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Vol. III, by Henry Hallam. + </title> + <style type="text/css"> + +body { + margin-left: 10%; + margin-right: 10%; +} + + h1,h2,h3,h4,h5,h6 { + text-align: center; /* all headings centered */ + clear: both; +} + +p { + margin-top: .75em; + text-align: justify; + margin-bottom: .75em; +} + +p.ind { + margin-top: .75em; + margin-bottom: .75em; + text-indent: -1em; + padding-left: 1em; +} + +p.padboth {text-align: center; + padding-top: 1.5em; + padding-bottom: 1.5em; +} + +p.padtop {text-align: center; + padding-top: 2em; +} + +p.padbot {text-align: center; + padding-bottom: 2em; +} + +p.spaced { text-align: center; + letter-spacing: .2em; + margin-right: -.2em; + font-size: 1.25em; +} + +p.centerbig { text-align: center; + font-size: 1.3em; +} + +.ind15 {width: 30%; text-align: right; position: absolute; right: 0; padding-right: 10%;} + +hr { + width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +div.centered table {margin-left: auto; margin-right: auto; text-align: left;} + +td.top {vertical-align: top;} +td.pad {padding-left: .5em;} + +.pagenum { /* uncomment the next line for invisible page numbers */ + /* visibility: hidden; */ + position: absolute; + left: 92%; + font-size: smaller; + text-align: right; +} /* page numbers */ + +.blockquot { + margin-left: 5%; + margin-right: 10%; +} + +.sidenote { + width: 20%; + padding-bottom: .5em; + padding-top: .5em; + padding-left: .5em; + padding-right: .5em; + margin-left: 1em; + float: right; + clear: right; + margin-top: 1em; + font-size: smaller; + color: black; + background: #eeeeee; + border: dashed 1px; +} + +.bb {border-bottom: solid 2px;} + +.bl {border-left: solid 2px;} + +.bt {border-top: solid 2px;} + +.br {border-right: solid 2px;} + +.bbox {border: solid 2px;} + +.center {text-align: center;} + +.smcap {font-variant: small-caps;} + +.u {text-decoration: underline;} + +/* Footnotes */ +.footnotes {border: none; + padding-top: 1em; +} + +.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + +.footnote .label {position: absolute; right: 84%; text-align: right;} + +.fnanchor { + vertical-align: super; + font-size: .8em; + text-decoration: + none; +} + +/* Poetry */ +.poem { + margin-left:10%; + margin-right:10%; + text-align: left; +} + +.poem br {display: none;} + +.poem .stanza {margin: 1em 0em 1em 0em;} + +.poem span.i0 { + display: block; + margin-left: 0em; + padding-left: 3em; + text-indent: -3em; +} + +.poem span.i2 { + display: block; + margin-left: 2em; + padding-left: 3em; + text-indent: -3em; +} + +.poem span.i4 { + display: block; + margin-left: 4em; + padding-left: 3em; + text-indent: -3em; +} + .poem span.i5 {display: block; margin-left: .5em; padding-left: 3em; text-indent: -3em;} + .poem span.i1 {display: block; margin-left: 1em; padding-left: 3em; text-indent: -3em;} + .poem span.i10 {display: block; margin-left: 10em; padding-left: 3em; text-indent: -3em;} + .poem span.i30 {display: block; margin-left: 30em; padding-left: 3em; text-indent: -3em;} + .poem span.i7 {display: block; margin-left: 7em; padding-left: 3em; text-indent: -3em;} + +.tbhigh {margin-top: 1em; margin-bottom: 1em; text-align: center; vertical-align: 0.5em;} + .tblow {vertical-align: -0.5em;} + +.sixty {font-weight: normal; + font-size:60%; +} + +.grk {font-style: normal; font-family: "Palatino Linotype","New Athena Unicode",Gentium,"Lucida Grande", + Galilee,"Arial Unicode MS",sans-serif; + font-size: 1.1em;} + +.small80 {font-size: 80%;} + +.small70 {font-size: 70%;} + +.tnote {border: dashed 1px; margin-left: 10%; margin-right: 10%; + padding-bottom: 1em; padding-top: 1em; + padding-left: 1em; padding-right: 1em; + background: #eeeeee;} + + </style> + </head> +<body> + + +<pre> + +The Project Gutenberg EBook of View of the State of Europe during the +Middle Ages, Vol. 3 (of 3), by Henry Hallam + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: View of the State of Europe during the Middle Ages, Vol. 3 (of 3) + +Author: Henry Hallam + +Release Date: August 26, 2010 [EBook #33540] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK VIEW OF THE STATE OF EUROPE *** + + + + +Produced by Paul Dring, Stephen Hope, Delphine Lettau and +the Online Distributed Proofreading Team at +http://www.pgdp.net + + + + + + +</pre> + + +<h1>VIEW</h1> + +<p class="padboth"><small>OF</small></p> + +<h2>THE STATE OF EUROPE</h2> + +<p class="padboth"><small>DURING</small></p> + +<h2>THE MIDDLE AGES.</h2> + +<p class="padtop">BY HENRY HALLAM, LL.D., F.R.A.S.,</p> + +<p class="padbot"><small>FOREIGN ASSOCIATE OF THE INSTITUTE OF FRANCE.</small></p> + +<p class="padboth">IN THREE VOLUMES.—VOL. III.</p> + +<p class="padbot"><br /><i>NEW EDITION.</i></p> + +<p class="spaced"><br />LONDON:<br /><br /> + +JOHN MURRAY, ALBEMARLE STREET.</p> + +<p class="centerbig">1860.</p> + +<p class="padboth"><i>The right of Translation is reserved.</i></p> + +<p><br /><br /><br /></p> + +<p class="center"><small>PRINTED BY W. CLOWES AND SONS, STAMFORD STREET AND CHARING CROSS.</small></p> + +<p><br /><br /><br /></p> + +<h2>CONTENTS</h2> + +<p class="center">OF</p> + +<h2>THE THIRD VOLUME.</h2> + +<hr /> + +<h2>CHAPTER VIII.</h2> + +<p class="center"><span class="smcap">Part</span> III.</p> + +<p class="center"><small>THE ENGLISH CONSTITUTION.</small></p> + +<p class="ind"> +Reign of Edward I.—Confirmatio Chartarum—Constitution of Parliament—the +Prelates—the temporal Peers—Tenure by Barony—its +Changes—Difficulty of the Subject—Origin of Representation of the +Commons—Knights of Shires—their Existence doubtfully traced +through the Reign of Henry III.—Question whether Representation +was confined to Tenants in capite discussed—State of English Towns +at the Conquest and afterwards—their Progress—Representatives +from them summoned to Parliament by Earl of Leicester—Improbability +of an earlier Origin—Cases of St. Albans and Barnstaple considered—Parliaments +under Edward I.—Separation of Knights and +Burgesses from the Peers—Edward II.—Gradual Progress of the +Authority of Parliament traced through the reigns of Edward III. and +his Successors down to Henry IV.—Privilege of Parliament—the +early Instances of it noticed—Nature of Borough Representation—Rights +of Election—other Particulars relative to Election—House of +Lords—Baronies by Tenure—by Writ—Nature of the latter discussed—Creation +of Peers by Act of Parliament and by Patent—Summons +of Clergy to Parliament—King's Ordinary Council—its +Judicial and other Power—Character of the Plantagenet Government—Prerogative—its +Excesses—erroneous Views corrected—Testimony +of Sir John Fortescue to the Freedom of the Constitution—Causes +of the superior Liberty of England considered—State of Society +in England—Want of Police—Villenage—its gradual Extinction—Latter +Years of Henry VI.—Regencies—Instances of them enumerated—Pretensions +of the House of York, and War of the Roses—Edward IV.—Conclusion. +<span class="ind15"><a href="#Page_1">Page 1</a></span></p> + +<p> +<span class="smcap">Notes to Chapter</span> VIII., <span class="smcap">Part</span> III. +<span class="ind15"><a href="#Page_204">204</a></span> +</p> + +<p class="center">CHAPTER IX.</p> + +<p class="center"><small>ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES.</small></p> + +<p class="center"><span class="smcap">Part</span> I.</p> + +<p class="ind">Introduction—Decline of Literature in the latter Period of the Roman +Empire—Its Causes—Corruption of the Latin Language—Means +by which it was effected—Formation of new Languages—General +Ignorance of the Dark Ages—Scarcity of Books—Causes that prevented +the total Extinction of Learning—Prevalence of Superstition +and Fanaticism—General Corruption of Religion—Monasteries—their +Effects—Pilgrimages—Love of Field Sports—State of Agriculture—of +Internal and Foreign Trade down to the end of the +Eleventh Century—Improvement of Europe dated from that Age. +<span class="ind15"><a href="#Page_268">268</a></span></p> + +<p class="center"><span class="smcap">Part</span> II.</p> + +<p class="ind">Progress of Commercial Improvement in Germany, Flanders, and England—in +the North of Europe—in the Countries upon the Mediterranean +Sea—Maritime Laws—Usury—Banking Companies—Progress +of Refinement in Manners—Domestic Architecture—Ecclesiastical +Architecture—State of Agriculture in England—Value of Money—Improvement +of the Moral Character of Society—its Causes—Police—Changes +in Religious Opinion—Various Sects—Chivalry—its +Progress, Character, and Influence—Causes of the Intellectual +Improvement of European Society—1. The Study of Civil Law—2. +Institution of Universities—their Celebrity—Scholastic Philosophy—3. +Cultivation of Modern Languages—Provençal Poets—Norman +Poets—French Prose Writers—Italian—early Poets in that Language—Dante—Petrarch—English +Language—its Progress—Chaucer—4. +Revival of Classical Learning—Latin Writers of the +Twelfth Century—Literature of the Fourteenth Century—Greek +Literature—its Restoration in Italy—Invention of Printing. +<span class="ind15"><a href="#Page_318">318</a></span></p> + +<p><span class="smcap">Notes to Chapter</span> IX. +<span class="ind15"><a href="#Page_474">474</a></span></p> + +<p><span class="smcap">Index.</span> +<span class="ind15"><a href="#INDEX">487</a></span></p> + +<hr /> + +<p class="spaced">VIEW<br /><br /> + +<span class="small70">OF</span><br /><br /> + +THE STATE OF EUROPE<br /><br /> + +<span class="small80">DURING THE MIDDLE AGES</span>.</p> + +<hr /> + +<h2><a name="Page_1" id="Page_1"></a>CHAPTER VIII.</h2> + +<p class="center">PART III.</p> + +<p class="center">THE ENGLISH CONSTITUTION</p> + +<blockquote><p class="ind">Reign of Edward I.—Confirmatio Chartarum—Constitution of +Parliament—the Prelates—the Temporal Peers—Tenure by +Barony—its Changes—Difficulty of the Subject—Origin of +Representation of the Commons—Knights of Shires—their +Existence doubtfully traced through the Reign of Henry +III.—Question whether Representation was confined to Tenants in +capite discussed—State of English Towns at the Conquest and +afterwards—their Progress—Representatives from them summoned +to Parliament by Earl of Leicester—Improbability of an earlier +Origin—Cases of St. Albans and Barnstaple +considered—Parliaments under Edward I.—Separation of Knights +and Burgesses from the Peers—Edward II.—gradual Progress of +the Authority of Parliament traced through the Reigns of Edward +III. and his Successors down to Henry IV.—Privilege of +Parliament—the early Instances of it noticed—Nature of Borough +Representation—Rights of Election—other Particulars relative +to Election—House of Lords—Baronies by Tenure—by Writ—Nature +of the latter discussed—Creation of Peers by Act of Parliament +and by Patent—Summons of Clergy to Parliament—King's Ordinary +Council—its Judicial and other Power—Character of the +Plantagenet Government—Prerogative—its Excesses—erroneous +Views corrected—Testimony of Sir John Fortescue to the Freedom +of the Constitution—Causes of the superior Liberty of England +considered—State of Society in England—Want of +Police—Villenage—its gradual Extinction—latter Years of Henry +VI.—Regencies—Instances of them enumerated—Pretensions of the +House of York, and War of the Roses—Edward IV.—Conclusion. </p></blockquote> + +<div class="sidenote">Accession of Edward I.</div> + +<p><span class="smcap">Though</span> the undisputed accession of a prince like Edward I. to the throne +of his father does not seem so convenient a resting-place in history as +one of those revolutions which interrupt the natural chain of events, yet +the changes wrought during his reign make it properly an epoch in the +progress of these inquiries. And, indeed, as ours is emphatically styled a +<span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span> +government by king, lords, and commons, we cannot, perhaps, in +strictness carry it further back than the admission of the latter into +parliament; so that if the constant representation of the commons is to be +referred to the age of Edward I., it will be nearer the truth to date the +English constitution from that than from any earlier era.</p> + +<div class="sidenote">Confirmation of the Charters.</div> + +<p>The various statutes affecting the law of property and administration of +justice which have caused Edward I. to be named, rather hyperbolically, +the English Justinian, bear no immediate relation to our present +inquiries. In a constitutional point of view the principal object is that +statute entitled the Confirmation of the Charters, which was very +reluctantly conceded by the king in the 25th year of his reign. I do not +know that England has ever produced any patriots to whose memory she owes +more gratitude than Humphrey Bohun, earl of Hereford and Essex, and Roger +Bigod, earl of Norfolk. In the Great Charter the base spirit and deserted +condition of John take off something from the glory of the triumph, though +they enhance the moderation of those who pressed no further upon an abject +tyrant. But to withstand the measures of Edward, a prince unequalled by +any who had reigned in England since the Conqueror, for prudence, valour, +and success, required a far more intrepid patriotism. Their provocations, +if less outrageous than those received from John, were such as evidently +manifested a disposition in Edward to reign without any control; a +constant refusal to confirm the charters, which in that age were hardly +deemed to bind the king without his actual consent; heavy impositions, +especially one on the export of wool, and other unwarrantable demands. He +had acted with such unmeasured violence towards the clergy, on account of +their refusal of further subsidies, that, although the ill-judged policy +of that class kept their interests too distinct from those of the people, +it was natural for all to be alarmed at the precedent of +despotism.<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[a]</a> +These encroachments +<span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span> +made resistance justifiable, and the circumstances of +Edward made it prudent. His ambition, luckily for the people, had involved +him in foreign warfare, from which he could not recede without +disappointment and dishonour. Thus was wrested from him that famous +statute, inadequately denominated the Confirmation of the Charters, +because it added another pillar to our constitution, not less important +than the Great Charter +itself.<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[b]</a></p> + +<p>It was enacted by the 25 Edw. I. that the charter of liberties, and that +of the forest, besides being explicitly +confirmed,<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[c]</a> +should be sent to +all sheriffs, justices in eyre, and other magistrates throughout the +realm, in order to their publication before the people; that copies of +them should be kept in cathedral churches, and publicly read twice in the +year, accompanied by a solemn sentence of excommunication against all who +should infringe them; that any judgment given contrary to these charters +should be invalid, and holden for nought. This authentic promulgation, +those awful sanctions of the Great Charter, would alone render the statute +of which we are speaking illustrious. But it went a great deal further. +Hitherto the king's prerogative of levying money by name of tallage or +prise from his towns and tenants in demesne had passed unquestioned. Some +impositions, that especially on the export of wool, affected all his +subjects. It was now the moment to enfranchise the people, and give that +security to private property which Magna Charta had given to personal +liberty. By the 5th and 6th sections of this statute "the aids, tasks, and +prises," before taken are renounced as precedents; and the king "grants +for him and his heirs, as well to archbishops, bishops, abbots, priors, +and other folk of holy church, as also to earls, barons, and to all +commonalty of the land, that for no business from henceforth we shall take +such manner of aids, tasks, nor prises, but by the common assent of the +realm, +<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span> +and for the common profit thereof, saving the ancient aids and +prises due and accustomed." The toll upon wool, so far as levied by the +king's mere prerogative, is expressly released by the seventh +section.<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[d]</a></p> + +<div class="sidenote">Constitution of parliament.</div> + +<p>We come now to a part of our subject exceedingly important, but more +intricate and controverted than any other, the constitution of parliament. +I have taken no notice of this in the last section, in order to present +uninterruptedly to the reader the gradual progress of our legislature down +to its complete establishment under the Edwards. No excuse need be made +for the dry and critical disquisition of the following pages; but among +such obscure inquiries I cannot feel myself as secure from error as I +certainly do from partiality.</p> + +<div class="sidenote">The spiritual peers.</div> + +<p>One constituent branch of the great councils held by William the Conqueror +and all his successors was composed of the bishops and the heads of +religious houses holding their temporalities immediately of the crown. It +has been frequently maintained that these spiritual lords sat in +parliament only by virtue of their baronial tenure. And certainly they did +all hold baronies, which, according to the analogy of lay peerages, were +sufficient to give them such a share in the legislature. Nevertheless, I +think that this is rather too contracted a view of the rights of the +English hierarchy, +<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> +and, indeed, by implication, of the peerage. For a +great council of advice and assent in matters of legislation or national +importance was essential to all the northern governments. And all of them, +except, perhaps, the Lombards, invited the superior ecclesiastics to their +councils; not upon any feudal notions, which at that time had hardly begun +to prevail, but chiefly as representatives of the church and of religion +itself; next, as more learned and enlightened counsellors than the lay +nobility; and in some degree, no doubt, as rich proprietors of land. It +will be remembered also that ecclesiastical and temporal affairs were +originally decided in the same assemblies, both upon the continent and in +England. The Norman Conquest, which destroyed the Anglo-Saxon nobility, +and substituted a new race in their stead, could not affect the +immortality of church possessions. The bishops of William's age were +entitled to sit in his councils by the general custom of Europe, and by +the common law of England, which the Conquest did not +overturn.<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[e]</a> Some +smaller arguments might be urged against the supposition that their +legislative rights are merely baronial; such as that the guardian of the +spiritualities was commonly summoned to parliament during the vacancy of a +bishopric, and that the five sees created by Henry VIII. have no baronies +annexed to +them;<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[f]</a> +but the former reasoning appears less technical and +confined.<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[g]</a></p> + +<p>Next to these spiritual lords are the earls and barons, or lay peerage of +England. The former dignity was, perhaps, not so merely official as in the +Saxon times, although the earl was entitled to the third penny of all +emoluments arising from the administration of justice in the +county-courts, and might, perhaps, command the militia of his county, when +it was called +forth.<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[h]</a> Every +<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> earl was also a baron, and held an honour +or barony of the crown, for which he paid a higher relief than an ordinary +baron, probably on account of the profits of his earldom. I will not +pretend to say whether titular earldoms, absolutely distinct from the +lieutenancy of a county, were as ancient as the Conquest, which Madox +seems to think, or were considered as irregular so late as Henry II., +according to Lord Lyttelton. In Dugdale's Baronage I find none of this +description in the first Norman reigns; for even that of Clare was +connected with the local earldom of Hertford.</p> + +<div class="sidenote">Question as to the nature of baronies.</div> + +<p>It is universally agreed that the only baronies known for two centuries +after the Conquest were incident to the tenure of land held immediately +from the crown. There are, however, material difficulties in the way of +rightly understanding their nature which ought not to be passed over, +because the consideration of baronial tenures will best develop the +formation of our parliamentary system. Two of our most eminent legal +antiquaries, Selden and Madox, have entertained different opinions as to +the characteristics and attributes of this tenure.</p> + +<div class="sidenote">Theory of Selden;</div> + +<p>According to the first, every tenant in chief by knight-service was an +honorary or parliamentary baron by reason of his tenure. All these were +summoned to the king's councils, and were peers of his court. Their +baronies, or honours, as they were frequently called, consisted of a +number of knight's fees; that is, of estates, from each of which the +feudal service of a knight was due; not fixed to thirteen fees and a +third, as has been erroneously conceived, but varying according to the +extent of the barony and the reservation of service at the time of its +creation. Were they more or fewer, however, their owner was equally a +baron, and summoned to serve the king in parliament with his advice and +judgment, as appears by many records and passages in history.</p> + +<p>But about the latter end of John's reign, some only of the most eminent +tenants in chief were summoned by +<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> +particular writs; the rest by one +general summons through the sheriffs of their several counties. This is +declared in the Great Charter of that prince, wherein he promises that, +whenever an aid or scutage shall be required, faciemus summoneri +archiepiscopos, episcopos, abbates, comites et majores barones regni +sigillatim per literas nostras. Et præterea faciemus summoneri in generali +per vicecomites et ballivos nostros omnes alios qui in capite tenent de +nobis. Thus the barons are distinguished from other tenants in chief, as +if the former name were only applicable to a particular number of the +king's immediate vassals. But it is reasonable to think that, before this +charter was made, it had been settled by the law of some other parliament, +how these greater barons should be distinguished from the lesser tenants +in chief; else what certainty could there be in an expression so general +and indefinite? And this is likely to have proceeded from the pride with +which the ancient and wealthy barons of the realm would regard those newly +created by grants of escheated honours, or those decayed in estate, who +yet were by their tenures on an equality with themselves. They procured +therefore two innovations in their condition; first that these inferior +barons should be summoned generally by the sheriff, instead of receiving +their particular writs, which made an honorary distinction; and next, that +they should pay relief, not, as for an entire barony, one hundred marks; +but at the rate of five pounds for each knight's fee which they held of +the crown. This changed their tenure to one by mere knight-service, and +their denomination to tenants in chief. It was not difficult, afterwards, +for the greater barons to exclude any from coming to parliament as such +without particular writs directed to them, for which purpose some law was +probably enacted in the reign of Henry III. If indeed we could place +reliance on a nameless author whom Camden has quoted, this limitation of +the peerage to such as were expressly summoned depended upon a statute +made soon after the battle of Evesham. But no one has ever been able to +discover Camden's authority, and the change was, probably, of a much +earlier date.<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[i]</a> +</p> + +<div class="sidenote">of Madox,</div> + +<div class="sidenote">and observations on both.</div> + +<p><span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> +Such is the theory of Selden, which, if it rested less upon conjectural +alterations in the law, would undoubtedly solve some material difficulties +that occur in the opposite view of the subject. According to Madox, tenure +by knight-service in chief was always distinct from that by barony. It is +not easy, however, to point out the characteristic differences of the two; +nor has that eminent antiquary, in his large work, the Baronia Anglica, +laid down any definition, or attempted to explain the real nature of a +barony. The distinction could not consist in the number of knight's fees; +for the barony of Hwayton consisted of only three; while John de Baliol +held thirty fees by mere +knight-service.<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[k]</a> +Nor does it seem to have +consisted in the privilege or service of attending parliament, since all +tenants in chief were usually summoned. But whatever may have been the +line between these modes of tenure, there seems complete proof of their +separation long before the reign of John. Tenants in chief are enumerated +distinctly from earls and barons in the charter of Henry I. Knights, as +well as barons, are named as present in the parliament of Northampton in +1165, in that held at the same town in 1176, and upon other +occasions.<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[m]</a> +Several persons appear in the Liber Niger Scaccarii, a roll of military +tenants made in the age of Henry II., who held single knight's fees of the +crown. It is, however, highly probable, that, in a lax sense of the word, +these knights may sometimes have been termed barons. The author of the +Dialogus de Scaccario speaks of those holding greater or lesser baronies, +including, as appears by the context, all tenants in +chief.<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[n]</a> The former +of these seem to be the majores barones of King John's Charter. And the +secundæ dignitatis barones, said by a contemporary historian to have been +present in the parliament of Northampton, were in all probability no other +than the knightly tenants of the +crown.<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[o]</a> +For the word baro, originally meaning +<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> +only a man, was of very large significance, and is not +unfrequently applied to common freeholders, as in the phrase of +court-baron. It was used too for the magistrates or chief men of cities, +as it is still for the judges of the exchequer, and the representatives of +the Cinque +Ports.<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[p]</a></p> + +<p>The passage however before cited from the Great Charter of John affords +one spot of firm footing in the course of our progress. Then, at least, it +is evident that all tenants in chief were entitled to their summons; the +greater barons by particular writs, the rest through one directed to their +sheriff. The epoch when all, who, though tenants in chief, had not been +actually summoned, were deprived of their right of attendance in +parliament, is again involved in uncertainty and conjecture. The unknown +writer quoted by Camden seems not sufficient authority to establish his +assertion, that they were excluded by a statute made after the battle of +Evesham. The principle was most likely acknowledged at an earlier time. +Simon de Montfort summoned only twenty-three temporal peers to his famous +parliament. In the year 1255 the barons complained that many of their +number had not received their writs according to the tenor of the charter, +and refused to grant an aid to the king till they were +issued.<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[q]</a> But it +would have been easy to disappoint this mode of packing a parliament, if +an unsummoned baron could have sat by mere right of his tenure. The +opinion of Selden, that a law of exclusion was enacted towards the +beginning of Henry's reign is not liable to so much objection. But perhaps +it is unnecessary to frame an hypothesis of this nature. Writs of summons +seem to have been older than the time of +John;<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[r]</a> +and when this had +become the customary and regular preliminary of a baron's coming to +parliament, it was a natural transition to look upon it as an +indispensable condition; in times when the prerogative was high, the law +unsettled, and the service in parliament +<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> +deemed by many still more +burthensome than honourable. Some omissions in summoning the king's +tenants to former parliaments may perhaps have produced the +above-mentioned provision of the Great Charter, which had a relation to +the imposition of taxes wherein it was deemed essential to obtain a more +universal consent than was required in councils held for state, or even +for advice.<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[s]</a></p> + +<div class="sidenote">Whether mere tenants in chief attended parliament under Henry +III.</div> + +<p>It is not easy to determine how long the inferior tenants in chief +continued to sit personally in parliament. In the charters of Henry III., +the clause which we have been considering is omitted: and I think there is +no express proof remaining that the sheriff was ever directed to summon +the king's military tenants within his county, in the manner which the +charter of John required. It appears however that they were in fact +members of parliament on many occasions during Henry's reign, which shows +that they were summoned either by particular writs or through the sheriff; +and the latter is the more plausible conjecture. There is indeed great +obscurity as to the constitution of parliament in this reign; and the +passages which I am about to produce may lead some to conceive that the +freeholders were <i>represented</i> even from its beginning. I rather incline +to a different opinion.</p> + +<p>In the Magna Charta of 1 Henry III. it is said: Pro hâc donatione et +concessione ... archiepiscopi, episcopi, comites, barones, milites, et +liberè tenentes, et omnes de regno nostro, dederunt nobis quintam decimam +partem omnium bonorum suorum +mobilium.<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[t]</a> +So in a record of 19 Henry +III.: Comites, et barones, et omnes alii de toto regno nostro Angliæ, +spontaneâ voluntate suâ, concesserunt nobis efficax +auxilium.<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[u]</a> The +largeness of these words is, however, controlled by a subsequent passage, +which declares the tax to be imposed ad mandatum omnium comitum et baronum +et omnium aliorum <i>qui de nobis tenent in capite</i>. And it seems to have +been a general practice to assume the common consent of all ranks +<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> to that +which had actually been agreed by the higher. In a similar writ, 21 Henry +III., the rants of men are enumerated specifically; archiepiscopi, +episcopi, abbates, priores, et clerici terras habentes quæ ad ecclesias +suas non pertinent, comites, barones, milites, et liberi homines, pro se +et suis villanis, nobis concesserunt in auxilium tricesimam partem omnium +mobilium.<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[x]</a> +In the close roll of the same year, we have a writ directed +to the archbishops, bishops, abbots, priors, earls, barons, knights, and +freeholders (liberi homines) of Ireland, in which an aid is desired of +them, and it is urged that one had been granted by his fideles +Angliæ.<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[y]</a></p> + +<p>But this attendance in parliament of inferior tenants in chief, some of +them too poor to have received knighthood, grew insupportably vexatious to +themselves, and was not well liked by the king. He knew them to be +dependent upon the barons, and dreaded the confluence of a multitude, who +assumed the privilege of coming in arms to the appointed place. So +inconvenient and mischievous a scheme could not long subsist among an +advancing people, and fortunately the true remedy was discovered with +little difficulty.</p> + +<div class="sidenote">Origin and progress of parliamentary representation.</div> + +<p>The principle of representation, in its widest sense, can hardly be +unknown to any government not purely democratical. In almost every country +the sense of the whole is understood to be spoken by a part, and the +decisions of a part are binding upon the whole. Among our ancestors the +lord stood in the place of his vassals, and, still more unquestionably, +the abbot in that of his monks. The system indeed of ecclesiastical +councils, considered as organs of the church, rested upon the principle of +a virtual or an express representation, and had a tendency to render its +application to national assemblies more familiar.</p> + +<p>The first instance of actual representation which occurs in our history is +only four years after the Conquest; when William, if we may rely on +Hoveden, caused twelve persons skilled in the customs of England to be +chosen from each county, who were sworn to inform him rightly of their +laws; and these, so ascertained, were ratified +<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> +by the consent of the +great council. This, Sir Matthew Hale asserts to be "as sufficient and +effectual a parliament as ever was held in +England."<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[z]</a> +But there is no +appearance that these twelve deputies of each county were invested with +any higher authority than that of declaring their ancient usages. No +stress can be laid at least on this insulated and anomalous assembly, the +existence of which is only learned from an historian of a century +later.<a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[a]</a></p> + +<p>We find nothing that can arrest our attention, in searching out the origin +of county representation, till we come to a writ in the fifteenth year of +John, directed to all the sheriffs in the following terms: Rex Vicecomiti +N., salutem. Præcipimus tibi quod omnes milites ballivæ tuæ qui summoniti +fuerunt esse apud Oxoniam ad Nos a die Omnium Sanctorum in quindecim dies +venire facias cum armis suis: corpora vero baronum sine armis +singulariter, et <i>quatuor discretos milites</i> de comitatu tuo, illuc venire +facias ad eundem terminum, ad loquendum nobiscum de negotiis regni nostri. +For the explanation of this obscure writ I must refer to what Prynne has +said;<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[b]</a> +but it remains problematical whether these four knights +<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> (the +only clause which concerns our purpose) were to be elected by the county +or returned in the nature of a jury, at the discretion of the sheriff. +Since there is no sufficient proof whereon to decide, we can only say with +hesitation, that there <i>may</i> have been an instance of county +representation in the fifteenth year of John.</p> + +<p>We may next advert to a practice, of which there is very clear proof in +the reign of Henry III. Subsidies granted in parliament were assessed, not +as in former times by the justices upon their circuits, but by knights +freely chosen in the county court. This appears by two writs, one of the +fourth and one of the ninth year of Henry +III.<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[c]</a> +At a subsequent period, +by a provision of the Oxford parliament in 1258, every county elected four +knights to inquire into grievances, and deliver their inquisition into +parliament.<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[d]</a></p> + +<p>The next writ now extant, that wears the appearance of parliamentary +representation, is in the thirty-eighth of Henry III. This, after reciting +that the earls, barons, and other great men (cæteri magnates) were to meet +at London three weeks after Easter, with horses and arms, for the purpose +of sailing into Gascony, requires the +<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> +sheriff to compel all within his +jurisdiction, who hold twenty pounds a year of the king in chief, or of +those in ward of the king, to appear at the same time and place. And that +besides those mentioned he shall cause to come before the king's council +at Westminster, on the fifteenth day after Easter, two good and discreet +knights of his county, whom the men of the county shall have chosen for +this purpose, in the stead of all and each of them, to consider, along +with the knights of other counties, what aid they will grant the king in +such an emergency.<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[e]</a> +In the principle of election, and in the object of +the assembly, which was to grant money, this certainly resembles a summons +to parliament. There are indeed anomalies sufficiently remarkable upon the +face of the writ which distinguish this meeting from a regular parliament. +But when the scheme of obtaining money from the commons of shires through +the consent of their representatives had once been entertained, it was +easily applicable to more formal councils of the +nation.<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[f]</a></p> + +<p>A few years later there appears another writ analogous to a summons. +During the contest between Henry III. and the confederate barons in 1261, +they presumed to call a sort of parliament, summoning three knights out of +every county, secum tractaturos super communibus negotiis regni. This we +learn only by an opposite writ issued by the king, directing the sheriff +to enjoin these knights who had been convened by the earls of Leicester +and Gloucester to their meeting at St. Alban's, that they should repair +instead to the king at Windsor, and to no other place, nobiscum super +præmissis colloquium +habituros.<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[g]</a> +It is not absolutely certain that +these knights were elected by their respective counties. But even if they +were so, this assembly has much less the appearance of a parliament, than +that in the thirty-eighth of Henry III.</p> + +<p><span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> +At length, in the year 1265, the forty-ninth of Henry III., while he was a +captive in the hands of Simon de Montfort, writs were issued in his name +to all the sheriffs, directing them to return two knights for the body of +their county, with two citizens or burgesses for every city and borough +contained within it. This therefore is the epoch at which the +representation of the commons becomes indisputably manifest; even should +we reject altogether the more equivocal instances of it which have just +been enumerated.</p> + +<div class="sidenote">Whether the knights were elected by freeholders in general.</div> + +<p>If indeed the knights were still elected by none but the king's military +tenants, if the mode of representation was merely adopted to spare them +the inconvenience of personal attendance, the immediate innovation in our +polity was not very extensive. This is an interesting, but very obscure, +topic of inquiry. Spelman and Brady, with other writers, have restrained +the original right of election to tenants in chief, among whom, in process +of time, those holding under mesne lords, not being readily +distinguishable in the hurry of an election, contrived to slide in, till +at length their encroachments were rendered legitimate by the statute 7 +Hen. IV. c. 15, which put all suitors to the county court on an equal +footing as to the elective franchise. The argument on this side might be +plausibly urged with the following reasoning.</p> + +<p>The spirit of a feudal monarchy, which compelled every lord to act by the +advice and assent of his immediate vassals, established no relation +between him and those who held nothing at his hands. They were included, +so far as he was concerned, in their superiors; and the feudal incidents +were due to him from the whole of his vassal's fief, whatever tenants +might possess it by subinfeudation. In England the tenants in chief alone +were called to the great councils before representation was thought of, as +is evident both by the charter of John, and by the language of many +records; nor were any others concerned in levying aids or escuages, which +were only due by virtue of their tenure. These military tenants were +become, in the reign of Henry III., far more numerous than they had been +under the Conqueror. If we include those who held of the king ut de +honore, that is, the tenants of baronies escheated or in ward, who +<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> may +probably have enjoyed the same privileges, being subject in general to the +same burdens, their number will be greatly augmented, and form no +inconsiderable portion of the freeholders of the kingdom. After the +statute commonly called Quia emptores in the eighteenth of Edward I. they +were likely to increase much more, as every licensed alienation of any +portion of a fief by a tenant in chief would create a new freehold +immediately depending upon the crown. Many of these tenants in capite held +very small fractions of knight's fees, and were consequently not called +upon to receive knighthood. They were plain freeholders holding in chief, +and the liberi homines or libere tenentes of those writs which have been +already quoted. The common form indeed of writs to the sheriff directs the +knights to be chosen de communitate comitatûs. But the word communitas, as +in boroughs, denotes only the superior part: it is not unusual to find +mention in records of communitas populi or omnes de regno, where none are +intended but the barons, or at most the tenants in chief. If we look +attentively at the earliest instance of summoning knights of shires to +parliament, that in 38 Henry III., which has been noticed above, it will +appear that they could only have been chosen by military tenants in chief. +The object of calling this parliament, if parliament it were, was to +obtain an aid from the military tenants, who, holding less than a knight's +fee, were not required to do personal service. None then, surely, but the +tenants in chief could be electors upon this occasion, which merely +respected their feudal duties. Again, to come much lower down, we find a +series of petitions in the reigns of Edward III. and Richard II., which +seem to lead us to a conclusion that only tenants in chief were +represented by the knights of shires. The writ for wages directed the +sheriff to levy them on the commons of the county, both within franchises +and without (tam intra libertates quam extra). But the tenants of lords +holding by barony endeavoured to exempt themselves from this burthen, in +which they seem to have been countenanced by the king. This led to +frequent remonstrances from the commons, who finally procured a statute, +that all lands which had been accustomed to contribute towards the wages +of members should continue to do so, even +<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> +though they should be purchased +by a lord.<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[h]</a> +But, if these mesne tenants had possessed equal rights of +voting with tenants in chief, it is impossible to conceive that they would +have thought of claiming so unreasonable an exemption. Yet, as it would +appear harsh to make any distinction between the rights of those who +sustained an equal burthen, we may perceive how the freeholders holding of +mesne lords might on that account obtain after the statute a participation +in the privilege of tenants in chief. And without supposing any partiality +or connivance, it is easy to comprehend that, while the nature of tenures +and services was so obscure as to give rise to continual disputes, of +which the ancient records of the King's Bench are full, no sheriff could +be very accurate in rejecting the votes of common freeholders repairing to +the county court, and undistinguishable, as must be allowed, from tenants +in capite upon other occasions, such as serving on juries, or voting on +the election of coroners. To all this it yields some corroboration, that a +neighbouring though long hostile kingdom, who borrowed much of her law +from our own, has never admitted any freeholders, except tenants in chief +of the crown, to a suffrage in county elections. These attended the +parliament of Scotland in person till 1428, when a law of James I. +permitted them to send +representatives.<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[i]</a></p> + +<p>Such is, I think, a fair statement of the arguments that might be alleged +by those who would restrain the right of election to tenants of the crown. +It may be urged on the other side that the genius of the feudal system was +never completely displayed in England; much less can we make use of that +policy to explain institutions that prevailed under Edward I. Instead of +aids and scutages levied upon the king's military tenants, the crown found +ample resources in subsidies upon moveables, from which no class of men +was exempted. But the statute that abolished all unparliamentary taxation +led, at least in theoretical principle, to extend the elective franchise +to as large a mass of the people as could conveniently exercise it. It was +even in the mouth of our kings that what concerned all should be approved +by all. Nor is +<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> +the language of all extant writs less adverse to the +supposition that the right of suffrage in county elections was limited to +tenants in chief. It seems extraordinary that such a restriction, if it +existed, should never be deducible from these instruments; that their +terms should invariably be large enough to comprise all freeholders. Yet +no more is ever required of the sheriff than to return two knights chosen +by the body of the county. For they are not only said to be returned pro +communitate, but "per communitatem," and "de assensu totius communitatis." +Nor is it satisfactory to allege, without any proof, that this word should +be restricted to the tenants in chief, contrary to what must appear to be +its obvious +meaning.<a name="FNanchor_32_32" id="FNanchor_32_32"></a><a href="#Footnote_32_32" class="fnanchor">[k]</a> +Certainly, if these tenants of the crown had +found inferior freeholds usurping a right of suffrage, we might expect to +find it the subject of some legislative provision, or at least of some +petition and complaint. And, on the other hand, it would have been +considered as unreasonable to levy the wages due to knights of the shire +for their service in parliament on those who had no share in their +election. But it appears by writs at the very beginning of Edward II.'s +reign, that wages were levied "de communitate +comitatus."<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[m]</a> It will +scarcely be contended that no one was to contribute under this writ but +tenants in chief; and yet the word communitas can hardly be applied to +different persons, when it occurs in the same instrument and upon the same +matter. The series of petitions above mentioned relative to the payment of +wages rather tends to support a conclusion that all mesne tenants had the +right of suffrage, if they thought fit to exercise it, since it was +earnestly contended that they were liable to contribute towards +<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> that +expense. Nor does there appear any reason to doubt that all freeholders, +except those within particular franchises, were suitors to the county +court—an institution of no feudal nature, and in which elections were to +be made by those present. As to the meeting to which knights of shires +were summoned in 38 Henry III., it ought not to be reckoned a parliament, +but rather one of those anomalous conventions which sometimes occurred in +the unfixed state of government. It is at least the earliest known +instance of representation, and leads us to no conclusion in respect of +later times, when the commons had become an essential part of the +legislature, and their consent was required to all public burthens.</p> + +<p>This question, upon the whole, is certainly not free from considerable +difficulty. The legal antiquaries are divided. Prynne does not seem to +have doubted but that the knights were "elected in the full county, by and +for the whole county," without respect to the tenure of the +freeholders.<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[n]</a> +But Brady and Carte are of a different opinion.<a name="FNanchor_35_35" id="FNanchor_35_35"></a><a href="#Footnote_35_35" class="fnanchor">[o]</a> Yet +their disposition to narrow the basis of the constitution is so strong, +that it creates a sort of prejudice against their authority. And if I +might offer an opinion on so obscure a subject, I should be much inclined +to believe that, even from the reign of Henry III., the election of +knights by all freeholders in the county-court, without regard to tenure, +was little, if at all, different from what it is at +present.<a name="FNanchor_36_36" id="FNanchor_36_36"></a><a href="#Footnote_36_36" class="fnanchor">[p]</a></p> + +<div class="sidenote">Progress of towns.</div> + +<p>The progress of towns in several continental countries, from a condition +bordering upon servitude to wealth and liberty, has more than once +attracted our attention in other parts of the present work. Their growth +in England, both from general causes and imitative policy, was very +similar and nearly coincident. Under the Anglo-Saxon line of sovereigns we +scarcely can discover in our scanty records the condition of their +inhabitants, except retrospectively from the great survey of Domesday +Book, which displays the state of England under Edward the Confessor. Some +attention to commerce had been shown by Alfred and Athelstan; and a +merchant who had made three voyages beyond sea was +<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> +raised by law of the +latter monarch to the dignity of a +Thane.<a name="FNanchor_37_37" id="FNanchor_37_37"></a><a href="#Footnote_37_37" class="fnanchor">[q]</a> +This privilege was not +perhaps often claimed; but the burgesses of towns were already a distinct +class from the ceorls or rustics, and, though hardly free according to our +estimation, seem to have laid the foundation of more extensive immunities. +It is probable, at least, that the English towns had made full as great +advances towards emancipation as those of France. At the Conquest we find +the burgesses or inhabitants of towns living under the superiority or +protection of the king, or of some other lord, to whom they paid annual +rents, and determinate dues or customs. Sometimes they belonged to +different lords, and sometimes the same burgess paid customs to one +master, while he was under the jurisdiction of another. They frequently +enjoyed special privileges as to inheritance; and in two or three +instances they seem to have possessed common property, belonging to a sort +of guild or corporation, and in some instances, perhaps, had a municipal +administration by magistrates of their own +choice.<a name="FNanchor_38_38" id="FNanchor_38_38"></a><a href="#Footnote_38_38" class="fnanchor">[r]</a> +Besides the regular +<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> +payments, which were in general not heavy, they were liable to +tallages at the discretion of their lords. This burthen continued for two +centuries, with no limitation, except that the barons were latterly forced +to ask permission of the king before they set a tallage on their tenants, +which was commonly done when he imposed one upon his +own.<a name="FNanchor_39_39" id="FNanchor_39_39"></a><a href="#Footnote_39_39" class="fnanchor">[s]</a> Still the +towns became considerably richer; for the profits of their traffic were +undiminished by competition, and the consciousness that they could not be +individually despoiled of their possessions, like the villeins of the +country around, inspired an industry and perseverance which all the +rapacity of Norman kings and barons was unable to daunt or overcome.</p> + +<div class="sidenote">Towns let in fee-farm.</div> + +<p>One of the earliest and most important changes in the condition of the +burgesses was the conversion of their individual tributes into a perpetual +rent from the whole borough. The town was then said to be affirmed, or let +in fee-farm, to the burgesses and their successors for +ever.<a name="FNanchor_40_40" id="FNanchor_40_40"></a><a href="#Footnote_40_40" class="fnanchor">[t]</a> +Previously to such a grant the lord held the town in his demesne, and was +the legal proprietor of the soil and tenements; though I by no means +apprehend that the burgesses were destitute of a certain estate in their +possessions. But of a town in fee-farm he only kept the superiority and +the inheritance of the annual rent, which he might recover by +distress.<a name="FNanchor_41_41" id="FNanchor_41_41"></a><a href="#Footnote_41_41" class="fnanchor">[u]</a> +The burgesses held their lands by burgage-tenure, nearly +analogous to, or rather a species of, free +socage.<a name="FNanchor_42_42" id="FNanchor_42_42"></a><a href="#Footnote_42_42" class="fnanchor">[x]</a> +Perhaps before the +grant they might correspond to modern copyholders. It is of some +importance to observe that the lord, by such a grant of the town in +fee-farm, whatever we may think of its previous condition, divested +himself of his property, +<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> +or lucrative dominion over the soil, in return +for the perpetual rent; so that tallages subsequently set at his own +discretion upon the inhabitants, however common, can hardly be considered +as a just exercise of the rights of proprietorship.</p> + +<div class="sidenote">Charters of incorporation.</div> + +<p>Under such a system of arbitrary taxation, however, it was evident to the +most selfish tyrant that the wealth of his burgesses was his wealth, and +their prosperity his interest; much more were liberal and sagacious +monarchs, like Henry II., inclined to encourage them by privileges. From +the time of William Rufus there was no reign in which charters were not +granted to different towns of exemption from tolls on rivers and at +markets, those lighter manacles of feudal tyranny; or of commercial +franchises; or of immunity from the ordinary jurisdictions; or, lastly, of +internal self-regulation. Thus the original charter of Henry I. to the +city of London<a name="FNanchor_43_43" id="FNanchor_43_43"></a><a href="#Footnote_43_43" class="fnanchor">[y]</a> +concedes to the citizens, in addition to valuable +commercial and fiscal immunities, the right of choosing their own sheriff +and justice, to the exclusion of every foreign +jurisdiction.<a name="FNanchor_44_44" id="FNanchor_44_44"></a><a href="#Footnote_44_44" class="fnanchor">[z]</a> These +grants, however, were not in general so extensive till the reign of +John.<a name="FNanchor_45_45" id="FNanchor_45_45"></a><a href="#Footnote_45_45" class="fnanchor">[a]</a> +Before that time the interior arrangement of towns had received +a new organization. In the Saxon period we find voluntary associations, +sometimes religious, sometimes secular; in some cases for mutual defence +against injury, in others for mutual relief in +<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> +poverty. These were called +guilds, from the Saxon verb <i>gildan</i>, to pay or contribute, and exhibited +the natural, if not the legal, character of +corporations.<a name="FNanchor_46_46" id="FNanchor_46_46"></a><a href="#Footnote_46_46" class="fnanchor">[b]</a> At the time +of the Conquest, as has been mentioned above, such voluntary +incorporations of the burgesses possessed in some towns either landed +property of their own, or rights of superiority over that of others. An +internal elective government seems to have been required for the +administration of a common revenue, and of other business incident to +their association.<a name="FNanchor_47_47" id="FNanchor_47_47"></a><a href="#Footnote_47_47" class="fnanchor">[c]</a> +They became more numerous and more peculiarly +commercial after that era, as well from the increase of trade as through +imitation of similar fraternities existing in many towns of France. The +spirit of monopoly gave strength to those institutions, each class of +traders forming itself into a body, in order to exclude competition. Thus +were established the companies in corporate towns, that of the Weavers in +London being perhaps the +earliest;<a name="FNanchor_48_48" id="FNanchor_48_48"></a><a href="#Footnote_48_48" class="fnanchor">[d]</a> +and these were successively +<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span> +consolidated and sanctioned by charters from the crown. In towns not large +enough to admit of distinct companies, one merchant guild comprehended the +traders in general, or the chief of them; and this, from the reign of +Henry II. downwards, became the subject of incorporating charters. The +management of their internal concerns, previously to any incorporation, +fell naturally enough into a sort of oligarchy, which the tenor of the +charter generally preserved. Though the immunities might be very +extensive, the powers were more or less restrained to a small number. +Except in a few places, the right of choosing magistrates was first given +by king John; and certainly must rather be ascribed to his poverty than to +any enlarged policy, of which he was utterly +incapable.<a name="FNanchor_49_49" id="FNanchor_49_49"></a><a href="#Footnote_49_49" class="fnanchor">[e]</a></p> + +<div class="sidenote">Prosperity of English towns.</div> + +<div class="sidenote">London.</div> + +<p>From the middle of the twelfth century to that of the thirteenth the +traders of England became more and more prosperous. The towns on the +southern coast exported tin and other metals in exchange for the wines of +France; those on the eastern sent corn to Norway—the Cinque Ports +bartered wool against the stuffs of +Flanders.<a name="FNanchor_50_50" id="FNanchor_50_50"></a><a href="#Footnote_50_50" class="fnanchor">[f]</a> Though bearing no +comparison with the cities of Italy or the Empire, they increased +sufficiently to acquire importance at home. That vigorous prerogative of +the Norman monarchs, which kept down the feudal aristocracy, compensated +for whatever inferiority there might be in the population and defensible +strength of the English towns, compared with those on the continent. They +had to fear no petty oppressors, no local hostility; and if they could +satisfy the rapacity of the crown, were secure from all other grievances. +London, far above the rest, our ancient and noble capital, might, even in +those early times, be justly termed a member of the political system. This +great city, so admirably situated, was rich and populous long before the +Conquest. Bede, at the beginning of the eighth century, speaks of London +as a great market, which traders frequented by land and +sea.<a name="FNanchor_51_51" id="FNanchor_51_51"></a><a href="#Footnote_51_51" class="fnanchor">[g]</a> It paid +15,000<i>l.</i> out of 82,000<i>l.</i>, raised by Canute upon the +kingdom.<a name="FNanchor_52_52" id="FNanchor_52_52"></a><a href="#Footnote_52_52" class="fnanchor">[h]</a> If we +believe Roger Hoveden, the citizens +<span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> +of London, on the death of Ethelred +II., joined with part of the nobility in raising Edmund Ironside to the +throne.<a name="FNanchor_53_53" id="FNanchor_53_53"></a><a href="#Footnote_53_53" class="fnanchor">[i]</a> +Harold I., according to better authority, the Saxon Chronicle +and William of Malmsbury, was elected by their +concurrence.<a name="FNanchor_54_54" id="FNanchor_54_54"></a><a href="#Footnote_54_54" class="fnanchor">[k]</a> Descending +to later history, we find them active in the civil war of Stephen and +Matilda. The famous bishop of Winchester tells the Londoners that they are +almost accounted as noblemen on account of the greatness of their city; +into the community of which it appears that some barons had been +received.<a name="FNanchor_55_55" id="FNanchor_55_55"></a><a href="#Footnote_55_55" class="fnanchor">[m]</a> +Indeed, the citizens themselves, or at least the principal +of them, were called barons. It was certainly by far the greatest city in +England. There have been different estimates of its population, some of +which are extravagant; but I think it could hardly have contained less +than thirty or forty thousand souls within its walls; and the suburbs were +very populous.<a name="FNanchor_56_56" id="FNanchor_56_56"></a><a href="#Footnote_56_56" class="fnanchor">[n]</a> +These numbers, the +<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> +enjoyment of privileges, and the +consciousness of strength, infused a free and even a mutinous spirit into +their conduct.<a name="FNanchor_57_57" id="FNanchor_57_57"></a><a href="#Footnote_57_57" class="fnanchor">[o]</a> +The Londoners were always on the barons' side in their +contests with the crown. They bore a part in deposing William Longchamp, +the chancellor and justiciary of Richard +I.<a name="FNanchor_58_58" id="FNanchor_58_58"></a><a href="#Footnote_58_58" class="fnanchor">[p]</a> +They were distinguished in +the great struggle for Magna Charta; the privileges of their city are +expressly confirmed in it; and the mayor of London was one of the +twenty-five barons to whom the maintenance of its provisions was +delegated. In the subsequent reign the citizens of London were regarded +with much dislike and jealousy by the court, and sometimes suffered pretty +severely at its hands, especially after the battle of +Evesham.<a name="FNanchor_59_59" id="FNanchor_59_59"></a><a href="#Footnote_59_59" class="fnanchor">[q]</a></p> + +<p>Notwithstanding the influence of London in these seasons of disturbance, +we do not perceive that it was distinguished from the most insignificant +town by greater participation in national councils. Rich, powerful, +honourable, and high-spirited as its citizens had become, +<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> it was very +long before they found a regular place in parliament. The prerogative of +imposing tallages at pleasure, unsparingly exercised by Henry III. even +over London,<a name="FNanchor_60_60" id="FNanchor_60_60"></a><a href="#Footnote_60_60" class="fnanchor">[r]</a> +left the crown no inducement to summon the inhabitants of +cities and boroughs. As these indeed were daily growing more considerable, +they were certain, in a monarchy so limited as that of England became in +the thirteenth century, of attaining, sooner or later, this eminent +privilege. Although therefore the object of Simon de Montfort in calling +them to his parliament after the battle of Lewes was merely to strengthen +his own faction, which prevailed among the commonalty, yet, their +permanent admission into the legislature may be ascribed to a more general +cause. For otherwise it is not easy to see why the innovation of an +usurper should have been drawn into precedent, though it might perhaps +accelerate what the course of affairs was gradually preparing.</p> + +<div class="sidenote">First summoning of towns to parliament, in 49 H. III.</div> + +<p>It is well known that the earliest writs of summons to cities and +boroughs, of which we can prove the existence, are those of Simon de +Montfort, earl of Leicester, bearing date 12th of December, 1264, in the +forty-ninth year of Henry +III.<a name="FNanchor_61_61" id="FNanchor_61_61"></a><a href="#Footnote_61_61" class="fnanchor">[s]</a> +After a long controversy almost all +judicious inquirers seem to have acquiesced in admitting this origin of +popular representation.<a name="FNanchor_62_62" id="FNanchor_62_62"></a><a href="#Footnote_62_62" class="fnanchor">[t]</a> +The argument may be very +<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> +concisely stated. We +find from innumerable records that the king imposed tallages upon his +demesne towns at +discretion.<a name="FNanchor_63_63" id="FNanchor_63_63"></a><a href="#Footnote_63_63" class="fnanchor">[u]</a> +No public instrument previous to the +forty-ninth of Henry III. names the citizens and burgesses as constituent +parts of parliament; though prelates, barons, knights, and sometimes +freeholders, are +enumerated;<a name="FNanchor_64_64" id="FNanchor_64_64"></a><a href="#Footnote_64_64" class="fnanchor">[x]</a> +while, since the undoubted admission of +the commons, they are almost invariably mentioned. No historian speaks of +representatives appearing for the people, or uses the word citizen or +burgess in describing those present in parliament. Such convincing, though +negative, evidence is not to be invalidated by some general and ambiguous +phrases, whether in writs and records or in +historians.<a name="FNanchor_65_65" id="FNanchor_65_65"></a><a href="#Footnote_65_65" class="fnanchor">[y]</a> Those monkish +annalists are poor authorities upon any point where their language is to +be delicately measured. But it is hardly possible that, writing +circumstantially, as Roger de Hoveden and Matthew Paris sometimes did, +concerning proceedings in parliament, they could have failed to mention +the commons in unequivocal expressions, if any representatives from that +order had actually formed a part of the assembly.</p> + +<div class="sidenote">Authorities in favour of an earlier date. St. Albans.</div> + +<p>Two authorities, however, which had been supposed to prove a greater +antiquity than we have assigned to the representation of the commons, are +deserving of particular consideration; the cases of St. Albans and +Barnstaple. The burgesses of St. Albans complained to the council in the +eighth year of Edward II., that, although they held of the king in capite, +and ought to attend his parliaments whenever they are summoned, by two of +their number, instead of all other services, as had been their custom in +all past times, which services the said burgesses and +<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> their predecessors +had performed as well in the time of the late king Edward and his +ancestors as in that of the present king until the parliament now sitting, +the names of their deputies having been constantly enrolled in chancery, +yet the sheriff of Hertfordshire, at the instigation of the abbot of St. +Albans, had neglected to cause an election and return to be made; and +prayed remedy. To this petition it was answered, "Let the rolls of +chancery be examined, that it may appear whether the said burgesses were +accustomed to come to parliament, or not, in the time of the king's +ancestors; and let right be done to them, vocatis evocandis, si necesse +fuerit." I do not translate these words, concerning the sense of which +there has been some dispute, though not, apparently, very material to the principal +subject.