of the country ; and they are not Anglo-Saxon, but Welsh (?. e. foreign, Wylisc) very frequently unmodified either in meaning or pronunciation." (Preface to Codex Diplom. vol. iii. p. 15.) Though this bears intrinsic marks of probability, it is yet remarkable that, in a long list of descriptive words which immediately follows, there are not six for which Mr. Kemble suggests a Cambrian root ; and of these some, such as comb, a valley, belong to parts of England where the British long kept their ground. 132. THE WITENAGEMOT. Edit. 1826, vol. ii. p. 388. Edit. 1841, vol. ii. p. 69. The constituent pnrts of the witenagemot cannot be certainly determined, though few parts of the Anglo- Saxon polity are more important. A modern writer espouses the more popular theory. " There is no reason extant for doubting that every thane had the right of appearing and voting in the witenagemot, not only of his Q 226 THE WITENAGEMOT. [Chap. VlII. shire, but of the whole kingdom, without however being- bound to personal attendance, the absent being considered as tacitly assenting to the resolutions of those present." (Lappenberg, Hist, of England, vol. ii. p. 317.) Pal- grave, on the other hand, adheres to the testimony of the Historia Eliensis, that forty hydes of land were a neces- sary qualification ; which of course would have excluded all but very wealthy thanes. He observes, and I believe with much justice, that " proceres terrse" is a common designation of those who composed a curia rfyis, syn- onymous, as he conceives, with the witenagemot. Mr. Thorpe ingeniously conjectures, that " inter proceres terrse enumerari" was to have the rank of an earl; on the ground that five hydes of land was a qualification for a common thane, whose heriot, by the laws of Canute, was to that of an earl as one to eight. (Ancient Laws of Anglo-Saxons, p. 81.) Mr. Spence supposes the rank annexed to forty hydes to have been that of king's thane. (Inquiry into Laws of Europe, p. 311.) But they were too numerous for so high a qualification. Mr. Thorpe explains the word witenagemot thus : — " The supreme council of the nation, or meeting of the witan. This assembly was summoned by the king ; and its members, besides the archbishop or archbishops, were the bishops, duces, eorls, thanes, abbots, priests, and even deacons. In this assembly laws, both secular and eccle- siastical, were promulgated and repealed ; and charters of grants made by the king confirmed and ratified. Whether this assembly met by royal summons, or by usage at stated periods, is a point of doubt." (Glossary to Ancient Laws.) This is not remarkably explicit : aldermen are distin- guished from earls, and duces, an equivocal word, from both* ; and the important difficulty is slurred over by a * Dux appears to be sometimes used posed dux- to signify, at least occasion- in the subscription of charters for thane, ally, a peculiar dignity, called, in Anglo- more commonly for alderman. Thane is Saxon, Heretoch (herzog, Germ.), This generally, in Latin, minister. (Codex word frequently occurs in the later Diplomat, passim.) Some have sup- period. Mr. Thorpe says: — "This Note 132.] THE WITENAGEMOT. 227 general description, thanes. But, what thanes, remains to be inquired. The charters of all Ang-lo- Saxon sovereigns are attested, not only by bishops and abbots, but by laymen, described, if by any Saxon appellation, as aldermen, or as thanes. Their number is not very considerable ; and some appear hence to have inferred, that only the superior or royal thanes were present in the witenagemot. But, as the signatures of the whole body could not be required to attest a charter, this is far too precarious an inference. Few, however, probably, are found to believe that the lower thanes flocked to the national council, whatever their rights may have been ; and if we have no sufficient proof that any such privileges had been recognised in law or exercised in fact, if we are rather led to consider the sithcundman, or sixhynder, as dependent merely on his lord, in something very analogous to a feudal relation, we may reasonably doubt the strong position which Lappen- berg, though following so many of our own antiquaries, has laid down. Probably the traditions of the Teutonic democracy led to the insertion of the assent of the people in some of the Anglo-Saxon laws. But it is done in such a manner as to produce a suspicion, that no substan- tial share in legislation had been reserved to them. Thus in the preamble of the laws of Withroed, about 696, we read, " The great men decreed, with the suffrages of all, these dooms." Ina's laws are enacted *' with all my ealdormen, and the most distinguished witan of my people." Alfred has consulted " his witan." And this is the uniform word in all later laws in Anglo-Saxon. Canute's in Latin run — "Cum consilio primariorum meorum." We have not a hint of any numerous or popular body in the Anglo-Saxon code. title, among the Anglo-Saxons, was, provinces formed out of the kingdoms as it implies, given originally to the of the Heptarchy were bestowed, and leader of an army ; but in the latter was sometimes used synonymously with days of the monarcliy it seems to have those of ealdorman and eorl." — Glos- become hereditary in the families of sary, voc. Heretoga. those on whom the government of the a2 228 THE WITENAGEMOT. [Chap. VIII. Sir F. Palgrave (i. 637-) supposes that the laws enacted in the witenagemot were not valid till accepted by the legislatures of the different kingdoms. This seems a paradox, though supported with his usual learning and ingenuity. He admits that Edgar " speaks in the tone of prerogative, and directs his statutes to be observed and transmitted by writ to the aldermen of the other sub- ordinate states." (p. 638.) But I must say that this is not very exact. The words in Thorpe's translation are — " And let many writings be written concerning these things, and sent both to ^Ifere, alderman, and to ^Ethel- wine, alderman, and let them [sendj in every direction, that this ordinance be known to the poor and rich." (p. 118.) " And yet," Sir F. P. proceeds, *' in defiance of this positive injunction, the laws of Edgar were not accepted in Mercia till the reign of Canute the Dane." For this, however, he cites no authority, and I do not find it in the Anglo-Saxon laws. Edgar says : — *' And I will that secular rights stand among the Danes with as good laws as they best may choose. But with the Eng- lish, let that stand which I and my witan have added to the dooms of my forefathers, for the behoof of all the people. Let this ordinance, nevertheless, be common to all the people, whether English, Danes, or Britons, on every side of my dominion." (Thorpe's Ancient Laws, p. 116.) But what does this prove as to Mercia f The inference is, that Edgar, when he thought any particular statute necessary for the public weal, enforced it on all his subjects, but did not generally meddle with the Danish usages. " The laws of the glorious Athelstan had no effect in Kent, the dependent apanage of his crown, until sanc- tioned by the witan of the shire." It is certainly true that we find a letter addressed to the king in the name of " episcopi tui de Kancia, et omnes Cantescyre thaini, comites et villani," thanking him " quod nobis de pace nostra preecipere voluisti et de commodo nostro qucerere et consulere, quia magnum inde nobis est opus divitibus et Note 132.] THE WITENAGKMOT. ' 229 pauperibus." But the whole tenor of this letter, which relates to the laws enacted at the witenagemot, or " grand synod " of Greatanlea (supposed near Andover), though it expresses approbation of those laws, and repeats some of them with slight variations, does not in my judg- ment amount to a distinct enactment of them ; and the final words are not very legislative. "Precamur, Domine, misericordiam tuam, si in hoc scripto alterutrum est vel nimis vel minus, ut hoc emendari jubeas secundum velle tuum. Et nos devote parati sumus ad omnia quae nobis prsecipere velis quae unquam aliquatenus implere valea- mus." (P. 91.) It is, moreover, an objection to considering this as a formal enactment by the witan of the shire, that it runs in the names of " thaini, comites et villani." Can it be maintained that the ceorls ever formed an integrant ele- ment of the legislature in the kingdom of Kent ? It may be alleged that their name was inserted, though they had not been formally consenting parties, as we find in some parliamentary grants of money much later. But this would be an arbitary conjecture, and the terms " omnes thaini," &c. are very large. By comites, we are to under- stand, not earls, who in that age would not have been spoken of distinctly from thanes, at least in the plural number, nor postponed to them, but thanes of the second order, sithcundmen, sixhynder. Alfred translates "comes" by " gesith," and the meaning is nearly the same. In the next year we have a very peremptory declaration of the exclusive rights of the king and his witan. *' Athel- stan, king, makes known, that I have learned that our * frith ' (peace) is worse kept than is pleasing to me, or as at Greatanlea was ordained, and my witan say that I have too long borne with it. Now, I have decreed, with the witan who were with me at Exeter at midwinter, that they [the frithbreakers] shall all be ready, themselves and with wives and property, and with all things, to go whither I will (unless from thenceforth they shall desist) on this condition, that they never come again to the coun- q3 ^230 BOROUGH MAGISTRATES. [Chap. VIII. try. And if they shall ever again be found in the country, that they be as g'uilty as he who may be taken with stolen goods (hand-habbende)." 133. BOROUGH MAGISTRATES IN THE WITENAGEMOT. Edit. 1826, vol. ii. p. 389. Edit. 1841, vol. ii. p, 69. Sir Francis Palgrave, a strenuous advocate for the antiquity of municipal privileges, contends for aldermen, elected by the people in boroughs, sitting and assenting among the king's witan. (Edinb. Rev. xxvi. 26.) " Their seats in the witenagemot were connected as inseparably with their office as their duties in the folk mote. Nor is there any reason for denying to the aldermen of the boroughs the rights and rank possessed by the aldermen of the hundreds ; and they, in all cases, were equally elected by the commons." The passage is worthy of con- sideration, like every thing which conies from this in- genious and deeply read author. But we must be stag- gered by the absence of all proof, and particularly by the fact that we do not find aldermen of towns, so described, among the witnesses of any royal charter. Yet it is possible that such a privilege was confined to the superior thanes, which weakens the inference. We cannot pretend, I think, to deny, in so obscure an inquiry, that some eminent inhabitants (I would here avoid the ambiguous word citizens) of London, or even other cities, might oc- casionally be present in the witenagemot. But were not these, as we may confidently assume, of the rank of thane ? The position in my text is, that ceorls or inferior freemen had no share in the deliberations of that assembly. Nor would these aldermen, if actually present, have been chosen by the court-leet for that special purpose, but as regular magistrates. " Of this great council," Sir F. P. NoT£ 134.] DIVISION OF COUNTIES. 231 says, in another place (Edinb. Rev. xxxiv. 336.), as con- stituted anterior to the Conquest, we know little more than the name." The greater room, consequently, for hy- pothesis. In a later work, as has been seen in the last note, Sir F. P. adopts the notion, that forty hydes of land were the necessary qualification for a seat in the witenage- mot. This is almost inevitably inconsistent with the pre- sence, as by right, of aldermen elected by boroughs. We must conclude, therefore, that he has abandoned that hypothesis. Neither of the two is satisfactory to my judgment. 134. DIVISION OF COUNTIES. Edit. 1826, vol. ii. p. 390. Edit. 1841, vol. ii. p. 70. For the division of counties, which were not always formed in the same age, nor on the same plan, see Palgrave, i. 116. We do not know much about the inland counties in general ; those on the coasts are in general larger, and are mentioned in history. All we can say is, that they all existed at the Conquest as at present. The hundred is supposed by Sir H. Ellis, on the authority of an ancient record, to have consisted of an hundred hydes of land, cultivated and waste taken to- gether. (Introduction to Domesday, i. 185.) But this implies equality of size, which is evidently not the case. A passage in the " Dialogus de Scaccario" (p. 31.) is conclusive: — '* Hyda a primitiva institutione in centum acris constat : hundredus est ex hydarum aliquot cen- tenariis, sed non determinatis ; quidam enim ex pluribus, quidam ex paucioribus hydis constat." q4 232 HUNDRED COURT. [Chap. Vin. 135. EARL AND THE COUNTY-COURT. Edit. 1826, vol. ii. p. 392- Edit. 1841, vol. ii. p. 72. The word alderman would have been better employed in this place than earl, for the greater part of the Anglo- Saxon age. The alderman was the highest rank after the royal family, to which he sometimes belonged. Every county had its alderman ; but the name is not applied in written documents to magistrates of boroughs before the Conquest. (Palgrave, ii. 350.) He thinks, however, that London had aldermen from time immemorial. After the Conquest the title seems to have become appropriated to municipal magistrates. • 186. HUNDRED COURT. Edit. 1826, vol. ii p. 392. Edit. 1841, vol. ii. p. 72. The hundred-court is passed over too slightly in the text, and what is said might have been more accurately expressed. This was held monthly, while that of the county was but twice in the year, as appears by the laws of Edgar (c.5.), of Canute (c. 18.), and of Henry I. (c.70? and it is not now evident to me how I could have thought that there was any ambiguity or fluctuation in that respect. The hundred-court was not properly held before the sheriff, but, under his writ, before its own hundred-man, or centenarius ; more often styled alderman, and in Norman times, bailitf or constable. It is, in the language of the law, the sheriff's tourn and leet. And in the Anglo-Saxon age, it was a court of justice for suitors Note 136.] HUNDRED COURT. 233 within the hundred, though it could not execute its process beyond that hmit. It also punished small offences, and was intrusted with the "view of frank-pledge," and the maintenance of the great police of mutual surety. In some cases, that is, when the hundred was competent to render judgment, it seems that the county-court could only exercise an appellant jurisdiction for denial of right in the lower tribunal. But in course of time the former and more celebrated court, being composed of far more conspicuous judges, and held before the bishop and the earl, became the real arbiter of important suits ; and the" court-leet fell almost entirely into disuse as a civil jurisdiction, contenting itself with punishing petty offences and keeping up a local police. The hundred-court, and indeed the hundred itself, do not appear in our Anglo- Saxon code before the reign of Edgar, whose regulations concerning the former are rather full. But we should be too hasty in concluding that it was then first established. Nothing in the language of those laws implies it. A theory has been developed in a very brilliant and learned article of the Edinburgh Review for 1822 (xxxvi. 287.)j justly ascribed to Sir F. Palgrave, which deduces the hundred from the hcerad of the Scandinavian kingdoms, the integral unit of the Scandinavian common- wealths. " The Gothic commonwealth is not an unit of which the smaller bodies politic are fractions. They are the units, and the commonwealth is the multiple. Every Gothic monarchy is in the nature of a confederation. It is composed of towns, townships, shires, bailiwicks, burghs, earldoms, dukedoms, all in a certain degree strangers to each other and separated in jurisdiction. Their magistrates therefore, in theory at least, ought not to emanate from the sovereign. . . . The strength of the state ascends from region to region. The representative form of government, adopted by no nation but the Gothic tribes, and originally common to them all, necessarily resulted from this federative system, in which the sovereign was compelled to treat the component members as possessing a several authority." 234 HUNDRED COURT. [Chap. YUI. The hundred was as much, according to Palgrave, the organic germ of the Anglo-Saxon commonwealth, as the hserad was of the Scandinavian. Thus the leet, held every month, and composed of the tything-men or head- boroughs, representing the inhabitants, were both the in- quest and the jury, possessing jurisdiction, as he conceives, in all cases civil, criminal, and ecclesiastical, though this, was restrained after the Conquest. William forbad the bishop or archdeacon to sit there ; and by the 17th section of Magna Charta, no pleas of the crown could be held before the sheriff', the constable, the coroner, or other bailiff" (inferior officer) of the crown. This was intended to secure for the prisoner, on charges of felony, a trial before the king's justices on their circuits; and from this time, if not earlier, the hundred-court was reduced to insignificance. That, indeed, of the county retaining its civil jurisdiction, as it still does in name, continued longer in force. In the reign of Henry I. or when the customal (as Sir F. Palgrave denominates what are usually called his laws) was compiled (which in fact was a very little later), all of the highest rank were bound to attend at it. And though the extended jurisdiction of the curia regis soon cramped its energy, we are justified in saying that the proceedings before the justices of assize were nearly the same in effect as those before the shire-mot. The same suitors were called to attend, and the same duties were performed by them, though under different presidents. The grand jury, it may be remarked, still corresponds, in a considerable degree, to the higher class of landholders bound to attendance in the county-court of the Saxon and Norman periods. I must request the reader to turn, if he is not already acquainted with it, to this original disquisition in the Edin- burgh Review. The analogies between the Scandinavian and Anglo-Saxon institutions are too striking to be dis- regarded, though some conclusions may have been' drawn from them, to which we cannot thoroughly agree. If it is alleged that we do not find, in the ancient customs of Note 136.] HUNDRED COURT. 285 Germany, that peculiar scale of society which ascends from the hundred, as a monad of self-government, to the collective unity of a royal commonwealth, it may he re- plied that we trace the essential principle in the payus^ or gau, of Tacitus, though perhaps there might be nothing numerical in that territorial direction ; that we have, in fact, the centenary distribution under peculiar magistrates in the old continental laws and other documents ; and that a large proportion of the inhabitants of England, ultimately coalescing with the rest, so far at least as to acknowledge a common sovereign, came from the very birthplace of Scandinavian institutions. In the Danelage we might expect more traces of a northern policy than in the south and west ; and perhaps they may be found.* Yet we are not to disregard the effect of countervailing agencies, or the evidence of our own records, which attest, as I must think, a far greater unity of power, and a more para- mount authority in the crown, throughout the period which we denominate Anglo-Saxon, than, according to the scheme of a Scandinavian commonwealth sketched in the Edinburgh Review, could be attributed to that very ancient and rude state of society. And there is a question that might naturally be asked, how it happens that, if the division by hundreds and the court of the hundred were parts so essential of the Anglo-Saxon commonwealth that all its unity is derived from them, we do not find any mention of either in the numerous laws and other docu- ments which remain before the reign of Edgar in the middle of the tenth century. But I am far from supposing that hundreds did not exist in a much earlier period. * Vide Leges Ethelredi. 23Q king's court. [Chap. Vm. 137. KING'S COURT BEFORE THE CONQUEST. Edit. 1826, vol. ii. p. .'596. Edit. 1841, vol. ii. p. 74. *' The judicial functions of the Anglo-Saxon monarchs were of a twofold nature ; the ordinary authority which the king exercised, like the inferior territorial judges, dif- fering perhaps in degree, though the same in kind ; and the prerogative supremacy, pervading all the tribunnals of the people, and which was to be called into action when they were unable or unwilling to afford redress. The jurisdiction which he exercised over his own thanes was similar to the authority of any other hlaford ; it resulted from the peculiar and immediate relation of the vassal to the superior. Offences committed in the fyrd or army were punished by the king, in his capacity of military commander of the people. He could condemn the cri- minal, and decree the forfeiture of his property, without the intervention of any other judge or tribunal. Further- more, the rights which the king had over all men, though slightly differing in " Danelage," from the prerogative which he possessed in Wessex and Mercia, allowed him to take cognizance of almost every offence accompanied by violence and rapine ; and amongst these " pleas of the crown," we find the terms, so familiar to the Scottish lawyer and antiquary, of " hamsoken," and " flemeii firth," or the crimes of invading the peaceful dwelling, and harbouring the outlawed fugitive. (Rise and Pro- gress of Engl. Commonwealth, vol. i. p. 282.) Edgar was renowned for his strict execution of justice. " Twice in every year, in the winter and in the spring, he made the circuit of his dominions, protecting the lowly, rigidly e^^amining the judgments of the powerful in each province, and avenging all violations of the law." (Id. p. 286.) He infers from some expressions in the history of Ramsey (Gale, iii. 441.) — "cum more assueto rex Cnuto Note 137.] KINg's COURT. 237 regni fines peragraret" — that these judicial eyres continued to be held. It is not at all improbable that such a king as Canute would revive the practice of Edgar ; but it was usual in all the Teutonic nations, for the king, once after his accession, to make the circuit of his realm. Proofs of this are given by Grimm, p. 237. In this royal court the sovereign was at least assisted by his " witan," both ecclesiastic and secular. Their con- sent was probably indispensable ; but the monarchical element of Anglo-Saxon polity had become so vigorous in the tenth and eleventh centuries, that we can hardly apply the old Teutonic principle expressed by Grimm. *' All judicial power was exercised by the assembly of freemen, under the presidence of an elective or hereditary superior." (Deutsche Rechts-Alterth. p. 74*9.) This was the case in the county-court, and perhaps had once been so in the court of the king. The analogies of the Anglo-Saxon monarchy to that of France during the same period, though not uniformly to be traced, are very striking. The regular jurisdiction over the king's domanial tenants, that over the vassals of the crown, that which was exercised on denial of justice by the lower tribunals, meet us in the two first dynasties of France, and in the early reigns of the third. But they were checked in that country by the feudal privileges, or assumptions of privilege, which rendered many kings of these three races almost impotent to maintain any autho- rity. Edgar and Canute, or even less active princes, had never to contend with the feudal aristocracy. They legis- lated for the realm ; they wielded its entire force ; they maintained, not always thoroughly, but in right and en- deavour they failed not to maintain, the public peace. The scheme of the Anglo-Saxon conmion wealth was better than the feudal ; it preserved more of the Teutonic cha- racter, it gave more to the common freeman as well as to the king. The love of Utopian romance, and the bias in favour of a democratic origin for our constitution, have led many to overstate the freedom of the Saxon conunon- wealth ; or rather, perhaps, to look less for that freedom 238 king's court. [Chap. VIII. where it is really best to be found, in the administration of justice, than in representative councils, which authentic records do not confirm. But in comparison to France or Italy, perhaps to Germany, with the exception of a few districts which had preserved their original customs, we may reckon the Anglo-Saxon polity, at the time when we know most of it, from Alfred to the Conquest, rude and defective as it must certainly appear when tried by the standard of modern ages, not quite unworthy of those affectionate recollections which long continued to attach themselves to its name. The most important part, perhaps, of the jurisdiction exercised by the Anglo-Saxon kings, as by those of France, was ob defectum justitice, where redress could not be obtained from an inferior tribunal, a case of no unusual occurrence in those ages. It forms, as has been shown in the second Chapter, a conspicuous feature in that feudal jurisprudence which we trace in the establishments of St. Louis, and in Beaumanoir. Nothing could have a more decided tendency to create and strengthen a spirit of loyalty towards the crown, a trust in its power and pa- ternal goodness. " The sources of ordinary jurisdiction," says Sir F. Palgrave, " however extensive, were less im- portant than the powers assigned to the king as the lord and leader of his people; and by which he remedied the defects of the legislation of the state, speaking when the law was silent, and adding new vigour to its adminis- tration. It was to the royal authority that the suitor had recourse when he could not obtain ' right at home,' though this appeal was not to be had, until he had thrice ' de- manded right' in the hundred. If the letter of the law was grievous or burdensome, the alleviation was to be sought only from the king. * All these doctrines are to be discerned in the practice of the subsequent ages ; in this place it is only necessary to remark, that the principle of law which denied the king's help in civil suits, until an endeavour had first been made to obtain redress in the * Edgar II. 2. ; Canute II. 16. ; Ethelretl, 17. Note 137.] KINg's COURT. ^239 inferior courts, became the leading allegation in the * Writ of Right Close,' this prerogative process being founded upon the default of the lord's court, and issued lest the king should hear any more complaints of want of justice. And the alleviation of ' the heavy law' is the primary source of the authority delegated by the king to his council, and afterwards assumed by his chancery and chancellor, and from whence our courts of equity are derived." (Rise and Progress of English Commonwealth, vol. i. p. 203.) I hesitate about this last position ; the " heavy law" seems to have been the legal fine or penalty for an offence. (Leges Edgar, tibi supra.) That there was a select council of the Anglo-Saxon kings, distinct from the \^itenagemot, and in constant attendance upon them, notwithstanding the opinion of Madox and of Allen (Edinb. Rev. xxxv. 8.), appears to be indubitable. " From the numerous charters granted by the kings to the Church and to their vassals, which are dated from the different royal vills or manors wherein they resided in their progresses through their dominions, it would appear that there were always a certain number of the optimates in attendance on the king, or ready to obey his summons, to act as his council when circum- stances required it. This may have been what afterwards appears as the select council." (Spence'sEquitableJurisdict. p. 72.) The charters published by Mr. Kemble in the Codex Ang.-Sax. Diplomaticus, are attested by those whom w^e may suppose to have been the members of this council, with the exception of some, which, by the number of witnesses and the importance of the matter, were pro- bably gianted in the witenagemot. The jurisdiction of the king is illustrated by the laws of Edgar. " Now this is the secular ordinance which I will that it be held. This then is just what I will ; that every man be worthy of folk-right, as well poor as rich ; and that righteous dooms be judged to him ; and let there be that remission in the ' bot' as may be becoming before God and tolerable before the world. And let no man apply to the king in any suit, unless he at home may not 240 king's court/ [CHAP.vm. be worthy of law, or cannot obtain law. If the law be too heavy, let him seek a mitigation of it from the king; and for any bot-ivorthy crime let no man forfeit more than his ' wer.'" (Thorpe's Ancient Laws, p. 112.) JBot is explained in the glossary, " amends, atonement, compen- sation, indemnification." This law seems not to include appeals for false judgment, in the feudal phrase. But they naturally come within the spiritof the provision; and "injustum judicium" is named in Leges Henr. Primi, c. 10, among the exclusive pleas of the crown. It does not seem clear to me, as Palgrave as- sumes, that the disputes of royal thanes with each other came before the king's court. Is there any ground for supposing that they were exempt from the jurisdiction of the county-court? Doubtless, when powerful men were at enmity, no petty court could effectively determine their quarrel, or prevent them from having recourse to arms; such suits would fall naturally into the king's own hands. But the jurisdiction might not be exclusively his ; nor would it extend, as of course, to every royal thane ; some of whom might be amenable, without much difficulty, to the local courts. It is said in the seventh chapter of the laws of Henry I., which are Anglo-Saxon in substance, con- cerning the business to be transacted in the county-court, where bishops, earls, and others, as well as " barons and vavassors," that is, king's thanes and inferior thanes in the older language of the law, were bound to be present : — *' Agantur itaque primo debita vere Christianitatis jure; secundo regis placita; postremo causae singulorum dignis satisfactionibus expleantur." The notion that the king's thanes resorted to his court, as to that of their lord or common superior, is merely grounded on feudal principles; but the great constitutional theory of jurisdiction in Anglo- Saxon times, as Sir F. Palgrave is well aware, was not feudal, but primitive Teutonic. " The witenagemot," says Allen, " was not only the king's legislative assembly, but his supreme court of judi- cature." Edinb. Rev. xxxv. 9 ; referring for proofs to Turner's History of the Anglo-Saxons. Nothing can be KoTE 138.] TRIAL BY JURY. 241 less questionable than that civil as well as criminal juris- diction fell \\'ithin the province of this assembly. But this does not prove that there Avas not also a less numerous body, constantly accessible, following the king's person, and though not, perhaps, always competent in practice to determine the quarrels of the most powerful, ready to dis- pose of the complaints which might come before it from the hundred or county courts for delay of justice or mani- fest wrong. Sir F. Palgrave's arguments for the existence of such a tribunal before the Conquest, founded on the general spirit and analogy of the monarchy, are of the greatest weight. But INIr. Allen had acquired too much a habit of looking at the j)opular side of the constitution, and, catching at every passage which proved our early kings to have been limited in their prerogative^ did not quite attend enough to the opposite scale. 138. TRIAL BY JURY. Edit. 1826, vol. ii. p. 40L Edit. 1S41, vol. ii. p. 78. Though the following note relates to a period subsequent to the Conquest, yet, as no better opportunity will occur for following up the very interesting inquiry into the origin and progress of trial l>yjury, I shall place here what appears most v.'orthy of the reader's attention. And, before we proceed, let me observe that the twelve thanes, mentioned in the law of Ethelred, quoted p. 399- (j). 7C.), appear to have been clearly analogous to our grand juries. Their duties were to present oHenders ; they cor- responded to the scabini or echevins of the foreign laws. Palgrave has, with his usual clearness, distinguished both compurgators, such as were previously mentioned in the text, and these thanes from real jurors. " Trial by com])ur- gators oifers many resemblances to a jury; for the dubious suspicion that fell upon the culprit might often be decided by their knowledge of his general conduct and conversa- R 249 TRIAL BY JIJUV. [Chap. VIIT. tion, or of some fact or circumstance which convinced them of his innocence. The thanes or echevins may equally be confounded with a jury; since the floating-, customary, unwritten law of the country was a fact to be ascertained from their belief and knowledge, and, unlike the suitors, they were sworn to the due discharge of their duty. Still, each class will be found to have some peculiar distinction. Virtually elected by the community, the echevins constituted a permanent magistracy, and their duty extended beyond the mere decision of a contested question ; but the jurors, when they were traversers, or triers of the issue, were elected by the king's officers, and impanelled for that time and turn. The juror deposed to facts, the compurgator ])ledged his faith." — English Commonw. i. 248. In the Anglo-Saxon h^ws, we find no trace of the trial of offences by the judgment, properly so called, of peers, though civil suits were determined in the county court. The party accused by the twelve thanes, on their presentment, or perhaps by a single person, was to sustain his oath of innocence by that of compurgators, or by some mode of ordeal. It has been generallv doubted whether trial by com- bat were known before the Conquest ; and distinct proofs of it seem to be wanting. Palgrave, however, thinks it rather probable, that, in questions affecting rights in land it may sometimes have been resorted to (p. 224.). But let us now come to trial by jury, both in civil and criminal proceedings, as it slowly grew up in the Norman and later periods ; erasing from our minds all prejudices about its English original, except in the form already mentioned of the grand inquest for presentment of offenders, and in that which the passage quoted in the text from the History of Ramsey furnishes — the reference of a suit already com- menced, by consent of both parties, to a select number of sworn arbitrators. I have neglected to observe, in this quotation, that the thirty-six thanes were to be upon oath, and consequently came very near to a jury. The ])eriod between the Conquest and the reign of Henry II. is one in which the two nations, not yet blended by the effects of intermarriage, and retaining the pride of XoTE 1.58.] TRIAL BY JURY. 24-3 superiority on the one hand, the jealousy of a depressed l)ut not vanquished spirit on tlie other, did not altogether fall into a common law. Thus we find in a law of the Conqueror, that wliile the Englishman accused of a crime hy a Norman had the choice of trial by combat or by ordeal, the Norman must meet the former, if liis Engiisli accuser thought fit to encounter him ; but if he dared not, as the insolence of the victor seems to presume, it Avas sufficient for the foreigner to purge himself by the oaths of his friends, according to the custom of Normandy. — Thorpe, p. 210. We have next in the Leges Henrici Primi, a treatise compiled, as I have mentioned, under Stephen, and not interded to pass for legislative*, numerous statements as to the usual course of procedure, especially on criminal charges. These are very carelessly put together, very concise, very obscure, and, in several places, very corrupt. It may be suspected, and cannot 1)e disj)roved, tliat in some instances tlie conq)iler has copied old statutes of tlie Anglo-Saxon period, or recorded old customs, which had already become obsolete. But be this as it may, the Leges Henrici Primi still are an inqjortant document for that obscure century which followed the Norman invasion. Li this treatise we find no allusion to juries; the trial was either before the court of the hundred or that of the terri- torial judge, assisted by his free vassals. But we do find the great original principle, trial by peers, and as it is called, per pais ; that is, in the presence of the country, opposed to a distant and unknown jurisdiction ; a prin- ciple trulv 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. " I nusquisque per ])ares suos judicandus est, et ejusdem provincial; peregrina auteni judicia modis • It may lie here observed, that, in to the city of London. A simihir in- all probability, the title, Lei^i's Henrici advertence has caused the well known Primi, has l)cen continned to the whole hook, commonly ascribed to Tliouias book fiom ttie first two chajiters, which a Kempis, to he called " I)e linitatione do really contain laws of Henry L, Chiisti," which is merely the title of namely, his general charter, and that the fiist chajjter. 