<a name="FNanchor_66_66" id="FNanchor_66_66"></a><a href="#Footnote_66_66" class="fnanchor">[z]</a></p> + +<p>This is, in my opinion, by far the most plausible testimony for the early +representation of boroughs. The burgesses of St. Albans claim a +prescriptive right from the usage of all past times, and more especially +those of the late Edward and his ancestors. Could this be alleged, it has +been said, of a privilege at the utmost of fifty years' standing, once +granted by an usurper, in the days of the late king's father, and +afterwards discontinued till about twenty years before the date of their +petition, according to those who refer the regular appearance of the +commons in parliament to the twenty-third of Edward I.? Brady, who +obviously felt the strength of this authority, has shown little of his +usual ardour and acuteness in repelling it. It was observed, however, by +Madox, that the petition of St. Albans contains two very singular +allegations: it asserts that the town was part of the king's demesne, +whereas it had invariably belonged to the adjoining abbey; and that its +burgesses held by the tenure of attending parliament, instead of all other +services, contrary to all analogy, and without parallel in the condition +of any tenant in capite throughout the kingdom. "It is no wonder, +therefore," says Hume, "that a petition which advances two falsehoods +should contain one historical mistake, which indeed amounts only to an +inaccurate expression." But it must be confessed that we cannot so easily +set aside the +<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> +whole authority of this record. For whatever assurance the +people of St. Albans might show in asserting what was untrue, the king's +council must have been aware how recently the deputies of any towns had +been admitted into parliament. If the lawful birth of the House of Commons +were in 1295, as is maintained by Brady and his disciples, is it +conceivable that, in 1315, the council would have received a petition, +claiming the elective franchise by prescription, and have referred to the +rolls of chancery to inquire whether this had been used in the days of the +king's progenitors? I confess that I see no answer which can easily be +given to this objection by such as adopt the <i>latest</i> epoch of borough +representation, namely, the parliament of 23 E. I. But they are by no +means equally conclusive against the supposition that the communities of +cities and towns, having been first introduced into the legislature during +Leicester's usurpation, in the forty-ninth year of Henry III., were +summoned, not perhaps uniformly, but without any long intermission, to +succeeding parliaments. There is a strong presumption, from the language +of a contemporary historian, that they sat in the parliament of 1269, four +years after that convened by +Leicester.<a name="FNanchor_67_67" id="FNanchor_67_67"></a><a href="#Footnote_67_67" class="fnanchor">[a]</a> +It is more unequivocally +stated by another annalist that they were present in the first parliament +of Edward I. held in +1271.<a name="FNanchor_68_68" id="FNanchor_68_68"></a><a href="#Footnote_68_68" class="fnanchor">[b]</a> +Nor does a similar inference want some +degree of support from the preambles of the statute of Marlebridge in 51 +H. III., of Westminster I. in the third, and of Gloucester in the sixth, +year of Edward I.<a name="FNanchor_69_69" id="FNanchor_69_69"></a><a href="#Footnote_69_69" class="fnanchor">[c]</a> +And the writs are extant +<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> +which summon every city, +borough, and market town to send two deputies to a council in the eleventh +year of his reign. I call this a council, for it undoubtedly was not a +parliament. The sheriffs were directed to summon personally all who held +more than twenty pounds a year of the crown, as well as four knights for +each county invested with full powers to act for the commons thereof. The +knights and burgesses thus chosen, as well as the clergy within the +province of Canterbury, met at Northampton; those within the province of +York, at that city. And neither assembly was opened by the +king.<a name="FNanchor_70_70" id="FNanchor_70_70"></a><a href="#Footnote_70_70" class="fnanchor">[d]</a> This +anomalous convention was nevertheless one means of establishing the +representative system, and, to an inquirer free from technical prejudice, +is little less important than a regular parliament. Nor have we long to +look even for this. In the same year, about eight months after the +councils at Northampton and York, writs were issued summoning to a +parliament at Shrewsbury two citizens from London, and as many from each +of twenty other considerable +towns.<a name="FNanchor_71_71" id="FNanchor_71_71"></a><a href="#Footnote_71_71" class="fnanchor">[e]</a> +It is a slight cavil +<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> to object +that these were not directed as usual to the sheriff of each county, but +to the magistrates of each place. Though a very imperfect, this was a +regular and unequivocal representation of the commons in parliament. But +their attendance seems to have intermitted from this time to the +twenty-third year of Edward's +reign.<a name="FNanchor_72_72" id="FNanchor_72_72"></a><a href="#Footnote_72_72" class="fnanchor">[f]</a></p> + +<div class="sidenote">Barnstaple.</div> + +<p>Those to whom the petition of St. Albans is not satisfactory will hardly +yield their conviction to that of Barnstaple. This town set forth in the +eighteenth of Edward III. that, among other franchises granted to them by +a charter of Athelstan, they had ever since exercised the right of sending +two burgesses to parliament. The said charter, indeed, was unfortunately +mislaid; and the prayer of their petition was to obtain one of the like +import in its stead. Barnstaple, it must be observed, was a town belonging +to Lord Audley, and had actually returned members ever since the +twenty-third of Edward I. Upon an inquisition directed by the king to be +made into the truth of these allegations, it was found that "the burgesses +of the said town were wont to send two burgesses to parliament for the +commonalty of the borough;" but nothing appeared as to the pretended +charter of Athelstan, or the liberties which it was alleged to contain. +The burgesses, dissatisfied with this inquest, prevailed that another +should be taken, which certainly answered better their wishes. The second +jury found that Barnstaple was a free borough from time immemorial; that +the burgesses had enjoyed under a charter of Athelstan, which had been +casually lost, certain franchises by them enumerated, and particularly +that they should send two burgesses to parliament; and that it would not +be to the king's prejudice +<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> +if he should grant them a fresh charter in +terms equally ample with that of his predecessor Athelstan. But the +following year we have another writ and another inquest; the former +reciting that the second return had been unduly and fraudulently made; and +the latter expressly contradicting the previous inquest in many points, +and especially finding no proof of Athelstan's supposed charter. Comparing +the various parts of this business, we shall probably be induced to agree +with Willis, that it was but an attempt of the inhabitants of Barnstaple +to withdraw themselves from the jurisdiction of their lord. For the right +of returning burgesses, though it is the main point of our inquiries, was +by no means the most prominent part of their petition, which rather went +to establish some civil privileges of devising their tenements and +electing their own mayor. The first and fairest return finds only that +they were accustomed to send members to parliament, which an usage of +fifty years (from 23 E. I. to 18 E. III.) was fully sufficient to +establish, without searching into more remote +antiquity.<a name="FNanchor_73_73" id="FNanchor_73_73"></a><a href="#Footnote_73_73" class="fnanchor">[g]</a></p> + +<p>It has, however, probably occurred to the reader of these two cases, St. +Albans and Barnstaple, that the representation of the commons in +parliament was not treated as a novelty, even in times little posterior to +those in which we have been supposing it to have originated. In this +consists, I think, the sole strength of the opposite argument. An act in +the fifth year of Richard II. declares that, if any sheriff shall leave +out of his returns any cities or boroughs which be bound and of old times +were wont to come to the parliament, he shall be punished as was +accustomed to be done in the like case in time +past.<a name="FNanchor_74_74" id="FNanchor_74_74"></a><a href="#Footnote_74_74" class="fnanchor">[h]</a> In the memorable +assertion of legislative right by the commons in the second of Henry V. +(which will be quoted hereafter) they affirm that "the commune of the land +is, <i>and ever has been</i>, a member of +parliament."<a name="FNanchor_75_75" id="FNanchor_75_75"></a><a href="#Footnote_75_75" class="fnanchor">[i]</a> And the consenting +suffrage of our older law-books must be placed in the same scale. The +first gainsayers, I think, were Camden and Sir Henry Spelman, who, upon +probing the antiquities of +<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> +our constitution somewhat more exactly than +their predecessors, declared that they could find no signs of the commons +in parliament till the forty-ninth of Henry III. Prynne, some years +afterwards, with much vigour and learning, maintained the same argument, +and Brady completed the victory. But the current doctrine of Westminster +Hall, and still more of the two chambers of parliament, was certainly much +against these antiquaries; and it passed at one time for a surrender of +popular principles, and almost a breach of privilege, to dispute the +lineal descent of the House of Commons from the +witenagemot.<a name="FNanchor_76_76" id="FNanchor_76_76"></a><a href="#Footnote_76_76" class="fnanchor">[k]</a></p> + +<p>The true ground of these pretensions to antiquity was a very well-founded +persuasion that no other argument would be so conclusive to ordinary +minds, or cut short so effectually all encroachments of the prerogative. +The populace of every country, but none so much as the English, easily +grasp the notion of right, meaning thereby something positive and +definite; while the maxims of expediency or theoretical reasoning pass +slightly over their minds. Happy indeed for England that it is so! But we +have here to do with the fact alone. And it may be observed that several +pious frauds were practised to exalt the antiquity of our constitutional +liberties. These began, perhaps, very early, when the imaginary laws of +Edward the Confessor were so earnestly demanded. They were carried further +under Edward I. and his successor, when the fable of privileges +<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> granted +by the Conqueror to the men of Kent was devised; when Andrew Horn filled +his Mirrour of Justices with fictitious tales of Alfred; and, above all, +when the "Method of holding parliaments in the time of Ethelred" was +fabricated, about the end of Richard II.'s reign; an imposture which was +not too gross to deceive Sir Edward +Coke.<a name="FNanchor_77_77" id="FNanchor_77_77"></a><a href="#Footnote_77_77" class="fnanchor">[m]</a></p> + +<div class="sidenote">Causes of summoning deputies from boroughs.</div> + +<p>There is no great difficulty in answering the question why the deputies of +boroughs were finally and permanently ingrafted upon parliament by Edward +I.<a name="FNanchor_78_78" id="FNanchor_78_78"></a><a href="#Footnote_78_78" class="fnanchor">[n]</a> +The government was becoming constantly more attentive to the wealth +that commerce brought into the kingdom, and the towns were becoming more +flourishing and more independent. But chiefly there was a much stronger +spirit of general liberty and a greater discontent at violent acts of +prerogative from the era of Magna Charta; after which authentic +recognition of free principles many acts which had seemed before but the +regular exercise of authority were looked upon as infringements of the +subject's right. Among these the custom of setting tallages at discretion +would naturally appear the most intolerable; and men were unwilling to +remember that the burgesses who paid them were indebted for the rest of +their possessions to the bounty of the crown. In Edward I.'s reign, even +before the great act of Confirmation of the Charters had rendered +arbitrary impositions absolutely unconstitutional, they might perhaps +excite louder murmurs than a discreet administration would risk. Though +the necessities of the king, therefore, and his imperious temper often led +him to this course,<a name="FNanchor_79_79" id="FNanchor_79_79"></a><a href="#Footnote_79_79" class="fnanchor">[o]</a> +it was a +<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> +more prudent counsel to try the +willingness of his people before he forced their reluctance. And the +success of his innovation rendered it worth repetition. Whether it were +from the complacency of the commons at being thus admitted among the peers +of the realm, or from a persuasion that the king would take their money if +they refused it, or from inability to withstand the plausible reasons of +his ministers, or from the private influence to which the leaders of every +popular assembly have been accessible, much more was granted in subsidies +after the representation of the towns commenced than had ever been +extorted in tallages.</p> + +<p>To grant money was, therefore, the main object of their meeting; and if +the exigencies of the administration could have been relieved without +subsidies, the citizens and burgesses might still have sat at home and +obeyed the laws which a council of prelates and barons enacted for their +government. But it is a difficult question whether the king and the peers +designed to make room for them, as it were, in legislation; and whether +the power of the purse drew after it immediately, of only by degrees, +those indispensable rights of consenting to laws which they now possess. +There are no sufficient means of solving this doubt during the reign of +Edward I. The writ in 22 E. I. directs two knights to be chosen cum plenâ +potestate pro se et totâ communitate comitatûs prædicti ad consulendum et +consentiendum pro se et communitate illâ, his quæ comites, barones, et +proceres prædicti concorditer ordinaverint in præmissis. That of the next +year runs, ad faciendum tunc quod de communi consilio ordinabitur in +præmissis. The same words are inserted in the writ of 26 E. I. In that of +28 E. I. the knights are directed to be sent cum plenâ potestate audiendi +et faciendi quæ ibidem ordinari contigerint pro communi commodo. Several +others of the same reign have the words ad faciendum. The difficulty is to +pronounce whether this term is to be interpreted in the sense of +<i>performing</i> or of <i>enacting</i>; whether the representatives of the commons +were merely to learn from the lords what was to be done, or to bear their +part in advising upon it. The earliest writ, that of 22 E. I., certainly +implies the latter; and I do not know that any of the rest are conclusive +to the contrary. +<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> +In the reign of Edward II. the words ad consentiendum +alone, or ad faciendum et consentiendum, begin; and from that of Edward +III. this form has been constantly +used.<a name="FNanchor_80_80" id="FNanchor_80_80"></a><a href="#Footnote_80_80" class="fnanchor">[p]</a> +It must still, however, be +highly questionable whether the commons, who had so recently taken their +place in parliament, gave anything more than a constructive assent to the +laws enacted during this reign. They are not even named in the preamble of +any statute till the last year of Edward I. Upon more than one occasion +the sheriffs were directed to return the same members who had sat in the +last parliament, unless prevented by death or +infirmity.<a name="FNanchor_81_81" id="FNanchor_81_81"></a><a href="#Footnote_81_81" class="fnanchor">[q]</a></p> + +<div class="sidenote">At what time parliament was divided into two houses.</div> + +<p>It has been a very prevailing opinion that parliament was not divided into +two houses at the first admission of the commons. If by this is only meant +that the commons did not occupy a separate chamber till some time in the +reign of Edward III., the proposition, true or false, will be of little +importance. They may have sat at the bottom of Westminster Hall, while the +lords occupied the upper end. But that they were ever intermingled in +voting appears inconsistent with likelihood and authority. The usual +object of calling a parliament was to impose taxes; and these for many +years after the introduction of the commons were laid in different +proportions upon the three estates of the realm. Thus in the 23 E. I. the +earls, barons, and knights gave the king an eleventh, the clergy a tenth; +while he obtained a seventh from the citizens and burgesses; in the +twenty-fourth of the same king the two former of these orders gave a +twelfth, the last an eighth; in the thirty-third year a thirtieth was the +grant of the barons and knights and of the clergy, a twentieth of the +cities and towns; in the first of Edward II. the counties paid a +twentieth, the towns a fifteenth; in the sixth of Edward III. the rates +were a fifteenth and a +tenth.<a name="FNanchor_82_82" id="FNanchor_82_82"></a><a href="#Footnote_82_82" class="fnanchor">[r]</a> +These distinct grants imply distinct +grantors; for it is not to be imagined that the commons intermeddled in +<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> +those affecting the lords, or the lords in those of the commons. In fact, +however, there is abundant proof of their separate existence long before +the seventeenth of Edward III., which is the epoch assigned by +Carte,<a name="FNanchor_83_83" id="FNanchor_83_83"></a><a href="#Footnote_83_83" class="fnanchor">[s]</a> +or even the sixth of that king, which has been chosen by some other +writers. Thus the commons sat at Acton Burnell in the eleventh of Edward +I., while the upper house was at Shrewsbury. In the eighth of Edward II. +"the commons of England complain to the king and his council, +&c."<a name="FNanchor_84_84" id="FNanchor_84_84"></a><a href="#Footnote_84_84" class="fnanchor">[t]</a> +These must surely have been the commons assembled in parliament, for who +else could thus have entitled themselves? In the nineteenth of the same +king we find several petitions, evidently proceeding from the body of the +commons in parliament, and complaining of public +grievances.<a name="FNanchor_85_85" id="FNanchor_85_85"></a><a href="#Footnote_85_85" class="fnanchor">[u]</a> The roll +of 1 E. III., though mutilated, is conclusive to show that separate +petitions were then presented by the commons, according to the regular +usage of subsequent +times.<a name="FNanchor_86_86" id="FNanchor_86_86"></a><a href="#Footnote_86_86" class="fnanchor">[x]</a> +And indeed the preamble of 1 E. III., stat. +2, is apparently capable of no other inference.</p> + +<p>As the knights of shires correspond to the lower nobility of other feudal +countries, we have less cause to be surprised that they belonged +originally to the same branch of parliament as the barons, than at their +subsequent intermixture with men so inferior in station as the citizens +and burgesses. It is by no means easy to define the point of time when +this distribution was settled; but I think it may be inferred from the +rolls of parliament that the houses were divided as they are at present in +the eighth, ninth, and nineteenth years of Edward +II.<a name="FNanchor_87_87" id="FNanchor_87_87"></a><a href="#Footnote_87_87" class="fnanchor">[y]</a> This appears, +however, beyond doubt in the first of Edward +III.<a name="FNanchor_88_88" id="FNanchor_88_88"></a><a href="#Footnote_88_88" class="fnanchor">[z]</a> +Yet in the sixth of +the same prince, though the knights and burgesses are expressly mentioned +to have consulted together, the former taxed themselves in a smaller rate +of subsidy than the +latter.<a name="FNanchor_89_89" id="FNanchor_89_89"></a><a href="#Footnote_89_89" class="fnanchor">[a]</a></p> + +<p>The proper business of the House of Commons was to petition for redress of +grievances, as much as to provide for the necessities of the crown. In the +prudent fiction of English law no wrong is supposed to proceed from +<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> the +source of right. The throne is fixed upon a pinnacle, which perpetual +beams of truth and justice irradiate, though corruption and partiality may +occupy the middle region and cast their chill shade upon all below. In his +high court of parliament a king of England was to learn where injustice +had been unpunished and where right had been delayed. The common courts of +law, if they were sufficiently honest, were not sufficiently strong, to +redress the subject's injuries where the officers of the crown or the +nobles interfered. To parliament he looked as the great remedial court for +relief of private as well as public grievances. For this cause it was +ordained in the fifth of Edward II. that the king should hold a parliament +once, or if necessary, twice every year; "that the pleas which have been +thus delayed, and those where the justices have differed, may be brought +to a close."<a name="FNanchor_90_90" id="FNanchor_90_90"></a><a href="#Footnote_90_90" class="fnanchor">[b]</a> +And a short act of 4 Edward III., which was not very +strictly regarded, provides that a parliament shall be held "every year, +or oftener, if need +be."<a name="FNanchor_91_91" id="FNanchor_91_91"></a><a href="#Footnote_91_91" class="fnanchor">[c]</a> +By what persons, and under what limitations, +this jurisdiction in parliament was exercised will come under our future +consideration.</p> + +<div class="sidenote">Edward II. Petitions of parliament during his reign.</div> + +<p>The efficacy of a king's personal character in so imperfect a state of +government was never more strongly +<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> +exemplified than in the two first +Edwards. The father, a little before his death, had humbled his boldest +opponents among the nobility; and as for the commons, so far from claiming +a right of remonstrating, we have seen cause to doubt whether they were +accounted effectual members of the legislature for any purposes but +taxation. But in the very second year of the son's reign they granted the +twenty-fifth penny of their goods, "upon this condition, that the king +should take advice and grant redress upon certain articles wherein they +are aggrieved." These were answered at the ensuing parliament, and are +entered with the king's respective promises of redress upon the roll. It +will be worth while to extract part of this record, that we may see what +were the complaints of the commons of England, and their notions of right, +in 1309. I have chosen on this as on other occasions to translate very +literally, at the expense of some stiffness, and perhaps obscurity, in +language.</p> + +<p>"The good people of the kingdom who are come hither to parliament pray our +lord the king that he will, if it please him, have regard to his poor +subjects, who are much aggrieved by reason that they are not governed as +they should be, especially as to the articles of the Great Charter; and +for this, if it please him, they pray remedy. Besides which, they pray +their lord the king to hear what has long aggrieved his people, and still +does so from day to day, on the part of those who call themselves his +officers, and to amend it, if he pleases." The articles, eleven in number, +are to the following purport:—1. That the king's purveyors seize great +quantities of victuals without payment; 2. That new customs are set on +wine, cloth, and other imports; 3. That the current coin is not so good as +formerly;<a name="FNanchor_92_92" id="FNanchor_92_92"></a><a href="#Footnote_92_92" class="fnanchor">[d]</a> +4, 5. That the steward and marshal enlarge their +jurisdiction beyond measure, to the oppression of the people; 6. That the +commons find none to receive petitions addressed to the council; 7. That +the collectors of the king's dues (pernours des prises) in towns and at +fairs take more than is +<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> +lawful; 8. That men are delayed in their civil +suits by writs of protection; 9. That felons escape punishment by +procuring charters of pardon; 10. That the constables of the king's +castles take cognizance of common pleas; 11. That the king's escheators +oust men of lands held by good title, under pretence of an inquest of +office.<a name="FNanchor_93_93" id="FNanchor_93_93"></a><a href="#Footnote_93_93" class="fnanchor">[e]</a></p> + +<p>These articles display in a short compass the nature of those grievances +which existed under almost all the princes of the Plantagenet dynasty, and +are spread over the rolls of parliament for more than a century after this +time. Edward gave the amplest assurances of putting an end to them all, +except in one instance, the augmented customs on imports, to which he +answered, rather evasively, that he would take them off till he should +perceive whether himself and his people derived advantage from so doing, +and act thereupon as he should be advised. Accordingly, the next year, he +issued writs to collect these new customs again. But the Lords Ordainers +superseded the writs, having entirely abrogated all illegal +impositions.<a name="FNanchor_94_94" id="FNanchor_94_94"></a><a href="#Footnote_94_94" class="fnanchor">[f]</a> +It does not appear, however, that, regard had to the +times, there was anything very tyrannical in Edward's government. He set +tallages sometimes, like his father, on his demesne towns, without assent +of parliament.<a name="FNanchor_95_95" id="FNanchor_95_95"></a><a href="#Footnote_95_95" class="fnanchor">[g]</a> +In the nineteenth year of his reign the commons show +that, "whereas we and our ancestors have given many tallages to the king's +ancestors to obtain the charter of the forest, which charter we have had +confirmed by the present king, paying him largely on our part; yet the +king's officers of the forest seize on lands, and destroy ditches, and +oppress the people, for which they pray remedy, for the sake of God and +his father's soul." They complain at the same time of arbitrary +imprisonment, against the law of the +land.<a name="FNanchor_96_96" id="FNanchor_96_96"></a><a href="#Footnote_96_96" class="fnanchor">[h]</a> +To both these petitions the +king returned a promise of redress; and they complete the catalogue of +customary grievances in this period of our constitution.</p> + +<p>During the reign of Edward II. the rolls of parliament are imperfect, and +we have not much assistance from other sources. The assent of the commons, +which frequently is not specified in the statutes of this +age,<a name="FNanchor_97_97" id="FNanchor_97_97"></a><a href="#Footnote_97_97" class="fnanchor">[i]</a> +<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> +appears in a remarkable and revolutionary proceeding, the appointment of +the Lords Ordainers in +1312.<a name="FNanchor_98_98" id="FNanchor_98_98"></a><a href="#Footnote_98_98" class="fnanchor">[k]</a> +In this case it indicates that the +aristocratic party then combined against the crown were desirous of +conciliating popularity. An historian relates that some of the commons +were consulted upon the ordinances to be made for the reformation of +government.<a name="FNanchor_99_99" id="FNanchor_99_99"></a><a href="#Footnote_99_99" class="fnanchor">[m]</a></p> + +<div class="sidenote">Edward III. The commons establish several rights.</div> + +<p>During the long and prosperous reign of Edward III. the efforts of +parliament in behalf of their country were rewarded with success in +establishing upon a firm footing three essential principles of our +government—the illegality of raising money without consent; the necessity +that the two houses should concur for any alterations in the law; and, +lastly, the right of the commons to inquire into public abuses, and to +impeach public counsellors. By exhibiting proofs of each of these from +parliamentary records I shall be able to substantiate the progressive +improvement of our free constitution, which was principally consolidated +during the reigns of Edward III. and his two next successors. Brady, +indeed, Carte, and the authors of the Parliamentary History, have trod +already over this ground; but none of the three can be considered as +familiar to the generality of readers, and I may at least take credit for +a sincerer love of liberty than any of their writings display.</p> + +<div class="sidenote">Remonstrances against levying money without consent.</div> + +<p>In the sixth year of Edward III. a parliament was called to provide for +the emergency of an Irish rebellion, wherein, "because the king could not +send troops and money to Ireland without the aid of his people, the +prelates, earls, barons, and other great men, and the knights of shires, +<span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span> +and all the commons, of their free will, for the said purpose, and also in +order that the king might live of his own, and not vex his people by +excessive prises, nor in other manner, grant to him the fifteenth penny, +to levy of the +commons,<a name="FNanchor_100_100" id="FNanchor_100_100"></a><a href="#Footnote_100_100" class="fnanchor">[n]</a> +and the tenth from the cities, towns, and +royal demesnes. And the king, at the request of the same, in ease of his +people, grants that the commissions lately made to certain persons +assigned to set tallages on cities, towns, and demesnes throughout England +shall be immediately repealed; and that in time to come he will not set +such tallage, except as it has been done in the time of his ancestors, and +as he may reasonably do."<a name="FNanchor_101_101" id="FNanchor_101_101"></a><a href="#Footnote_101_101" class="fnanchor">[o]</a></p> + +<p>These concluding words are of dangerous implication; and certainly it was +not the intention of Edward, inferior to none of his predecessors in the +love of power, to divest himself of that eminent prerogative, which, +however illegally since the Confirmatio Chartarum, had been exercised by +them all. But the parliament took no notice of this reservation, and +continued with unshaken perseverance to insist on this incontestable and +fundamental right, which he was prone enough to violate.</p> + +<p>In the thirteenth year of this reign the lords gave their answer to +commissioners sent to open the parliament, and to treat with them on the +king's part, in a sealed roll. This contained a grant of the tenth sheaf, +<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> +fleece, and lamb. But before they gave it they took care to have letters +patent showed them, by which the commissioners had power "to grant some +graces to the great and small of the kingdom." "And the said lords," the +roll proceeds to say, "will that the imposition (maletoste) which now +again has been levied upon wool be entirely abolished, that the old +customary duty be kept, and that they may have it by charter, and by +enrolment in parliament, that such custom be never more levied, and that +this grant now made to the king, or any other made in time past, shall not +turn hereafter to their charge, nor be drawn into precedent." The commons, +who gave their answer in a separate roll, declared that they could grant +no subsidy without consulting their constituents; and therefore begged +that another parliament might be summoned, and in the mean time they would +endeavour, by using persuasion with the people of their respective +counties, to procure the grant of a reasonable aid in the next +parliament.<a name="FNanchor_102_102" id="FNanchor_102_102"></a><a href="#Footnote_102_102" class="fnanchor">[p]</a> +They demanded also that the imposition on wool and lead +should be taken as it used to be in former times, "inasmuch as it is +enhanced without assent of the commons, or of the lords, as we understand; +and if it be otherwise demanded, that any one of the commons may refuse it +(le puisse arester), without being troubled on that account (saunz estre +chalangé.)"<a name="FNanchor_103_103" id="FNanchor_103_103"></a><a href="#Footnote_103_103" class="fnanchor">[q]</a></p> + +<p>Wool, however, the staple export of that age, was too easy and tempting a +prey to be relinquished by a prince engaged in an impoverishing war. Seven +years afterwards, in 20 E. III., we find the commons praying that the +great subsidy of forty shillings upon the sack of wool be taken off; and +the old custom paid as heretofore was assented to and granted. The +government spoke this time in a more authoritative tone. "As to this +point," the answer runs, "the prelates and others, seeing in what need the +king stood of an aid before his passage beyond sea, to recover his rights +and defend his kingdom of England, consented, with the concurrence of the +merchants, that he should have in aid of his said war, and in defence of +his said kingdom, forty shillings of subsidy for each sack of wool that +should be exported beyond sea for two years to come. And upon this grant +<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> +divers merchants have made many advances to our lord the king in aid of +his war; for which cause this subsidy cannot be repealed without assent of +the king and his lords."<a name="FNanchor_104_104" id="FNanchor_104_104"></a><a href="#Footnote_104_104" class="fnanchor">[r]</a></p> + +<p>It is probable that Edward's counsellors wished to establish a +distinction, long afterwards revived by those of James I., between customs +levied on merchandise at the ports and internal taxes. The statute +entitled Confirmatio Chartarum had manifestly taken away the prerogative +of imposing the latter, which, indeed, had never extended beyond the +tenants of the royal demesne. But its language was not quite so explicit +as to the former, although no reasonable doubt could be entertained that +the intention of the legislature was to abrogate every species of +imposition unauthorized by parliament. The thirtieth section of Magna +Charta had provided that foreign merchants should be free from all +tributes, except the ancient customs; and it was strange to suppose that +natives were excluded from the benefit of that enactment. Yet, owing to +the ambiguous and elliptical style so frequent in our older laws, this was +open to dispute, and could, perhaps, only be explained by usage. Edward +I., in despite of both these statutes, had set a duty of threepence in the +pound upon goods imported by merchant strangers. This imposition was +noticed as a grievance in the third year of his successor, and repealed by +the Lords Ordainers. It was revived, however, by Edward III., and +continued to be levied ever +afterwards.<a name="FNanchor_105_105" id="FNanchor_105_105"></a><a href="#Footnote_105_105" class="fnanchor">[s]</a></p> + +<p>Edward was led by the necessities of his unjust and expensive war into +another arbitrary encroachment, of which we find as many complaints as of +his pecuniary extortions. The commons pray, in the same parliament of 20 +E. III., that commissions should not issue for the future out of chancery +to charge the people with providing men-at-arms, hobelers (or light +cavalry), archers, victuals, or in any other manner, without consent +<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> +of parliament. It is replied to this petition, that "it is notorious how in +many parliaments the lords and commons had promised to aid the king in his +quarrel with their bodies and goods as far as was in their power; +wherefore the said lords, seeing the necessity in which the king stood of +having aid of men-at-arms, hobelers, and archers, before his passage to +recover his rights beyond sea, and to defend his realm of England, +ordained that such as had five pounds a year, or more, in land on this +side of Trent should furnish men-at-arms, hobelers, and archers, according +to the proportion of the land they held, to attend the king at his cost; +and some who would neither go themselves nor find others in their stead +were willing to give the king wherewithal he might provide himself with +some in their place. And thus the thing has been done, and no otherwise. +And the king wills that henceforth what has been thus done in this +necessity be not drawn into consequence or +example."<a name="FNanchor_106_106" id="FNanchor_106_106"></a><a href="#Footnote_106_106" class="fnanchor">[t]</a></p> + +<p>The commons were not abashed by these arbitrary pretensions; they knew +that by incessant remonstrances they should gain at least one essential +point, that of preventing the crown from claiming these usurpations as +uncontested prerogatives. The roll of parliament in the next two years, +the 21st and 22nd of Edw. III., is full of the same complaints on one +side, and the same allegations of necessity on the +other.<a name="FNanchor_107_107" id="FNanchor_107_107"></a><a href="#Footnote_107_107" class="fnanchor">[u]</a> In the +latter year the commons grant a subsidy, on condition that no illegal +levying of money should take place, with several other remedial +provisions; "and that these conditions should be entered on the roll of +parliament, as a matter of record, by which they may have remedy, if +anything should be attempted to the contrary in time to come." From this +year the complaints of extortion become rather less frequent; and soon +afterwards a statute was passed, "That no man shall be constrained to find +men-at-arms, hobelers, nor archers, other than those which hold by such +services, if it be not by common assent and grant made in +parliament."<a name="FNanchor_108_108" id="FNanchor_108_108"></a><a href="#Footnote_108_108" class="fnanchor">[x]</a> +Yet, even in the last year of Edward's reign, when the +boundaries of prerogative and the rights of parliament were better +ascertained, the king lays a sort of claim to impose charges upon his +subjects in cases +<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> +of great necessity, and for the defence of his +kingdom.<a name="FNanchor_109_109" id="FNanchor_109_109"></a><a href="#Footnote_109_109" class="fnanchor">[y]</a> +But this more humble language indicates a change in the +spirit of government, which, after long fretting impatiently at the curb, +began at length to acknowledge the controlling hand of law.</p> + +<p>These are the chief instances of a struggle between the crown and commons +as to arbitrary taxation; but there are two remarkable proceedings in the +45th and 46th of Edward, which, though they would not have been endured in +later times, are rather anomalies arising out of the unsettled state of +the constitution and the recency of parliamentary rights than mere +encroachments of the prerogative. In the former year parliament had +granted a subsidy of fifty thousand pounds, to be collected by an +assessment of twenty-two shillings and threepence upon every parish, on a +presumption that the parishes in England amounted to forty-five thousand, +whereas they were hardly a fifth of that number. This amazing mistake was +not discovered till the parliament had been dissolved. Upon its detection +the king summoned a great council, consisting of one knight, citizen, and +burgess, named by himself out of two that had been returned to the last +parliament.<a name="FNanchor_110_110" id="FNanchor_110_110"></a><a href="#Footnote_110_110" class="fnanchor">[z]</a> +To this assembly the chancellor set forth the deficiency +of the last subsidy, and proved by the certificates of all the bishops in +England how strangely the parliament had miscalculated the number of +parishes; whereupon they increased the parochial assessment, by their own +authority, to one hundred and sixteen +shillings.<a name="FNanchor_111_111" id="FNanchor_111_111"></a><a href="#Footnote_111_111" class="fnanchor">[a]</a> +It is obvious that +the main intention of parliament was carried into effect by this +irregularity, which seems to have been the subject of no complaint. In the +next parliament a still more objectionable measure was resorted to; after +the petitions of the commons had been answered, and the knights dismissed, +the citizens and burgesses were convened before the prince of Wales and +the lords in a room near the white chamber, and solicited to renew their +subsidy of forty shillings upon the tun of wine, and sixpence in the pound +upon other imports, for safe convoy of shipping, during one year more, to +which they assented, "and so +departed."<a name="FNanchor_112_112" id="FNanchor_112_112"></a><a href="#Footnote_112_112" class="fnanchor">[b]</a></p> + +<div class="sidenote">The concurrence of both houses in legislation necessary.</div> + +<p><span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> +The second constitutional principle established in the reign of Edward +III. was that the king and two houses of parliament, in conjunction, +possessed exclusively the right of legislation. Laws were now declared to +be made by the king at the request of the commons, and by the assent of +the lords and prelates. Such at least was the general form, though for +many subsequent ages there was no invariable regularity in this respect. +The commons, who till this reign were rarely mentioned, were now as rarely +omitted in the enacting clause. In fact, it is evident from the rolls of +parliament that statutes were almost always founded upon their +petition.<a name="FNanchor_113_113" id="FNanchor_113_113"></a><a href="#Footnote_113_113" class="fnanchor">[c]</a> +These petitions, with the respective answers made to them +in the king's name, were drawn up after the end of the session in the form +of laws, and entered upon the statute-roll. But here it must be remarked +that the petitions were often extremely qualified and altered by the +answer, insomuch that many statutes of this and some later reigns by no +means express the true sense of the commons. Sometimes they contented +themselves with showing their grievance, and praying remedy from the king +and his council. Of this one eminent instance is the great statute of +treasons. In the petition whereon this act is founded it is merely prayed +that, "whereas the king's justices in different counties adjudge persons +indicted before them to be traitors for sundry matters not known by the +commons to be treason, it would please the king by his council, and by the +great and wise men of the land, to declare what are treasons in this +present parliament." The answer to this petition contains the existing +statute, as a declaration on the king's +part.<a name="FNanchor_114_114" id="FNanchor_114_114"></a><a href="#Footnote_114_114" class="fnanchor">[d]</a> +But there +<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> is no +appearance that it received the direct assent of the lower house. In the +next reigns we shall find more remarkable instances of assuming a consent +which was never positively given.</p> + +<div class="sidenote">Statutes distinguished from ordinances.</div> + +<p>The statute of treasons, however, was supposed to be declaratory of the +ancient law: in permanent and material innovations a more direct +concurrence of all the estates was probably required. A new statute, to be +perpetually incorporated with the law of England, was regarded as no light +matter. It was a very common answer to a petition of the commons, in the +early part of this reign, that it could not be granted without making a +new law. After the parliament of 14 E. III. a certain number of prelates, +barons, and counsellors, with twelve knights and six burgesses, were +appointed to sit from day to day in order to turn such petitions and +answers as were fit to be perpetual into a statute; but for such as were +of a temporary nature the king issued his letters +patent.<a name="FNanchor_115_115" id="FNanchor_115_115"></a><a href="#Footnote_115_115" class="fnanchor">[e]</a> This +reluctance to innovate without necessity, and to swell the number of laws +which all were bound to know and obey with an accumulation of transitory +enactments, led apparently to the distinction between statutes and +ordinances. The latter are indeed defined by some lawyers to be +regulations proceeding from the king and lords without concurrence of the +commons. But if this be applicable to some ordinances, it is certain that +the word, even when opposed to statute, with which it is often synonymous, +sometimes denotes an act of the whole legislature. In the 37th of Edward +III., when divers sumptuary regulations against excess of apparel were +made in full parliament, "it was demanded of the lords and commons, +inasmuch as the matter of their petitions was novel and unheard of before, +whether they would have them granted by way of ordinance or of statute. +They answered that it would be best to have them by way of ordinance and +not of statute, in order that anything which should need amendment might +be amended at the next +parliament."<a name="FNanchor_116_116" id="FNanchor_116_116"></a><a href="#Footnote_116_116" class="fnanchor">[f]</a> +So much scruple did they +entertain about tampering with the statute law of the land.</p> + +<p><span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> +Ordinances which, if it were not for their partial or temporary +operation, could not well be distinguished from +laws,<a name="FNanchor_117_117" id="FNanchor_117_117"></a><a href="#Footnote_117_117" class="fnanchor">[g]</a> were often +established in great councils. These assemblies, which frequently occurred +in Edward's reign, were hardly distinguishable, except in name, from +parliaments; being constituted not only of those who were regularly +summoned to the house of lords, but of deputies from counties, cities, and +boroughs. Several places that never returned burgesses to parliament have +sent deputies to some of these +councils.<a name="FNanchor_118_118" id="FNanchor_118_118"></a><a href="#Footnote_118_118" class="fnanchor">[h]</a> +The most remarkable of these +was that held in the 27th of Edward III., consisting of one knight for +each county, and of two citizens or burgesses from every city or borough +wherein the ordinances of the staple were +established.<a name="FNanchor_119_119" id="FNanchor_119_119"></a><a href="#Footnote_119_119" class="fnanchor">[i]</a> +These were +previously agreed upon by the king and lords, and copies given, one to the +knights, another to the burgesses. The roll tells us that they gave their +opinion in writing to the council, after much deliberation, and that this +was read and discussed by the great men. These ordinances fix the staple +of wool in particular places within England, prohibit English merchants +from exporting that article under pain of death, inflict sundry other +penalties, create jurisdictions, and in short have the effect of a new and +important law. After they were passed the deputies of the commons granted +a subsidy for three years, complained of grievances, and received answers, +as if in a regular parliament. But they were aware that these proceedings +partook of some irregularity, and endeavoured, as was their constant +method, to keep up the legal forms of the constitution. In the last +petition of this council the commons pray, "because many articles touching +the state of the king and common profit of his kingdom have been agreed by +him, the prelates, lords, and commons of his land, at this council, that +the said articles may be recited at the next parliament, and entered upon +the roll; for this cause, that ordinances and +<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> +agreements made in council +are not of record, as if they had been made in a general parliament." This +accordingly was done at the ensuing parliament, when these ordinances were +expressly confirmed, and directed to be "holden for a statute to endure +always."<a name="FNanchor_120_120" id="FNanchor_120_120"></a><a href="#Footnote_120_120" class="fnanchor">[k]</a></p> + +<p>It must be confessed that the distinction between ordinances and statutes +is very obscure, and perhaps no precise and uniform principle can be laid +down about it. But it sufficiently appears that whatever provisions +altered the common law or any former statute, and were entered upon the +statute-roll, transmitted to the sheriffs, and promulgated to the people +as general obligatory enactments, were holden to require the positive +assent of both houses of parliament, duly and formally summoned.</p> + +<p>Before we leave this subject it will be proper to take notice of a +remarkable stretch of prerogative, which, if drawn into precedent, would +have effectually subverted this principle of parliamentary consent in +legislation. In the 15th of Edward III. petitions were presented of a +bolder and more innovating cast than was acceptable to the court:—That no +peer should be put to answer for any trespass except before his peers; +that commissioners should be assigned to examine the accounts of such as +had received public moneys; that the judges and ministers should be sworn +to observe the Great Charter and other laws; and that they should be +appointed in parliament. The last of these was probably the most +obnoxious; but the king, unwilling to defer a supply which was granted +merely upon condition that these petitions should prevail, suffered them +to pass into a statute with an alteration which did not take off much from +their efficacy—namely, that these officers should indeed be appointed by +the king with the advice of his council, but should surrender their +charges at the next parliament, and be there responsible to any who should +have cause of complaint against them. The chancellor, treasurer, and +judges entered their protestation that they had not assented to the said +statutes, nor could they observe them, in case they should prove contrary +to the laws and customs of the kingdom, which they were sworn to +maintain.<a name="FNanchor_121_121" id="FNanchor_121_121"></a><a href="#Footnote_121_121" class="fnanchor">[m]</a> +This is the first instance of a protest on the roll of +parliament against the +<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> +passing of an act. Nevertheless they were +compelled to swear on the cross of Canterbury to its +observance.<a name="FNanchor_122_122" id="FNanchor_122_122"></a><a href="#Footnote_122_122" class="fnanchor">[n]</a></p> + +<p>This excellent statute was attempted too early for complete success. +Edward's ministers plainly saw that it left them at the mercy of future +parliaments, who would readily learn the wholesome and constitutional +principle of sparing the sovereign while they punished his advisers. They +had recourse therefore to a violent measure, but which was likely in those +times to be endured. By a proclamation addressed to all the sheriffs the +king revokes and annuls the statute, as contrary to the laws and customs +of England and to his own just rights and prerogatives, which he had sworn +to preserve; declaring that he had never consented to its passing, but, +having previously protested that he would revoke it, lest the parliament +should have been separated in wrath, had dissembled, as was his duty, and +permitted the great seal to be affixed; and that it appeared to the earls, +barons, and other learned persons of his kingdom with whom he had +consulted, that, as the said statute had not proceeded from his own good +will, it was null, and could not have the name or force of +law.<a name="FNanchor_123_123" id="FNanchor_123_123"></a><a href="#Footnote_123_123" class="fnanchor">[o]</a> This +revocation of a statute, as the price of which a subsidy had been granted, +was a gross infringement of law, and undoubtedly passed for such at that +time; for the right was already clear, though the remedy was not always +attainable. Two years afterwards Edward met his parliament, when that +obnoxious statute was formally +repealed.<a name="FNanchor_124_124" id="FNanchor_124_124"></a><a href="#Footnote_124_124" class="fnanchor">[p]</a></p> + +<div class="sidenote">Advice of parliament required on matters of war and peace.</div> + +<p>Notwithstanding the king's unwillingness to permit this control of +parliament over his administration, he suffered, or rather solicited, +their interference in matters +<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> +which have since been reckoned the +exclusive province of the crown. This was an unfair trick of his policy. +He was desirous, in order to prevent any murmuring about subsidies, to +throw the war upon parliament as their own act, though none could have +been commenced more selfishly for his own benefit, or less for the +advantage of the people of England. It is called "the war which our lord +the king has undertaken against his adversary of France by common assent +of all the lords and commons of his realm in divers +parliaments."<a name="FNanchor_125_125" id="FNanchor_125_125"></a><a href="#Footnote_125_125" class="fnanchor">[q]</a> And +he several times referred it to them to advise upon the subject of peace. +But the commons showed their humility or discretion by treating this as an +invitation which it would show good manners to decline, though in the +eighteenth of the king's reign they had joined with the lords in imploring +the king to make an end of the war by a battle or by a suitable +peace.<a name="FNanchor_126_126" id="FNanchor_126_126"></a><a href="#Footnote_126_126" class="fnanchor">[r]</a> +"Most dreaded lord," they say upon one occasion, "as to your +war, and the equipment necessary for it, we are so ignorant and simple +that we know not how, nor have the power, to devise; wherefore we pray +your grace to excuse us in this matter, and that it please you, with +advice of the great and wise persons of your council, to ordain what seems +best to you for the honour and profit of yourself and your kingdom; and +whatever shall be thus ordained by assent and agreement for you and your +lords we readily assent to, and will hold it firmly +established."<a name="FNanchor_127_127" id="FNanchor_127_127"></a><a href="#Footnote_127_127" class="fnanchor">[s]</a> At +another time, after their petitions had been answered, "it was shewed to +the lords and commons by Bartholomew de Burghersh, the king's chamberlain, +how a treaty had been set on foot between the king and his adversary of +France; and how he had good hope of a final and agreeable issue with God's +help; to which he would not come without assent of the lords and commons. +Wherefore the said chamberlain inquired on the king's part of the said +lords and commons whether they would assent and agree to the peace, in +case it might be had by treaty between the parties. To which the said +commons with one voice replied, that whatever end it should please the +king and lords to make of the treaty would be agreeable to them. On which +answer +<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> +the chamberlain said to the commons, Then you will assent to a +perpetual treaty of peace if it can be had. And the said commons answered +at once and unanimously, Yes, +yes."<a name="FNanchor_128_128" id="FNanchor_128_128"></a><a href="#Footnote_128_128" class="fnanchor">[t]</a> +The lords were not so diffident. +Their great station as hereditary councillors gave them weight in all +deliberations of government; and they seem to have pretended to a negative +voice in the question of peace. At least they answer, upon the proposals +made by David king of Scots in 1368, which were submitted to them in +parliament, that, "saving to the said David and his heirs the articles +contained therein, they saw no way of making a treaty which would not +openly turn to the disherison of the king and his heirs, to which they +would on no account assent; and so departed for that +day."<a name="FNanchor_129_129" id="FNanchor_129_129"></a><a href="#Footnote_129_129" class="fnanchor">[u]</a> A few +years before they had made a similar answer to some other propositions +from Scotland.<a name="FNanchor_130_130" id="FNanchor_130_130"></a><a href="#Footnote_130_130" class="fnanchor">[x]</a> +It is not improbable that, in both these cases, they +acted with the concurrence and at the instigation of the king; but the +precedents, might have been remembered in other circumstances.</p> + +<div class="sidenote">Right of the commons to inquire into public abuses.</div> + +<p>A third important acquisition of the house of commons during this reign +was the establishment of their right to investigate and chastise the +abuses of administration. In the fourteenth of Edward III. a committee of +the lords' house had been appointed to examine the accounts of persons +responsible for the receipt of the last subsidy; but it does not appear +that the commons were concerned in +this.<a name="FNanchor_131_131" id="FNanchor_131_131"></a><a href="#Footnote_131_131" class="fnanchor">[y]</a> +The unfortunate statute of +the next year contained a similar provision, which was annulled with the +rest. Many years elapsed before the commons tried the force of their +vindictive arm. We must pass onward an entire generation of man, and look +at the parliament assembled in the fiftieth of Edward III. Nothing +memorable as to the interference of the commons in government occurs +before, unless it be their request, in the forty-fifth of the king, that +no clergyman should be made chancellor, treasurer, or other great officer; +to which the king answered that he would do what best pleased his +council.<a name="FNanchor_132_132" id="FNanchor_132_132"></a><a href="#Footnote_132_132" class="fnanchor">[z]</a></p> + +<div class="sidenote">Parliament of 50 E. III.</div> + +<p><span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> +It will be remembered by every one who has read our history that in the +latter years of Edward's life his fame was tarnished by the ascendancy of +the duke of Lancaster and Alice Perrers. The former, a man of more +ambition than his capacity seems to have warranted, even incurred the +suspicion of meditating to set aside the heir of the crown when the Black +Prince should have sunk into the grave. Whether he were wronged or not by +these conjectures, they certainly appear to have operated on those most +concerned to take alarm at them. A parliament met in April, 1376, wherein +the general unpopularity of the king's administration, or the influence of +the prince of Wales, led to very remarkable +consequences.<a name="FNanchor_133_133" id="FNanchor_133_133"></a><a href="#Footnote_133_133" class="fnanchor">[a]</a> After +granting a subsidy, the commons, "considering the evils of the country, +through so many wars and other causes, and that the officers now in the +king's service are insufficient without further assistance for so great a +charge, pray that the council be strengthened by the addition of ten or +twelve bishops, lords, and others, to be constantly at hand, so that no +business of weight should be despatched without the consent of all; nor +smaller matters without that of four or +six."<a name="FNanchor_134_134" id="FNanchor_134_134"></a><a href="#Footnote_134_134" class="fnanchor">[b]</a> +The king pretended to +come with alacrity into this measure, which was followed by a strict +restraint on them and all other officers from taking presents in the +course of their duty. After this, "the said commons appeared in +parliament, protesting that they had the same good will as ever to assist +the king with their lives and fortunes; but that it seemed to them, if +their said liege lord had always possessed about him faithful counsellors +and good officers, he would have been so rich that he would have had no +need of charging his commons with subsidy or tallage, considering the +great ransoms of the French and Scotch kings, and of so many other +prisoners; and that it appeared to be for the private advantage of some +near the king, and of +<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> +others by their collusion, that the king and +kingdom are so impoverished, and the commons so ruined. And they promised +the king that, if he would do speedy justice on such as should be found +guilty, and take from them what law and reason permit, with what had been +already granted in parliament, they will engage that he should be rich +enough to maintain his wars for a long time, without much charging his +people in any manner." They next proceeded to allege three particular +grievances; the removal of the staple from Calais, where it had been fixed +by parliament, through the procurement and advice of the said private +counsellors about the king; the participation of the same persons in +lending money to the king at exorbitant usury; and their purchasing at a +low rate, for their own benefit, old debts from the crown, the whole of +which they had afterwards induced the king to repay to themselves. For +these and for many more misdemeanours the commons accused and impeached +the lords Latimer and Nevil, with four merchants, Lyons, Ellis, Peachey, +and Bury.<a name="FNanchor_135_135" id="FNanchor_135_135"></a><a href="#Footnote_135_135" class="fnanchor">[c]</a> +Latimer had been chamberlain, and Nevil held another +office. The former was the friend and creature of the duke of Lancaster. +Nor was this parliament at all nice in touching a point where kings least +endure their interference. An ordinance was made, that, "whereas many +women prosecute the suits of others in courts of justice by way of +maintenance, and to get profit thereby, which is displeasing to the king, +he forbids any woman henceforward, and especially Alice Perrers, to do so, +on pain of the said Alice forfeiting all her goods, and suffering +banishment from the +kingdom."<a name="FNanchor_136_136" id="FNanchor_136_136"></a><a href="#Footnote_136_136" class="fnanchor">[d]</a></p> + +<p>The part which the prince of Wales, who had ever been distinguished for +his respectful demeanour towards Edward, bore in this unprecedented +opposition, is strong evidence of the jealousy with which he regarded the +duke of Lancaster; and it was led in the house of commons by Peter de la +Mare, a servant of the earl of March, who, by his marriage with Philippa, +heiress of Lionel duke of Clarence, stood next after the young prince +Richard in lineal succession to the crown. The proceedings of this session +were indeed highly popular. +<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> +But no house of commons would have gone such +lengths on the mere support of popular opinion, unless instigated and +encouraged by higher authority. Without this their petitions might perhaps +have obtained, for the sake of subsidy, an immediate consent; but those +who took the lead in preparing them must have remained unsheltered after a +dissolution, to abide the vengeance of the crown, with no assurance that +another parliament would espouse their cause as its own. Such, indeed, was +their fate in the present instance. Soon after the dissolution of +parliament, the prince of Wales, who, long sinking by fatal decay, had +rallied his expiring energies for this domestic combat, left his +inheritance to a child ten years old, Richard of Bordeaux. Immediately +after this event Lancaster recovered his influence; and the former +favourites returned to court. Peter de la Mare was confined at Nottingham, +where he remained two years. The citizens indeed attempted an +insurrection, and threatened to burn the Savoy, Lancaster's residence, if +de la Mare was not released; but the bishop of London succeeded in +appeasing them.<a name="FNanchor_137_137" id="FNanchor_137_137"></a><a href="#Footnote_137_137" class="fnanchor">[e]</a> +A parliament met next year which overthrew the work +of its predecessor, restored those who had been impeached, and repealed +the ordinance against Alice +Perrers.<a name="FNanchor_138_138" id="FNanchor_138_138"></a><a href="#Footnote_138_138" class="fnanchor">[f]</a> +So little security will popular +assemblies ever afford against arbitrary power, when deprived of regular +leaders and the consciousness of mutual fidelity.</p> + +<p>The policy adopted by the prince of Wales and earl of March, in employing +the house of commons as an engine of attack against an obnoxious ministry, +was perfectly novel, and indicates a sensible change in the character of +our constitution. In the reign of Edward II. parliament had little share +in resisting the government; much more was effected by the barons through +risings of their feudal tenantry. Fifty years of authority better +respected, of law better enforced, had rendered these more perilous, and +of a more violent appearance than formerly. A surer resource presented +itself in the increased weight of the lower house in parliament. And +<span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span> this +indirect aristocratical influence gave a surprising impulse to that +assembly, and particularly tended to establish beyond question its control +over public abuses. It is no less just to remark that it also tended to +preserve the relation and harmony between each part and the other, and to +prevent that jarring of emulation and jealousy which, though generally +found in the division of power between a noble and a popular estate, has +scarcely ever caused a dissension, except in cases of little moment, +between our two houses of parliament.</p> + +<div class="sidenote">Richard II. Great increase of the power of the commons.</div> + +<p>The commons had sustained with equal firmness and discretion a defensive +war against arbitrary power under Edward III.: they advanced with very +different steps towards his successor. Upon the king's death, though +Richard's coronation took place without delay, and no proper regency was +constituted, yet a council of twelve, whom the great officers of state +were to obey, supplied its place to every effectual intent. Among these +the duke of Lancaster was not numbered; and he retired from court in some +disgust. In the first parliament of the young king a large proportion of +the knights who had sat in that which impeached the Lancastrian party were +returned.<a name="FNanchor_139_139" id="FNanchor_139_139"></a><a href="#Footnote_139_139" class="fnanchor">[g]</a> +Peter de la Mare, now released from prison, was elected +speaker; a dignity which, according to some, he had filled in the Good +Parliament, as that of the fiftieth of Edward III. was popularly styled; +though the rolls do not mention either him or any other as bearing that +honourable name before Sir Thomas Hungerford in the parliament of the +following year.<a name="FNanchor_140_140" id="FNanchor_140_140"></a><a href="#Footnote_140_140" class="fnanchor">[h]</a> +The prosecution against Alice Perrers was now +revived; not, as far as appears, by direct impeachment of the commons; but +articles were exhibited against her in the house of lords on the king's +part, for breaking the ordinance made against her intermeddling at court: +upon which she received judgment of banishment and +forfeiture.<a name="FNanchor_141_141" id="FNanchor_141_141"></a><a href="#Footnote_141_141" class="fnanchor">[i]</a> At the +request of the lower house, the lords, in the king's name, appointed nine +persons of different ranks—three +<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> +bishops, two earls, two bannerets, and +two bachelors—to be a permanent council about the king, so that no +business of importance should be transacted without their unanimous +consent. The king was even compelled to consent that, during his minority, +the chancellor, treasurer, judges, and other chief officers, should be +made in parliament; by which provision, combined with that of the +parliamentary council, the whole executive government was transferred to +the two houses. A petition that none might be employed in the king's +service, nor belong to his council, who had been formerly accused upon +good grounds, struck at lord Latimer, who had retained some degree of +power in the new establishment. Another, suggesting that Gascony, Ireland, +Artois, and the Scottish marches were in danger of being lost for want of +good officers, though it was so generally worded as to leave the means of +remedy to the king's pleasure, yet shows a growing energy and +self-confidence in that assembly which not many years before had thought +the question of peace or war too high for their deliberation. Their +subsidy was sufficiently liberal; but they took care to pray the king that +fit persons might be assigned for its receipt and disbursement, lest it +should any way be diverted from the purposes of the war. Accordingly +Walworth and Philpot, two eminent citizens of London, were appointed to +this office, and sworn in parliament to its +execution.<a name="FNanchor_142_142" id="FNanchor_142_142"></a><a href="#Footnote_142_142" class="fnanchor">[k]</a></p> + +<p>But whether through the wastefulness of government, or rather because +Edward's legacy, the French war, like a ruinous and interminable lawsuit, +exhausted all public contributions, there was an equally craving demand +for subsidy at the next meeting of parliament. The commons now made a more +serious stand. The speaker, Sir James Pickering, after the protestation +against giving offence which has since become more matter of form than, +perhaps, it was then considered, reminded the lords of the council of a +promise made to the last parliament, that, if they would help the king for +once with a large subsidy, so as to enable him to undertake an expedition +against the enemy, he trusted not to call on them again, but to support +the war from his own revenues; in faith +<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> +of which promise there had been +granted the largest sum that any king of England had ever been suffered to +levy within so short a time, to the utmost loss and inconvenience of the +commons, part of which ought still to remain in the treasury, and render +it unnecessary to burthen anew the exhausted people. To this Scrope, lord +steward of the household, protesting that he knew not of any such promise, +made answer by order of the king, that, "saving the honour and reverence +of our lord the king, and the lords there present, the commons did not +speak truth in asserting that part of the last subsidy should be still in +the treasury; it being notorious that every penny had gone into the hands +of Walworth and Philpot, appointed and sworn treasurers in the last +parliament, to receive and expend it upon the purposes of the war, for +which they had in effect disbursed the whole." Not satisfied with this +general justification, the commons pressed for an account of the +expenditure. Scrope was again commissioned to answer, that, "though it had +never been seen that of a subsidy or other grant made to the king in +parliament or out of parliament by the commons any account had afterwards +been rendered to the commons, or to any other except the king and his +officers, yet the king, to gratify them, of his own accord, without doing +it by way of right, would have Walworth along with certain persons of the +council exhibit to them in writing a clear account of the receipt and +expenditure, upon condition that this should never be used as a precedent, +nor inferred to be done otherwise than by the king's spontaneous command." +The commons were again urged to provide for the public defence, being +their own concern as much as that of the king. But they merely shifted +their ground and had recourse to other pretences. They requested that five +or six peers might come to them, in order to discuss this question of +subsidy. The lords entirely rejected this proposal, and affirmed that such +a proceeding had never been known except in the three last parliaments; +but allowed that it had been the course to elect a committee of eight or +ten from each house, to confer easily and without noise together. The +commons acceded to this, and a committee of conference was appointed, +though no result of their discussion appears upon the roll.</p> + +<p><span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> +Upon examining the accounts submitted to them, these sturdy commoners +raised a new objection. It appeared that large sums had been expended upon +garrisons in France and Ireland and other places beyond the kingdom, of +which they protested themselves not liable to bear the charge. It was +answered that Gascony and the king's other dominions beyond sea were the +outworks of England, nor could the people ever be secure from war at their +thresholds, unless these were maintained. They lastly insisted that the +king ought to be rich through the wealth that had devolved on him from his +grandfather. But this was affirmed, in reply, to be merely sufficient for +the payment of Edward's creditors. Thus driven from all their arguments, +the commons finally consented to a moderate additional imposition upon the +export of wool and leather, which were already subject to considerable +duties, apologizing on account of their poverty for the slenderness of +their grant.<a name="FNanchor_143_143" id="FNanchor_143_143"></a><a href="#Footnote_143_143" class="fnanchor">[m]</a></p> + +<p>The necessities of government, however, let their cause be what it might, +were by no means feigned; and a new parliament was assembled about seven +months after the last, wherein the king, without waiting for a petition, +informed the commons that the treasurers were ready to exhibit their +accounts before them. This was a signal victory after the reluctant and +ungracious concession made to the last parliament. Nine persons of +different ranks were appointed at the request of the commons to +investigate the state of the revenue and the disposition which had been +made of the late king's personal estate. They ended by granting a +poll-tax, which they pretended to think adequate to the supply +required.<a name="FNanchor_144_144" id="FNanchor_144_144"></a><a href="#Footnote_144_144" class="fnanchor">[n]</a> +But in those times no one possessed any statistical +knowledge, and every calculation which required it was subject to enormous +error, of which we have already seen an eminent +example.<a name="FNanchor_145_145" id="FNanchor_145_145"></a><a href="#Footnote_145_145" class="fnanchor">[o]</a> In the next +parliament (3 Ric. II.) it was set forth that only 22,000<i>l.</i> had been +collected by the poll-tax, while the pay of the king's troops hired for +the expedition to Britany, the pretext of the grant, had amounted for but +half a year to 50,000<i>l.</i> The king, in short, was more straitened than +ever. His distresses gave no small advantage to the commons. Their speaker +was instructed +<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> +to declare that, as it appeared to them, if the affairs of +their liege lord had been properly conducted at home and abroad, he could +not have wanted aid of his commons, who now are poorer than before. They +pray that, as the king was so much advanced in age and discretion, his +perpetual council (appointed in his first parliament) might be discharged +of their labours, and that, instead of them, the five chief officers of +state, to wit, the chancellor, treasurer, keeper of the privy seal, +chamberlain, and steward of the household, might be named in parliament, +and declared to the commons, as the king's sole counsellors, not removable +before the next parliament. They required also a general commission to be +made out, similar to that in the last session, giving powers to a certain +number of peers and other distinguished persons to inquire into the state +of the household, as well as into all receipts and expenses since the +king's accession. The former petition seems to have been passed +over;<a name="FNanchor_146_146" id="FNanchor_146_146"></a><a href="#Footnote_146_146" class="fnanchor">[p]</a> +but a commission as requested was made out to three prelates, three earls, +three bannerets, three knights, and three +citizens.<a name="FNanchor_147_147" id="FNanchor_147_147"></a><a href="#Footnote_147_147" class="fnanchor">[q]</a> After guarding +thus, as they conceived, against malversation, but in effect rather +protecting their posterity than themselves, the commons prolonged the last +imposition on wool and leather for another year.</p> + +<p>It would be but repetition to make extracts from the rolls of the two next +years; we have still the same tale—demand of subsidy on one side, +remonstrance and endeavours at reformation on the other. After the +tremendous insurrection of the villeins in 1382 a parliament was convened +to advise about repealing the charters of general manumission, extorted +from the king by the pressure of circumstances. In this measure all +concurred; but the commons were not afraid to say that the late risings +had been provoked by the burthens which a prodigal court had called for in +the preceding session. Their language is unusually bold. "It seemed to +them, after full deliberation," they said, "that, unless the +administration of the kingdom were +<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> +speedily reformed, the kingdom itself +would be utterly lost and ruined for ever, and therein their lord the +king, with all the peers and commons, which God forbid. For true it is +that there are such defects in the said administration, as well about the +king's person and his household as in his courts of justice; and by +grievous oppressions in the country through maintainers of suits, who are, +as it were, kings in the country, that right and law are come to nothing, +and the poor commons are from time to time so pillaged and ruined; partly +by the king's purveyors of the household, and others who pay nothing for +what they take, partly by the subsidies and tallages raised upon them, and +besides by the oppressive behaviour of the servants of the king and other +lords, and especially of the aforesaid maintainers of suits, that they are +reduced to greater poverty and discomfort than ever they were before. And +moreover, though great sums have been continually granted by and levied +upon them, for the defence of the kingdom, yet they are not the better +defended against their enemies, but every year are plundered and wasted by +sea and land, without any relief. Which calamities the said poor commons, +who lately used to live in honour and prosperity, can no longer endure. +And to speak the real truth, these injuries lately done to the poorer +commons, more than they ever suffered before, caused them to rise and to +commit the mischief done in their late riot; and there is still cause to +fear greater evils, if sufficient remedy be not timely provided against +the outrages and oppressions aforesaid. Wherefore may it please our lord +the king, and the noble peers of the realm now assembled in this +parliament, to provide such remedy and amendment as to the said +administration, that the state and dignity of the king in the first place, +and of the lords, may be preserved, as the commons have always desired, +and the commons may be put in peace; removing, as soon as they can be +detected, evil ministers and counsellors, and putting in their stead the +best and most sufficient, and taking away all the bad practices which have +led to the last rising, or else none can imagine that this kingdom can +longer subsist without greater misfortunes than it ever endured. And for +God's sake let it not be forgotten that there be put +<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> about the king, and +of his council, the best lords and knights that can be found in the +kingdom.</p> + +<p>"And be it known (the entry proceeds) that, after the king our lord with +the peers of the realm and his council had taken advice upon these +requests made to him for his good and his kingdom's as it really appeared +to him, willed and granted that certain bishops, lords, and others should +be appointed to survey and examine in privy council both the government of +the king's person and of his household, and to suggest proper remedies +wherever necessary, and report them to the king. And it was said by the +peers in parliament, that, as it seemed to them, if reform of government +were to take place throughout the kingdom, it should begin by the chief +member, which is the king himself, and so from person to person, as well +churchmen as others, and place to place, from higher to lower, without +sparing any degree."<a name="FNanchor_148_148" id="FNanchor_148_148"></a><a href="#Footnote_148_148" class="fnanchor">[r]</a> +A considerable number of commissioners were +accordingly appointed, whether by the king alone, or in parliament, does +not appear; the latter, however, is more probable. They seem to have made +some progress in the work of reformation, for we find that the officers of +the household were sworn to observe their regulations. But in all +likelihood these were soon neglected.</p> + +<p>It is not wonderful that, with such feelings of resentment towards the +crown, the commons were backward in granting subsidies. Perhaps the king +would not have obtained one at all if he had not withheld his charter of +pardon for all offences committed during the insurrection. This was +absolutely necessary to restore quiet among the people; and though the +members of the commons had certainly not been insurgents, yet inevitable +irregularities had occurred in quelling the tumults, which would have put +them too much in the power of those unworthy men who filled the benches of +justice under Richard. The king declared that it was unusual to grant a +pardon without a subsidy; the commons still answered that they would +consider about that matter; and the king instantly rejoined that he would +consider about his pardon (s'aviseroit de sa dite +<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> grace) till they had +done what they ought. They renewed, at length the usual tax on wool and +leather.<a name="FNanchor_149_149" id="FNanchor_149_149"></a><a href="#Footnote_149_149" class="fnanchor">[s]</a></p> + +<p>This extraordinary assumption of power by the commons was not merely owing +to the king's poverty. It was encouraged by the natural feebleness of a +disunited government. The high rank and ambitious spirit of Lancaster gave +him no little influence, though contending with many enemies at court as +well as the ill-will of the people. Thomas of Woodstock, the king's +youngest uncle, more able and turbulent than Lancaster, became, as he grew +older, an eager competitor for power, which he sought through the channel +of popularity. The earls of March, Arundel, and Warwick bore a +considerable part, and were the favourites of parliament. Even Lancaster, +after a few years, seems to have fallen into popular courses, and +recovered some share of public esteem. He was at the head of the reforming +commission in the fifth of Richard II., though he had been studiously +excluded from those preceding. We cannot hope to disentangle the intrigues +of this remote age, as to which our records are of no service, and the +chroniclers are very slightly informed. So far as we may conjecture, +Lancaster, finding his station insecure at court, began to solicit the +favour of the commons, whose hatred of the administration abated their +former hostility towards him.<a name="FNanchor_150_150" id="FNanchor_150_150"></a><a href="#Footnote_150_150" class="fnanchor">[t]</a></p> + +<div class="sidenote">Character of Richard.</div> + +<p>The character of Richard II. was now developing itself, and the hopes +excited by his remarkable presence of mind in confronting the rioters on +Blackheath were rapidly destroyed. Not that he was wanting in capacity, as +has been sometimes imagined. For if we measure intellectual power by the +greatest exertion it ever displays, rather than by its average results, +Richard II. was a man of considerable talents. He possessed, along with +much dissimulation, a decisive promptitude in seizing the critical moment +for action. Of this quality, besides his celebrated behaviour towards the +insurgents, he gave striking evidence in several +<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> +circumstances which we +shall have shortly to notice. But his ordinary conduct belied the +abilities which on these rare occasions shone forth, and rendered them +ineffectual for his security. Extreme pride and violence, with an +inordinate partiality for the most worthless favourites, were his +predominant characteristics. In the latter quality, and in the events of +his reign, he forms a pretty exact parallel to Edward II. Scrope, lord +chancellor, who had been appointed in parliament, and was understood to be +irremovable without its concurrence, lost the great seal for refusing to +set it to some prodigal grants. Upon a slight quarrel with archbishop +Courtney the king ordered his temporalities to be seized, the execution of +which, Michael de la Pole, his new chancellor, and a favourite of his own, +could hardly prevent. This was accompanied with indecent and outrageous +expressions of anger, unworthy of his station and of those whom he +insulted.<a name="FNanchor_151_151" id="FNanchor_151_151"></a><a href="#Footnote_151_151" class="fnanchor">[u]</a></p> + +<div class="sidenote">He acquires more power on his majority.</div> + +<p>Though no king could be less respectable than Richard, yet the +constitution invested a sovereign with such ample prerogative, that it was +far less easy to resist his personal exercise of power than the unsettled +councils of a minority. In the parliament 6 R. II., sess. 2, the commons +pray certain lords, whom they name, to be assigned as their advisers. This +had been permitted in the two last sessions without +exception.<a name="FNanchor_152_152" id="FNanchor_152_152"></a><a href="#Footnote_152_152" class="fnanchor">[x]</a> But +the king, in granting their request, reserved his right of naming any +others.<a name="FNanchor_153_153" id="FNanchor_153_153"></a><a href="#Footnote_153_153" class="fnanchor">[y]</a> +Though the commons did not relax in their importunities for +the redress of general grievances, they did not venture to intermeddle as +before with the conduct of administration. They did not even object to the +grant of the marquisate of Dublin, with almost a princely dominion over +Ireland; which enormous donation was confirmed by act of parliament to +Vere, a favourite of the +king.<a name="FNanchor_154_154" id="FNanchor_154_154"></a><a href="#Footnote_154_154" class="fnanchor">[z]</a> +A petition that the officers of state +should annually visit and inquire into his household was answered that the +king would do what he +pleased.<a name="FNanchor_155_155" id="FNanchor_155_155"></a><a href="#Footnote_155_155" class="fnanchor">[a]</a> +Yet this was little in comparison of +their former proceedings.</p> + +<div class="sidenote">Proceedings of parliament in the tenth of Richard.</div> + +<p><span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> +There is nothing, however, more deceitful to a monarch, unsupported by an +armed force, and destitute of wary advisers, than this submission of his +people. A single effort was enough to overturn his government. Parliament +met in the tenth year of his reign, steadily determined to reform the +administration, and especially to punish its chief leader, Michael de la +Pole, earl of Suffolk and lord chancellor. According to the remarkable +narration of a contemporary +historian,<a name="FNanchor_156_156" id="FNanchor_156_156"></a><a href="#Footnote_156_156" class="fnanchor">[b]</a> +too circumstantial to be +rejected, but rendered somewhat doubtful by the silence of all other +writers and of the parliamentary roll, the king was loitering at his +palace at Eltham when he received a message from the two houses, +requesting the dismissal of Suffolk, since they had matter to allege +against him that they could not move while he kept the office of +chancellor. Richard, with his usual intemperance, answered that he would +not for their request remove the meanest scullion from his kitchen. They +returned a positive refusal to proceed on any public business until the +king should appear personally in parliament and displace the chancellor. +The king required forty knights to be deputed from the rest to inform him +clearly of their wishes. But the commons declined a proposal in which they +feared, or affected to fear, some treachery. At length the duke of +Gloucester and Arundel bishop of Ely were commissioned to speak the sense +of parliament; and they delivered it, if we may still believe what we +read, in very extraordinary language, asserting that there was an ancient +statute, according to which, if the king absented himself from parliament +without just cause during forty days, which he had now exceeded, every man +might return without permission to his own country; and, moreover, there +was another statute, and (as they might more truly say) a precedent of no +remote date, that if a king, by bad counsel, or his own folly and +obstinacy, alienated himself from his people, and would not govern +according to +<span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span> +the laws of the land and the advice of the peers, but madly +and wantonly followed his own single will, it should be lawful for them, +with the common assent of the people, to expel him from his throne, and +elevate to it some near kinsman of the royal blood. By this discourse the +king was induced to meet his parliament, where Suffolk was removed from +his office, and the impeachment against him +commenced.<a name="FNanchor_157_157" id="FNanchor_157_157"></a><a href="#Footnote_157_157" class="fnanchor">[c]</a></p> + +<div class="sidenote">Impeachment of Suffolk.</div> + +<p>The charges against this minister, without being wholly frivolous, were +not so weighty as the clamour of the commons might have led us to expect. +Besides forfeiting all his grants from the crown, he was committed to +prison, there to remain till he should have paid such fine as the king +might impose; a sentence that would have been outrageously severe in many +cases, though little more than nugatory in the +present.<a name="FNanchor_158_158" id="FNanchor_158_158"></a><a href="#Footnote_158_158" class="fnanchor">[d]</a></p> + +<div class="sidenote">Commission of reform.</div> + +<p>This was the second precedent of that grand constitutional resource, +parliamentary impeachment: and more remarkable from the eminence of the +person attacked than that of lord Latimer in the fiftieth year of Edward +III.<a name="FNanchor_159_159" id="FNanchor_159_159"></a><a href="#Footnote_159_159" class="fnanchor">[e]</a> +The commons were content to waive the prosecution of any other +ministers; but they rather chose a scheme of reforming the administration, +which should avert both the necessity of punishment and the malversations +that provoked it. +<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> +They petitioned the king to ordain in parliament +certain chief officers of his household and other lords of his council, +with power to reform those abuses, by which his crown was so much +blemished that the laws were not kept and his revenues were dilapidated, +confirming by a statute a commission for a year, and forbidding, under +heavy penalties, any one from opposing, in private or openly, what they +should advise.<a name="FNanchor_160_160" id="FNanchor_160_160"></a><a href="#Footnote_160_160" class="fnanchor">[f]</a> +With this the king complied, and a commission founded +upon the prayer of parliament was established by statute. It comprehended +fourteen persons of the highest eminence for rank and general estimation; +princes of the blood and ancient servants of the crown, by whom its +prerogatives were not likely to be unnecessarily impaired. In fact the +principle of this commission, without looking back at the precedents in +the reign of John, Henry III., and Edward II., which yet were not without +their weight as constitutional analogies, was merely that which the +commons had repeatedly maintained during the minority of the present king, +and which had produced the former commissions of reform in the third and +fifth years of his reign. These were upon the whole nearly the same in +their operation. It must be owned there was a more extensive sway +virtually given to the lords now appointed, by the penalties imposed on +any who should endeavour to obstruct what they might advise; the design as +well as tendency of which was no doubt to throw the whole administration +into their hands during the period of this commission.</p> + +<p>Those who have written our history with more or less of a Tory bias +exclaim against this parliamentary commission as an unwarrantable +violation of the king's sovereignty, and even impartial men are struck at +first sight by a measure that seems to overset the natural balance of our +constitution. But it would be unfair to blame either those concerned in +this commission, some of whose names at least have been handed down with +unquestioned respect, or those high-spirited representatives of the people +whose patriot firmness has been hitherto commanding all our sympathy and +gratitude, unless we could distinctly pronounce by what gentler +<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> means +they could restrain the excesses of government. Thirteen parliaments had +already met since the accession of Richard; in all the same remonstrances +had been repeated, and the same promises renewed. Subsidies, more frequent +than in any former reign, had been granted for the supposed exigencies of +the war; but this was no longer illuminated by those dazzling victories +which give to fortune the mien of wisdom; the coasts of England were +perpetually ravaged, and her trade destroyed; while the administration +incurred the suspicion of diverting to private uses that treasure which +they so feebly and unsuccessfully applied to the public service. No voice +of his people, until it spoke in thunder, would stop an intoxicated boy in +the wasteful career of dissipation. He loved festivals and pageants, the +prevailing folly of his time, with unusual frivolity; and his ordinary +living is represented as beyond comparison more showy and sumptuous than +even that of his magnificent and chivalrous predecessor. Acts of +parliament were no adequate barriers to his misgovernment. "Of what avail +are statutes," says Walsingham, "since the king with his privy council is +wont to abolish what parliament has just +enacted?"<a name="FNanchor_161_161" id="FNanchor_161_161"></a><a href="#Footnote_161_161" class="fnanchor">[g]</a> The constant +prayer of the commons in every session, that former statutes might be kept +in force, is no slight presumption that they were not secure of being +regarded. It may be true that Edward III.'s government had been full as +arbitrary, though not so unwise, as his grandson's; but this is the +strongest argument that nothing less than an extraordinary remedy could +preserve the still unstable liberties of England.</p> + +<p>The best plea that could be made for Richard was his inexperience, and the +misguided suggestions of favourites. This, however, made it more necessary +to remove those false advisers, and to supply that inexperience. +Unquestionably the choice of ministers is reposed in the sovereign; a +trust, like every other attribute of legitimate power, for the public +good; not, what no legitimate power can ever be, the instrument of +selfishness or caprice. There is something more sacred than the +prerogative, or even than the constitution; the public weal, for which all +powers are granted, and to which they must all be +<span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span> referred. For this +public weal it is confessed to be sometimes necessary to shake the +possessor of the throne out of his seat; could it never be permitted to +suspend, though but indirectly and for a time, the positive exercise of +misapplied prerogatives? He has learned in a very different school from +myself, who denies to parliament at the present day a preventive as well +as vindictive control over the administration of affairs; a right of +resisting, by those means which lie within its sphere, the appointment of +unfit ministers. These means are now indirect; they need not to be the +less effectual, and they are certainly more salutary on that account. But +we must not make our notions of the constitution in its perfect symmetry +of manhood the measure of its infantine proportions, nor expect from a +parliament just struggling into life, and "pawing to get free its hinder +parts," the regularity of definite and habitual power.</p> + +<p>It is assumed rather too lightly by some of those historians to whom I +have alluded that these commissioners, though but appointed for a +twelvemonth, designed to retain longer, or would not in fact have +surrendered, their authority. There is certainly a danger in these +delegations of pre-eminent trust; but I think it more formidable in a +republican form than under such a government as our own. The spirit of the +people, the letter of the law, were both so decidedly monarchical, that no +glaring attempt of the commissioners to keep the helm continually in their +hands, though it had been in the king's name, would have had a fair +probability of success. And an oligarchy of fourteen persons, different in +rank and profession, even if we should impute criminal designs to all of +them, was ill calculated for permanent union. Indeed the facility with +which Richard re-assumed his full powers two years afterwards, when +misconduct had rendered his circumstances far more unfavourable, gives the +corroboration of experience to this reasoning. By yielding to the will of +his parliament and to a temporary suspension of prerogative, this +unfortunate prince might probably have reigned long and peacefully; the +contrary course of acting led eventually to his deposition and miserable +death.</p> + +<div class="sidenote">Answers of the judges to Richard's questions.</div> + +<p>Before the dissolution of parliament Richard made a verbal protestation +that nothing done therein should be +<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> in prejudice of his rights; a +reservation not unusual when any remarkable concession was made, but which +could not decently be interpreted, whatever he might mean, as a dissent +from the statute, just passed. Some months had intervened when the king, +who had already released Suffolk from prison and restored him to his +favour, procured from the judges, whom he had summoned to Nottingham, a +most convenient set of answers to questions concerning the late +proceedings in parliament. Tresilian and Belknap, chief justices of the +King's Bench and Common Pleas, with several other judges, gave it under +their seals that the late statute and commission were derogatory to the +prerogative; that all who procured it to be passed, or persuaded or +compelled the king to consent to it, were guilty of treason; that the +king's business must be proceeded upon before any other in parliament; +that he may put an end to the session at his pleasure; that his ministers +cannot be impeached without his consent; that any members of parliament +contravening the three last articles incur the penalties of treason, and +especially he who moved for the sentence of deposition against Edward II. +to be read; and that the judgment against the earl of Suffolk might be +revoked as altogether erroneous.</p> + +<div class="sidenote">Subsequent revolution.</div> + +<p>These answers, perhaps extorted by menaces, as all the judges, except +Tresilian, protested before the next parliament, were for the most part +servile and unconstitutional. The indignation which they excited, and the +measures successfully taken to withstand the king's designs, belong to +general history; but I shall pass slightly over that season of turbulence, +which afforded no legitimate precedent, to our constitutional annals. Of +the five lords appellants, as they were called, Gloucester, Derby, +Nottingham, Warwick, and Arundel, the three former, at least, have little +claim to our esteem; but in every age it is the sophism of malignant and +peevish men to traduce the cause of freedom itself, on account of the +interested motives by which its ostensible advocates have frequently been +actuated. The parliament, who had the country thoroughly with them, acted +no doubt honestly, but with an inattention to the rules of law, culpable +indeed, yet from which the most +<span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span> civilized of their successors, in the +heat of passion and triumph, have scarcely been exempt. Whether all with +whom they dealt severely, some of them apparently of good previous +reputation, merited such punishment, is more than, upon uncertain +evidence, a modern writer can profess to +decide.<a name="FNanchor_162_162" id="FNanchor_162_162"></a><a href="#Footnote_162_162" class="fnanchor">[h]</a></p> + +<p>Notwithstanding the death or exile of all Richard's favourites, and the +oath taken not only by parliament, but by every class of the people, to +stand by the lords appellants, we find him, after about a year, suddenly +annihilating their pretensions, and snatching the reins again without +obstruction. The secret cause of this event is among the many obscurities +that attend the history of his reign. It was conducted with a spirit and +activity which broke out two or three times in the course of his imprudent +life; but we may conjecture that he had the advantage of disunion among +his enemies. For some years after this the king's administration was +prudent. The great seal, which he took away from archbishop Arundel, he +gave to Wykeham bishop of Winchester, another member of the reforming +commission, but a man of great moderation and political experience. Some +time after he restored the seal to Arundel, and reinstated the duke of +Gloucester in the council. The duke of Lancaster, who had been absent +during the transactions of the tenth and eleventh years of the king, in +prosecution of his Castilian war, formed a link between the parties, and +seems to have maintained some share of public favour.</p> + +<div class="sidenote">Greater harmony between the king and parliament.</div> + +<p>There was now a more apparent harmony between the court and the +parliament. It seems to have been tacitly agreed that they should not +interfere with the king's household expenses; and they gratified him in a +point where his honour had been most wounded, declaring his prerogative to +be as high and unimpaired as that of his predecessors, and repealing the +pretended statute by virtue of which Edward II. was said to have been +deposed.<a name="FNanchor_163_163" id="FNanchor_163_163"></a><a href="#Footnote_163_163" class="fnanchor">[i]</a>. +They were provident enough, however, to grant conditional +<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> +subsidies, to be levied only in case of a royal expedition against the +enemy; and several were accordingly remitted by proclamation, this +condition not being fulfilled. Richard never ventured to recall his +favourites, though he testified his unabated affection for Vere by a +pompous funeral. Few complaints, unequivocally affecting the ministry, +were presented by the commons. In one parliament the chancellor, +treasurer, and counsel resigned their offices, submitting themselves to +its judgment in case any matter of accusation should be alleged against +them. The commons, after a day's deliberation, probably to make their +approbation appear more solemn, declared in full parliament that nothing +amiss had been found in the conduct of these ministers, and that they held +them to have faithfully discharged their duties. The king reinstated them +accordingly, with a protestation that this should not be made a precedent, +and that it was his right to change his servants at +pleasure.<a name="FNanchor_164_164" id="FNanchor_164_164"></a><a href="#Footnote_164_164" class="fnanchor">[k]</a></p> + +<div class="sidenote">Disunion among some leading peers.</div> + +<p>But this summer season was not to last for ever. Richard had but +dissembled with those concerned in the transactions of 1388, none of whom +he could ever forgive. These lords in lapse of time were divided among +each other. The earls of Derby and Nottingham were brought into the king's +interest. The earl of Arundel came to an open breach with the duke of +Lancaster, whose pardon he was compelled to ask for an unfounded +accusation in parliament.<a name="FNanchor_165_165" id="FNanchor_165_165"></a><a href="#Footnote_165_165" class="fnanchor">[m]</a> +Gloucester's ungoverned ambition, elated by +popularity, could not brook the ascendency of his brother Lancaster, who +was much less odious to the king. He had constantly urged and defended the +concession of Guienne to this prince to be held for life, reserving only +his liege homage to Richard as king of +France;<a name="FNanchor_166_166" id="FNanchor_166_166"></a><a href="#Footnote_166_166" class="fnanchor">[n]</a> +a grant as unpopular +among the natives of that country as it was derogatory to the crown; but +Lancaster was not much indebted to his brother for assistance which was +only given in order to diminish his influence in England. The truce with +France, and the king's French marriage, which Lancaster supported, were +passionately opposed by Gloucester. And the latter had given keener +provocation by speaking contemptuously of that misalliance +<span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span> with Katherine +Swineford which contaminated the blood of Plantagenet. To the parliament +summoned in the 20th of Richard, one object of which was to legitimate the +duke of Lancaster's antenuptial children by this lady, neither Gloucester +nor Arundel would repair. There passed in this assembly something +remarkable, as it exhibits not only the arbitrary temper of the king, a +point by no means doubtful, but the inefficiency of the commons to resist +it without support from political confederacies of the nobility. The +circumstances are thus related in the record.</p> + +<div class="sidenote">Richard's prosecution of Haxey.</div> + +<p>During the session the king sent for the lords into parliament one +afternoon, and told them how he had heard of certain articles of complaint +made by the commons in conference with them a few days before, some of +which appeared to the king against his royalty, estate, and liberty, and +commanded the chancellor to inform him fully as to this. The chancellor +accordingly related the whole matter, which consisted of four alleged +grievances; namely, that sheriffs and escheators, notwithstanding a +statute, are continued in their offices beyond a +year;<a name="FNanchor_167_167" id="FNanchor_167_167"></a><a href="#Footnote_167_167" class="fnanchor">[o]</a> that the +Scottish marches were not well kept; that the statute against wearing +great men's liveries was disregarded; and, lastly, that the excessive +charges of the king's household ought to be diminished, arising from the +multitude of bishops and of ladies who are there maintained at his cost.</p> + +<p>Upon this information the king declared to the lords that through God's +gift he is by lineal right of inheritance king of England, and will have +the royalty and freedom of his crown, from which some of these articles +derogate. The first petition, that sheriffs should never remain in office +beyond a year, he rejected; but, passing lightly over the rest, took most +offence that the commons, +<span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span> +who are his lieges, should take on themselves +to make any ordinance respecting his royal person or household, or those +whom he might please to have about him. He enjoined therefore the lords to +declare plainly to the commons his pleasure in this matter; and especially +directed the duke of Lancaster to make the speaker give up the name of the +person who presented a bill for this last article in the lower house.</p> + +<p>The commons were in no state to resist this unexpected promptitude of +action in the king. They surrendered the obnoxious bill, with its +proposer, one Thomas Haxey, and with great humility made excuse that they +never designed to give offence to his majesty, nor to interfere with his +household or attendants, knowing well that such things do not belong to +them, but to the king alone; but merely to draw his attention, that he +might act therein as should please him best. The king forgave these +pitiful suppliants; but Haxey was adjudged in parliament to suffer death +as a traitor. As, however, he was a +clerk,<a name="FNanchor_168_168" id="FNanchor_168_168"></a><a href="#Footnote_168_168" class="fnanchor">[p]</a> the archbishop of +Canterbury, at the head of the prelates, obtained of the king that his +life might be spared, and that they might have the custody of his person; +protesting that this was not claimed by way of right, but merely of the +king's grace.<a name="FNanchor_169_169" id="FNanchor_169_169"></a><a href="#Footnote_169_169" class="fnanchor">[q]</a></p> + +<div class="sidenote">Arbitrary measures of the king.</div> + +<p>This was an open defiance of parliament, and a declaration of arbitrary +power. For it would be impossible to contend that, after the repeated +instances of control over public expenditure by the commons since the 50th +of Edward III., this principle was novel and unauthorized +<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> +by the +constitution, or that the right of free speech demanded by them in every +parliament was not a real and indisputable privilege. The king, however, +was completely successful, and, having proved the feebleness of the +commons, fell next upon those he more dreaded. By a skilful piece of +treachery he seized the duke of Gloucester, and spread consternation among +all his party. A parliament was summoned, in which the only struggle was +to outdo the king's wishes, and thus to efface their former +transgressions.<a name="FNanchor_170_170" id="FNanchor_170_170"></a><a href="#Footnote_170_170" class="fnanchor">[r]</a> +Gloucester, who had been murdered at Calais, was +attainted after his death; Arundel was beheaded, his brother the +archbishop of Canterbury deposed and banished, Warwick and Cobham sent +beyond sea. The commission of the tenth, the proceedings in parliament of +the eleventh year of the king, were annulled. The answers of the judges to +the questions put at Nottingham, which had been punished with death and +exile, were pronounced by parliament to be just and legal. It was declared +high treason to procure the repeal of any judgment against persons therein +impeached. Their issue male were disabled from ever sitting in parliament +or holding place in council. These violent ordinances, as if the precedent +they were then overturning had not shielded itself with the same sanction, +were sworn to by parliament upon the cross of Canterbury, and confirmed by +a national oath, with the penalty of excommunication denounced against its +infringers. Of those recorded to have bound themselves by this adjuration +to Richard, far the greater part had touched the same relics for +Gloucester and Arundel ten years before, and two years afterwards swore +allegiance to Henry of +Lancaster.<a name="FNanchor_171_171" id="FNanchor_171_171"></a><a href="#Footnote_171_171" class="fnanchor">[s]</a></p> + +<p>In the fervour of prosecution this parliament could hardly go beyond that +whose acts they were annulling; and each is alike unworthy to be +remembered in the way of precedent. But the leaders of the former, though +vindictive and turbulent, had a concern for the public interest; and, +after punishing their enemies, left the government upon its right +foundation. In this all regard +<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> +for liberty was extinct; and the commons +set the dangerous precedent of granting the king a subsidy upon wool +during his life. Their remarkable act of severity was accompanied by +another, less unexampled, but, as it proved, of more ruinous tendency. The +petitions of the commons not having been answered during the session, +which they were always anxious to conclude, a commission was granted for +twelve peers and six commoners to sit after the dissolution, and "examine, +answer, and fully determine, as well all the said petitions, and the +matters therein comprised, as all other matters and things moved in the +king's presence, and all things incident thereto not yet determined, as +shall seem best to +them."<a name="FNanchor_172_172" id="FNanchor_172_172"></a><a href="#Footnote_172_172" class="fnanchor">[t]</a> +The "other matters" mentioned above were, I +suppose, private petitions to the king's council in parliament, which had +been frequently despatched after a dissolution. For in the statute which +establishes this commission, 21 R. II. c. 16, no powers are committed but +those of examining petitions: which, if it does not confirm the charge +afterwards alleged against Richard, of falsifying the parliament roll, +must at least be considered as limiting and explaining the terms of the +latter. Such a trust had been committed to some lords of the council eight +years before, in very peaceful times; and it was even requested that the +same might be done in future +parliaments.<a name="FNanchor_173_173" id="FNanchor_173_173"></a><a href="#Footnote_173_173" class="fnanchor">[u]</a> +But it is obvious what a +latitude this gave to a prevailing faction. These eighteen commissioners, +or some of them (for there were who disliked the turn of affairs), usurped +the full rights of the legislature, which undoubtedly were only delegated +in respect of business already +commenced.<a name="FNanchor_174_174" id="FNanchor_174_174"></a><a href="#Footnote_174_174" class="fnanchor">[x]</a> +They imposed a perpetual +oath on prelates +<span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span> +and lords for all time to come, to be taken before +obtaining livery of their lands, that they would maintain the statutes and +ordinances made by this parliament, or "afterwards by the lords and +knights having power committed to them by the same." They declared it high +treason to disobey their ordinances. They annulled the patents of the +dukes of Hereford and Norfolk, and adjudged Henry Bowet, the former's +chaplain, who had advised him to petition for his inheritance, to the +penalties of treason.<a name="FNanchor_175_175" id="FNanchor_175_175"></a><a href="#Footnote_175_175" class="fnanchor">[y]</a> +And thus, having obtained a revenue for life, +and the power of parliament being notoriously usurped by a knot of his +creatures, the king was little likely to meet his people again, and became +as truly absolute as his ambition could require.</p> + +<div class="sidenote">Quarrel of the dukes of Hereford and Norfolk.</div> + +<div class="sidenote">Necessity for deposing Richard II.</div> + +<p>It had been necessary for this purpose to subjugate the ancient nobility. +For the English constitution gave them such paramount rights that it was +impossible either to make them surrender their country's freedom, or to +destroy it without their consent. But several of the chief men had fallen +or were involved with the party of Gloucester. Two who, having once +belonged to it, had lately plunged into the depths of infamy to ruin their +former friends; were still perfectly obnoxious to the king, who never +forgave their original sin. These two, Henry of Bolingbroke, earl of +Derby, and Mowbray, earl of Nottingham, now dukes of Hereford and Norfolk, +the most powerful of the remaining nobility, were, by a singular +conjuncture, thrown, as it were, at the king's feet. Of the political +mysteries which this reign affords, none is more inexplicable than the +quarrel of these peers. In the parliament at Shrewsbury, in 1398, Hereford +was called upon by the king to relate what had passed between the duke of +Norfolk and himself in slander of his majesty. He detailed a pretty long +and not improbable conversation, in which Norfolk had asserted the king's +intention of destroying them both for their old offence in impeaching his +ministers. Norfolk had only to deny the +<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> +charge and throw his gauntlet at +the accuser. It was referred to the eighteen commissioners who sat after +the dissolution, and a trial by combat was awarded. But when this, after +many delays, was about to take place at Coventry, Richard interfered and +settled the dispute by condemning Hereford to banishment for ten years and +Norfolk for life. This strange determination, which treated both as guilty +where only one could be so, seems to admit no other solution than the +king's desire to rid himself of two peers whom he feared and hated at a +blow. But it is difficult to understand by what means he drew the crafty +Bolingbroke into his +snare.<a name="FNanchor_176_176" id="FNanchor_176_176"></a><a href="#Footnote_176_176" class="fnanchor">[z]</a> +However this might have been, he now +threw away all appearance of moderate government. The indignities he had +suffered in the eleventh year of his reign were still at his heart, a +desire to revenge which seems to have been the mainspring of his conduct. +Though a general pardon of those proceedings had been granted, not only at +the time, but in his own last parliament, he made use of them as a +pretence to extort money from seventeen counties, to whom he imputed a +share in the rebellion. He compelled men to confess under their seals that +they had been guilty of treason, and to give blank obligations, which his +officers filled up with large +sums.<a name="FNanchor_177_177" id="FNanchor_177_177"></a><a href="#Footnote_177_177" class="fnanchor">[a]</a> +Upon the death of the duke of +Lancaster, who had passively complied throughout all these transactions, +Richard refused livery of his inheritance to Hereford, whose exile implied +no crime, and who had letters patent enabling him to make his attorney for +that purpose during its continuance. In short, his government for nearly +two years was altogether tyrannical; and, upon the same principles that +cost James II. his throne, it was unquestionably far more necessary, +unless our fathers would have abandoned all +<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> +thought of liberty, to expel +Richard II. Far be it from us to extenuate the treachery of the Percies +towards this unhappy prince, or the cruel circumstances of his death, or +in any way to extol either his successor or the chief men of that time, +most of whom were ambitious and faithless; but after such long experience +of the king's arbitrary, dissembling, and revengeful temper, I see no +other safe course, in the actual state of the constitution, than what the +nation concurred in pursuing.</p> + +<p>The reign of Richard II. is, in a constitutional light, the most +interesting part of our earlier history; and it has been the most +imperfectly written. Some have misrepresented the truth through prejudice, +and others through carelessness. It is only to be understood, and, indeed, +there are great difficulties in the way of understanding it at all, by a +perusal of the rolls of parliament, with some assistance from the +contemporary historians, Walsingham, Knyghton, the anonymous biographer +published by Hearne, and Froissart. These, I must remark, except +occasionally the last, are extremely hostile to Richard; and although we +are far from being bound to acquiesce in their opinions, it is at least +unwarrantable in modern writers to sprinkle their margins with references +to such authority in support of positions decidedly +opposite.<a name="FNanchor_178_178" id="FNanchor_178_178"></a><a href="#Footnote_178_178" class="fnanchor">[b]</a></p> + +<div class="sidenote">Circumstances attending Henry IV.'s accession.</div> + +<p>The revolution which elevated Henry IV. to the throne was certainly so far +accomplished by force, that the king was in captivity, and those who might +still adhere to him in no condition to support his authority. But the +sincere concurrence which most of the prelates and nobility, with the mass +of the people, gave to changes that could not have been otherwise effected +by one so unprovided with foreign support as Henry, proves this revolution +to have been, if not an indispensable, yet a national act, and should +prevent our considering the Lancastrian kings as usurpers of the throne. +Nothing indeed looks so much like usurpation in the whole transaction as Henry's +<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> +remarkable challenge of the crown, insinuating, though not +avowing, as Hume has justly animadverted upon it, a false and ridiculous +title by right line of descent, and one equally unwarrantable by conquest. +The course of proceedings is worthy of notice. As the renunciation of +Richard might well pass for the effect of compulsion, there was a strong +reason for propping up its instability by a solemn deposition from the +throne, founded upon specific charges of misgovernment. Again, as the +right of dethroning a monarch was nowhere found in the law, it was equally +requisite to support this assumption of power by an actual abdication. But +as neither one nor the other filled up the duke of Lancaster's wishes, who +was not contented with owing a crown to election, nor seemed altogether to +account for the exclusion of the house of March, he devised this claim, +which was preferred in the vacancy of the throne, Richard's cession, +having been read and approved in parliament, and the sentence of +deposition, "out of abundant caution, and to remove all scruple," solemnly +passed by seven commissioners appointed out of the several estates. "After +which challenge and claim," says the record, "the lords spiritual and +temporal, and all the estates there present, being asked, separately and +together, what they thought of the said challenge and claim, the said +estates, with the whole people, without any difficulty or delay, consented +that the said duke should reign over +them."<a name="FNanchor_179_179" id="FNanchor_179_179"></a><a href="#Footnote_179_179" class="fnanchor">[c]</a> +The claim of Henry, as +opposed to that of the earl of March, was indeed ridiculous; but it is by +no means evident that, in such cases of extreme urgency as leave no +security for the common weal but the deposition of a reigning prince, +there rests any positive obligation upon the estates of the realm to fill +his place with the nearest heir. A revolution of this kind seems rather to +defeat and confound all prior titles; though in the new settlement it will +commonly be prudent, as well as equitable, to treat them with some regard. +Were this otherwise it would be hard to say why William III. reigned to +the exclusion of Anne, or even of the Pretender, who had surely committed +no offence at that time; or why (if such indeed be the true construction +of the Act of Settlement) +<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> +the more distant branches of the royal stock, +descendants of Henry VII. and earlier kings, have been cut off from their +hope of succession by the restriction to the heirs of the princess Sophia.</p> + +<p>In this revolution of 1399 there was as remarkable an attention shown to +the formalities of the constitution, allowance made for the men and the +times, as in that of 1688. The parliament was not opened by commission; no +one took the office of president; the commons did not adjourn to their own +chamber; they chose no speaker; the name of parliament was not taken, but +that only of estates of the realm. But as it would have been a violation +of constitutional principles to assume a parliamentary character without +the king's commission, though summoned by his writ, so it was still more +essential to limit their exercise of power to the necessity of +circumstances. Upon the cession of the king, as upon his death, the +parliament was no more; its existence, as the council of the sovereign, +being dependent upon his will. The actual convention summoned by the writs +of Richard could not legally become the parliament of Henry; and the +validity of a statute declaring it to be such would probably have been +questionable in that age, when the power of statutes to alter the original +principles of the common law was by no means so thoroughly recognised as +at the Restoration and Revolution. Yet Henry was too well pleased with his +friends to part with them so readily; and he had much to effect before the +fervour of their spirits should abate. Hence an expedient was devised of +issuing writs for a new parliament, returnable in six days. These neither +were nor could be complied with; but the same members as had deposed +Richard sat in the new parliament, which was regularly opened by Henry's +commissioner as if they had been duly +elected.<a name="FNanchor_180_180" id="FNanchor_180_180"></a><a href="#Footnote_180_180" class="fnanchor">[d]</a> +In this contrivance, more than in all the rest, we may trace the hand of lawyers.</p> + +<div class="sidenote">Retrospect of the progress of the constitution under Richard II.</div> + +<div class="sidenote">Its advances under the house of Lancaster.</div> + +<p>If we look back from the accession of Henry IV. to that of his +predecessor, the constitutional authority of the house of commons will be +perceived to have made surprising progress during the course of twenty-two +<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> +years. Of the three capital points in contest while Edward +reigned, that money could not be levied, or laws enacted, without the +commons' consent, and that the administration of government was subject to +their inspection and control, the first was absolutely decided in their +favour, the second was at least perfectly admitted in principle, and the +last was confirmed by frequent exercise. The commons had acquired two +additional engines of immense efficiency; one, the right of directing the +application of subsidies, and calling accountants before them; the other, +that of impeaching the king's ministers for misconduct. All these vigorous +shoots of liberty throve more and more under the three kings of the house +of Lancaster, and drew such strength and nourishment from the generous +heart of England, that in after-times, and in a less prosperous season, +though checked and obstructed in their growth, neither the blasts of +arbitrary power could break them off, nor the mildew of servile opinion +cause them to wither. I shall trace the progress of parliament till the +civil wars of York and Lancaster: 1. in maintaining the exclusive right of +taxation; 2. in directing and checking the public expenditure; 3. in +making supplies depend on the redress of grievances; 4. in securing the +people against illegal ordinances and interpolations of the statutes; 5. +in controlling the royal administration; 6. in punishing bad ministers; +and lastly, in establishing their own immunities and privileges.</p> + +<p>1. The pretence of levying money without consent of parliament expired +with Edward III., who had asserted it, as we have seen, in the very last +year of his reign. A great council of lords and prelates, summoned in the +second year of his successor, declared that they could advise no remedy +for the king's necessities without laying taxes on the people, which could +only be granted in +parliament.<a name="FNanchor_181_181" id="FNanchor_181_181"></a><a href="#Footnote_181_181" class="fnanchor">[e]</a> +Nor was Richard ever accused of +illegal tallages, the frequent theme of remonstrance under Edward, unless +we may conjecture that this charge is implied in an act (11 R. II. c. 9) +which annuls all +<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> +impositions on wool and leather, without consent of +parliament, <i>if any there +be</i>.<a name="FNanchor_182_182" id="FNanchor_182_182"></a><a href="#Footnote_182_182" class="fnanchor">[f]</a> +Doubtless his innocence in this +respect was the effect of weakness; and if the revolution of 1399 had not +put an end to his newly acquired despotism, this, like every other right +of his people, would have been swept away. A less palpable means of +evading the consent of the commons was by the extortion of loans, and +harassing those who refused to pay by summonses before the council. These +loans, the frequent resource of arbitrary sovereigns in later times, are +first complained of in an early parliament of Richard II.: and a petition +is granted that no man shall be compelled to lend the king +money.<a name="FNanchor_183_183" id="FNanchor_183_183"></a><a href="#Footnote_183_183" class="fnanchor">[g]</a> But +how little this was regarded we may infer from a writ directed, in 1386, +to some persons in Boston, enjoining them to assess every person who had +goods and chattels to the amount of twenty pounds, in his proportion of +two hundred pounds, which the town had promised to lend the king; and +giving an assurance that this shall be deducted from the next subsidy to +be granted by parliament. Among other extraordinary parts of this letter +is a menace of forfeiting life, limbs, and property, held out against such +as should not obey these +commissioners.<a name="FNanchor_184_184" id="FNanchor_184_184"></a><a href="#Footnote_184_184" class="fnanchor">[h]</a> +After his triumph over the +popular party towards the end of his reign, he obtained large sums in this +way.</p> + +<p>Under the Lancastrian kings there is much less appearance of raising money +in an unparliamentary course. Henry IV. obtained an aid from a great +council in the year 1400; but they did not pretend to charge any besides +themselves; though it seems that some towns afterwards gave the king a +contribution.<a name="FNanchor_185_185" id="FNanchor_185_185"></a><a href="#Footnote_185_185" class="fnanchor">[i]</a> +A few years afterwards he directs the sheriffs to call +on the richest men in their counties to advance the money voted by +parliament. This, if any compulsion was threatened, is an instance of +overstrained prerogative, though consonant to the practice of the late +reign.<a name="FNanchor_186_186" id="FNanchor_186_186"></a><a href="#Footnote_186_186" class="fnanchor">[k]</a> +There is, however, +<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> +an instance of very arbitrary conduct with +respect to a grant of money in the minority of Henry VI. A subsidy had +been granted by parliament upon goods imported under certain restrictions +in favour of the merchants, with a provision that, if these conditions be +not observed on the king's part, then the grant should be void and of no +effect.<a name="FNanchor_187_187" id="FNanchor_187_187"></a><a href="#Footnote_187_187" class="fnanchor">[m]</a> +But an entry is made on the roll of the next parliament, +that, "whereas some disputes have arisen about the grant of the last +subsidy, it is declared by the duke of Bedford and other lords in +parliament, with advice of the judges and others learned in the law, that +the said subsidy was at all events to be collected and levied for the +king's use; notwithstanding any conditions in the grant of the said +subsidy contained."<a name="FNanchor_188_188" id="FNanchor_188_188"></a><a href="#Footnote_188_188" class="fnanchor">[n]</a> +The commons, however, in making the grant of a +fresh subsidy in this parliament, renewed their former conditions, with +the addition of another, that "it ne no part thereof be beset ne dispensed +to no other use, but only in and for the defense of the said +roialme."<a name="FNanchor_189_189" id="FNanchor_189_189"></a><a href="#Footnote_189_189" class="fnanchor">[o]</a></p> + +<div class="sidenote">Appropriation of supplies.</div> + +<p>2. The right of granting supplies would have been very incomplete, had it +not been accompanied with that of directing their application. The +principle of appropriating public moneys began, as we have seen, in the +minority of Richard; and was among the best fruits of that period. It was +steadily maintained under the new dynasty. The parliament of 6 H. IV. +granted two fifteenths and two tenths, with a tax on skins and wool, on +condition that it should be expended in the defence of the kingdom, and +not otherwise, as Thomas lord Furnival and Sir John Pelham, ordained +treasurers of war for this parliament, to receive the said subsidies, +shall account and answer to the commons at the next parliament. These +treasurers were sworn in parliament to execute their +trusts.<a name="FNanchor_190_190" id="FNanchor_190_190"></a><a href="#Footnote_190_190" class="fnanchor">[p]</a> A +similar precaution was adopted in the next +session.<a name="FNanchor_191_191" id="FNanchor_191_191"></a><a href="#Footnote_191_191" class="fnanchor">[q]</a></p> + +<div class="sidenote">Attempt to make supply depend on redress of grievances.</div> + +<p>3. The commons made a bold attempt in the second year of Henry IV. to give +the strongest security to their claims of redress, by inverting the usual +course of parliamentary proceedings. It was usual to answer their +petitions on the last day of the session, which put an end to all further discussion +<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> +upon them, and prevented their making the redress of +grievances a necessary condition of supply. They now requested that an +answer might be given before they made their grant of subsidy. This was +one of the articles which Richard II.'s judges had declared it high +treason to attempt. Henry was not inclined to make a concession which +would virtually have removed the chief impediment to the ascendency of +parliament. He first said that he would consult with the lords, and answer +according to their advice. On the last day of the session the commons were +informed that "it had never been known in the time of his ancestors that +they should have their petitions answered before they had done all their +business in parliament, whether of granting money or any other concern; +wherefore the king will not alter the good customs and usages of ancient +times."