244 TRIAL BY JUr.Y. [CuAP. VIII. omnibus submovemus." (Leges H. I. col.) It may be mentioned by the way, that these last words are taken from a capitulary of Ludovicus Pius, and that the com- piler has been so careless as to leave the verb in the first person. Such an inaccuracy might mislead a reader into the supposition, that he had before him a real law of Henry I. It is obvious that, as the court had no function but to see that the formalities of the combat, the ordeal, or the compurgation were duly regarded, and to observe whether the party succeeded or succumbed, no oath from them, nor any reduction of their numbers could be required. But the law of Normandy 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 history of the monk of Ramsey. It was in the development of this amelioration in civil justice, tliat we find instances during this period (Sir F. Palgrave has mentioned several) where a small number have been chosen from the county court, and sworn to declare the truth, when the judge might suspect the partiality or ignorance of the entire body. Thus in suits for the recovery of pjoperty, the public mind was gradually accustomed to see the jurisdiction of the free- holders in their court transferred to a more select number of sworn and well informed men. But this was not yet a matter of right, nor even ])robably of very common usage. It was in this state of things that Henry II. brought in the assize of novel disseisin. 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 sunmioned by the sheriff, and twelve more se- lected by them, forming the sixteen sworn recognitors, as they were called, by whose verdict the cause was deter- mined. "Est autem magnaassisa," says Glanvil (lib. ii, c. 7-) '* regale quoddam beneficium, dementia principis de consilio Note 138.] TRIAL BY JURY. 245 procerum poj)ulis iiidiiltum, quo vitffi honiiiiuin et status integritati tarn sa]ubriter cousulitur, ut in jure quod quis in libero soli tenemento possidet retinendo duelli casum decli- iiare possiiit homines ambiguum. Ac per hoc contingit insperatte et preniaturee mortis ultimum evadere supplicium, vel saltern perennis infamia? opprobrium, illius infesti et in- verecundi verbi quod in ore victi turpiter sonat consecuti vum. * Ex sequitate autem maxima prodita est legalis ista institutio. Jus enim quod post multas et longas dilationes vix evin- citur per duellum, per beneficium istius constitutionis com- modius et acceleratius expeditur." The whole proceedings on an assize of novel disseisin, \^hich 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 consequence rapidly to decline, are explained at some length by this ancient author, the chief justiciary of Henry II. Changes not less important WTre effected in criminal processes during the second part of the Norman period, \\'hich we consider 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 unblushing perjury; though it long afterwards was preserved in London and in boroughs, by some exemption Avhicli does not appear. This, howev^er, left the favourite, or at least the ancient and English, mode of defence, by chewing consecrated bread, handling hot iron, and other tricks called ordeals. But near the beginning of Henry III.'s reign, the church, grown wiser and more fond of her system of laws, abolished all kinds of ordeal in the fourth Lateran council. The combat remained ; but it v^as not applicable unless an injured prosecutor, or appellant, came forward to demand it. In cases w^here a i)arty was only charged on vehement suspicion of a crime, it was neces- sary to find a sul)stitute for the forbidden superstition. He might be com])elled, by a statute of Henry II., to ab- jure the realm. A writ of 3 Henry IH. directs that those • This was the word cruroi, or begging for liio, which was llioiighl the utmost disgrace. R 3 246 TllIAL BY JURY. [CnAr. Vlll. against ^vhom the suspicions \vere very strong, should he kept in safe custody. But this was absohitely incompa- tible Avith English liberty and ^vith Magna Charta. "No further enactment," says Sir F. Palgrave, "was made; and the usages which already prevailed led to a general adop- tion of the proceeding which had hitherto existed as a pri- vilege or as a favour, that is to say, of proving or disprov- ing the testimony of the first set of inquest-men, by the testimony of a second array; and the individual, accused by the appeal, or presented by the general opinion of the hundred, was allowed to defend himself by the particular testimony of the hundred to which he belonged. For this purpose another inquest was impannelled, sometimes com- posed of twelve persons, named from the * visne', and three from each of the adjoining townships; and some- times the very same jurymen who had presented the offence, might, if the culprit thought fit, be examined a second time, as the witnesses or inquest of the points in issue. But it seems worthy of remark, that ' trial by inquest' in criminal cases never seems to have been introduced, except into those courts which acted by the king's writ or com- mission. The presentment or declaration of those officers which fell within the cognisance of the hundred jury, or the leet jury, the representatives of the ancient echevins, 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 j)etty jury upon criminal charges came in ; it is of the reign of Henry III., and not earlier. And it is to be remarked, as a confirmation of this view, that no one was compellable to plead ; that is, the inquest was to be of his own choice. But if he declined to endure it, he was remanded to prison, and treated with a severity which the statute of Westminster 1., in the third year of Edward I., calls peine forte et dare ; extended after- Avards, by a cruel interpretation, to that atrocious punish- ment 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 l)y jury established, both in real actions, XoTi; 1.38.] TRIAL BY JURY. '247 or suits affecting property in land, and in criminal ])ro- cedure, the former preceding by a little the latter. But a new question arises as to the province of these early juries ; and the view lately taken is very different from that which has been commonly received. The writer whom we have so often had occasion to quote, has presented trial by jury in what may be called an altogether new light ; for though Reeves, in his " His- tory of the English Law," almost translating Glanvil and Bracton, could not help leading an attentive reader to something like the same result, I am not aware that any thing approaching to the generality and fulness of Sir Francis Palgrave's statements can be found in anv earlier work than his own. " Trial by jury, according to the old English law, was a proceeding essentially diilerent from the modern tri- bunal, still bearing the same name, by which it has been replaced ; and, whatever merits belonged to the original mode of judicial investigation — and they were great and unquestionable, though accompanied by many imperfec- tions — such benefits are not to be exactly identified with the advantao^es now resultinof from the efreat bulwark of English liberty. Jurymen, in the present dav, 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 theui is their decla- ration of the judgment which thev have formed. But the ancient jurymen were not impannelled to examine into the credibility of the evidence : the question was not discussed and argued before them : thev, the jurymen, were the witnesses themselves ; and the verdict was substantiallv the examination of these witnesses, who, of their own knowledge, and without the aid of other testimonv, afforded their evidence respecting the facts in (juestion, to the best of their belief. In its primitive form, a trial by jury was, therefore, onlv a trial by witnesses ; and jurv- men were distinguished from any other witnesses only bv customs which imposed upon them the obligation of an oath, and regulated their numler, and which prescribed 11 1 248 TUIAL BY JURY. [Cuap. VILI. their rank, and defined the territorial quahfications from whence they obtained their degree and influence in society. " I find it necessary to introduce this description of the ancient ' Trial by Jury' because, unless the real functions of the original jurymen be distinctly presented to the reader, his familiar kno\vledge 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 supposed that it has descended to us unchanged from the days of Alfred ; and the patriot who claims the jury as the 'judg- ment by his peers,' secured by Magna Charta, can never have suspected how distinctly the trial is resolved into a mere examination of witnesses." (Palgrave, i. 243.) This theory is sustained by a great display of erudition, which fully establishes that the jurors had such a know- ledge, 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. In the Grand Coustumier of Normandy, from which our writ of right was derived, it is said that those are to be sworn, " who were born in the neighbourhood, and \vho have long dwelt there ; and such ought they to be, that it may be believed they know the truth of the case, and that they will speak the truth when they shall be asked." This was the rule in our own grand assize. The knights who ap- peared in it ought to be acquainted with the truth, and if any were not so, they were to be rejected, and others chosen until twelve were unanimous witnesses. Glanvil (lib. ii.) furnishes sufficient proof, if we may depend on the language of the writs which he there inserts. It is to be remembered, that the transactions upon which an assize of modern disseisin, or writ of right, would turn, might frequently have been notorious. In the eloquent language of Sir F. Palgra\'e, " the forms, the festivities, and the ceremonies accompanying the hours of joy and the days of Note 13S.J TRIAL BY JURY. '219 sorrow, which form the distinguishing epochs in the brief chronicle of domestic life, imjiressed them upon the me- mory of the people at large. The parchment might be recommended by custom, but it was not required by law ; and they had no registers to consult, no books to open. By the declaration of the husband at the church door, the wife was endowed in the presence of the assembled rela- tions, and before all the merry attendants of the bridal train. The birth of the heir was recollected by the re- tainers who had participated in the cheer of the baronial hall ; and the death of the ancestor was proved by the friends, who had heard the wailings of tlie widow, or who had followed the corpse to the grave. Hence trial by jury was an appeal to the knowledge of the country ; and the sheriff, in naming his panel, performed his duty by summoning- those individuals from amonsfst the inhabitants of the country who were best acquainted with the points at issue. If, from peculiar circumstances, the witnesses of a fact were previously marked out and known, then they were particularly required to testify. Thus, when a charter was pleaded, the witnesses named in the attesting clause of the instrument, and who had been present in the folkmoot, the shire, or the manor court, when the seal was affixed by the donor, were included in the panel ; and when a grant had been made by parol, the wit- nesses were sought out by the sheriff and returned upon the jury." (Palgrave, p. 218.) Several instances g? recof/tiifion, that is, of jurors find- ing facts on their ov.n knowledge, occur in the very cu- rious chroni(;le of .Jocelyn de Brakelonde, ])ublished by the Camden Society, long after the " Rise and Progress of the Commonwealth." One is on a question, whether certain land was liberum ft ;uhim ecclesije an non. " Cumque inde summonita fuit recoGfuitio 12 mllitum in curia regis faci- enda, facta est in curia abbatis apud Herlavum per licen- tiam Ranulfi de Glanvilla, et juraverunt recognitores se nunquam scivisse illam terrain fuisse sej)aratam ab ccdesia." (p. 45.) Another is still more illustrative of the personal knowledge of the jury overruling written evidence. A QoO TRIAL BY JURY. [Chap. YIII. recognition was taken as to the right of the abbey over three manors. *' Carta nostra lecta in pubHco nullam vim habuit, quia tota curia erat contra nos. Juramento facto, (lixerunt miHtes se nescire de cartis nostris, nee de privatis cdnventionibus ; sed se credere dixerunt, quod Adam et pater ejus et avus a centum annis retro tenuerunt maneria in feudum firmum, unusquisque post alium, diebus quibus fuerunt vivi et mortui, et sic disseisiati sumus per judicium terra" (p. 91.)- This "judgment of the land " is, upon Jocelyn's testi- mony, rather suspicious ; since they seem to have set common fame against a written deed.- But we see by it, that ahhough parol testimony might not be generally ad- missible, the parties had a right to produce documentary evidence in support of their title. It appears at first to be an obvious difficulty in the way of this general resolution of jurors into witnesses, or of witnesses into jurors, that many issues, both civil and criminal, required the production of rather more recondite evidence than common notoriety. The known events of family history, which a whole neighbourhood could attest, seem not very likely to have created litigation. But even in those ages of simj)licity, facts might be alleged, the very ground-work of a claim to succession, as to which no assize of knights could speak from personal knowledge. This, it is said, was obviated by swearing the witnesses upon the panel, so that those who had a real knowledge of the facts in question might instruct their fellow jurors. Such, doubtless, was the usual course ; but difficulties would ofte^i stand in the way. Glanvil meets the question, What is to be done if no knights are acquainted with the matter in dispute ? by determining that persons of lower degree may be sworn. But what if women or villeins wei-e the witnesses ? What again, if the course of in- quiry should render fresh testimony needful ? It must appear, according to all our notions of judicial evidence, that these difficulties must not only have led to the dis- tinction of jurors from witnesses, but that no great length of time could have elapsed before the necessity of making XoTE 138] TRIAL BY JLUV. ^2.51 it was perceivetl. Yet our notions of judicial evideuce are not very apjilicable to the thirteenth century. The records preserved ^ive us reason to beheve that common fame had great influence upon these early incpiests. In criminal inquiries, especially, the previous fame of the accused seems to have generally determined the verdict. He was not allowed to sustain his iunocence by witnesses ; a barbarous absurdity, as it seems, which was gradually removed by indulgence alone ; but his Avitnesses were not sworn till the reign of Mary. If, however, the prosecutor or appellant, as he was formerly styled, was under an equal disability, the inequality will vanish, though the absurdity will remain. The prisoner had originally no defence, unless he could succeed in showing the weakness of the appellant's testimony, but by submitting to the or- deal, or combat, or by the compurgation of his neighbours. The jurors A\hen they acquitted him stood exactly in the light of these ; it was a more refined and impartial com- purgation, resting on their confidence in his former be- haviour. Thus let us take a record quoted by Palgrave, vol. ii. p. 181. ^^ Robert us filius Roherti de Ferrariis ap})ellat Runulfum de Futtesivartlie quod ipse venit in gardinum suum, in pace domini Regis, et nequiter assul- tavit Ro(jvrum hominem suum, et eum verberavit et vul- neravit, ita quod de vita ejus desjjcrabatur ; et ei robavit unum pallium et gladium et arcum et sagittas ; et idem Rogeras offert hoc probare per corpus suum, prout curia consideraverit ; et RajiulpJiiis \Qu\t et defendit totum de verbo in verbuu), et otfert domino Regi unam marcam argenti pro habenda incpiisitione per legales milites, utrum culpabilis sit inde, necne ; et prseterea dicit quod iste Rof/crus nunquam ante aj)pellavit eum, et petit ut hoc ei allocetur, — obl.itio recij)itur Juratores dicunt (piod revera contencio fuit inter gardinarium prsedicti Jiofjrrfi, Osmund nomine, et quosdam garciones, sed Ranulfus non fuit ibi, nee malecredunt eum, de aliqua roberia, vel de aliquo malo, facto eiden)." We have here a trial by jury in its very begiiming, for the payment of one mark by the accused, in order to have 0,5^ TRIAL BY JUKY. [Chap. VIII. an inquest instead of the combat, shows that it was not become a matter of right. We may observe that, though Robert was the prosecutor, his servant Roger, being the aggrieved party, and capable of becoming a witness, was ])ut forward as the appellant, ready to prove the case by combat. The verdict seems to imply that the jury had no bad opinion of Ranulf the appellee. The fourteenth book of Glanvil contains a brief account of the forms of criminal process in his age ; and here it appears that a wom.an could only be a witness, or rather an appellant, where her husband had been murdered, or her person assaulted. The words are worth considering: — "Duo sunt genera honiicidiorum; unum est, quod di- citur murdrum, quod nullo vidente, nullo sciente, clam per- petratur, prseter solum interfectorem et ejus complices ; ita quod mox non iissequatur clamor popularis juxta as- sisam super hoc proditam. In hujusmodi autem accu- satione non admittitur aliquis, nisi fuerit de consangui- nitate ipsius defuncti. Est et aliud homicidium quod constat in generali vocabulo, et dicitur simplex homicidium. In hoc etiam placito non admittitur aliquis accusator ad probationem, nisi fuerit mortuo consanguinitate conjunctus, vel homagio vel dominio, ita id de morte loquatm\ id sub visas sill tcstimonio. Prfeterea sciendum quod in hoc p'acito mulier auditur accusans aliquem de morte viri sui, si de visu loquatur (1, xiv. c. 3.). Tenetur autem mulier qupe proponit se a viro oppressam in pace domini regis, mox dum recens fuerit maleiicium vicinam villam adire, et ibi injuriam sibi illatam probis hominibus ostendere, et sanguinem, si quis fuerit effusus, et vestium scissiones; dchinc autem apud pra^positum hundredi idem facit. Postea quoque in pleno comitatu id publice proponat. Auditur itaque mulier in tali casu aliquem accusans, sicut et de alia qualibet injuria corpori suo illatam solet audiii" (c. 6.). Thus it appears that on charges of secret murder the kindred of the deceased, but no others, might be heard in court, as witnesses to common suspicion, since they could be no more. I add the e])ithet secret; but it was at that Note 138.] TRIAL BY JURY. 2-53 time implied in tlie word murdnun. But in every case of open homicide, the appellant, be it tlie wife or one of his kindred, liis lord or vassal, must have been actually present. Other witnesses probably, if such there were, would be placed on the panel. The woman was only a prosecutrix; and, in the other sex, there is no doubt that the prosecutor's testimony was heard. In claims of debt it was in the power of the defendant to wage his law; that is, to deny on oath the justice of the demand. This he was to sustain by the oaths of twelve compurgators, who declared their belief that he swore the truth ; and if he declined to do this it seems that he had no defence. But in the writ of right or other process aifecting real estate, the wager of law was never allowed; and even in actions of debt the de- fendant was not put to this issue, until witnesses for the plaintiff had been produced, " sine testibus fidelibus ad hoc inductis." This, however, was not in presence of a jury, but of the bailiff or judge (Magna Charta, c. 28.), and therefore does not immediately bear on the present subject. In htigation before the king's justices, in the curia regis, it must have been always necessary to produce witnesses, though if their testimony were disputed, it was necessary to recur to a jury in the county, unless the cause were of a nature to be determined by duel. A passage in Glanvil will illustrate this. A claim of villenage, when liberty was pleaded, could not be heard in the county court, but before the king's justices in his court. " Utroque auteni pnesente in curia hoc modo dirationabitur libertas in curia, siquidem producit is qui libertatem petit, plures de proximis et consanguineis de eodem stipite unde ipse exierit exe- untes, per quorum libertates, si fuerint in curiTi recognitse et ])robatce, liberabitur a jugo servitutis is qui ad libertatem proclamatur. Si vero contra dicatur status libertatis eo- rundeni productorum vel de eodem dubitatur, ad vicinetum erit recurrendum; ita quod per ejus veredictum sciatur utrum illi liberi homines an non, et secundum dictum Soi TRIAL BY JUIIY. [Oiiap. VIII. vicineti judicabitiir" (1. ii. c. 4.). The plea of villenage was never tried by combat. It is the oj3inion of Lord Coke, tliat a single accuser was not sufficient, at common law, to convict any one of high treason; in default of a second witness, " it shall be tried before the constable or marshal by combat, as by many records appeareth." (3 Inst. 26.) But, however this might be, it is evident that as soon as the trial of peers of the realm for treason or felony in the court of the higli steward became established, the practice of swearing wit- nesses on the panel must have been relinquished in such cases. " That two witnesses be required appeareth by our books, and I remember no authority in our books to the contrary. And this seemeth to be the more clear in the trial by the peers or nobles of the realm, because they come not de aliquo vicineto^ whereby they might take notice of the face in respect of vicinity, as other jurors may do." (Ibid.) But the court of the high steward seems to be no older than the reign of Henry IV., at which time the examination of witnesses before common juries was nearly, or completely, established in its modern form; and die only earlier case we have, if I remember right, of the conviction of a peer in parliament, that of Mortimer, in the 4th of Edward III., was expressly grounded on the notoriousness of the facts. (Rot. Pari. ii. 53.) It does not appear, therefore, indisputable by precedent, that any witnesses were heard, save the appellant, on trial of peeis of the realm in the twelfth or thirteenth centuries, tliough it is by no means improbable that such would have been the practice. Notwithstanding such exceptions, however, sufficient proofs remain, that the jury themselves, especially in civil cases, long retained their character of witnesses to the fact. If the recognitors, whose name bespeaks their office, were not all so well acquainted with the matters in controversy as to believe themselves competent to render a verdict, it was the practice to afforce the jury, as it was called, by rejecting these and filling their places with more sufficient witnesses, until twelve were found who agreed NoTK l.^S.] TlilAL BY JURY. 255 ill the same verdict.* (Glaiivil, 1. ii. c. 17') jNot that unanimity was demanded, for this did not become the rule till about the reign of Edward III. ; but twelve, as now on a grand jury, must concur, t And though this pro- fusion of witnesses seems strange to us, yet what they attested (in the age at least of Glanvil and for some time afterwards) was not, as at present, the report of their senses to the fact in issue, but all which they had heard and believed to be true; above all, their judgment as to the respective credibility of the demandant and tenant, heard in that age personally, or the appellant and appellee in a prosecution. Bracton speaks of atlbrciiig a panel by the addition of better-informed jurors to the rest, as fit for the court to order; " de consilio curiae aifortietur assisa ita quod apponantur alii juxta numerum majoris partis qute dis- senserit, vel saltern quatuor vel sex, et adjungantur aliis." The method of rejection used in Glanvil's time seems to have been altered. But in the time of Britton, soon afterwards, this afforcement, it aj)pears, could only he made with tbe consent of the ])arties ; though if, as his language seems to imply, the verdict was to go against the party refusing to have the jury afforced, no one would be likely to do so. Perhaps he means that this refusal would create a pre- judice in the minds of the jury almost certain to produce such a verdict. " It may be doubtful," says Mr. Starkie, " whether the doctrine of aftbrcement was applied to criminal cases. The account given by Bracton, as to the trial by the country on a criminal charge, is very obscure. It was to be by twelve jurors, consisting of milites or liberi et legales homines of the hundred and four villat8e."| But it is conjectured that the text is somewbat corrupt, and * By tlie jury, the reader will re- ton and the Year-hooks, dij^ested into member tiiat, in Glanvil's time, is Beeves's History of the Law. meant the recognitors, on an assize of f In 20 K. III., Chief Justice novel disseisin, or mort d'ancostor. Thorpe is said to have been reproved For these real actions, now al)olisliid, for taking a verdict from eleven jurors, he may consult a good chapter on them — Law Review, No. iv. p. 38:i. in Ulackstone, unless he prefer Brae- \ The history of trial by jury has 25(5 TRIAL BY JUUY. [Ch.vp. VIII. that four inhabitants of the vill were to be added to tlie twelve jurors. In some criminal cases, it appears from Bracton, that trial by combat could not be dispensed with ; because the nature of the charge did not admit of positive witnesses. *' Oportet quod defendat se per corpus suum quia patria nihil scire potest de facto, nisi per pra^sum- tionem et per auditum, vel per mandatum [?]] quod qui- dem non sufficit ad probationem pro appellando nee pro appellate ad liberationem." This indicates, on the one hand, an advance in the appreciation of evidence since the twelfth century ; common fame and mere hearsay were not held sufficient to support a charge. But on the other hand, instead of presuming the innocence of a party against whom no positive testimony could be alleged, he was preposterously called npon to ])rove it by combat, if the appellant was convinced enough of his guilt to demand that precarious decision. It appears clear from some pas- sages in Bracton that, in criminal cases, other witnesses might occasionally be heard than the parties themselves. Thus, if a man were charged with stealing a horse, he says that either the prosecutor or the accused might show that it Mas his own, bred in his stable, known by certain marks, which could hardly be but by calling witnesses. It is not improbable that witnesses were heard distinct from the jury, in criminal cases, before the separation had been adopted in real actions. At a later time, witnesses are directed to be joined to the inquest, but no longer as parts of it. " We find in the 23d of Edw. III." (I quote at present the words of Mr. Spence, — Equitable Jurisdiction, p. 129-), "the wit- nesses, instead of being summoned as constituent mem- bers, were adjoined to the recognitors or jury in assizes, to afford to the jury the benefit of their testimony, but without having any voice in the verdict. This is the first indication we have of the jury deciding on evidejice for- been very ably elueii!a!etl by Mr. mous, I venture to quote by bis name. Starkie, in tbe fourtli number of tbe I have been assisted in the text by this Law Review, which, tliough anony- paper. Note 138.] TRIAL BY JURY. 2.07 mally produced, and it is the connecting' link between tlie ancient and modern jury." * But it will he remembered, what Mr. Spence certainly did net mean to doubt, that the evidence of the demandant in an assise, or writ of right, and of the prosecutor or appellant in a criminal case, had ahsays been given in open court ; and the tenant or ap- pellee had the same right ; but the latter probably was not sworn. Nor is it clear that the court would refuse other testimony if it were offered during the course of a trial. The sentence just quoted, however, appears to be substan- tially true ; except that the words " formally produced " imply something more like the modern practice than the facts mentioned warrant. The evidence in the case re- ported in 23 Ass. 1 1 . ^^'as produced to none but the iury. Mr. Starkie has justly observed, that " the transition was now almost imperceptible to the complete separation of the witnesses from the inquest. And this step was taken at some time before the 11th of Henry IV.t ; namely, that all the witnesses were to give their testimony at the bar of the court ; so that the judges might exclude those incompetent by law, and direct the jury as to the weight due to the rest." " This effected a change in the modes of trying civil cases ; the importance of which can hardly be too highly estimated. Jurors from being, as it were, mere reci])ients and depositaries of knowledge, exer- cised the more intellectual foculty of forming conclusions from testimony ; a duty not only of high importance \\ith * The reference is to the Year Book, But in the next year (12 H. IV. 7.) 23 Ass. 11. It was adjudged that the witnesses are directed to be joined to the witnesses could not be challenged like inquest (as in 23 Ass. 1 1.) ; and one of jurors ; " car ils doive-nt rien te- the judges is reported to have said, this moigner fors ceo qu'ils verront et had often been done ; yet we might in- oiront. Et I'assise fut pris, et les fer that the practice was not so gene- temoins ajoints a eux."- This has no ral as to pass witliout comment. This appearance of the introduction of a looks as if the separation of the wit- new custom. Above fifty years had nesses, by tlieir examination in open ela))sed since Bracton wrote, so that court, were not quite of s o early a the change might have easily crept in. date as Mr. Starkie and Mr. Spence t The Year Book of 1 1 H. IV., to suppose. But, perhaps, botli modes of which a reference seems here to be procedure might be concurrent for a made, has not been consulted by me. certain time. 258 TRIAL BY JURY. [Cuap. VIII. a view to truth and justice, but also collaterally in encour- aging' habits of reflection and reasoning (aided by the instructions of the judges), ^vhich must have had a great and most beneficial eft'ect in promoting' civilisation. The exercise of the control last adverted to, on the part of the iudges, was the foundation of that system of rules in re- gard to evidence, which has since constituted so large and im])ortant a branch of the law of England." (Spence, p. 129.) The obscurity that hangs over the origin of our modern course of procedure before juries is far from being wholly removed. We are reduced to conjectural inferences from brief passages in early law-books, written for contem- poraries, but which leave a considerable uncertainty, as the readers of this note will be too apt to discover. If we say that our actual trial by jury was established not far from the beginning of the fifteenth century, we shall per- haps approach as nearly as the diligence of late inquirers has enabled us to proceed. But in the time of Fortescue, whose treatise De Laudibus Legum Anglipe was written soon after 1450, we have the clearest proof, that the mode of procedure before juries by viva voce evidence was the same as at present. It may be presumed that the function of the advocate and of the judge to examine witnesses, and to comment on their testimony, had begun at this time. The passage in Fortescue is so full and perspicuous, that it deserves to be extracted. " Twelve good and true men being sworn as in the manner above related, legally qualified, that is, having over and besides their moveable possessions in land sufli- cient (as was said) wherewith to maintain their rank and station ; neither suspected by, nor at variance with either of the parties ; all of the neighbourhood ; there shall be read to them, in English, by the court, the record and nature of the plea, at length, which is depending between the parties ; and the issue 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 Note 138] TRIAL CY JURY. '■259 of the court, shall declare and lay open to the jury all and singular the matters and evidences vvhereby they think they may be able to inform the court concerning the truth of the point in question ; after v/hich each of the parties has a liberty to produce before the court all such witnesses as they please, or can get to appear on their behalf; who being- chai'ged upon their oaths shall give in evidence all that they know touching the truth of the fact concerning which the parties are at issue. And if necessity 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 in- duce another witness of the same side to give his evidence in the same words, or to the very same effect. The whole of the evidence being gone through, the jurors shall con- fer together at their pleasure, as they shall think most conv^enient, 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 jus- tices ujx>n 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 ver- dict" (c. 2G.). Mr. Amos indeed has observed in his edition of For- tescue (p. 93.), " The essential alteration which has since taken place in the character of the jury, docs not apjiear to have been thoroughly effected till the times of Edward VI. and Mary. Jurors are often called testes." 13ut though this apjiellation might be retained from the usage of older times, I do not see what was left to effect in the essential character of a jury, when it had reached the stnge of hearing the witnesses and counsel of the parties in open court. The result of this investigation, suggested perhaps by s 2 S60 TRIAL BY JURY. [Ciiap. VUL Reeves, but fo]lo^^•ed up by Sir Francis Palgrave for the earlier, and by Mr. Starkie for the later period, is to sweep away from the ancient constitution of England wliat has always been accounted both the pledge of its freedom, and the distinctive type of its organisation, trial by jury, in the modern sense of the word, and according to modern functions. For though the passage just quoted from Fortescue is conclusive as to his times, these were but the times of the Lancastrian kings ; and we hav^e been wont to talk of Alfred, or at least of the Anglo-Saxon age, when the verdict of twelve sworn men was the theme of our praise. We have seen that, during this age, neither in civil nor in criminal proceedings, it is possible to trace this safeguard for judicial purity. Even when juries may be said to have existed in name, the institution denoted but a small share of political wisdom, or at least provided but indifferently for impartial justice. The mode of trial by witnesses returned on the panel, hearing no evidence beyond their own in open court, unassisted by the sifting acuteness of lawyers, laid open a broad inlet for credulity and prejudice, for injustice and corruption. Perjury was the dominant crime of the middle ages; encouraged by the preposterous rules of compurgation, and by the multi- plicity of oaths in the ecclesiastical law. It was the fre- quency of this offence, and the impunity which the estab- lished procedure gave to that of jurors, that produced the remedy by writ of attaint; but one which was liable to the same danger; since the jury on an attaint must, in the early period of that process, have judged on common fame, or on their own testimony, like those whose verdict they were called to revise; and where hearsay and tradition passed for evidence, it must, according to our stricter notions of penal law, have been very difficult to obtain an equitable conviction of the first panel on the ground of perjury. ^ The Chronicle, already quoted, by Jocelyn de Brake- londe, affords an instance, among multitudes, probably, that are unrecorded, where a jury flagrantly violated their duty. Five recognitors, in a writ of assise, came Note 138.J TRIAL BY JURY. 26 1 to Samson, Abbot of St. Edmund's Bury, the Chronicler's hero, the right of presentation to a church being- the ques- tion, in order to learn from him what they should swear, meaning to receive money. He promised them nothing, but bade them swear according to their consciences. They went away in wa-ath, and found a verdict against the abbey.