<a name="FNanchor_192_192" id="FNanchor_192_192"></a><a href="#Footnote_192_192" class="fnanchor">[r]</a></p> + +<p>Notwithstanding the just views these parliaments appear generally to have +entertained of their power over the public purse, that of the third of +Henry V. followed a precedent from the worst times of Richard II., by +granting the king a subsidy on wool and leather during his +life.<a name="FNanchor_193_193" id="FNanchor_193_193"></a><a href="#Footnote_193_193" class="fnanchor">[s]</a> +This, an historian tells us, Henry IV. had vainly laboured to +obtain;<a name="FNanchor_194_194" id="FNanchor_194_194"></a><a href="#Footnote_194_194" class="fnanchor">[t]</a> +but the taking of Harfleur intoxicated the English with new dreams of +conquest in France, which their good sense and constitutional jealousy +were not firm enough to resist. The continued expenses of the war, +however, prevented this grant from becoming so dangerous as it might have +been in a season of tranquillity. Henry V., like his father, convoked +parliament almost in every year of his reign.</p> + +<div class="sidenote">Legislative rights of the commons established.</div> + +<p>4. It had long been out of all question that the legislature consisted of +the king, lords, and commons; or, in stricter language, that the king +could not make or repeal statutes without the consent of parliament. But +this fundamental maxim was still frequently defeated by various acts of +evasion or violence; which, though protested against as illegal, it was a +difficult task to prevent. The king sometimes exerted a power of +suspending the observance of statutes, as in the ninth of Richard II., +when a petition +<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> +that all statutes might be confirmed is granted, with an +exception as to one passed in the last parliament, forbidding the judges +to take fees, or give counsel in cases where the king was a party; which, +"because it was too severe and needs declaration, the king would have of +no effect till it should be declared in +parliament."<a name="FNanchor_195_195" id="FNanchor_195_195"></a><a href="#Footnote_195_195" class="fnanchor">[u]</a> +The apprehension of the dispensing prerogative and sense of its illegality are manifested +by the wary terms wherein the commons, in one of Richard's parliaments, +"assent that the king make such sufferance respecting the statute of +provisors as shall seem reasonable to him, so that the said statute be not +repealed; and, moreover, that the commons may disagree thereto at the next +parliament, and resort to the statute;" with a protestation that this +assent, which is a novelty and never done before, shall not be drawn into +precedent; praying the king that this protestation may be entered on the +roll of parliament.<a name="FNanchor_196_196" id="FNanchor_196_196"></a><a href="#Footnote_196_196" class="fnanchor">[x]</a> +A petition, in one of Henry IV.'s parliaments, to +limit the number of attorneys, and forbid filazers and prothonotaries from +practising, having been answered favourably as to the first point, we find +a marginal entry in the roll that the prince and council had respited the +execution of this act.<a name="FNanchor_197_197" id="FNanchor_197_197"></a><a href="#Footnote_197_197" class="fnanchor">[y]</a></p> + +<div class="sidenote">Dispensing power of the crown.</div> + +<p>The dispensing power, as exercised in favour of individuals, is quite of a +different character from this general suspension of statutes, but +indirectly weakens the sovereignty of the legislature. This power was +exerted, and even recognised, throughout all the reigns of the +Plantagenets. In the first of Henry V. the commons pray that the statute +for driving aliens out of the kingdom be executed. The king assents, +saving his prerogative and his right of dispensing with it when he +pleased. To which the commons replied that their intention was never +otherwise, nor, by God's help, ever should be. At the same time one Rees +ap Thomas petitions the king to modify or dispense with the statute +prohibiting Welchmen from purchasing lands in England, or the English towns in +<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> +Wales; which the king grants. In the same parliament the commons +pray that no grant or protection be made to any one in contravention of +the statute of provisors, saving the king's prerogative. He merely +answers, "Let the statutes be observed:" evading any allusion to his +dispensing power.<a name="FNanchor_198_198" id="FNanchor_198_198"></a><a href="#Footnote_198_198" class="fnanchor">[z]</a></p> + +<p>It has been observed, under the reign of Edward III., that the practice of +leaving statutes to be drawn up by the judges, from the petition and +answer jointly, after a dissolution of parliament, presented an +opportunity of falsifying the intention of the legislature, whereof +advantage was often taken. Some very remarkable instances of this fraud +occurred in the succeeding reigns.</p> + +<p>An ordinance was put upon the roll of parliament, in the fifth of Richard +II., empowering sheriffs of counties to arrest preachers of heresy and +their abettors, and detain them in prison till they should justify +themselves before the church. This was introduced into the statutes of the +year; but the assent of lords and commons is not expressed. In the next +parliament the commons, reciting this ordinance, declare that it was never +assented to or granted by them, but what had been proposed in this matter +was without their concurrence (that is, as I conceive, had been rejected +by them), and pray that this statute be annulled; for it was never their +intent to bind themselves or their descendants to the bishops more than +their ancestors had been bound in times past. The king returned an answer, +agreeing to this petition. Nevertheless the pretended statute was +untouched, and remains still among our +laws;<a name="FNanchor_199_199" id="FNanchor_199_199"></a><a href="#Footnote_199_199" class="fnanchor">[a]</a> +unrepealed, except by desuetude, and by inference from the acts of much later times.</p> + +<p>This commendable reluctance of the commons to let the clergy forge chains +for them produced, as there is much appearance, a similar violation of +their legislative rights in the next reign. The statute against heresy in +the second of Henry IV. is not grounded upon any +<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> +petition of the commons, +but only upon one of the clergy. It is said to be enacted by consent of +the lords, but no notice is taken of the lower house in the parliament +roll, though the statute reciting the petition asserts the commons to have +joined in it.<a name="FNanchor_200_200" id="FNanchor_200_200"></a><a href="#Footnote_200_200" class="fnanchor">[b]</a> +The petition and the statute are both in Latin, which +is unusual in the laws of this time. In a subsequent petition of the +commons this act is styled "the statute made in the second year of your +majesty's reign at the request of the prelates and clergy of your +kingdom;" which affords a presumption that it had no regular assent of +parliament.<a name="FNanchor_201_201" id="FNanchor_201_201"></a><a href="#Footnote_201_201" class="fnanchor">[c]</a> +And the spirit of the commons during this whole reign +being remarkably hostile to the church, it would have been hardly possible +to obtain their consent to so penal a law against heresy. Several of their +petitions seem designed indirectly to weaken its +efficacy.<a name="FNanchor_202_202" id="FNanchor_202_202"></a><a href="#Footnote_202_202" class="fnanchor">[d]</a></p> + +<p>These infringements of their most essential right were resisted by the +commons in various ways, according to the measure of their power. In the +fifth of Richard II. they request the lords to let them see a certain +ordinance before it is +engrossed.<a name="FNanchor_203_203" id="FNanchor_203_203"></a><a href="#Footnote_203_203" class="fnanchor">[e]</a> +At another time they procured some +of their own members, as well as peers, to be present at engrossing the +roll. At length they spoke out unequivocally in a memorable petition, +which, besides its intrinsic importance, is deserving of notice as the +earliest instance in which the house of commons adopted the English +language. I shall present its venerable orthography without change.</p> + +<p>"Oure soverain lord, youre humble and trewe lieges that ben come for the +comune of youre lond bysechyn onto youre rizt riztwesnesse, That so as hit +hath ever be thair libte and fredom, that thar sholde no statut no lawe be +made offlasse than they yaf therto their assent; consideringe that the +comune of youre lond, the whiche that +<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> +is, and ever hath be, a membre of +youre parlemente, ben as well assenters as petitioners, that fro this tyme +foreward, by compleynte of the comune of any myschief axknyge remedie by +mouthe of their speker for the comune, other ellys by petition writen, +that ther never be no lawe made theruppon, and engrossed as statut and +lawe, nother by addicions, nother by diminucions, by no manner of terme ne +termes, the whiche that sholde chaunge the sentence, and the entente axked +by the speker mouthe, or the petitions beforesaid yeven up yn writyng by +the manere forsaid, withoute assent of the forsaid comune. Consideringe, +oure soverain lord, that it is not in no wyse the entente of youre +comunes, zif yet be so that they axke you by spekyng, or by writyng, two +thynges or three, or as manye as theym lust: But that ever it stande in +the fredom of youre hie regalie, to graunte whiche of thoo that you lust, +and to werune the remanent.</p> + +<p>"The kyng of his grace especial graunteth that fro hensforth nothyng be +enacted to the peticions of his comune that be contrarie of hir askyng, +wharby they shuld be bounde withoute their assent. Savyng alwey to our +liege lord his real prerogatif, to graunte and denye what him lust of +their petitions and askynges +aforesaid."<a name="FNanchor_204_204" id="FNanchor_204_204"></a><a href="#Footnote_204_204" class="fnanchor">[f]</a></p> + +<p>Notwithstanding the fulness of this assent to so important a petition we +find no vestige of either among the statutes, and the whole transaction is +unnoticed by those historians who have not looked into our original +records. If the compilers of the statute-roll were able to keep out of it +the very provision that was intended to check their fraudulent +machinations, it was in vain to hope for redress without altering the +established practice in this respect; and indeed, where there was no +design to falsify the roll it was impossible to draw up statutes which +should be in truth the acts of the whole legislature, so long as the king +continued to grant petitions in part, and to engraft new matter upon them. Such was +<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> +still the case till the commons hit upon an effectual expedient +for screening themselves against these encroachments, which has lasted +without alteration to the present day. This was the introduction of +complete statutes under the name of bills, instead of the old petitions; +and these containing the royal assent and the whole form of a law, it +became, though not quite +immediately,<a name="FNanchor_205_205" id="FNanchor_205_205"></a><a href="#Footnote_205_205" class="fnanchor">[g]</a> +a constant principle that the +king must admit or reject them without qualification. This alteration, +which wrought an extraordinary effect on the character of our +constitution, was gradually introduced in Henry VI.'s +reign.<a name="FNanchor_206_206" id="FNanchor_206_206"></a><a href="#Footnote_206_206" class="fnanchor">[h]</a></p> + +<p>From the first years of Henry V., though not, I think, earlier, the +commons began to concern themselves with the petitions of individuals to +the lords or council. The nature of the jurisdiction exercised by the +latter will be treated more fully hereafter; it is only necessary to +mention in this place that many of the requests preferred to them were +such as could not be granted without transcending the boundaries of law. A +just inquietude as to the encroachments of the king's council had long +been manifested by the commons; and finding remonstrances ineffectual, +they took measures for preventing such usurpations of legislative power by +introducing their own consent to private petitions. These were now +presented by the hands of the commons, and in very many instances +<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> passed +in the form of statutes with the express assent of all parts of the +legislature. Such was the origin of private bills, which occupy the +greater part of the rolls in Henry V. and VI.'s parliament. The commons +once made an ineffectual endeavour to have their consent to all petitions +presented to the council in parliament rendered necessary by law; if I +rightly apprehend the meaning of the roll in this place, which seems +obscure or corrupt.<a name="FNanchor_207_207" id="FNanchor_207_207"></a><a href="#Footnote_207_207" class="fnanchor">[i]</a></p> + +<div class="sidenote">Interference of parliament with the royal expenditure.</div> + +<p>5. If the strength of the commons had lain merely in the weakness of the +crown, it might be inferred that such harassing interference with the +administration of affairs as the youthful and frivolous Richard was +compelled to endure would have been sternly repelled by his experienced +successor. But, on the contrary, the spirit of Richard might have rejoiced +to see that his mortal enemy suffered as hard usage at the hands of +parliament as himself. After a few years the government of Henry became +extremely unpopular. Perhaps his dissension with the great family of +Percy, which had placed him on the throne, and was regarded with +partiality by the +people,<a name="FNanchor_208_208" id="FNanchor_208_208"></a><a href="#Footnote_208_208" class="fnanchor">[k]</a> +chiefly contributed to this alienation of +their attachment. The commons requested, in the fifth of his reign, that +certain persons might be removed from the court; the lords concurred in +displacing four of these, one being the king's confessor. Henry came down +to parliament and excused these four persons, as knowing no special cause +why they should be removed; yet, well understanding that what the lords +and commons should ordain would be for his and his kingdom's interest, and +therefore anxious to conform himself to their wishes, consented to the +said ordinance, and charged the persons in question to leave his palace; +adding, that he would do as much by any other about his person whom he +should find to have incurred the ill affection of his +people.<a name="FNanchor_209_209" id="FNanchor_209_209"></a><a href="#Footnote_209_209" class="fnanchor">[m]</a> It was +in the same session that the archbishop of Canterbury was commanded to +declare before the lords the king's intention respecting his +administration; allowing that some things had been done amiss in his court and +<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> +household; and therefore, wishing to conform to the will of God and +laws of the land, protested that he would let in future no letters of +signet or privy seal go in disturbance of law, beseeched the lords to put +his household in order, so that every one might be paid, and declared that +the money granted by the commons for the war should be received by +treasurers appointed in parliament, and disbursed by them for no other +purpose, unless in case of rebellion. At the request of the commons he +named the members of his privy council; and did the same, with some +variation of persons, two years afterwards. These, though not nominated +with the express consent, seem to have had the approbation of the commons, +for a subsidy is granted in 7 H. IV., among other causes, for "the great +trust that the commons have in the lords lately chosen and ordained to be +of the king's continual council, that there shall be better management +than heretofore."<a name="FNanchor_210_210" id="FNanchor_210_210"></a><a href="#Footnote_210_210" class="fnanchor">[n]</a></p> + +<p>In the sixth year of Henry the parliament, which Sir E. Coke derides as +unlearned because lawyers were excluded from it, proceeded to a resumption +of grants and a prohibition of alienating the ancient inheritance of the +crown without consent of parliament, in order to ease the commons of +taxes, and that the king might live on his +own.<a name="FNanchor_211_211" id="FNanchor_211_211"></a><a href="#Footnote_211_211" class="fnanchor">[o]</a> +This was a favourite +though rather chimerical project. In a later parliament it was requested +that the king would take his council's advice how to keep within his own +revenue; he answered that he would willingly comply as soon as it should +be in his power.<a name="FNanchor_212_212" id="FNanchor_212_212"></a><a href="#Footnote_212_212" class="fnanchor">[p]</a></p> + +<p>But no parliament came near, in the number and boldness of its demands, to +that held in the eighth year of Henry IV. The commons presented thirty-one +articles, none of which the king ventured to refuse, though pressing very +severely upon his prerogative. He was to name sixteen counsellors, by +whose advice he was solely to be guided, none of them to be dismissed +without conviction of misdemeanor. The chancellor and privy seal to pass +no grants or other matter contrary to law. Any persons about the court +stirring up the king or queen's minds against their subjects, and duly +convicted thereof, to lose their offices and be fined. The king's ordinary revenue +<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> +was wholly appropriated to his household and the payment of his +debts; no grant of wardship or other profit to be made thereout, nor any +forfeiture to be pardoned. The king, "considering the wise government of +other Christian princes, and conforming himself thereto," was to assign +two days in the week for petitions, "it being an honourable and necessary +thing that his lieges, who desired to petition him, should be heard." No +judicial officer, nor any in the revenue or household, to enjoy his place +for life or term of years. No petition to be presented to the king, by any +of his household, at times when the council were not sitting. The council +to determine nothing cognizable at common law, unless for a reasonable +cause and with consent of the judges. The statutes regulating purveyance +were affirmed—abuses of various kinds in the council and in courts of +justice enumerated and forbidden—elections of knights for counties put +under regulation. The council and officers of state were sworn to observe +the common law and all statutes, those especially just +enacted.<a name="FNanchor_213_213" id="FNanchor_213_213"></a><a href="#Footnote_213_213" class="fnanchor">[q]</a></p> + +<p>It must strike every reader that these provisions were of themselves a +noble fabric of constitutional liberty, and hardly perhaps inferior to the +petition of right under Charles I. We cannot account for the submission of +Henry to conditions far more derogatory than ever were imposed on Richard, +because the secret politics of his reign are very imperfectly understood. +Towards its close he manifested more vigour. The speaker, Sir Thomas +Chaucer, having made the usual petition for liberty of speech, the king +answered that he might speak as others had done in the time of his +(Henry's) ancestors, and his own, but not otherwise; for he would by no +means have any innovation, but be as much at his liberty as any of his +ancestors had ever been. Some time after he sent a message to the commons, +complaining of a law passed at the last parliament infringing his liberty +and prerogative, which he requested their consent to repeal. To this the +commons agreed, and received the king's thanks, who declared at the same +time that he would keep as much freedom and prerogative as any of his +ancestors. It does not appear what was the particular subject of complaint; +<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span> +but there had been much of the same remonstrating spirit in +the last parliament that was manifested on preceding occasions. The +commons, however, for reasons we cannot explain, were rather dismayed. +Before their dissolution, they petition the king, that, whereas he was +reported to be offended at some of his subjects in this and in the +preceding parliament, he would openly declare that he held them all for +loyal subjects. Henry granted this "of his special grace;" and thus +concluded his reign more triumphantly with respect to his domestic battles +than he had gone through it.<a name="FNanchor_214_214" id="FNanchor_214_214"></a><a href="#Footnote_214_214" class="fnanchor">[r]</a></p> + +<div class="sidenote">Henry V. His popularity.</div> + +<p>Power deemed to be ill gotten is naturally precarious; and the instance of +Henry IV. has been well quoted to prove that public liberty flourishes +with a bad title in the sovereign. None of our kings seem to have been +less beloved; and indeed he had little claim to affection. But what men +denied to the reigning king they poured in full measure upon the heir of +his throne. The virtues of the prince of Wales are almost invidiously +eulogized by those parliaments who treat harshly his +father;<a name="FNanchor_215_215" id="FNanchor_215_215"></a><a href="#Footnote_215_215" class="fnanchor">[s]</a> and +these records afford a strong presumption that some early petulance or +riot has been much exaggerated by the vulgar minds of our chroniclers. One +can scarcely understand at least that a prince who was three years engaged +in quelling the dangerous insurrection of Glendower, and who in the latter +time of his father's reign presided at the council, was so lost in a cloud +of low debauchery as common fame +represents.<a name="FNanchor_216_216" id="FNanchor_216_216"></a><a href="#Footnote_216_216" class="fnanchor">[t]</a> +Loved he certainly was +throughout his life, as so intrepid, affable, and generous a temper well +deserved; and this sentiment was heightened to admiration by successes +still more rapid and dazzling than those of Edward III. During his reign +there scarcely appears any vestige of dissatisfaction in parliament—a +circumstance very honourable, whether we ascribe it to the justice of his +administration or to the affection of his people. Perhaps two exceptions, +though they are rather one in spirit, might be made: the first, a petition +to the duke of Gloucester, then holding parliament as guardian +<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> of +England, that he would move the king and queen to return, as speedily as +might please them, in relief and comfort of the +commons;<a name="FNanchor_217_217" id="FNanchor_217_217"></a><a href="#Footnote_217_217" class="fnanchor">[u]</a> the second, +a request that their petitions might not be sent to the king beyond sea, +but altogether determined "within this kingdom of England, during this +parliament," and that this ordinance might be of force in all future +parliaments to be held in +England.<a name="FNanchor_218_218" id="FNanchor_218_218"></a><a href="#Footnote_218_218" class="fnanchor">[x]</a> +This prayer, to which the guardian +declined to accede, evidently sprang from the apprehensions, excited in +their minds by the treaty of Troyes, that England might become a province +of the French crown, which led them to obtain a renewal of the statute of +Edward III., declaring the independence of this +kingdom.<a name="FNanchor_219_219" id="FNanchor_219_219"></a><a href="#Footnote_219_219" class="fnanchor">[y]</a></p> + +<div class="sidenote">Parliament consulted on all public affairs.</div> + +<p>It has been seen already that even Edward III. consulted his parliament +upon the expediency of negociations for peace, though at that time the +commons had not acquired boldness enough to tender their advice. In +Richard II.'s reign they answered to a similar proposition with a little +more confidence, that the dangers each way were so considerable they dared +not decide, though an honourable peace would be the greatest comfort they +could have, and concluded by hoping that the king would not engage to do +homage for Calais or the conquered +country.<a name="FNanchor_220_220" id="FNanchor_220_220"></a><a href="#Footnote_220_220" class="fnanchor">[z]</a> +The parliament of the +tenth of his reign was expressly summoned in order to advise concerning +the king's intended expedition beyond sea—a great council, which had +previously been assembled at Oxford, having declared their incompetence to +consent to this measure without the advice of +parliament.<a name="FNanchor_221_221" id="FNanchor_221_221"></a><a href="#Footnote_221_221" class="fnanchor">[a]</a> Yet a few +years afterwards, on a similar reference, the commons rather declined to +give any opinion.<a name="FNanchor_222_222" id="FNanchor_222_222"></a><a href="#Footnote_222_222" class="fnanchor">[b]</a> +They confirmed the league of Henry V. with the +emperor Sigismund;<a name="FNanchor_223_223" id="FNanchor_223_223"></a><a href="#Footnote_223_223" class="fnanchor">[c]</a> +and the treaty of Troyes, which was so +fundamentally to change the situation of Henry and his successors, +obtained, as it evidently required, the sanction of both houses of +parliament.<a name="FNanchor_224_224" id="FNanchor_224_224"></a><a href="#Footnote_224_224" class="fnanchor">[d]</a> +These precedents conspiring with the weakness of the +executive government, in the minority of Henry VI., to fling an increase +of influence into the scale of the commons, they made their +<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span> concurrence +necessary to all important business both of a foreign and domestic nature. +Thus commissioners were appointed to treat of the deliverance of the king +of Scots, the duchesses of Bedford and Gloucester were made denizens, and +mediators were appointed to reconcile the dukes of Gloucester and +Burgundy, by authority of the three estates assembled in +parliament.<a name="FNanchor_225_225" id="FNanchor_225_225"></a><a href="#Footnote_225_225" class="fnanchor">[e]</a> +Leave was given to the dukes of Bedford and Gloucester, and others in the +king's behalf, to treat of peace with France, by both houses of +parliament, in pursuance of an article in the treaty of Troyes, that no +treaty should be set on foot with the dauphin without consent of the three +estates of both +realms.<a name="FNanchor_226_226" id="FNanchor_226_226"></a><a href="#Footnote_226_226" class="fnanchor">[f]</a> +This article was afterwards +repealed.<a name="FNanchor_227_227" id="FNanchor_227_227"></a><a href="#Footnote_227_227" class="fnanchor">[g]</a></p> + +<p>Some complaints are made by the commons, even during the first years of +Henry's minority, that the king's subjects underwent arbitrary +imprisonment, and were vexed by summonses before the council and by the +newly-invented writ of subpœna out of +chancery.<a name="FNanchor_228_228" id="FNanchor_228_228"></a><a href="#Footnote_228_228" class="fnanchor">[h]</a> +But these are not +so common as formerly; and so far as the rolls lead us to any inference, +there was less injustice committed by the government under Henry VI. and +his father than at any former period. Wastefulness indeed might justly be +imputed to the regency, who had scandalously lavished the king's +revenue.<a name="FNanchor_229_229" id="FNanchor_229_229"></a><a href="#Footnote_229_229" class="fnanchor">[i]</a> +This ultimately led to an act for resuming all grants since +his accession, founded upon a public declaration of the great officers of +the crown that his debts amounted to 372,000<i>l.</i>, and the annual expense +of the household to 24,000<i>l.</i>, while the ordinary revenue was not more +than 5000<i>l.</i><a name="FNanchor_230_230" id="FNanchor_230_230"></a><a href="#Footnote_230_230" class="fnanchor">[k]</a></p> + +<div class="sidenote">Impeachments of ministers.</div> + +<p>6. But before this time the sky had begun to darken, and discontent with +the actual administration pervaded every rank. The causes of this are +familiar—the unpopularity of the king's marriage with Margaret of Anjou, +and her impolitic violence +<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> +in the conduct of affairs, particularly the +imputed murder of the people's favourite, the duke of Gloucester. This +provoked an attack upon her own creature, the duke of Suffolk. Impeachment +had lain still, like a sword in the scabbard, since the accession of Henry +IV., when the commons, though not preferring formal articles of +accusation, had petitioned the king that Justice Rickhill, who had been +employed to take the former duke of Gloucester's confession at Calais, and +the lords appellants of Richard II.'s last parliament, should be put on +their defence before the +lords.<a name="FNanchor_231_231" id="FNanchor_231_231"></a><a href="#Footnote_231_231" class="fnanchor">[m]</a> +In Suffolk's case the commons seem to +have proceeded by bill of attainder, or at least to have designed the +judgment against that minister to be the act of the whole legislature; for +they delivered a bill containing articles against him to the lords, with a +request that they would pray the king's majesty to enact that bill in +parliament, and that the said duke might be proceeded against upon the +said articles in parliament according to the law and custom of England. +These articles contained charges of high treason, chiefly relating to his +conduct in France, which, whether treasonable or not, seems to have been +grossly against the honour and advantage of the crown. At a later day the +commons presented many other articles of misdemeanor. To the former he +made a defence, in presence of the king as well as the lords both +spiritual and temporal; and indeed the articles of impeachment were +directly addressed to the king, which gave him a reasonable pretext to +interfere in the judgment. But from apprehension, as it is said, that +Suffolk could not escape conviction upon at least some part of these +charges, Henry anticipated with no slight irregularity the course of legal +trial, and, summoning the peers into a private chamber, informed the duke +of Suffolk, by mouth of his chancellor, that, inasmuch as he had not put +himself upon his peerage, but submitted wholly to the royal pleasure, the +king, acquitting him of the first articles containing matter of treason, +by his own advice and not that of the lords, nor by way of judgment, not +being in a place where judgment could be delivered, banished him for five +years from his dominions. The lords then present besought +<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> the king to let +their protest appear on record, that neither they nor their posterity +might lose their rights of peerage by this precedent. It was justly +considered as an arbitrary stretch of prerogative, in order to defeat the +privileges of parliament and screen a favourite minister from punishment. +But the course of proceeding by bill of attainder, instead of regular +impeachment, was not judiciously chosen by the +commons.<a name="FNanchor_232_232" id="FNanchor_232_232"></a><a href="#Footnote_232_232" class="fnanchor">[n]</a></p> + +<div class="sidenote">Privilege of parliament.</div> + +<p>7. Privilege of parliament, an extensive and singular branch of our +constitutional law, begins to attract attention under the Lancastrian +princes. It is true indeed that we can trace long before by records, and +may infer with probability as to times whose records have not survived, +one considerable immunity—a freedom from arrest for persons transacting +the king's business in his national +council.<a name="FNanchor_233_233" id="FNanchor_233_233"></a><a href="#Footnote_233_233" class="fnanchor">[o]</a> +Several authorities may +be found in Mr. Hatsell's Precedents; of which one, in the 9th of Edward +II., is conclusive.<a name="FNanchor_234_234" id="FNanchor_234_234"></a><a href="#Footnote_234_234" class="fnanchor">[p]</a> +But in those rude times members of parliament +were not always respected by the officers executing legal process, and +still less by the violators of law. After several remonstrances, which the +crown had evaded,<a name="FNanchor_235_235" id="FNanchor_235_235"></a><a href="#Footnote_235_235" class="fnanchor">[q]</a> +the commons obtained the statute 11 Henry VI. c. +11, for the punishment of such as assault any on their way to the +parliament, giving double damages to the +party.<a name="FNanchor_236_236" id="FNanchor_236_236"></a><a href="#Footnote_236_236" class="fnanchor">[r]</a> They had more +difficulty in establishing, notwithstanding the old precedents in their +favour, an immunity from all criminal process except in charges of +treason, felony, and breach of the peace, which is their present measure +of privilege. The truth was, that, with a right pretty clearly recognised, +as is admitted by the judges in Thorp's case, the house of commons had no +regular compulsory process at their command. In the cases of Lark, servant +of a member, in the 8th of Henry +VI.,<a name="FNanchor_237_237" id="FNanchor_237_237"></a><a href="#Footnote_237_237" class="fnanchor">[s]</a> and of Clerke, himself a +burgess, in the 39th of the same +king,<a name="FNanchor_238_238" id="FNanchor_238_238"></a><a href="#Footnote_238_238" class="fnanchor">[t]</a> +it was thought necessary to effect their +<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> +release from a civil execution by special acts of +parliament. The commons, in a former instance, endeavoured to make the law +general that no members nor their servants might be taken except for +treason, felony, and breach of peace; but the king put a negative upon +this part of their petition.</p> + +<p>The most celebrated, however, of these early cases of privilege is that of +Thomas Thorp, speaker of the commons in 31 Henry VI. This person, who was +moreover a baron of the exchequer, had been imprisoned on an execution at +suit of the duke of York. The commons sent some of their members to +complain of a violation of privilege to the king and lords in parliament, +and to demand Thorp's release. It was alleged by the duke of York's +counsel that the trespass done by Thorp was since the beginning of the +parliament, and the judgment thereon given in time of vacation, and not +during the sitting. The lords referred the question to the judges, who +said, after deliberation, that "they ought not to answer to that question, +for it hath not be used aforetyme that the judges should in any wise +determine the privilege of this high court of parliament; for it is so +high and so mighty in his nature that it may make law, and that that is +law it may make no law; and the determination and knowledge of that +privilege belongeth to the lords of the parliament, and not to the +justices." They went on, however, after observing that a general writ of +supersedeas of all processes upon ground of privilege had not been known, +to say that, "if any person that is a member of this high court of +parliament be arrested in such cases as be not for treason, or felony, or +surety of the peace, or for a condemnation had before the parliament, it +is used that all such persons should be released of such arrests and make +an attorney, so that they may have their freedom and liberty freely to +intend upon the parliament."</p> + +<p>Notwithstanding this answer of the judges, it was concluded by the lords +that Thorp should remain in prison, without regarding the alleged +privilege; and the commons were directed in the king's name to proceed +"with all goodly haste and speed" to the election of a new speaker. It is +curious to observe that the commons, forgetting their grievances, or +content to drop them, +<span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span> +made such haste and speed according to this +command, that they presented a new speaker for approbation the next +day.<a name="FNanchor_239_239" id="FNanchor_239_239"></a><a href="#Footnote_239_239" class="fnanchor">[u]</a></p> + +<p>This case, as has been strongly said, was begotten by the iniquity of the +times. The state was verging fast towards civil war; and Thorp, who +afterwards distinguished himself for the Lancastrian cause, was an +inveterate enemy of the duke of York. That prince seems to have been +swayed a little from his usual temper in procuring so unwarrantable a +determination. In the reign of Edward IV. the commons claimed privilege +against any civil suit during the time of their session; but they had +recourse, as before, to a particular act of parliament to obtain a writ of +supersedeas in favour of one Atwell, a member, who had been sued. The +present law of privilege seems not to have been fully established, or at +least effectually maintained, before the reign of Henry +VIII.<a name="FNanchor_240_240" id="FNanchor_240_240"></a><a href="#Footnote_240_240" class="fnanchor">[x]</a></p> + +<p>No privilege of the commons can be so fundamental as liberty of speech. +This is claimed at the opening of every parliament by their speaker, and +could never be infringed without shaking the ramparts of the constitution. +Richard II.'s attack upon Haxey has been already mentioned as a flagrant +evidence of his despotic intentions. No other case occurs until the 33rd +year of Henry VI., when Thomas Young, member for Bristol, complained to +the commons, that, "for matters by him showed in the house accustomed for +the commons in the said parliaments, he was therefore taken, arrested, and +rigorously in open wise led to the Tower of London, and there grievously +in great duress long time imprisoned against the said freedom and +liberty;" with much more to the like effect. The commons transmitted this +petition to the lords, and the king "willed that the lords of his council +do and provide for the said suppliant as in their discretions shall be +thought convenient and reasonable." This imprisonment of Young, however, +had happened six years before, in consequence of a motion made by him +that, the king then having no issue, the duke of York might be declared +heir-apparent to the crown. In the present session, when the duke was +protector, he thought it well-timed to prefer his claim to +remuneration.<a name="FNanchor_241_241" id="FNanchor_241_241"></a><a href="#Footnote_241_241" class="fnanchor">[y]</a></p> + +<p><span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span> +There is a remarkable precedent in the 9th of Henry IV., and perhaps the +earliest authority for two eminent maxims of parliamentary law—that the +commons possess an exclusive right of originating money bills, and that +the king ought not to take notice of matters pending in parliament. A +quarrel broke out between the two houses upon this ground; and as we have +not before seen the commons venture to clash openly with their superiors, +the circumstance is for this additional reason worthy of attention. As it +has been little noticed, I shall translate the whole record.</p> + +<p>"Friday the second day of December, which was the last day of the +parliament, the commons came before the king and the lords in parliament, +and there, by command of the king, a schedule of indemnity touching a +certain altercation moved between the lords and commons was read; and on +this it was commanded by our said lord the king that the said schedule +should be entered of record in the roll of parliament; of which schedule +the tenor is as follows: Be it remembered, that on Monday the 21st day of +November, the king our sovereign lord being in the council-chamber in the +abbey of Gloucester,<a name="FNanchor_242_242" id="FNanchor_242_242"></a><a href="#Footnote_242_242" class="fnanchor">[z]</a> +the lords spiritual and temporal for this +present parliament assembled being then in his presence, a debate took +place among them about the state of the kingdom, and its defence to resist +the malice of the enemies who on every side prepare to molest the said +kingdom and its faithful subjects, and how no man can resist this malice, +unless, for the safeguard and defence of his said kingdom, our sovereign +lord the king has some notable aid and subsidy granted to him in his +present parliament. And therefore it was demanded of the said lords by way +of question what aid would be sufficient and requisite in these +circumstances? To which question it was answered by the said lords +severally, that, considering the necessity of the king on one side, and +the poverty of his people on the other, no less aid could be sufficient +than one tenth and a half from cities and towns, and one fifteenth and a +half from all other lay persons; and, besides, to grant a continuance of +the subsidy on wool, woolfells, and +<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> +leather, and of three shillings on +the tun (of wine), and twelve pence on the pound (of other merchandise), +from Michaelmas next ensuing for two years thenceforth. Whereupon, by +command of our said lord the king, a message was sent to the commons of +this parliament to cause a certain number of their body to come before our +said lord the king and the lords, in order to hear and report to their +companions what they should be commanded by our said lord the king. And +upon this the said commons sent into the presence of our said lord the +king and the said lords twelve of their companions; to whom, by command of +our said lord the king, the said question was declared, with the answer by +the said lords severally given to it. Which answer it was the pleasure of +our said lord the king that they should report to the rest of their +fellows, to the end that they might take the shortest course to comply +with the intention of the said lords. Which report being thus made to the +said commons, they were greatly disturbed at it, saying and asserting it +to be much to the prejudice and derogation of their liberties. And after +that our said lord the king had heard this, not willing that anything +should be done at present, or in time to come, that might anywise turn +against the liberty of the estate for which they are come to parliament, +nor against the liberties of the said lords, wills and grants and +declares, by the advice and consent of the said lords, as follows: to wit, +that it shall be lawful for the lords to debate together in this present +parliament, and in every other for time to come, in the king's absence, +concerning the condition of the kingdom, and the remedies necessary for +it. And in like manner it shall be lawful for the commons, on their part, +to debate together concerning the said condition and remedies. Provided +always that neither the lords on their part, nor the commons on theirs, do +make any report to our said lord the king of any grant granted by the +commons, and agreed to by the lords, nor of the communications of the said +grant, before that the said lords and commons are of one accord and +agreement in this matter, and then in manner and form accustomed—that is +to say, by the mouth of the speaker of the said commons for the time +being—to the end that the said lords and commons may have what they +desire (avoir puissent leur gree) of our +<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> +said lord the king. Our said +lord the king willing moreover, by the consent of the said lords, that the +communication had in this present parliament as above be not drawn into +precedent in time to come, nor be turned to the prejudice or derogation of +the liberty of the estate for which the said commons are now come, neither +in this present parliament nor in any other time to come. But wills that +himself and all the other estates should be as free as they were before. +Also, the said last day of parliament, the said speaker prayed our said +lord the king, on the part of the said commons, that he would grant the +said commons that they should depart in as great liberty as other commons +had done before. To which the king answered that this pleased him well, +and that at all times it had been his +desire."<a name="FNanchor_243_243" id="FNanchor_243_243"></a><a href="#Footnote_243_243" class="fnanchor">[a]</a></p> + +<p>Every attentive reader will discover this remarkable passage to illustrate +several points of constitutional law. For hence it may be +perceived—first, that the king was used in those times to be present at +debates of the lords, personally advising with them upon the public +business; which also appears by many other passages on record; and this +practice, I conceive, is not abolished by the king's present declaration, +save as to grants of money, which ought to be of the free will of +parliament, and without that fear or influence which the presence of so +high a person might create: secondly, that it was already the established +law of parliament that the lords should consent to the commons' grant, and +not the commons to the lords'; since it is the inversion of this order +whereof the commons complain, and it is said expressly that grants are +made by the commons, and agreed to by the lords: thirdly, that the lower +house of parliament is not, in proper language, an estate of the realm, +but rather the image and representative of the commons of England; who, +being the third estate, with the nobility and clergy make up and +constitute the people of this kingdom and liege subjects of the +crown.<a name="FNanchor_244_244" id="FNanchor_244_244"></a><a href="#Footnote_244_244" class="fnanchor">[b]</a></p> + +<p><span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> +At the next meeting of parliament, in allusion probably to this +disagreement between the houses, the king told them that the states of +parliament were come together for the common profit of the king and +kingdom, and for unanimity's sake and general consent; and therefore he +was sure the commons would not attempt nor say anything but what should be +fitting and conducive to unanimity; commanding them to meet together and +communicate for the public +service.<a name="FNanchor_245_245" id="FNanchor_245_245"></a><a href="#Footnote_245_245" class="fnanchor">[c]</a></p> + +<p>It was not only in money bills that the originating power was supposed to +reside in the commons. The course of proceedings in parliament, as has +been seen, from the commencement at least of Edward III.'s reign, +<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> was +that the commons presented petitions, which the lords, by themselves, or +with the assistance of the council, having duly considered, the sanction +of the king was notified or withheld. This was so much according to usage, +that, on one occasion, when the commons requested the advice of the other +house on a matter before them, it was answered that the ancient custom and +form of parliament had ever been for the commons to report their own +opinion to the king and lords, and not to the contrary; and the king would +have the ancient and laudable usages of parliament +maintained.<a name="FNanchor_246_246" id="FNanchor_246_246"></a><a href="#Footnote_246_246" class="fnanchor">[d]</a> It is +singular that in the terror of innovation the lords did not discover how +materially this usage of parliament took off from their own legislative +influence. The rule, however, was not observed in succeeding times; bills +originated indiscriminately in either house; and indeed some acts of Henry +V., which do not appear to be grounded on any petition, may be suspected, +from the manner of their insertion in the rolls of parliament, to have +been proposed on the king's part to the +commons.<a name="FNanchor_247_247" id="FNanchor_247_247"></a><a href="#Footnote_247_247" class="fnanchor">[e]</a> But there is one +manifest instance in the 18th of Henry VI., where the king requested the +commons to give their authority to such +regulations<a name="FNanchor_248_248" id="FNanchor_248_248"></a><a href="#Footnote_248_248" class="fnanchor">[f]</a> as +<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> his council +might provide for redressing the abuse of purveyance; to which they +assented.</p> + +<p>If we are to choose constitutional precedents from seasons of tranquillity +rather than disturbance, which surely is the only means of preserving +justice or consistency, but little intrinsic authority can be given to the +following declaration of parliamentary law in the 11th of Richard II.: "In +this parliament (the roll says) all the lords as well spiritual and +temporal there present claimed as their liberty and privilege, that the +great matters moved in this parliament, and to be moved in other +parliaments for time to come, touching the peers of the land, should be +treated, adjudged, and debated according to the course of parliament, and +not by the civil law nor the common law of the land, used in the other +lower courts of the kingdom; which claim, liberty, and privileges, the +king graciously allowed and granted them in full +parliament."<a name="FNanchor_249_249" id="FNanchor_249_249"></a><a href="#Footnote_249_249" class="fnanchor">[g]</a> It +should be remembered that this assertion of paramount privilege was made +in very irregular times, when the king was at the mercy of the duke of +Gloucester and his associates, and that it had a view to the immediate +object of justifying their violent proceedings against the opposite party, +and taking away the restraint of the common law. It stands as a dangerous +rock to be avoided, not a lighthouse to guide us along the channel. The +law of parliament, as determined by regular custom, is incorporated into +our constitution; but not so as to warrant an indefinite, uncontrollable +assumption of power in any case, least of all in judicial procedure, where +the form and the essence of justice are inseparable from each other. And, +in fact, this claim of the lords, whatever gloss Sir E. Coke may put upon +it, was never intended to bear any relation to the privileges of the lower +house. I should not, perhaps, have noticed this passage so strongly if it had not +<span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span> +been made the basis of extravagant assertions as to the +privileges of parliament;<a name="FNanchor_250_250" id="FNanchor_250_250"></a><a href="#Footnote_250_250" class="fnanchor">[h]</a> +the spirit of which exaggerations might not +be ill adapted to the times wherein Sir E. Coke lived, though I think they +produced at several later periods no slight mischief, some consequences of +which we may still have to experience.</p> + +<div class="sidenote">Contested elections how determined.</div> + +<p>The want of all judicial authority, either to issue process or to examine +witnesses, together with the usual shortness of sessions, deprived the +house of commons of what is now considered one of its most fundamental +privileges, the cognizance of disputed elections. Upon a false return by +the sheriff, there was no remedy but through the king or his council. Six +instances only, I believe, occur, during the reigns of the Plantagenet +family, wherein the misconduct or mistake of the sheriff is recorded to +have called for a specific animadversion, though it was frequently the +ground of general complaint, and even of some statutes. The first is in +the 12th of Edward II., when a petition was presented to the council +against a false return for the county of Devon, the petitioner having been +duly elected. It was referred to the court of exchequer to summon the +sheriff before them.<a name="FNanchor_251_251" id="FNanchor_251_251"></a><a href="#Footnote_251_251" class="fnanchor">[i]</a> +The next occurs in the 36th of Edward III., when +a writ was directed to the sheriff of Lancashire, after the dissolution of +parliament, to inquire at the county-court into the validity of the +election; and upon his neglect a second writ issued to the justices of the +peace to satisfy themselves about this in the best manner they could, and +report the truth into chancery. This inquiry after the dissolution was on +account of the wages for attendance, to which the knights unduly returned +could have no pretence.<a name="FNanchor_252_252" id="FNanchor_252_252"></a><a href="#Footnote_252_252" class="fnanchor">[k]</a> +We find a third case in the 7th of Richard +II., when the king took notice that Thomas de Camoys, who was summoned by +writ to the house of peers, had been elected knight for Surrey, and +directed the sheriff to return +another.<a name="FNanchor_253_253" id="FNanchor_253_253"></a><a href="#Footnote_253_253" class="fnanchor">[m]</a> +In the same year the town of +Shaftesbury petitioned the king, lords, and commons against a false return +of the sheriff of Dorset, and prayed them to order remedy. Nothing further +appears respecting this +<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> +petition.<a name="FNanchor_254_254" id="FNanchor_254_254"></a><a href="#Footnote_254_254" class="fnanchor">[n]</a> +This is the first instance of the +commons being noticed in matters of election. But the next case is more +material; in the 5th of Henry IV. the commons prayed the king and lords in +parliament, that, because the writ of summons to parliament was not +sufficiently returned by the sheriff of Rutland, this matter might be +examined in parliament, and in case of default found therein an exemplary +punishment might be inflicted; whereupon the lords sent for the sheriff +and Oneby, the knight returned, as well as for Thorp, who had been duly +elected, and, having examined into the facts of the case, directed the +return to be amended, by the insertion of Thorp's name, and committed the +sheriff to the Fleet till he should pay a fine at the king's +pleasure.<a name="FNanchor_255_255" id="FNanchor_255_255"></a><a href="#Footnote_255_255" class="fnanchor">[o]</a> +The last passage that I can produce is from the roll of 18 +H. VI., where "it is considered by the king, with the advice and assent of +the lords spiritual and temporal," that, whereas no knights have been +returned for Cambridgeshire, the sheriff shall be directed, by another +writ, to hold a court and to proceed to an election, proclaiming that no +person shall come armed, nor any tumultuous proceeding take place; +something of which sort appears to have obstructed the execution of the +first writ. It is to be noticed that the commons are not so much as named +in this entry.<a name="FNanchor_256_256" id="FNanchor_256_256"></a><a href="#Footnote_256_256" class="fnanchor">[p]</a> +But several provisions were made by statute under the +Lancastrian kings, when seats in parliament became much more an object of +competition than before, to check the partiality of the sheriffs in making +undue returns. One act (11 H. IV. c. 1) gives the justices of assise power +to inquire into this matter, and inflicts a penalty of one hundred pounds +on the sheriff. Another (6 H. VI. c. 4) mitigates the rigour of the +former, so far as to permit the sheriff or the knights returned by him to +traverse the inquests before the justices; that is, to be heard in their +own defence, which, it seems, had not been permitted to them. Another (23 +H. VI. c. 14) gives an additional penalty upon false returns to the party +aggrieved. These statutes conspire with many other testimonies to manifest +the rising importance of the house of commons, and the eagerness with +which gentlemen of landed estates +<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> +(whatever might be the case in petty +boroughs) sought for a share in the national representation.</p> + +<div class="sidenote">In whom the right of voting for knights resided.</div> + +<p>Whoever may have been the original voters for county representatives, the +first statute that regulates their election, so far from limiting the +privilege to tenants in capite, appears to place it upon a very large and +democratical foundation. For (as I rather conceive, though not without +much hesitation), not only all freeholders, but all persons whatever +present at the county-court, were declared, or rendered, capable of voting +for the knight of their shire. Such at least seems to be the inference +from the expressions of 7 H. IV. c. 15, "all who are there present, as +well suitors duly summoned for that cause as +others."<a name="FNanchor_257_257" id="FNanchor_257_257"></a><a href="#Footnote_257_257" class="fnanchor">[q]</a> And this +acquires some degree of confirmation from the later statute, 8 H. VI. c. +7, which, reciting that "elections of knights of shires have now of late +been made by very great, outrageous, and excessive number of people +dwelling within the same counties, of the which most part was people of +small substance and of no value," confines the elective franchise to +freeholders of lands or tenements to the value of forty shillings.</p> + +<div class="sidenote">Elections of burgesses.</div> + +<p>The representation of towns in parliament was founded upon two +principles—of consent to public burthens, and of advice in public measures, +<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span> +especially such as related to trade and shipping. Upon both +these accounts it was natural for the kings who first summoned them to +parliament, little foreseeing that such half-emancipated burghers would +ever clip the loftiest plumes of their prerogative, to make these +assemblies numerous, and summon members from every town of consideration +in the kingdom. Thus the writ of 23 E. I. directs the sheriffs to cause +deputies to be elected to a general council from every city, borough, and +trading town. And although the last words are omitted in subsequent writs, +yet their spirit was preserved; many towns having constantly returned +members to parliament by regular summonses, from the sheriffs, which were +no chartered boroughs, nor had apparently any other claim than their +populousness or commerce. These are now called boroughs by +prescription.<a name="FNanchor_258_258" id="FNanchor_258_258"></a><a href="#Footnote_258_258" class="fnanchor">[r]</a></p> + +<p>Besides these respectable towns, there were some of a less eminent figure +which had writs directed to them as ancient demesnes of the crown. During +times of arbitrary taxation the crown had set tallages alike upon its +chartered boroughs and upon its tenants in demesne. When parliamentary +consent became indispensable, the free tenants in ancient demesne, or +rather such of them as inhabited some particular vills, were called to +parliament among the other representatives of the commons. They are +usually specified distinctly from the other classes of representatives in +grants of subsidies throughout the parliaments of the first and second Edwards, +<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> +till, about the beginning of the third's reign, they were +confounded with ordinary +burgesses.<a name="FNanchor_259_259" id="FNanchor_259_259"></a><a href="#Footnote_259_259" class="fnanchor">[s]</a> +This is the foundation of that +particular species of elective franchise incident to what we denominate +burgage tenure; which, however, is not confined to the ancient demesne of +the crown.<a name="FNanchor_260_260" id="FNanchor_260_260"></a><a href="#Footnote_260_260" class="fnanchor">[t]</a></p> + +<div class="sidenote">Power of the sheriff to omit boroughs.</div> + +<p>The proper constituents therefore of the citizens and burgesses in +parliament appear to have been—1. All chartered boroughs, whether they +derived their privileges from the crown, or from a mesne lord, as several +in Cornwall did from Richard king of the +Romans;<a name="FNanchor_261_261" id="FNanchor_261_261"></a><a href="#Footnote_261_261" class="fnanchor">[u]</a> 2. All towns which +were the ancient or the actual demesne of the crown; 3. All considerable +places, though unincorporated, which could afford to defray the expenses +of their representatives, and had a notable interest in the public +welfare. But no parliament ever perfectly corresponded with this theory. +The writ was addressed in general terms to the sheriff, requiring him to +cause two knights to be elected out of the body of the county, two +citizens from every city, and two burgesses from every borough. It rested +altogether upon him to determine what towns should exercise this +franchise; and it is really incredible, with all the carelessness and +ignorance of those times, what frauds the sheriffs ventured to commit in +executing this trust. Though parliaments met almost every year, and there +could be no mistake in so notorious a fact, it was the continual practice +of sheriffs to omit boroughs that had been in recent habit of electing +members, and to return upon the writ that there were no more within their +county. Thus in the 12th of Edward III. the sheriff of Wiltshire, after +returning two citizens for Salisbury, and burgesses for two boroughs, +concludes with these words:—"There are no other cities or boroughs within +my bailiwick." Yet in fact eight other towns had sent members to preceding +parliaments. So in the 6th of Edward II. the sheriff of Bucks declared +that he had no borough within his county except Wycomb; though Wendover, +Agmondesham, and Marlow had twice made returns since that +<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> king's +accession.<a name="FNanchor_262_262" id="FNanchor_262_262"></a><a href="#Footnote_262_262" class="fnanchor">[x]</a> +And from this cause alone it has happened that many towns +called boroughs, and having a charter and constitution as such, have never +returned members to parliament; some of which are now among the most +considerable in England, as Leeds, Birmingham, and +Macclesfield.<a name="FNanchor_263_263" id="FNanchor_263_263"></a><a href="#Footnote_263_263" class="fnanchor">[y]</a></p> + +<p>It has been suggested, indeed, by +Brady,<a name="FNanchor_264_264" id="FNanchor_264_264"></a><a href="#Footnote_264_264" class="fnanchor">[z]</a> +that these returns may not +appear so false and collusive if we suppose the sheriff to mean only that +there were no resident burgesses within these boroughs fit to be returned, +or that the expense of their wages would be too heavy for the place to +support. And no doubt the latter plea, whether implied or not in the +return, was very frequently an inducement to the sheriffs to spare the +smaller boroughs. The wages of knights were four shillings a day, levied +on all freeholders, or at least on all holding by knight-service, within +the county.<a name="FNanchor_265_265" id="FNanchor_265_265"></a><a href="#Footnote_265_265" class="fnanchor">[a]</a> +Those of burgesses were half that +sum;<a name="FNanchor_266_266" id="FNanchor_266_266"></a><a href="#Footnote_266_266" class="fnanchor">[b]</a> +but even this pittance +<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> +was raised with reluctance and difficulty from miserable +burghers, little solicitous about political franchises. Poverty, indeed, +seems to have been accepted as a legal excuse. In the 6th of E. II. the +sheriff of Northumberland returns to the writ of summons that all his +knights are not sufficient to protect the county; and in the 1st of E. +III. that they were too much ravaged by their enemies to send any members +to parliament.<a name="FNanchor_267_267" id="FNanchor_267_267"></a><a href="#Footnote_267_267" class="fnanchor">[c]</a> +The sheriffs of Lancashire, after several returns that +they had no boroughs within their county, though Wigan, Liverpool, and +Preston were such, alleged at length that none ought to be called upon on +account of their poverty. This return was constantly made, from 36 E. III. +to the reign of Henry +VI.<a name="FNanchor_268_268" id="FNanchor_268_268"></a><a href="#Footnote_268_268" class="fnanchor">[d]</a></p> + +<div class="sidenote">Reluctance of boroughs to send members.</div> + +<p>The elective franchise was deemed by the boroughs no privilege or +blessing, but rather, during the chief part of this period, an intolerable +grievance. Where they could not persuade the sheriff to omit sending his +writ to them, they set it at defiance by sending no return. And this +seldom failed to succeed, so that, after one or two refusals to comply, +which brought no punishment upon them, they were left in quiet enjoyment +of their insignificance. The town of Torrington, in Devonshire, went +further, and obtained a charter of exemption from sending burgesses, +grounded upon what the charter asserts to appear on the rolls of chancery, +that it had never been represented before the 21st of E. III. This is +absolutely false, and is a proof how little we can rely upon the veracity +of records, Torrington having made not less than twenty-two returns before +that time. It is curious that in spite of this charter the town sent +members to the two ensuing +<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> +parliaments, and then ceased for +ever.<a name="FNanchor_269_269" id="FNanchor_269_269"></a><a href="#Footnote_269_269" class="fnanchor">[e]</a> +Richard II. gave the inhabitants of Colchester a dispensation from +returning burgesses for five years, in consideration of the expenses they +had incurred in fortifying the +town.<a name="FNanchor_270_270" id="FNanchor_270_270"></a><a href="#Footnote_270_270" class="fnanchor">[f]</a> +But this immunity, from whatever +reason, was not regarded, Colchester having continued to make returns as +before.</p> + +<p>The partiality of sheriffs in leaving out boroughs, which were accustomed +in old time to come to the parliament, was repressed, as far as law could +repress it, by a statute of Richard II., which imposed a fine on them for +such neglect, and upon any member of parliament who should absent himself +from his duty.<a name="FNanchor_271_271" id="FNanchor_271_271"></a><a href="#Footnote_271_271" class="fnanchor">[g]</a> +But it is, I think, highly probable that a great part +of those who were elected from the boroughs did not trouble themselves +with attendance in parliament. The sheriff even found it necessary to take +sureties for their execution of so burthensome a duty, whose names it was +usual, down to the end of the fifteenth century, to endorse upon the writ +along with those of the +elected.<a name="FNanchor_272_272" id="FNanchor_272_272"></a><a href="#Footnote_272_272" class="fnanchor">[h]</a> +This expedient is not likely to have +been very successful; and the small number, comparatively speaking, of +writs for expenses of members for boroughs, which have been published by +Prynne, while those for the knights of shires are almost complete, leads +to a strong presumption that their attendance was very defective. This +statute of Richard II. produced no sensible effect.</p> + +<div class="sidenote">Who the electors in boroughs were.</div> + +<p>By what persons the election of burgesses was usually made is a question +of great obscurity, which is still occasionally debated before committees +of parliament. It appears to have been the common practice for a very few +of the principal members of the corporation to make the election in the +county-court, and their names, as actual electors, are generally returned +upon the writ by the +sheriff.<a name="FNanchor_273_273" id="FNanchor_273_273"></a><a href="#Footnote_273_273" class="fnanchor">[i]</a> +But we cannot surely be warranted by +this to infer that they acted in any other capacity than as deputies of +the whole body, and indeed it is frequently expressed that they chose +<span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span> +such and such persons by the assent of the +community;<a name="FNanchor_274_274" id="FNanchor_274_274"></a><a href="#Footnote_274_274" class="fnanchor">[k]</a> by which word, +in an ancient corporate borough, it seems natural to understand the +freemen participating in its general franchises, rather than the ruling +body, which, in many instances at present, and always perhaps in the +earliest age of corporations, derived its authority by delegation from the +rest. The consent, however, of the inferior freemen we may easily believe +to have been merely nominal; and, from being nominal, it would in many +places come by degrees not to be required at all; the corporation, +specially so denominated, or municipal government, acquiring by length of +usage an exclusive privilege in election of members of parliament, as they +did in local administration. This, at least, appears to me a more probable +hypothesis than that of Dr. Brady, who limits the original right of +election in all corporate boroughs to the aldermen or other capital +burgesses.<a name="FNanchor_275_275" id="FNanchor_275_275"></a><a href="#Footnote_275_275" class="fnanchor">[m]</a></p> + +<div class="sidenote">Members of the house of commons.</div> + +<p>The members of the house of commons, from this occasional disuse of +ancient boroughs as well as from the creation of new ones, underwent some +fluctuation during the period subject to our review. Two hundred citizens +and burgesses sat in the parliament held by Edward I. in his twenty-third +year, the earliest epoch of acknowledged representation. But in the reigns +of Edward III. and his three successors about ninety places, on an +average, returned members, so that we may reckon this part of the commons at one +<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> +hundred and eighty.<a name="FNanchor_276_276" id="FNanchor_276_276"></a><a href="#Footnote_276_276" class="fnanchor">[n]</a> +These, if regular in their duties, might +appear an over-balance for the seventy-four knights who sat with them. But +the dignity of ancient lineage, territorial wealth, and military +character, in times when the feudal spirit was hardly extinct and that of +chivalry at its height, made these burghers vail their heads to the landed +aristocracy. It is pretty manifest that the knights, though doubtless with +some support from the representatives of towns, sustained the chief brunt +of battle against the crown. The rule and intention of our old +constitution was, that each county, city, or borough, should elect +deputies out of its own body, resident among themselves, and consequently +acquainted with their necessities and +grievances.<a name="FNanchor_277_277" id="FNanchor_277_277"></a><a href="#Footnote_277_277" class="fnanchor">[o]</a> +It would be very +interesting to discover at what time, and by what degrees, the practice of +election swerved from this strictness. But I have not been able to trace +many steps of the transition. The number of practising lawyers who sat in +parliament, of which there are several complaints, seems to afford an +inference that it had begun in the reign of Edward III. Besides several +petitions of the commons that none but knights or reputable squires should +be returned for shires, an ordinance was made in the forty-sixth of his +reign that no lawyer practising in the king's court, nor sheriff during +his shrievalty, be returned knight for a county; because these lawyers put +forward many petitions in the name of the commons which only concerned +their clients.<a name="FNanchor_278_278" id="FNanchor_278_278"></a><a href="#Footnote_278_278" class="fnanchor">[p]</a> +This probably was truly alleged, as we may guess from +the vast number of proposals for changing the course of legal process +which fill the rolls during this reign. It is not to be doubted, however, +that many practising lawyers were men of landed estate in their respective +counties.</p> + +<p>An act in the first year of Henry V. directs that none be chosen knights, +citizens, or burgesses, who are not resident within the place for which +they are returned on +<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> +the day of the date of the writ.<a name="FNanchor_279_279" id="FNanchor_279_279"></a><a href="#Footnote_279_279" class="fnanchor">[q]</a> This statute +apparently indicates a point of time when the deviation from the line of +law was frequent enough to attract notice, and yet not so established as +to pass for an unavoidable irregularity. It proceeded, however, from great +and general causes, which new laws, in this instance very fortunately, are +utterly incompetent to withstand. There cannot be a more apposite proof of +the inefficacy of human institutions to struggle against the steady course +of events than this unlucky statute of Henry V., which is almost a +solitary instance in the law of England wherein the principle of desuetude +has been avowedly set up against an unrepealed enactment. I am not aware, +at least, of any other, which not only the house of commons, but the court +of king's bench, has deemed itself at liberty to declare unfit to be +observed.<a name="FNanchor_280_280" id="FNanchor_280_280"></a><a href="#Footnote_280_280" class="fnanchor">[r]</a> +Even at the time when it was enacted, the law had probably, +as such, very little effect. But still the plurality of elections were +made according to ancient usage, as well as statute, out of the +constituent body. The contrary instances were exceptions to the rule; but +exceptions increasing continually, till they subverted the rule itself. +Prynne has remarked that we chiefly find Cornish surnames among the +representatives of Cornwall, and those of northern families among the +returns from the North. Nor do the members for shires and towns seem to +have been much interchanged; the names of the former belonging to the most +ancient families, while those of the latter have a more plebeian +cast.<a name="FNanchor_281_281" id="FNanchor_281_281"></a><a href="#Footnote_281_281" class="fnanchor">[s]</a> +In the reign of Edward IV., and not before, a very few of the +burgesses bear the addition of esquire in the returns, which became +universal in the middle of the succeeding +century.<a name="FNanchor_282_282" id="FNanchor_282_282"></a><a href="#Footnote_282_282" class="fnanchor">[t]</a></p> + +<div class="sidenote">Irregularity of elections.</div> + +<div class="sidenote">Influence of the crown upon them.</div> + +<p><span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> +Even county elections seem in general, at least in the fourteenth century, +to have been ill-attended and left to the influence of a few powerful and +active persons. A petitioner against an undue return in the 12th of Edward +II. complains that, whereas he had been chosen knight for Devon by Sir +William Martin, bishop of Exeter, with the consent of the county, yet the +sheriff had returned +another.<a name="FNanchor_283_283" id="FNanchor_283_283"></a><a href="#Footnote_283_283" class="fnanchor">[u]</a> +In several indentures of a much later +date a few persons only seem to have been concerned in the election, +though the assent of the community be +expressed.<a name="FNanchor_284_284" id="FNanchor_284_284"></a><a href="#Footnote_284_284" class="fnanchor">[x]</a> These +irregularities, which it would be exceedingly erroneous to convert, with +Hume, into lawful customs, resulted from the abuses of the sheriff's +power, which, when parliament sat only for a few weeks with its hands full +of business, were almost sure to escape with impunity. They were sometimes +also countenanced, or rather instigated, by the crown, which, having +recovered in Edward II.'s reign the prerogative of naming the sheriffs, +surrendered by an act of his +father,<a name="FNanchor_285_285" id="FNanchor_285_285"></a><a href="#Footnote_285_285" class="fnanchor">[y]</a> +filled that office with its +creatures, and constantly disregarded the statute forbidding their +continuance beyond a year. Without searching for every passage that might +illustrate the interference of the crown in elections, I will mention two +or three leading instances. When Richard II. was meditating to overturn +the famous commission of reform, he sent for some of the sheriffs, and +required them to permit no knight or burgess to be elected to the next +parliament without the approbation of the king and his council. The +sheriffs replied that the commons would maintain their ancient privilege +of electing their own +representatives.<a name="FNanchor_286_286" id="FNanchor_286_286"></a><a href="#Footnote_286_286" class="fnanchor">[z]</a> +The parliament of 1397, which +attainted his enemies and left the constitution at his mercy, was chosen, +as we are told, by dint of intimidation and +influence.<a name="FNanchor_287_287" id="FNanchor_287_287"></a><a href="#Footnote_287_287" class="fnanchor">[a]</a> Thus also that +of Henry VI., held at Coventry +<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> +in 1460, wherein the duke of York and his +party were attainted, is said to have been unduly returned by the like +means. This is rendered probable by a petition presented to it by the +sheriffs, praying indemnity for all which they had done in relation +thereto contrary to +law.<a name="FNanchor_288_288" id="FNanchor_288_288"></a><a href="#Footnote_288_288" class="fnanchor">[b]</a> +An act passed according to their prayer, and +in confirmation of elections. A few years before, in 1455, a singular +letter under the king's signet is addressed to the sheriffs, reciting that +"we be enfourmed there is busy labour made in sondry wises by certaine +persons for the chesyng of the said knights, ... of which labour we +marvaille greatly, insomuche as it is nothing to the honour of the +laborers, but ayenst their worship; it is also ayenst the lawes of the +lande," with more to that effect; and enjoining the sheriff to let +elections be free and the peace +kept.<a name="FNanchor_289_289" id="FNanchor_289_289"></a><a href="#Footnote_289_289" class="fnanchor">[c]</a> +There was certainly no reason +to wonder that a parliament, which was to shift the virtual sovereignty of +the kingdom into the hands of one whose claims were known to extend much +further, should be the object of tolerably warm contests. Thus in the +Paston letters we find several proofs of the importance attached to +parliamentary elections by the highest +nobility.<a name="FNanchor_290_290" id="FNanchor_290_290"></a><a href="#Footnote_290_290" class="fnanchor">[d]</a></p> + +<div class="sidenote">Constitution of the house of lords.</div> + +<p>The house of lords, as we left it in the reign of Henry III., was entirely +composed of such persons holding lands by barony as were summoned by +particular writ of +parliament.<a name="FNanchor_291_291" id="FNanchor_291_291"></a><a href="#Footnote_291_291" class="fnanchor">[e]</a> +Tenure and summons were both essential +at this time in order to render any one a lord of parliament—the first by +the ancient constitution of our feudal monarchy from the Conquest, the +second by some regulation or usage of doubtful origin, which was +thoroughly established before the conclusion of Henry III.'s reign. This +produced, of course, a very marked difference between the greater and the +lesser or unparliamentary barons. The tenure of the latter, however, still +subsisted, and, though too inconsiderable +<span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span> +to be members of the +legislature, they paid relief as barons, they might be challenged on +juries, and, as I presume, by parity of reasoning, were entitled to trial +by their peerage. These lower barons, or more commonly tenants by parcels +of baronies,<a name="FNanchor_292_292" id="FNanchor_292_292"></a><a href="#Footnote_292_292" class="fnanchor">[f]</a> +may be dimly traced to the latter years of Edward +III.<a name="FNanchor_293_293" id="FNanchor_293_293"></a><a href="#Footnote_293_293" class="fnanchor">[g]</a> +But many of them were successively summoned to parliament, and +thus recovered the former lustre of their rank, while the rest fell +gradually into the station of commoners, as tenants by simple +knight-service.</p> + +<div class="sidenote">Baronial tenure required for lords spiritual.</div> + +<p>As tenure without summons did not entitle any one to the privileges of a +lord of parliament, so no spiritual person at least ought to have been +summoned without baronial tenure. The prior of St. James at Northampton, +having been summoned in the twelfth of Edward II., was discharged upon his +petition, because he held nothing of the king by barony, but only in +frankalmoign. The prior of Bridlington, after frequent summonses, was +finally left out, with an entry made in the roll that he held nothing of +the king. The abbot of Leicester had been called to fifty parliaments; +yet, in the 25th of Edward III., he obtained a charter of perpetual +exemption, reciting that he held no lands or tenements of the crown by +barony or any such service as bound him to attend parliaments or +councils.<a name="FNanchor_294_294" id="FNanchor_294_294"></a><a href="#Footnote_294_294" class="fnanchor">[h]</a> +But great irregularities prevailed in the rolls of +chancery, from which the writs to spiritual and temporal peers were +taken—arising in part, perhaps, from +<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span> +negligence, in part from wilful +perversion; so that many abbots and priors, who like these had no baronial +tenure, were summoned at times and subsequently omitted, of whose actual +exemption we have no record. Out of one hundred and twenty-two abbots and +forty-one priors who at some time or other sat in parliament, but +twenty-five of the former and two of the latter were constantly summoned: +the names of forty occur only once, and those of thirty-six others not, +more than five times.<a name="FNanchor_295_295" id="FNanchor_295_295"></a><a href="#Footnote_295_295" class="fnanchor">[i]</a> +Their want of baronial tenure, in all +probability, prevented the repetition of writs which accident or occasion +had caused to issue.<a name="FNanchor_296_296" id="FNanchor_296_296"></a><a href="#Footnote_296_296" class="fnanchor">[k]</a></p> + +<div class="sidenote">Barons called by writ.</div> + +<p>The ancient temporal peers are supposed to have been intermingled with +persons who held nothing of the crown by barony, but attended in +parliament solely by virtue of the king's prerogative exercised in the +writ of summons.<a name="FNanchor_297_297" id="FNanchor_297_297"></a><a href="#Footnote_297_297" class="fnanchor">[m]</a> +These have been called barons by writ; and it seems +to be denied by no one that, at least under the first three Edwards, there +were some of this description in parliament. But after all the labours of +Dugdale and others in tracing the genealogies of our ancient aristocracy, +it is a problem of much difficulty to distinguish these from the +territorial barons. As the latter honours descended to female heirs, they +passed into new families and new names, so that we can hardly decide of +one summoned for the first time to parliament that he did not inherit the +possession of a feudal barony. Husbands of baronial heiresses were +frequently summoned in their wives' right, but by their own names. +<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> They +even sat after the death of their wives, as tenants by the +courtesy.<a name="FNanchor_298_298" id="FNanchor_298_298"></a><a href="#Footnote_298_298" class="fnanchor">[n]</a> +Again, as lands, though not the subject of frequent transfer, were, +especially before the statute de donis, not inalienable, we cannot +positively assume that all the right heirs of original barons had +preserved those estates upon which their barony had +depended.<a name="FNanchor_299_299" id="FNanchor_299_299"></a><a href="#Footnote_299_299" class="fnanchor">[o]</a> If we +judge, however, by the lists of those summoned, according to the best +means in our power, it will appear, according at least to one of our most +learned investigators of this subject, that the regular barons by tenure +were all along very far more numerous than those called by writ; and that +from the end of Edward III.'s reign no spiritual persons, and few if any +laymen, except peers created by patent, were summoned to parliament who +did not hold territorial +baronies.<a name="FNanchor_300_300" id="FNanchor_300_300"></a><a href="#Footnote_300_300" class="fnanchor">[p]</a></p> + +<p>With respect to those who were indebted for their seats among the lords to +the king's writ, there are two material questions: whether they acquired +an hereditary nobility by virtue of the writ; and, if this be determined +against them, whether they had a decisive or merely a deliberative voice +in the house. Now, for the first question, it seems that, if the writ of +summons conferred an estate of inheritance, it must have done so either by +virtue of its terms or by established construction and precedent. But the +writ contains no words by which such an estate can in law be limited; it +summons the person addressed to attend in parliament in order to give his +advice on the public business, but by no means implies that his advice +will be required of his heirs, or even of himself on any other occasion. +The strongest expression is "vobiscum et <i>cæteris</i> prælatis, magnatibus et +proceribus," which appears to place the party on a sort of level with the +peers. But the words magnates and proceres are used very largely in +ancient language, and, down to the time of Edward III., comprehend the +king's ordinary council, +<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span> +as well as his barons. Nor can these, at any +rate, be construed to pass an inheritance, which in the grant of a private +person, much more of a king, would require express words of limitation. In +a single instance, the writ of summons to Sir Henry de Bromflete (27 H. +VI.), we find these remarkable words: Volumus enim vos et hæredes vestros +masculos de corpore vestro legitimè exeuntes barones de Vescy existere. +But this Sir Henry de Bromflete was the lineal heir of the ancient barony +de Vesci.<a name="FNanchor_301_301" id="FNanchor_301_301"></a><a href="#Footnote_301_301" class="fnanchor">[q]</a> +And if it were true that the writ of summons conveyed a +barony of itself, there seems no occasion to have introduced these +extraordinary words of creation or revival. Indeed there is less necessity +to urge these arguments from the nature of the writ, because the modern +doctrine, which is entirely opposite to what has here been suggested, +asserts that no one is ennobled by the mere summons unless he has rendered +it operative by taking his seat in parliament; distinguishing it in this +from a patent of peerage, which requires no act of the party for its +completion.<a name="FNanchor_302_302" id="FNanchor_302_302"></a><a href="#Footnote_302_302" class="fnanchor">[r]</a> +But this distinction could be supported by nothing except +long usage. If, however, we recur to the practice of former times, we +shall find that no less than ninety-eight laymen were summoned once only +to parliament, none of their names occurring afterwards; and fifty others +two, three, or four times. Some were constantly summoned during their +lives, none of whose posterity ever attained that +honour.<a name="FNanchor_303_303" id="FNanchor_303_303"></a><a href="#Footnote_303_303" class="fnanchor">[s]</a> The course +of proceeding, therefore, previous to the accession of Henry VII., by no +means warrants the doctrine which was held in the latter end of +Elizabeth's reign,<a name="FNanchor_304_304" id="FNanchor_304_304"></a><a href="#Footnote_304_304" class="fnanchor">[t]</a> +and has since been too fully established by +repeated precedents to be shaken by any reasoning. The foregoing observations +<span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span> +relate to the more ancient history of our constitution, and +to the plain matter of fact as to those times, without considering what +political cause there might be to prevent the crown from introducing +occasional counsellors into the house of +lords.<a name="FNanchor_305_305" id="FNanchor_305_305"></a><a href="#Footnote_305_305" class="fnanchor">[u]</a></p> + +<div class="sidenote">Bannerets summoned to house of lords.</div> + +<p>It is manifest by many passages in these records that bannerets were +frequently summoned to the upper house of parliament, constituting a +distinct class inferior to barons, though generally named together, and +ultimately confounded, with +them.<a name="FNanchor_306_306" id="FNanchor_306_306"></a><a href="#Footnote_306_306" class="fnanchor">[x]</a> +Barons are distinguished by the +appellation of Sire, bannerets have only that of Monsieur, as le Sire de +Berkeley, le Sire de Fitzwalter, Monsieur Richard Scrop, Monsieur Richard +Stafford. In the 7th of Richard II. Thomas Camoys having been elected +knight of the shire for Surrey, the king addresses a writ to the sheriff, +directing him to proceed to a new election, cum hujusmodi banneretti ante +hæc tempora in milites comitatus ratione alicujus parliamenti eligi minime +consueverunt. Camoys was summoned by writ to the same parliament. It has +been inferred from hence by Selden that he was a baron, and that the word +banneret is merely synonymous.<a name="FNanchor_307_307" id="FNanchor_307_307"></a><a href="#Footnote_307_307" class="fnanchor">[y]</a> +But this is contradicted by too many +passages. Bannerets had so far been considered as commoners some years +before that they could not be challenged on +juries.<a name="FNanchor_308_308" id="FNanchor_308_308"></a><a href="#Footnote_308_308" class="fnanchor">[z]</a> +But they seem to have been more highly estimated at the date of this writ.</p> + +<p><span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span> +The distinction, however, between barons and bannerets died away by +degrees. In the 2nd of Henry +VI.<a name="FNanchor_309_309" id="FNanchor_309_309"></a><a href="#Footnote_309_309" class="fnanchor">[a]</a> +Scrop of Bolton is called le Sire de +Scrop; a proof that he was then reckoned among the barons. The bannerets +do not often appear afterwards by that appellation as members of the upper +house. Bannerets, or, as they are called, banrents, are enumerated among +the orders of Scottish nobility in the year 1428, when the statute +directing the common lairds or tenants in capite to send representatives +was enacted; and a modern historian justly calls them an intermediate +order between the peers and +lairds.<a name="FNanchor_310_310" id="FNanchor_310_310"></a><a href="#Footnote_310_310" class="fnanchor">[b]</a> +Perhaps a consideration of these +facts, which have frequently been overlooked, may tend in some measure to +explain the occasional discontinuance, or sometimes the entire cessation, +of writs of summons to an individual or his descendants; since we may +conceive that bannerets, being of a dignity much inferior to that of +barons, had no such inheritable nobility in their blood as rendered their +parliamentary privileges a matter of right. But whether all those who +without any baronial tenure received their writs of summons to parliament +belonged to the order of bannerets I cannot pretend to affirm; though some +passages in the rolls might rather lead to such a +supposition.<a name="FNanchor_311_311" id="FNanchor_311_311"></a><a href="#Footnote_311_311" class="fnanchor">[c]</a></p> + +<p>The second question relates to the right of suffrage possessed by these +temporary members of the upper house. It might seem plausible certainly to +conceive that the real and ancient aristocracy would not permit their +powers to be impaired by numbering the votes of such as the king might +please to send among them, however they might allow them to assist in +their debates. But I am much more inclined to suppose that they were +<span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span> in +all respects on an equality with other peers during their actual +attendance in parliament. For,—1. They are summoned by the same writ as +the rest, and their names are confused among them in the lists; whereas +the judges and ordinary counsellors are called by a separate writ, +vobiscum et cæteris de consilio nostro, and their names are entered after +those of the peers.<a name="FNanchor_312_312" id="FNanchor_312_312"></a><a href="#Footnote_312_312" class="fnanchor">[d]</a> +2. Some, who do not appear to have held +land-baronies, were constantly summoned from father to son, and thus +became hereditary lords of parliament through a sort of prescriptive +right, which probably was the foundation of extending the same privilege +afterwards to the descendants of all who had once been summoned. There is +no evidence that the family of Scrope, for example, which was eminent +under Edward III. and subsequent kings, and gave rise to two branches, the +lords of Bolton and Masham, inherited any territorial +honour.<a name="FNanchor_313_313" id="FNanchor_313_313"></a><a href="#Footnote_313_313" class="fnanchor">[e]</a> 3. It +is very difficult to obtain any direct proof as to the right of voting, +because the rolls of parliament do not take notice of any debates; but +there happens to exist one remarkable passage in which the suffrages of +the lords are individually specified. In the first parliament of Henry IV. +they were requested by the earl of Northumberland to declare what should +be done with the late king Richard. The lords +<span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span> +then present agreed that he +should be detained in safe custody; and on account of the importance of +this matter it seems to have been thought necessary to enter their names +upon the roll in these words:—The names of the lords concurring in their +answer to the said question here follow; to wit, the archbishop of +Canterbury and fourteen other bishops; seven abbots; the prince of Wales, +the duke of York, and six earls; nineteen barons, styled thus—le Sire de +Roos, or le Sire de Grey de Ruthyn. Thus far the entry has nothing +singular; but then follow these nine names: Monsieur Henry Percy, Monsieur +Richard Scrop, le Sire Fitz-hugh, le Sire de Bergeveny, le Sire de Lomley, +le Baron de Greystock, le Baron de Hilton, Monsieur Thomas Erpyngham, +chamberlayn, Monsieur Mayhewe Gournay. Of these nine five were undoubtedly +barons, from whatever cause misplaced in order. Scrop was summoned by +writ; but his title of Monsieur, by which he is invariably denominated, +would of itself create a strong suspicion that he was no baron, and in +another place we find him reckoned among the bannerets. The other three do +not appear to have been summoned, their writs probably being lost. One of +them, Sir Thomas Erpyngham, a statesman well known in the history of those +times, is said to have been a +banneret;<a name="FNanchor_314_314" id="FNanchor_314_314"></a><a href="#Footnote_314_314" class="fnanchor">[f]</a> +certainly he was not a baron. +It is not unlikely that the two others, Henry Percy (Hotspur) and Gournay, +an officer of the household, were also bannerets; they cannot at least be +supposed to be barons, neither were they ever summoned to any subsequent +parliament. Yet in the only record we possess of votes actually given in +the house of lords they appear to have been reckoned among the +rest.<a name="FNanchor_315_315" id="FNanchor_315_315"></a><a href="#Footnote_315_315" class="fnanchor">[g]</a></p> + +<div class="sidenote">Creation of peers by statute.</div> + +<p>The next method of conferring an honour of peerage was by creation in +parliament. This was adopted by Edward III. in several instances, though +always, I believe, for the higher titles of duke or earl. It is laid down +by lawyers that whatever the king is said in an ancient record to have +done in full parliament must be taken to have proceeded from the whole +legislature. As a question of fact, indeed, it might be doubted whether, +in many proceedings +<span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span> +where this expression is used, and especially in the +creation of peers, the assent of the commons was specifically and +deliberately given. It seems hardly consonant to the circumstances of +their order under Edward III. to suppose their sanction necessary in what +seemed so little to concern their interest. Yet there is an instance in +the fortieth year of that prince where the lords individually, and the +commons with one voice, are declared to have consented, at the king's +request, that the lord de Coucy, who had married his daughter, and was +already possessed of estates in England, might be raised to the dignity of +an earl, whenever the king should determine what earldom he would confer +upon him.<a name="FNanchor_316_316" id="FNanchor_316_316"></a><a href="#Footnote_316_316" class="fnanchor">[h]</a> +Under Richard II. the marquisate of Dublin is granted to +Vere by full consent of all the estates. But this instrument, besides the +unusual name of dignity, contained an extensive jurisdiction and authority +over Ireland.<a name="FNanchor_317_317" id="FNanchor_317_317"></a><a href="#Footnote_317_317" class="fnanchor">[i]</a> +In the same reign Lancaster was made duke of Guienne, +and the duke of York's son created earl of Rutland, to hold during his +father's life. The consent of the lords and commons is expressed in their +patents, and they are entered upon the roll of +parliament.<a name="FNanchor_318_318" id="FNanchor_318_318"></a><a href="#Footnote_318_318" class="fnanchor">[k]</a> Henry V. +created his brothers dukes of Bedford and Gloucester by request of the +lords and commons.<a name="FNanchor_319_319" id="FNanchor_319_319"></a><a href="#Footnote_319_319" class="fnanchor">[m]</a> +But the patent of Sir John Cornwall, in the tenth +of Henry VI., declares him to be made lord Fanhope, "by consent of the +lords, in the presence of the three estates of parliament;" as if it were +designed to show that the commons had not a legislative voice in the +creation of peers.<a name="FNanchor_320_320" id="FNanchor_320_320"></a><a href="#Footnote_320_320" class="fnanchor">[n]</a></p> + +<div class="sidenote">And by patent.</div> + +<p>The mention I have made of creating peers by act of parliament has partly +anticipated the modern form of letters patent, with which the other was +nearly allied. The first instance of a barony conferred by patent was in +the tenth year of Richard II., when Sir John Holt, a judge of the Common +Pleas, was created lord Beauchamp of Kidderminster. Holt's patent, +however, passed while Richard was endeavouring to act in an arbitrary +manner; and in fact he never sat in parliament, having been attainted in +that of the next year by the name of Sir John Holt. In a number of +subsequent patents down to the reign of Henry VII. +<span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span> the assent of +parliament is expressed, though it frequently happens that no mention of +it occurs in the parliamentary roll. And in some instances the roll speaks +to the consent of parliament where the patent itself is +silent.<a name="FNanchor_321_321" id="FNanchor_321_321"></a><a href="#Footnote_321_321" class="fnanchor">[o]</a></p> + +<div class="sidenote">Clergy summoned to attend parliament.</div> + +<p>It is now perhaps scarcely known by many persons not unversed in the +constitution of their country, that, besides the bishops and baronial +abbots, the inferior clergy were regularly summoned at every parliament. +In the writ of summons to a bishop he is still directed to cause the dean +of his cathedral church, the archdeacon of his diocese, with one proctor +from the chapter of the former, and two from the body of his clergy, to +attend with him at the place of meeting. This might, by an inobservant +reader, be confounded with the summons to the convocation, which is +composed of the same constituent parts, and, by modern usage, is made to +assemble on the same day. But it may easily be distinguished by this +difference—that the convocation is provincial, and summoned by the +metropolitans of Canterbury and York; whereas the clause commonly +denominated præmunientes (from its first word) in the writ to each bishop +proceeds from the crown, and enjoins the attendance of the clergy at the +national council of +parliament.<a name="FNanchor_322_322" id="FNanchor_322_322"></a><a href="#Footnote_322_322" class="fnanchor">[p]</a></p> + +<p>The first unequivocal instance of representatives appearing for the lower +clergy is in the year 1255, when they are expressly named by the author of +the Annals of Burton.<a name="FNanchor_323_323" id="FNanchor_323_323"></a><a href="#Footnote_323_323" class="fnanchor">[q]</a> +They preceded, therefore, by a few years the +house of commons; but the introduction of each was founded upon the same +principle. The +<span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span> +king required the clergy's money, but dared not take it +without their consent.<a name="FNanchor_324_324" id="FNanchor_324_324"></a><a href="#Footnote_324_324" class="fnanchor">[r]</a> +In the double parliament, if so we may call +it, summoned in the eleventh of Edward I. to meet at Northampton and York, +and divided according to the two ecclesiastical provinces, the proctors of +chapters for each province, but not those of the diocesan clergy, were +summoned through a royal writ addressed to the archbishops. Upon account +of the absence of any deputies from the lower clergy these assemblies +refused to grant a subsidy. The proctors of both descriptions appear to +have been summoned by the præmunientes clause in the 22nd, 23rd, 24th, +28th, and 35th years of the same king; but in some other parliaments of +his reign the præmunientes clause is +omitted.<a name="FNanchor_325_325" id="FNanchor_325_325"></a><a href="#Footnote_325_325" class="fnanchor">[s]</a> +The same irregularity +continued under his successor; and the constant usage of inserting this +clause in the bishop's writ is dated from the twenty-eighth of Edward +III.<a name="FNanchor_326_326" id="FNanchor_326_326"></a><a href="#Footnote_326_326" class="fnanchor">[t]</a></p> + +<p>It is highly probable that Edward I., whose legislative mind was engaged +in modelling the constitution on a comprehensive scheme, designed to +render the clergy an effective branch of parliament, however their +continual resistance may have defeated the accomplishment of this +intention.<a name="FNanchor_327_327" id="FNanchor_327_327"></a><a href="#Footnote_327_327" class="fnanchor">[u]</a> +We find an entry upon the roll of his parliament at +Carlisle, containing a list of all the proctors deputed to it by the +several dioceses of the kingdom. This may be reckoned a clear proof of +their parliamentary attendance during his reign under the præmunientes +clause; since the province of Canterbury could not have been present in +convocation at a city beyond its +limits.<a name="FNanchor_328_328" id="FNanchor_328_328"></a><a href="#Footnote_328_328" class="fnanchor">[x]</a> +And indeed, if we were to +found our judgment merely on the language used in these writs, it would be +hard to resist a very strange paradox, that the clergy were not only one +of the three estates of the realm, but as essential a member of the +legislature by their representatives as the +commons.<a name="FNanchor_329_329" id="FNanchor_329_329"></a><a href="#Footnote_329_329" class="fnanchor">[y]</a> +They are summoned +<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> +in the earliest year extant (23 E. I.) ad tractandum, ordinandum +et faciendum nobiscum, et cum cæteris prælatis, proceribus, ac aliis +incolis regni nostri; in that of the next year, ad ordinandum de +quantitate et modo subsidii; in that of the twenty-eighth, ad faciendum et +consentiendum his, quæ tunc de communi consilio ordinari contigerit. In +later times it ran sometimes ad faciendum et consentiendum, sometimes only +ad consentiendum; which, from the fifth of Richard II., has been the term +invariably adopted.<a name="FNanchor_330_330" id="FNanchor_330_330"></a><a href="#Footnote_330_330" class="fnanchor">[z]</a> +Now, as it is usual to infer from the same words, +when introduced into the writs for election of the commons, that they +possessed an enacting power, implied in the words ad faciendum, or at +least to deduce the necessity of their assent from the words ad +consentiendum, it should seem to follow that the clergy were invested, as +a branch of the parliament, with rights no less extensive. It is to be +considered how we can reconcile these apparent attributes of political +power with the unquestionable facts that almost all laws, even while they +continued to attend, were passed without their concurrence, and that, +after some time, they ceased altogether to comply with the +writ.<a name="FNanchor_331_331" id="FNanchor_331_331"></a><a href="#Footnote_331_331" class="fnanchor">[a]</a></p> + +<p>The solution of this difficulty can only be found in that estrangement +from the common law and the temporal courts which the clergy throughout +Europe were disposed to effect. In this country their ambition defeated +its own ends; and while they endeavoured by privileges and immunities to +separate themselves from the people, they did not perceive that the line +of demarcation thus strongly traced would cut them off from the sympathy +of common interests. Everything which they could call of ecclesiastical +cognizance was drawn into their own courts; while the administration of what +<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span> +they contemned as a barbarous system, the temporal law of the land, +fell into the hands of lay judges. But these were men not less subtle, not +less ambitious, not less attached to their profession than themselves; and +wielding, as they did in the courts of Westminster, the delegated sceptre +of judicial sovereignty, they soon began to control the spiritual +jurisdiction, and to establish the inherent supremacy of the common law. +From this time an inveterate animosity subsisted between the two courts, +the vestiges of which have only been effaced by the liberal wisdom of +modern ages. The general love of the common law, however, with the great +weight of its professors in the king's council and in parliament, kept the +clergy in surprising subjection. None of our kings after Henry III. were +bigots; and the constant tone of the commons serves to show that the +English nation was thoroughly averse to ecclesiastical influence, whether +of their own church or the see of Rome.</p> + +<p>It was natural, therefore, to withstand the interference of the clergy +summoned to parliament in legislation, as much as that of the spiritual +court in temporal jurisdiction. With the ordinary subjects, indeed, of +legislation they had little concern. The oppressions of the king's +purveyors, or escheators, or officers of the forests, the abuses or +defects of the common law, the regulations necessary for trading towns and +seaports, were matters that touched them not, and to which their consent +was never required. And, as they well knew there was no design in +summoning their attendance but to obtain money, it was with great +reluctance that they obeyed the royal writ, which was generally obliged to +be enforced by an archiepiscopal +mandate.<a name="FNanchor_332_332" id="FNanchor_332_332"></a><a href="#Footnote_332_332" class="fnanchor">[b]</a> +Thus, instead of an +assembly of deputies from an estate of the realm, they became a synod or +convocation. And it seems probable that in most, if not all, instances +where the clergy are said in the roll of parliament to have presented +their petitions, or are otherwise mentioned as a deliberative body, we +should suppose the convocation +<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> +alone of the province of Canterbury to be +intended.<a name="FNanchor_333_333" id="FNanchor_333_333"></a><a href="#Footnote_333_333" class="fnanchor">[c]</a> +For that of York seems to have been always considered as +inferior, and even ancillary, to the greater province, voting subsidies, +and even assenting to canons, without deliberation, in compliance with the example of +Canterbury;<a name="FNanchor_334_334" id="FNanchor_334_334"></a><a href="#Footnote_334_334" class="fnanchor">[d]</a> +the convocation of which province consequently +assumed the importance of a national council. But in either point of view +the proceedings of this ecclesiastical assembly, collateral in a certain +sense to parliament, yet very intimately connected with it, whether +sitting by virtue of the præmunientes clause or otherwise, deserve some +notice in a constitutional history.</p> + +<p>In the sixth year of Edward III. the proctors of the clergy are specially +mentioned as present at the speech pronounced by the king's commissioner, +and retired, along with the prelates, to consult together upon the +business submitted to their deliberation. They proposed accordingly a +sentence of excommunication against disturbers of the peace, which was +assented to by the lords and commons. The clergy are said afterwards to +have had leave, as well as the knights, citizens, and burgesses, to return +to their homes; the prelates and peers continuing with the +king.<a name="FNanchor_335_335" id="FNanchor_335_335"></a><a href="#Footnote_335_335" class="fnanchor">[e]</a> This +appearance of the clergy in full parliament is not, perhaps, so decisively +proved by any later record. But in the eighteenth of the same reign +several petitions of the clergy are granted by the king and his council, +entered on the roll of parliament, and even the statute roll, and in some +respects are still part of our +law.<a name="FNanchor_336_336" id="FNanchor_336_336"></a><a href="#Footnote_336_336" class="fnanchor">[f]</a> +To these it seems highly probable +that the commons gave no assent; and they may be reckoned among the other +infringements of their legislative rights. It is remarkable that in the +same parliament the commons, as if apprehensive of what was in +preparation, besought the king that no petition of the clergy might +<span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span> be +granted till he and his council should have considered whether it would +turn to the prejudice of the lords or +commons.<a name="FNanchor_337_337" id="FNanchor_337_337"></a><a href="#Footnote_337_337" class="fnanchor">[g]</a></p> + +<p>A series of petitions from the clergy, in the twenty-fifth of Edward. +III., had not probably any real assent of the commons, though it is once +mentioned in the enacting words, when they were drawn into a +statute.<a name="FNanchor_338_338" id="FNanchor_338_338"></a><a href="#Footnote_338_338" class="fnanchor">[h]</a> +Indeed the petitions correspond so little with the general sentiment of +hostility towards ecclesiastical privileges manifested by the lower house +of parliament, that they would not easily have obtained its acquiescence. +The convocation of the province of Canterbury presented several petitions +in the fiftieth year of the same king, to which they received an assenting +answer; but they are not found in the statute-book. This, however, +produced the following remonstrance from the commons at the next +parliament: "Also the commons beseech their lord the king, that no statute +nor ordinance be made at the petition of the clergy, unless by assent of +your commons; and that your commons be not bound by any constitutions +which they make for their own profit without the commons' assent. For they +will not be bound by any of your statutes or ordinances made without their +assent."<a name="FNanchor_339_339" id="FNanchor_339_339"></a><a href="#Footnote_339_339" class="fnanchor">[i]</a> +The king evaded a direct answer to this petition. But the +province of Canterbury did not the less present their own grievances to +the king in that parliament, and two among the statutes of the year seem +to be founded upon no other +authority.<a name="FNanchor_340_340" id="FNanchor_340_340"></a><a href="#Footnote_340_340" class="fnanchor">[k]</a></p> + +<p>In the first session of Richard II. the prelates and clergy of both +provinces are said to have presented their schedule of petitions which +appear upon the roll, and three of which are the foundation of statutes +unassented to in all probability by the +commons.<a name="FNanchor_341_341" id="FNanchor_341_341"></a><a href="#Footnote_341_341" class="fnanchor">[m]</a> If the clergy of +both provinces were actually present, as is here asserted, it must of +course have been as a house of parliament, and not of convocation. It +rather seems, so far as we +<span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span> +can trust to the phraseology of records, that +the clergy sat also in a national assembly under the king's writ in the +second year of the same +king.<a name="FNanchor_342_342" id="FNanchor_342_342"></a><a href="#Footnote_342_342" class="fnanchor">[n]</a> +Upon other occasions during the same +reign, where the representatives of the clergy are alluded to as a +deliberative body, sitting at the same time with the parliament, it is +impossible to ascertain its constitution; and, indeed, even from those +already cited we cannot draw any positive +inference.<a name="FNanchor_343_343" id="FNanchor_343_343"></a><a href="#Footnote_343_343" class="fnanchor">[o]</a> But whether in +convocation or in parliament, they certainly formed a legislative council +in ecclesiastical matters by the advice and consent of which alone, +without that of the commons (I can say nothing as to the lords), Edward +III. and even Richard II. enacted laws to bind the laity. I have mentioned +in a different place a still more conspicuous instance of this assumed +prerogative; namely, the memorable statute against heresy in the second of +Henry IV.; which can hardly be deemed anything else than an infringement +of the rights of parliament, more clearly established at that time than at +the accession of Richard II. Petitions of the commons relative to +spiritual matters, however frequently proposed, in few or no instances +obtained the king's assent +<span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span> +so as to pass into statutes, unless approved +by the convocation.<a name="FNanchor_344_344" id="FNanchor_344_344"></a><a href="#Footnote_344_344" class="fnanchor">[p]</a> +But, on the other hand, scarcely any temporal +laws appear to have passed by the concurrence of the clergy. Two instances +only, so far as I know, are on record: the parliament held in the eleventh +of Richard II. is annulled by that in the twenty-first of his reign, "with +the assent of the lords spiritual and temporal, <i>and the proctors of the +clergy</i>, and the commons;"<a name="FNanchor_345_345" id="FNanchor_345_345"></a><a href="#Footnote_345_345" class="fnanchor">[q]</a> +and the statute entailing the crown on the +children of Henry IV. is said to be enacted on the petition of the +prelates, nobles, clergy, and +commons.<a name="FNanchor_346_346" id="FNanchor_346_346"></a><a href="#Footnote_346_346" class="fnanchor">[r]</a> +Both these were stronger +exertions of legislative authority than ordinary acts of parliament, and +were very likely to be questioned in succeeding times.</p> + +<div class="sidenote">Jurisdiction of the king's council.</div> + +<p>The supreme judicature, which had been exercised by the king's court, was +diverted, about the reign of John, into three channels; the tribunals of +King's Bench, Common Pleas, and the +Exchequer.<a name="FNanchor_347_347" id="FNanchor_347_347"></a><a href="#Footnote_347_347" class="fnanchor">[s]</a> +These became the +regular fountains of justice, which soon almost absorbed the provincial +jurisdictions of the sheriff and lord of manor. But the original +institution, having been designed for ends of state, police, and revenue, +full as much as for the determination of private suits, still preserved +the most eminent parts of its authority. For the king's ordinary or privy +council, which is the usual style from the reign of Edward I., seems to +have been no other than the king's court (curia regis) of older times, +being composed of the same persons, and having, in a principal degree, the +same subjects of deliberation. It consisted of the chief ministers; as the +chancellor, treasurer, lord steward, lord admiral, lord marshal, the +keeper of the privy seal, the chamberlain, treasurer, and comptroller of +the household, the chancellor of the exchequer, the master of the +wardrobe; and of the judges, king's serjeant, and attorney-general, the +master of the rolls, and justices in eyre, who at that time were not the +same as the judges +<span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span> +at Westminster. When all these were called together, +it was a full council; but where the business was of a more contracted +nature, those only who were fittest to advise were summoned; the +chancellor and judges for matters of law; the officers of state for what +concerned the revenue or +household.<a name="FNanchor_348_348" id="FNanchor_348_348"></a><a href="#Footnote_348_348" class="fnanchor">[t]</a></p> + +<p>The business of this council, out of parliament, may be reduced to two +heads; its deliberative office as a council of advice, and its decisive +power of jurisdiction. With respect to the first, it obviously +comprehended all subjects of political deliberation, which were usually +referred to it by the king: this being in fact the administration or +governing council of state, the distinction of a cabinet being introduced +in comparatively modern times. But there were likewise a vast number of +petitions continually presented to the council, upon which they proceeded +no further than to sort, as it were, and forward them by endorsement to +the proper courts, or advise the suitor what remedy he had to seek. Thus +some petitions are answered, "this cannot be done without a new law;" some +were turned over to the regular court, as the chancery or king's bench; +some of greater moment were endorsed to be heard "before the great +council;" some, concerning the king's interest, were referred to the +chancery, or select persons of the council.</p> + +<p>The coercive authority exercised by this standing council of the king was +far more important. It may be divided into acts, legislative and judicial. +As for the first, many ordinances were made in council; sometimes upon +request of the commons in parliament, who felt themselves better qualified +to state a grievance than a remedy; sometimes without any pretence, unless +the usage of government, in the infancy of our constitution, +<span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span> may be +thought to afford one. These were always of a temporary or partial nature, +and were considered as regulations not sufficiently important to demand a +new statute. Thus, in the second year of Richard II., the council, after +hearing read the statute-roll of an act recently passed, confirming a +criminal jurisdiction in certain cases upon justices of the peace, +declared that the intention of parliament, though not clearly expressed +therein, had been to extend that jurisdiction to certain other cases +omitted, which accordingly they cause to be inserted in the commissions +made to these justices under the great +seal.<a name="FNanchor_349_349" id="FNanchor_349_349"></a><a href="#Footnote_349_349" class="fnanchor">[u]</a> +But they frequently so +much exceeded what the growing spirit of public liberty would permit, that +it gave rise to complaint in parliament. The commons petition in 13 R. II. +that "neither the chancellor nor the king's council, after the close of +parliament, may make any ordinance against the common law, or the ancient +customs of the land, or the statutes made heretofore or to be made in this +parliament; but that the common law have its course for all the people, +and no judgment be rendered without due legal process." The king answers, +"Let it be done as has been usual heretofore, saving the prerogative; and +if any one is aggrieved, let him show it specially, and right shall be +done him."<a name="FNanchor_350_350" id="FNanchor_350_350"></a><a href="#Footnote_350_350" class="fnanchor">[x]</a> +This unsatisfactory answer proves the arbitrary spirit in +which Richard was determined to govern.</p> + +<p>The judicial power of the council was in some instances founded upon +particular acts of parliament, giving it power to hear and determine +certain causes. Many petitions likewise were referred to it from +parliament, especially where they were left unanswered by reason of a +dissolution. But, independently of this delegated authority, it is certain +that the king's council did anciently exercise, as well out of parliament +as in it, a very great jurisdiction, both in causes criminal and civil. +Some, however, have contended, that whatever they did in this respect was +illegal, and an encroachment upon the common law and Magna Charta. And be +the common law what it may, it seems an indisputable violation of the +charter in its most admirable and essential article, to drag men in +questions of their freehold or liberty before a +<span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span> +tribunal which neither +granted them a trial by their peers nor always respected the law of the +land. Against this usurpation the patriots of those times never ceased to +lift their voices. A statute of the fifth year of Edward III. provides +that no man shall be attached, nor his property seized into the king's +hands, against the form of the great charter and the law of the land. In +the twenty-fifth of the same king it was enacted, that "none shall be +taken by petition or suggestion to the king or his council, unless it be +by indictment or presentment, or by writ original at the common law, nor +shall be put out of his franchise or freehold, unless he be duly put to +answer, and forejudged of the same by due course of +law."<a name="FNanchor_351_351" id="FNanchor_351_351"></a><a href="#Footnote_351_351" class="fnanchor">[y]</a> This was +repeated in a short act of the twenty-eighth of his +reign;<a name="FNanchor_352_352" id="FNanchor_352_352"></a><a href="#Footnote_352_352" class="fnanchor">[z]</a> but both, +in all probability, were treated with neglect; for another was passed some +years afterwards, providing that no man shall be put to answer without +presentment before justices, or matter of record, or by due process and +writ original according to the old law of the land. The answer to the +petition whereon this statute is grounded, in the parliament-roll, +expressly declares this to be an article of the great +charter.<a name="FNanchor_353_353" id="FNanchor_353_353"></a><a href="#Footnote_353_353" class="fnanchor">[a]</a> +Nothing, however, would prevail on the council to surrender so eminent a +power, and, though usurped, yet of so long a continuance. Cases of +arbitrary imprisonment frequently occurred, and were remonstrated against +by the commons. The right of every freeman in that cardinal point was as +undubitable, legally speaking, as at +<span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span> +this day; but the courts of law were +afraid to exercise their remedial functions in defiance of so powerful a +tribunal. After the accession of the Lancastrian family, these, like other +grievances, became rather less frequent but the commons remonstrate +several times, even in the minority of Henry VI., against the council's +interference in matters cognizable at common +law.<a name="FNanchor_354_354" id="FNanchor_354_354"></a><a href="#Footnote_354_354" class="fnanchor">[b]</a> In these later +times the civil jurisdiction of the council was principally exercised in +conjunction with the chancery, and accordingly they are generally named +together in the complaint. The chancellor having the great seal in his +custody, the council usually borrowed its process from his court. This was +returnable into chancery even where the business was depending before the +council. Nor were the two jurisdictions less intimately allied in their +character, each being of an equitable nature; and equity, as then +practised, being little else than innovation and encroachment on the +course of law. This part, long since the most important of the +chancellor's judicial function, cannot be traced beyond the time of +Richard II., when, the practice of feoffments to uses having been +introduced, without any legal remedy to secure the cestui que use, or +usufructuary, against his feoffees, the court of chancery undertook to +enforce this species of contract by process of its +own.<a name="FNanchor_355_355" id="FNanchor_355_355"></a><a href="#Footnote_355_355" class="fnanchor">[c]</a></p> + +<p>Such was the nature of the king's ordinary council in itself, as the organ +of his executive sovereignty, and such the jurisdiction which it +habitually exercised. But +<span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span> +it is also to be considered in its relation to +the parliament, during whose session, either singly or in conjunction with +the lords' house, it was particularly conspicuous. The great officers of +state, whether peers or not, the judges, the king's serjeant, and +attorney-general, were, from the earliest times, as the latter still +continue to be, summoned by special writs to the upper house. But while +the writ of a peer runs ad tractandum nobiscum et cum cæteris prælatis, +magnatibus et proceribus, that directed to one of the judges is only ad +tractandum nobiscum et cum cæteris de consilio nostro; and the seats of +the latter are upon the woolsacks at one extremity of the house.</p> + +<p>In the reigns of Edward I. and II. the council appear to have been the +regular advisers of the king in passing laws to which the houses of +parliament had assented. The preambles of most statutes during this period +express their concurrence. Thus the statute Westm. I. is said to be the +act of the king by his council, and by the assent of archbishops, bishops, +abbots, priors, earls, barons, and all the commonalty of the realm being +hither summoned. The statute of escheators, 29 E. I., is said to be agreed +by the council, enumerating their names, all whom appear to be judges or +public officers. Still more striking conclusions are to be drawn from the +petitions addressed to the council by both houses of parliament. In the +eighth of Edward II. there are four petitions from the commons to the king +and his council, one from the lords alone, and one in which both appear to +have joined. Later parliaments of the same reign present us with several +more instances of the like nature. Thus in 18 E. II. a petition begins, +"To our lord the king, and to his council, the archbishops, bishops, +prelates, earls, barons, and others of the commonalty of England, show," +&c.<a name="FNanchor_356_356" id="FNanchor_356_356"></a><a href="#Footnote_356_356" class="fnanchor">[d]</a></p> + +<p>But from the beginning of Edward III.'s reign it seems that the council +and the lords' house in parliament were often blended together into one +assembly. This was denominated the great council, being the lords +spiritual and temporal, with the king's ordinary council annexed to them, +as a council within a council. And even in +<span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span> +much earlier times the lords, +as hereditary counsellors, were, either whenever they thought fit to +attend, or on special summonses by the king (it is hard to say which), +assistant members of this council, both for advice and for jurisdiction. +This double capacity of the peerage, as members of the parliament or +legislative assembly and of the deliberative and judicial council, throws +a very great obscurity over the subject. However, we find that private +petitions for redress were, even under Edward I., presented to the lords +in parliament as much as to the ordinary council. The parliament was +considered a high court of justice, where relief was to be given in cases +where the course of law was obstructed, as well as where it was defective. +Hence the intermission of parliaments was looked upon as a delay of +justice, and their annual meeting is demanded upon that ground. "The +king," says Fleta, "has his court in his council, in his parliaments, in +the presence of bishops, earls, barons, lords, and other wise men, where +the doubtful cases of judgments are resolved, and new remedies are +provided against new injuries, and justice is rendered to every man +according to his desert."<a name="FNanchor_357_357" id="FNanchor_357_357"></a><a href="#Footnote_357_357" class="fnanchor">[e]</a> +In the third year of Edward II. receivers +of petitions began to be appointed at the opening of every parliament, who +usually transmitted them to the ordinary, but in some instances to the +great council. These receivers were commonly three for England, and three +for Ireland, Wales, Gascony, and other foreign dominions. There were +likewise two corresponding classes of auditors or triers of petitions. +These consisted partly of bishops or peers, partly of judges and other +members of the council; and they seem to have been instituted in order to +disburthen the council by giving answers to some petitions. But about the +middle of Edward III.'s time they ceased to act juridically in this +respect, and confined themselves to transmitting petitions to the lords of +the council.</p> + +<p>The great council, according to the definition we have given, consisting +of the lords spiritual and temporal, in conjunction with the ordinary +council, or, in other words, of all who were severally summoned to +parliament, exercised a considerable jurisdiction, as well civil as +criminal.<span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span> +In this jurisdiction it is the opinion of Sir M. Hale that the +council, though not peers, had right of suffrage; an opinion very +probable, when we recollect that the council by themselves, both in and +out of parliament, possessed in fact a judicial authority little inferior; +and that the king's delegated sovereignty in the administration of +justice, rather than any intrinsic right of the peerage, is the foundation +on which the judicature of the lords must be supported. But in the time of +Edward III. or Richard II. the lords, by their ascendency, threw the +judges and rest of the council into shade, and took the decisive +jurisdiction entirely to themselves, making use of their former colleagues +but as assistants and advisers, as they still continue to be held in all +the judicial proceedings of that +house.<a name="FNanchor_358_358" id="FNanchor_358_358"></a><a href="#Footnote_358_358" class="fnanchor">[f]</a></p> + +<p>Those statutes which restrain the king's ordinary council from disturbing +men in their freehold rights, or questioning them for misdemeanours, have +an equal application to the lords' house in parliament, though we do not +frequently meet with complaints of the encroachments made by that +assembly. There was, however, one class of cases tacitly excluded from the +operation of those acts, in which the coercive jurisdiction of this high +tribunal had great convenience; namely, where the ordinary course of +justice was so much obstructed by the defending party, through riots, +combinations of maintenance, or overawing influence, that no inferior +court would find its process obeyed. Those ages, disfigured in their +quietest season by rapine and oppression, afforded no small number of +cases that called for this interposition of a paramount +authority.<a name="FNanchor_359_359" id="FNanchor_359_359"></a><a href="#Footnote_359_359" class="fnanchor">[g]</a> +Another indubitable +branch<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> +of this jurisdiction was in writs of error; +but it may be observed that their determination was very frequently left +to a select committee of peers and councillors. These, too, cease almost +entirely with Henry IV.; and were scarcely revived till the accession of +James I.</p> + +<p>Some instances occur in the reign of Edward III. where records have been +brought into parliament, and annulled with assent of the commons as well +as the rest of the +legislature.<a name="FNanchor_360_360" id="FNanchor_360_360"></a><a href="#Footnote_360_360" class="fnanchor">[h]</a> +But these were attainders of treason, +which it seemed gracious and solemn to reverse in the most authentic +manner. Certainly the commons had neither by the nature of our +constitution nor the practice of parliament any right of intermeddling in +judicature, save where something was required beyond the existing law, or +where, as in the statute of treasons, an authority of that kind was +particularly reserved to both houses. This is fully acknowledged by +themselves in the first year of Henry +IV.<a name="FNanchor_361_361" id="FNanchor_361_361"></a><a href="#Footnote_361_361" class="fnanchor">[i]</a> +But their influence upon the balance +<span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span> +of government became so commanding in a few years afterwards, +that they contrived, as has been mentioned already, to have petitions +directed to them, rather than to the lords or council, and to transmit +them, either with a tacit approbation or in the form of acts, to the upper +house. Perhaps this encroachment of the commons may have contributed to +the disuse of the lords' jurisdiction, who would rather relinquish their +ancient and honourable but laborious function than share it with such bold +usurpers.</p> + +<div class="sidenote">General character of the government in these ages.