* (P. 44.) Yet in its rudest and most imperfect form, the trial by a sworn inquest was far superior to the impious superstition of ordeals, the hardly less preposterous and unequal duel, the unjust deference to power in compurgation, when the oath of one thane counterbalanced those of six ceorls, and even to the free-spirited but tumultuary and unenlightened de- cisions of the hundred or the county. It may, indeed, be thought by the speculative ])hilosopher, or the practical lawyer, that in those early stages which we have just been surveying, from the introduction of trial by jury under Henry II. to the attainment of its actual perfection in the first part of the fifteenth century, there was little to warrant our admiration. Still let us ever remember, that we judge of past ages by an erroneous standard, when we wonder at their prejudices, much more when we forget our own. AVe have but to place ourselves, for a few * 1 may set down here one or two pronounced sentence of excommiinica- other passages from the same clironicle, tion against the offenders, illustrating the modes of trial in that The combat was not an authorised age. Samson offered that a riglit of mode of trial within boroughs ; they advowson should be determined l)y the preserved the old Saxon compurgation, claimant's oath, a method recognised And this may be an additional proof by the civil and canon law, and pre- of the antiquity of their privileges. A served, to a certain extent, by our free tenant of the celerariits of the courts of equity. " Cumqne miles abbey, " cui potus ct esca? cura " (Du- ille renuisset jurare, dilatum est jura- cange), being charged with robbery, mentum per consensum utriusque partis and vanquished in the combat, was sexdecim legalibus de hundredo, qui hanged. The burgesses of Bury said, juraverunt hoc esse jus ai)l)atis." that if he had been resident within the (p. 44.) The proceeding by jurors borough, it would not have come to was sometimes ajjplied even when tlie battle, but he would have purged iiim- .sentence belonged to the ecclesiastical self by the oaths of his neighl)ours, jurisdiction. A riot, with bloodshed, "sicut libertas est eorum qui manent in- having occurred, the abbot, acceptis fraburgum" (p. 74.). It is hard to pro- juramentis a sexdecim legalibus homi- noinu'e by which procedure the greater nil)us, et auditis eorum attestationibus, number of guilty persons escaped. s 3 262 TRIAL BY JURY. [Ciiap. YIII. minutes, in imagination among the English of the twelfth and thirteenth centuries, and we may better understand why tliey cherished and panted for the judicium parium, the trial by their peers, or, as it is emphatically styled, by the country. It stood in opposition to foreign lawyers and foreign law ; to the chicane and subtlety, the dilatory and expensive, thongh accurate, technicalities of Normandy, to tribunals where their good name could not stand them in stead, nor the tradition of their neighbours support their claim. For the sake of these, for the maintenance of the laws of Edward the Confessor, as in pious reverence they termed every Anglo-Saxon usage, they were willing to encounter the noisy rudeness of the county-court, and the sway of a potent adversary. Henry II., a prince not perhaps himself wise, but served by wise counsellors, blended the two schemes of ju- risprudence, as far as the times would permit, by the assise of novel disseisin, and the circuits of his justices in eyre. From this age we justly date our form of civil procedure, the trial by a jury (using- always that word in a less strict sense than it bears with us), replaced that by the body of hundredors ; the stream of justice purified itself in succes- sive generations, through the acuteness, learning, and in- tegrity of that remarkable series of men, whose memory lives chiefly among lawyers, I mean the judges under the house of Plantagenet ; and thus, while the common law bor- rowed from Normandy too much, ])erhaps, of its subtlety in distinction, and became as scientific as that of Rome, it maintained, without encroachment, the grand principle of the Saxon polity, the trial of facts by the country. From this principle (except as to that preposterous relic of bar- barism, the requirement of unanimity) may we never swerve — may we never be compelled, in wish, to swerve — by a contempt of their oaths in jurors, and a disregard of the just limits of their trust ! XoTE 139.] FRANK PLEDGE. 203 139. FRANK PLEOGE. Edit. 1826, vol. ii. p. 40S. Edit. 1841, vol. ii. p. 78. Sir F. Palgrave, who does not admit the apphcatioii of some of the laws cited in the text, says : — " At some pe- riod, towards the close of the Anglo-Saxon monarch}^, the freepledge was certainly established in the greater ])art of Wessex and Mercia, though, even there, some special ex- ceptions existed. The system was developed between the accession of Canute and the demise of the Conqueror : — - and it is not improbable but that the Normans completed wliat the Danes had begun." (Vol. ii. p. 123.) It is very remarkable, that there is no appearance of the frank pledge in that ])art of England which had formed the kingdom of Northumberland. (Vol. i. p. 202.) This indeed contradicts a passage, quoted in the text from the laws of Edward the Confessor, which Sir F. P. suspects to be interpolated. But we find a present- ment by the county of Westmoreland in 20 Ed. I. : — " Comitatus recordatur quod nulla Englescheria presen- tatur in comitatu isto, nee murdrum, nee est aliqua decenna nee visus francplegii nee manupastus in comitatu isto, nee unquam fuit in partibus borealibus citra Trentam." (Ibidem.) " It is impossible to speak positively to a ne- gative proposition ; and in the vast mass of these most valuable records, all of which are still unindexed, some entry relating to the collective frank pledge may be con- cealed. Yet from their general tenor, I doubt whether any will be discovered." The immense knowledge of records ])ossessed by Sir F. P. gives the highest weight to his judgment. S 4 ^264/ BOCLAND AND FOLCLAND. [Cuap. VIH. 140. BOCLAND AND FOLCLAND, Edit. 1826, vol. ii. p. 409. Edit. 1841, vol. ii. p. 83. It is impossible to support any longer the account of folcland given in the text. The nature of both tenures has been perspicuously illustrated by Mr. Allen, in his Inquiry into the Rise and Growth of the Royal Preroga- tive, from which I shall make a long extract. " The distribution of landed property in England by the Anglo-Saxons, appears to have been regulated on the same principles that directed their brethren on the Conti- nent. 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. Tlie former was called hochmd ; the latter I ap- prehend to have been that description of landed property, which was known by the name oi folcland. " Folcland, as the word imports, was the land of the folk, or people. It was the property of the community. It might be occupied in common, or possessed in severalty ; and, in the latter case, it was probably parcelled out to in- dividuals in tha folcfjemoti or court of the district, and the grant attested by the freemen who were then present. But, while it continued to be folcland, it could not be alienated in perpetuity ; and, therefore, on the expiration of the term for which it had been granted, it reverted to the community, and was again distributed by the same authority.* * Spelman describes folcland as Saxones duplici titulo possidebant : vol " terra popiilaris, quse jure communi scripti auctoritate, quod bocland voca- possidetur — sine scripto." (Gloss. Folc- bant — vel populi tcstimonio, quod land.) In another place he distinguishes folcland dixere." (lb. Bocland.) it accurately from bocland : — '' Pra?dia Note 140.] BOCLAND AND FOLCLAND. 2(J5 Bocland was held by book or charter. It was land thai had been severed by an act of government from the folc- land, and converted into an estate of perpetual inheritance. It might belong to the church, to the king, or to a sub- ject. It might be alienable and devisable, at the will of the proprietor. It might be limited in its descent, without any power of alienation in the possessor. It was often granted for a single life, or for more lives than one, with remainder in perpetuity to the church. It was forfeited for various delinquencies to the state. Estates in perpetuity were usually created by charter after the introduction of writing, and, on that account, boc- land and land of inheritance are often used as synonymous expressions. But at an earlier period they were conferred by the delivery of a staff, a spear, an arrow, a drinking horn, the branch of a tree, or a piece of turf ; and when the donation was in favour of the church, these symbolical re- presentations of the grant were deposited with solemnity on the altar; nor was this practice entirely laid aside after the introduction of title-deeds. There are instances of it as late as the time of the Conqueror. It is not, therefore, quite correct to say, that all the lands of the Anglo-Saxons were either folcland or bocland. When land was granted in perpetuity it ceased to be folcland ; but it could not with propriety be termed bocland, unless it was conveyed by a written instrument. Folcland was subject to many burthens and exactions from which bocland was exem])t. The possessors of folc- land were bound to assist in the reparation of royal vills and in other public works. They were liable to hn\e travellers and others quartered on them for subsistence. They were required to give hospitaHty to kings and great men in their j^rogresses through the country, to furnish them with carriages and relays of horses, and to extend the same assistance to their messengers, followers, and •servants, and even to the persons who had charge of their liawks, horses, and hounds. Such at least are the bur- thens from which lands are liberated, when converted by charter into bocland. 2()6 BOCLAND AND FOLCLAND. [Chap. VIII. Boclaiid was liable to none of these exactions. It was released from all services to the public, with the exception of contributing- to military expeditions, and to the repara- tion of castles and bridges. These duties or services were comprised in the phrase of trlnoda necessitas, 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. Some of the charters granting to the possessions of the Church an exemption from all services whatsoever, were genuine ; but the greater part are forgeries" (p. 142.). Bocland, we perceive by this extract, was not necessarily alodial, in the sense of absolute propriety. It might be granted for lives, as was often the case ; and then it seems to have been called Icen-land (preestita), lent or leased. (Palgrave, ii. o6l.) Such land, however, was not feudal, as I conceive, if we use that '\\ord in its legitimate Euro- ])ean sense ; though lehn is the only German word for a fief. Mr. Allen has found no traces of this use of the word among the Anglo-Saxons. (Appendix, p. 57.) Sir F. Palgrave agrees in general with Mr. Allen. * We find another great living authority on Anglo-Saxon and Teutonic law concurring in the same luminous solu- tion of this long-disputed problem. " The natural origin of folcland is the superabundance of good land above what was at once appropriated by the tribes, families, or gentes (msegburg, gelondan), who first settled in a waste or con- quered land ; but its existence enters into and modifies the system of law, and on it depends the definition of the march and the gau with their boundaries. Over the folc- land at first the king alcne had no controul ; it must have been apportioned by the nation in its solemn meeting ; earlier, by the shire or other collection of freemen. In * The law of real property, or hoc- plomaticiis furnishes the hcst ancient land, in the Annlo-Saxon period, is precedents, and is of course studied, to given in a inw pages, equally succinct the disregard, wliere necessary, of more and luminous, by Mr. Spence. Equit. defective authorities, by those who re- Jurisd. pp.20 — 25. The Codex Di- gard this portion of legal history. Note 140.] EOCLAXD AXU FOLCLAND. '^Gj Beowulf, the king' determines to build a palace, and dis- tribute in it to his comites, such g"old, silver, arms, and other valuables as God had given hiin, save the folcsceare and the lives of men — "butan folcsceare and feorum gu- mena" — which he had no authority to dispose of. This relative position of folcland to bocland is not confined to the Anglo-Saxon institutions. The Frisians, a race from ■whom we took more than has generally been recognised, had the same distinction. At the same time I differ from Grimm, who seems to consider folcland as the pure alod, bocland as the fief. " Folcland im gegensatz zu benefi- cium. Leges Edv. II ; das ist, reine alod, im gegensatz zu beneficium, lehen. Vgl. das friesische caplond und boc- land. As. p. 15." (D. R. A. p. 493.) I think the re- verse is the case ; and indeed we have one instance where a king exchanged a certain portion of folcland for an equal portion of bocland with one of his comites. He then gave the exchanged folcland all the privileges of bocland, and proceeded to make the bocland he had received in exchange, folcland." (Kemble's Codex Diplomaticus, i. p.l01..) It is of importance to mention that Mr. K,, when he wrote this passage, had not seen Mr. Allen's work * ; so that the independent concurrence of two such antiquaries in the same theory lends it very great support. In the second volume of the " Codex Diplomaticus," the editor adduces fresh evidence as to the nature of folcland, " the terra JincaJis, or public land grantable by the king or his council, as the representatives of the nation" (p. 9.). Mr. Thorpe, in the glossary to his edition of " Ancient Laws" (v. Folcland), quotes part of the same extract from Allen which I have given, and making no remark, must be understood to concur in it. Thus we may con- sider this interpretation in possession of the field, t The ^^'ord ft>lcland fell by degrees into disuse, and gave * Vol. ii. J). 'JO. verted into bocland l);.foix> the Conquest, f It seems to be a necessary infer- with the exception of the terra rcfjis, ciice fronr the evideice of Domes.lay if that were truly the re])resentat"ve of IJouk, tliat all England had been con- ancient folcland, as Allen supf.os.-s. 268 TERRITORIAL JURISDICTION. [Chap. VIII. place to the term terra re(/is, or crown land. (Allen, p. 160.) This indicates the growth of a monarchical theory which reached its climax, in this a])plication of it, after the Conquest, when the entire land of England was supposed to have been the demesne land of the king, held under him by a feudal tenure. 141. ANGLO-SAXON USE OF THE WORD VASSALLUS. Edit. 1826, vol. ii. p. 413. Edit. 1841, vol. ii. p. 86. The word vassallus occurs not only in the suspicious charter of Cenulf, quoted in a subsequent note, but in one of 952 (Codex Diplomat, ii. 303.), to which I was led by Mr. Spence (Equitable Jurisdiction, p. 44.), who quotes another from p. 323., which is probably a misprint ; but I have found one of Edgar, in 967« (Codex Diplomat, iii. 11.) I think that Mr. Spence, in the ninth and tenth chapters of his learned work, has too much blended the Anglo-Saxon man of a lord with the continental vassal ; which is a petitio princijni. Certainly the word was of rare use in England ; and the authenticity of Asserius, whom I have quoted as a contemporary biographer of Alfred, which is the common opinion, has been called in question by Mr. Wright, who refers that Life to the age of the Conquest. (Archa3ologia, vol. xxix.) 143. TERRITORIAL JURISDICTION, Edit. 1826, vol. ii. p. 417. Edit. 1841, vol. ii. p. 88. Mr. Kemble is of opinion that the words granting terri- torial jurisdiction do not occur in any genuine charter before the Confessor. (Codex Diplom. i. 43.) They are of constant occurrence in those of the first Norman reigns. Note 143.] FEUDAL TENURES. Q69 But the Normans did not understand them, and tlie words are often misspelled. He thinks, therefore, that the rights \vere older than the Conquest, and accounts for the raie mention of them hy the somewhat unsatisfoctory suppo- sition that tliey were so inherent in the possession of land as not to require particular notice. (See Spence, Equit. Juris, pp. 64. 08.) 143. FEUDAL TENURES. Edit. 182G, vol. ii, p. 418. Edit. 1S41, vol. ii. p. 89. It A\'ill ))rohably be never disputed again that lands were granted by a military tenure before the Conquest. Thus, l)esides the proofs in the text, in the laws of Canute, (c. 780' — " ^"^^ ^^^^ man who shall flee from his lord or from his comrade by reason of his cowardice, be it in the shi])fyrd, be it in the landfyrd, let him forfeit all he owns, and his own life; and let the lord seize his possessions, and his land which he previously gave him ; and if he have bucland, let that go into the king's hands." (Ancient Laws, p. 180.) And we read of lands called hlafordsijifn, lord's gift. (Leges Ethelred I., Ancient Laws, p. 1^2.5.) But these were not always feudal, or even hereditary; they Vvere, what was called on the Continent, priBstarisB, granted for life or for a certain term; and this, as has been ob- served above, seems to be the proper meaning of the term hen-lands. But tlie general tenure of lands was still alodial. " Taini lex est," says a curious docuuient on the rights, that is, obligations, of different ranks, published by Mr. Thorpe, — " ut sit dignusrectitudine testamenti sui (///.v l)oc-ri do not acquiesce in the positions of their hardy critic, to whom, without direct mention, they manifestly allude. *' From the relations of annalists and historians," they observe, " it has been inferred that during the reign of the Conqueror, and during a long- course of time from the Conquest, the archbishops, bishops, abbots and priors, earls and barons of the realm were regu- larly convened three times in every year, at three differ- ent and distinct places in the kingdom, to a general coun- cil of the realm. Considering the state of the country, and the habits and dispositions of the people, this seems highly improbable; especially if the word barones, or the words proceres or magnates, often used by writers, in de- scribing such assemblies, were intended to include all the persons holding immediately of the crown, who according to the charter of John, were required to be summoned to constitute the great council of the realm, for the purpose of granting aids to the Crown." (P. 449.) But it is not necessary to sup])ose this; those might have attended who lived near, or who were specially summoned. The com- mittee argue on the supposition that all tenants in chief must have attended thrice a year, which no one ])robably ever asserted. But that William and his sons did hold public meetings, de more^ at three several places, in every year, or at least very frequently, caimot be controverted without denying what respected historical testimonies affirm; and the language of these early writers inti- mates that they were numerously atteiided. Aids \vei"e not regularly granted, and laws much more rarely enacted SSi POWER IN ANGLO-NORMAN REIGNS. [CiiAr. VIII. in them; but they might still be a national council. But the constituent parts of such councils will be discussed in a subsequent note. It is to be here remarked, that, with the exception of the charters granted by William, Henry and Stephen, which are in general rather like confirmations of existing privi- leges than novel enactments, tliough some clauses appear to be of the latter kind, little authentic evidence can be found of any legislative proceedings from the Conquest to the reign of Henry H. The laws of the Conqueror, which we find in Ingulfus, do not come within this category ; they are a confirmation of English usages, granted by William to his subjects. " Cez sunt les leis et les custumes que li reis William grantad el pople de Engleterre apres le conquest de la terre. Iceles mesmes que li reis Edward sun cusin tint devant lui." These, published by Gale (Script. Rer. Anglic, vol. i.), and more accurately than before from the Holkham manuscript by Sir Francis Pal- grave, have sometimes passed for genuine. The real original, however, is the Latin text, first published by him with the French. (Eng. Commonw., vol. ii. p. 89.) The French translation he refers to the early part of the reign of Henry HI. At the time when Ingulfus is supposed to have lived, soon after the Conquest, no laws, as Sir F. Palgrave justly observes, were written in French, and he might have added, that we cannot produce any other spe- cimen of the language which is certainly of that age. (See Quarterly Review, xxxiv. 260.) It is said in the charter of Henry I., that the laws of Edward were re- newed by William with the some emendation. But the changes introduced by William in the tenure of land were so momentous, that the most cautious inquirers have been induced to presume some degree of common consent by those whom they so much affected. *' There seems to be evidence to show, that the great change in the tenure of land, and particularly the very extensive intro- duction of tenure by knight-service, was made by the con- sent of those principally interested in the land charged with the burthens of that tenure; and that the general XoTE 152.] POWER IN ANGLO-NORMAN REIGNS. 285 changes made in the Saxon laws by the Conqueror, form- ing of the two one people, was also effected by common consent ; namely, in the language of the charter of William with respect to the tenures, ' per commune concilium to- cius regni,' and with respect to both, as expressed in the charter of his son Henry, ' consilio baronum ;' though it is far from clear who were the persons intended to be so described." (Report of Lords' Committee, p. 50.) The separation of the civil and ecclesiastical jurisdictions was another great innovation in the reign of the Con- queror. This the Lords' Committee incline to refer to his sole authority. But Allen has shown by a writ of William, addressed to the bishop of Lincoln, that it was done " communi concilio, et consilio archiepiscoporum meorum, et cfeterorum episcoporum et abbatum, et om- nium principum regni mei." (Edinb. Rev. p. 15.) And the Domesday survey was determined upon, after a consulta- tion of William with his great council at Gloucester, in 1084. This would of course he reckoned a legislative measure in the present day ; but it might not pass for more than a temporary ordinance. The only la^^•s under Henry I., except his charter, of which any account re- mains in history (there are none on record) fall under the same description. The Constitutions of Clarendon, in 1164, are certainly a reo-ular statute : whoever mioht be the consentinjr parties, a subject to be presently discussed, these famous provisions were enacted in the great council of the nation. This is equally true of the Assises of Northampton, in 1 178. But the earliest Anglo-Norman law which is extant in a regular form, is the assise made at Clarendon for the preservation of the peace, probably between 1 1 ()5 and II7O. This remarkable statute, " quam dominus rex Henricus, consilio archiepiscoporum, et episcoporum, et ab- batum, cffiterorumque baronum suorum constituit," was first published by Sir F. Palgrave from a manuscript in the British Museum. (Engl. Commonw. i. 257- ii. 108.) In other instances the royal ])rerog;itive may ])erha})s have been held sufficient for innovations which, after the consti- QSG CHARTER OF WILLIAM I. [Cuap. VIII. tutioii 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 assise 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 assise was set in a full council of the realm, may possibly be doubtful. The committee incline to the affirmative, and remark, that a general proclamation to the same effect is mentioned in history, but merely as proceeding from the king, so that " the omission of the words ' communi consilio baronum' in the proclamation mentioned by the historian, though appearing in the ordi- nance, tends also to show, that though similar words may not be found in other similar documents, the absence of those words ought not to lead to a certain conclusion that the act done had not the authority of the same common council." (P. 84.) CHARTER OF WILLIAJM L Edit. 182G, vol. ii. p. 443. Edit. 1841, vol. ii. p. 105. By some oversight, for which I cannot now account, I have referred for this charter of the Conqueror to Roger de Hoveden's collection of his laws. It is not found there, and on looking back to my own notes, I find it rightly referred to Wilkins's " Leges Anglo- Saxonicse." This charter has been introduced into the new edition of Rymer's Foedera, and heads that collection. The Com- mittee of the Lords on the Dignity of a Peer, in their Second Report, have the following observations — " The printed copy is taken from the Red Book of the Ex- chequer, a document which has long been admitted in the Court of Exchequer as evidence of authority for certain purposes ; but no trace has been hitherto found of the original charter of William, though the insertion of a Note 153.] CHARTER OF WILLIAM I. QSJ copy in a book in the custody of tlie king's exchequer, resorted to by tlie judges of that court for other purposes, seems to afford reasonable ground for supposing that such a charter was issued, and that the copy so preserved is probably correct, or nearly correct. The copy in the Red Book is without date, and no circumstance tending to show its true date has occurred to the Committee ; but it may be collected from its contents, that it was probably issued in the latter part of that king's reign ; about which time it appears from history that he confirmed to his subjects in England the ancient Saxon laws, with altera- tions." (P. 50.') I retract the remark in my text, that this charter seems to comprehend merely the feudal tenants of the crown. This may be true of one clause ; but it is impossible to construe " omnes liberi homines totius monarchise," in so contracted a sense. The committee indeed observe, that many of the king's tenants were long after subject to tallage. But I do not suppose these to have been included in " liberi homines." The charter involves a promise of the crown to abstain from exactions frequent in the Con- queror's reign, and falling on mesne tenants and on others not liable to arbitrary taxation. This charter contains a clause : — " Hoc quoque prseci- pimus ut omnes habeant et teneant legem Edwardi Regis in omnibus rebus adjunctis his quae constituimus ad utili- tatem Anglorum." And as there is apparent reference to these words in the charter of Henry I. — " Legem Ed- wardi Regis vobis reddo cum illis emendationibus quibus pater mens eam emendavit consilio baronum suorum" — the committee are sufficiently moderate in calling this " a clause, teudiuf/ to f/ice in some degree autlienticity to the copy of the charter of William the Conqueror, inserted in the Red Book of the Exchequer." (P. 39.) This charter seems to be fully established : it deserves to be accounted the first remedial concession by the crown ; for it indi- cates, especially taken in connexion with public history, an arbitrary exercise of royal ])ower, M'hich neither the new nor the old subjects of the English monarchy reckoned QS8 CHARTER OF WILLIAM I. [CiiAr. VHI. lawful. It is also the earliest recogriition of the Anfflo- Saxon laws, such as they subsisted under the Confessor, and a proof both that the English were now endeavouring to raise their heads from servitude, and that the Normans had discovered some immunities from taxation, or some securities from absolute power, among the conquered people, in which they desired to participate. It is de- serving of remark, that the distinction of personal law, which, indeed, had almost expired on the Continent, was never observed in England ; at least, we have no evidence of it, and the contrary is almost demonstrable. The conquerors fell at once into the laws of the conquered, and this continued for more than a century. The charter of William, like many others, was more ample than effectual. " The Committee have found no do- cument to show, nor does it appear probable from any re- lation in history, that William ever obtained any general aid from his subjects by grant of a legislative assembly; though according to histoiy, even after the charter before- mentioned, he extorted great sums from individuals by various means, and under various pretences. Towards the close of his reign, when he had exacted, as stated by the editor of the first part of the Annals called the Annals of Waverley, the oath of fealty from the principal landholders of every description ; the same historian adds that Wil- liam passed into Normandy, *adquisitis magnis thesauris ab hominibus suis, super quos aliquam causam invenire poterat, sive juste sive inique' (words which import exac- tion and not grant), and he died the year following in Normandy." (p. 35.) The deeply learned reviewer of this report, has shown that the Annals of Waverley are of very little authority, and merely in this part a translation from the Saxon Chroni- cle. But the translation of the passage, quoted by the committee, is correct; and it was perhaps rather hypercri- tical to cavil at their phrase, that William obtained this money " by exaction and not by grant." They never meant that he imposed a general tax. That it was not by grant is all that their purpose required; the passage which they Note 154.] LAWS OF WILLIAM I. 289 quote shows that it was under some pretext, and often an unjust one, wliich is not very unHke exaction. It is highly probable that in promisincr this immunity from unjust exactions, William did not intend to abolish the ancient tax of Danegelt, or to demand the consent of his great council when it Avas thought necessary to impose it. We read in the Saxon Chronicle, that the king- in 1083 exacted a heavy tribute all over England, that is, seventy-two pence for each hyde. This looks like a Danegelt. The rumour of invasion from Denmark is set down by the chronicler under the year 1085 ; but proba- bly William had reason to be prepared. He may have had the consent of his great council in this instance. But as the tax had formerly been perpetual, so that it was a relaxation in favour of the subject to reserve it for an emergency, we may think it more likely that this imposi- tion was within his prerogative; that he, in other words, was sole judge of the danger that required it. It was, however, in truth, a heavy tribute, being six shillings for every hyde, in many cases, as we see by Domesday, no small proportion of the annual value, and would have been a grievous burthen as an annual payment. 154. LAWS OF WILIJAM L Edit. 182G, vol. ii. p. 443. note f. Edit. 1841, vol. ii. p. 106. note|. HoDY does not so much infer this from the words of Hoveden, as from the great alterations visible on the face of the laws. U 290 HENRY I. [Chap. ATII. 155. HENRY I. Edit. 1S2G, vol. ii. p. 443. Edit. 1841, vol. ii. p. 106. The accession of Henry inspired hopes into the Enghsh nation, wliich were not well realised. His marriage with Matilda, " of the rightful English kin," is mentioned with apparent pleasure by the Saxon Chronicler under the year 1100. And in a fragment of a Latin treatise on the English laws, praising them with a genuine feeling, and probably NA^ritten in the earlier part of Henry's reign, the author extols his behaviour towards the people, in contrast with that of preceding times, and bears explicit testimony to the confirmation and amendment of Edward's laws by the Conqueror and by the reigning king — "Qui non solum legem regis Eadwardi nobis reddidit, quam omni gaudiorum delectatione suscepimus, sed beati patris ejus emendationibus roboratam propriis institutionibus hone- stavit." See Cooper on Public Records (vol. ii. p. 423.); in which very useful collection the whole fiagment (for the first time in England) is published from a Cottonian manuscript. Henry ceased not, according to the Saxon Chronicle, to lay on many tributes. But it is reasonable to suppose that tallages on towns and on his demesne tenants, at that time legal, were reckoned among them. Notes 15G, 157.] NORMANS AND ENGLISH. 291 156. THIEVES HANGED AT LEICESTER. Edit. 1826, vol. ii. p. 444. note f. Edit. 1841, vol. ii. p. 106. note 1|. Mr. Turner translates this differently ; but, as I con- ceive, without attendino;' to the spirit of the context. (Hist, of Engl. vol. i. p. 174^) 157. INTERMIXTURE OF NORMANS AND ENGLISH. Edit. 1826, vol. ii. p. 444. note §. Edit. 1841, vol. ii. p. 106. note *!. This passage in a contemporary writer, being so un- equivocal as it is, ought to have much weight in the question which an eminent foreigner has lately raised, as to the duration of the distinction between the Norman and English races. It is the favourite theory of M. Thierry, pushed to an extreme length both as to his o^\^l 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 — un mingled, or at least undistinguishable, constituting a double people of sovereigns and subjects, becoming a noble order in the state, haughty, oppressive, powerful, or w'hat is in one \vord most odious to a French ear in the nineteenth century, aristocratic. It may be worthy of consideration, since the authority of this writer is not to be disregarded, ^^'hether the Norman blood were really blended with the native quite so soon as the reign of Henry II. ; that is, whether inter- marriages, in the superior classes of society, had become so frequent as to efface the distinction. M. Thierry ])ro- duces a few passages ^vhich seem to intimate its continu- ance. But these are too loosely worded to warrant much u 2 292 NORMANS AND ENGLISH. [CiiAr. VIII. regard ; and he admits, that after the reign of Henry I. we have no ])roof 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 H. 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 as- sumed by our kings (ignorant though they might be, in M. Thieriy's phrase, what was the vernacular word for that dignity), and that the Anglo-Normans are seldom, if ever, mentioned by that separate designation. England was their dwelling-place, English 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 descendants of Wil- liam's tenants in capite, and of others who seized on so large a portion of our fair country from the Channel to the Tweed, formed the chief part of that aristocracy which secured the liberties of the Anglo-Saxon race, as well as their own, at Runnymede; and which, sometimes as peers of the realm, sometimes as well-born commoners, placed successive barriers against the exorbitances 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 Summoni- tiones ad Parliamentum, speak for themselves; in all the earlier periods, and perhaps almost through the Plantagenet dynasty, we find a great preponderance of such as indicate a French source. New families sprung up by degrees, and are now sometimes among our chief nobility; but in general, if we find any at this day who have tolerable pretensions to deduce their lineage from the Conquest, they are of Norman descent; the very few Saxon families that may remain Avith an authentic pedigree in the male line, are seldom found in the wealthier class of gentry. This is of course to be taken with deference to the genealogists. And on this account I must confess that M. Thierry's opinion of Note 158.] VEL PER LEGEM TERR^. 