</div> + +<p>Although the restraining hand of parliament was continually growing more +effectual, and the notions of legal right acquiring more precision, from +the time of Magna Charta to the civil wars under Henry VI., we may justly +say that the general tone of administration was not a little arbitrary. +The whole fabric of English liberty rose step by step, through much toil +and many sacrifices, each generation adding some new security to the work, +and trusting that posterity would perfect the labour as well as enjoy the +reward. A time, perhaps, was even then foreseen in the visions of generous +hope, by the brave knights of parliament and by the sober sages of +justice, when the proudest ministers of the crown should recoil from those +barriers which were then daily pushed aside with impunity.</p> + +<p>There is a material distinction to be taken between the exercise of the +king's undeniable prerogative, however repugnant to our improved +principles of freedom, and the abuse or extension of it to oppressive +purposes. For we cannot fairly consider as part of our ancient +constitution what the parliament was perpetually remonstrating against, +and the statute-book is full of enactments to repress. Doubtless the +continual acquiescence of a nation in arbitrary government may ultimately +destroy all privileges of positive institution, and leave them to recover, +by such means as opportunity shall offer, the natural and imprescriptible +rights for which human societies were established. And this may perhaps be +the case at present with many European kingdoms. But it would be necessary +to shut our eyes with deliberate prejudice against the whole tenor of the +most unquestionable authorities, against the petitions of the commons, the +acts of the legislature, +<span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span> +the testimony of historians and lawyers, before +we could assert that England acquiesced in those abuses and oppressions +which it must be confessed she was unable fully to prevent.</p> + +<p>The word prerogative is of a peculiar import, and scarcely understood by +those who come from the studies of political philosophy. We cannot define +it by any theory of executive functions. All these may be comprehended in +it; but also a great deal more. It is best, perhaps, to be understood by +its derivation, and has been said to be that law in case of the king which +is law in no case of the +subject.<a name="FNanchor_362_362" id="FNanchor_362_362"></a><a href="#Footnote_362_362" class="fnanchor">[k]</a> +Of the higher and more sovereign +prerogatives I shall here say nothing; they result from the nature of a +monarchy, and have nothing very peculiar in their character. But the +smaller rights of the crown show better the original lineaments of our +constitution. It is said commonly enough that all prerogatives are given +for the subject's good. I must confess that no part of this assertion +corresponds with my view of the subject. It neither appears to me that +these prerogatives were ever given nor that they necessarily redound to +the subject's good. Prerogative, in its old sense, might be defined an +advantage obtained by the crown over the subject, in cases where their +interests came into competition, by reason of its greater strength. This +sprang from the nature of the Norman government, which rather resembled a +scramble of wild beasts, where the strongest takes the best share, than a +system founded upon principles of common utility. And, modified as the +exercise of most prerogatives has been by the more liberal tone which now +pervades our course of government, whoever attends to the common practice +of courts of justice, and, still more, whoever consults the law-books, +will not only be astonished at their extent and multiplicity, but very +frequently at their injustice and severity.</p> + +<div class="sidenote">Purveyance.</div> + +<p>The real prerogatives that might formerly be exerted were sometimes of so +injurious a nature, that we can hardly separate them from their abuse: a +striking instance is that of purveyance, which will at once illustrate the +definition above given of a prerogative, the limits within which it was to +be exercised, and its +<span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span> +tendency to transgress them. This was a right of +purchasing whatever was necessary for the king's household, at a fair +price, in preference to every competitor, and without the consent of the +owner. By the same prerogative, carriages and horses were impressed for +the king's journeys, and lodgings provided for his attendants. This was +defended on a pretext of necessity, or at least of great convenience to +the sovereign, and was both of high antiquity and universal practice +throughout Europe. But the royal purveyors had the utmost temptation, and +doubtless no small store of precedents, to stretch this power beyond its +legal boundary; and not only to fix their own price too low, but to seize +what they wanted without any payment at all, or with tallies which were +carried in vain to an empty +exchequer.<a name="FNanchor_363_363" id="FNanchor_363_363"></a><a href="#Footnote_363_363" class="fnanchor">[m]</a> +This gave rise to a number of +petitions from the commons, upon which statutes were often framed; but the +evil was almost incurable in its nature, and never ceased till that +prerogative was itself abolished. Purveyance, as I have already said, may +serve to distinguish the defects from the abuses of our constitution. It +was a reproach to the law that men should be compelled to send their goods +without their consent; it was a reproach to the administration that they +were deprived of them without payment.</p> + +<p>The right of purchasing men's goods for the use of the king was extended +by a sort of analogy to their labour. Thus Edward III. announces to all +sheriffs that William of Walsingham had a commission to collect as many +painters as might suffice for "our works in St. Stephen's chapel, +Westminster, to be at our wages as long as shall be necessary," and to +arrest and keep in prison all who should refuse or be refractory; and +enjoins them to lend their +<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> +assistance.<a name="FNanchor_364_364" id="FNanchor_364_364"></a><a href="#Footnote_364_364" class="fnanchor">[n]</a> Windsor Castle owes its +massive magnificence to labourers impressed from every part of the +kingdom. There is even a commission from Edward IV. to take as many +workmen in gold as were wanting, and employ them at the king's cost upon +the trappings of himself and his household.<a name="FNanchor_365_365" id="FNanchor_365_365"></a><a href="#Footnote_365_365" class="fnanchor">[o]</a></p> + +<div class="sidenote">Abuses of feudal rights.</div> + +<p>Another class of abuses intimately connected with unquestionable though +oppressive rights of the crown originated in the feudal tenure which bound +all the lands of the kingdom. The king had indisputably a right to the +wardship of his tenants in chivalry, and to the escheats or forfeitures of +persons dying without heirs or attainted for treason. But his officers, +under pretence of wardship, took possession of lands not held immediately +of the crown, claimed escheats where a right heir existed, and seized +estates as forfeited which were protected by the statute of entails. The +real owner had no remedy against this disposition but to prefer his +petition of right in chancery, or, which was probably more effectual, to +procure a remonstrance of the house of commons in his favour. Even where +justice was finally rendered to him he had no recompense for his damages; +and the escheators were not less likely to repeat an iniquity by which +they could not personally suffer.</p> + +<div class="sidenote">Forest laws.</div> + +<p>The charter of the forests, granted by Henry III. along with Magna +Charta,<a name="FNanchor_366_366" id="FNanchor_366_366"></a><a href="#Footnote_366_366" class="fnanchor">[p]</a> +had been designed to crush the flagitious system of +oppression which prevailed in those favourite haunts of the Norman kings. +They had still, however, their peculiar jurisdiction, though, from the +time at least of Edward III., subject in some measure to the control of +the King's Bench.<a name="FNanchor_367_367" id="FNanchor_367_367"></a><a href="#Footnote_367_367" class="fnanchor">[q]</a> +The foresters, I suppose, might find a compensation for +<span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span> +their want of the common law in that easy and licentious way of life +which they affected; but the neighbouring cultivators frequently suffered +from the king's officers who attempted to recover those adjacent lands, +or, as they were called, purlieus, which had been disafforested by the +charter and protected by frequent perambulations. Many petitions of the +commons relate to this grievance.</p> + +<div class="sidenote">Jurisdiction of constable and marshal.</div> + +<p>The constable and marshal of England possessed a jurisdiction, the proper +limits whereof were sufficiently narrow, as it seems, to have extended +only to appeals of treason committed beyond sea, which were determined by +combat, and to military offences within the realm. But these high officers +frequently took upon them to inquire of treasons and felonies cognizable +at common law, and even of civil contracts and trespasses. This is no bad +illustration of the state in which our constitution stood under the +Plantagenets. No colour of right or of supreme prerogative was set up to +justify a procedure so manifestly repugnant to the great charter. For all +remonstrances against these encroachments the king gave promises in +return; and a statute was enacted, in the thirteenth of Richard II., +declaring the bounds of the constable and marshal's +jurisdiction.<a name="FNanchor_368_368" id="FNanchor_368_368"></a><a href="#Footnote_368_368" class="fnanchor">[r]</a> It +could not be denied, therefore, that all infringements of these +acknowledged limits were illegal, even if they had a hundred fold more +actual precedents in their favour than can be supposed. But the abuse by +no means ceased after the passing of this statute, as several subsequent +petitions that it might be better regarded will evince. One, as it +contains a special instance, I shall insert. It is of the fifth year of +Henry IV.: "On several supplications and petitions made by the commons in +parliament to our lord the king for Bennet Wilman, who is accused by +certain of his ill-wishers and detained in prison, and put to answer +before the constable and marshal, against the statutes and the common law +of England, our said lord the king, by the advice and assent of the lords +in parliament, granted that the said Bennet should be treated according to +the statutes and common law of England, notwithstanding any commission to +the contrary, or accusation against him made before the constable +<span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span> +and marshal." And a writ was sent to the justices of the King's Bench with a +copy of this article from the roll of parliament, directing them to +proceed as they shall see fit according to the laws and customs of +England.<a name="FNanchor_369_369" id="FNanchor_369_369"></a><a href="#Footnote_369_369" class="fnanchor">[s]</a></p> + +<p>It must appear remarkable that, in a case so manifestly within their +competence, the court of King's Bench should not have issued a writ of +habeas corpus, without waiting for what may be considered as a particular +act of parliament. But it is a natural effect of an arbitrary +administration of government to intimidate courts of +justice.<a name="FNanchor_370_370" id="FNanchor_370_370"></a><a href="#Footnote_370_370" class="fnanchor">[t]</a> A +negative argument, founded upon the want of legal precedent, is certainly +not conclusive when it relates to a distant period, of which all the +precedents have not been noted; yet it must strike us that in the learned +and zealous arguments of Sir Robert Cotton, Mr. Selden, and others, +against arbitrary imprisonment, in the great case of the habeas corpus, +though the statute law is full of authorities in their favour, we find no +instance adduced earlier than the reign of Henry VII., where the King's +Bench has released, or even bailed, persons committed by the council or +the constable, though it is unquestionable that such committals were both +frequent and illegal.<a name="FNanchor_371_371" id="FNanchor_371_371"></a><a href="#Footnote_371_371" class="fnanchor">[u]</a></p> + +<p><span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> +If I have faithfully represented thus far the history of our +constitution, its essential character will appear to be a monarchy greatly +limited by law, though retaining much power that was ill calculated to +promote the public good, and swerving continually into an irregular +course, which there was no restraint adequate to correct. But of all the +notions that have been advanced as to the theory of this constitution, the +least consonant to law and history is that which represents the king as +merely an hereditary executive magistrate, the first officer of the state. +What advantages might result from such a form of government this is not +the place to discuss. But it certainly was not the ancient constitution of +England. There was nothing in this, absolutely nothing, of a republican +appearance. All seemed to grow out of the monarchy, and was referred to +its advantage and honour. The voice of supplication, even in the stoutest +disposition of the commons, was always humble; the prerogative was always +named in large and pompous expressions. Still more naturally may we expect +to find in the law-books even an obsequious deference to power, from +judges who scarcely ventured to consider it as their duty to defend the +subject's freedom, and who beheld the gigantic image of prerogative, in +the full play of its hundred arms, constantly before their eyes. Through +this monarchical tone, which certainly pervades all our legal authorities, +a writer like Hume, accustomed to philosophical liberality as to the +principles of government, and to the democratical language which the +modern aspect of the constitution and the liberty of printing have +produced, fell hastily into the error of believing that all limitations of +royal power during the fourteenth and fifteenth centuries were as much +unsettled in law and in public opinion as they were liable to be violated +by force. Though a contrary position has been sufficiently demonstrated, I +conceive, by the series of parliamentary proceedings which I have already +produced, yet there is a passage in Sir John Fortescue's treatise De +Laudibus Legum Angliæ, so explicit and weighty, that +<span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span> no writer on the +English constitution can be excused from inserting it. This eminent +person, having been chief justice of the King's Bench under Henry VI., was +governor to the young prince of Wales during his retreat in France, and +received at his hands the office of chancellor. It must never be forgotten +that, in a treatise purposely composed for the instruction of one who +hoped to reign over England, the limitations of government are enforced as +strenuously by Fortescue, as some succeeding lawyers have inculcated the +doctrines of arbitrary prerogative.</p> + +<div class="sidenote">Sir John Fortescue's doctrine as to the English constitution.</div> + +<p>"A king of England cannot at his pleasure make any alterations in the laws +of the land, for the nature of his government is not only regal, but +political. Had it been merely regal, he would have a power to make what +innovations and alterations he pleased in the laws of the kingdom, impose +tallages and other hardships upon the people whether they would or no, +without their consent, which sort of government the civil laws point out +when they declare Quod principi placuit, legis habet vigorem. But it is +much otherwise with a king whose government is political, because he can +neither make any alteration or change in the laws of the realm without the +consent of the subjects, nor burthen them against their wills with strange +impositions, so that a people governed by such laws as are made by their +own consent and approbation enjoy their properties securely, and without +the hazard of being deprived of them, either by the king or any other. The +same things may be effected under an absolute prince, provided he do not +degenerate into the tyrant. Of such a prince, Aristotle, in the third of +his Politics, says, 'It is better for a city to be governed by a good man +than by good laws.' But because it does not always happen that the person +presiding over a people is so qualified, St. Thomas, in the book which he +writ to the king of Cyprus, De Regimine Principum, wishes that a kingdom +could be so instituted as that the king might not be at liberty to +tyrannize over his people; which only comes to pass in the present case; +that is, when the sovereign power is restrained by political laws. +Rejoice, therefore, my good prince, that such is the law of the kingdom +which you are to inherit, because it will +<span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span> +afford, both to yourself and +subjects, the greatest security and +satisfaction."<a name="FNanchor_372_372" id="FNanchor_372_372"></a><a href="#Footnote_372_372" class="fnanchor">[x]</a></p> + +<p>The two great divisions of civil rule, the absolute, or regal as he calls +it, and the political, Fortescue proceeds to deduce from the several +originals of conquest and compact. Concerning the latter he declares +emphatically a truth not always palatable to princes, that such +governments were instituted by the people, and for the people's good; +quoting St. Augustin for a similar definition of a political society. "As +the head of a body natural cannot change its nerves and sinews, cannot +deny to the several parts their proper energy, their due proportion and +aliment of blood; neither can a king, who is the head of a body politic, +change the laws thereof, nor take from the people what is theirs by right +against their consent. Thus you have, sir, the formal institution of every +political kingdom, from whence you may guess at the power which a king may +exercise with respect to the laws and the subject. For he is appointed to +protect his subjects in their lives, properties, and laws; for this very +end and purpose he has the delegation of power from the people, and he has +no just claim to any other power but this. Wherefore, to give a brief +answer to that question of yours, concerning the different powers which +kings claim over their subjects, I am firmly of opinion that it arises +solely from the different natures of their original institution, as you +may easily collect from what has been said. So the kingdom of England had +its original from Brute, and the Trojans, who attended him from Italy and +Greece, and became a mixed kind of government, compounded of the regal and +political."<a name="FNanchor_373_373" id="FNanchor_373_373"></a><a href="#Footnote_373_373" class="fnanchor">[y]</a></p> + +<div class="sidenote">Erroneous views taken by Hume.</div> + +<p>It would occupy too much space to quote every other passage of the same +nature in this treatise of Fortescue, and in that entitled, Of the +Difference between an Absolute and Limited Monarchy, which, so far as +these points are concerned, is nearly a translation from the +former.<a name="FNanchor_374_374" id="FNanchor_374_374"></a><a href="#Footnote_374_374" class="fnanchor">[z]</a> +But these, corroborated +<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span> +as they are by the statute-book and by the rolls +of parliament, are surely conclusive against the notions which pervade Mr. +Hume's History. I have already remarked that a sense of the glaring +prejudice by which some Whig writers had been actuated, in representing +the English constitution from the earliest times as nearly arrived at its +present perfection, conspired with certain prepossessions of his own to +lead this eminent historian into an equally erroneous system on the +opposite side. And as he traced the stream backwards, and came last to the +times of the Plantagenet dynasty, with opinions already biassed and even +pledged to the world in his volumes of earlier publication, he was prone +to seize hold of, and even exaggerate, every circumstance that indicated +immature civilization, and law perverted or +infringed.<a name="FNanchor_375_375" id="FNanchor_375_375"></a><a href="#Footnote_375_375" class="fnanchor">[a]</a> To this his +ignorance of English jurisprudence which certainly in some measure +disqualified him from writing our history, did not a little contribute; +misrepresentations frequently occurring in his work, which a moderate +acquaintance with the law of the land would have +prevented.<a name="FNanchor_376_376" id="FNanchor_376_376"></a><a href="#Footnote_376_376" class="fnanchor">[b]</a></p> + +<div class="sidenote">Instances of illegal condemnation rare.</div> + +<p>It is an honourable circumstance to England that the history of no other +country presents so few instances of illegal condemnations upon political +charges. The judicial torture was hardly known and never recognised by +law.<a name="FNanchor_377_377" id="FNanchor_377_377"></a><a href="#Footnote_377_377" class="fnanchor">[c]</a> The +<span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span> +sentence in capital crimes, fixed unalterably by custom, +allowed nothing to vindictiveness and indignation. There hardly occurs an +example of any one being notoriously put to death without form of trial, +except in moments of flagrant civil war. If the rights of juries were +sometimes evaded by irregular jurisdictions, they were at least held +sacred by the courts of law: and through all the vicissitudes of civil +liberty, no one ever questioned the primary right of every freeman, handed +down from his Saxon forefathers, to the trial by his peers. A just regard +for public safety prescribes the necessity of severe penalties against +rebellion and conspiracy; but the interpretation of these offences, when +intrusted to sovereigns and their counsellors, has been the most +tremendous instrument of despotic power. In rude ages, even though a +general spirit of political liberty may prevail, the legal character of +treason will commonly be undefined; nor is it the disposition of lawyers +to give greater accuracy to this part of criminal jurisprudence. The +nature of treason appears to have been subject to much uncertainty in +England before the statute of Edward III. If that memorable law did not +give all possible precision to the offence, which we must certainly allow, +it prevented at least those stretches of vindictive tyranny which disgrace +the annals of other countries. The praise, however, must be understood as +comparative. Some cases of harsh if not illegal convictions could hardly +fail to occur in times of violence and during changes of the reigning +family. Perhaps the circumstances have now and then been aggravated by +historians. Nothing could be more illegal than the conviction of the earl +of Cambridge and lord Scrope in 1415, if it be true, according to Carte +and Hume, that they were not heard in their defence. But whether this is +to be absolutely inferred from the +record<a name="FNanchor_378_378" id="FNanchor_378_378"></a><a href="#Footnote_378_378" class="fnanchor">[d]</a> +is perhaps open to question. There seems at least to have been no sufficient motive for such +an irregularity; their participation in a treasonable conspiracy being manifest from their own +<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span> +confession. The proceedings against Sir John +Mortimer in the 2nd of Henry +VI.<a name="FNanchor_379_379" id="FNanchor_379_379"></a><a href="#Footnote_379_379" class="fnanchor">[e]</a> +are called by Hume highly irregular +and illegal. They were, however, by act of attainder, which cannot well be +styled illegal. Nor are they to be considered as severe. Mortimer had +broken out of the Tower, where he was confined on a charge of treason. +This was a capital felony at common law; and the chief irregularity seems +to have consisted in having recourse to parliament in order to attaint him +of treason, when he had already forfeited his life by another crime.</p> + +<p>I would not willingly attribute to the prevalence of Tory dispositions +what may be explained otherwise, the progress which Mr. Hume's historical +theory as to our constitution has been gradually making since its +publication. The tide of opinion, which since the Revolution, and indeed +since the reign of James I., had been flowing so strongly in favour of the +antiquity of our liberties, now seems, among the higher and more literary +classes, to set pretty decidedly the other way. Though we may still +sometimes hear a demagogue chattering about the witenagemot, it is far +more usual to find sensible and liberal men who look on Magna Charta +itself as the result of an uninteresting squabble between the king and his +barons. Acts of force and injustice, which strike the cursory inquirer, +especially if he derives his knowledge from modern compilations, more than +the average tenor of events, are selected and displayed as fair samples of +the law and of its administration. We are deceived by the comparatively +perfect state of our present liberties, and forget that our superior +security is far less owing to positive law than to the control which is +exercised over government by public opinion through the general use of +printing, and to the diffusion of liberal principles in policy through the +same means. Thus disgusted at a contrast which it was hardly candid to +institute, we turn away from the records that attest the real, though +imperfect, freedom of our ancestors; and are willing to be persuaded that +the whole scheme of English polity, till the commons took on themselves to +assert their natural rights against James I., was at best +<span class="pagenum"><a name="Page_159" id="Page_159">[Pg 159]</a></span> but a mockery +of popular privileges, hardly recognised in theory, and never regarded in +effect.<a name="FNanchor_380_380" id="FNanchor_380_380"></a><a href="#Footnote_380_380" class="fnanchor">[f]</a></p> + +<p>This system, when stripped of those slavish inferences that Brady and +Carte attempted to build upon it, admits perhaps of no essential objection +but its want of historical truth. God forbid that our rights to just and +free government should be tried by a jury of antiquaries! Yet it is a +generous pride that intertwines the consciousness of hereditary freedom +with the memory of our ancestors; and no trifling argument against those +who seem indifferent in its cause, that the character of the bravest and +most virtuous among nations has not depended upon the accidents of race or +climate, but been gradually wrought by the plastic influence of civil +rights, transmitted as a prescriptive inheritance through a long course of +generations.</p> + +<div class="sidenote">Causes tending to form the constitution.</div> + +<p>By what means the English acquired and preserved this political liberty, +which, even in the fifteenth century, was the admiration of judicious +foreigners,<a name="FNanchor_381_381" id="FNanchor_381_381"></a><a href="#Footnote_381_381" class="fnanchor">[g]</a> +is a very rational and interesting inquiry. Their own +serious and steady attachment to the laws must always be reckoned among +the principal causes of this blessing. The civil equality of all freemen +below the rank of peerage, and the subjection of peers themselves to the +impartial arm of justice, and to a due share in contribution to public +burthens, advantages unknown to other countries, tended to identify the +interests and to assimilate the feelings of the aristocracy with those of +the people; classes whose dissension and jealousy has been in many +instances the surest hope of sovereigns aiming at arbitrary power. This +freedom from the oppressive superiority of a privileged order was peculiar +to England. In many kingdoms the royal prerogative was at least equally +limited. The statutes of Aragon are more full of remedial provisions. The +right of opposing a tyrannical government by arms was more frequently +asserted in Castile. But nowhere else did the people possess by law, and I +think, upon the whole, in effect, so much security for +<span class="pagenum"><a name="Page_160" id="Page_160">[Pg 160]</a></span> their personal +freedom and property. Accordingly, the middling ranks flourished +remarkably, not only in commercial towns, but among the cultivators of the +soil. "There is scarce a small village," says Sir J. Fortescue, "in which +you may not find a knight, an esquire, or some substantial householder +(paterfamilias), commonly called a +frankleyn,<a name="FNanchor_382_382" id="FNanchor_382_382"></a><a href="#Footnote_382_382" class="fnanchor">[h]</a> possessed of +considerable estate; besides others who are called freeholders, and many +yeomen of estates sufficient to make a substantial jury." I would, +however, point out more particularly two causes which had a very leading +efficacy in the gradual development of our constitution; first, the +schemes of continental ambition in which our government was long engaged; +secondly, the manner in which feudal principles of insubordination and +resistance were modified by the prerogatives of the early Norman kings.</p> + +<p>1. At the epoch when William the Conqueror ascended the throne, hardly any +other power was possessed by the king of France than what he inherited +from the great fiefs of the Capetian family. War with such a potentate was +not exceedingly to be dreaded, and William, besides his immense revenue, +could employ the feudal services of his vassals, which were extended by +him to continental expeditions. These circumstances were not essentially +changed till after the loss of Normandy; for the acquisitions of Henry II. +kept him fully on an equality with the French crown, and the dilapidation +which had taken place in the royal demesnes was compensated by several +arbitrary resources that filled the exchequer of these monarchs. But in +the reigns of John and Henry III., the position of England, or rather of +its sovereign, with respect to France, underwent a very disadvantageous +change. The loss of Normandy severed the connexion between the English +nobility and the continent; they had no longer estates to defend, and took not sufficient +<span class="pagenum"><a name="Page_161" id="Page_161">[Pg 161]</a></span> +interest in the concerns of Guienne to fight for that +province at their own cost. Their feudal service was now commuted for an +escuage, which fell very short of the expenses incurred in a protracted +campaign. Tallages of royal towns and demesne lands, extortion of money +from the Jews, every feudal abuse and oppression, were tried in vain to +replenish the treasury, which the defence of Eleanor's inheritance against +the increased energy of France was constantly exhausting. Even in the most +arbitrary reigns, a general tax upon landholders, in any cases but those +prescribed by the feudal law, had not been ventured; and the standing +bulwark of Magna Charta, as well as the feebleness and unpopularity of +Henry III., made it more dangerous to violate an established principle. +Subsidies were therefore constantly required; but for these it was +necessary for the king to meet parliament, to hear their complaints, and, +if he could not elude, to acquiesce in their petitions. These necessities +came still more urgently upon Edward I., whose ambitious spirit could not +patiently endure the encroachments of Philip the Fair, a rival not less +ambitious, but certainly less distinguished by personal prowess, than +himself. What advantage the friends of liberty reaped from this ardour for +continental warfare is strongly seen in the circumstances attending the +Confirmation of the Charters.</p> + +<p>But after this statute had rendered all tallages without consent of +parliament illegal, though it did not for some time prevent their being +occasionally imposed, it was still more difficult to carry on a war with +France or Scotland, to keep on foot naval armaments, or even to preserve +the courtly magnificence which that age of chivalry affected, without +perpetual recurrence to the house of commons. Edward III. very little +consulted the interests of his prerogative when he stretched forth his +hand to seize the phantom of a crown in France. It compelled him to +assemble parliament almost annually, and often to hold more than one +session within the year. Here the representatives of England learned the +habit of remonstrance and conditional supply; and though, in the meridian +of Edward's age and vigour, they often failed of immediate redress, yet +they gradually swelled the statute-roll with provisions to secure their country's +<span class="pagenum"><a name="Page_162" id="Page_162">[Pg 162]</a></span> +freedom; and acquiring self-confidence by mutual intercourse, +and sense of the public opinion, they became able, before the end of +Edward's reign, and still more in that of his grandson, to control, +prevent, and punish the abuses of administration. Of all these proud and +sovereign privileges, the right of refusing supply was the keystone. But +for the long wars in which our kings were involved, at first by their +possession of Guienne, and afterwards by their pretensions upon the crown +of France, it would have been easy to suppress remonstrances by avoiding +to assemble parliament. For it must be confessed that an authority was +given to the king's proclamations, and to ordinances of the council, which +differed but little from legislative power, and would very soon have been +interpreted by complaisant courts of justice to give them the full extent +of statutes.</p> + +<p>It is common indeed to assert that the liberties of England were bought +with the blood of our forefathers. This is a very magnanimous boast, and +in some degree is consonant enough to the truth. But it is far more +generally accurate to say that they were purchased by money. A great +proportion of our best laws, including Magna Charta itself, as it now +stands confirmed by Henry III., were, in the most literal sense, obtained +by a pecuniary bargain with the crown. In many parliaments of Edward III. +and Richard II. this sale of redress is chaffered for as distinctly, and +with as little apparent sense of disgrace, as the most legitimate business +between two merchants would be transacted. So little was there of +voluntary benevolence in what the loyal courtesy of our constitution +styles concessions from the throne; and so little title have these +sovereigns, though we cannot refuse our admiration to the generous virtues +of Edward III. and Henry V., to claim the gratitude of posterity as the +benefactors of their people!</p> + +<p>2. The relation established between a lord and his vassal by the feudal +tenure, far from containing principles of any servile and implicit +obedience, permitted the compact to be dissolved in case of its violation +by either party. This extended as much to the sovereign as to inferior +lords; the authority of the former in France, where the system most +flourished, being for several ages rather feudal than political. If a vassal +<span class="pagenum"><a name="Page_163" id="Page_163">[Pg 163]</a></span> +was aggrieved, and if justice was denied him, he sent a defiance, +that is, a renunciation of fealty to the king, and was entitled to enforce +redress at the point of his sword. It then became a contest of strength as +between two independent potentates, and was terminated by treaty, +advantageous or otherwise, according to the fortune of war. This +privilege, suited enough to the situation of France, the great peers of +which did not originally intend to admit more than a nominal supremacy in +the house of Capet, was evidently less compatible with the regular +monarchy of England. The stern natures of William the Conqueror and his +successors kept in control the mutinous spirit of their nobles, and reaped +the profit of feudal tenures without submitting to their reciprocal +obligations. They counteracted, if I may so say, the centrifugal force of +that system by the application of a stronger power; by preserving order, +administering justice, checking the growth of baronial influence and +riches, with habitual activity, vigilance, and severity. Still, however, +there remained the original principle, that allegiance depended +conditionally upon good treatment, and that an appeal might be lawfully +made to arms against an oppressive government. Nor was this, we may be +sure, left for extreme necessity, or thought to require a long enduring +forbearance. In modern times a king compelled by his subjects' swords to +abandon any pretension would be supposed to have ceased to reign; and the +express recognition of such a right as that of insurrection has been +justly deemed inconsistent with the majesty of law. But ruder ages had +ruder sentiments. Force was necessary to repel force; and men accustomed +to see the king's authority defied by private riot were not much shocked +when it was resisted in defence of public freedom.</p> + +<p>The Great Charter of John was secured by the election of twenty-five +barons as conservators of the compact. If the king, of the justiciary in +his absence, should transgress any article, any four might demand +reparation, and on denial carry their complaint to the rest of their body. +"And those barons, with all the commons of the land, shall distrain and +annoy us by every means in their power; that is, by seizing our castles, +lands, and possessions, and every other mode, till the wrong shall be +<span class="pagenum"><a name="Page_164" id="Page_164">[Pg 164]</a></span> +repaired to their satisfaction; saving our person, and our queen and +children. And when it shall be repaired they shall obey us as +before."<a name="FNanchor_383_383" id="FNanchor_383_383"></a><a href="#Footnote_383_383" class="fnanchor">[i]</a> +It is amusing to see the common law of distress introduced +upon this gigantic scale; and the capture of the king's castles treated as +analogous to impounding a neighbour's horse for breaking fences.</p> + +<p>A very curious illustration of this feudal principle is found in the +conduct of William earl of Pembroke, one of the greatest names in our +ancient history, towards Henry III. The king had defied him, which was +tantamount to a declaration of war; alleging that he had made an inroad +upon the royal domains. Pembroke maintained that he was not the aggressor, +that the king had denied him justice, and been the first to invade his +territory; on which account he had thought himself absolved from his +homage, and at liberty to use force against the malignity of the royal +advisers. "Nor would it be for the king's honour," the earl adds, "that I +should submit to his will against reason, whereby I should rather do wrong +to him and to that justice which he is bound to administer towards his +people; and I should give an ill example to all men in deserting justice +and right in compliance with his mistaken will. For this would show that I +loved my worldly wealth better than justice." These words, with whatever +dignity expressed, it may be objected, prove only the disposition of an +angry and revolted earl. But even Henry fully admitted the right of taking +arms against himself if he had meditated his vassal's destruction, and +disputed only the application of this maxim to the earl of +Pembroke.<a name="FNanchor_384_384" id="FNanchor_384_384"></a><a href="#Footnote_384_384" class="fnanchor">[k]</a></p> + +<p>These feudal notions, which placed the moral obligation of allegiance very +low, acting under a weighty pressure from the real strength of the crown, +were favourable to constitutional liberty. The great vassals of France and +Germany aimed at living independently on their fiefs, with no further +concern for the rest than as useful allies having a common interest +against the crown. But in England, as there was no prospect of throwing +off subjection, the barons endeavoured only to lighten its burthen, fixing +limits to prerogative by law, and securing their observation by +parliamentary remonstrances or by +<span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span> +dint of arms. Hence, as all rebellions +in England were directed only to coerce the government, or at the utmost +to change the succession of the crown, without the smallest tendency to +separation, they did not impair the national strength nor destroy the +character of the constitution. In all these contentions it is remarkable +that the people and clergy sided with the nobles against the throne. No +individuals are so popular with the monkish annalists, who speak the +language of the populace, as Simon earl of Leicester, Thomas earl of +Lancaster, and Thomas duke of Gloucester, all turbulent opposers of the +royal authority, and probably little deserving of their panegyrics. Very +few English historians of the middle ages are advocates of prerogative. +This may be ascribed both to the equality of our laws and to the interest +which the aristocracy found in courting popular favour, when committed +against so formidable an adversary as the king. And even now, when the +stream that once was hurried along gullies and dashed down precipices +hardly betrays upon its broad and tranquil bosom the motion that actuates +it, it must still be accounted a singular happiness of our constitution +that, all ranks graduating harmoniously into one another, the interests of +peers and commoners are radically interwoven; each in a certain sense +distinguishable, but not balanced like opposite weights, not separated +like discordant fluids, not to be secured by insolence or jealousy, but by +mutual adherence and reciprocal influences.</p> + +<div class="sidenote">Influence which the state of manners gave the nobility.</div> + +<p>From the time of Edward I. the feudal system and all the feelings +connected with it declined very rapidly. But what the nobility lost in the +number of their military tenants was in some degree compensated by the +state of manners. The higher class of them, who took the chief share in +public affairs, were exceedingly opulent; and their mode of life gave +wealth an incredibly greater efficacy than it possesses at present. +Gentlemen of large estates and good families who had attached themselves +to these great peers, who bore offices which we should call menial in +their households, and sent their children thither for education, were of +course ready to follow their banner in rising, without much inquiry into +the cause. Still less would the vast body of tenants and their retainers, +<span class="pagenum"><a name="Page_166" id="Page_166">[Pg 166]</a></span> +who were fed at the castle in time of peace, refuse to carry their pikes +and staves into the field of battle. Many devices were used to preserve +this aristocratic influence, which riches and ancestry of themselves +rendered so formidable. Such was the maintenance of suits, or +confederacies for the purpose of supporting each other's claims in +litigation, which was the subject of frequent complaints in parliament, +and gave rise to several prohibitory statutes. By help of such +confederacies parties were enabled to make violent entries upon the lands +they claimed, which the law itself could hardly be said to +discourage.<a name="FNanchor_385_385" id="FNanchor_385_385"></a><a href="#Footnote_385_385" class="fnanchor">[m]</a> +Even proceedings in courts of justice were often liable +to intimidation and +influence.<a name="FNanchor_386_386" id="FNanchor_386_386"></a><a href="#Footnote_386_386" class="fnanchor">[n]</a> +A practice much allied to +confederacies of maintenance, though ostensibly more harmless, was that of +giving liveries to all retainers of a noble family; but it had an obvious +tendency to preserve that spirit of factious attachments and animosities +which it is the general policy of a wise government to dissipate. From the +first year of Richard II. we find continual mention of this custom, with +many legal provisions against it, but it was never abolished till the +reign of Henry VII.<a name="FNanchor_387_387" id="FNanchor_387_387"></a><a href="#Footnote_387_387" class="fnanchor">[o]</a></p> + +<div class="sidenote">Prevalent habits of rapine.</div> + +<p><span class="pagenum"><a name="Page_167" id="Page_167">[Pg 167]</a></span> +These associations under powerful chiefs were only incidentally beneficial +as they tended to withstand the abuses of prerogative. In their more usual +course they were designed to thwart the legitimate exercise of the king's +government in the administration of the laws. All Europe was a scene of +intestine anarchy during the middle ages; and though England was far less +exposed to the scourge of private war than most nations on the continent, +we should find, could we recover the local annals of every country, such +an accumulation of petty rapine and tumult as would almost alienate us +from the liberty which served to engender it. This was the common tenor of +manners, sometimes so much aggravated as to find a place in general +history,<a name="FNanchor_388_388" id="FNanchor_388_388"></a><a href="#Footnote_388_388" class="fnanchor">[p]</a> +more often attested by records during the three centuries +that the house of Plantagenet sat on the throne. Disseisin, or forcible +dispossession of freeholds, makes one of the most considerable articles in +our law-books.<a name="FNanchor_389_389" id="FNanchor_389_389"></a><a href="#Footnote_389_389" class="fnanchor">[q]</a> +Highway robbery was from the earliest<span class="pagenum"><a name="Page_168" id="Page_168">[Pg 168]</a></span> times a sort of +national crime. Capital punishments, though very frequent, made little +impression on a bold and a licentious crew, who had at least the sympathy +of those who had nothing to lose on their side, and flattering prospects +of impunity. We know how long the outlaws of Sherwood lived in +tradition—men who, like some of their betters, have been permitted to +redeem by a few acts of generosity the just ignominy of extensive crimes. +These, indeed, were the heroes of vulgar applause; but when such a judge +as Sir John Fortescue could exult that more Englishmen were hanged for +robbery in one year than French in seven, and that, "if an Englishman be +poor, and see another having riches which may be taken from him by might, +he will not spare to do +so,"<a name="FNanchor_390_390" id="FNanchor_390_390"></a><a href="#Footnote_390_390" class="fnanchor">[r]</a> +it may be perceived how thoroughly these sentiments had pervaded the public mind.</p> + +<p>Such robbers, I have said, had flattering prospects of impunity. Besides +the general want of communication, which made one who had fled from his +own neighbourhood tolerably secure, they had the advantage of extensive +forests to facilitate their depredations and prevent detection. When +outlawed or brought to trial, the worst offenders could frequently +purchase charters of pardon, which defeated justice in the moment of her +blow.<a name="FNanchor_391_391" id="FNanchor_391_391"></a><a href="#Footnote_391_391" class="fnanchor">[s]</a> Nor +<span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span> +were the nobility ashamed to patronise men guilty of every +crime. Several proofs of this occur in the rolls. Thus, for example, in +the 22nd of Edward III., the commons pray that, "whereas it is notorious +how robbers and malefactors infest the country, the king would charge the +great men of the land that none such be maintained by them, privily or +openly, but that they lend assistance to arrest and take such +ill-doers."<a name="FNanchor_392_392" id="FNanchor_392_392"></a><a href="#Footnote_392_392" class="fnanchor">[t]</a></p> + +<p>It is perhaps the most meritorious part of Edward I.'s government that he +bent all his power to restrain these breaches of tranquillity. One of his +salutary provisions is still in constant use, the statute of coroners. +Another, more extensive, and, though partly obsolete, the foundation of +modern laws, is the statute of Winton, which, reciting that "from day to +day robberies, murders, burnings, and theft be more often used than they +have been heretofore, and felons cannot be attainted by the oath of jurors +which had rather suffer robberies on strangers to pass without punishment +than indite the offenders, of whom great part be people of the same +country, or at least, if the offenders be of another country, the +receivers be of places near," enacts that hue and cry shall be made upon +the commission of a robbery, and that the hundred shall remain answerable +for the damage unless the felons be brought to justice. It may be inferred from this provision +<span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span> +that the ancient law of frank-pledge, though retained +longer in form, had lost its efficiency. By the same act, no stranger or +suspicious person was to lodge even in the suburbs of towns; the gates +were to be kept locked from sunset to sunrising; every host to be +answerable for his guest; the highways to be cleared of trees and +underwood for two hundred feet on each side; and every man to keep arms +according to his substance in readiness to follow the sheriff on hue and +cry raised ofter felons.<a name="FNanchor_393_393" id="FNanchor_393_393"></a><a href="#Footnote_393_393" class="fnanchor">[u]</a> +The last provision indicates that the +robbers plundered the country in formidable bands. One of these, in a +subsequent part of Edward's reign, burned the town of Boston during a +fair, and obtained a vast booty, though their leader had the ill fortune +not to escape the gallows.</p> + +<p>The preservation of order throughout the country was originally intrusted +not only to the sheriff, coroner, and constables, but to certain +magistrates called conservators of the peace. These, in conformity to the +democratic character of our Saxon government, were elected by the +freeholders in their county +court.<a name="FNanchor_394_394" id="FNanchor_394_394"></a><a href="#Footnote_394_394" class="fnanchor">[x]</a> +But Edward I. issued commissions +to carry into effect the statute of Winton; and from the beginning of +Edward III.'s reign the appointment of conservators was vested in the +crown, their authority gradually enlarged by a series of statutes, and +their titles changed to that of justices. They were empowered to imprison +and punish all rioters and other offenders, and such as they should find +by indictment or suspicion to be reputed thieves or vagabonds, and to take +sureties for good behaviour from persons of evil +fame.<a name="FNanchor_395_395" id="FNanchor_395_395"></a><a href="#Footnote_395_395" class="fnanchor">[y]</a> Such a +jurisdiction was hardly more arbitrary than, in a free and civilized age, +it has been thought fit to vest in magistrates; but it was ill endured by +a people who placed their notions of liberty in personal exemption from +restraint rather than any political theory. An act having been passed (2 +R. II. stat. 2, c. 6), in consequence of unusual riots and outrages, +enabling magistrates to +<span class="pagenum"><a name="Page_171" id="Page_171">[Pg 171]</a></span> +commit the ringleaders of tumultuary assemblies +without waiting for legal process till the next arrival of justices of +gaol delivery, the commons petitioned next year against this "horrible +grievous ordinance," by which "every freeman in the kingdom would be in +bondage to these justices," contrary to the great charter, and to many +statutes, which forbid any man to be taken without due course of +law.<a name="FNanchor_396_396" id="FNanchor_396_396"></a><a href="#Footnote_396_396" class="fnanchor">[z]</a> +So sensitive was their jealousy of arbitrary imprisonment, that they +preferred enduring riot and robbery to chastising them by any means that +might afford a precedent to oppression, or weaken men's reverence for +Magna Charta.</p> + +<p>There are two subjects remaining to which this retrospect of the state of +manners naturally leads us, and which I would not pass unnoticed, though +not perhaps absolutely essential to a constitutional history; because they +tend in a very material degree to illustrate the progress of society, with +which civil liberty and regular government are closely connected. These +are, first, the servitude or villenage of the peasantry, and their gradual +emancipation from that condition; and, secondly, the continual increase of +commercial intercourse with foreign countries. But as the latter topic +will fall more conveniently into the next part of this work, I shall +postpone its consideration for the present.</p> + +<div class="sidenote">Villenage of the peasantry. Its nature and gradual extinction.</div> + +<p>In a former passage I have remarked of the Anglo-Saxon ceorls that neither +their situation nor that of their descendants for the earlier reigns after +the Conquest appears to have been mere servitude. But from the time of +Henry II., as we learn from Glanvil, the villein, so called, was +absolutely dependent upon his lord's will, compelled to unlimited +services, and destitute of property, not only in the land he held for his +maintenance, but in his own +acquisitions.<a name="FNanchor_397_397" id="FNanchor_397_397"></a><a href="#Footnote_397_397" class="fnanchor">[a]</a> +If a villein purchased or +inherited land, the lord might seize it; if he accumulated stock, its +possession was equally precarious. Against his lord he had no right of +action; because his indemnity +<span class="pagenum"><a name="Page_172" id="Page_172">[Pg 172]</a></span> +in damages, if he could have recovered any, +might have been immediately taken away. If he fled from his lord's +service, or from the land which he held, a writ issued de nativitate +probandâ, and the master recovered his fugitive by law. His children were +born to the same state of servitude; and, contrary to the rule of the +civil law, where one parent was free and the other in villenage, the +offspring followed their father's +condition.<a name="FNanchor_398_398" id="FNanchor_398_398"></a><a href="#Footnote_398_398" class="fnanchor">[b]</a></p> + +<p>This was certainly a severe lot; yet there are circumstances which +materially distinguish it from slavery. The condition of villenage, at +least in later times, was perfectly relative; it formed no distinct order +in the political economy. No man was a villein in the eye of law, unless +his master claimed him: to all others he was a freeman, and might acquire, +dispose of, or sue for property without impediment. Hence Sir E. Coke +argues that villeins are included in the 29th article of Magna Charta: "No +freeman shall be disseised nor +imprisoned."<a name="FNanchor_399_399" id="FNanchor_399_399"></a><a href="#Footnote_399_399" class="fnanchor">[c]</a> +For murder, rape, or mutilation of his villein, the lord was indictable at the king's suit; +though not for assault or imprisonment, which were within the sphere of his seignorial +authority.<a name="FNanchor_400_400" id="FNanchor_400_400"></a><a href="#Footnote_400_400" class="fnanchor">[d]</a></p> + +<p><span class="pagenum"><a name="Page_173" id="Page_173">[Pg 173]</a></span> +This class was distinguished into villeins regardant, who had been +attached from time immemorial to a certain manor, and villeins in gross, +where such territorial prescription had never existed, or had been broken. +In the condition of these, whatever has been said by some writers, I can +find no manner of difference; the distinction was merely technical, and +affected only the mode of +pleading.<a name="FNanchor_401_401" id="FNanchor_401_401"></a><a href="#Footnote_401_401" class="fnanchor">[e]</a> +The term in gross is appropriated +in our legal language to property held absolutely and without reference to +any other. Thus it is applied to rights of advowson or of common, when +possessed simply and not as incident to any particular lands. And there +can be no doubt that it was used in the same sense for the possession of a +villein.<a name="FNanchor_402_402" id="FNanchor_402_402"></a><a href="#Footnote_402_402" class="fnanchor">[f]</a> +But there was a class of persons, sometimes inaccurately +confounded with villeins, whom it is more important to separate. Villenage +had a double sense, as it related to persons or to lands. As all men were +free or villeins, so all lands were held by a free or villein tenure. As a +villein might be enfeoffed of freeholds, though they lay at the mercy of +his lord, so a freeman might hold tenements in villenage. In this case his +personal liberty subsisted along with the burthens of territorial +servitude. He was bound to arbitrary service at the will of the lord, and +he might by the same will be at any moment dispossessed; for such was the +condition of his tenure. But his chattels +<span class="pagenum"><a name="Page_174" id="Page_174">[Pg 174]</a></span> +were secure from seizure, his +person from injury, and he might leave the land whenever he +pleased.<a name="FNanchor_403_403" id="FNanchor_403_403"></a><a href="#Footnote_403_403" class="fnanchor">[g]</a></p> + +<p>From so disadvantageous a condition as this of villenage it may cause some +surprise that the peasantry of England should have ever emerged. The law +incapacitating a villein from acquiring property, placed, one would +imagine, an insurmountable barrier in the way of his enfranchisement. It +followed from thence, and is positively said by Glanvil, that a villein +could not buy his freedom, because the price he tendered would already belong to his +lord.<a name="FNanchor_404_404" id="FNanchor_404_404"></a><a href="#Footnote_404_404" class="fnanchor">[h]</a> +And even in the case of free tenants in villenage +it is not easy to comprehend how their uncertain and unbounded services +could ever pass into slight pecuniary commutations; much less how they +could come to maintain themselves in their lands, and mock the lord with a +nominal tenure according to the custom of the manor.</p> + +<p>This, like many others relating to the progress of society, is a very +obscure inquiry. We can trace the pedigree of princes, fill up the +catalogue of towns besieged and provinces desolated, describe even the +whole pageantry of coronations and festivals, but we cannot recover the +genuine history of mankind. It has passed away with slight and partial +notice by contemporary writers; and our most patient industry can hardly +at present put together enough of the fragments to suggest a tolerably +clear representation of ancient manners and social life. I cannot profess +to undertake what would require a command of books as well as leisure +beyond my reach; but the following observations may tend a little to +illustrate our immediate subject, the gradual extinction of villenage.</p> + +<p>If we take what may be considered as the simplest case, that of a manor +divided into demesne lands of the lord's occupation and those in the +tenure of his villeins, performing all the services of agriculture for +him, it is obvious that his interest was to maintain just so many of these +as his estate required for its cultivation. Land, the cheapest of +articles, was the price of their labour; and though the law did not compel +him to pay this or any other price, yet necessity, repairing in some degree +<span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span> +the law's injustice, made those pretty secure of food and +dwellings who were to give the strength of their arms for his advantage. +But in course of time, as alienations of small parcels of manors to free +tenants came to prevail, the proprietors of land were placed in a new +situation relatively to its cultivators. The tenements in villenage, +whether by law or usage, were never separated from the lordship, while its +domain was reduced to a smaller extent through subinfeudations, sales, or +demises for valuable rent. The purchasers under these alienations had +occasion for labourers; and these would be free servants in respect of +such employers, though in villenage to their original lord. As he demanded +less of their labour, through the diminution of his domain, they had more +to spare for other masters; and retaining the character of villeins and +the lands they held by that tenure, became hired labourers in husbandry +for the greater part of the year. It is true that all their earnings were +at the lord's disposal, and that he might have made a profit of their +labour when he ceased to require it for his own land. But this, which the +rapacity of more commercial times would have instantly suggested, might +escape a feudal superior, who, wealthy beyond his wants, and guarded by +the haughtiness of ancestry against the desire of such pitiful gains, was +better pleased to win the affection of his dependants than to improve his +fortune at their expense.</p> + +<p>The services of villenage were gradually rendered less onerous and +uncertain. Those of husbandry, indeed, are naturally uniform, and might be +anticipated with no small exactness. Lords of generous tempers granted +indulgences which were either intended to be or readily became perpetual. +And thus, in the time of Edward I., we find the tenants in some manors +bound only to stated services, as recorded in the lord's +book.<a name="FNanchor_405_405" id="FNanchor_405_405"></a><a href="#Footnote_405_405" class="fnanchor">[i]</a> Some +of these, perhaps, might be villeins by blood; but free tenants in +villenage were still more likely to obtain this precision +<span class="pagenum"><a name="Page_176" id="Page_176">[Pg 176]</a></span> in their +services; and from claiming a customary right to be entered in the +court-roll upon the same terms as their predecessors, prevailed at length +to get copies of it for their +security.<a name="FNanchor_406_406" id="FNanchor_406_406"></a><a href="#Footnote_406_406" class="fnanchor">[k]</a> +Proofs of this remarkable +transformation from tenants in villenage to copyholders are found in the +reign of Henry III. I do not know, however, that they were protected, at +so early an epoch, in the possession of their estates. But it is said in +the Year-book of the 42nd of Edward III. to be "admitted for clear law, +that, if the customary tenant or copyholder does not perform his services, +the lord may seize his land as +forfeited."<a name="FNanchor_407_407" id="FNanchor_407_407"></a><a href="#Footnote_407_407" class="fnanchor">[m]</a> +It seems implied herein, +that, so long as the copyholder did continue to perform the regular +stipulations of his tenure, the lord was not at liberty to divest him of +his estate; and this is said to be confirmed by a passage in Britton, +which has escaped my search; though Littleton intimates that copyholders +could have no remedy against their +lord.<a name="FNanchor_408_408" id="FNanchor_408_408"></a><a href="#Footnote_408_408" class="fnanchor">[n]</a> +However, in the reign of +Edward IV. this was put out of doubt by the judges, who permitted the +copyholder to bring his action of trespass against the lord for +dispossession.</p> + +<p>While some of the more fortunate villeins crept up into property as well +as freedom under the name of copyholders, the greater part enfranchised +themselves in a different manner. The law, which treated them so harshly, +did not take away the means of escape; nor was this a matter of difficulty +in such a country as England. To this, indeed, the unequal progression of +agriculture and population in different counties would have naturally +contributed. Men emigrated, as they always must, in search of cheapness or employment, +<span class="pagenum"><a name="Page_177" id="Page_177">[Pg 177]</a></span> +according to the tide of human necessities. But the villein, +who had no additional motive to urge his steps away from his native place, +might well hope to be forgotten or undiscovered when he breathed a freer +air, and engaged his voluntary labour to a distant master. The lord had +indeed an action against him; but there was so little communication +between remote parts of the country, that it might be deemed his fault or +singular ill-fortune if he were compelled to defend himself. Even in that +case the law inclined to favour him; and so many obstacles were thrown in +the way of these suits to reclaim fugitive villeins, that they could not +have operated materially to retard their general +enfranchisement.<a name="FNanchor_409_409" id="FNanchor_409_409"></a><a href="#Footnote_409_409" class="fnanchor">[o]</a> In +one case, indeed, that of unmolested residence for a year and a day within +a walled city or borough, the villein became free, and the lord was +absolutely barred of his remedy. This provision is contained even in the +laws of William the Conqueror, as contained in Hoveden, and, if it be not +an interpolation, may be supposed to have had a view to strengthen the +population of those places which were designed for garrisons. This law, +whether of William or not, is unequivocally mentioned by +Glanvil.<a name="FNanchor_410_410" id="FNanchor_410_410"></a><a href="#Footnote_410_410" class="fnanchor">[p]</a> Nor +was it a mere letter. According to a record in the sixth of Edward II., +Sir John Clavering sued eighteen villeins of his manor of Cossey, for +withdrawing themselves therefrom with their chattels; whereupon a writ was +directed to them; but six of the number claimed to be freemen, alleging +the Conqueror's charter, and offering to prove that they had lived in +Norwich, paying scot and lot, about thirty years; which claim was +admitted.<a name="FNanchor_411_411" id="FNanchor_411_411"></a><a href="#Footnote_411_411" class="fnanchor">[q]</a></p> + +<p>By such means a large proportion of the peasantry before the middle of the +fourteenth century had become hired labourers instead of villeins. We +first hear of them on a grand scale in an ordinance made by Edward III. in +the twenty-third year of his reign. This was just after the dreadful +pestilence of 1348, and it recites that, the number of workmen and +servants having been +<span class="pagenum"><a name="Page_178" id="Page_178">[Pg 178]</a></span> +greatly reduced by that calamity, the remainder +demanded excessive wages from their employers. Such an enhancement in the +price of labour, though founded exactly on the same principles as regulate +the value of any other commodity, is too frequently treated as a sort of +crime by lawgivers, who seem to grudge the poor that transient melioration +of their lot which the progress of population, or other analogous +circumstances, will, without any interference, very rapidly take away. +This ordinance therefore enacts that every man in England, of whatever +condition, bond or free, of able body, and within sixty years of age, not +living of his own, nor by any trade, shall be obliged, when required, to +serve any master who is willing to hire him at such wages as were usually +paid three years since, or for some time preceding; provided that the +lords of villeins or tenants in villenage shall have the preference of +their labour, so that they retain no more than shall be necessary for +them. More than these old wages is strictly forbidden to be offered, as +well as demanded. No one is permitted, under colour of charity, to give +alms to a beggar. And, to make some compensation to the inferior classes +for these severities, a clause is inserted, as wise, just, and practicable +as the rest, for the sale of provisions at reasonable +prices.<a name="FNanchor_412_412" id="FNanchor_412_412"></a><a href="#Footnote_412_412" class="fnanchor">[r]</a></p> + +<p>This ordinance met with so little regard that a statute was made in +parliament two years after, fixing the wages of all artificers and +husbandmen, with regard to the nature and season of their labour. From +this time it became a frequent complaint of the commons that the statute +of labourers was not kept. The king had in this case, probably, no other +reason for leaving their grievance unredressed than his inability to +change the order of Providence. A silent alteration had been wrought in +the condition and character of the lower classes during the reign of +Edward III. This was the effect of increased knowledge and refinement, +which had been making a considerable progress for full half a century, +though they did not readily permeate the cold region of poverty and +ignorance. It was natural that the country people, or uplandish folk, as +they were called, should repine at the exclusion from that enjoyment of +<span class="pagenum"><a name="Page_179" id="Page_179">[Pg 179]</a></span> +competence, and security for the fruits of their labour, which the +inhabitants of towns so fully possessed. The fourteenth century was, in +many parts of Europe, the age when a sense of political servitude was most +keenly felt. Thus the insurrection of the Jacquerie in France about the +year 1358 had the same character, and resulted in a great measure from the +same causes, as that of the English peasants in 1382. And we may account +in a similar manner for the democratical tone of the French and Flemish +cities, and for the prevalence of a spirit of liberty in Germany and +Switzerland.<a name="FNanchor_413_413" id="FNanchor_413_413"></a><a href="#Footnote_413_413" class="fnanchor">[s]</a></p> + +<p>I do not know whether we should attribute part of this revolutionary +concussion to the preaching of Wicliffe's disciples, or look upon both one +and the other as phenomena belonging to that particular epoch in the +progress of society. New principles, both as to civil rule and religion, +broke suddenly upon the uneducated mind, to render it bold, presumptuous, +and turbulent. But at least I make little doubt that the dislike of +ecclesiastical power, which spread so rapidly among the people at this +season, connected itself with a spirit of insubordination and an +intolerance of political subjection. Both were nourished by the same +teachers, the lower secular clergy; and however distinct we may think a +religious reformation from a civil anarchy, there was a good deal common +in the language by which the populace were inflamed to either one or the +other. Even the scriptural moralities which were then exhibited, and which +became the foundation of our theatre, afforded fuel to the spirit of +sedition. The common original and common destination of mankind, with +every other lesson of equality which religion supplies to humble or to +console, were displayed with coarse and glaring features in these +representations. The familiarity of such ideas has deadened their effects +upon our minds; but when a rude peasant, surprisingly destitute of +religious instruction during that corrupt age of the church, was led at +once to these impressive truths, we cannot be astonished at the +intoxication of mind they +produced.<a name="FNanchor_414_414" id="FNanchor_414_414"></a><a href="#Footnote_414_414" class="fnanchor">[t]</a></p> + +<p><span class="pagenum"><a name="Page_180" id="Page_180">[Pg 180]</a></span> +Though I believe that, compared at least with the aristocracy of other +countries, the English lords were guilty of very little cruelty or +injustice, yet there were circumstances belonging to that period which +might tempt them to deal more hardly than before with their peasantry. The +fourteenth century was an age of greater magnificence than those which had +preceded, in dress, in ceremonies, in buildings; foreign luxuries were +known enough to excite an eager demand among the higher ranks, and yet so +scarce as to yield inordinate prices; while the landholders were, on the +other hand, impoverished by heavy and unceasing taxation. Hence it is +probable that avarice, as commonly happens, had given birth to oppression; +and if the gentry, as I am inclined to believe, had become more attentive +to agricultural improvements, it is reasonable to conjecture that those +whose tenure obliged them to unlimited services of husbandry were more +harassed than under their wealthy and indolent masters in preceding times.</p> + +<p>The storm that almost swept away all bulwarks of civilized and regular +society seems to have been long in collecting itself. Perhaps a more +sagacious legislature might have contrived to disperse it: but the commons +only presented complaints of the refractoriness with which villeins and +tenants in villenage rendered their due +services;<a name="FNanchor_415_415" id="FNanchor_415_415"></a><a href="#Footnote_415_415" class="fnanchor">[u]</a> +and the exigencies +of government led to the fatal poll-tax of a groat, which was the +proximate cause of the insurrection. By the demands of these rioters we +perceive that territorial servitude was far from extinct; but it should +not be hastily concluded that they were all personal villeins, for a large +proportion were Kentish-men, to whom that condition could not have +applied; it being a good bar to a writ de nativitate probandâ that the +party's father was born in the county of +Kent.<a name="FNanchor_416_416" id="FNanchor_416_416"></a><a href="#Footnote_416_416" class="fnanchor">[x]</a></p> + +<p><span class="pagenum"><a name="Page_181" id="Page_181">[Pg 181]</a></span> +After this tremendous rebellion it might be expected that the legislature +would use little indulgence towards the lower commons. Such unhappy +tumults are doubly mischievous, not more from the immediate calamities +that attend them than from the fear and hatred of the people which they +generate in the elevated classes. The general charter of manumission +extorted from the king by the rioters of Blackheath was annulled by +proclamation to the +sheriffs,<a name="FNanchor_417_417" id="FNanchor_417_417"></a><a href="#Footnote_417_417" class="fnanchor">[y]</a> +and this revocation approved by the +lords and commons in parliament; who added, as was very true, that such +enfranchisement could not be made without their consent; "which they would +never give to save themselves from perishing all together in one +day."<a name="FNanchor_418_418" id="FNanchor_418_418"></a><a href="#Footnote_418_418" class="fnanchor">[z]</a> +Riots were turned into treason by a law of the same +parliament.<a name="FNanchor_419_419" id="FNanchor_419_419"></a><a href="#Footnote_419_419" class="fnanchor">[a]</a> +By a very harsh statute in the 12th of Richard II. no +servant or labourer could depart, even at the expiration of his service, +from the hundred in which he lived without permission under the king's +seal; nor might any who had been bred to husbandry till twelve years old +exercise any other +calling.<a name="FNanchor_420_420" id="FNanchor_420_420"></a><a href="#Footnote_420_420" class="fnanchor">[b]</a> +A few years afterwards the commons +petitioned that villeins might not put their children to school in order +to advance them by the church; "and this for the honour of all the freemen +of the kingdom." In the same parliament they complained that villeins fly +to cities and boroughs, whence their masters cannot recover them; and, if +they attempt it, are hindered by the people; and prayed that the lords +might seize their villeins in such places without regard to the franchises +thereof. But on both these petitions the king put in a +negative.<a name="FNanchor_421_421" id="FNanchor_421_421"></a><a href="#Footnote_421_421" class="fnanchor">[c]</a></p> + +<p>From henceforward we find little notice taken of villenage in +parliamentary records, and there seems to have been a rapid tendency to +its entire abolition. But the +<span class="pagenum"><a name="Page_182" id="Page_182">[Pg 182]</a></span> +fifteenth century is barren of materials; +and we can only infer that, as the same causes which in Edward III.'s time +had converted a large portion of the peasantry into free labourers still +continued to operate, they must silently have extinguished the whole +system of personal and territorial servitude. The latter, indeed, was +essentially changed by the establishment of the law of copyhold.</p> + +<p>I cannot presume to conjecture in what degree voluntary manumission is to +be reckoned among the means that contributed to the abolition of +villenage. Charters of enfranchisement were very common upon the +continent. They may perhaps have been less so in England. Indeed the +statute de donis must have operated very injuriously to prevent the +enfranchisement of villeins regardant, who were entailed along with the +land. Instances, however, occur from time to time, and we cannot expect to +discover many. One appears as early as the fifteenth year of Henry III., +who grants to all persons born or to be born within his village of +Contishall, that they shall be free from all villenage in body and blood, +paying an aid of twenty shillings to knight the king's eldest son, and six +shillings a year as a +quit-rent.<a name="FNanchor_422_422" id="FNanchor_422_422"></a><a href="#Footnote_422_422" class="fnanchor">[d]</a> +So in the twelfth of Edward III. +certain of the king's villeins are enfranchised on payment of a +fine.<a name="FNanchor_423_423" id="FNanchor_423_423"></a><a href="#Footnote_423_423" class="fnanchor">[e]</a> +In strictness of law, a fine from the villein for the sake of +enfranchisement was nugatory, since all he could possess was already at +his lord's disposal. But custom and equity might easily introduce +different maxims; and it was plainly for the lord's interest to encourage +his tenants in the acquisition of money to redeem themselves, rather than +to quench the exertions of their industry by availing himself of an +extreme right. Deeds of enfranchisement occur in the reigns of Mary and +Elizabeth;<a name="FNanchor_424_424" id="FNanchor_424_424"></a><a href="#Footnote_424_424" class="fnanchor">[f]</a> +and perhaps a commission of the latter princess in 1574, +directing the enfranchisement of her bondmen and bondwomen on certain +manors upon payment of a +<span class="pagenum"><a name="Page_183" id="Page_183">[Pg 183]</a></span> +fine, is the last unequivocal testimony to the +existence of villenage;<a name="FNanchor_425_425" id="FNanchor_425_425"></a><a href="#Footnote_425_425" class="fnanchor">[g]</a> +though it is highly probable that it existed +in remote parts of the country some time +longer.<a name="FNanchor_426_426" id="FNanchor_426_426"></a><a href="#Footnote_426_426" class="fnanchor">[h]</a></p> + +<div class="sidenote">Reign of Henry VI.</div> + +<p>From this general view of the English constitution, as it stood about the +time of Henry VI., we must turn our eyes to the political revolutions +which clouded the latter years of his reign. The minority of this prince, +notwithstanding the vices and dissensions of his court and the inglorious +discomfiture of our arms in France, was not perhaps a calamitous period. +The country grew more wealthy; the law was, on the whole, better observed; +the power of parliament more complete and effectual than in preceding +times. But Henry's weakness of understanding, becoming evident as he +reached manhood, rendered his reign a perpetual minority. His marriage +with a princess of strong mind, but ambitious and vindictive, rather +tended to weaken the government and to accelerate his downfall; a certain +reverence that had been paid to the gentleness of the king's disposition +being overcome by her unpopularity. By degrees Henry's natural feebleness +degenerated almost into fatuity; and this unhappy condition seems to have +overtaken him nearly about the time when it became an arduous task to +withstand the assault in preparation against his government. This may +properly introduce a great constitutional subject, to which some peculiar +circumstances of our own age have imperiously directed the consideration +of parliament. Though the proceedings of 1788 and 1810 are undoubtedly +precedents of far more authority than any that can be derived from our +ancient history, yet, as the seal of the legislature has not yet been set +upon this controversy, it is not perhaps altogether beyond the possibility +of future discussion; and at least it cannot be uninteresting to look back +on those parallel or analogous cases by which the deliberations of +parliament upon the question of regency were guided.</p> + +<div class="sidenote">Historical instances of regencies:</div> + +<div class="sidenote">during the absence of our kings in France;</div> + +<p><span class="pagenum"><a name="Page_184" id="Page_184">[Pg 184]</a></span> +While the kings of England retained their continental dominions, and were +engaged in the wars to which those gave birth, they were of course +frequently absent from this country. Upon such occasions the +administration seems at first to have devolved officially on the +justiciary, as chief servant of the crown. But Henry III. began the +practice of appointing lieutenants, or guardians of the realm (custodes +regni), as they were more usually termed, by way of temporary substitutes. +They were usually nominated by the king without consent of parliament; and +their office carried with it the right of exercising all the prerogatives +of the crown. It was of course determined by the king's return; and a +distinct statute was necessary in the reign of Henry V. to provide that a +parliament called by the guardian of the realm during the king's absence +should not be dissolved by that +event.<a name="FNanchor_427_427" id="FNanchor_427_427"></a><a href="#Footnote_427_427" class="fnanchor">[i]</a> +The most remarkable +circumstance attending those lieutenancies was that they were sometimes +conferred on the heir apparent during his infancy. The Black Prince, then +duke of Cornwall, was left guardian of the realm in 1339, when he was but +ten years old;<a name="FNanchor_428_428" id="FNanchor_428_428"></a><a href="#Footnote_428_428" class="fnanchor">[k]</a> +and Richard his son, when still younger, in 1372, +during Edward III.'s last expedition into +France.<a name="FNanchor_429_429" id="FNanchor_429_429"></a><a href="#Footnote_429_429" class="fnanchor">[m]</a></p> + +<div class="sidenote">at the accession of Henry III.;</div> + +<div class="sidenote">of Edward I.;</div> + +<div class="sidenote">of Edward III.;</div> + +<div class="sidenote">of Richard II.;</div> + +<p>These do not however bear a very close analogy to regencies in the +stricter sense, or substitutions during the natural incapacity of the +sovereign. Of such there had been several instances before it became +necessary to supply the deficiency arising from Henry's derangement. 1. At +the death of John, William earl of Pembroke assumed the title of rector +regis et regni, with the consent of the loyal barons who had just +proclaimed the young king, and probably conducted the government in a +great measure by their advice.<a name="FNanchor_430_430" id="FNanchor_430_430"></a><a href="#Footnote_430_430" class="fnanchor">[n]</a> +But the circumstances were too +critical, and the time is too remote, to give this precedent any material +weight. 2. Edward I. being in Sicily at his father's death, the nobility +met at the Temple +<span class="pagenum"><a name="Page_185" id="Page_185">[Pg 185]</a></span> +church, as we are informed by a contemporary writer, +and, after making a new great seal, appointed the archbishop of York, +Edward earl of Cornwall, and the earl of Gloucester, to be ministers and +guardians of the realm; who accordingly conducted the administration in +the king's name until his +return.<a name="FNanchor_431_431" id="FNanchor_431_431"></a><a href="#Footnote_431_431" class="fnanchor">[o]</a> +It is here observable that the earl +of Cornwall, though nearest prince of the blood, was not supposed to enjoy +any superior title to the regency, wherein he was associated with two +other persons. But while the crown itself was hardly acknowledged to be +unquestionably hereditary, it would be strange if any notion of such a +right to the regency had been entertained. 3. At the accession of Edward +III., then fourteen years old, the parliament, which was immediately +summoned, nominated four bishops, four earls, and six barons as a standing +council, at the head of which the earl of Lancaster seems to have been +placed, to advise the king in all business of government. It was an +article in the charge of treason, or, as it was then styled, of +accroaching royal power, against Mortimer, that he intermeddled in the +king's household without the assent of this +council.<a name="FNanchor_432_432" id="FNanchor_432_432"></a><a href="#Footnote_432_432" class="fnanchor">[p]</a> They may be +deemed therefore a sort of parliamentary regency, though the duration of +their functions does not seem to be defined. 4. The proceedings at the +commencement of the next reign are more worthy of attention. Edward III. +dying June 21, 1377, the keepers of the great seal next day, in absence of +the chancellor beyond sea, gave it into the young king's hands before his +council. He immediately delivered it to the duke of Lancaster, and the +duke to Sir Nicholas Bode for safe custody. Four days afterwards the king +in council delivered the seal to the bishop of St. David's, who affixed it +the same day to divers letters +patent.<a name="FNanchor_433_433" id="FNanchor_433_433"></a><a href="#Footnote_433_433" class="fnanchor">[q]</a> +Richard was at this time ten +years and six months old; an age certainly very unfit for the personal +execution of sovereign authority. Yet he was supposed capable of reigning +without the aid of a regency. This might be in virtue of a sort of magic +ascribed by lawyers to the great seal, the possession of which bars all +further inquiry, and renders any government legal. The practice of modern +times requiring the +<span class="pagenum"><a name="Page_186" id="Page_186">[Pg 186]</a></span> +constant exercise of the sign manual has made a +public confession of incapacity necessary in many cases where it might +have been concealed or overlooked in earlier periods of the constitution. +But though no one was invested with the office of regent, a council of +twelve was named by the prelates and peers at the king's coronation, July +16, 1377, without whose concurrence no public measure was to be carried +into effect. I have mentioned in another place the modifications +introduced from time to time by parliament, which might itself be deemed a +great council of regency during the first years of Richard.</p> + +<div class="sidenote">of Henry VI.</div> + +<p>5. The next instance is at the accession of Henry VI. This prince was but +nine months old at his father's death; and whether from a more evident +incapacity for the conduct of government in his case than in that of +Richard II., or from the progress of constitutional principles in the +forty years elapsed since the latter's accession, far more regularity and +deliberation were shown in supplying the defect in the executive +authority. Upon the news arriving that Henry V. was dead, several lords +spiritual and temporal assembled, on account of the imminent necessity, in +order to preserve peace, and provide for the exercise of officers +appertaining to the king. These peers accordingly issued commissions to +judges, sheriffs, escheators, and others, for various purposes, and writs +for a new parliament. This was opened by commission under the great seal +directed to the duke of Gloucester, in the usual form, and with the king's +teste.<a name="FNanchor_434_434" id="FNanchor_434_434"></a><a href="#Footnote_434_434" class="fnanchor">[r]</a> +Some ordinances were made in this parliament by the duke of +Gloucester as commissioner, and some in the king's name. The acts of the +peers who had taken on themselves the administration, and summoned +parliament, were confirmed. On the twenty-seventh day of its session, it +is entered upon the roll that the king, "considering his tender age, and +inability to direct in person the concerns of his realm, by assent of +lords and commons, appoints the duke of Bedford, or, in his absence beyond +sea, the duke of Gloucester, to be protector and defender of the kingdom +and English church, and the king's chief counsellor." +<span class="pagenum"><a name="Page_187" id="Page_187">[Pg 187]</a></span> Letters patent were +made out to this effect, the appointment being however expressly during +the king's pleasure. Sixteen councillors were named in parliament to +assist the protector in his administration; and their concurrence was made +necessary to the removal and appointment of officers, except some inferior +patronage specifically reserved to the protector. In all important +business that should pass by order of council, the whole, or major part, +were to be present; "but if it were such matter that the king hath been +accustomed to be counselled of, that then the said lords proceed not +therein without the advice of my lords of Bedford or +Gloucester."<a name="FNanchor_435_435" id="FNanchor_435_435"></a><a href="#Footnote_435_435" class="fnanchor">[s]</a> A +few more councillors were added by the next parliament, and divers +regulations established for their +observance.<a name="FNanchor_436_436" id="FNanchor_436_436"></a><a href="#Footnote_436_436" class="fnanchor">[t]</a></p> + +<p>This arrangement was in contravention of the late king's testament, which +had conferred the regency on the duke of Gloucester, in exclusion of his +elder brother. But the nature and spirit of these proceedings will be +better understood by a remarkable passage in a roll of a later parliament; +where the house of lords, in answer to a request of Gloucester that he +might know what authority he possessed as protector, remind him that in +the first parliament of the +king<a name="FNanchor_437_437" id="FNanchor_437_437"></a><a href="#Footnote_437_437" class="fnanchor">[u]</a> +"ye desired to have had ye +governaunce of yis land; affermyng yat hit belonged unto you of rygzt, as +well by ye mene of your birth as by ye laste wylle of ye kyng yat was your +broyer, whome God assoile; alleggyng for you such groundes and motyves as +it was yought to your discretion made for your intent; whereupon, the +lords spiritual and temporal assembled there in parliament, among which +were there my lordes your uncles, the bishop of Winchester that now +liveth, and the duke of Exeter, and your cousin the earl of March that be +gone to God, and of Warwick, and other in great number that now live, had +great and long deliberation and advice, searched precedents of the +governail of the land in time and case semblable, when +<span class="pagenum"><a name="Page_188" id="Page_188">[Pg 188]</a></span> kings of this land +have been tender of age, took also information of the laws of the land, of +such persons as be notably learned therein, and finally found your said +desire not caused nor grounded in precedent, nor in the law of the land; +the which the king that dead is, in his life nor might by his last will +nor otherwise altre, change, nor abroge, without the assent of the three +estates, nor commit or grant to any person governance or rule of this land +longer than he lived; but on that other behalf, the said lords found your +said desire not according with the laws of this land, and against the +right and fredome of the estates of the same land. Howe were it that it be +not thought that any such thing wittingly proceeded of your intent; and +nevertheless to keep peace and tranquillity, and to the intent to ease and +appease you, it was advised and appointed by authority of the king, +assenting the three estates of this land, that ye, in absence of my lord +your brother of Bedford, should be chief of the king's council, and +devised unto you a name different from other counsellors, not the name of +tutor, lieutenant, governor, nor of regent, nor no name that should import +authority of governance of the land, but the name of protector and +defensor, which importeth a personal duty of attendance to the actual +defence of the land, as well against enemies outward, if case required, as +against rebels inward, if any were, that God forbid; granting you +therewith certain power, the which is specified and contained in an act of +the said parliament, to endure as long as it liked the king. In the which, +if the intent of the said estates had been that ye more power and +authority should have had, more should have been expressed therein; to the +which appointment, ordinance, and act, ye then agreed you as for your +person, making nevertheless protestation that it was not your intent in +any wise to deroge or do prejudice unto my lord your brother of Bedford by +your said agreement, as toward any right that he would pretend or claim in +the governance of this land; and as toward any pre-eminence that you might +have or belong unto you as chief of council, it is plainly declared in the +said act and articles, subscribed by my said lord of Bedford, by yourself, +and the other lords of the council. But as in parliament to which ye be +called upon your faith and ligeance as duke +<span class="pagenum"><a name="Page_189" id="Page_189">[Pg 189]</a></span> +of Glocester, as other lords +be, and not otherwise, we know no power nor authority that ye have, other +than ye as duke of Glocester should have, the king being in parliament, at +years of mest discretion: We marvailing with all our hearts that, +considering the open declaration of the authority and power belonging to +my lord of Bedford and to you in his absence, and also to the king's +council subscribed purely and simply by my said lord of Bedford and by +you, that you should in any wise be stirred or moved not to content you +therewith or to pretend you any other: Namely, considering that the king, +blessed be our Lord, is, sith the time of the said power granted unto you, +far gone and grown in person, in wit, and understanding, and like with the +grace of God to occupy his own royal power within few years: and forasmuch +considering the things and causes abovesaid, and other many that long were +to write, We lords aforesaid pray, exhort, and require you to content you +with the power abovesaid and declared, of the which my lord your brother +of Bedford, the king's eldest uncle, contented him: and that ye none +larger power desire, will, nor use; giving you this that is aboven written +for our answer to your foresaid demand, the which we will dwell and abide +with, withouten variance or changing. Over this beseeching and praying you +in our most humble and lowly wise, and also requiring you in the king's +name, that ye, according to the king's commandment, contained in his writ +sent unto you in that behalf, come to this his present parliament, and +intend to the good effect and speed of matters to be demesned and treted +in the same, like as of right ye owe to +do."<a name="FNanchor_438_438" id="FNanchor_438_438"></a><a href="#Footnote_438_438" class="fnanchor">[x]</a></p> + +<p>It is evident that this plain, or rather rude address to the duke of +Gloucester, was dictated by the prevalence of cardinal Beaufort's party in +council and parliament. But the transactions in the former parliament are +not unfairly represented; and, comparing them with the passage extracted +above, we may perhaps be entitled to infer: 1. That the king does not +possess any constitutional prerogative of appointing a regent during the +minority of his successor; and 2. That neither the heir presumptive, nor +any other person, is entitled to exercise +<span class="pagenum"><a name="Page_190" id="Page_190">[Pg 190]</a></span> +the royal prerogative during +the king's infancy (or, by parity of reasoning, his infirmity), nor to any +title that conveys them; the sole right of determining the persons by +whom, and fixing the limitations under which, the executive government +shall be conducted in the king's name and behalf, devolving upon the great +council of parliament.</p> + +<p>The expression used in the lords' address to the duke of Gloucester, +relative to the young king, that he was far gone and grown in person, wit, +and understanding, was not thrown out in mere flattery. In two years the +party hostile to Gloucester's influence had gained ground enough to +abrogate his office of protector, leaving only the honorary title of chief +counsellor.<a name="FNanchor_439_439" id="FNanchor_439_439"></a><a href="#Footnote_439_439" class="fnanchor">[y]</a> +For this the king's coronation, at eight years of age, +was thought a fair pretence; and undoubtedly the loss of that exceedingly +limited authority which had been delegated to the protector could not have +impaired the strength of government. This was conducted as before by a +selfish and disunited council; but the king's name was sufficient to +legalize their measures, nor does any objection appear to have been made +in parliament to such a mockery of the name of monarchy.</p> + +<div class="sidenote">Henry's mental derangement.</div> + +<div class="sidenote">Duke of York made protector.</div> + +<p>In the year 1454, the thirty-second of Henry's reign, his unhappy malady, +transmitted perhaps from his maternal grandfather, assumed so decided a +character of derangement or imbecility, that parliament could no longer +conceal from itself the necessity of a more efficient ruler. This +assembly, which had been continued by successive prorogations for nearly a +year, met at Westminster on the 14th of February, when the session was +opened, by the duke of York, as king's commissioner. Kemp, archbishop of +Canterbury and chancellor of England, dying soon afterwards, it was judged +proper to acquaint the king at Windsor by a deputation of twelve lords +with this and other subjects concerning his government. In fact, perhaps, +this was a pretext chosen in order to ascertain his real condition. These +peers reported to the lords' house, two days afterwards, that they had +opened to his majesty the several articles of their message, but "could +get no answer ne +<span class="pagenum"><a name="Page_191" id="Page_191">[Pg 191]</a></span> +sign for no prayer ne desire," though they repeated +their endeavours at three different interviews. This report, with the +instruction on which it was founded, was, at their prayer, entered of +record in parliament. Upon so authentic a testimony of their sovereign's +infirmity, the peers, adjourning two days for solemnity or deliberation, +"elected and nominated Richard duke of York to be protector and defender +of the realm of England during the king's pleasure." The duke, protesting +his insufficiency, requested "that in this present parliament, and by +authority thereof, it be enacted that, of yourself and of your ful and +mere disposition, ye desire, name, and call me to the said name and +charge, and that of any presumption of myself I take them not upon me, but +only of the due and humble obeisance that I owe to do unto the king our +most dread and sovereign lord, and to you the peerage of this land, in +whom by the occasion of the infirmity of our said sovereign lord resteth +the exercise of his authority, whose noble commandments I am as ready to +perform and obey as any of his liegemen alive, and that, at such time as +it shall please our blessed Creator to restore his most noble person to +healthful disposition, it shall like you so to declare and notify to his +good grace." To this protestation the lords answered that, for his and +their discharge, an act of parliament should be made conformably to that +enacted in the king's infancy, since they were compelled by an equal +necessity again to choose and name a protector and defender. And to the +duke of York's request to be informed how far the power and authority of +his charge should extend, they replied that he should be chief of the +king's council, and "devised therefore to the said duke a name different +from other counsellors, not the name of tutor, lieutenant, governor, nor +of regent, nor no name that shall import authority of governance of the +land; but the said name of protector and defensor;" and so forth, +according to the language of their former address to the duke of +Gloucester. An act was passed accordingly, constituting the duke of York +protector of the church and kingdom, and chief counsellor of the king, +during the latter's pleasure; or until the prince of Wales should attain +years of discretion on whom the said dignity was +<span class="pagenum"><a name="Page_192" id="Page_192">[Pg 192]</a></span> immediately to devolve. +The patronage of certain spiritual benefices was reserved to the protector +according to the precedent of the king's minority, which parliament was +resolved to follow in every +particular.<a name="FNanchor_440_440" id="FNanchor_440_440"></a><a href="#Footnote_440_440" class="fnanchor">[z]</a></p> + +<p>It may be conjectured, by the provision made in favour of the prince of +Wales, then only two years old, that the king's condition was supposed to +be beyond hope of restoration. But in about nine months he recovered +sufficient speech and recollection to supersede the duke of York's +protectorate.<a name="FNanchor_441_441" id="FNanchor_441_441"></a><a href="#Footnote_441_441" class="fnanchor">[a]</a> +The succeeding transactions are matter of familiar, +though not, perhaps, very perspicuous history. The king was a prisoner in +his enemies' hands after the affair at St. +Albans,<a name="FNanchor_442_442" id="FNanchor_442_442"></a><a href="#Footnote_442_442" class="fnanchor">[b]</a> +when parliament met in July, 1455. In this session little was done, except renewing the +strongest oaths of allegiance to Henry and his family. But the two houses +meeting again after a prorogation to November 12, during which time the +duke of York had strengthened his party, and was appointed by commission +the king's lieutenant to open the parliament, a proposition was made by +the commons that, "whereas the king had deputed the duke of York as his +commissioner to proceed in this parliament, it was thought by the commons +that, if the king hereafter could not attend to the protection of the +country, an able person should be appointed protector, to whom they might +have recourse for redress of injuries; especially as great disturbances +had lately arisen in the west through the feuds of the earl of Devonshire +and Lord Bonvile."<a name="FNanchor_443_443" id="FNanchor_443_443"></a><a href="#Footnote_443_443" class="fnanchor">[c]</a> +The archbishop of Canterbury answered for the +lords that they would take into consideration what the commons had +suggested. Two days +<span class="pagenum"><a name="Page_193" id="Page_193">[Pg 193]</a></span> +afterwards the latter appeared again with a request +conveyed nearly in the same terms. Upon their leaving the chamber, the +archbishop, who was also chancellor, moved the peers to answer what should +be done in respect of the request of the commons; adding that "it is +understood that they will not further proceed in matters of parliament, to +the time that they have answer to their desire and request." This +naturally ended in the reappointment of the duke of York to his charge of +protector. The commons indeed were determined to bear no delay. As if +ignorant of what had been resolved in consequence of their second request, +they urged it a third time, on the next day of meeting; and received for +answer that "the king our said sovereign lord, by the advice and assent of +his lords spiritual and temporal being in this present parliament, had +named and desired the duke of York to be protector and defensor of this +land." It is worthy of notice that in these words, and indeed in effect, +as appears by the whole transaction, the house of peers assumed an +exclusive right of choosing the protector, though, in the act passed to +ratify their election, the commons' assent, as a matter of course, is +introduced. The last year's precedent was followed in the present +instance, excepting a remarkable deviation; instead of the words "during +the king's pleasure," the duke was to hold his office "until he should be +discharged of it by the lords in +parliament."<a name="FNanchor_444_444" id="FNanchor_444_444"></a><a href="#Footnote_444_444" class="fnanchor">[d]</a></p> + +<p>This extraordinary clause, and the slight allegations on which it was +thought fit to substitute a vicegerent for the reigning monarch, are +sufficient to prove, even if the common historians were silent, that +whatever passed as to this second protectorate of the duke of York was +altogether of a revolutionary complexion. In the actual circumstances of +civil blood already spilled and the king in captivity, we may justly +wonder that so much regard was shown to the regular forms and precedents +of the constitution. But the duke's natural moderation will account for +part of this, and the temper of the lords for much more. That assembly +appears for the most part to have been faithfully attached to the house of +Lancaster. The partisans of Richard were found in +<span class="pagenum"><a name="Page_194" id="Page_194">[Pg 194]</a></span> +the commons and among +the populace. Several months elapsed after the victory of St. Albans +before an attempt was thus made to set aside a sovereign, not labouring, +so far as we know, under any more notorious infirmity than before. It then +originated in the commons, and seems to have received but an unwilling +consent from the upper house. Even in constituting the duke of York +protector over the head of Henry, whom all men despaired of ever seeing in +a state to face the dangers of such a season, the lords did not forget the +rights of his son. By this latter instrument, as well as by that of the +preceding year, the duke's office was to cease upon the prince of Wales +arriving at the age of discretion.</p> + +<div class="sidenote">Duke of York's claim to the crown.</div> + +<p>But what had long been propagated in secret, soon became familiar to the +public ear; that the duke of York laid claim to the throne. He was +unquestionably heir general of the royal line, through his mother, Anne, +daughter of Roger Mortimer earl of March, son of Philippa, daughter of +Lionel duke of Clarence, third son of Edward III. Roger Mortimer's eldest +son, Edmund, had been declared heir presumptive by Richard II.; but his +infancy during the revolution that placed Henry IV. on the throne had +caused his pretensions to be passed over in silence. The new king however +was induced by a jealousy natural to his situation to detain the earl of +March in custody. Henry V. restored his liberty; and, though he had +certainly connived for a while at the conspiracy planned by his +brother-in-law the earl of Cambridge and Lord Scrope of Masham to place +the crown on his head, that magnanimous prince gave him a free pardon, and +never testified any displeasure. The present duke of York was honoured by +Henry VI. with the highest trusts in France and Ireland; such as Beaufort +and Gloucester could never have dreamed of conferring on him if his title +to the crown had not been reckoned obsolete. It has been very pertinently +remarked that the crime perpetrated by Margaret and her counsellors in the +death of the duke of Gloucester was the destruction of the house of +Lancaster.<a name="FNanchor_445_445" id="FNanchor_445_445"></a><a href="#Footnote_445_445" class="fnanchor">[e]</a> From +<span class="pagenum"><a name="Page_195" id="Page_195">[Pg 195]</a></span> +this time the duke of York, next heir in presumption +while the king was childless, might innocently contemplate the prospect of +royalty; and when such ideas had long been passing through his mind, we +may judge how reluctantly the birth of prince Edward, nine years after +Henry's marriage, would be admitted to disturb them. The queen's +administration unpopular, careless of national interests, and partial to +his inveterate enemy the duke of +Somerset;<a name="FNanchor_446_446" id="FNanchor_446_446"></a><a href="#Footnote_446_446" class="fnanchor">[f]</a> +the king incapable of +exciting fear or respect; himself conscious of powerful alliances and +universal favour; all these circumstances combined could hardly fail to +nourish those opinions of hereditary right which he must have imbibed from +his infancy.</p> + +<p>The duke of York preserved through the critical season of rebellion such +moderation and humanity that we may pardon him that bias in favour of his +own pretensions to which he became himself a victim. Margaret perhaps, by +her sanguinary violence in the Coventry parliament of 1460, where the duke +and all his adherents were attainted, left him not the choice of remaining +a subject with impunity. But with us, who are to weigh these ancient +factions in the balance of wisdom and justice, there should be no +hesitation in deciding that the house of Lancaster were lawful sovereigns +of England. I am, indeed, astonished that not only such historians as +Carte, who wrote undisguisedly upon a Jacobite system, but even men of +juster principles, have been inadvertent enough to mention the right of +the house of York. If the original consent of the nation, if three +descents of the crown, if repeated acts of parliament, if oaths of +allegiance from the whole kingdom, and more particularly from those who +now advanced a contrary pretension, if undisturbed, unquestioned +possession during sixty years, could not secure the reigning family +against a mere defect in their genealogy, when were the people to expect +tranquillity? Sceptres were committed, and governments were instituted, +for public protection and public happiness, not certainly for the benefit +of rulers, or for the security of particular dynasties. No prejudice has +less in its favour, and none has been more fatal to the peace of mankind, +than that +<span class="pagenum"><a name="Page_196" id="Page_196">[Pg 196]</a></span> +which regards a nation of subjects as a family's private +inheritance. For, as this opinion induces reigning princes and their +courtiers to look on the people as made only to obey them, so, when the +tide of events has swept them from their thrones, it begets a fond hope of +restoration, a sense of injury and of imprescriptible rights, which give +the show of justice to fresh disturbances of public order, and rebellions +against established authority. Even in cases of unjust conquest, which are +far stronger than any domestic revolution, time heals the injury of +wounded independence, the forced submission to a victorious enemy is +changed into spontaneous allegiance to a sovereign, and the laws of God +and nature enjoin the obedience that is challenged by reciprocal benefits. +But far more does every national government, however violent in its +origin, become legitimate, when universally obeyed and justly exercised, +the possession drawing after it the right; not certainly that success can +alter the moral character of actions, or privilege usurpation before the +tribunal of human opinion, or in the pages of history, but that the +recognition of a government by the people is the binding pledge of their +allegiance so long as its corresponding duties are +fulfilled.<a name="FNanchor_447_447" id="FNanchor_447_447"></a><a href="#Footnote_447_447" class="fnanchor">[g]</a> And +thus the law of England has been held to annex the subject's fidelity to +the reigning monarch, by whatever title he may have ascended the throne, +and whoever else may be its +claimant.<a name="FNanchor_448_448" id="FNanchor_448_448"></a><a href="#Footnote_448_448" class="fnanchor">[h]</a> +But the statute of 11th of +Henry VII. c. 1, has furnished an unequivocal commentary upon this +principle, when, alluding to the condemnations and forfeitures by which +those alternate successes of the white and red roses had almost exhausted +the noble blood of England, it enacts that "no man for doing true and +faithful service to the king for the time being be convict or attaint of +high treason, nor of other offences, by act of parliament or otherwise."</p> + +<div class="sidenote">War of the Lancastrians and Yorkists.</div> + +<p>Though all classes of men and all parts of England were divided into +factions by this unhappy contest, yet the strength of the Yorkists lay in +London and the neighbouring counties, and generally among the middling +<span class="pagenum"><a name="Page_197" id="Page_197">[Pg 197]</a></span> +and lower people. And this is what might naturally be expected. For +notions of hereditary right take easy hold of the populace, who feel an +honest sympathy for those whom they consider as injured; while men of +noble birth and high station have a keener sense of personal duty to their +sovereign, and of the baseness of deserting their allegiance. +Notwithstanding the wide-spreading influence of the Nevils, most of the +nobility were well affected to the reigning dynasty. We have seen how +reluctantly they acquiesced in the second protectorate of the duke of York +after the battle of St. Albans. Thirty-two temporal peers took an oath of +fealty to Henry and his issue in the Coventry parliament of 1460, which +attainted the duke of York and the earls of Warwick and +Salisbury.<a name="FNanchor_449_449" id="FNanchor_449_449"></a><a href="#Footnote_449_449" class="fnanchor">[i]</a> +And in the memorable circumstances of the duke's claim personally made in +parliament, it seems manifest that the lords complied not only with +hesitation but unwillingness, and in fact testified their respect and duty +for Henry by confirming the crown to him during his +life.<a name="FNanchor_450_450" id="FNanchor_450_450"></a><a href="#Footnote_450_450" class="fnanchor">[k]</a> The rose of +Lancaster blushed upon the banners of the Staffords, the Percies, the +Veres, the Hollands, and the Courtneys. All these illustrious families lay +crushed for a time under the ruins of their party. But the course of +fortune, which has too great a mastery over crowns and sceptres to be +controlled by men's affection, invested Edward IV. with a possession which +the general consent of the nation both sanctioned and secured. This was +effected in no slight degree by the furious spirit of Margaret, who began +a system of extermination by acts of attainder and execution of prisoners +that created abhorrence, though it did not prevent imitation. And the +barbarities of her northern army, whom she led towards London after the +battle of Wakefield, lost the Lancastrian cause its former +friends,<a name="FNanchor_451_451" id="FNanchor_451_451"></a><a href="#Footnote_451_451" class="fnanchor">[m]</a> +and might justly convince +<span class="pagenum"><a name="Page_198" id="Page_198">[Pg 198]</a></span> +reflecting men that it were better to risk the +chances of a new dynasty than trust the kingdom to an exasperated faction.</p> + +<div class="sidenote">Edward IV.</div> + +<p>A period of obscurity and confusion ensues, during which we have as little +insight into constitutional as general history. There are no contemporary +chroniclers of any value, and the rolls of parliament, by whose light we +have hitherto steered, become mere registers of private bills, or of +petitions relating to commerce. The reign of Edward IV. is the first +during which no statute was passed for the redress of grievances or +maintenance of the subject's liberty. Nor is there, if I am correct, a +single petition of this nature upon the roll. Whether it were that the +commons had lost too much of their ancient courage to present any +remonstrances, or that a wilful omission has vitiated the record, is hard +to determine; but we certainly must not imagine that a government cemented +with blood poured on the scaffold, as well as in the field, under a +passionate and unprincipled sovereign, would afford no scope for the just +animadversion of parliament.<a name="FNanchor_452_452" id="FNanchor_452_452"></a><a href="#Footnote_452_452" class="fnanchor">[n]</a> +The reign of Edward IV. was a reign of +terror. One half of the noble families had been thinned by proscription; +and though generally restored in blood by the reversal of their +attainders—a measure certainly deserving of much approbation—were still +under the eyes of vigilant and inveterate enemies. The opposite faction +would be cautious how they resisted a king of their own creation, while +the hopes of their adversaries were only dormant. And indeed, without +relying on this supposition, it is commonly seen that, when temporary +circumstances have given a king the means of acting in disregard of his +subjects' privileges, it is a very difficult undertaking for them to +recover a liberty which has no security so effectual as habitual +possession.</p> + +<p><span class="pagenum"><a name="Page_199" id="Page_199">[Pg 199]</a></span> +Besides the severe proceedings against the Lancastrian party, which might +be extenuated by the common pretences, retaliation of similar +proscriptions, security for the actual government, or just punishment of +rebellion against a legitimate heir, there are several reputed instances +of violence and barbarity in the reign of Edward IV. which have not such +plausible excuses. Every one knows the common stories of the citizen who +was attainted of treason for an idle speech that he would make his son +heir to the crown, the house where he dwelt; and of Thomas Burdett, who +wished the horns of his stag in the belly of him who had advised the king +to shoot it. Of the former I can assert nothing, though I do not believe +it to be accurately reported. But certainly the accusation against +Burdett, however iniquitous, was not confined to these frivolous words; +which indeed do not appear in his +indictment,<a name="FNanchor_453_453" id="FNanchor_453_453"></a><a href="#Footnote_453_453" class="fnanchor">[o]</a> +or in a passage +relative to his conviction in the roll of parliament. Burdett was a +servant and friend of the duke of Clarence, and sacrificed as a +preliminary victim. It was an article of charge against Clarence that he +had attempted to persuade the people that "Thomas Burdett his servant, +which was lawfully and truly attainted of treason, was wrongfully put to +death."<a name="FNanchor_454_454" id="FNanchor_454_454"></a><a href="#Footnote_454_454" class="fnanchor">[p]</a> +There could indeed be no more oppressive usage inflicted upon +meaner persons than this attainder of the duke of Clarence—an act for +which a brother could not be pardoned had he been guilty, and which +deepens the shadow of a tyrannical age, if, as it seems, his offence +toward Edward was but levity and rashness.</p> + +<p>But whatever acts of injustice we may attribute, from authority or +conjecture, to Edward's government, it was very far from being unpopular. +His love of pleasure, his affability, his courage and beauty, gave him a +credit with his subjects which he had no real virtue to challenge. This +restored him to the throne, even against the prodigious +<span class="pagenum"><a name="Page_200" id="Page_200">[Pg 200]</a></span> +influence of Warwick, and compelled Henry VII. to treat his memory with respect, and +acknowledge him as a lawful +king.<a name="FNanchor_455_455" id="FNanchor_455_455"></a><a href="#Footnote_455_455" class="fnanchor">[q]</a> +The latter years of his reign were +passed in repose at home after scenes of unparalleled convulsions, and in +peace abroad after more than a century of expensive warfare. His demands +of subsidy were therefore moderate, and easily defrayed by a nation which +was making rapid advances towards opulence. According to Sir John +Fortescue, nearly one fifth of the whole kingdom had come to the king's +hand by forfeiture at some time or other since the commencement of his +reign.<a name="FNanchor_456_456" id="FNanchor_456_456"></a><a href="#Footnote_456_456" class="fnanchor">[r]</a> +Many indeed of these lands had been restored, and others +lavished away in grants, but the surplus revenue must still have been +considerable.</p> + +<p>Edward IV. was the first who practised a new method of taking his +subjects' money without consent of parliament, under the plausible name of +benevolences. These +<span class="pagenum"><a name="Page_201" id="Page_201">[Pg 201]</a></span> +came in place of the still more plausible loans of +former monarchs, and were principally levied on the wealthy traders. +Though no complaint appears in the parliamentary records of his reign, +which, as has been observed, complain of nothing, the illegality was +undoubtedly felt and resented. In the remarkable address to Richard by +that tumultuary meeting which invited him to assume the crown, we find, +among general assertions of the state's decay through misgovernment, the +following strong passage:—"For certainly we be determined rather to +aventure and committe us to the perill of owre lyfs and jopardie of deth, +than to lyve in such thraldome and bondage as we have lyved long tyme +heretofore, oppressed and injured by extortions and newe impositions +ayenst the lawes of God and man, and the libertie, old policie, and lawes +of this realme, whereyn every Englishman is +inherited."<a name="FNanchor_457_457" id="FNanchor_457_457"></a><a href="#Footnote_457_457" class="fnanchor">[s]</a> +Accordingly, in Richard III.'s only parliament an act was passed which, after reciting +in the strongest terms the grievances lately endured, abrogates and annuls +for ever all exactions under the name of +benevolence.<a name="FNanchor_458_458" id="FNanchor_458_458"></a><a href="#Footnote_458_458" class="fnanchor">[t]</a> +The liberties of this country were at least not directly impaired by the usurpation of +Richard. But from an act so deeply tainted with moral guilt, as well as so +violent in all its circumstances, no substantial benefit was likely to +spring. Whatever difficulty there may be in deciding upon the fate of +Richard's nephews after they were immured in the Tower, the more public +parts of the transaction bear unequivocal testimony to his ambitious +usurpation.<a name="FNanchor_459_459" id="FNanchor_459_459"></a><a href="#Footnote_459_459" class="fnanchor">[u]</a> +It would therefore be foreign to the purpose of this +chapter to dwell upon his assumption of the regency, or upon the sort of +election, however curious and remarkable, which gave a pretended authority +to his usurpation of the throne. Neither of these has ever been alleged by +any party in the way of constitutional precedent.</p> + +<div class="sidenote">Conclusion.</div> + +<p>At this epoch I terminate these inquiries into the English constitution; a +sketch very imperfect, I fear, and +<span class="pagenum"><a name="Page_202" id="Page_202">[Pg 202]</a></span> +unsatisfactory, but which may at least +answer the purpose of fixing the reader's attention on the principal +objects, and of guiding him to the purest fountains of constitutional +knowledge. From the accession of the house of Tudor a new period is to be +dated in our history, far more prosperous in the diffusion of opulence and +the preservation of general order than the preceding, but less +distinguished by the spirit of freedom and jealousy of tyrannical power. +We have seen, through the twilight of our Anglo-Saxon records, a form of +civil policy established by our ancestors, marked, like the kindred +governments of the continent, with aboriginal Teutonic features; barbarous +indeed, and insufficient for the great ends of society, but capable and +worthy of the improvement it has received, because actuated by a sound and +vital spirit, the love of freedom and of justice. From these principles +arose that venerable institution, which none but a free and simple people +could have conceived, trial by peers—an institution common in some degree +to other nations, but which, more widely extended, more strictly retained, +and better modified among ourselves, has become perhaps the first, +certainly among the first, of our securities against arbitrary government. +We have seen a foreign conqueror and his descendants trample almost alike +upon the prostrate nation and upon those who had been companions of their +victory, introduce the servitudes of feudal law with more than their usual +rigour, and establish a large revenue by continual precedents upon a +system of universal and prescriptive extortion. But the Norman and English +races, each unfit to endure oppression, forgetting their animosities in a +common interest, enforce by arms the concession of a great charter of +liberties. Privileges wrested from one faithless monarch are preserved +with continual vigilance against the machinations of another; the rights +of the people become more precise, and their spirit more magnanimous, +during the long reign of Henry III. With greater ambition and greater +abilities than his father, Edward I. attempts in vain to govern in an +arbitrary manner, and has the mortification of seeing his prerogative +fettered by still more important limitations. The great council of the +nation is opened to the representatives of the commons. They proceed by +slow and cautious +<span class="pagenum"><a name="Page_203" id="Page_203">[Pg 203]</a></span> +steps to remonstrate against public grievances, to +check the abuses of administration, and sometimes to chastise public +delinquency in the officers of the crown. A number of remedial provisions +are added to the statutes; every Englishman learns to remember that he is +the citizen of a free state, and to claim the common law as his +birthright, even though the violence of power should interrupt its +enjoyment. It were a strange misrepresentation of history to assert that +the constitution had attained anything like a perfect state in the +fifteenth century; but I know not whether there are any essential +privileges of our countrymen, any fundamental securities against arbitrary +power, so far as they depend upon positive institution, which may not be +traced to the time when the house of Plantagenet filled the English +throne.</p> + +<div class="footnotes">FOOTNOTES: + +<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[a]</span></a> +The fullest account we possess of these domestic transactions +from 1294 to 1298 is in Walter Hemingford, one of the historians edited by +Hearne, p. 52-168. They have been vilely perverted by Carte, but extremely +well told by Hume, the first writer who had the merit of exposing the +character of Edward I. See too Knyghton in Twysden's Decem Scriptores, +col. 2492.</p></div> + +<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[b]</span></a> +Walsingham, in Camden's Scriptores Rer. Anglicarum, p. +71-73.</p></div> + +<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[c]</span></a> +Edward would not confirm the charters, notwithstanding his +promise, without the words, salvo jure coronæ nostræ; on which the two +earls retired from court. When the confirmation was read to the people at +St. Paul's, says Hemingford, they blessed the king on seeing the charters +with the great seal affixed; but when they heard the captious conclusion, +they cursed him instead. At the next meeting of parliament, the king +agreed to omit these insidious words, p. 168.</p></div> + +<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[d]</span></a> +The supposed statute, De Tallagio non concedendo, is +considered by Blackstone (Introduction to Charters, p. 67) as merely an +abstract of the Confirmatio Chartarum. By that entitled Articuli super +Chartas, 28 Edw. I., a court was erected in every county, of three knights +or others, to be elected by the commons of the shire, whose sole province +was to determine offences against the two charters, with the power of +punishing by fine and imprisonment; but not to extend to any case wherein +a remedy by writ was already provided. The Confirmatio Chartarum is +properly denominated a statute, and always printed as such; but in form, +like Magna Charta, it is a charter, or letters patent, proceeding from the +crown, without even reciting the consent of the realm. And its "teste" is +at Ghent, 2 Nov. 1297; Edward having engaged, conjointly with the count of +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. +</p><p> +The Lords' Committee do not seem to reject the statute "de tallagio non +concedendo" 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 I." 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 authentic form, and +the other is only found in an unauthorized copy, there can be no question +which ought to be quoted.</p></div> + +<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[e]</span></a> +Hody (Treatise on Convocations, p. 126) states the matter +thus: in the Saxon times all bishops and abbots sat and voted in the state +councils, or parliament, as such, and not on account of their tenures. +After the Conquest the abbots sat there not as such, but by virtue of +their tenures, as barons; and the bishops sat in a double capacity, as +bishops, and as barons.</p></div> + +<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[f]</span></a> Hody, p. 128.</p></div> + +<div class="footnote"><p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[g]</span></a> +[<a href="#N1"><span class="smcap">Note</span> I.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[h]</span></a> +Madox, Baronia Anglica, p. 138. Dialogus de Scaccario, 1. i. +c. 17. Lyttelton's Henry II. vol. ii. p. 217. The last of these writers +supposes, contrary to Selden, that the earls continued to be governors of +their counties under Henry II. Stephen created a few titular earls, with +grants of crown lands to support them; but his successor resumed the +grants, and deprived them of their earldoms. +</p><p> +In Rymer's Fœdera, vol. i. p. 3, we find a grant of Matilda, creating +Milo of Gloucester earl of Hereford, with the moat and castle of that city +in fee to him and his heirs, the third penny of the rent of the city, and +of the pleas in the county, three manors and a forest, and the service of +three tenants in chief, with all their fiefs; to be held with all +privileges and liberties as fully as ever any earl in England had +possessed them.</p></div> + +<div class="footnote"><p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[i]</span></a> Selden's Works, vol. iii. p. 713-743.</p></div> + +<div class="footnote"><p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[k]</span></a> Lyttelton's Henry II. vol. ii. p. 212.</p></div> + +<div class="footnote"><p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[m]</span></a> Hody on Convocations, p. 222, 234.</p></div> + +<div class="footnote"><p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[n]</span></a> Lib. ii. c. 9.</p></div> + +<div class="footnote"><p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[o]</span></a> Hody and Lord Lyttelton maintain these "barons of the second +rank" to have been the sub-vassals of the crown; tenants of the great +barons to whom the name was sometimes improperly applied. This was very +consistent with their opinion, that the commons were a part of parliament +at that time. But Hume, assuming at once the truth of their interpretation +in this instance, and the falsehood of their system, treats it as a +deviation from the established rule, and a proof of the unsettled state of +the constitution.</p></div> + +<div class="footnote"><p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[p]</span></a> [<a href="#N2"><span class="smcap">Note</span> II.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[q]</span></a> M. Paris, p. 785. The barons even tell the king that this +was contrary to <i>his</i> charter, in which nevertheless the clause to that +effect, contained in his father's charter, had been omitted.</p></div> + +<div class="footnote"><p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[r]</span></a> Henry II., in 1175, forbad any of those who had been +concerned in the late rebellion to come to his court without a particular +summons. Carte, vol. ii. p. 249.</p></div> + +<div class="footnote"><p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[s]</span></a> Upon the subject of tenure by barony, besides the writers +already quoted, see West's Inquiry into the Method of creating Peers, and +Carte's History of England, vol. ii. p. 247.</p></div> + +<div class="footnote"><p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[t]</span></a> Hody on Convocations, p. 293.</p></div> + +<div class="footnote"><p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[u]</span></a> Brady, Introduction to History of England. Appendix, p. 43.</p></div> + +<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[x]</span></a> Brady's History of England, vol. i. Appendix, p. 182.</p></div> + +<div class="footnote"><p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[y]</span></a> Brady's Introduction, p. 94.</p></div> + +<div class="footnote"><p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[z]</span></a> Hist. of Common Law, vol, i. p. 202.</p></div> + +<div class="footnote"><p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[a]</span></a> This assembly is mentioned in the preamble, and afterwards, +of the spurious laws of Edward the Confessor; and I have been accused of +passing it over too slightly. The fact certainly does not rest on the +authority of Hoveden, who transcribes these laws <i>verbatim</i>; and they are +in substance an ancient document. There seems to me somewhat rather +suspicious in this assembly of delegates; it looks like a pious fraud to +maintain the old Saxon jurisprudence, which was giving way. But even if we +admit the fact as here told, I still adhere to the assertion that there is +no appearance that these twelve deputies of each county were invested with +any higher authority than that of declaring their ancient usages. Any +supposition of a real legislative parliament would be inconsistent with +all that we know of the state of England under the Conqueror. And what an +anomaly, upon every constitutional principle, Anglo-Saxon or Norman, would +be a parliament of twelve from each county! Nor is it perfectly manifest +that they were chosen by the people; the word summoneri fecit is first +used; and afterwards, electis de (not <i>in</i>) singulis totius patriæ +comitatibus. This might be construed of the king's selection; but perhaps +the common interpretation is rather the better. +</p><p> +William, the compiler informs us, having heard some of the Danish laws, +was disposed to confirm them in preference to those of England; but +yielded to the supplication of the delegates, omnes compatriotæ, qui leges +narraverant, that he would permit them to retain the customs of their +ancestors, imploring him by the soul of King Edward, cujus erant leges, +nec aliorum exterorum. The king at length gave way, by the advice and +request of his barons, consilio et precatu baronum. These of course were +Normans; but what inference can be drawn in favour of parliamentary +representation in England from the behaviour of the rest? They were +supplicants, not legislators.