293 a long-continued distinction of races has more semblance of truth as to this kingdom, than can be pretended as to France, without a blind sacrifice of undeniable facts at the altar of plebeian malignity. In the celebrated Lettres sur r Histoire de France, published about 18^20, there seems to be no other aim than to excite a factious animosity against the ancient nobility of France, on the preposterous hypothesis that they are descended from the followers of Clovis; that Frank and Gaul have never been truly inter- mingled ; and that a conquering race was, even in this age, attempting to rivet its yoke on a people who disdained it. This strange theory, or something like it, had been an- nounced, in a very different spirit, by Boulainvilliers in the last century. But of what family in France, unless pos- sibly in the eastern part, can it be determined with confi- dence, whether the founder were Frank or Gallo-Roman ? Is it not a moral certainty that many of the most ancient, especially in the south, must have been of the latter origin? It would be highly wTong to revive such obsolete distinc- tions in order to keep up social hatreds, were they founded in truth; but what shall we say, if they are purely chi- merical ? 158. VEL PER LEGEM TERRiE. Edit. 1826, vol. ii. p. 449. note *. Edit. 1841, vol. ii. p. 109. Perhaps the best sense of the disjunctiv^e will be per- ceived by remembering that " judicium parium" was gene- rally opposed to the combat or the ordeal, which were equally lex terras. V 3 294 BRACTON. [Chap. VIII. 159. OMISSION IN THE CHARTERS OF HENRY III. Edit. 1826, vol. ii. p. 453. Edit. 1841, vol. ii. p. 112. The omission was hardly for the motive given in the text ; the levying extraordinary aids without the consent of the great council was already illegal by the charters of William I., Henry L, Stephen, and Henry H. There was probably a different reason, which will be mentioned in a subsequent note. 160. BRACTON. Edit. 182Q, vol. ii. p. 40'0. Edit. 1841, vol. ii p. 1 J6. Allen has pointed out that the king might have been sued in his own courts, like one of his subjects, until the reign of Edward I., who introduced the method of suing by petition of right ; and in the Year Book of Edward HI., one of the judges says that he has seen a writ beginning — Prcecipe Henry rer/i Am/Uce. Bracton, however, ex- pressly asserts the contrary, as Mr. Allen owns; so that we may reckon this rather doubtful. Bracton has some remarkable words which I have omitted to quote : after he has broadly asserted that the king has no superior but God, and that no remedy can be had by law against him, he proceeds: — "Nisi sit qui dicat, quod universitas regni et baronagium suum hoc facere debeant et possint in curia ipsius regis." By ciu'ia we must here understand par- liament, and not the law courts. Note 161.] CURIA REGIS. 295 161. CURIA REGIS. Edit 182G, vol. ii. p. 462. Edit. 1841, vol. ii. p. 118. It appears to have been the opinion of Madox, and pro- bably has been taken for granted by most other anti- quaries, that this court, denominated A^ala or Curia Regis^ administered justice when called upon, as well as advised the crown in public affairs, during the first four Norman reigns as much as afterwards. Allen, however, main- tained (Edinb. Rev. xxvi. p. 3()4.), that " the adminis- tration of justice in the last resort belonged originally to the great council. It was the king's baronial court, and his tenants in chief were the suitors and judges." Their unwillingness and inability to deal with intricate questions of law, which after the sinijjler rules of Anglo-Saxon jurisprudence were superseded by the subtleties of Nor- mandy, became continually more troublesome, led to the separation of an inferior council from that of the legis- lature, to both which the name Curia Regis is for some time indifferently ajiplied by historians. This was done by Henry II., as Allen conjectures, at the great council of Clarendon in ll6l<. The Lords' Committee took another view, and one, it must be confessed, more consonant to the prevailing opinion. " The ordinary council of the king, properly denominated by the word * concilium' simply, seems always to have consisted of persons selected by him for that purpose ; and these persons in later times, if not always, took an oatli of office, and were assisted by the king's justiciaries or judges, who seem to have been con- sidered as members of this council ; and the chief jus- ticiar, the treasurer and chancellor, and some other great officers of the crown, who might be styled the king's con- fidential ministers, seem also to have been always members of this select council; the chief justiciar, from the high rank attributed to his office, generally acting as president. u 4 296 CURIA REGIS. [Chap. VIII. This select council was not only the king's ordinary council of state, but formed the supreme court of justice, deno- minated Curia Regis, which commonly assembled three times in every year, wherever the king held his court at the three great feasts of Easter, Whitsuntide, and Christmas, and sometimes also at Michaelmas. Its constant and important duty at those times was the administration of justice." (p. 20.) It has been seen in a former note, that the meetings de more, three times in the year, are supposed by Mr. Allen to have been of the great council, composed of the baronial aristocracy. The positions, therefore, of the Lords' Committee, were of course disputed in his cele- brated review of their Report. *' So far is it," he says, *' from being true that the term Curia Regis, in the time of the Conqueror and his immediate successors, meant the king's high court of justice, as distinguished from the legislature, that it is doubtful whether such a court then existed." (Ed. Rev. xxxv. 6.) This is expressed with more hesitation than in the earlier article, and in a subse- quent passage we read that " the high court of justice, to which the committee would restrict the appellation of Curia Regis, and of which such frequent mention is made under that name, in our early records and courts of law, was confirmed and fully established by Henry II., if not originally instituted by that prince." (p. 8.) The argument of Mr. Allen rests very much on the judicial functions of the witenagemot, which we may con- sider as maintained in its substantial character by the great councils or parliaments of the Norman dynasty. In this we may justly concur ; but we have already seen how far he is from having a right to assume that the Anglo-Saxon kings, though they might administer justice in the full meetings called witenagemots, were restrained from its exercise before a smaller body more permanently attached to their residence. It is certain that there was an appeal to the king's court for denial of justice in that of the lord having territorial jurisdiction, and as the words and the reason imply, from that of the sheriff. (Leg. Hen. I. c. 58.). Note 161.] CURIA REGIS. 297 This was also the law before the Conquest. But the plaintiff incurred a fine, if he brought his cause in the first instance before the king. (Thorpe's Ancient Laws, p. 85. ; and see Edinb. Rev. xxxv. 10.) It hardly appears evi- dent, that these cases, rare probably and not generally interesting, might not be determined ostensibly, as they would, on any hypothesis, be in reality, by the chancellor, the high justiciar, and other great officers of the crown, during the intervals of the national council ; and tin's is confirmed by the analogy of the royal courts in France, which were certainly not constituted on a very broad basis. The feudal court of a single barony might contain all the vassals, but the inconvenience would have become too great, if the principle had been extended to all the tenants- in-chief of the realm. This relates to the first four reigns, for which we are reduced to these grounds of probable and analogical reasoning, since no proof of the distinct existence of a judicial court seems to be producible. In the reign of Henry II. a court of justice is manifestly distinguishable, both from the select and from the greater council. " In the Curia Regis were discussed and tried all pleas immediately concerning the king and the realm ; and suitors were allowed, on payment of fines, to remove their plaints from inferior jurisdictions of Anglo-Saxon creation into this court, by which a variety of business was Avrested from the ignorance and ])artiality of lower tribu- nals, to be more confidently submitted to the decision of judges of high reputation. Some plaints were also re- moved into the Curia Regis by the express order of the king, others by the justices, tlien itinerant, who not unfrequently felt themselves incompetent to decide upon difficult points of law. Matters of a fiscal nature, together with the business performed by the Chancery, were also transacted in the Curia Regis. Such a quantity of mis- cellaneous business was at length found to be so perplexing and impracticable, not only to the officers of the Curia Regis, but also to the suitors themselves, that it became absolutely necessary to devise a remedy for the increasing evil. A division of that court into distinct departments was '298 CURIA REGIS. [CuAP. Vni. the consequence ; and thenceforth pleas touching the crown, together with common pleas of a civil and criminal jiature, were continued to the Curia Regis ; plaints of a fiscal kind were transferred to the Exchequer ; and for the Court of Chancery were reserved all matters unappro- priated to the other courts." (Hardy's Introduction to Close Rolls, p. 23.) Mr. Hardy quotes a passage from Benedict Abbas, a contemporary historian, which illustrates very remarkably the development of our judicial polity. Henry H., in 1176, reduced the justices in the Curia Regis from eighteen to five ; and ordered that they should hear and de- termine all writs of the kingdom — not leaving the king's court, but remaining there for that purpose ; so that if any question should arise M'hich they could not settle, it it should be referred to the king himself, and be decided as it might please him and the wisest men of the realm. And this reduction of the justices from eighteen to five, is said to have been .made per consilimn sapieiitium reyni sui ; which may, perhaps, be understood of parliament. But we have here a distinct mention of the Curia Regis, as a standing council of the king, neither to be confounded with the great council or parliament, nor with the select body of judges, which was now created as an inferior, though most important tribunal. From this time, and jjrobably from none earlier, we may date the commencement of the Court of King's Bench, which very soon acquired, at first indifterently with the council, and then exclusively, the appellation of Curia Regis. The rolls of the Curia Regis, or Court of King's Bench, begin in the sixth year of Richard I. They are regularly extant from that time ; but the usage of preserving a regular written record of judicial proceedings was certainly practised in England during the preceding reign. The roll of Michaelmas Term, in 9 John, contains a short transcript of certain pleadings in 7 Hen. H., *' proving that the mode of enrolment was then entirely settled." (Pal- grave's Introduction to Rot. Cur. Regis, p. 2.) This authentic precedent (in llGl), though not itself extant, Note IGL] CURIA REGIS. SUD must lead us to carry back the judicial character of the Curia Regis, and that in a ])erfectly regular form, at least to an early part of the reign of Henry II. ; and this is more probable than the date conjectured by Allen, the assembly at Clarendon in 1164.* But in fact the interruption of the regular assemblies of the great council, thrice a year, which he admits to date from the reign of Stephen, would necessitate, even on his hypothesis, the institution of a separate court or council, lest justice should be denied or delayed. I do not mean that in the seventh year of Henry II. there was a Court of King's Bench, distinct from the select council, which we have not any grounds for affirming, and the date of which I, on the authority of Bene- dict Abbas, have inclined to place several years lower, but that suits were brought before the king's judges by regular process, and recorded by regular enrolment. These rolls of the Cm'ia Re(/is, or the King's Court, held before his justices or justiciars, are the earliest consecutive judicial records in existence. The Olim Registers of the Parliament of Paris, next to our own in antiquity, begin in 1254. t (Palgrave's Introduction, p. 1.) Every reader, he observes, will be struck by the great quantity of business transacted before the justiciars. *' And when we recollect the heavy expenses which, even at this period, were attendant upon legal proceedings, and the difficulties of communication between the remote parts of the king- dom and the central tribunal, it must appear evident that so many cases would not have been prosecuted in the king's court, had not some very decided advantage been derived from this source." (p. 6.) The issues of fact, however, were remitted to be tried by a jury of the vicinage ; so that, possibly, the expense might not be quite so consider- able as is here suggested. And the jurisdiction of the county and hundred courts was so limited in real actions, • This discovery lias led Sir F. Pal- son to presume any written records in j;rave to correct his former opinion, his time. — English Cominonw. vol. ii. that the rolls of Curia Regis under p, 1. Richard I. are probably the first that f They are published in the Docu- cver existed, Glanvil giving us no rca- mens Inedits, 1839, by M. lieugnot. 300 JUSTICES OF ASSISE. [CiiAP. VIII. or those affecting land, by the assises of novel dissesin and mort d'ancestor, that there was no alternative but to sue before the courts at Westminster. It would be travelling beyond the limits of my design, to dwell longer on these legal antiquities. The reader will keep in mind the three-fold meaning of Curia Regis : the common council of the realm, already mentioned in a former note, and to be discussed again ; 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., and soon afterwards acquiring, exclusively, the denomination Curia Regis. In treating the judges of the Court of Exchequer as officers of the crown, rather than nobles, I have followed the usual opinion. But Allen contends that they were *' barons, selected from the common council of the realm, on account of their rank or reputed qualifications for the office." They met in the palace ; and their court was called Curia Regis, with the addition, " ad scaccarium." Hence Fleta observes, that after the Court of Exchequer was filled with mere lawyers, they were styled barons, because formerly real barons had been the judges; *'jus- ticiarios ibidem commorantes barones esse dicirnus, eo quod suis locis barones sedere solebant." (Edinb. Rev. XXXV. 11.) This is certainly an important remark. But in practice it is to be presumed that the king selected such barons (a numerous body, we should remember) as were likely to look well after the rights of the crown. The Court of Exchequer is distinctly traced to the reign of Henry I. 162. JUSTICES OF ASSISE. Edit. 1826, vol. ii. p. 463. Edit. 1841, vol. ii. p. 119. Justices in eyre, or, as we now call them, of assise, were sometimes commissioned in the reign of Henry I. Note 1G3.] HEREDITARY SUCCESSION. 301 (Hardy's Introduction to Close Rolls.) They do not ap- pear to have e^one their circuits regularly before 2i3 Hen. H. (II7G.) 163. HEREDITARY SUCCESSION OF KINGS. Edit. 1826, vol. ii. p. 472. Edit. 1841, vol. ii. p. 125. The theory of succession to the crown in the Norman period intimated in the text, has now been extensively received. " It does not appear," says Mr. Hardy, " that any of the early English monarchs exercised any act of sovereign power or disposed of public affairs till after their election and coronation These few examples appear to be undeniable proofs that the fundamental laws and in- stitutions of this kingdom, based on the Anglo-Saxon cus- tom, were at that time against an hereditary succession unless by common consent of the realm." (Introduction to Close Rolls, p. 35.) It will be seen that this abstinence from all exercise of power cannot be asserted without limitation. The early kings always date their reign from their co- ronation, and not from the decease of their predecessor, as is shown by Sir Harris Nicolas, in his Chronology of History, (p. 272.) It had been with less elaborate re- search pointed out by Mr. Allen, in his Inquiry into the Royal Prerogative. The former has even shown that an exception which Mr. Allen had made in respect of Richard I. of whom he supposes public acts to exist, dated in the first year of his reign, but before his coronation, ought not to have been made ; having no authority but a blunder made by the editors of Rymer's Foedera, in ante- dating, by one month, the decease of Henry II., and, fol- lowing up that mistake by the usual assumption that the successor's reign commenced innnediately, in placing some instruments bearing date in the first year of Richard, just twelve months too early. This discovery has been con- o02 HEREDITARY SUCCESSION. [CiiAP. VIII. firmed by iVIr. W. Hardy in the Sytli volume of the " Archffiologia " (p. 109.)j ^J means of a charter in the archives of the Duchy of Lancaster, where Richard, he- fore his coronation, confirms the right of Gerald de Cam- ville and his wife Nichola, to the inheritance of the said Nichola in England and Normandy, with an additional grant of lands. In this he calls himself, " Ricardus Dei gratia dominus Anglise." It has been observed, as another slighter circumstance, that he uses the form c(jo and mens, instead of nos and noster. Whatever, therefore, may have been the case in earlier reigns, all the kings, indeed, except Henry II., having come in by a doubtful title, we perceive that, as has been before said in the text on the authority of an historian, Richard I. acted in some respects as king before the title was con- stitutionally his by his coronation. It is now known that John's reign began with his coronation, and that this is the date from which his charters, like those of his prede- cessors, are reckoned. But he seems to have acted as king before. (Palgrave's Introduction to Rot. Cur. Regis, vol. i. p. 91. ; and further proof is adduced in the In- troduction to the second volume.) Palgrave thinks the reign virtually began with the proclamation of the king's peace, which was at some short interval after the demise of the predecessor. He is positive indeed that the Anglo-Saxon kings had no right before their acceptance by the people at their coronation. But, " after the Conquest" he proceeds, " it is probable, for we can only speak doubtingly and hypo- thetically, that the heir obtained the royal authority, at least for the purposes of administering the law, from the day that his peace was proclaimed. He was obeyed as chief magistrate, so soon as he was admitted to the high office of protector of the public tranquillity. But he was not honoured as the king, until the sacred oil had been poured upon him, and the crown set upon his head, and the sceptre grasped in his hand." (Introduct. to Rot. Cur. Reg. p. 92.) This hypothesis, extremely probable in all cases where no opposition was contemplated, is not entirely that of Notes 163] IIEREUITARY SUCCESSION. 303 Allen, Hardy, and Nicolas ; and it seems to imply an ad- mitted right, which indeed cannot be disputed in the case of Henry H., \vho succeeded by virtue of a treaty assented to by the baronage, nor is it likely to have been in the least doubtful when Richard I. and Henry HI. came to the throne. It is important, however, for the unlearned reader to be informed that he has been deceived by the almanacs and even the historians, who lay it down that a king's reign has always begun from the death of his pre- decessor : and yet, that,, although not bearing the royal name before his coronation, the interval of a vacant throne Mas virtually but of a few days ; the successor taking on him the administration without the royal title, by causing public peace to be proclaimed. The original principle of the necessity of consent to a king's succession was in some measure preserved, even at the death of Henry HI. in 1272, when fifty-six years of a single reign might have extinguished almost all per- sonal recollections of precedent. " On the day of the king's burial, the barons swore fealty to Edward I. then absent from the realm, and from this his reign is dated." Four days having elapsed between the death of Henry and the recognition of Edward as king, the accession of the latter \vas dated, not from his father's death, but from his own recognition. Henry died on the l6th of November, and his son was not acknowledged king till the 20th. (Allen's Inquiry, p. 44., quoting Palgrave's Parlia- mentary Writs.) Thus this recognition by the oath of fealty came in and was in the place of the coronation, though with the important difference, that there was no reciprocity. 304 PRIVATE WAR. [Chap. VIII. 164. PRIVATE WAR. Edit. 1S26, vol. ii. p. 480. Edit. 1841, vol. ii. p. ISO. Mr. Allen has differed from me on the lawfulness of private war, quoting another passage from Glanvil, and one from Bracton (Edinb. Rev. xxx. 168.) ; and I modified the passage, after the first edition, in consequence of his remarks. But I adhere to the substance of what I have said. It appears, indeed, that the king's peace was ori- ginally a personal security, granted by charter under his hand or seal, which could not be violated without in- curring a penalty. Proofs of this are found in Domesday, and it was a Saxon usage, derived from the old Teutonic iimndeburde. William I., if we are to believe what is written, maintained the peace throughout the realm. But the general proclamation of the king's peace at his accession, which became the regular law, may have been introduced by Henry II. Palgrave, to whom I am indebted, states this clearly enough. " Peace is stated in Domesday to have been given by the king's seal, that is, by a writ under seal. This practice, which is not noticed in the Anglo-Saxon laws, continued in the protections granted at a much later period ; though after the general law of the king's peace was established, such a charter had ceased to afford any special privilege. All the immunities arising from residence within the verge or ambit of the king's presence — from the truces, as they are termed in the Continental laws, \\'hich recurred at the stated times and seasons — and also from the " handselled " protection of the king, were then absorbed in the general declaration of the peace upon the accession of the new monarch. This custom was probably introduced by Henry II. It is in- consistent with the laws of Henry I. ; which, whether an authorised collection or not, exhibit the jurisprudence of that period, but it is wholly accordant with the subsequent Note 165.] ETYMOLOGY OF SOCAGE. 305 tenor of the proceedings of the Curia Regis." (EngHsh Commonwealth, vol. ii. p. 105.) A few words in Glanvil (those in Bracton are more ambiguous), which may have been written before the king's peace was become a matter of permanent law, or may rather refer to Normandy than England, ought not, in my opinion, to be set against so clear a declaration. The right of private war, in the time of Henry II., was giving way in France ; and we should always remember that the Anglo-Norman government was one of high prerogative. The paucity of historical evidence, or that of records, for private war as an usual practice, is certainly not to be overlooked. 165. ETYMOLOGY OF SOCAGE. Edit. 1826, vol. ii. p. 481. Edit. 1841, vol. ii» p. 131. It now appears strange to me, that I could have given the preference to Littleton's derivation of socage from soc de cliarue. The word sokeman, which occurs so often in Domesday, is continually coupled with soca, a franchise or right of jurisdiction belonging to the lord, whose tenant, or rather suitor, the sokeman is described to be. Soc is an idle and improbable etymology ; especially as at the time when sokeman was most in use, there was hardly a word of a French root in the language. Soc is plainly derived from seco^ and therefore cannot pass for a Teutonic word. 306 PARLIAMENT IN NORMAN REIGNS. [Chap. VITI. 166. CONFIRMATIO CHARTARUM. Edit. 1826,'vol. lii. p. 5. Edit. 1841, vol. ii. p. 138. The Conjirmatio Chartarum is properly denominated a statute, and always printed as such ; but in form, like Magna Charta, it is a charter, or letters patent, proceed- ing 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 Flanders, 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 wholly unlike those of Magna Charta. The Lords' Committee do not seem to reject the statute de tallar/io non concedcndo altogether, but say that, " if the manuscript containing it (in Corpus Christi College, Cambridge), is a true copy of a statute, it is undoubtedly a copy of a statute of the 25th, and not of a statute of the 34th of Edward L" (p. 230.) It seems to me on comparing the two, that the supposed statute de tallagio is but an imperfect transcript of the king's charter at Ghent. But at least, as one exists in an au- thentic form, and the other is only found in an unautho- rised copy, there can be no question which ought to be quoted. 167. CONSTITUTION OF PARLIAMENT IN NORMAN REIGNS. Edit. 1826, vol. iii. p. 15. Edit. 1841, vol, ii. p. 143. The constitution of parliament in this period, antecedent to the Great Charter, has been minutely and scrupulously investigated by the Lords' Committee on the dignity of a Note 167.] PARLIAMENT IN NORMAN REIGNS. 307 Peer in 1819- Two questions may be raised as to the lay portion of the great council of the nation from the Con- quest to the reign of John : — first, Did it comprise any members, whether from the counties or boroughs, not holding themselves, nor deputed by others holding in chief of the crown by knight-service or grand serjeanty ? secondly. Were all such tenants in capite personally, or in contemplation of law, assisting, by advice and suffrage, in councils held for the purpose of laying on burthens, or for permanent and important legislation ? The former of these questions they readily determine. The committee have discovered no proof, nor any likeli- hood from analogy, that the great council, in these Nor- man reigns, was composed of any who did not hold in chief of the crown by a military tenure, or one in grand serjeanty ; and they exclude, not only tenants in petty serjeanty and socage, but such as held of an escheated barony, or, as it was called, de honore. They found more difficulty in the second question. It has generally been concluded, and I may have taken it for granted in my text, that all military tenants in capite were summoned, or ought to have been summoned, to any great council of the realm, whether for the purpose of levying a new tax, or any other affecting the public weal. The committee, however, laudably cautious in drawing any positive inference, have moved step by step through this obscure path with a circumspection as ho- nourable to themselves, as it renders their ultimate judg- ment worthy of respect. *' The council of the kingdom, however composed (they are adverting to the reign of Henry I.), must have been assembled by the king's command ; and the king, therefore, may have assumed the power of selecting the persons to whom he addressed the command, especially if the object of assembling such a council was not to impose any burthen on any of the subjects of the realm exempted from such burthens except by their own free grants. Whether the king was at this time considered as bound by any constitutional law to address such command to X 2 308 PARLIAMENT IN NORMAN REIGNS. [Chap. VIII. any particular persons, designated by law as essential parts of such an assembly for all purposes, the committee have been unable to ascertain. It has generally been con- sidered as the law of the land, that the king had a right to require the advice of any of his subjects, and their per- sonal services, for the general benefit of the kingdom ; but as, by the terms of the charters of Henry and of his father, no aid could be required of the immediate tenants of the crown by military service, beyond the obligation of their respective tenures, if the crown had occasion for any extraordinary aid from those tenants, it must have been necessary, according to law, to assemble all persons so holding, to give their consent to the imposition. Though the numbers of such tenants of the crown were not ori- ginally very great, as far as appears from Domesday, yet if it was necessary to convene all to form a constitutional legislative assembly, the distances of their respective resi- dences and the inconvenience of assembling at one time, in one spot, all those who thus held of the Crown, and upon whom the maintenance of the Conquest itself must for a considerable time, have importantly depended, must have produced difficulties, even in the reign of the Con- queror ; and the increase of their numbers by subdivision of tenures must have greatly increased the difficulty in the reign of his son Henry : and at length, in the reigns of his successors, it must have been almost impossible to have convened such an assembly, except by general sum- mons of the greater part of the persons who were to form it ; and unless those who obeyed the summons could bind those who did not, the powers of the assembly, when con- vened, must have been very defective." (p. 40.) Though I do not perceive why we should assume any great subdivision of tenures, before the statute of Quia JEmptores, in 18 Edw. I. which prohibited sub-infeudation, it is obvious that the committee have pointed out the in- convenience of a scheme, which gave all tenants in capite (more numerous in Domesday than they perhaps were aware) a right to assist at great councils. Still, as it is manifest from the early charters, and explicitly admitted Note 167.] PARLIAMENT IN NORMAN REIGNS. 309 by the committee, that the king could raise no extraordinary contribution from his immediate vassals by his own au- thority, and as there was no feudal subordination between one of these and another, however differing in wealth, it is clear that they were legally entitled to a voice, be it through general or special summons, in the imposition of taxes which they were to pay. It will not follow, that they were summoned, or had an acknowledged right to be summoned, on the few other occasions when legislative measures were in contemplation, or in the determinations taken by the king's great council. This can only be inferred by presumptive proof or constitutional analogy. The eleventh article of the Constitutions of Clarendon in 1164, declares that archbishops, bishops, and all persons of the realm who hold of the king in capite^ possess their lands as a barony, and are bound to attend in the judg- ments of the king's court like other barons. It is plain from the general tenor of these constitutions, that " uni- versee personse regni" must be restrained to ecclesiastics; and the only words which can be important in the present discussion are, " sicut barones cseteri." " It seems," say the committee, " to follow that all those termed the king's barons were tenants-in-chief of the king ; but it does not follow that all tenants-in-chief of the king were the king's barons, and as such bound to attend his court. They might not be bound to attend, unless they held their lands of the king in chief, ' sicut baroniam,' as expressed in this article with respect to the archbishoj3s and other clergy." (p. 44.) They conclude, however, that " upon the whole, the Constitutions of Clarendon, if the existing copies be correct, afford strong ground for presuming, that owing suit to the king's great court rendered the tenant one of the king's barons or members of that court, though pro- bably in general none attended who were not specially summoned. It has been already observed that this would not include all the king's tenants-in-chief, and particularly those who did not hold of him as of his crown, or even to all who did hold of him as of his crown, but not by knight- service or grand serjeanty, which were alone deemed X 3 310 PARLIAMENT IN NORMAN REIGNS. [Chap. VIII. military and honourable tenures ; though whether all who held of the king as of his cro^\^l, by knight- service or grand serjeanty, did originally owe suit to the king's court, or whether that obligation was. confined to persons holding by a particular tenure, called tenure per baroniam^ as has been asserted, the Constitutions of Clarendon do not assist to ascertain." (p. 45.) But this, as they point out, involves the question, whether the Curia Re(/is, mentioned in these Constitutions, was not only a judicial, but a legis- lative assembly, or one competent to levy a tax on military tenants ; since by the terms of the charter of Henry I., confirmed by that of Henry II., all such tenants were clearly exempted from taxation, except by their own consents. They touch slightly on the reign of Richard I. with the remark, that *' the result of all which they have found with respect to the constitution of the legislative assem- blies of the realm, still leaves the subject in great obscu- rity.'* (p. 49.) But it is remarkable, that they have never alluded to tlie presence of tenants-in-chief, knights as well as barons, at the parliament of Northampton, under Henry H. They come, however, rather suddenly to the conclusion, that " the records of the reign of John seem to give strong ground for supposing, that all the king's tenants-in-chief by military tenure, if not all the tenants- in-chief*, were at one time deemed necessary members of the common councils of the realm, when summoned for ex- traordinary purposes, and especially for the purpose of ob- taining a grant of any extraordinary aid to the king ; and this opinion accords with what has generally been deemed originally the law in France, or other countries where what is called the feudal system of tenures has been es- tablished." (p. 54.) It cannot surely admit of a doubt, * This hypothetical clause is some- jeantj'. Yet the committee, as we what remarkable. Grand serjeanty is of have just seen, absolutely exclude these course included by parity under military from any share in the great councils service. But did any hold of the king of the Conqueror and his immediate in socage, except on his demesne lands? descendants. There might be some by petty ser- Note 167.] PARLIAMENT IN NORMAN REIGNS. 311 and has been already affirmed more than once by the committee, that for an extraordinary grant of money the consent of miHtary tenants-in-chief was required, long be- fore the reign of John. Nor was that a reign, till the en- actment of the Great Charter, when any fresh extension of political liberty was likely to have become established. But the difficulty may still remain with respect to " ex- traordinary purposes" of another description. They observe, afterwards, that " they have found no do- cument before the Great Charter of John, in which the term, ' majores barones' has been used, though in some subsequent documents, words of apparently similar import have been used. From the instrument itself it might be presumed that the term, ' majores barones' was then a term in some degree understood ; and that the distinction had, therefore, an earlier origin, though the Committee have not found the term in any earlier instrument." (p. 67.) But, though the Dialogue on the Exchequer, referred to the reign of Henry II., is not an instrument, it is a law-book of sufficient reputation, and in this we read : — " Quidam de rege tenent in capite quae ad coronam pertinent; baronias scilicet majores seu minores." (Lib. ii. cap. 10.) It would be trifling to dispute, that the tenant of a baronia major might be called a baro major. And what could the secinidcB di(/nitatis barones at Northamp- ton have been, but tenants in capite holding fiefs by some line or other distinguishable from a superior class ? * It appears, therefore, on the whole, that in the judg- ment of the Committee, by no means indulgent in their requisition of evidence, or disposed to take the more po- pular side, all the military tenants in capite were constitu- tionally members of the commune concilium of the realm * Mr. Spence has ingeniously con- as to what constituted one of tlie jectured, observing that in some pas- greater barons mentioned in the Magna sages of Domesday (he quotes two, but Charta of John and other early Nor- I only find one) the barons wlio held man documents ; for, by analogy to the more than six manors paid tlieir relief mode in which the relief was paid, the directly to the king, while those who greater barons were summoned by par- had six or less paid tiieirs to the sheriff ticular writs, the rest by one general (Yorkshire, 298. b.), that "this may summons through the sheriff." — His- tend to solve the disputed question tory of Equitable Jurisdiction, p. 40. X 4 312 PARLIAMENT IN NORMAN REIGNS. [Chap. VIII. during the Norman constitution. This commune conci- lium the committee distinguish from a magnum concilium^ though it seems doubtful whether there were any very defi- nite line between the two. But that the consent of these tenants was required for taxation they repeatedly acknow- ledge. And there appears sufficient evidence that they were occasionally present for other important purposes. It is, however, very probable that writs of summons were actually addressed only to those of distinguished name, to those resident near the place of meeting, or to the servants and favourites of the crown. This seems to be deducible from the words in the Great Charter, which limit the king's engagement to summon all tenants-in-chief, through the sheriff, to the case of his requiring an aid or scutage, and still more from the withdrawing of this promise in the first year of Henry III. The privilege of attending on such occasions, though legally general, may never have been generally exercised. The committee seem to have been perplexed about the word magnaies, employed in several recoids to express part of those present in great councils. In general they interpret it, as well as the word proceres, to include per- sons not distinguished by the name ^^ barones ;^^ a word which in the reign of Henry III. seems to have been chiefly used in the restricted sense it has latterly acquired. Yet in one instance, a letter addressed to the justiciar of Ireland, 1 Hen. III., they suppose the word rnagnates to "exclude those termed therein 'alii quamplurimi ; ' and consequently to be confined to prelates, earls, and barons. This may be deemed important in the consideration of many other instruments in which the word magnates has been used to express persons constituting the ' commune concilium regni.'" But this strikes me as an erroneous construction of the letter. The words are as follows : — " Convenerunt apud Glocestriam plures regni nostri mag- nates, episcopi, abbates, comites, et barones, qui patri nostro viventi semper astiterunt fideliter et devote, et alii quam- plurimi ; applaudentibus clero et populo, &c., publice fui- mus in regem Angliee inuncti et coronati." (p. 770 ^ Note 167.] PARLIAMENT IN NORMAN REIGNS. 313 think that magnates is a collective word, including the " alii quamplurimi." It appears to me that magnates^ and, perhaps, some other Latin words, correspond to the witan of the Anglo-Saxons, expressing the legislature in general, under which were comprised those who held pe- culiar dignities, whether lay or spiritual. And upon the whole we may be led to believe, that the Norman great council was essentially of the same composition as the witenagemot which had preceded it ; the king's thanes being replaced by the barons of the first or second degree, who, whatever may have been the distinction between them, shared one common character, one source of their legislative rights — the derivation of their lands as imme- diate fiefs from the crown. The result of the whole inquiry into the constitution of parliament, down to the reign of John, seems to be : — 1. That the Norman kings explicitly renounced all pre- rogative of levying money on the immediate military tenants of the crown, without their consent given in a great council of the realm ; this immunity extending also to their sub-tenants and dependants. 2. That all these tenants-in-chief had a constitutional right to attend, and ought to be summoned ; but whether they could attend without a summons is not manifest. 3. That the sum- mons was usually directed to the higher barons, and to such of a second class as the king pleased ; many being omitted for different reasons, though all had a right to it. 4. That on occasions when money was not to be demanded, but alterations made in the law, some of these second barons, or tenants-in-chief, were at least occasionally sum- moned ; but whether by strict right or usage does not fully appear. 5. That the irregularity of passing many of them over, when councils were held for the purpose of levying money, led to the provision in the Great Charter of John, by which the king promises that they shall all be summoned through the sheriff on such occasions ; but the promise does not extend to any other subject of parlia- mentary deliberation. (3. That even this concession, though but the recognition of a known right, appeared so dan- 314 PARLIAMENT IN NORMAN REIGNS. [Chap. VIII. gerous to some in the government, that it was withdrawn in the first charter of Henry III. The charter of .Tohn, as has just been observed, while it removes all doubt, if any could have been entertained, as to the right of every military tenant in capite to be summoned through the sheriff, when an aid or scutage was to be demanded, will not of itself establish their right of attending parliament on other occasions. The language, therefore, of my text is too unlimited. We cannot abso- lutely assume any to have been, in a general sense, members of the legislature except the prelates and the majores barones. But who were these, and how distin- guished ? For distinguished they must now have become, and that by no new provision, since none is made. The right of personal summons did not constitute them, for it is on Diajores barones, as already a determinate rank, that the right is conferred. The extent of property afforded no definite criterion ; at least some baronies, which appear to have been of the first class, comprehended very few knights' fees; yet it seems probable that this was the original ground of distinction.* The charter, as renewed in the first year of Henry HI., does not only omit the clause prohibiting the imposition of aids and scutages without consent, and providing for the summons of all tenants in capite before either could be levied, but gives the following reason for suspending this and other articles of King John's charter : — " Quia vero qusedam capitula in priori carta continebantur, qute gravia et dubitabilia videbantur, sicut de scuta granted the citizens leave to choose their own sheriffs. And his charter of 1215, permits them to elect annually their mayor. (Maitland's Hist, of London, pp. 74. 76.) We read, however, under the year 1200, in the ancient chronicle lately published, that twenty-five of the most discreet men of the city were chosen and sworn to advise for the city, together with the mayor. These were evidently different from the aldermen, and are the original common council of the city. They were, perhaps, meant in a later entry (1229) *• — " Omnes aldermanni et magnates civitatis per assensum universorum civium," * See the ensuing part of this note. than Norman, so that we may presume ■)■ This pedigree is elaborately, and the first mayor to have been of English with pious care, traced by Mr. Staple- descent ; but whether he were a mer- ton, in his excellent introduction to the chant, or a landholder living in the old chronicle of London, already quoted, city, must be undecided. The name Alwyn appears rather Saxon T 3 3^6 TOWNS BEFORE THE CONQUEST. [Chap. VIII. who are said to have agreed never to permit a sheriff to remain in office during two consecutive years. The city and hberties of London were not wholly under the jurisdiction of the several wardmotes and their alder- men. Landholders, secular and ecclesiastical, possessed their exclusive sokes, or jurisdictions, in parts of both. One of these has left its name to the ward of Portsoken. The prior of the Holy Trinity, in right of this district, ranked as an alderman, and held a regular wardmote. The wards of Farringdon are denominated from a family of that name, who held a part of them by hereditary right as their territorial franchise. These sokes gave way so gradually before the power of the citizens, with whom, as may be supposed, a perpetual conflict was maintained, that there were nearly thirty of them in the early part of the reign of Henry HL, and upwards of twenty in that of Edward. L With the exception of Portsoken, they were not commensurate with the city wards, and we find the juries of the wards, in the third of Edward L, presenting the sokes as liberties enjoyed by private persons or ec- clesiastical corporations, to the detriment of the crown. But, though the laws of these sokes trenched materially on the exclusive privileges of the city, it is remarkable that, no condition but inhabitancy being required in the thirteenth century for civic franchises, both they and their tenants were citizens, having individually a voice in mu- nicipal affairs, though exempt from municipal jurisdiction. I have taken most of this paragraph from a valuable though short notice of the state of London in the thirteenth century, published in the fourth volume of the Archeeological Journal (p. 273.), 1847. The inference which suggests itself from these facts, is, that London, for more than two centuries after the Con- quest, was not so exclusively a city of traders, a demo- cratic municipality, as we have been wont to conceive. And as this evidently extends back to the Anglo-Saxon period, it both lessens the improbability that the citizens bore at times a part in political affairs, and exhibits them in a new light, as lords and tenants of lords, as well as Note 174.] CHARTER OF HENRY I. TO LONDON. 327 what of course tliey 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 century, that a large proportion of the names are French ; indicating, perhaps, that the territorial proprietors whose sokes were intermingled with the city, had influence enough, through birth and wealth, to obtain an election. The general polity, Saxon and Norman, was aristocratic ; whatever infusion there might be of a more popular scheme of government, and much certainly there was, could not resist, even if resistance had been always the people's desire, the joint predominance of rank, riches, military habits, and 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 power, which bursting at times into precipitate and needless tu- mult easily repressed by force, kept on its silent course till, near the end of the thirteenth century, the rights of the citizens and burgesses in the legislature were consti- tutionally established. 174. CHARTER OF HENRY I. TO LONDON. Edit. 1826, vol. iii. p. 33. note *. Edit. 1841, vol. ii. p. 155. note |. It is said by Mr. Thorpe (Ancient Laws of England, p. 267.), that though there are ten witnesses, he only finds one who throws any light on the date ; namely, Hugh Bigod, who succeeded his brother William in 1120. But Mr. Thorpe does not mention in what respect he suc- ceeded. It was as dapifer rr(/is ; but he is not so named in the charter. (Dugdale's Baronage, p. 132.) The date, therefore, still seems problematical. T 4 328 LONDON. [Chap. Vm. 175. LONDON. Edit. 1826, vol. iii. p. 37. Edit. 1841, vol. ii. p. 158. A SINGULAR proof of the estimation in which the citizens of London held themselves in the reign of Richard I. occurs in the Chronicle of Jocelyn de Brakelonde (p. 56. — Camden Society, 1840.). They claimed to be free from toll in every part of England, and in every jurisdiction, resting their immunity on the antiquity of London (which was coeval, they said, with Rome), and on its rank as me- tropolis of the kingdom. " Et dicebant cives Lundonienses fuisse quietos de theloneo in omni foro, et semper et ubique, per totam Angliam, a tempore quo Roma primo fundata fuit, et civitatem Lundoniae, eodem tempore fundatam, talem habere debere libertatem per totam Angliam, et ratione civitatis privilegiatse quae olim metropolis fuit et caput regni, et ratione antquitatis." Palgrave inclines to think that London never formed part of any kingdom of the Heptarchy. (Introduction to Rot. Cur. Regis, p. 95.) But this seems to imply a republican city in the midst of so many royal states, which seems hardly probable, unless the meaning be that London was not parcel of any kingdom, so as to appear in its witenagemot. Certainly it seems strange, though I cannot explain it away, that the capital of England should have fallen, as we generally suppose, to the small and obscure kingdom of Essex. Winchester indeed, may be considered as having become afterwards the capital during the Anglo-Saxon monarchy, so far as that it was for the most part the residence of our kings. But London was always more populous. Note 176.] POPULATION OF LONDON. 329 176. POPULATION OF LONDON. Edit. 1826, vol. iii. p. 38. Edit. 1841, vol. ii. p. 158. If Fitz- Stephen rightly informs us, that in London there were 126 parish churches, besides 13 conventual ones, we may naturally think the population much under-rated at 40,000. But the fashion of building- churches in cities was so general, that we cannot apply a standard from modern times. Norwich contained sixty parishes. Even under Henry II., as we find by Fitz- Stephen, the prelates and nobles had town houses. * " Ad htec omnes fere episcopi, abbates, et magnates Anglias, quasi cives et municipes sunt urbis Lundonise ; sua ibi habentes sedificia prseclara ; ubi se recipiunt, ubi divites impensas faciunt, ad concilia, ad conventus celebres in urbem evocati, a domino rege vel metropolitan© suo, seu propriis tracti negotiis." The eulogy of London by this writer is very curious ; its citizens were thus early distinguished by their good eating, to which they added amusements less congenial to later livery-men, hawking, cock-fighting, and much more. The word cockney is not improbably derived from cocayne, the name of an imaginary land of ease and jollity. The city of London within the walls was not wholly built, many gardens and open spaces remaining. And the houses were never more than a single story above the ground-floor, according to the uniform type of English dwellings in the twelfth and following centuries. On the other hand, the liberties contained many inhabitants; the streets were narrower than since the fire of 1666; and the vast spaces now occupied by warehouses might have been covered by dwelling-houses. Forty thousand, on the whole, seems rather a low estimate for these two centuries ; but it is impossible to go beyond the vaguest conjecture. • See also the note on p. 31. 330 POPULATION OF LONDON. [Chap. Vm. The population of Paris in the middle ages has been estimated with as much diversity as that of London. M. Dulaure, on the basis of the taille in 1313, reckons the inhabitants at 49,110.* But he seems to have made un- warrantable assumptions where his data were deficient. M. Guerard, on the other hand (Documens Inedits, 1841), after long calculations, brings the population of the city in 1292, to 215,861. This is certainly very much more than we could assign to London, or probably any European city ; and, in fact, his estimate goes on two arbitrary postulates. The extent of Paris in that age, which is tolerably kno^^^l, must be decisive against so high a population, t The Winton Domesday, in the possession of the Society of Antiquaries of London, furnishes some important in- formation as to that city, which, as well as London, does not appear in the great Domesday Book. This record is of the reign of Henry L Winchester had been, as is well known, the capital of the Anglo-Saxon kings. It has been observed that " the opulence of the inhabitants may pos- sibly be gathered from the frequent recurrence of the trade of goldsmith in it, and the populousness of the town from the enumeration of the streets." (Cooper's Public Records i. 220.) Of these we find sixteen. ** In the petition from the city of Winchester to king Henry VI. in 1450, no less than nine of these streets are mentioned as having been ruined." As York appears to have con- tained about 10,000 inhabitants under the Confessor, we may probably compute the population of Winchester at nearly twice that number. * Hist, de Paris, vol. iii. p. 231. it gives double, which is incredible. In f John of Troyes says, in 1467, that the thirteenth and fourteenth centuries from sixty to eighty thousand men ap- the houses were still cottages : only four peared in arms. Dulaure (Hist, de streets were paved; they were very Paris, vol. iii. p. 505.) says this gives narrow and dirty, and often inundated 120,000 for the whole population ; but by the Seine. (lb. p. 198.) Note 177.] STATUTE OF ACTON BURNELL. 331 177. STATUTE OF ACTON BURNELL. Edit. 1826, vol. iii. p. 46. note f. Edit. 1841, vol. ii. p. 164. " This [^the trial and judgment of Llewellin]] seems to have been the only business transacted at Shrewsbury ; for the bishops and abbots, and four knights of each shire, and two representatives of London and nineteen other trading towns, summoned to meet the same day in par- liament, are said to have sat at Acton Burnell ; and thence the law made for the more easy recovery of the debts of merchants, is called the Statute of Acton Burnell. It was probably made at the request of the representatives of the cities and boroughs present in that parliament, authentic copies in the king's name being sent to seven of those trading towns ; but it runs only in the name of the king and his council." (Carte ii. 195. referring to Rot. Wall. 11 Ed W.I. m. 2d.) As the parliament was summoned to meet at Shrews- bury, it may be presumed that the Commons adjourned to Acton Burnell. The word " statute" implies that some consent was given, though the enactment came from the king and council. It is entitled in the Book of the Ex- chequer — " des Estatus de Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at Salopsebur, al parlement prochein apres la fete Seint Michel, I'an del reigne le Rey Edward, Fitz le Rey Henry, unzime." (Re- port of Lords' Committee, p. 191.) The enactment by the king and council founded on the consent of the estates was at Acton Burnell. And the Statute of Merchants, 13 Edw. I., refers to that of the 11th, as made by the king, " a son parlement que il tint a Acton Burnell," and again mentions "I'avant dit statut fait a Acton Burnell." This seems to afford a voucher for what is said in my text, which has been controverted by a learned antiquary.* It * Archseological Journal, vol. ii. p. 337., by the Rev. W. Hartshorne. 332 PARLIAMENTS OF EDWARD I. [Cuap. VIII. is certain that the lords were at Shrewsbury in their ju- dicial character condemning Llewellin ; but whether they proceeded afterwards to Acton Burnell, and joined in the statute, is not quite so clear. 178. PARLIAMENTS OF EDWARD L Edit. 1826, vol. iii. p. 46. Edit. 1841, vol. ii. p. 164. The Lords' Committee extenuate the presumption that either knights or burgesses sat in any of these parlia- ments. The " cunctarum regni civitatum pariter et bur- gorum potentiores " mentioned by Wikes, in 1269 or 1270, they suppose to have been invited in order to witness the ceremony of translating the body of Edward the Confessor to his tomb newly prepared in Westminster Abbey (p. I6I.). It is evident, indeed, that this as- sembly acted afterwards as a parliament in levying money. But the burgesses are not mentioned in this. It cannot, nevertheless, be presumed from the silence of the his- torian, who had previously informed us of their presence at Westminster, that they took no part. It may be, perhaps, more doubtful whether they were chosen by their constituents, or merely summoned as " potentiores." The words of the Statute of Marlbridge (51 Hen. III.) which are repeated in French by that of Gloucester (6 Edw. I.) do not satisfy the committee that there was any representation either of counties or boroughs. " They rather import a selection by the king of the most discreet men of every degree." (p. 183.) And the statutes of 13 Edw. I., referring to this of Gloucester, assert it to have been made by the king, " with prelates, earls, barons, and his council," thus seeming to exclude what would afterwards have been called the lower house. The assembly of I27I, described in the Annals of Waverley, " seems to have been an extraordinary convention, war- ranted rather by the particular circumstances under which Notes 178.J PARLIAMENTS OF EDWARD I. 33S the country was placed than by any constitutional law." (p. 173.) It was, however, a case of representation ; and following several of the like nature, at least as far as counties were concerned, would render the principle fa- miliar. The committee are even unwilling to admit that *' la communaute de la terre illocques summons" in the statute of Westminster L, though expressly distinguished from the prelates, earls, and barons, appeared in conse- quence of election, (p. 173.) But, if not elected, we cannot suppose less than that all the tenants-in-chief, or a large number of them, were summoned ; which, after the experience of representation, was hardly a probable course. The Lords' Committee, I must still incline to think, have gone too far when they come to the conclusion, that on the whole view of the evidence collected on the subject, from the 49th of Hen. III. to the 18th of Edw. I., there seems strong ground for presuming that, after the 49th of Hen. III., the constitution of the legislative assembly returned generally to its old course ; that the writs issued in the 49th of Henry III. being a novelty, were not afterwards precisely followed, as far as appears, in any instance ; and that the writs issued in the 11th of Edw. I., "for assembling two conventions, at York and Northampton, of knights, citizens, burgesses, and representatives of towns, without prelates, earls, and barons, were an extraordinary measure, probably adopted for the occasion, and never afterwards followed ; and that the writs issued in the 18th of Edw. I., for electing two or three knights for each shire without corresponding writs for election of citizens or burgesses, and not directly founded on, or conformable to the writs issued in the 49th of Henry HI., were probably adopted for a particular purpose, possibly to sanction one im- portant law [the statute Quia Emptores~\, and because the smaller tenants-in-chief of the crown rarely attended the ordinary legislative assemblies when summoned, or attended in such small numbers that a representation of them by knights chosen for the whole shire was deemed advisable, to give sanction to a law materially affecting 334f PARLIAMENTS OF EDWARD I. [Chap. VIII. all the tenants-in- chief, and those holding under them." (p. 204.) The election of two or three knights for the parliament of 18th Edw. I., which I have overlooked in my text, appears by an entry on the close roll of that year, directed to the sheriff of Northumberland ; and it is proved from the same roll that similar writs were directed to all the sheriffs in England. We do not find that the citizens and burgesses were present in this parliament ; and it is reasonably conjectured that the object of summoning it being to procure a legislative consent to the statute Quia Emptoi^es, which put an end to the sub-infeudation of lands, the towns were thought to have little interest in the measure. It is, however, another early precedent for county representation ; and that of 22d of Edw. I. (see the writ in p. 53.) is more regular. We do not find, how- ever, that the citizens and burgesses were summoned to either parliament. But, after the 23d of Edward I., the legislative consti- tution seems not to have been unquestionably settled, even in the essential point of taxation. The Confirmation of the Charters, in the 25th year of that reign, while it con- tained a positive declaration that no " aids, tasks, or prises should be levied in future, without assent of the realm," was made in consideration of a grant made by an assembly in which representatives of cities and boroughs do not appear to have been present. Yet, though the words of the charter or statute are prospective, it seems to have long before been reckoned a clear right of the subject, at least by himself, not to be taxed without his consent. A tallage on royal towns and demesnes, nevertheless, was set without authority of parliament four years afterwards. This " seems to show, either that the king's right to tax his demesnes at his pleasure was not intended to be included in the word tallage in that statute [^meaning the supposed statute de tallaqio non concedendo~\, or that the king acted in contravention of it. But if the king's cities and boroughs were still liable to tallage at the will of the crown, it may not have been deemed inconsistent that they Note 179.] BOROUGH REPRESENTATION. 335 should be required to send representatives for the purpose of granting a general aid to be assessed on the same cities and boroughs, together with the rest of the kingdom, when such general aid was granted, and yet should be liable to be tallaged at the will of the crown when no such general aid was granted." (p. 244.) If in these later years of Edward's reign, the king could venture on so strong a measure as the imposition of a tallage without consent of those on whom it was levied, it is less surprising that no representatives of the commons appear to have been summoned to one parliament, or perhaps two, in his twenty-seventh year, when some statutes were enacted. But, as this is merely inferred from the want of any extant wi'it, which is also the case in some parliaments, where, from other sources, we can trace the commons to have been present, little stress should be laid upon it. In the remarks which I have offered in these notes on the Report of the Lords' Committee, I have generally abstained from repeating any which Mr. Allen brought forward. But the reader should have recourse to his learned criticism in the Edinburgh Review. It will appear that the committee overlooked not a few important records, both in the reign of Edward I. and that of his son. 179. BOROUGH REPRESENTATION. Edit. 1826, vol. iii. p. 49. Edit. 1841, vol. ii. p. 167. Two considerable authorities have, since the first publication of this Work, placed themselves, one very confidently, one much less so, on the side of our older lawyers, and in favour of the antiquity of borough representation. Mr. Allen, who, in his review of my volumes (Edinb. Rev. xxx. 169.), observes, as to this point, — *' We are inclined, in the main, to agree with Mr. Hallam," lets us know, two or three years afterwards, that the scale was tending the 336 BOROUGH REPRESENTATION. [Chap. VIII. Other way ; when, in his review of the Report of the Lords' Committee, who give a decided opinion, that cities and boroughs were on no occasion called upon to assist at legislative meetings before the forty-ninth of Henry III., and are much disposed to believe that none were originally summoned to parliament, except cities and boroughs of ancient demesne, or in the hands of the king at the time when they received the summons, he says : — *' We are inclined to doubt the first of these pro- positions, and convinced that the latter is entirely erro- neous." (Edinb. Rev. xxxv. 30.) He allows, however, that our kings had no motive to summon their cities and boroughs to the legislature, for the purpose of obtaining money, *' this being procured through the justices in eyre, or special commissioners ; and, therefore, if sum- moned at all, it is probable that the citizens and bjiv- gesses were assembled on particular occasions only, when their assistance or authority was wanted to confirm or establish the measures in contemplation by the govern- ment." But as he alleges no proof that this was ever done, and merely descants on the importance of London and other cities both before and after the Conquest, and as such an occasional summons to a great council, for the purpose of advice, would by no means involve the necessity of legis- lative consent, we can hardly reckon this very acute writer among the positive advocates of a high antiquity for the commons in parliament. Sir Francis Palgrave has taken much higher ground, and his theory, in part at least, would have been hailed with applause by the parliaments of Charles L According to this, we are not to look to feudal principles for our great councils of advice and consent. They were the ag- gregate of representatives from the courts-leet of each shire and each borough, and elected by the juries to pre- sent the grievances of the people, and to suggest their remedies. The assembly summoned by William the Con- queror appears to him not only as it did to Lord Hale, *' a sufficient parliament," but a regular one ; " proposing the law and giving the initiation to the bill which required Note 179.] BOROUGH REPllESENTATIONT. 337 the king's consent." (Ed. Rev. xxxvi. 327.) " We can- not," he proceeds, " discover any essential difference be- tween the powers of these juries and the share of the legislative authority which was enjoyed by the Commons at a period w^hen the constitution assumed a more tan- gible shape and form." This is supported witli that co- piousness and variety of illustration which distinguish his theories, even when there hangs over them something not quite satisfactory to a rigorous inquirer, and when their absolute originality on a subject so beaten is of itself reasonably suspicious. Thus we come in a few pages to the conclusion: — "Certainly there is no theory so im- ])robable, so irreconcilable to general history or to the peculiar spirit of our constitution, as the opinions which are held by those who deny the substantial antiquity of the House of Commons. No paradox is so startling as the assumption, that the knights and burgesses who stole into the great council between the close of the reign of John and the beffinnino- of the reig-n of Edward, should convert themselves at once into the third estate of the realm, and stand before the king and his peers in pos- session of powers and privileges which the original branches of the legislature could neither dispute nor withstand." (p. 332.) " It must not be forgotten that the researches of all previous writers have been directed wholly in fur- therance of the opinions which have been held respecting the feudal origin of parliament. No one has considered it as a common law court." I do not know that it is necessary to believe in a pro- perly feudal ori(/in of parliament, or that this hypothesis is generally received. The great council of the Norman kings was, as in common with Sir F. Palgrave and many others I believe, little else than a continuation of the witenagemot, the immemorial organ of the Anglo-Saxon aristocracy in their relation to the king. It might be composed, perhaps, more strictly according to feudal prin- ciples ; but the royal thanes had always been consenting parties. Of the representation of courts-leet we may re- quire better evidence : aldermen of London, or persons z 338 BOROUGH REPRESENTATION. [CiiAr. VIII. bearin cr tliat name, perhaps as landowners rather than citizens (see note on p. 31.), inay possibly have been oc- casionally present ; but it is remarkable that neither in his- torians nor records do we find this mentioned ; that aldermen, in the municipal sense, are never enumerated amonof the constituents of a witenasfemot or a council, though they must, on the representative theory, have com- posed a large portion of both. But, waving this hypo- thesis, which the author seems not here to insist upon, though he returns to it in the Rise and Progress of the English Common^vealth, why is it " a startling paradox to deny the substantial antiquity of the House of Commons ?" By this I understand him to mean, that representatives from counties and boroughs came regularly, or at least frequently, to the great councils of Saxon and Norman kings. Their indispensable consent in legislation I do not apprehend him to affirm, but rather the reverse : — "The supposition that in any early period the burgesses had a voice in the solemn acts of the legislature is untenable." (Rise and Progress, &c., i. 314.) But they certainly did, at one time or other, obtain this right, " or convert themselves" as he expresses it, " into the third estate of the realm ;" so that upon any hypothesis a g'reat constitutional change was wrought in the powers of the Commons. The revo- lutionary character of Montfort's parliament in the 49th of Hen. HI. would sufficiently account, both for the appearance of rejjresentatives from a democracy so favourable to that bold reformer, and for the equality of power with which "it was probably designed to invest them. But whether in the more peaceable times of Edward I., the citizens or burgesses were recognised as essential parties to every legislative measure, may, as I have shown, be open to nmch doubt. I cannot upon the whole overcome the argument from the silence of all historians, from the deficiency of all proof as to any presence of citizens and burgesses, in a representative character, as a House of Commons before the 49th year of Henry HI. ; because after this time his- torians and chroniclers exactly of the same character as Note 180.] ANNUAL PARLIAMENTS. 339 the former, or even less copious and valuable, do not omit to mention it. We are accustomed, in the sister kingdoms, so to speak, of the Continent, founded on the same Teu- tonic original, to argue against the existence of repre- sentative councils or other institutions, from the same absence of positive testimony. No one believes that the three estates of France were called together before the time of Philip the Fair, No one strains the representation of cities in the cortcs of Castile beyond the date at which we discover its existence by testimony. It is true that unreasonable inferences may be made from what is usually called negative evidence; but how readily and how often are we deceived by a reliance on testimony ! In many instances, the negative conclusion carries with it a con- viction equal to a great mass of affirmative proof. And such I reckon the inference from the language of Roger Hoveden, of Matthew Paris, and so many more who speak of councils and parliaments full of prelates and nobles, without a syllable of the burgesses. Either they were absent, or they were too insignificant to be named ; and in that case it is hard to perceive any motive for requiring their attendance. 180. ANNUAL PARLIAMENTS. Edit. 1826, vol. iii. p. 57. Edit. 1841, vol. il. p. 171. It has been observed that this j)rovision " liad probably in view the administration of justice by the king's court in parliament." (Report of L. C. p. 301.) And in another place: — " It is clear that the word j)arliament in the reign of Edward I. was not used only to describe a legislative; assembly, but was the common appellation of the ordinary assembly of the king's great court or council; and that the legislative assembly of the realm, composed generally, in and after the 23d of Edward I., of lords spiritual and temporal, and representatives of the commons, was usually ■/. 2 340 LORDS ORDAINERS. • [CiiAp. VITI. convened to meet the king's council in one of these par- liaments." (p. 171.) Certainly the commons could not desire to have an annual parliament in order to make new statutes, much less to grant subsidies. It was, however, important to present their petitions, and to set forth their grievances to this high court. We may easily reconcile the anxiety so often expressed by the commons to have frequent sessions of parliament, with the individual reluctance of members to attend. A few active men procured these petitions, which the majority could not with decency oppose, since the public benefit was generally admitted. But when the writs came down, every pretext was commonly made use of to avoid a troublesome and ill-remunerated journey to Westminster. For the subject of annual parliaments see a valuable article by Allen in the 28th volume of the EiHnburoh lieview. 181. LORDS ORDAINERS IN 1309. Edit. 182G, vol. iii. p. Gl. Edit. 1841, vol. ii. p. 1 73. The Lords' Committee ** have found no evidence of any writ issued for election of knights, citizens, and burgesses to attend the same meetings; from the subsequent do- cuments it seems probable that none were issued, and that the parliament which assembled at Westminster con- sisted only of prelates, earls, and barons." (p. 259.) We have no record of this parliament; but in that of 5 Edw. XL, it is recited — "Come le seizieme jour de Marz I'an de notre regne tierce, a I'honeur de Dieu et pour le bien de nous et de nostre roiaume, eussions grante de notre franche volonte par nos lettres ouvertes aux prelatz, countes, et barons, et communes de dit roiaume^ qu'ils puissent eslire certain persones des prelatz, comtes, et barons," &c. (Rot. Pari. i. 281.) The inference there- fore of the committee seems erroneous. Note 182.] PARIJAMENTS OF EDWAllI) II, oil 182. PARLIAMENTS OF EDWARD II. Edit. 1826, vol. iii. p. 62. Edit. 1841, vol. ii. p. 173. The Lords' Committee dwell much on an enactment in the parliament held at York in 15 Edw. II. (1322), which they conceived to be the first express recognition of the constitutional powers of the lower house. It was there enacted, that " for ever thereafter all manner of ordinances or provisions made by the subjects of the king or his heirs, by any power or authority whatsoever, concern- ing the royal power of the king or his heirs or against the estate of the crown, should be void and of no avail or force whatsoever ; but the matters to be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament, by the king-, and by the assent of the prelates, earls, and barons, and the common- alty of the realm, according as had been before accus- tomed. This proceeding, therefore, declared the legis- lative authority to reside only in the king, with the assent of the prelates, earls, and barons, and commons assembled in parliament ; and that every legislative act not done by that authority should be deemed void and of no effect. By whatever violence this statute may have been obtained, it declared the constitutional law of the realm on this important subject." (p. 282.) The violence, if resistance to the usurpation of a subject is to be called such, was on the part of the king, who had just sent the earl of Lan- caster to the scaffold, and the present enactment was levelled at the ordinances which had been forced upon the crown by his faction. Tiie Lords Ordainers, nevertheless, had been appointed with consent of the commons, as has been mentioned in the text ; so that this ])rovisi(Hi in 15 Edw. II. seems rather to limit than to enhance the su- z 3 ok2 PARLIAMENTS OF EDWAIID II. [Chap. VIII. preiiie power of parliament, if it were meant to prohibit any- future enactment of the same kind by its sole authority. But the statute is declaratory in its nature ; nor can we any more doubt that the legislative authority was reposed in the king, lords, and commons before this era, than that it was so ever afterwards. Unsteady as the constitutional usage had been through the reign of Edward I., and willing as both he and his son may have been to pre- vent its complete establishment, the necessity of parlia- mentary consent, both for levying money and enacting laws, must have become an article of the public creed before his death. If it be true, that even after this decla- ratory statute, laws were made without the assent or pre- sence of the commons, as the Lords' Committee incline to hold (pp. 285, 285, 287'.), it was undeniably an irregular and unconstitutional proceeding ; but this can only show that we ought to be very slow in presuming earlier pro- ceedings of the same nature to have been more conform- able to the spirit of the existing constitution. The Lords' Committee too often reason from the fact to the right, as well as from the words to the fact ; both are fallacious, and betray them into some vacillation and perplexity. They do not, however, question, on the whole, but that a new constitution of the legislative assemblies of the realm had been introduced before the 15th year of Edward IL, and that " the practice had prevailed so long before as to give it, in the opinion of the parliament then assembled, the force and effect of a custom, wliich the parliament declared should thereafter be considered as established law." (p. 293.) This appears to me rather an in- adequate exposition of the public spirit, of the tendency towards enlarging the basis of the constitution, to which the " practice and custom" owed its origin ; but the positive focts are truly stated. The second ciise in my text, relating to the pretended assent of the commonalty to the election of Prince Edward as guardian of the realm, ought not to have been men- tioned as parliamentary, since it had no relation to any proceedings in parliament. It is only material in the Note 183.] TALLAGES ON KING's DEMESNES. oi3 light of testimony to the importance of the commons in generaL It is said in the text, that the assent of the commons frequently does not apj)ear in the statutes of this reign. This might lead a reader to believe, that it only occurs in the few cases mentioned. But it is distinctly specified in Stat. 7 Edw. II. and in 12 Edw. II., and equivalent words are found in other statutes. Though often wanting, the testimony to the constitution of parliament is decisive. 188. TALLAGES ON KING'S DEMESNES, Edit. 1826, vol. iii. p. G:',. Edit. 1811, vol. ii. p. 175. The Lords' Committee observe on this passage in the roll of parliament, that " the king's right to tallage his cities, boroughs, and demesnes, seems not to have been questioned by the parliament, though the commissions for setting the tallage were objected to." (p. 30.5.) But how can we believe that after the representatives of these cities and boroughs had sat, at least at times, for txAO reigns, and after the explicit renunciation of all right of tallage by Edward I. (for it was never pretended that the king could lay a tallage on any towns which did not hold of himself), there could have been a parliament which " did not question" the legality of a tallage set without their con- sent? The silence of the rolls of parliament would furnish but a poor argument. But in fact their language is ex- pressive enough. The several ranks of lords and com- mons grant the fifteenth penny from the commonalty, and the tenth from the cities, boroughs, and demesnes of the king, " that our lord the king may live of his own, and pay for his expenses, and not aggrieve his people by ex- cessive (outraiouses) prises, or otherwise." And upon this the king revokes tlie commission in the words of the text. Can any thing be clearer than that the parliament, though in a much gentler tone than they came afterwards z 4 34<4 EEPEAL OF XV. EDWARD III. [Chap. VIIT. to assume, intimate the illegality of the late tallage? As to any other objection to the commissions, which the committee suppose to have been taken, nothing appears on the roll. 18k COUNCIL OF THE TWENTY-SEVENTH YEAR OF EDWARD III. Edit. 1826, vol. iii. p. 74. Edit. 1841, vol. ii. p. 182. It should have been less ambiguously expressed; two citizens and burgesses were returned, though only one knight. (Rot. Pari. ii. 20G.) 185. REPEAL OF XV. EDWARD III. Edit. 1826, vol. ii!. p. 77. Edit. 1841, vol. ii. p. 184. The Commons in the 17th of Edw. TIL, petition that the statutes made two years before be maintained in their force, having granted for them the subsidies which they enume- rate, " which was a great spoiling (ran9on), and grievous charge for them." But the king answered, that " perceiving the said statute to be against his oath, and to the blemish of his crown and royalty, and against the law of the land in many points, he had repealed it. But he would have the articles of the said statute examined, and what should be found honourable and profitable to the king and his people put into a new statute, and observed in future." (Rot. Pari, ii, 139.) But though this is inserted among the petitions, it appears from the roll a little before (p. 139. n. 23.), that the statute was actually repealed by common consent; such consent at least being recited, whether truly or not. Note 186.] ELECTOUS IN liOllOUGIIS. 345 186. ELECTORS IN BOROUGHS. Edit. 1826, vol. ill. p. 174. Edit. 1841, vol. ii. p. 248. Mr. Allen, than whom no one of equal learning was ever less inclined to depreciate popular rights, inclines more than we should expect to the school of Brady in this point. " There is reason to believe that originally the right of election in boroughs was vested in the governing part of these communities, or in a select jjortion of the burgesses ; and that in the progress of the House of Com- mons to power and importance, the tendency has been in general to render the elections more po])ular. It is cer- tain that for many years burgesses were elected in the county courts, and apparently by delegates from the boroughs, who were authorised by their fellow-burgesses to elect representatives for them in parliament. In the reigns of James I. and Charles I., when popular prin- ciples were in their greatest vigour, there was a strong disposition in the House of Commons to extend the right of suffrage in boroughs, and in many instances these efforts were crowned with success." (Edin. Rev. xxviii. 145.) But an election by delegates chosen for that pur- pose by the burgesses at large, is very different from one by the governing part of the community. Even in the latter case, however, this part had generally been chosen, at a greater or less interval of time, by the entire body. Sometimes, indeed, corporations fell into self-election and became close. 3h(j PEERAGE BY BARONY. [Cuap. VIII. 187. PEERAGE BY BARONY.* Edit. 18J6, vol. iii. p. 181. Edit. 1841, vol. ii. p. 252. Writs are addressed in 11th of Edw. II — "coiiiitibus, nia- ribus baronibus, et pra?latis," whence the Lords' Committee infer that the style used in John's charter was still pre- served. (Report, p. 277-) And though in those times there might be much irregularity in issuing writs of sum- mons, the term " majores barones" must have had an ap- plication to definite ])ersons. Of the irregularity we may judge by the fact that under Edward I. about eighty were generally summoned ; under his son, never so many as fifty, sometimes less than forty, as may be seen in Dug- dale's Summonitiones ad Parliamentum. The committee endeavour to draw an inference from this against a sub- sisting right of tenure. But if it is meant that the king had an acknowledged prerogative of omitting any baron at his discretion, the higher English nobility must have lost its notorious privileges, sanctioned by long usage, by the analogy of all feudal governments, and by the charter of John, which, though not renewed in terms, nor in- tended to be retained in favour of the lesser barons, or tenants tti capite, could not, relatively to the rights of the superior order, have been designedly relinquished. The committee wish to get rid of tenure as conferring a right to summons ; they also strongly doubt whether the summons conferred an hereditary nobility ; but they assert, that in the 1.5th of Edw. III. " those who may have been deemed to have been in the reign of John dis- tinouished as majores barones, by the honour of a per- sonal writ of summons, or by the extent and influence of their property, from the other tenants-in-chief of the crown, were now clearly become, with the earls and the newly created dignity of duke, a distinct body of men de- * Sl'c note 166. Note 187.] PEERAGE BY BARONY. 347 nominated j)eers of the land, and havino- distinct personal rights ; while the other tenants-in-chief, whatsoever their rights may have been in the reign of John, snnk into tlie general mass." (p. 314.) The appellation, " peers of the land," is said to occur for the first time in 14 Edw. II. (p. 281.), and we find them very distinctly in the proceedings against Bereford and others at the beginning of the next reign.* They were, of course, entitled to trial by their own order. But whether all laymen, summoned by particular writs to parliament, were at that time considered as peers, and triable by the rest as such, must be questionable, unless we could assume that the writ of summons already ennobled the blood, which is at least not the opinion of the committee. If, therefore, the writ did not constitute an hereditary peer, nor tenure in chief by barony give a right to sit in parlia- ment, we should have a difficulty in finding any determi- nate estate of nobility at all, exclusive of earls, who were, at all times and without exception, indisputably noble ; an hypothesis manifestly paradoxical, and contradicted by history and law. If it be said, that prescription was the only title, this may be so far granted, that the majorcs harones had by prescription, antecedent to any statute or charter, been summoned to parliament ; but this prescrip- tion would not be broken by the omission, through neg- ligence or policy, of an individual tenant by barony in a few parliaments. The ])rescription was properly in favour of the class, the majores barones generally, and as to them it was perfect, extending itself in right, if not always in fact, to every one who came within its scope. In the Third Report of the Lords' Committee, apparently drawn by the same hand as the Second, they " conjecture that after the establishment of the Commons' House of parliament, as a body by election, separate and distinct from the lords, all idea of a right to a writ of summons to parliament by reason of tenure had ceased, and that the dignity of baron, if not conferred by patent, was considered as derived only from the king's writ of summons." (Third * See p. 181. (25;}.) note f- 348 PEERAGE BY BARONY. [Chai>. VIII. Report, p. 226.) Yet they have not only found ninny cases of persons summoned hy writ several times, whose descendants have not been summoned, and hesitate even to approve the decision of the House on the Clifton barony in 1673, when it was determined that the claimant's an- cestor, by writ of summons and sitting in parliament, was a peer, but doubt whether " even at this day, the doctrine of that case ought to be considered as generally applicable, or may be limited by time and circumstances." * (p. 33.) It seems, with much deference to more learned investi- gators, rather improbable that, either before or after the regular admission of the knights and burgesses by repre- sentation, and consequently the constitution of a distinct lords' house of parliament, a writ of summons could have been lawfully withheld at the king's pleasure from any one holding such lands by barony, as rendered him no- toriously one of the majores barones. Nor will this be much affected by arguments from the inexpediency, or supposed anomaly, of permitting the right of sitting as a peer of parliament to be transferred by alienation. The Lords' Committee dwell at length upon them. And it is true that, in our original feudal constitution, the fiefs of the crown could not be alienated without its consent. But when this was obtained, when a barony had passed by purchase, it would naturally draw with it, as an incident of tenure, the privilege of being summoned to parliament, or, in language more accustomed in those times, the obli- gation of doing suit and service to the king in his high court. Nor was the alienee, doubtless, to be taxed with- * This doubt was soon afterwards universal practice. It was held by changed into a proposition, strenuously Lord Redesdale, tliat, at least until the mauitained by the supposed compiler statute of 5 Richard II. c. 4., no here- of these Reports, Lord Redesdale, on ditary or even personal right to the the claim to the barony of L'Isle in peerage was created by the writ of 1829. The ancestor had been called summons. The House of I/Ords re- by writ to several parliaments of Ed- jected the claim, though the language ward III.; and having only a daugh- of their resolution is not conclusive as to ter, the negative argument from the the princijjle. The opinion of Lord R. omission of his posterity, is of little has been ably im)nigiicd by Sir Harris value; for though the husl)ands of Nicolas, in his Report of the L'Isle heiresses were occasionally summoned. Peerage, 1829. this does not seem to have been an Note 187.] PEERAGE CY BARONY. 349 out his own consent, any more than another tenant in capite. What incongruity, therefore, is there in the sup- position, that after tenants in fee simple acquired by statute the power of ahenation without previous consent of the crown, the new purchaser stood on the same footing in all other respects as before the statute ? It is also much to be observed, that the claim to a summons might be gained by some methods of purchase, using that word, of course, in the legal sense. Thus the husbands of heiresses of baronies were frequently summoned, and sat as tenants by curtesy after the wife's death ; though it must be owned that the committee doubt, in their Third Report (p. 47.), whether tenancy by curtesy of a dignity Avas ever allowed as a right. Thus, too, every estate created in tail male was a diversion of the inheritance by the owner's sole will from its course according to law. Yet in the case of the barony of Abergavenny, even so late as the reign of James I., the heir male, being in seisin of the lands, was called by writ as baron, to the exclusion of the heir general. Surely this was an authentic recognition, not only of baronial tenure as the foundation of a right to sit in parliament, but of its alienability by the tenant.* If it be asked whether the posterity of a baron aliening' the lands which gave him a right to be summoned to the king's court, would be entitled to the privileges of peeraoe by nobility of blood, it is true that, according to Collins, whose opinion the committee incline to follow, there are instances of persons in such circumstances being sum- moned. But this seems not to prove any thing to the purpose. The king, no one doubts, from the time of Edward I., used to summon by writ many who had no baronial tenure ; and the circumstance of having alienated a barony could not render any one incapable of attending * Tiie Lords' Committee (Second lar barony in question; though some Report, p. 436.) endeavour to elude tlie satisfaction was made to the claimant force of this authority ; but it mani- of the latter family, by calling her to festly appears that the Nevilles were a dilFerent peerage, preferred to the Fanes for the particu- 350 PEERAGE BY BARONY. [Chap. VIII. parliament by a different title. It is very hard to deter- mine any question as to times of much irregularity; but it seems that tlie posterity of one who had parted with his baronial lands, would not, in those early times, as a matter of course, remain noble. A right by tenure seems to exclude a right by blood ; not necessarily, because two collateral titles may co-exist, but in the principle of the constitution. A feudal principle was surely the more ancient ; and what could be more alien to this than a baron, a peer, an hereditary counsellor, without a fief? Nobility, that is, gentility of birth, might be testified by a pedigree or a bearing ; but a peer was to be in arms for the crown, to grant his own money as well as that of others, to lead his vassals, to advise, to exhort, to restrain the sovereign. The new theory came in by degrees, but in the decay of every feudal idea ; it was the substitution of a different pride of aristocracy for that of baronial wealth and power ; a pride nourished by heralds, more ])eaceable, more indolent, more accommodated to the rules of fixed law and vigorous monarchy. It is difficult to trace the j)rogress of this theory, which rested on nobility of blood, but yet so remarkably modified by the original principle of tenure, that the privileges of this nobility were ever confined to the actual possessor, and did not take his kindred out of the class of commoners. This sufficiently demonstrates that the phrase is, so to say, catachrestic, not used in a proper sense ; inasmuch as the actual seisin of the peerage as an hereditament, whether by writ or by patent, is as much requisite at present for nobility, as the seisin of an estate by barony was in the reign of Henry III. Tenure by barony appears to have been recognised by the House of Lords in the reign of Henry VL, when the earldom of Arundel was claimed as annexed to the " castle, honour, and lordship aforesaid." The Lords* Conmiittee have elaborately disproved the allegations of descent and tenure, on which this claim was allowed. (Second Report, pp. 406 — 426.) But all with which we are concerned is the decision of the crown and of the Note 187.] PEERAGE BY IJARONY. S5\ house in the 11th year of Henry VL, whether it were right or wrong as to the particular facts of the case. And here we find that tlie king, hy the advice and assent of the lords, " considering that Richard Fitzalan, &c., was seised of the castle, honour, and lordship in fee, and hy reason of his possession thereof, without any other reason or crea- tion, was earl of Arundel, and held the name, style, and honour of earl of Arundel, and the place and seat of earl of Arundel in parliament and councils of the king," &c., admits him to the same seat and place as his ancestors, earls of Arundel, had held. This was long afterwards confirmed hy act of parliament (o Car. I.), reciting the dignity of earl of Arundel to be real and local, &c., and settling the title on certain persons in tail, with provisions against alienation of the castle and honour. This appears to establish a tenure by barony in Arundel, as a recent determination had done in Abergavenny. Arundel was a very peculiar instance of an earldom by tenure. For we cannot doubt that all earls were peers of parliaujent by vir- tue of that rank, though, in fact, all held extensive lands of the crown. But in 1669, a new doctrine, which probably had long been floating among lawyers and in the House of Lords, was laid down by the king in council on a claim to the title of Fitzwalter. The nature of a barony by tenure having been discussed, it was found " to have been discontinued for many ages, and not in being" (a proposition not very tenable, if we look at the Aber- gavenny case, even setting aside that of Arundel as pe- culiar in its character, and as settled by statute) ; " and so not fit to be received, or to admit any pretence of rio-ht to succession thereto." It is fair to observe, that some eminent judges were present on this occasion. The com- mittee justly say, that " this decision" (which, after all, was not in the House of Lords) " may perhaps be con- sidered as amounting to a solemn opinion that, although in early times the right to a writ of sunnnons to j)arlia- ment as a baron may have been founded on tenure, a con- trary practice had prevailed for ages, and that, therefore, it was not to be taken as then forming part of the consti- 352 PEERAGE BY BARONY. [Chap. VIII. tutioiial law of the land." (p. 446.) Thus ended barony by tenure. The final decision, for such it has been con- sidered, and recent attempts to revive the ancient doctrine have been defeated, has prevented many tedious investi- gations of claims to baronial descent, and of alienations in times long' past. For it could not be pretended that every fraction of a barony gave a right to summons ; and, on the other hand, alienations of parcels, and descents to co- parceners, must have been common, and sometimes diffi- cult to disprove. It was held, indeed, by some, that the caput bai'onicE, or principal lordship, contained, as it were, the vital principle of the peerage, and that its owner was the true baron ; but this assumption seems uncertain. It is not very easy to reconcile this peremptory denial of peerage by tenure, with tlie proviso in the recent statute, taking away tenure by knight's service, and, in- asmuch as it converts all tenure into socage, that also by barony, " that this act shall not infringe or hurt any title of honour, feudal or other, by which any person hath or may have right to sit in the Lords' House of Parliament, as to his or their title of honour, or sitting in parliament, and the privilege belonging to them as peers." (Stat. 12 Car. 2. C.24. s. 11.) Surely this clause was designed to preserve the inci- dent to baronial tenure, the privilege of being summoned to parliament, while it destroyed its original root, the tenure itself. The privy-council, in their decision on the Fitz waiter claim, did not allude to this statute, probably on account of the above proviso, and seem to argue that if tenure by barony was no longer in being, the privilege attached to it must have been extinguished also. It is, however, observable that tenure by barony is not taken away by the statute, except by implication. No act in- deed can be more loosely drawn than this, which was to change essentially the condition of landed property through- out the kingdom. It literally abolishes all tenure in capite ; though this is the basis of the crown's right to escheat, and though lands in common socage, which the act Avith a strange confusion opposes to socage iii capite, were Notes 188, 189.] rEEKAGES BY WRIT. OOO as much holden of the kino- or other lord as those by knight's service. Whether it was intended by the silence about tenure by barony to ])ass it over as obsolete, or this arose from neglioence alone, it cannot be doubted that the proviso preserving the right of sitting in parliament by a feudal honour, was introduced in order to save that pri- vilege, as well for Arundel and Abergavenny as for any other that ujight be entitled to it. * 188. Edit. 182G, vol. iii. p. 184. note, f Edit. 1841, vol. ii. p. ^55. note t< This speculative question is idly put, and in forgetful- ness of the determinations of the House of Lords and of the statute converting all tenures into socage. The case of R. v. Knowles, whidi related to a peerage by patent, is not to the purpose. 189. PEERAGES BY WRIT. Edit. 1826, vol. iii. p. 187. Edit. 1841, vol. ii. p. 257. It seems to have been admitted by Lord Redesdale, in the case of the barony of L'Isle, that a writ of summons, witli sufficient proof of haviug sat by virtue of it in the House • The continuance of barony by tL'tuire lias been controverted by Sir I larris Nicolas, in some remarks on such a claim preferred by the present Earl Fitzharding while yet a commoner, in virtue of the possession of Berkeley Castle, published as an Appendix to his Report of the LTsle Peerage. In the particular case there seem to have been several difficidties, independently of the great one, that, in the reign of Charles II., barony by tenure had been finally condemned. But there is surely A a great general difficulty in the hypo- thesis that, while jt is acknowledged that there were, in the reigns of Ed- ward I. and Edward 1 1., certain known persons holding by Ijarony and called ]>eers of the realm, it could have been agreeable to the feudal or to the Eng- lish constitution, that the king, by re- fusing to the posterity of such barons a writ of summons to ])arliament, might dejirive them of their nobility, and re- duce them for ever to the rank of com- m oners. .V 354 BANNERETS. [Cuap. VIIL of Lords, did in fact create an hereditary peerage from the fifth year of Richard II., though he resisted this with respect to claimants who could only deduce their pedigree from an ancestor summoned by one of the three Edwards. (Nicolas's Case of Barony of L'Isle, p. 200.) The theory, therefore, of West, which I have followed in the text, and which denies peerage by writ even to those summoned in several later reigns, must be taken with limitation. " I am informed," it is said by Mr. Hart, arguendo, " that every person whose name appears in the writ of summons of 5 Ric. II. was again summoned to the following parlia- ment, and their posterity have sat in parliament as peers." (p. 233.) 190. BANNERETS, Edit. 1826, vol. iii. p. 188. Edit. 1841, vol. ii. p. 257. The Lords' Committee do not like, apparently, to admit that bannerets were summoned to the House of Lords, as a distinct class of peers. *' It is observable," they say, *' that this statute (5 Ric. II. c. 4.) speaks of bannerets as well as of dukes, earls, and barcns, as persons bound to attend the parliament ; but it does not follow that banneret was then considered as a name of dignity distinct from that honourable knighthood under the king's banner in the field of battle, to which precedence of all other knights was attributed." (p. 342.) But did the committee really believe, that all the bannerets of whom we read in the reigns of Richard II. and afterwards, had been knighted at Crecy and Poictiers ? The name is only found in parliamentary proceedings, during comparatively pacific times. NoTKS 191, 192.] COURT OF CHANCERY. 355 191. COUNCIL OF ADVICE. Edit. 182C, vol. ill. p. 206. Edit. 1841, vol. ii, p.2G9. 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 \ have just said, it bore as yet no distinguishing name, are extant from the year 138(), and for seventy years afterwards are known through the valuable publication of Sir Harris Nicolas. 192. COURT OF CHANCERY. Edit. 1826, vol. iii. p. 211. Edit. 1841, vol. ii. p. 272. The equitable jurisdiction of the Court of Chancery has been lately traced, in some respects, though not for the special purpose mentioned in the text, higher than the reign of Richard H. This great minister of the crown, as he was at least from the time of the Conquest*, always * It has been doubted, notwith- ness ; which seems a very strong cir- standing the autliorlty of Spelman, and cumstance. Ingulfus, indeed, has given some earlier but rather precarious tes- a pompous account of Chancellor Tur- timony, whether the chancellor before ketul ; and, if the history ascribed to the Conquest was any more than a Ingulfus be genuine, the office must scribe or secretary. (Palgrave, in the have been of high dignity. Lord Quarterly Review, xxxiv. 291;) The Cami)bell assumes this in his Lives of Anglo-Saxon charters, as far as 1 have the Chancellors. observed, never mention him an a wit- A A 2 336 COURT OF CHANCERY. [Chap. VIII. till the reio^n of Edward III., an ecclesiastic of higli dignity, and honourably distinguished as the keeper of the king's conscience, was peculiarly intrusted with the duty of redressing the grievances of the subject, both when they sprung from misconduct of the government, through its subordinate officers, and when the injury had been inflicted by powerful oppressors. He seems generally to have been the chief or president of the council, when it exerted that jurisdiction which we have been sketching in tlie text, and which will be the subject of another note. But he is more prominent when presiding in a separate tribunal as a single judge. The Court of Chancery is not distinctly to be traced under Henry HI. For a passage in Matthew Paris, who says of Radulfus de Nevil — " Erat regis fidelissimus can- cellarius, et inconcussa columna veritatis, singulis sua jura, praicipue pauperibus, juste reddens et indilate," may be construed of his judicial conduct in the council. This province naturally, however, led to a separation of the two powers. And in the reign of Edward I. we find the king sending certain of the petitions addressed to him, praying extraordinary remedies, to the chancellor and master of the rolls, or to either separately, by writ under the privy seal, which was the usual mode by which the king dele- gated the exercise of his prerogative to his council, di- recting them to give such remedy as should appear to be consonant to honesty (or equity, honestafi'). " There is reason to believe," says Mr. Spence (Equitable Jurisdiction, p. 335.^, *' that this was not a novelty." But I do not know upon what grounds this is believed. Writs, both those of course and others, issued from Chancery in the same reign. (Palgrave's Essay on King's Council, p. 15.) Lord Campbell has given a few specimens of petitions to the council, and answers endorsed upon them, in the reign of Edward I., communicated to him by Mr. Hardy from the records of the Tower. In all these the petitions are referred to the chancellor for justice. The entry, at least as given by Lord Campbell, is commonly so short that Note 192.] COURT OF CHANCEIIV. 357 we cannot always determine whether the ])etitlon was on account of wrongs hy the crown or otliers. The following; is rather more clear than tlie rest : — " IS Edw. I. The king's tenants of Aulton complain that Adam Gordon ejected them from their pasture, contrary to the tenor of the king-'s writ. Resp. Veniant partes coram cancellario, et ostendat ei Adam quare ipsos ejecit, et fiat iis justitia." Another is a petition concerning concealment of dower, for which, perha])s, there was no legal remedy. In the reign of Edward II. the peculiar jurisdiction of the chancellor was still more distinctly marked. " From peti- tions and answers lately discovered, it apjjears that during" this reign the jurisdiction of the Court of Chancery was considerably extended, as the " consuetude cancellariie " is often familiarly mentioned. We find petitions referred to the chancellor in his court, either separately, or in con- junction with the king's justices, or the king's Serjeants ; on disputes respecting the wardship of infants, partition, dower, rent-charges, tithes, and goods of felons. The chancellor was in full possession of his jurisdiction over charities, and he superintended the conduct of coroners. Mere wrongs, such as malicious prosecutions and tres- passes to personal property, are sometimes the subject of proceedings before him ; but I apprehend that those were cases where, from powerful combinations and confederacies, redress could not be obtained in the courts of comnjon law." (Lives of Chanc. vol. i. p. ^204.) Lord Campbell, still with materials furnished by Mr. Hardy, has given not less than thirty-eight entries during the reign of Edward II., where the petition, though some- times directed to the council, is referred to the chancellor for determination. One only of these, so far as ^ve can judge from their very brief expression, implies any thing of an ecpiitable jurisdiction. It is again a case of dower ; and the claimant is remitted to the Chancery ; " et fiat sil)i ibidem justitia, (piia non ])otest ju\'ari per connnnnem legem ])er breve (b; dote." This case; is in the Ixolls nevertheless, to define the constitutional authority of the Saxon kings ; it was not legislative, nor was that of Wil- liam and his successors ever such ; it was not exclusive of redress for private wrong, nor was this ever the theory of English law, though the method of remedy might not be sufficiently effective ; yet it had certainly grown before the Conquest, with no help from Roman notions, to some- thing very unlike that of the German kings in Tacitus. 197. POPULAR POETRY. Edit. 1826, vol. iii. p. 244. Edit. 1841, vol. ii. p. 297. The public history of Europe in the middle ages inad- equately represents the popular sentiment, or only when it is expressed too loudly to escape the regard of writers in- tent sometimes on less important subjects. But when we descend below the surface, a sullen murmur of discontent meets the ear, and we perceive that mankind was not more insensible to wrongs and sufferings than at present. Besides the various outbreakings of the people in several counties, and their complaints in parliament, after the commons obtained a representation, we gain a conclusive insight into the spirit of the times by their popular poetry. Two very interesting collections of this kind have been lately published by the Camden Society, through the dili- gence of Mr. Thomas Wright ; one, the Poems attributed to Walter Mapes ; the other, the Political Songs of Eng- land, from John to Edward II. Mapes lived under Henry II., and has long been known as the reputed author of humorous Latin verses ; XoTE 197.] POPULAR POETRY. 379 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 1272. Many of them are professedly written by an ima- ginary Golias. " They are not the expressions of hostility 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 civil and ecclesiastical tyranny." (Intro- duction to Poems ascribed to Walter Mapes, p. 21.) The poems in this collection reflect almost entirely on the pope and the higher clergy. They are all in rhyming Latin, and chiefly, though Avath exceptions, in the loose trochaic metre called Leonine. The authors, therefore, must have been clerks, actuated by the spirit which, in a Church of great inequality in its endowments, and with a very numerous body of poor clergy, is apt to gain strength, but certainly, as ecclesiastical history bears witness, not one of mere envious malignity towards the prelates and the court of Rome. These deserved nothing better, in the thirteenth century, than biting satire and indignant re- proof, and the poets were willing enough to bestow both. But this popular poetry of the middle ages did not con- fine itself to the Church. In the collection entitled, '* Po- litical 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 of Edward I. several occur in that lan- guage. Others are in French or in Latin; one com- plaining of the taxes is in an odd mixture of these two lan- guages; which, indeed, is not without other examples in mediaeval poetry. These Latin songs could not, of course, have been generally understood. But what the priests sung in Latin, they said in English ; the lower clergy fanned the flame, and gave utterance to what others felt. It may, perhaps, be remarked as a proof of ge- neral sympathy with the democratic spirit which was then 380 POPULAR POETRY. [Chap. Vlll. fermenting, that we have a song of exultation on the great defeat whicli Philip IV. had just sustained at Courtrai, in 1302, by the burgesses of the Flemish cities, on whose liberties he had attempted to trample (p. 187.)* It is true that Edward I. was on ill terms with France, but the political interests of the king would not, perhaps, have dictated the popular ballad. It was an idle exaggeration in him who said that, if he could make the ballads of a people, any one might make their laws. Ballads, like the press, and especially that portion of the press which bears most analogy to them, generally speaking, give vent to a spirit which has been at work before. But they had, no doubt, an influence in rendering more determinate, as well as more active, that resentment of wrong, that indignation at triumphant op- pression, that belief in the vices of the great, which, too often for social peace and their own happiness, are che- rished by the poor. In comparison, indeed, with the effi- cacy of the modern press, the power of ballads is trifling. Their lively sprightliness, the humorous tone of their satire, even their metrical form, sheathe the sting, and it is only in times when political bitterness is at its height that any considerable influence can be attached to them, and then it becomes undistinguishable from more energetic motives. Those which we read in the collection above mentioned, appear to me rather the signs of popular dis- content than greatly calculated to enhance it. In that sense they are very interesting, and we cannot but desire to see the promised continuation to the end of Richard II.'s reign.* They are said to have become afterwards less frequent, though the wars of the Roses were likely to bring them forward. Some of the political songs are written in France, though relating to our kings John and Henry III. De- ducting these, we have two in Latin for the former reign ; * Mr. Wright has given a few speci- fact we may reckon Piers Plowman mens in Essays on the Literature and an instance of popular satire, though Popular Superstitions of England in far superior to the rest, the Middle Ages, vol. i. p. 257. In Note 198.] VILLENAGE. 381 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 pro- portion of these songs contain panegyric and exultation on victory rather than satire ; and that of the satire much is general, and much falls on the Church ; so that the animadversions on the king and the nobility are not very frequent, though with considerable boldness ; but this is more shown in the Latin than the English poems. 198. VILLENAGE. Edit. 1826, vol. iii. p. 254. Edit. 1841, vol. ii. p. 301. The reduction of the free ceorls into villenage, especially if as general as is usually assumed, is one of the most remarkable innovations during the Anglo-Norman period ; and one which, as far as our published records extend, we cannot wholly explain. Observations have been made on it by Mr. Wright, in the Archseologia (vol. xxx. p. 225.). After adverting to the oppression of the peasants in Nor- mandy, which produced several rebellions, he proceeds thus : — *' These feelings of hatred and contempt for the peasantry, were brought into our island by the Norman barons in the latter half of the eleventh century. The Saxon laws and customs continued ; but the Normans acted as the Franks had done towards the Roman coloni ; they enforced with harshness the laws which were in their own favour, and gradually threw aside, or broke through, those which were in favour of the miserable serf." In the Laws of Henry I. we find the weregild of the twy-hinder, or villein, set at 200 shillings in Wessex, " quae caput regni est et legum." (c. 7^0 ^ut this 382 VILLENAGE. [Chaf. VHI. expression argues an Anglo-Saxon source ; and, in fact, so much in that treatise seems to be copied, without re- gard to the change of times, from old authorities, mixed up with provisions of a feudal or Norman character, that we hardly know how to distinguish what belongs to each period. It is far from improbable that villenage, in the sense the word afterwards bore, that is, an absolutely- servile tenure of lands, not only without legal rights over them, but with an incapacity of acquiring either immov- able or movable property against the lord, may have made considerable strides before the reign of Henry II.* But unless light should be thrown on its history by the publication of more records, it seems almost impossible to determine the introduction of prsedial villenage more pre- cisely than to say, it does not appear in the laws of Eng- land at the Conquest, and it does so in the time of Glanvil. Mr. Wright's memoir, in the Archseologia above quoted, contains some interesting matter ; but he has too much confounded the theow^ or Anglo-Saxon slave, with the ceorl ; not even mentioning the latter, though it is in- disputable that villamis is the equivalent of ceorl, and servus of theoiv. But I suspect that we go a great deal too far in setting down the descendants of these ceorls, that is, the whole Anglo-Saxon population except thanes and burgesses, as almost universally to be counted such villeins as we read of in our law^-books, or in concluding that the cultivators of the land, even in the thirteenth century, were wholly, or at least generally, servile. It is not only evident that small freeholders were always numerous, but we are, perhaps, greatly deceived in fancying that the occupiers of villein tenements were usually villeins. Terre-tenants en vil- lena(je, and tenants par copie, who were undoubtedly free, * A presumptive proof of this may and this proportion of the three classes be drawn from a chapter in the Laws of men is ahnost the only part that ap- of Henry I. c. 81., where the penalty pears evident. The cotset, who is often payable by a villein for certain petty mentioned in Domesday, may thus offences is set at thirty pence ; that of have been an inferior villein, nearly a cotset at fifteen ; and of a theow at similar to what Glanvil and later law- six. The passage is extremely obscure ; books call such. XoTE 199.] VILLEINS. 383 appear in the early Year Books, and we know not why they may not always have existed.* This, however, is a subject which I am not sufficiently conversant with records to explore ; it deserves the attention of those well-in- formed and diligent antiquaries whom we possess. Mean- time it is to be observed, that the lands occupied by villani or hordariit according to the Domesday survey, were much more extensive than the copyholds of the present day ; and making every allowance for enfranchisements, we can hardly believe that all these lands, being, in. fact, by far the greater part of the soil, were the villenaf/ia of Glanvil's and Bracton's age. It would be interesting to ascertain at what time the latter were distinguished from libera tenementa ; at what time, that is, the distinction of territorial servitude, independent as it was of the per- sonal state of the occupant, was established in England. 199. VILLEINS REGARDANT AND IN GROSS. Edit. 1826, vol. iii. p. 256. Edit. 1841, vol. ii. p. 302. This identity of condition between the villein regardant and in gross appears to have been, even lately, called in question, and some adhere to the theory which supposes an inferiority in the latter. The following considerations will prove that I have not been mistaken in rejecting it : — I. It will not be contended that the words "regardant," and " in gross," indicate, of themselves, any specific differ- ence between the two, or can mean any thing but the title by which the villein was held ; prescriptive and territorial in one case, absolute in the other. For the proof, there- fore, of any such difference, we require some ancient au- • Tlie following passage in the carta sua confirmavit cuidam Anglico Chronicle of IJrakelonde docs not men- natione, cflvha: adscripto, de ciijus fidcli- tion any manumission of the ccorl on tatc plenius confidcbat quia bonus agri- whom Abbot Samson conferred a cola erat, et quia r.csciebat loqui Gal- irnnor : — " Unum solum mancrium lice." (p. 24.) 384 VILLEINS. [Chap. VIII. thority, which has not been given. II. The villein re- gardant might be severed from the manor, with or without land, and would then become a villein in gross. If he was sold as a domestic serf, he might, perhaps, be practically in a lower condition than before, but his legal state was the same. If he was aliened with lands parcel of the manor, as in the case of its descent to co-parceners who made partition, he would no longer be regardant, because that implied a prescriptive dependence on the lord, but would occupy the same tenements, and be in exactly the same position as before. " Villein in gross," says Little- ton, *' is where a man is seised of a manor whereunto a villein is regardant, and granteth the same villein by deed to another, then he is a villein in gross, and not re- gardant." (Sect. 181.) III. The servitude of all vil- leins was so complete that we cannot conceive degrees in it. No one could purchase lands, or possess goods of his own ; we do not find that any one, being strictly a villein, held by certain services ; "he must have regard," says Coke, *' to that which is commanded unto him ; or in the words of Bracton, ' a quo prsestandum servitium incertum et indeterminatum, ubi scire non poterit vespere quod servitium fieri debet mane.' " (Co. Litt. 120. b.) How could a villein in gross be lower than this ? It is true that the villein had one inestimable advantage over the American negro, that he was a freeman, except relatively to his lord ; possibly he might be better protected against personal injury ; but in his incapacity of acquiring secure property, or of refusing labour, he was just on the same footing. It may be conjectured, that some villeins in gross were descended from the servi, of whom we find 25,000 enumerated in Domesday. Littleton says: — "If a man and his ancestors, whose heir he is, have been seised of a villein and of his ancestors, as of villeins in gross, time out of memory of man, these are villeins in gross." (Sect. 182.) It has been often asserted, that villeins in gross seem not to have been a numerous class, and it might not be easy to adduce distinct instances of them in the fourteenth and Note 199.] VILLEINS. 385 fifteenth centuries, though we should scarcely infer, from the pains Littleton takes to describe them, that none were left in his time. But some may be found in an earlier a^-e. In the ninth of John, William sued Ralph the priest for granting away lands which he held to Canford priory. Ralph pleaded that they were his freehold. William re- plied that he held them in villenage, and that he (the plaintiff) had sold one of Ralph's sisters for four shillings. (Blomfield's Norfolk, vol. iii. p. 860 4to edition.) And Mr. Wright has found in Madox's Formulare Angli- canum, not less than five instances of villeins sold with their family and chattels, but without land, ^rchaeologia, XXX. 228.) Even where they were sold along with land, unless it were a manor, they would, as has been observed before, have been villeins in gross. I have, however, been informed, that in valuations under escheats, in the old records, a separate value is never put upon villeins ; their alienation without the land n'as apparently not contemplated. Few cases concerning villein^s in gross, it has been said, occur in the Year Books ; but villenage of any kind does not furnish a great many ; find in several I do not perceive, in consulting the report, that the party can be shown to have been regardant. One reason why villeins in gross should have become less and less nu- merous was that they could, for the most part, only be claimed by showing a written grant, or by prescription through descent ; so that if the title-deed were lost, or tlie descent unproved, the villein became free. Manumissions were often no doubt gratuitous ; in some cases the villein seems to have purchased his free- dom. For though in strictness, as Glanvil tells us, he could not " libertatem suam suis denariis qua^rere," inas- much as all he possessed already belonged to the lord, it w^ould have been thought a meanness to insist on so ex- treme a right. In order, however, to make the deed more secure, it was usual to insert the name of a third person as paying the consideration-money for the en- franchisement. (Arclueologia, xxx. 228.) It appears not by any means improbable, that regular c c 386 BATTLE OF ST. ALBANS. [Chap. VIII. money payments, or other fixed liabilities, were often sub- stituted instead of uncertain services, for the benefit of the lord as well as the tenant. And when these had lasted a considerable time in any manor, the villenage of the latter, without any manumission, would have expired by desuetude. But, perhaps, an entry of his tenure on the court-roll, witli a copy given to himself, would operate of itself, in construction of law, as a manumission. This I do not pretend to determine. ^00. BATTLE OF ST. ALBANS. Edit. 1826, vol. iii. p. 285. note |. Edit. 1841, vol. ii. p. .'321. note |. This account of the trifling loss of life in the battle of St. Albans is confirmed by a contemporary letter, pub- lished in the Archseologia (xx. 519.). The whole number of the slain was but forty-eight, including, however, several lords. Note 201.] AVITUS. 387 CHAP. IX. STATE OF SOCIETY AND LETTERS. The subject of the present Chapter, so far as it relates to the condition of Hterature in the middle ages, has been again treated by me in the first and second chapters of a work, published in 1836, The Introduction to the History of Literature in the Fifteentli, Sixteenth, and Seventeenth Centuries. Some things will be found in it more exactly stated, others newly supplied from recent sources. It will not, therefore, be required of me to do more on this occasion than to correct a few errors, or to furnish a few illustra- tions of literary history. Other parts of this Chapter, especially what relates to the progress of connnerce and society, might have been greatly enlarged ; but I have already extended these notes much beyond my intention. ^01. AVITUS. Edit. 1826, vol. iii. p. 325. Etlit. 1841, vol. ii. p. 348. It seems rather probable that the poetry of Avitus belongs to the fifth century, though not very far from its termina- tion. He was the correspondent of Sidonius Apollinaris, who died in 489, and we may presume his poetry to have been written rather early in life. c c 2 388 COULD CHARLEMAGNE WRITE ? [Chap. IX. 202. COULD CHARLEMAGNE WRITE? Edit. 1826, vol. iii. p. 330. Edit. 1841, vol. ii. p. 351. Many are still unwilling to believe that Charlemagne could not write. M. Ampere observes that the emperor asserts himself to have been the author of the Libri Carolini, and is said by some to have composed verses. (Hist. Litt. de la France, iii. 37.) But did not Henry VHI. claim a book against Luther, which was not written by himself? QuifacitperaUum^facitperse^ is in all cases a royal prerogative. Even if the book were Charlemagne's own, might he not have dictated it ? I have been informed that there is a manuscript at Vienna with autograph notes of Charlemagne in the margin. But is there sufficient evidence of their genuineness ? The great difficulty is to get over the words which I have quoted from Eginhard. M. Ampere ingeniously conjectures that the passage does not relate to simple common writing, but to calligraphy ; the art of delineating characters in a beautiful manner, practised by the copyists, and of which a contemporaneous specimen may be seen in the well-known Bible of the British Museum. Yet it must be remembered, that Charlemagne's early life passed in the depths of ignorance ; and Eginhard gives a fair reason why he failed in acquiring the art of writing, that he began too late. Fingers of fifty are not made for a new skill. It is not, of course, implied by the words that he could not write his own name ; but that he did not acquire such a facility as he desired. Note 203.] THE DARK AGES. 389 203. THE DARK AGES. Edit. 1826, vol. iii. p, 331. Edit. 1841, vol. ii. p. 352. The literary ignorance of the Dark Ages is not touched in the text with sufficient discrimination, and the colours are somewhat overcharged. It is not enough to say that there were gradual shades of twilight on each side of the greatest obscurity. A rapid decline of learning began in the sixth century, of which Gregory of Tours is both a witness and an example. It is, therefore, properly one of the dark ages, more so by much than the eleventh, which concludes them; since very few were left in the Church who pos- sessed any acquaintance with classical authors, or who wrote with any command of the Latin language. Their studies, whenever they studied at all, were almost exclu- sively theological; and this must be understood as to the subsequent centuries. By theological is meant the vulgate Scriptures and some of the Latin fathers ; not, however, by reasoning upon them, or doing much more than intro- ducing them as authority in their own words. In the seventh century, and still more at the beginning of the eighth, very little even of this remained in France, where we find hardly a name deserving of remembrance in a literary sense; but Isidore, and our own Bede, do honour to Spain and Britain. It may certainly be said for France and Germany, not- withstanding a partial interruption in the latter part of the ninth and beginning of the tenth century, that they were gradually progressive from the time of Charlemagne. But then this ])rogress was so very slow, and the men in front of it so little capable of bearing comparison with those of later times, considering their writings positively and without indulgence, that it is by no means unjust to call the centuries dark which elapsed between Charlemagne and the manifest revival of literary pursuits towards the c c 3 390 THE DARK AGES. [Chap. IX. end of the eleventh century. Alcuin, for example, has left us a good deal of poetry. This is superior to what we find in some other writers of the obscure period, and indicates both a correct ear and a familiarity with the Latin poets, especially Ovid. Still his verses are not as good as those which schoolboys of fourteen now produce, either in poetical power, or in accuracy of language and metre. The errors indeed are innumerable. Aldhelm, an earlier Anglo-Saxon poet, with more imaginative spirit, is farther removed from classical poetry. Lupus, abbot of Ferrieres, in some of his epistles writes tolerable Latin, though this is far from being always the case; he is smitten with a love of classical literature, quotes several poets and prose writers, and is almost as curious about little points of philology as an Italian scholar of the fifteenth century. He was continually borrowing books in order to transcribe them; a proof, however, of their scarcity, and of the low condition of general learning, which is the chief point we have to regard.* But his more celebrated correspondent, Eginhard, went beyond him. Both his Annals and the Life of Charlemagne are very well written, in a classical spirit, unlike the church Latin ; though a few words and phrases may not be of the best age, I should place Eginhard above Alcuin and Lupus, or, as far as I know, any other of the Caroline period. The tenth century has in all times borne the worst name. Baronius calls it, in one page, plumbeum, ob- sciwmn, infelix. (Annales, a.d. 900.) And Cave, who dubs all his centuries by some epithet, ?i'&%\^w% ferreum to the tenth. Nevertheless, there was considerably less ignorance in France and Germany during the latter part of this age, than before the reign of Charlemagne, or even, perhaps, in it ; more glimmerings of acquaintance * The writinfijs of Lupus Servatus, than Gregory of Tours, but quite as Abbot of Ferrieres, were published by much inferior to Sidonius ApoUinaris. Baluze; and a good account of them I have observed in Lupus quotations will l)e found in Ampere's Hist. Litt. from Horace, Virgil, Martial, Cicero, (vol. iii. p. 237.), as well as in older Aulus Gellius, and Trogus Pompeius works. He is a much better writer (meaning probably Justin). Note 203.] THE DARK AGES. 391 with the Latin classics appear ; and the schools, cathedral and conventual, had acquired a more regular and uninter- rupted scheme of instruction. The degraded condition of papal Rome has led many to treat this century rather worse than it deserves ; and indeed Italy was sunk very low in ignorance. As to the eleventh century, the upward progress was extremely perceptible. It is com- monly reckoned among the dark ages till near its close ; but these phrases are of course used comparatively, and because the difference between that and the twelfth was more sensible than we find in any two that are con- secutive since the sixth. The state of literature in England was by no means parallel to what we find on the Continent, Our best age was precisely the worst in France ; it was the age of the Heptarchy, that of Theodore, Bede, Aldhelm, Ctedmon, and Alcuin, to whom, if Ireland will permit us, we may desire to add Scotus, who came a little afterwards, but whose residence in this island at any time appears an un- authenticated tale. But we know how Alfred speaks of the ignorance of the clergy in his own age. Nor was this much better afterwards. Even the eleventh century, especially before the Conquest, is a very blank period in the literary annals of England. No one can have a con- ception how wretchedly scanty is the list of literary names from Alfred to the Conquest, mIio does not look to Mr. Turner's History of the Anglo-Saxons, or to Mr. Wright's Biographia Literaria. There could be no general truth respecting the past, as it appeared to me, more notorious, or more incapable of being denied with any plausibility, than the characteristic ignorance of Europe during those centuries, which we connuoidy style the Dark Ages. A powerful stream, however, of what, as to the majority at least, I must call prejudice, has been directed of late years in an opposite direction. The medianal j^eriod, in manners, in arts, in literature, and especially in religion, has been regarded with unwonted partiality ; and this favourable temper has c c 4 392 THE DARK AGES. [Chap. IX. been extended to those ages which had lain most fre- quently under the ban of historical and literary censure. A considerable impression has been made on the pre- disposed by the Letters on the Dark Ages, which we owe to Dr. Maitland. Nor is this by any means sur- prising ; both because the predisposed are soon convinced, and because the Letters are written with great ability, accurate learning, a spirited and lively pen, and, conse- quently, with a success in skirmishing w^arfare, which many readily mistake for the gain of a pitched battle. Dr. Maitland is endowed with another quality, far more rare in historical controversy, especially of the eccle- siastical kind I believe him to be of scrupulous in- tegrity, minutely exact in all that he asserts ; and, indeed, the wrath and asperity which sometimes appear rather more than enough, are only called out by what he conceives to be wilful or slovenly misrepresentation. Had I, there- fore, the leisure and means of following Dr. Maitland through his quotations, I should probably abstain from doing so, from the reliance I should place on his testi- mony, both in regard to his power of discerning truth and his desire to express it. But I have no call for any exa- mination, could I institute it ; since the result of my own reflections is, that every thing which Dr. M. asserts as matter of fact, I do not say suggests in all his language, may be perfectly true, without affecting the great propo- sition, that the dark ages, those from the sixth to the eleventh, were ages of ignorance. Nor does he, as far as I collect, attempt to deny this evident truth ; it is merely his object to prove that they were less ignorant, less dark, and in all points of view less worthy of con- demnation, than many suppose. I do not gainsay this position ; being aware, as I have observed both in this and in another work, that the mere ignorance of these ages, striking as it is in comparison with earlier and later times, has been sometimes exaggerated ; and that Euro- peans, and especially Christians, could not fall back into the absolute barbarism of the Esquimaux. But what a man of profound and accurate learning puts forward with Note 203.] THE DARK AGES. 393 limitations, sometimes expressed, and always present to his own mind, a heady and shallow retailer takes up, and exaggerates in conformity Avith his own prejudices. The Letters on the Dark Ages relate principally to the theological attainments of the clergy during that period, which the author assumes, rather singularly, to extend from A. D. 800 to 1200; thus excluding midnight from his definition of darkness, and replacing it by the break of day. And in many respects, especially as to the know- ledge of the vulgate Scriptures possessed by the better-in- formed clergy, he obtains no very difficult victory over those who have imbibed extravagant notions, both as to the ignorance of the Sacred Writings in those times, and the desire to keep them away from the people. This latter prejudice is obviously derived from a confusion of the subsequent period, the centuries preceding the Refor- mation, with those which we have immediately before us. But as the word dark is commonly used, either in reference to the body of the laity, or to the general extent of liberal studies in the Church, and as it involves a comparison with prior or subsequent ages, it cannot be improper in such a sense, even if the manuscripts of the Bible should have been as conmion in monasteries as Dr. Maitland sup- poses; and yet his proofs seem much too doubtful to sus- tain that hypothesis. There is a tendency to set aside the verdict of the most approved writers, which gives too much of a polemical character, too much of the tone of an advocate who fights every point, rather than of a calm arbitrator, to the Letters on the Dark Ages. For it is not Henry, or Jortin, or Robertson, who are our usual testimonies, but their im- mediate masters, Muratori, and Fleury, and Tiraboschi, and Brucker, and the Benedictine authors of the Literary History of France, and many others in France, Italy, and Germany. The latest who has gone over this rather barren ground, and not inferior to any in well-applied learning, in candour or good sense, is M. Ampere, in his Histoire Littcraire de la France avant le douzieme siecle (3 vols. Paris, 1840.). No one will accuse this intelligent writer of unduly depre- 394 THE DARK AGES. [Chap. IX. dating the ages which he thus hrings before us; and by the perusal of his volumes, to which Heeren and Eichhorn may be added for Germany, we may obtain a clear and correct outline, which, considering the shortness of life compared with the importance of exact knowledge on such a subject, will suffice for the great majority of readers. I by no means, however, would exclude the Letters on the Dark Ages, as a spirited pleading for those who have often been condemned unheard. I shall conclude by remarking, that one is a little tempted to inquire why so much anxiety is felt by the advocates of the mediaeval Church, to rescue her from the charge of ignorance. For this ignorance she was not, generally speaking, to be blamed. It was no crime of the clergy that the Huns burned their churches, or the Nor- mans pillaged their monasteries. It was not by their means that the Saracens shut up the supply of papyrus, and that sheep-skins bore a great price. Europe was altogether decayed in intellectual character, partly in con- sequence of the barbarian incursions, partly of other sinister influences acting long before. We certainly owe to the Church every spark of learning which then glimmered, and which she preserved through that darkness to re- kindle the light of a happier age — %-Ks^ixa Tcufog a-iu- (^oua-a. Meantime, what better apology than this ig- norance can be made by protestants, and I presume Dr. Maitland is not among those who abjure the name, for the corruption, the superstition, the tendency to usurpation, which they at least must impute to the Church of the dark ages ? Not that, in these respects, it was worse than in a less obscure period ; for the reverse is true ; but the fabric of popery was raised upon its foundations before the eleventh century, though not displayed in its full propor- tions till afterwards. And there was so much of lying legend, so much of fraud in the acquisition of property, that ecclesiastical historians have not been loth to ac- knowledge the general ignorance as a sort of excuse. Note 204.] SCOTUS OR ERIGENA. 395 204. SCOTUS OR ERIGENA. Edit. 1826, vol. iii. p. 335. Edit. 1841, vol. ii. p. 355. It admits of no doubt that John Scotus was, in a literary and philosophical sense, the most remarkable man of the dark ages ; no one else had his boldness, his subtlety in threading the labyrinths of metaphysical speculations which, in the west of Europe, had been utterly dis- regarded. But it is another question, whether he can be reckoned an original writer ; those who have attended most to his treatise De Divisione Naturae, the most abstruse of his works, consider it as the development of an Oriental philosophy, acquired during his residence in Greece, and nearly coinciding with some of the later Platonism of the Alexandrian school, but with a more unequivocal tendency to pantheism. This manifests itself in some extracts which have latterly been made from the treatise De Divisione Naturae ; but though Scotus had not the reputation of unblemished orthodoxy, the drift of his philosophy was not understood in that barbarous period. He might, indeed, have excited censure by his intrepid preference of reason to authority. *' Authority,'* he says, " springs from reason, not reason from authority — true reason needs not be confirmed by any authority." " La veritable importance historique," says Ampere, " de Scot Erigene n'est done pas dans ses opinions ; celles-ci n'ont d'autre interet que leur date et le lieu ou elles aj)- paraissent. Sans doute, il est piquant et bizarre de voir ces opinions orientales et alexandrines surgir au IX° siecle, a Paris, k la cour de Charles le Chauve ; mais ce qui n'est pas seulement piquant et bizarre, ce qui interesse le developpement de I'esprit humain, c'est que la (jues- tion ait ete j)osee, des lors, si nottement entre I'autorite et la raison, et si energiquement rcsolue en faveur de la seconde. Et un mot, })ar ses idees Scot Erigene est 396 LIBRARIES IN THE DARK AGES. [Chap. IX. encore un philosophe de I'antiquite Grecque ; et par rindependance hautement accusee de son point de vue philosophique, il est deja un devancier de la philosophie moderne." (Hist. Litt. iii. 146.) 205. LIBRARIES IN THE DARK AGES. Edit. 1826, vol. iii. p. 337. Edit. 1841, vol. ii. p. 356. Charlemagne had a library at Aix-la-Chapelle, which he directed to be sold at his death for the benefit of the poor. His son Louis is said to have collected some books. But this rather confirms, on the whole, my sup- position that, in some periods, no royal or private libraries existed, since there were not always princes or nobles with the spirit of Charlemagne, or even Louis the Debonair. " We possess a catalogue," says M, Ampere (quoting d'Achery's Spicilegium, ii. 310.), *' of the library in the Abbey of St. Riquier, written in 831 ; it consists of ^56 volumes, some containing several works. Christian writers are in great majority ; but we find also the Eclogues of Virgil, the Rhetoric of Cicero, the History of Homer, that is, the works ascribed to Dictys and Dares." (Ampere, iii. Q36.') Can any thing be lower than this, if nothing is omitted more valuable than what is mentioned ? The Rhetoric of Cicero was probably the spurious books Ad Herennium. But other libraries must have been some- what better furnished than this ; else the Latin authors would have been still less known in the ninth century than they actually were. In the gradual progress of learning, a very small number of princes thought it honourable to collect books. Perhaps no earlier instance can be mentioned than that of a most respectable man, William III., Duke of Guienne, in the first part of the eleventh century. Notes 206, 207.] RELIGION OF MIDDLE AGES. 397 " Fuit dux iste," says a contemporary writer, " a pueritia doctus Uteris, et satis notitiam Scripturarum habuit ; li- brorum copiam in palatio suo servavit ; et si forte a fre- quentia causarum et tumultu vacaret, lectioni per seipsum operam dabat longioribus noctibus elucubrans in libris, donee somno vinceretur." (Rec. des Hist. x. 155.) 206. ORDEALS. Edit. 1826, vol. iii. p. 341. Edit. 1841, vol. ii. p. 359. " The spirit of party," says a late writer, " has often accused the Church of having devised tliese barbarous methods of discovering" truth — the duel and the ordeal ; nothing can be more unjust. Neither one nor the other is derived from Christianity ; they existed long before in the Germanic usages." (Ampere Hist. Litt. de la France, iii. 180.) Any one must have been very ignorant, who attributed the invention of ordeals to the Church. But during the dark ages, they were always sanctioned. Agobard, from whom M. Ampere gives a quotation, in the reign of Louis the Debonair, wrote strongly against them ; but this was the remonstrance of a superior man in an age that was ill-inclined to hear him. 207. RELIGION OF THE MIDDLE AGES. Edit. 182G, vol. iii. p. 350. Edit. 1841, vol. li p. 365. This hesitation about so important a question, is what I would by no means repeat. Beyond every doubt, the evils of superstition in the middle ages, though separately con- sidered very serious, are not to be weighed against the benefits of the religion with which they were so mingled. The fashion of the eighteenth century, among protestants 398 ELIGIUS. [Chap. IX. especially, was to exagg'erate the crimes and follies of me- diaeval ages — perhaps I have fallen into it a little too much ; in the present, we seem more in danger of extenua- ting them. We still want an inflexible impartiality in all that borders on ecclesiastical history, which, I believe, has never been displayed on an extensive scale. A more cap- tivating book can hardly be named than the Mores Catho- lici of Mr. Digby; and it contains certainly a great deal of truth ; but the general effect is that of a mirage^ which confuses and deludes the sight. If those " ages of faith" were as noble, as pure, as full of human kindness, as he has delineated them, we have had a bad exchange in the centuries since the Reformation. And those who gaze at Mr. Digby's enchantments, will do well to consider how they can better escape this consequence than he has done. Dr. Maitland's Letters on the Dark Ages, and a great deal more that comes from the pseudo-Anglican or Anglo- Catholic press, converge to the same end ; a strong sympa- thy with the mediaeval Church, a great indulgence to its errors, and indeed a reluctance to admit them, with a cor- responding estrangement from all that has passed in the last three centuries. 208. ELIGIUS. Edit. 1826, vol. iii. p. 354. note. Edit. 1841, vol.11, p. 367. This passage was imperfectly given by Mosheim, who mis- led Maclaine his translator, and a number of others. I have acknowledged the error in all editions of this Work after the third, but I here repeat the acknowledgment for those who may not possess the later editions. Much clamour has been made about the mistake of Maclaine, which was innocent, and not unnatural. It has been commented upon, particularly by Dr. Arnold, as a proof of the risk we run of misrepresenting authors, by quoting them at second- Notes 209, 210.] AMALFI. — USURY. 399 hand. And this is perfectly true, and ought to be con- stantly remembered. But, so long as we acknowledge the immediate source of our quotation, no censure is due,* since in works of considerable extent this use of secondary authorities is absolutely indispensable, not to mention the frequent difficulty of procuring access to original authors. 209. AMALFI. Edit. 182G, vol. iii. p. 390. Edit. 1841, vol. ii. p. .391. There must be, I suspect, some exaggeration about the commerce and opulence of Amalfi, in the only age when she possessed any at all. The city could never have been considerable, as we may judge from its position imme- diately under a steep mountain; and what is still more material, has a very small port. According to our notions of trade, she could never have enjoyed much; the lines quoted in my note, from William of Apulia, are to be taken as a poet's panegyric. It is of course a question of degree ; Amalfi was no doubt a commercial republic to the extent of her capacity; but those who have ever been on the coast must be aware how limited that was. At present she has, I believe, no foreign trade at all. 210. USURY. Edit. 182G, vol. iii. p. 406. note*. Edit. 1841, vol. li. p. 402. note f. A sentence in my earlier editions was omitted after- wards, on it having been suggested to me that Isaac Wal- ton does not tell us that Bishop Sanderson would not take interest for his money, but would give 100/. on condition of receiving '20/. annually for seven years. It is mentioned 400 DOMESTIC ARCHITECTURE. [Chap. IX. in a note of Zouch in his edition of Walton's Lives, but not by Walton himself. The distinction, however, was per- fectly familiar to the writers on usury ; and I do not pre- tend to say that it was merely frivolous. 211. DOMESTIC ARCHITECTURE. Edit. 1826, vol. iii. p. 423. Edit. 1841, vol. ii. p. 4155. The account of domestic architecture given in the text is very superficial ; but the subject still remains, compara- tively with other portions of inediseval antiquity, but im- jjerfectly treated. The best sketch that has hitherto been given, is in an article with this title, in the glossary of Ancient Architecture (which should be read in an edition not earlier than that of 1845), from the pen of Mr. Two- peny, whose attention has long been directed to the sub- ject. " There is ample evidence yet remaining of the domestic architecture in this country during the twelfth century. The ordinary manor-houses, and even houses of greater consideration, appear to have been generally built in the form of a parallelogram, two stories high*, the lower story vaulted, with no internal communication be- tween the two, the upper story approached by a flight of steps on the outside; and in that story was sometimes the only fireplace in the whole building. It is more than probable, that this was the usual style of houses in the * This is rather equivocal. In the the same thing as Mr. Twopeny by review of the " Chronicles of the the word story, which the former con- Mayors and Sheriffs," published in the fines to the floor above that on the Archaeological Journal (vol.iv. p. 273.), ground, while the latter includes both, we read — " The houses in London, of The use of language, as we know, sup- whatever material, seem never to have ports, in some measure, either meaning ; exceeded one story in height.' (p. 282.) but perhaps it Is more correct, and But, soon afterwards — " The ground more common, to call the first story floor of the London houses at this pe- that which is reached by a staircase riod was aptly enough called a cellar, from the ground-floor. The solar, or the upper story a solar." It thus ap- sleeping-room, raised above the cellar, pears that the reviewer does not mean was often of wood. Note 211.] DOMESTIC ARCHITECTURE. 401 preceding century." Instances of houses, partly remain- ing, are then given. We may add to those mentioned by Mr. Twopeny one, perhaps older than any, and better pre- served than some, in his hst. At Southampton is a Norman house, perhaps built in the first part of the twelfth century. It is nearly a square, the outer walls tolerably perfect ; the principal rooms appear to have been on the first (or upper) floor ; it has in this also a fireplace and chimney, and four windows, placed so as to indicate a division into two apartments ; but there are no lights below ; nor any appearance of an interior staircase. The sides are about forty feet in length. Another house of the same age is near to it, but much worse preserved. * The parallelogram house, seldom containing more than four rooms, with no access frequently to the upper which the family occupied, except on the outside, was gradually replaced by one on a different type: — the entrance was oa the ground, the staircase within ; a kitchen and other offices, originally detached, were usually connected with the hall by a passage running through the house ; one or more apartments on the lower floor extended beyond the hall ; there was seldom or never a third floor over the en- tire house, but detached turrets for sleeping-rooms rose at some of the angles. This was the typical form ^^hich lasted, as we know, to the age of Elizabeth, or even later. The superior houses of this class were sometimes qua- drangular, that is, including a court-yard, but seldom per- * See a full description in the Ar- fiction as to the domestic condition of chn?ological Journal, vol. iv. p. 11. our forefathers. The house of Cedric Those who visit Southampton may the Saxon in Ivanhoe, with its distinct seek this house near a gate in the west and numerous apartments, is very un- wall. We may add to the contribution like any that remain or can he traced, of Mr. Twopeny one ]nil)livhed in the Tliis is by no means to he censured in Proceedings of the Arcliwolcgical In- the romancer, whose aim is to delight stitute, by Mr. Hudson Turner, Nov. by images more splendid than truth ; 1S47. This is chicily founded on but, especially when presented by one documents, as that of I\Ir. Twopeny is who possessed in some respects a con- on existing remains. Tliese give more siderable knowledge of anti()uity, and light where they can be found ; but was rather fond of displaying it, there the number is very small. Upon the is some danger lest tlie reader should whole, it may be here observed, tliat believe that he has a faithful picture we are frequently misled by works of before him. D D 402 DOMESTIC ARCHITECTURE. [Chap. IX. haps, with more than one side allotted to the main dwelling ; offices, stables, or mere walls filled the other three. Many dwellings erected in the fourteenth century may be found in England ; but neither of that or the next age are there more than a very few, which are still, in their chief rooms, inhabited by gentry. But houses, which by their marks of decoration, or by external proof, are ascer- tained to have been formerly occupied by good families, though now in the occupation of small farmers, and built ai)parently from the reign of the second to that of the fourth Edward, are conmion in many counties. They generally bear the name of court, hall, or grange ; some- times only the surname of some ancient occupant, and very frequently have been the residence of the lord of the manor. The most striking circumstance in the oldest houses is not so much their piecautions for defence in the outside staircase, and when that was disused, the better safe-guard against robbery in the moat which frequently environed the walls, the strong gate^\'ay, the small window broken by mullions, which are no more than we should expect in the times, but the paucity of apartments, so that both sexes, and that even in high rank, must have occupied the same room. The progress of a regard to decency in domestic architecture has been gradual, and in some respects has been increasing up to our own age. But the mediseval period shows little of it ; though in the advance of w^ealth, a greater division of apartments distinguishes the houses of the fourteenth and fifteenth centuries from those of an earlier period. The French houses of the twelfth and thirteenth cen- turies were probably much of the same arrangement as the English ; the middle and lower classes had but one hall and one chamber ; those superior to them had the solarium or upper floor, as with us. See Archaeological Journal (vol. i. p. 212.), where proofs are adduced from the fabliaux of Barbazan. Notes 212, 213.] CHIMNEYS, 403 212. JACQUES CCEUR. Edit. 1826, vol. iii. p. -123. Edit. 1841, vol. ii. p. 413. Whether Jacques Coeur had or had not a house at Beaumont-sur-Oise, for which I do not recollect my authority, and it may be a mistake, his much more cele- brated mansion was at Bourges, which still exists, and is well known to the curious in architectural antiquity. 213. CHIMNEYS. Edit 1826, vol. iii. p. 425. Edit. 1841, vol. ii. p. 414. Chimneys are of older date in private houses than the text and note seem to intimate. In a recent work of some reputation, it is said : — " There does not appear to be any evidence of the use of chimney-shafts in England prior to the twelfth century. In Rochester Castle, which is in all probability the work of William Corbyl, about 1130, there are complete fireplaces with semicircular backs, and a shaft in each jamb, supporting a semicircular arch over the opening, and that is enriched with the zig- zag moulding ; some of these project slightly from tbe wall ; the flues, however, go only a few feet up in the thick- ness of the wall, and are then turned out at the back, the apertures being small oblong holes. At the castle, Heding- liain, Essex, which is of about the same date, there are fire- places and chimneys of a similar kind. A few years later, the improvement of carrying the flue up the whole height of the wall appears; as at Christ Church, Hants; the keep at Newcastle; Sherborne Castle, &c. The early chimney shafts are of considerable height, and similar ; afterwards they assumed a great variety of forms, and during the D » 2 404 COLOGNE. [Chap. IX. fourteenth century they are frequently very short." (Glos- sary of Ancient Architecture, p. 100. edit. 1845.) It is said, too, here that chimneys were seldom used in halls till near the end of the fifteenth century; the smoke took its course, if it pleased, through a hole in the roof. 214. COLOGNE. Edit. 1826, vol. iii. p. 434. Edit. 1841, vol. ii. p. 420. Tins is a palpable oversight as to Cologne, which is of the thirteenth century. The subject of ecclesiastical architecture in the middle ages has been so fully discussed by intelligent and obser- vant writers since these pages were first published, that they require some correction. The Oriental theory for the origin of the pointed architecture, though not given up, has not generally stood its ground; there seems more reason to believe that it was first adopted in Germany, as Mr. Hope has shown ; but at first in single arches, not in the construction of the entire building. The circular and pointed forms, instead of one having at once supplanted the other, were concurrent in the same building, through Ger- many, Italy and Switzerland, for some centuries. I will just add to the instances mentioned by Mr. Hope and others, and which every traveller may corroborate, one not very well known, perhaps as early as any, — the crypt of the ca- thedral at Basle, built under the reign of the emperor Henry II., near the commencement of the eleventh century, where two pointed with three circular arches stand together, evidently from want of space enough to preserve the same breadth with the necessary height. The same circumstance will be found, I think, in the crypt of St. Denys, near Paris, which, however, is not so old. The writings of Rickman, Whewell and Willis are prominent among many that have thrown light on this subject. The beauty and Note 215.] AGRICULTURE OF THE MONKS. 1-05 magriificence of the pointed style is acknowledg-ed on all sides ; perhaps the imitation of it has been too servile, and with too much forgetfulness of some very important changes in our religious aspect, rendering that simply ornamental which was once directed to a great object. 215. AGRICULTURE OF THE MONKS. Edit. 1826, vol. iii. p. 436. Edit. 1841, vol. ii. p. 422. It was the glory of Saint Benedict's reform, to have substituted bodily labour for the supine indolence of Oriental asceticism. In the East it was more difficult to succeed in such an endeavour, though it had been made. '* The Benedictins have been," says Guizot, " the great clearers of land in Europe. A colony, a little swarm of monks, settled in places nearly uncultivated, often in the midst of a pagan population, in Germany, for ex- ample, or in Britany ; there, at once missionaries and labourers, they accomplished their double service through peril and fatigue." (Civilis. en France, Le9on 14.) The north-eastern parts of France, as far as the Lower Seine, were reduced into cultivation by the disciples of St. Colum- ban, in the sixth and seventh centuries. The proofs of this are in Mabillon's Acta Sanctorum Ord. Bened. (See Mem. de I'Acad. des Sciences Morales et Politiques, iii. 708.) Guizot has appreciated the rule of St. Benedict with that candid and favourable spirit which he always has brought to the history of the Church ; anxious as it seems, not only to escaj)e the imputation of jn-otestant prejudices by others, but to combat them in his own mind ; and aware, also, that the partial misrepresentations of Voltaire had sunk into the minds of many who were listening to his lectures. Compared with the writers of tlie eighteenth century, who were too much alienated by the faults of the clergy to acknowledge any redeeming virtues, or D D 3 406 VALUE OF MONEY. [Chap. IX. even with Sismondi, who, coining in a moment of re- action, feared the returning influence of mediseval preju- dices, Guizot stands forward as an equitable and indulgent arbitrator. In this spirit he says of the rule of St. Bene- dict — " La pensee morale et la discipline generale en sont severes ; mais dans le detail de la vie elle est humaine et moderee ; plus humaine, plus moderee que les lois babares, que les moeurs generales du temps ; et je ne doute pas que les freres, renfermes dans I'interieur d'un monastere, n'y fussent gouvernes par une autorite, a tout prendre, et plus raisonnable, et d'une maniere moins dure qu'ils ne Teussent ete dans la societe civile." 2 J 6. VALUE OF MONEY. Edit. 1826, vol. iii. p. 450. Edit. 1841, vol. ii. p. 429. M. GuERARD, editor of " Paris sous Philippe le Bel," in the Documens Inedits (1841, p. 365')^ after a com- parison of the prices of corn, concludes that the value of silver has declined since that reign, in the ratio of five to one. This is much less than we allow in England. M. Leber (Mem de FAcad. des Inscript. Nouvelle Serie, xiv. 230.) calculates the power of silver under Charlemagne, compared with the present day, to have been as nearly eleven to one. It fell afterwards to eight, and continued to sink during the middle ages; the average of prices during the fourteenth and fifteenth centuries, taking corn as the standard, was six to one; the comparison is of course only for France. This is an interesting paper, and contains tables worthy of being consulted. XoTE 217.J WAGES OF LABOUR. 407 217. WAGES OF LABOUR. Edit. IS'26, vol, ili. p. 456. Edit. 1841, vol. ii. p. 4S.'3. Mr. Malthus observes on this, that I "have overlooked the distinction between the reigns of Edward III. and Henry VIII. (perhaps a misprint for ^^L), with regard to the state of the labouring classes. The two periods appear to have been essentially different in this respect." (Principles of Political Economy, p. 293. 1st edit.) He conceives that the earnings of the labourer in corn were unusually low in the latter years of Edward HI., Avhich appears to have been effected by the Statute of Labourers (25. E. HI.), immediately after the great pestilence of 1350, though that mortality ought, in the natural course of things, to have considerably raised the real wages of labour. The result of his researches is that, in the reign of Edward HI., the labourer could not purchase half a peck of wheat with a day's labour; from that of Richard II. to the middle of that of Henry VI., he could purchase nearly a peck; and from thence to the end of the century, nearly two pecks. At the time when the passage in the text was written (181 6), the labourer could rarely have purchased more than a peck with a day's labour, and fiequentlv a good deal less. In some parts of England, this is the case at present (1846); but in many counties the real wages of agricultural labourers are considerably higher than at that time, though not by any means so high as, according to Malthus liimself, they were in the latter half of the fifteenth century. The excessive fluctuations in the price of corn, even taking averages of a long term of years, which we find through the middle ages, and indeed much later, ac- count more than any other assignable cause for those in real wages of laljour, which do not regulate themselves very promptly by that standard, esj)ecially when coercive measures are adopted to restrain them. D D 4 408 VERSIONS OF SCRIPTURE. [Chap. IX. 518. WALDENSES AND ALBIGENSES. Edit. 1826, vol. iii. p. 472. Edit. 1841, vol. ii. p. 444, The long battle as to the Manlcbeism of the Albigensian sectaries has been renewed since the publication of this work, by Dr. Maitland on one side, and Mr. Faber and Dr. Gilly on the other ; and it is not likely to reach a termi- nation ; being conducted by one party with far less regard to the weight of evidence than to the bearing it may have on the theological hypotheses of the writers. I have seen no reason for altering" what is said in the text. The strength of the argument seems to me to lie in the independent testimonies as to the Manicheism of the Paulicians, in Petrus Siculus and Photius, on the one hand, and as to that of the Languedocian heretics in the Latin writers of the twelfth and thirteenth centuries on the other ; the connexion of the two sects through Bulgaria being established by history, but the latter class of \vriters being unacquainted with the former. It is certain that the probability of general truth in these concurrent testimonies is greatly enhanced by their independence. And it will be found that those who deny any tinge of Manicheism in the Albigenses, are equally confident as to the orthodoxy of the Paulicians. 219. VERSIONS OF SCRIPTURE. Edit. 1826, vol. iii. p. 474. Edit. 1841, vol. ii. p. 447. The Anglo-Saxon versions are deserving of particular remark. It has been said that our Church maintained the privilege of having part of the daily service in the mother tongue. " Even the mass itself," says Lappenberg, " was Note 220.] CHIVALRY. 409 not read entirely in Latin." (Hist, of England, vol. i. p. 202.) This, however, is denied by Lingard, whose authority is probably superior. (Hist, of Aug- Sax. Church, i. 307.) But he allows that the Epistle and Gospel were read in English, which implies an authorised translation. And we may adopt in a great measure Lappenberg's pro- position, which follows the above passage : — " The nu- merous versions and paraphrases of the Old and New Testament made those books known to the laity and more familiar to the clergy." We have seen a little above, that the laity were not per- mitted by the Greek Church of the ninth century, and probably before, to read the Scriptures, even in the original. This shows how much more honest and pious the Western Church was, before she became corrupted by ambition and by the captivating hope of keeping the laity in servitude by means of ignorance. The translation of the four Books of Kings into French has been published in the Collection de Documens Inedits, 184<1. It is in a northern dialect, but the age seems not satisfactorily ascertained ; the close of the eleventh century is the earliest date that can be assigned. Translations into the Provencal by the Waldensian or other heretics were made in the twelfth ; several manuscripts of them are in existence, and one is announced for publication by Dr. Gilly. 220. CHIVALRY. Edit. 1826, vol. iii. p. 511. Edit. 1811, vol. ii. p. 472, It appears to me that M. Guizot, to whose judgment I owe all deference, has dwelt rather too much on the feu- dal character of chivalry. (Hist, de la Civilisation en France, Le9on, 36.) Hence he treats the institution as in its de- cline during the fourteenth century, when, if we can trust either Froissart or the romancers, it was at its height. Certainly, if mere knighthood was of right both in Eng- 410 CHIVALRY. [Chap. IX. land and the north of France, a territorial dignity, which bore with it no actual presumption of merit, it was some- times also conferred on a more honourable principle. It was not every knight who possessed a fief, nor in prac- tice did every possessor of a fief receive knighthood. Guizot justly remarks, as Sismondi has done, the dis- parity between the lives of most knights and the theory of chivalrous rectitude. But the same has been seen in religion, and can be no reproach to either principle. " Partout la pensee morale des hommes s*eleve et aspire fort au dessus de leur vie. Et gardez vous de croire que parce qu'elle ne gouvernait pas immediatement les actions, parceque la pratique demontait sans cesse et etrangement la theorie, I'influence de la theorie fiit nulle et sans valeur. C'est beaucoup que le jugement des hommes sur les actions humaines ; tot ou tard il devient efficace." It may be thought by many severe judges, that I have over-valued the efficacy of chivalrous sentiments in ele- vating the moral character of the middle ages. But I do not see ground for withdrawing or modifying* any sentence. The comparison is never to be made with an ideal stand- ard, or even with one which a purer religion and a more liberal organisation of society may have rendered effectual, but with the condition of a country where neither the senti- ments of honour nor those of right prevail. And it seems to me that I have not veiled the deficiencies and the vices of chivalry any more than its beneficial tendencies. A very fascinating picture of chivalrous manners has been drawn by a writer of considerable reading, and still more considerable ability, Mr. Kenelm Digby, in his Broad Stone of Honour. The bravery, the courteous- ness, the munificence, above all, the deeply religious cha- racter of knighthood and its reverence for the Church, naturally took hold of a heart so susceptible of these emo- tions, and a fancy so quick to embody them. St. Palaye himself is a less enthusiastic eulogist of chivalry, because he has seen it more on the side of mere romance, and been less penetrated with the conviction of its moral ex- cellence. But the progress of still deeper impressions Notes 221,222.] EDUCATION BEFORE CHARLEMAGNE. 411 seems to Iiave moderated the ardour of Mr. Digby's ad- miration for the historical character of knighthood ; he has discovered enough of human alloy to render unquali- fied praise hardly fitting, in his judgment, for a Christian writer ; and in the Mores Catholici, the second work of this amiable and gifted njan, the colours in M'hicli chivalry appears are by no means so brilliant. 221. CIVIL LAW. Edit. 182G, vol. iii. p. 520. Edit. 1841, vol. ii. p. 477. This passage is written in a \ ery Eiif/Ush s])irit ; the civil lawyers of the mediaeval period are not at all forgotten on the Continent, as the great work of Savigny, History of Roman Law in the Middle Ages, sufficiently proves. It is certain that the civil law must always be studied in Europe, nor ought the new codes to supersede it, seeing they are in great measure derived from its fountain ; tliough I have heard that it is less regarded in France than formerly. 222. education before CHARLEMAGNE. Edit. 1826, vol, iii. p. 520. Edit. 1841, vol. ii. p. 478. It is rather too strongly put, that there were no means of education before Charlemagne, or at least so as possibly to deceive a reader. *' Studia liberalium artium" in the passage quoted from Launoy, must be understood to ex- clude literature, commonly so called, but not a certain measure of very ordinary instruction. For there were episcopal and conventual schools in the seventh and eighth centuries, even in France, especially Acpiitaine; we need hardly repeat that in England, the former of these 412 ABELARD OXFORD, [Chap. IX. ages produced Bede and Theodore, and the men trained under them ; the Lives of the Saints also lead us to take with some limitation the absolute denial of liberal studies before Charlemagne. (See Guizot, Hist, de la Civilis. en France, Le9on 16. ; and Ampere, Hist. Litt. de la France, iii. p. 4.) But, perhaps, philology, logic, philosophy, and even theology were not taught, as sciences, in any of the French schools for these two centuries ; and consequently those established by Charlemagne justly make an epoch. Q23. ABELARD. Edit. 1826, p. 523. Edit. 1841, p. 479. A GREAT interest has been revived in France for the phi- losophy, as well as the personal history of Abelnrd, by the publication of his philosophical writings, in 1836, under so eminent an editor as M. Cousin, and by the excellent work of M. de Remusat, in 184.5, with the title, Abelard, containing a copious account both of the life and writings of that most remarkable man, the father, perhaps, of the theory as to the nature of universal ideas, now so ge- nerally known by the name of concept iiaUsm. 224. OXFORD. Edit. 1826, vol. iii. p. 524. Edit. 1841, vol. li. p. 480. The authenticity of Ingulfus has been called in question, not only by Sir Francis Palgrave, but by Mr. Wright (Biogr. Liter. Anglo-Norman period, p. 29.). And this implies, apparently, the spuriousness of the continuation ascribed to Peter of Blois, in which the passage about Averroes throws doubt upon the whole. I have, in the Notes '225, 226.] FRENCH LANGUAGE. 413 Introduction to the History of Literature, retracted tlie deg"ree of credence here given to the foundation of the University of Oxford by Alfred. If Ingulfus is not genuine, we have no proof of its existence as a school of learning before the middle of the twelfth century. 225. SCHOOLMEN. Edit. 1826, vol. iii. p. 534. Edit. 1841, vol. ii. p. 486, It must be owned with resfard to the schoolmen, as well as the jurists, that I have underrated, or at least not an- ticipated, the attention which their worlcs have attracted in modern Europe, judging rather from the philosophy of the eighteenth century than of the present. For several years past, the metaphysicians of Germany and France have brushed the dust from the scholastic volumes ; Tennemann and Buhle, Degerando, but more than all Cou- sin and Remusat, in their excellent labours on Abelard, have restored the medival philosophy to a place in trans- cendental metaphysics, which, during the prevalence of the Cartesian school, and those derived from it, had been refused. 226. FRENCH LANGUAGE. Edit. 1826, vol. iii. p. 546. Edit. 1841, vol. il. p. 496. The laws of William the Conqueror, published in Ingulfus, are translated from a Latin original ; the French is of the thirteenth century. It is doubtful whether any French, except a fragment of a translation of Boethius, in verse, is now extant of an earlier age than the twelfth. (Intro- duction to Hist, of Literat. 3d edit. p. 28.) 414 STORIES OF ARTHUR. [Chap. IX. 227. POETRY OF RICHARD I. Edit. 1826, vol. iii. p. 5-19. Edit. 1840, vol. ii. p. 497. Raynouard published, in Provengal, the song" of Richard on his captivity, which had several times appeared in French. It is not improbable that he wrote it in both dialects. (Leroux de Lincy, Chants Historiques Fran^ais, vol. i. p. 55.') Richard also composed verses in the Poitevin dialect, spoken at that time in Maine and Anjou, which resembles the langue d'Oc more than that of northern France, though, especially in the latter countries, it gave way not long afterwards. (Id. p. 770 228. STORIES OF ARTHUR. Edit.l82G, vol. iii. p. 550. note *. Edit. 1841, vol. ii. p. 497. note f. Though the stories of Arthur were not invented by the English out of jealousy of Charlemagne, it has been in- geniously conjectured and rendered highly probable by Mr. Sharon Turner, that the history by Geoffrey of Mon- mouth was composed with a political view to display the independence and dignity of the British crown, and was intended, consequently, as a counterpoise to that of Turpin, which never became popular in England, It is doubtful, in my judgment, Avhether Geoffrey borrowed so nuich from Armorican traditions as he pretended. Notes 229 231.] ENGLISH IN PARLIAMENT. 415 229. PETRARCH. Edit. 1826, vol. iii. p. 571. Edit. 1841, vol. ii. p. 511. I RETRACT altogether the preference here given to the Triumphs above the Canzoni, and doubt whether the latter are superior to the Sonnets. This at least is not the opinion of Italian critics, who ought to be the most competent. 230. LAYAMON. Edit. 1826, vol. iii. p. 571. Edit. 1841, vol. ii. p. 512. Layamon, as is now supposed, wrote in the reign of John. See Sir Frederic Madden's edition, and Mr. Wright's Biographia Literaria. The best reason seems to be that he speaks of Eleanor, queen of Henry, as then dead, which took place in 1204. But it requires a vast knowledge of the language to find a date by the use or disuse of particular forms ; the idiom of one part of England not being" similar to that of another in gram- matical flexions. (See Quarterly Review for April, 1848.) 231. ENGLISH IN PARLIAMENTARY PROCEEDINGS, Edit. 1826, vol. iii, p. 575. Edit. 1841, vol. ii, p. 514. The progress of our language in proceedings of the legis- lature is so well described in the Preface to the authentic edition of Statutes of the Realm, published by the Record 416 ENGLISH IN PARLIAMENT. [Chap. IX. Commission, that I shall transcribe the passag-e, which I copy from Mr. Cooper's useful account of the Public Re- cords (vol. i. p. 189.) : — " The earliest instance recorded of the use of the Eng- lish lang-uag-e in any parliamentary proceeding is in 36 Edw. III. The style of the roll of that year is in French as usual, but it is expressly stated that the causes of summoning the parliament were declared oi Englois ; and the like circumstance is noted in 37 and 38 Edw. III.* In the 5th year of Richard II., the chancellor is stated to have made un bone coUacion en Engleys (introductory, as was then sometimes the usage, to the commencement of business), though he made use of the common French form for opening the parliament. A petition frOm the * Folk of the Mercerye of London,' in the 10th year of the same reign, is in English ; and it appears also that in the 17th year the Earl of Arundel asked pardon of the Duke of Lancaster by the award of the King and Lords, in their presence in parliament, in a form of English Avords. The cession and renunciation of the crown by Richard II. is stated to have been read before the estates of the realm and the people in Westminster Hall, first in Latin and afterwards in English, but it is entered on the parliament roll only in Latin. And the challenge of the crown by Henry IV., with his thanks after the allowance of his title, in the same assembly, are recorded in En- glish, which is termed his maternal tongue. So also is the speech of Lord William Thyrning, the Chief Justice of the Common Pleas, to the late King Richard, an- nouncing to him the sentence of his deposition, and the yielding up, on the part of the people, of their fealty and allegiance. In the 6th year of the reign of Henry IV. an English answer is given to a petition of the Commons, touching a proposed resumption of certain grants of the crown to the intent the king might live of his own. The English language afterwards appears occasionally, through the reigns of Henry IV. and Henry V. In the first and • References are given to the Rolls of Parliament througliout this extract. Note 232.] QUOTATIONS IN THE DARK AGES. 417 second, and subsequent years of Henry VI., the petitions or bills, and in many cases the answers also, on which the statutes were afterwards framed, are found frequently in English ; but the statutes are entered on the roll in French or Latin. From the 23d year of Henry VI., these petitions or bills are almost universally in English, as is also sometimes the form of the royal assent ; but the statutes continued to be enrolled in French or Latin. Sometimes Latin and French are used in the same statute *, as in 8 Hen. VI., 2? Hen. VI., and 39 Hen. VI. The last statute wholly in Latin on record is 33 Hen. VI. c. 2. The statutes of Edward IV. are entirely in French. The statutes of Richard HI. are in many manuscripts in French in a complete statute form ; and they were so printed in his reign and that of his successor. In the earlier En- glish editions a translation was inserted in the same form ; but in several editions, since 16X8, they have been printed in English, in a different form, agreeing, so far as relates to the acts printed, with the inrolment in Chancery at the Chapel of the Rolls. The petitions and bills in parlia- ment, during these two reigns are all in English. The statutes of Henry VII. have always, it is believed, been published in English ; but there are manuscripts con- taining the statutes of the first two parliaments, in his first and third year, in French. From the fourth year to the end of his reign, and from thence to the present time, they are universally in English." 232. QUOTATIONS IN THE DARK AGES, Edit. 1826, vol. iii. p. 578. Edit. 1841, vol. ii. p. 51^7. This is by much too strongly asserted; during the dark ages, that is from the sixth to the eleventh century, quota- * AH the acts passed in the same difference of language was in separate session are legally one statute ; the chapters or acts. E E 418 GREEK LANGUAGE. [Chap. IX. tions from the Latin poets ought not to be called unusual. Virgil, Ovid, Statius, and Horace are brought forward by those who aspired to some literary reputation, especially during the better periods of that long twilight, the reigns of Charlemagne and his son in France, part of the tenth century in Germany, and the eleventh in both. The prose writers of Rome are not so familiar, but in quotations we are apt to find the poets preferred; and it is certain that a few could be named who were not ignorant of Cicero, Sallust, and Livy. Nor is it correct to say, without more limitation than I have employed, that the study of the poets was- almost forbidden. This may have been true in particular instances; but the prohibition was never general, or at least never regarded. The subject is more accurately touched in the History of Literature, and in a former note on p. 331. Q33. INVENTION OF PAPER. Edit. 1826, vol. iii. p. 580, Edit. 1841, vol. ii. p. 517. See the Introduction of History of Literature, chap. i. sect. 58, 234. greek language. Edit. 1826, vol. iii. p. 586. Edit. 1841, vol. ii. p. 521. See the same work, chap. ii. sect. J, \ THE END. London : Spottiswoode and Shaw, New-street- Square. mr ^^ V ^ »rvN t M 000 8 48 74? 3 ♦/• •. >^^/ r