</p></div> + +<div class="footnote"><p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[b]</span></a> 2 Prynne's Register, p. 16.</p></div> + +<div class="footnote"><p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[c]</span></a> Brady's Introduction, Appendix, pp. 41 and 44. "The language +of these writs implies a distinction between such as were styled barons, +apparently including the earls and the four knights who were to come from +the several counties ad loquendum, and who were also distinguished from +the knights summoned to attend with arms, in performance, it should seem, +of the military service due by their respective tenures; and the writs, +therefore, apparently distinguished certain tenants in chief by +knight-service from barons, if the knights so summoned to attend with arms +were required to attend by reason of their respective tenures in chief of +the king. How the four knights of each county who were thus summoned to +confer with the king were to be chosen, whether by the county, or +according to the mere will of the sheriff, does not appear; but it seems +most probable that they were intended by the king as representatives of +the freeholders of each county, and to balance the power of the hostile +nobles, who were then leagued against him; and the measure might lead to +conciliate the minds of those who would otherwise have had no voice in the +legislative assembly." Report of Lords' Committee, p. 61. +</p><p> +This would be a remarkable fact, and the motive is by no means improbable, +being perhaps that which led to the large provisions for summoning tenants +in chief, contained in the charter of John, and afterwards passed over. +But this parley of the four knights from each county, for they are only +summoned ad loquendum, may not amount to bestowing on them any legislative +power. It is nevertheless to be remembered that the word parliament meant, +by its etymology, nothing more; and the words, ad loquendum, may have been +used in reference to that. It is probable that these writs were not +obeyed; we have no evidence that they were, and it was a season of great +confusion very little before the granting of the charter of Henry III.</p></div> + +<div class="footnote"><p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[d]</span></a> Brady's Hist. of England, vol. i. Appendix, p. 227.</p></div> + +<div class="footnote"><p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[e]</span></a> 2 Prynne, p. 23.</p></div> + +<div class="footnote"><p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[f]</span></a> "This writ tends strongly to show that there then existed no +law by which a representation either of the king's tenants in capite or of +others, for the purpose of constituting a legislative assembly, or for +granting an aid, was specially provided; and it seems to have been the +first instance appearing on any record now extant, of an attempt to +substitute representatives elected by bodies of men for the attendance of +the individual so to be represented, personally or by their several +procurators, in an assembly convened for the purpose of obtaining an aid." +Report, p. 95.</p></div> + +<div class="footnote"><p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[g]</span></a> 2 Prynne, p. 27.</p></div> + +<div class="footnote"><p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[h]</span></a> 12 Ric. II. c. 12. Prynne's 4th Register.</p></div> + +<div class="footnote"><p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[i]</span></a> Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this +law was not regularly acted upon till 1587. p. 368.</p></div> + +<div class="footnote"><p><a name="Footnote_32_32" id="Footnote_32_32"></a><a href="#FNanchor_32_32"><span class="label">[k]</span></a> What can one who adopts this opinion of Dr. Brady say to the +following record? Rex militibus, liberis hominibus, et <i>toti communitati</i> +comitatus Wygorniæ tam intra libertates quam extra, salutem. Cum comites, +barones, milites, liberi homines, et communitates comitatuum regni nostri +vicesimam omnium bonorum suorum mobilium, civesque et burgenses et +communitates omnium civitatum et burgorum ejusdem regni, necnon tenentes +de antiquis dominicis coronæ nostræ quindecimam bonorum suorum mobilium +nobis concesserunt. Pat. Rot. 1 E. II. in Rot. Parl. vol. i. p. 442. See +also p. 241 and p. 269. If the word communitas is here used in any precise +sense, which, when possible, we are to suppose in construing a legal +instrument, it must designate, not the tenants in chief, but the inferior +class, who, though neither freeholders nor free burgesses, were yet +contributable to the subsidy on their goods.</p></div> + +<div class="footnote"><p><a name="Footnote_33_33" id="Footnote_33_33"></a><a href="#FNanchor_33_33"><span class="label">[m]</span></a> Madox, Firma Burgi, p. 99 and p. 102 note Z.</p></div> + +<div class="footnote"><p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[n]</span></a> Prynne's 2nd Register, p. 50.</p></div> + +<div class="footnote"><p><a name="Footnote_35_35" id="Footnote_35_35"></a><a href="#FNanchor_35_35"><span class="label">[o]</span></a> Carte's Hist. of England, ii. 250.</p></div> + +<div class="footnote"><p><a name="Footnote_36_36" id="Footnote_36_36"></a><a href="#FNanchor_36_36"><span class="label">[p]</span></a> The present question has been discussed with much ability in +the Edinburgh Review, vol. xxvi. p. 341. [<a href="#N3"><span class="smcap">Note</span> III.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_37_37" id="Footnote_37_37"></a><a href="#FNanchor_37_37"><span class="label">[q]</span></a> Wilkins, p. 71.</p></div> + +<div class="footnote"><p><a name="Footnote_38_38" id="Footnote_38_38"></a><a href="#FNanchor_38_38"><span class="label">[r]</span></a> Burgensis Exoniæ urbis habent extra civitatem terram +duodecim carucatarum: quæ nullam consuetudinem reddunt nisi ad ipsam +civitatem. Domesday, p. 100. At Canterbury the burgesses had forty-five +houses without the city, de quibus ipsi habebant gablum et consuetudinem, +rex autem socam et sacam; ipsi quoque burgenses habebant de rege triginta +tres acras prati in gildam, suam. p. 2. In Lincoln and Stamford some +resident proprietors, called Lagemanni, had jurisdiction (socam et sacam) +over their tenants. But nowhere have I been able to discover any trace of +municipal self-government; unless Chester may be deemed an exception, +where we read of twelve judices civitatis; but by whom constituted does +not appear. The word lageman seems equivalent to judex. The guild +mentioned above at Canterbury was, in all probability, a voluntary +association: so at Dover we find the burgesses' guildhall, gihalla +burgensium. p. 1. +</p><p> +Many of the passages in Domesday relative to the state of burgesses are +collected in Brady's History of Boroughs; a work which, if read with due +suspicion of the author's honesty, will convey a great deal of knowledge. +</p><p> +Since the former part of this note was written, I have met with a charter +granted by Henry II. to Lincoln, which seems to refer, more explicitly +than any similar instrument, to municipal privileges of jurisdiction +enjoyed by the citizens under Edward the Confessor. These charters, it is +well known, do not always recite what is true; yet it is possible that the +citizens of Lincoln, which had been one of the five Danish towns, +sometimes mentioned with a sort of distinction by writers before the +Conquest, might be in a more advantageous situation than the generality of +burgesses. Sciatis me concessisse civibus meis Lincoln, omnes libertates +et consuetudines et leges suas, quas habuerunt tempore Edwardi et Will. et +Henr. regum Angliæ, et gildam suam mercatoriam de hominibus civitatis et +de aliis mercatoribus comitatus, sicut illam habuerunt tempore +predictorum, antecessorum nostrorum, regum Angliæ, melius et liberius. Et +omnes homines qui infra quatuor divisas civitates manent et mercatum +deducunt, sint ad gildas, et consuetudines et assisas civitatis, sicut +melius fuerunt temp. Edw. et Will. et Hen. regum Angliæ. Rymer, t. i. p. +40 (edit. 1816). +</p><p> +I am indebted to the friendly remarks of the periodical critic whom I have +before mentioned for reminding me of other charters of the same age, +expressed in a similar manner, which in my haste I had overlooked, though +printed in common books. But whether these general words ought to outweigh +the silence of Domesday Book I am not prepared to decide. I have admitted +below that the possession of corporate property implies an elective +government for its administration, and I think it perfectly clear that the +guilds made by-laws for the regulation of their members. Yet this is +something different from municipal jurisdiction over all the inhabitants +of a town. [<a href="#N4"><span class="smcap">Note</span> IV.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_39_39" id="Footnote_39_39"></a><a href="#FNanchor_39_39"><span class="label">[s]</span></a> Madox, Hist. of Exchequer, c. 17.</p></div> + +<div class="footnote"><p><a name="Footnote_40_40" id="Footnote_40_40"></a><a href="#FNanchor_40_40"><span class="label">[t]</span></a> Madox, Firma Burgi, p. 1. There is one instance, I know not +if any more could be found, of a firma burgi before the Conquest. It was +at Huntingdon. Domesday, p. 203.</p></div> + +<div class="footnote"><p><a name="Footnote_41_41" id="Footnote_41_41"></a><a href="#FNanchor_41_41"><span class="label">[u]</span></a> Madox, p. 12, 13.</p></div> + +<div class="footnote"><p><a name="Footnote_42_42" id="Footnote_42_42"></a><a href="#FNanchor_42_42"><span class="label">[x]</span></a> Id. p. 21.</p></div> + +<div class="footnote"><p><a name="Footnote_43_43" id="Footnote_43_43"></a><a href="#FNanchor_43_43"><span class="label">[y]</span></a> I have read somewhere that this charter was granted in 1101. +But the instrument itself, which is only preserved by an Inspeximus of +Edward IV., does not contain any date. Rymer, t. i. p. 11 (edit. 1816). +Could it be traced so high, the circumstance would be remarkable, as the +earliest charters granted by Louis VI., supposed to be the father of these +institutions, are several years later. +</p><p> +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 succeeded. It was as +<i>dapifer regis</i>; but he is not so named in the charter. Dugdale's +Baronage, p. 132. The date, therefore, still seems problematical.</p></div> + +<div class="footnote"><p><a name="Footnote_44_44" id="Footnote_44_44"></a><a href="#FNanchor_44_44"><span class="label">[z]</span></a> This did not, however, save the citizens from paying one +hundred marks to the king for this privilege. Mag. Rot. 5 Steph. apud +Madox, Hist. Exchequer, t. xi. I do not know that the charter of Henry I. +can be suspected; but Brady, in his treatise of Boroughs (p. 38, edit. +1777), does not think proper once to mention it; and indeed uses many +expressions incompatible with its existence.</p></div> + +<div class="footnote"><p><a name="Footnote_45_45" id="Footnote_45_45"></a><a href="#FNanchor_45_45"><span class="label">[a]</span></a> Blomefield, Hist of Norfolk, vol. ii. p. 16, says that Henry +I. granted the same privileges by charter to Norwich in 1122 which London +possessed. Yet it appears that the king named the port reeve or provost; +but Blomefield suggests that he was probably recommended by the citizens, +the office being annual.</p></div> + +<div class="footnote"><p><a name="Footnote_46_46" id="Footnote_46_46"></a><a href="#FNanchor_46_46"><span class="label">[b]</span></a> Madox, Firma Burgi, p. 23. Hickes has given us a bond of +fellowship among the thanes of Cambridgeshire, containing several curious +particulars. A composition of eight pounds, exclusive, I conceive, of the +usual weregild, was to be enforced from the slayer of any fellow. If a +fellow (gilda) killed a man of 1200 shillings weregild, each of the +society was to contribute half a marc; for a ceorl, two oræ (perhaps ten +shillings); for a Welshman, one. If however this act was committed +wantonly, the fellow had no right to call on the society for contribution. +If one fellow killed another, he was to pay the legal weregild to his +kindred, and also eight pounds to the society. Harsh words used by one +fellow towards another, or even towards a stranger, incurred a fine. No +one was to eat or drink in the company of one who had killed his brother +fellow, unless in the presence of the king, bishop, or alderman. +Dissertatio Epistolaris, p. 21. +</p><p> +We find in Wilkins's Anglo-Saxon Laws, p. 65, a number of ordinances sworn +to by persons both of noble and ignoble rank (ge eorlisce ge ceorlisce), +and confirmed by king Athelstan. These are in the nature of by-laws for +the regulation of certain societies that had been formed for the +preservation of public order. Their remedy was rather violent: to kill and +seize the effects of all who should rob any member of the association. +This property, after deducting the value of the things stolen, was to be +divided into two parts; one given to the criminal's wife if not an +accomplice, the other shared between the king and the society. +</p><p> +In another fraternity among the clergy and laity of Exeter every fellow +was entitled to a contribution in case of taking a journey, or if his +house was burned. Thus they resembled, in some degree, our friendly +societies; and display an interesting picture of manners, which has +induced me to insert this note, though not greatly to the present purpose. +See more of the Anglo-Saxon guilds in Turner's History, vol. ii. p. 102. +Societies of the same kind, for purposes of religion, charity, or mutual +assistance, rather than trade, may be found long afterwards. Blomefield's +Hist. of Norfolk, vol. iii. p. 494.</p></div> + +<div class="footnote"><p><a name="Footnote_47_47" id="Footnote_47_47"></a><a href="#FNanchor_47_47"><span class="label">[c]</span></a> See a grant from Turstin, archbishop of York, in the reign +of Henry I., to the burgesses of Beverley, that they may have their +<i>hanshus</i> (i.e. guildhall) like those of York, et ibi sua statuta +pertractent ad honorem Dei, &c. Rymer, t. i. p. 10, edit. 1816.</p></div> + +<div class="footnote"><p><a name="Footnote_48_48" id="Footnote_48_48"></a><a href="#FNanchor_48_48"><span class="label">[d]</span></a> Madox, Firma Burgi, p. 189.</p></div> + +<div class="footnote"><p><a name="Footnote_49_49" id="Footnote_49_49"></a><a href="#FNanchor_49_49"><span class="label">[e]</span></a> Idem, passim. A few of an earlier date may be found in the +new edition of Rymer.</p></div> + +<div class="footnote"><p><a name="Footnote_50_50" id="Footnote_50_50"></a><a href="#FNanchor_50_50"><span class="label">[f]</span></a> Lyttelton's History of Henry II., vol. ii. p. 170. +Macpherson's Annals of Commerce, vol. i. p. 331.</p></div> + +<div class="footnote"><p><a name="Footnote_51_51" id="Footnote_51_51"></a><a href="#FNanchor_51_51"><span class="label">[g]</span></a> Macpherson, p. 245.</p></div> + +<div class="footnote"><p><a name="Footnote_52_52" id="Footnote_52_52"></a><a href="#FNanchor_52_52"><span class="label">[h]</span></a> Id. p. 282.</p></div> + +<div class="footnote"><p><a name="Footnote_53_53" id="Footnote_53_53"></a><a href="#FNanchor_53_53"><span class="label">[i]</span></a> Cives Lundinenses, et pars nobilium qui eo tempore +consistebant Lundoniæ, Clitonem Eadmundum unanimi consensu in regem +levavere. p. 249.</p></div> + +<div class="footnote"><p><a name="Footnote_54_54" id="Footnote_54_54"></a><a href="#FNanchor_54_54"><span class="label">[k]</span></a> Chron. Saxon. p. 154. Malmsbury, p. 76. He says the people +of London were become almost barbarians through their intercourse with the +Danes; propter frequentem convictum.</p></div> + +<div class="footnote"><p><a name="Footnote_55_55" id="Footnote_55_55"></a><a href="#FNanchor_55_55"><span class="label">[m]</span></a> Londinenses, qui sunt quasi optimates pro magnitudine +civitatis in Angliâ. Malmsb. p. 189. Thus too Matthew Paris: cives +Londinenses, quos propter civitatis dignitatem et civium antiquam +libertatem Barones consuevimus appellare. p. 744. And in another place: +totius civitatis cives, quos barones vocant. p. 835. Spelman says that the +magistrates of several other towns were called barons. Glossary, Barones +de London. +</p><p> +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 metropolis of the kingdom. Et dicebant cives +Lundonienses fuisse quietos de theloneo in omni foro, et semper et ubique, +per totam Angliam, à tempore quo Roma primo fundata fuit, et civitatem +Lundoniæ, eodem tempore fundatam, talem debere habere libertatem per totam +Angliam, et ratione civitatis privilegiatæ quæ olim metropolis fuit et +caput regni, et ratione antiquitatis. 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. 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.</p></div> + +<div class="footnote"><p><a name="Footnote_56_56" id="Footnote_56_56"></a><a href="#FNanchor_56_56"><span class="label">[n]</span></a> Drake, the historian of York, maintains that London was less +populous, about the time of the Conquest, than that city; and quotes +Hardynge, a writer of Henry V.'s age, to prove that the interior part of +the former was not closely built. Eboracum, p. 91. York however does not +appear to have contained more than 10,000 inhabitants at the accession of +the Conqueror; and the very exaggerations as to the populousness of London +prove that it must have far exceeded that number. Fitz-Stephen, the +contemporary biographer of Thomas à Becket, tells us of 80,000 men capable +of bearing arms within its precincts; where however his translator, Pegge, +suspects a mistake of the MS. in the numerals. And this, with similar +hyperboles, so imposed on the judicious mind of Lord Lyttelton, that, +finding in Peter of Blois the inhabitants of London reckoned at +quadraginta millia, he has actually proposed to read quadringenta. Hist. +Henry II., vol. iv. ad finem. It is hardly necessary to observe that the +condition of agriculture and internal communication would not have allowed +half that number to subsist. +</p><p> +The subsidy-roll of 1377, published in the Archæologia, vol. vii., would +lead to a conclusion that all the inhabitants of London did not even then +exceed 35,000. If this be true, they could not have amounted, probably, to +so great a number two or three centuries earlier. But the numbers given in +that document have been questioned as to Norwich upon very plausible +grounds, and seem rather suspicious in the present instance. [<a href="#N5"><span class="smcap">Note</span> V.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_57_57" id="Footnote_57_57"></a><a href="#FNanchor_57_57"><span class="label">[o]</span></a> This seditious, or at least refractory character of the +Londoners, was displayed in the tumult headed by William Longbeard in the +time of Richard I., and that under Constantine in 1222, the patriarchs of +a long line of city demagogues. Hoveden, p. 765. M. Paris, p. 154.</p></div> + +<div class="footnote"><p><a name="Footnote_58_58" id="Footnote_58_58"></a><a href="#FNanchor_58_58"><span class="label">[p]</span></a> Hoveden's expressions are very precise, and show that the +share taken by the citizens of London (probably the mayor and aldermen) in +this measure was no tumultuary acclamation, but a deliberate concurrence +with the nobility. Comes Johannes, et fere omnes episcopi, et comites +Angliæ eâdem die intraverunt Londonias; et in crastino prædictus Johannes +frater regis, et archiepiscopus Rothomagensis, et omnes episcopi, et +comites et barones, et cives Londonienses cum illis convenerunt in atrio +ecclesiæ S. Pauli.... Placuit ergo Johanni fratri regis, et omnibus +episcopis, et comitibus et baronibus regni, et civibus Londoniarum, quod +cancellarius ille deponeretur, et deposuerunt eum, &c. p. 701.</p></div> + +<div class="footnote"><p><a name="Footnote_59_59" id="Footnote_59_59"></a><a href="#FNanchor_59_59"><span class="label">[q]</span></a> The reader may consult, for a more full account of the +English towns before the middle of the thirteenth century, Lyttelton's +History of Henry II. vol. ii. p. 174; and Macpherson's Annals of +Commerce.</p></div> + +<div class="footnote"><p><a name="Footnote_60_60" id="Footnote_60_60"></a><a href="#FNanchor_60_60"><span class="label">[r]</span></a> Frequent proofs of this may be found in Madox, Hist. of +Exchequer, c. 17, as well as in Matt. Paris, who laments it with +indignation. Cives Londinenses, contra consuetudinem et libertatem +civitatis, quasi servi ultimæ conditionis, non sub nomine aut titulo +liberi adjutorii, sed tallagii, quod multum eos angebat, regi, licet +inviti et renitentes, numerare sunt coacti. p. 492. Heu ubi est +Londinensis, toties empta, toties concessa, toties scripta, toties jurata +libertas! &c. p. 627. The king sometimes suspended their market, that is, +I suppose, their right of toll, till his demands were paid.</p></div> + +<div class="footnote"><p><a name="Footnote_61_61" id="Footnote_61_61"></a><a href="#FNanchor_61_61"><span class="label">[s]</span></a> These writs are not extant, having perhaps never been +returned; and consequently we cannot tell to what particular places they +were addressed. It appears however that the assembly was intended to be +numerous; for the entry runs: scribitur civibus Ebor, civibus Lincoln, et +cæteris burgis Angliæ. It is singular that no mention is made of London, +which must have had some special summons. Rymer, t. i. p. 803. Dugdale, +Summonitiones ad Parliamentum, p. 1.</p></div> + +<div class="footnote"><p><a name="Footnote_62_62" id="Footnote_62_62"></a><a href="#FNanchor_62_62"><span class="label">[t]</span></a> It would ill repay any reader's diligence to wade through +the vapid and diluted pages of Tyrrell; but whoever would know what can be +best pleaded for a higher antiquity of our present parliamentary +constitution may have recourse to Hody on Convocations, and Lord +Lyttelton's History of Henry II. vol. ii. p. 276, and vol. iv. p. 79-106. +I do not conceive it possible to argue the question more ingeniously than +has been done by the noble writer last quoted. Whitelocke, in his +commentary on the parliamentary writ, has treated it very much at length, +but with no critical discrimination. [<a href="#N7"><span class="smcap">Note</span> VII.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_63_63" id="Footnote_63_63"></a><a href="#FNanchor_63_63"><span class="label">[u]</span></a> Madox, Hist. of Exchequer, c. 17.</p></div> + +<div class="footnote"><p><a name="Footnote_64_64" id="Footnote_64_64"></a><a href="#FNanchor_64_64"><span class="label">[x]</span></a> The only apparent exception to this is in the letter +addressed to the pope by the parliament of 1246; the salutation of which +runs thus: Barones, proceres, et magnates, <i>ac nobiles portuum maris +habitatores</i>, necnon et clerus et populus universus, salutem. Matt. Paris, +p. 696. It is plain, I think, from these words, that some of the chief +inhabitants of the Cinque Ports, at that time very flourishing towns, were +present in this parliament. But whether they sat as representatives, or by +a peculiar writ of summons, is not so evident; and the latter may be the +more probable hypothesis of the two.</p></div> + +<div class="footnote"><p><a name="Footnote_65_65" id="Footnote_65_65"></a><a href="#FNanchor_65_65"><span class="label">[y]</span></a> Thus Matthew Paris tells us that in 1237 the whole kingdom, +regni totius universitas, repaired to a parliament of Henry III. p. 367.</p></div> + +<div class="footnote"><p><a name="Footnote_66_66" id="Footnote_66_66"></a><a href="#FNanchor_66_66"><span class="label">[z]</span></a> Brady's Introduction to Hist. of England, p. 38.</p></div> + +<div class="footnote"><p><a name="Footnote_67_67" id="Footnote_67_67"></a><a href="#FNanchor_67_67"><span class="label">[a]</span></a> Convocatis universis Angliæ prelatis et magnatibus, necnon +cunctatum regni sui civitatum et burgorum potentioribus. Wykes, in Gale, +XV Scriptores, t. ii. p. 88. I am indebted to Hody on Convocations for +this reference, which seems to have escaped most of our constitutional +writers.</p></div> + +<div class="footnote"><p><a name="Footnote_68_68" id="Footnote_68_68"></a><a href="#FNanchor_68_68"><span class="label">[b]</span></a> Hoc anno ... convenerunt archiepiscopi, episcopi, comites et +barones, abbates et priores, et de quolibet comitatu quatuor milites, et +de quâlibet civitate quatuor. Annales Waverleienses in Gale, t. ii. p. +227. I was led to this passage by Atterbury, Rights of Convocations, p. +310, where some other authorities less unquestionable are adduced for the +same purpose. Both this assembly and that mentioned by Wykes in 1269 were +certainly parliaments, and acted as such, particularly the former, though +summoned for purposes not strictly parliamentary.</p></div> + +<div class="footnote"><p><a name="Footnote_69_69" id="Footnote_69_69"></a><a href="#FNanchor_69_69"><span class="label">[c]</span></a> The statute of Marlebridge is said to be made convocatis +discretioribus, tam majoribus quàm minoribus; that of Westminster primer, +par son conseil, et par l'assentements des archievesques, evesques, abbes, +priors, countes, barons, et tout le comminality de la terre illonques +summones. The statute of Gloucester runs, appelles les plus discretes de +son royaume, auxibien des grandes come des meinders. These preambles seem +to have satisfied Mr. Prynne that the commons were then represented, +though the writs are wanting; and certainly no one could be less disposed +to exaggerate their antiquity. 2nd Register, p. 30.</p></div> + +<div class="footnote"><p><a name="Footnote_70_70" id="Footnote_70_70"></a><a href="#FNanchor_70_70"><span class="label">[d]</span></a> Brady's Hist. of England, vol. ii. Appendix; Carte, vol. ii. +p. 257.</p></div> + +<div class="footnote"><p><a name="Footnote_71_71" id="Footnote_71_71"></a><a href="#FNanchor_71_71"><span class="label">[e]</span></a> This is commonly denominated the parliament of Acton +Burnell; the clergy and commons having sat in that town, while the barons +passed judgment upon David prince of Wales at Shrewsbury. The towns which +were honoured with the privilege of representation, and may consequently +be supposed to have been at that time the most considerable in England, +were York, Carlisle, Scarborough, Nottingham, Grimsby, Lincoln, +Northampton, Lynn, Yarmouth, Colchester, Norwich, Chester, Shrewsbury, +Worcester, Hereford, Bristol, Canterbury, Winchester, and Exeter. Rymer, +t. ii. p. 247. +</p><p> +"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 parliament, 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 Edw. I. m. 2nd. +</p><p> +As the parliament was summoned to meet at Shrewsbury, 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 Exchequer—des Estatus de +Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at +Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del +reigne le Rey Edward, Fitz le Rey Henry, unzime. Report 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 à Acton Burnell, and again mentions l'avant dit +statut fait à Acton Burnell. This seems to afford a voucher for what is +said in my text, which has been controverted by a learned antiquary.[*] It +is certain that the lords were at Shrewsbury in their judicial character +condemning Llewellin; but whether they proceeded afterwards to Acton +Burnell, and joined in the statute, is not quite so clear. +</p><p> +* Archæological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne.</p></div> + +<div class="footnote"><p><a name="Footnote_72_72" id="Footnote_72_72"></a><a href="#FNanchor_72_72"><span class="label">[f]</span></a> [<a href="#N6"><span class="smcap">Note VI.</span></a>]</p></div> + +<div class="footnote"><p><a name="Footnote_73_73" id="Footnote_73_73"></a><a href="#FNanchor_73_73"><span class="label">[g]</span></a> Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's +Hist. of Hen. II. vol. iv. p. 89.</p></div> + +<div class="footnote"><p><a name="Footnote_74_74" id="Footnote_74_74"></a><a href="#FNanchor_74_74"><span class="label">[h]</span></a> 6 Ric. II. stat. 2, c. iv.</p></div> + +<div class="footnote"><p><a name="Footnote_75_75" id="Footnote_75_75"></a><a href="#FNanchor_75_75"><span class="label">[i]</span></a> Rot. Parl. vol. iv. p. 22.</p></div> + +<div class="footnote"><p><a name="Footnote_76_76" id="Footnote_76_76"></a><a href="#FNanchor_76_76"><span class="label">[k]</span></a> Though such an argument would not be conclusive, it might +afford some ground for hesitation, if the royal burghs of Scotland were +actually represented in their parliament more than half a century before +the date assigned to the first representation of English towns. Lord +Hailes concludes from a passage in Fordun "that as early as 1211 burgesses +gave suit and presence in the great council of the king's vassals; though +the contrary has been asserted with much confidence by various authors." +Annals of Scotland, vol. i. p. 139. Fordun's words, however, so far from +importing that they formed a member of the legislature, which perhaps Lord +Hailes did not mean by the quaint expression "gave suit and presence," do +not appear to me conclusive to prove that they were actually present. Hoc +anno Rex Scotiæ Willelmus magnum tenuit consilium. Ubi, petito ab +optimatibus auxilio, promiserunt se daturos decem mille marcas: præter +burgenses regni, qui sex millia promiserunt. Those who know the brief and +incorrect style of chronicles will not think it unlikely that the offer of +6000 marks by the burgesses was not made in parliament, but in consequence +of separate requisitions from the crown. Pinkerton is of opinion that the +magistrates of royal burghs might upon this, and perhaps other occasions, +have attended at the bar of parliament with their offers of money. But the +deputies of towns do not appear as a part of parliament till 1326. Hist. +of Scotland, vol. i. p. 352, 371.</p></div> + +<div class="footnote"><p><a name="Footnote_77_77" id="Footnote_77_77"></a><a href="#FNanchor_77_77"><span class="label">[m]</span></a> [<a href="#N7"><span class="smcap">Note</span> VII.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_78_78" id="Footnote_78_78"></a><a href="#FNanchor_78_78"><span class="label">[n]</span></a> These expressions cannot appear too strong. But it is very +remarkable that to the parliament of 18 Edward III. the writs appear to +have summoned none of the towns, but only the counties. Willis, Notit. +Parliament. vol. i. Preface, p. 13. Prynne's Register, 3rd part, p. 144. +Yet the citizens and burgesses are once, but only once, named as present +in the parliamentary roll; and there is, in general, a chasm in place of +their names, where the different ranks present are enumerated. Rot. Parl. +vol. ii. p. 146. A subsidy was granted at this parliament; so that, if the +citizens and burgesses were really not summoned, it is by far the most +violent stretch of power during the reign of Edward III. But I know of no +collateral evidence to illustrate or disprove it.</p></div> + +<div class="footnote"><p><a name="Footnote_79_79" id="Footnote_79_79"></a><a href="#FNanchor_79_79"><span class="label">[o]</span></a> Tallages were imposed without consent of parliament in 17 E. +I. Wykes, p. 117; and in 32 E. I. Brady's Hist. of Eng. vol. ii. In the +latter instance the king also gave leave to the lay and spiritual nobility +to set a tallage on their own tenants. This was subsequent to the +Confirmatio Chartarum, and unquestionably illegal.</p></div> + +<div class="footnote"><p><a name="Footnote_80_80" id="Footnote_80_80"></a><a href="#FNanchor_80_80"><span class="label">[p]</span></a> Prynne's 2nd Register. It may be remarked that writs of +summons to great councils never ran ad faciendum, but ad tractandum, +consulendum et consentiendum; from which some would infer that faciendum +had the sense of enacting; since statutes could not be passed in such +assemblies. Id. p. 92.</p></div> + +<div class="footnote"><p><a name="Footnote_81_81" id="Footnote_81_81"></a><a href="#FNanchor_81_81"><span class="label">[q]</span></a> 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great +council), p. 48.</p></div> + +<div class="footnote"><p><a name="Footnote_82_82" id="Footnote_82_82"></a><a href="#FNanchor_82_82"><span class="label">[r]</span></a> Brady's Hist. of England, vol. ii. p. 40; Parliamentary +History, vol. i. p. 206; Rot. Parl. t. ii. p. 66.</p></div> + +<div class="footnote"><p><a name="Footnote_83_83" id="Footnote_83_83"></a><a href="#FNanchor_83_83"><span class="label">[s]</span></a> Carte, vol. ii. p. 451; Parliamentary History, vol. i. p. +234.</p></div> + +<div class="footnote"><p><a name="Footnote_84_84" id="Footnote_84_84"></a><a href="#FNanchor_84_84"><span class="label">[t]</span></a> Rot. Parl. vol. i. p. 289.</p></div> + +<div class="footnote"><p><a name="Footnote_85_85" id="Footnote_85_85"></a><a href="#FNanchor_85_85"><span class="label">[u]</span></a> Id. p. 430.</p></div> + +<div class="footnote"><p><a name="Footnote_86_86" id="Footnote_86_86"></a><a href="#FNanchor_86_86"><span class="label">[x]</span></a> Id. vol. ii. p. 7.</p></div> + +<div class="footnote"><p><a name="Footnote_87_87" id="Footnote_87_87"></a><a href="#FNanchor_87_87"><span class="label">[y]</span></a> Id. p. 289, 351, 430.</p></div> + +<div class="footnote"><p><a name="Footnote_88_88" id="Footnote_88_88"></a><a href="#FNanchor_88_88"><span class="label">[z]</span></a> Id. p. 5.</p></div> + +<div class="footnote"><p><a name="Footnote_89_89" id="Footnote_89_89"></a><a href="#FNanchor_89_89"><span class="label">[a]</span></a> Id. p. 86.</p></div> + +<div class="footnote"><p><a name="Footnote_90_90" id="Footnote_90_90"></a><a href="#FNanchor_90_90"><span class="label">[b]</span></a> Rot. Parl. vol. i. p. 285.</p></div> + +<div class="footnote"><p><a name="Footnote_91_91" id="Footnote_91_91"></a><a href="#FNanchor_91_91"><span class="label">[c]</span></a> 4 E. III. c. 14. Annual sessions of parliament seem fully to +satisfy the words, and still more the spirit, of this act, and of 36 E. +III. c. 10; which however are repealed by implication from the provisions +of 6 Will. III. c. 2. But it was very rare under the Plantagenet dynasty +for a parliament to continue more than a year. +</p><p> +It has been observed that this provision "had 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 parliament 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 23rd of Edward I., of lords +spiritual and temporal, and representatives of the commons, was usually +convened to meet the king's council in one of these parliaments." p. 171. +</p><p> +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 +Edinburgh Review.</p></div> + +<div class="footnote"><p><a name="Footnote_92_92" id="Footnote_92_92"></a><a href="#FNanchor_92_92"><span class="label">[d]</span></a> This article is so expressed as to make it appear that the +grievance was the high price of commodities. But as this was the natural +effect of a degraded currency, and the whole tenor of these articles +relates to abuses of government, I think it must have meant what I have +said in the text.</p></div> + +<div class="footnote"><p><a name="Footnote_93_93" id="Footnote_93_93"></a><a href="#FNanchor_93_93"><span class="label">[e]</span></a> Prynne's 2nd Register, p. 68.</p></div> + +<div class="footnote"><p><a name="Footnote_94_94" id="Footnote_94_94"></a><a href="#FNanchor_94_94"><span class="label">[f]</span></a> Id. p. 75.</p></div> + +<div class="footnote"><p><a name="Footnote_95_95" id="Footnote_95_95"></a><a href="#FNanchor_95_95"><span class="label">[g]</span></a> Madox, Firma Burgi, p. 6; Rot. Parl. vol. i. p. 449.</p></div> + +<div class="footnote"><p><a name="Footnote_96_96" id="Footnote_96_96"></a><a href="#FNanchor_96_96"><span class="label">[h]</span></a> Rot. Parl. vol. i. p. 430.</p></div> + +<div class="footnote"><p><a name="Footnote_97_97" id="Footnote_97_97"></a><a href="#FNanchor_97_97"><span class="label">[i]</span></a> It is however 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 +sufficient and conclusive.</p></div> + +<div class="footnote"><p><a name="Footnote_98_98" id="Footnote_98_98"></a><a href="#FNanchor_98_98"><span class="label">[k]</span></a> Rot. Parl. vol. i. p. 281.</p></div> + +<div class="footnote"><p><a name="Footnote_99_99" id="Footnote_99_99"></a><a href="#FNanchor_99_99"><span class="label">[m]</span></a> Walsingham, p. 97. 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 documents it +seems probable that none were issued, and that the parliament which +assembled at Westminster consisted only of prelates, earls, and barons." +p. 259. We have no record of this parliament; but in that of 5 Edw. II. it +is recited—Come le seizieme jour de Marz l'an de notre regne tierce, a +l'honeur de Dieu et pour le bien de nous et de nostre roiaume, eussions +granté de notre franche volonté, par nos lettres ouvertes aux prelatz, +countes, et barons, <i>et communes de dit roiaume</i>, qu'ils puissent eslire +certain persones des prelatz, comtes, et barons, &c. Rot. Parl. i. 281. +The inference therefore of the committee seems erroneous. [<a href="#N8"><span class="smcap">Note</span> VIII.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_100_100" id="Footnote_100_100"></a><a href="#FNanchor_100_100"><span class="label">[n]</span></a> "La commonaltée" seems in this place to mean the tenants of +land, or commons of the counties, in contradistinction to citizens and +burgesses.</p></div> + +<div class="footnote"><p><a name="Footnote_101_101" id="Footnote_101_101"></a><a href="#FNanchor_101_101"><span class="label">[o]</span></a> Rot. Parl. vol. ii. p. 66. 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. 305. But how can we believe that after the +representatives of these cities and boroughs had sat, at least at times, +for two 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 consent? The silence of the rolls of parliament would +furnish but a poor argument. But in fact their language is expressive +enough. The several ranks of lords and commons 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 excessive (outraiouses) prises, +or otherwise." And upon this the king revokes the commission in the words +of the text. Can anything be clearer than that the parliament, though in a +much gentler tone than they came afterwards 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.</p></div> + +<div class="footnote"><p><a name="Footnote_102_102" id="Footnote_102_102"></a><a href="#FNanchor_102_102"><span class="label">[p]</span></a> Rot. Parl. vol. ii. p. 104.</p></div> + +<div class="footnote"><p><a name="Footnote_103_103" id="Footnote_103_103"></a><a href="#FNanchor_103_103"><span class="label">[q]</span></a> Id.</p></div> + +<div class="footnote"><p><a name="Footnote_104_104" id="Footnote_104_104"></a><a href="#FNanchor_104_104"><span class="label">[r]</span></a> Rot. Parl. vol. ii. p. 161.</p></div> + +<div class="footnote"><p><a name="Footnote_105_105" id="Footnote_105_105"></a><a href="#FNanchor_105_105"><span class="label">[s]</span></a> Case of impositions in Howell's State Trials, vol. ii. p. +371-519; particularly the argument of Mr. Hakewill. Hale's Treatise on the +Customs, in Hargrave's Tracts, vol. i. +</p><p> +Edward III. imposed another duty on cloth exported, on the pretence that, +as the wool must have paid a tax, he had a right to place the wrought and +unwrought article on an equality. The commons remonstrated against this; +but it was not repealed. This took place about 22 E. III. Hale's Treatise, +p. 175.</p></div> + +<div class="footnote"><p><a name="Footnote_106_106" id="Footnote_106_106"></a><a href="#FNanchor_106_106"><span class="label">[t]</span></a> Rot. Parl. p. 160.</p></div> + +<div class="footnote"><p><a name="Footnote_107_107" id="Footnote_107_107"></a><a href="#FNanchor_107_107"><span class="label">[u]</span></a> p. 161, 166, 201.</p></div> + +<div class="footnote"><p><a name="Footnote_108_108" id="Footnote_108_108"></a><a href="#FNanchor_108_108"><span class="label">[x]</span></a> 25 E. III. stat. v. c. 8.</p></div> + +<div class="footnote"><p><a name="Footnote_109_109" id="Footnote_109_109"></a><a href="#FNanchor_109_109"><span class="label">[y]</span></a> Rot. Parl. vol. ii. p. 366.</p></div> + +<div class="footnote"><p><a name="Footnote_110_110" id="Footnote_110_110"></a><a href="#FNanchor_110_110"><span class="label">[z]</span></a> Prynne's 4th Register, p. 289.</p></div> + +<div class="footnote"><p><a name="Footnote_111_111" id="Footnote_111_111"></a><a href="#FNanchor_111_111"><span class="label">[a]</span></a> Rot. Parl. p. 304.</p></div> + +<div class="footnote"><p><a name="Footnote_112_112" id="Footnote_112_112"></a><a href="#FNanchor_112_112"><span class="label">[b]</span></a> Rot. Parl. p. 310. In the mode of levying subsidies a +remarkable improvement took place early in the reign of Edward III. +Originally two chief taxors were appointed by the king for each county, +who named twelve persons in every hundred to assess the moveable estate of +all inhabitants according to its real value. But in 8 E. III., on +complaint of parliament that these taxors were partial, commissioners were +sent round to compound with every town and parish for a gross sum, which +was from thenceforth the fixed quota of subsidy, and raised by the +inhabitants themselves. Brady on Boroughs, p. 81.</p></div> + +<div class="footnote"><p><a name="Footnote_113_113" id="Footnote_113_113"></a><a href="#FNanchor_113_113"><span class="label">[c]</span></a> Laws appear to have been drawn up, and proposed to the two +houses by the king, down to the time of Edward I. Hale's Hist. of Common +Law, p. 16. +</p><p> +Sometimes the representatives of particular places address separate +petitions to the king and council; as the citizens of London, the commons +of Devonshire, &c. These are intermingled with the general petitions, and +both together are for the most part very numerous. In the roll of 50 Edw. +III. they amount to 140.</p></div> + +<div class="footnote"><p><a name="Footnote_114_114" id="Footnote_114_114"></a><a href="#FNanchor_114_114"><span class="label">[d]</span></a> Rot. Parl. p. 239.</p></div> + +<div class="footnote"><p><a name="Footnote_115_115" id="Footnote_115_115"></a><a href="#FNanchor_115_115"><span class="label">[e]</span></a> Rot. Parl. p. 113.</p></div> + +<div class="footnote"><p><a name="Footnote_116_116" id="Footnote_116_116"></a><a href="#FNanchor_116_116"><span class="label">[f]</span></a> p. 280.</p></div> + +<div class="footnote"><p><a name="Footnote_117_117" id="Footnote_117_117"></a><a href="#FNanchor_117_117"><span class="label">[g]</span></a> "If there be any difference between an ordinance and a +statute, as some have collected, it is but only this, that an ordinance is +but temporary till confirmed and made perpetual, but a statute is +perpetual at first, and so have some ordinances also been." Whitelocke on +Parliamentary Writ, vol. ii. p. 297. See Rot. Parl. vol. iii. p. 17; vol. +iv. p. 35.</p></div> + +<div class="footnote"><p><a name="Footnote_118_118" id="Footnote_118_118"></a><a href="#FNanchor_118_118"><span class="label">[h]</span></a> These may be found in Willis's Notitia Parliamentaria. In +28 E. I. the universities were summoned to send members to a great council +in order to defend the king's right to the kingdom of Scotland. 1 Prynne.</p></div> + +<div class="footnote"><p><a name="Footnote_119_119" id="Footnote_119_119"></a><a href="#FNanchor_119_119"><span class="label">[i]</span></a> Rot. Parl. ii. 206.</p></div> + +<div class="footnote"><p><a name="Footnote_120_120" id="Footnote_120_120"></a><a href="#FNanchor_120_120"><span class="label">[k]</span></a> Rot. Parl. ii 253, 257.</p></div> + +<div class="footnote"><p><a name="Footnote_121_121" id="Footnote_121_121"></a><a href="#FNanchor_121_121"><span class="label">[m]</span></a> Id. p. 131.</p></div> + +<div class="footnote"><p><a name="Footnote_122_122" id="Footnote_122_122"></a><a href="#FNanchor_122_122"><span class="label">[n]</span></a> Rot. Parl. ii. p. 128.</p></div> + +<div class="footnote"><p><a name="Footnote_123_123" id="Footnote_123_123"></a><a href="#FNanchor_123_123"><span class="label">[o]</span></a> Rymer, t. v. p. 282. This instrument betrays in its +language Edward's consciousness of the violent step he was taking; and his +wish to excuse it as much as possible.</p></div> + +<div class="footnote"><p><a name="Footnote_124_124" id="Footnote_124_124"></a><a href="#FNanchor_124_124"><span class="label">[p]</span></a> The commons in the 17th of Edw. III. petition that the +statutes made two years before be maintained in their force, having +granted for them the subsidies which they enumerate, "which was a great +spoiling (rançon) 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. Parl. 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.</p></div> + +<div class="footnote"><p><a name="Footnote_125_125" id="Footnote_125_125"></a><a href="#FNanchor_125_125"><span class="label">[q]</span></a> Rymer, t. v. p. 165.</p></div> + +<div class="footnote"><p><a name="Footnote_126_126" id="Footnote_126_126"></a><a href="#FNanchor_126_126"><span class="label">[r]</span></a> p. 148.</p></div> + +<div class="footnote"><p><a name="Footnote_127_127" id="Footnote_127_127"></a><a href="#FNanchor_127_127"><span class="label">[s]</span></a> 21 E. III. p. 165.</p></div> + +<div class="footnote"><p><a name="Footnote_128_128" id="Footnote_128_128"></a><a href="#FNanchor_128_128"><span class="label">[t]</span></a> 28 E. III. p. 261.</p></div> + +<div class="footnote"><p><a name="Footnote_129_129" id="Footnote_129_129"></a><a href="#FNanchor_129_129"><span class="label">[u]</span></a> 28 E. III. p. 295. Carte says, "the lords and commons, +giving this advice separately, declared," &c. Hist. of England, vol. ii. +p. 518. I can find no mention of the commons doing this in the roll of +parliament.</p></div> + +<div class="footnote"><p><a name="Footnote_130_130" id="Footnote_130_130"></a><a href="#FNanchor_130_130"><span class="label">[x]</span></a> Rymer, p. 269.</p></div> + +<div class="footnote"><p><a name="Footnote_131_131" id="Footnote_131_131"></a><a href="#FNanchor_131_131"><span class="label">[y]</span></a> p. 114.</p></div> + +<div class="footnote"><p><a name="Footnote_132_132" id="Footnote_132_132"></a><a href="#FNanchor_132_132"><span class="label">[z]</span></a> p. 304.</p></div> + +<div class="footnote"><p><a name="Footnote_133_133" id="Footnote_133_133"></a><a href="#FNanchor_133_133"><span class="label">[a]</span></a> Most of our general historians have slurred over this +important session. The best view, perhaps, of its secret history will be +found in Lowth's Life of Wykeham; an instructive and elegant work, only to +be blamed for marks of that academical point of honour which makes a +fellow of a college too indiscriminate an encomiast of its founder. +Another modern book may be named with some commendation, though very +inferior in its execution, Godwin's Life of Chaucer of which the duke of +Lancaster is the political hero.</p></div> + +<div class="footnote"><p><a name="Footnote_134_134" id="Footnote_134_134"></a><a href="#FNanchor_134_134"><span class="label">[b]</span></a> Rymer, p. 322.</p></div> + +<div class="footnote"><p><a name="Footnote_135_135" id="Footnote_135_135"></a><a href="#FNanchor_135_135"><span class="label">[c]</span></a> Rymer, p. 322.</p></div> + +<div class="footnote"><p><a name="Footnote_136_136" id="Footnote_136_136"></a><a href="#FNanchor_136_136"><span class="label">[d]</span></a> p. 329.</p></div> + +<div class="footnote"><p><a name="Footnote_137_137" id="Footnote_137_137"></a><a href="#FNanchor_137_137"><span class="label">[e]</span></a> Anonym. Hist. Edw. III. ad calcem Hemingford, p. 444, 448. +Walsingham gives a different reason, p. 192.</p></div> + +<div class="footnote"><p><a name="Footnote_138_138" id="Footnote_138_138"></a><a href="#FNanchor_138_138"><span class="label">[f]</span></a> Rot. Parl. p. 374. Not more than six or seven of the +knights who had sat in the last parliament were returned to this, as +appears by the writs in Prynne's 4th Register, p. 302, 311.</p></div> + +<div class="footnote"><p><a name="Footnote_139_139" id="Footnote_139_139"></a><a href="#FNanchor_139_139"><span class="label">[g]</span></a> Walsingham, p. 200, says pene omnes; but the list published +in Prynne's 4th Register induces me to qualify this loose expression. +Alice Perrers had bribed, he tells us, many of the lords and all the +lawyers of England; yet by the perseverance of these knights she was +convicted.</p></div> + +<div class="footnote"><p><a name="Footnote_140_140" id="Footnote_140_140"></a><a href="#FNanchor_140_140"><span class="label">[h]</span></a> Rot. Parl. vol. ii. p. 374.</p></div> + +<div class="footnote"><p><a name="Footnote_141_141" id="Footnote_141_141"></a><a href="#FNanchor_141_141"><span class="label">[i]</span></a> vol. iii. p. 12.</p></div> + +<div class="footnote"><p><a name="Footnote_142_142" id="Footnote_142_142"></a><a href="#FNanchor_142_142"><span class="label">[k]</span></a> Rot. Parl. vol. iii. p. 12</p></div> + +<div class="footnote"><p><a name="Footnote_143_143" id="Footnote_143_143"></a><a href="#FNanchor_143_143"><span class="label">[m]</span></a> Rot. Parl. p. 35-38.</p></div> + +<div class="footnote"><p><a name="Footnote_144_144" id="Footnote_144_144"></a><a href="#FNanchor_144_144"><span class="label">[n]</span></a> Id. p. 57.</p></div> + +<div class="footnote"><p><a name="Footnote_145_145" id="Footnote_145_145"></a><a href="#FNanchor_145_145"><span class="label">[o]</span></a> See p. 47 of this volume.</p></div> + +<div class="footnote"><p><a name="Footnote_146_146" id="Footnote_146_146"></a><a href="#FNanchor_146_146"><span class="label">[p]</span></a> Nevertheless, the commons repeated it in their schedule of +petitions; and received an evasive answer, referring to an ordinance made +in the first parliament of the king, the application of which is +indefinite. Rot. Parl. p. 82.</p></div> + +<div class="footnote"><p><a name="Footnote_147_147" id="Footnote_147_147"></a><a href="#FNanchor_147_147"><span class="label">[q]</span></a> p. 73. In Rymer, t. viii. p. 250, the archbishop of York's +name appears among these commissioners, which makes their number sixteen. +But it is plain by the instrument that only fifteen were meant to be +appointed.</p></div> + +<div class="footnote"><p><a name="Footnote_148_148" id="Footnote_148_148"></a><a href="#FNanchor_148_148"><span class="label">[r]</span></a> Rot. Parl. 5 R. II. p. 100.</p></div> + +<div class="footnote"><p><a name="Footnote_149_149" id="Footnote_149_149"></a><a href="#FNanchor_149_149"><span class="label">[s]</span></a> Rot. Parl. 5 R. II. p. 104.</p></div> + +<div class="footnote"><p><a name="Footnote_150_150" id="Footnote_150_150"></a><a href="#FNanchor_150_150"><span class="label">[t]</span></a> The commons granted a subsidy, 7 R. II., to support +Lancaster's war in Castile. R. P. p. 284. Whether the populace changed +their opinion of him I know not. He was still disliked by them two years +before. The insurgents of 1382 are said to have compelled men to swear +that they would obey king Richard and the commons, and that they would +accept no king named John. Walsingham, p. 248.</p></div> + +<div class="footnote"><p><a name="Footnote_151_151" id="Footnote_151_151"></a><a href="#FNanchor_151_151"><span class="label">[u]</span></a> Walsing. p. 290, 315, 317.</p></div> + +<div class="footnote"><p><a name="Footnote_152_152" id="Footnote_152_152"></a><a href="#FNanchor_152_152"><span class="label">[x]</span></a> Rot. Parl. 5 R. II. p. 100; 6 R. II. sess. 1, p. 134.</p></div> + +<div class="footnote"><p><a name="Footnote_153_153" id="Footnote_153_153"></a><a href="#FNanchor_153_153"><span class="label">[y]</span></a> p. 145.</p></div> + +<div class="footnote"><p><a name="Footnote_154_154" id="Footnote_154_154"></a><a href="#FNanchor_154_154"><span class="label">[z]</span></a> Rot. Parl. 9 R. II. p. 209.</p></div> + +<div class="footnote"><p><a name="Footnote_155_155" id="Footnote_155_155"></a><a href="#FNanchor_155_155"><span class="label">[a]</span></a> Ib. p. 213. It is however asserted in the articles of +impeachment against Suffolk, and admitted by his defence, that nine lords +had been appointed in the last parliament, viz. 9 R. II., to inquire into +the state of the household, and reform whatever was amiss. But nothing of +this appears in the roll.</p></div> + +<div class="footnote"><p><a name="Footnote_156_156" id="Footnote_156_156"></a><a href="#FNanchor_156_156"><span class="label">[b]</span></a> Knyghton, in Twysden x. Script. col. 2680.</p></div> + +<div class="footnote"><p><a name="Footnote_157_157" id="Footnote_157_157"></a><a href="#FNanchor_157_157"><span class="label">[c]</span></a> Upon full consideration, I am much inclined to give credit +to this passage of Knyghton, as to the main facts; and perhaps even the +speech of Gloucester and the bishop of Ely is more likely to have been +made public by them than invented by so jejune an historian. Walsingham +indeed says nothing of the matter; but he is so unequally informed and so +frequently defective, that we can draw no strong inference from his +silence. What most weighs with me is that parliament met on Oct. 1, 1387, +and was not dissolved till Nov. 28; a longer period than the business done +in it seems to have required; and also that Suffolk, who opened the +session as chancellor, is styled "darrein chancellor" in the articles of +impeachment against him; so that he must have been removed in the +interval, which tallies with Knyghton's story. Besides, it is plain, from +the famous questions subsequently put by the king to his judges at +Nottingham, that both the right of retiring without a regular dissolution, +and the precedent of Edward II., had been discussed in parliament, which +does not appear anywhere else than in Knyghton.</p></div> + +<div class="footnote"><p><a name="Footnote_158_158" id="Footnote_158_158"></a><a href="#FNanchor_158_158"><span class="label">[d]</span></a> Rot. Parl. vol. iii. p. 219.</p></div> + +<div class="footnote"><p><a name="Footnote_159_159" id="Footnote_159_159"></a><a href="#FNanchor_159_159"><span class="label">[e]</span></a> Articles had been exhibited by the chancellor before the +peers, in the seventh of the king, against Spencer, bishop of Norwich, who +had led a considerable army in a disastrous expedition against the +Flemings, adherents to the anti-pope Clement in the schism. This crusade +had been exceedingly popular, but its ill success had the usual effect. +The commons were not parties in this proceeding. Rot. Parl. p 153.</p></div> + +<div class="footnote"><p><a name="Footnote_160_160" id="Footnote_160_160"></a><a href="#FNanchor_160_160"><span class="label">[f]</span></a> Rot. Parl. p. 221.</p></div> + +<div class="footnote"><p><a name="Footnote_161_161" id="Footnote_161_161"></a><a href="#FNanchor_161_161"><span class="label">[g]</span></a> Rot. Parl. p. 281.</p></div> + +<div class="footnote"><p><a name="Footnote_162_162" id="Footnote_162_162"></a><a href="#FNanchor_162_162"><span class="label">[h]</span></a> The judgment against Simon de Burley, one of those who were +executed on this occasion, upon impeachment of the commons, was reversed +under Henry IV.; a fair presumption of its injustice. Rot. Parl. vol. iii. +p. 464.</p></div> + +<div class="footnote"><p><a name="Footnote_163_163" id="Footnote_163_163"></a><a href="#FNanchor_163_163"><span class="label">[i]</span></a> Rot. Parl. 14 R II. p. 279; 15 R. II. p. 286.</p></div> + +<div class="footnote"><p><a name="Footnote_164_164" id="Footnote_164_164"></a><a href="#FNanchor_164_164"><span class="label">[k]</span></a> Rot. Parl. 13 R. II. p. 258.</p></div> + +<div class="footnote"><p><a name="Footnote_165_165" id="Footnote_165_165"></a><a href="#FNanchor_165_165"><span class="label">[m]</span></a> 17 R. II. p. 313.</p></div> + +<div class="footnote"><p><a name="Footnote_166_166" id="Footnote_166_166"></a><a href="#FNanchor_166_166"><span class="label">[n]</span></a> Rymer, t. vii. p. 583, 659.</p></div> + +<div class="footnote"><p><a name="Footnote_167_167" id="Footnote_167_167"></a><a href="#FNanchor_167_167"><span class="label">[o]</span></a> Hume has represented this as if the commons had petitioned +for the continuance of sheriffs beyond a year, and grounds upon this +mistake part of his defence of Richard II. (Note to vol. ii. p. 270, 4to. +edit.) For this he refers to Cotton's Abridgment; whether rightly or not I +cannot say, being little acquainted with that inaccurate book, upon which +it is unfortunate that Hume relied so much. The passage from Walsingham in +the same note is also wholly perverted; as the reader will discover +without further observation. An historian must be strangely warped who +quotes a passage explicitly complaining of illegal acts in order to infer +that those very acts were legal.</p></div> + +<div class="footnote"><p><a name="Footnote_168_168" id="Footnote_168_168"></a><a href="#FNanchor_168_168"><span class="label">[p]</span></a> The church would perhaps have interfered in behalf of Haxey +if he had only received the tonsure. But it seems that he was actually in +orders; for the record calls him Sir Thomas Haxey, a title at that time +regularly given to the parson of a parish. If this be so, it is a +remarkable authority for the clergy's capacity of sitting in parliament.</p></div> + +<div class="footnote"><p><a name="Footnote_169_169" id="Footnote_169_169"></a><a href="#FNanchor_169_169"><span class="label">[q]</span></a> Rot. Parl. 20 R. II. p. 339. In Henry IV.'s first +parliament the commons petitioned for Haxey's restoration, and truly say +that his sentence was en aneantissement des custumes de la commune, p. +434. His judgment was reversed by both houses, as having passed de volonté +du roy Richard en contre droit et la course quel avoit este devant en +parlement. p. 480. There can be no doubt with any man who looks +attentively at the passages relative to Haxey that he was a member of +parliament; though this was questioned a few years ago by the committee of +the house of commons, who made a report on the right of the clergy to be +elected; a right which, I am inclined to believe, did exist down to the +Reformation, as the grounds alleged for Nowell's expulsion in the first, +of Mary, besides this instance of Haxey conspire to prove, though it has +since been lost by disuse.</p></div> + +<div class="footnote"><p><a name="Footnote_170_170" id="Footnote_170_170"></a><a href="#FNanchor_170_170"><span class="label">[r]</span></a> This assembly, if we may trust the anonymous author of the +Life of Richard II., published by Hearne, was surrounded by the king's +troops. p. 133.</p></div> + +<div class="footnote"><p><a name="Footnote_171_171" id="Footnote_171_171"></a><a href="#FNanchor_171_171"><span class="label">[s]</span></a> Rot. Parl, 21 R. II. p. 347.</p></div> + +<div class="footnote"><p><a name="Footnote_172_172" id="Footnote_172_172"></a><a href="#FNanchor_172_172"><span class="label">[t]</span></a> 21 R. II. p. 369.</p></div> + +<div class="footnote"><p><a name="Footnote_173_173" id="Footnote_173_173"></a><a href="#FNanchor_173_173"><span class="label">[u]</span></a> 13 R. II. p. 256.</p></div> + +<div class="footnote"><p><a name="Footnote_174_174" id="Footnote_174_174"></a><a href="#FNanchor_174_174"><span class="label">[x]</span></a> This proceeding was made one of the articles of charge +against Richard in the following terms: Item, in parliamento ultimo +celebrato apud Salopiam, idem rex proponens opprimere populum suum +procuravit subtiliter et fecit concedi, quod potestas parliamenti de +consensu omnium statuum regni sui remaneret apud quasdam certas personas +ad terminandum, dissoluto parliamento, certas petitiones in eodem +parliamento porrectas protunc minimè expeditas. Cujus concessionis colore +personæ sic deputatæ processerunt ad alia generaliter parliamentum illud +tangentia; et hoc de voluntate regis; in derogationem statûs parliamenti, +et in magnum incommodum totius regni et perniciosum exemplum. Et ut super +factis eorum hujusmodi aliquem colorem et auctoritatem viderentur habere, +rex fecit rotulos parliamenti pro voto suo mutari et deleri, contra +effectum consensionis prædictæ. Rot. Parl. 1 H. IV. vol. iii. p. 418. +Whether the last accusation, of altering the parliamentary roll, be true +or not, there is enough left in it to prove everything I have asserted in +the text. From this it is sufficiently manifest how unfairly Carte and +Hume have drawn a parallel between this self-deputed legislative +commission and that appointed by parliament to reform the administration +eleven years before.</p></div> + +<div class="footnote"><p><a name="Footnote_175_175" id="Footnote_175_175"></a><a href="#FNanchor_175_175"><span class="label">[y]</span></a> Rot. Parl. p. 372, 385.</p></div> + +<div class="footnote"><p><a name="Footnote_176_176" id="Footnote_176_176"></a><a href="#FNanchor_176_176"><span class="label">[z]</span></a> Besides the contemporary historians, we may read a full +narrative of these proceedings in the Rolls of Parliament, vol. iii. p. +382. It appears that Mowbray was the most offending party, since, +independently of Hereford's accusation, he is charged with openly +maintaining the appeals made in the false parliament of the eleventh of +the king. But the banishment of his accuser was wholly unjustifiable by +any motives that we can discover. It is strange that Carte should express +surprise at the sentence upon the duke of Norfolk, while he seems to +consider that upon Hereford as very equitable. But he viewed the whole of +this reign, and of those that ensued, with the jaundiced eye of +Jacobitism.</p></div> + +<div class="footnote"><p><a name="Footnote_177_177" id="Footnote_177_177"></a><a href="#FNanchor_177_177"><span class="label">[a]</span></a> Rot. Parl. 1 H. IV. p. 420, 426; Walsingham, p. 353, 357; +Otterburn, p. 199; Vita Ric. II. p. 147.</p></div> + +<div class="footnote"><p><a name="Footnote_178_178" id="Footnote_178_178"></a><a href="#FNanchor_178_178"><span class="label">[b]</span></a> It is fair to observe that Froissart's testimony makes most +in favour of the king, or rather against his enemies, where it is most +valuable; that is, in his account of what he heard in the English court in +1395, 1. iv. c. 62, where he gives a very indifferent character of the +duke of Gloucester. In general this writer is ill-informed of English +affairs, and undeserving to be quoted as an authority.</p></div> + +<div class="footnote"><p><a name="Footnote_179_179" id="Footnote_179_179"></a><a href="#FNanchor_179_179"><span class="label">[c]</span></a> Rot. Parl. p. 423.</p></div> + +<div class="footnote"><p><a name="Footnote_180_180" id="Footnote_180_180"></a><a href="#FNanchor_180_180"><span class="label">[d]</span></a> If proof could be required of anything so self-evident as +that these assemblies consisted of exactly the same persons, it may be +found in their writs of expenses, as published by Prynne, 4th Register, p. +450.</p></div> + +<div class="footnote"><p><a name="Footnote_181_181" id="Footnote_181_181"></a><a href="#FNanchor_181_181"><span class="label">[e]</span></a> 2 R. II. p. 56.</p></div> + +<div class="footnote"><p><a name="Footnote_182_182" id="Footnote_182_182"></a><a href="#FNanchor_182_182"><span class="label">[f]</span></a> It is positively laid down by the asserters of civil +liberty, in the great case of impositions (Howell's State Trials, vol. ii. +p. 443, 507), that no precedents for arbitrary taxation of exports or +imports occur from the accession of Richard II. to the reign of Mary.</p></div> + +<div class="footnote"><p><a name="Footnote_183_183" id="Footnote_183_183"></a><a href="#FNanchor_183_183"><span class="label">[g]</span></a> 2 R. II. p. 62. This did not find its way to the +statute-book.</p></div> + +<div class="footnote"><p><a name="Footnote_184_184" id="Footnote_184_184"></a><a href="#FNanchor_184_184"><span class="label">[h]</span></a> Rymer, t. vii. p. 544.</p></div> + +<div class="footnote"><p><a name="Footnote_185_185" id="Footnote_185_185"></a><a href="#FNanchor_185_185"><span class="label">[i]</span></a> Carte, vol. ii. p. 640. Sir M. Hale observes that he finds +no complaints of illegal impositions under the kings of the house of +Lancaster. Hargrave's Tracts, vol. i. p. 184.</p></div> + +<div class="footnote"><p><a name="Footnote_186_186" id="Footnote_186_186"></a><a href="#FNanchor_186_186"><span class="label">[k]</span></a> Rymer, t. viii. p. 412, 488.</p></div> + +<div class="footnote"><p><a name="Footnote_187_187" id="Footnote_187_187"></a><a href="#FNanchor_187_187"><span class="label">[m]</span></a> Rot. Parl. vol. iv. p. 216.</p></div> + +<div class="footnote"><p><a name="Footnote_188_188" id="Footnote_188_188"></a><a href="#FNanchor_188_188"><span class="label">[n]</span></a> Id. p. 301.</p></div> + +<div class="footnote"><p><a name="Footnote_189_189" id="Footnote_189_189"></a><a href="#FNanchor_189_189"><span class="label">[o]</span></a> Id. p. 302.</p></div> + +<div class="footnote"><p><a name="Footnote_190_190" id="Footnote_190_190"></a><a href="#FNanchor_190_190"><span class="label">[p]</span></a> Id. vol. iii. p. 546.</p></div> + +<div class="footnote"><p><a name="Footnote_191_191" id="Footnote_191_191"></a><a href="#FNanchor_191_191"><span class="label">[q]</span></a> Id. p. 568.</p></div> + +<div class="footnote"><p><a name="Footnote_192_192" id="Footnote_192_192"></a><a href="#FNanchor_192_192"><span class="label">[r]</span></a> Rot. Parl. vol. iii. p. 453.</p></div> + +<div class="footnote"><p><a name="Footnote_193_193" id="Footnote_193_193"></a><a href="#FNanchor_193_193"><span class="label">[s]</span></a> Id. vol. iv. p. 63.</p></div> + +<div class="footnote"><p><a name="Footnote_194_194" id="Footnote_194_194"></a><a href="#FNanchor_194_194"><span class="label">[t]</span></a> Walsingham, p. 379.</p></div> + +<div class="footnote"><p><a name="Footnote_195_195" id="Footnote_195_195"></a><a href="#FNanchor_195_195"><span class="label">[u]</span></a> Walsingham, p. 210. Ruffhead observes in the margin upon +this statute, 8 R. II. c. 3, that it is repealed, but does not take notice +what sort of repeal it had.</p></div> + +<div class="footnote"><p><a name="Footnote_196_196" id="Footnote_196_196"></a><a href="#FNanchor_196_196"><span class="label">[x]</span></a> 15 R. II. p. 285. See, too, 16 R. II. p. 301, where the +same power is renewed in H. IV.'s parliaments.</p></div> + +<div class="footnote"><p><a name="Footnote_197_197" id="Footnote_197_197"></a><a href="#FNanchor_197_197"><span class="label">[y]</span></a> 13 H. IV. p. 643.</p></div> + +<div class="footnote"><p><a name="Footnote_198_198" id="Footnote_198_198"></a><a href="#FNanchor_198_198"><span class="label">[z]</span></a> Rot. Parl. v. 4 H. V. p. 6, 9.</p></div> + +<div class="footnote"><p><a name="Footnote_199_199" id="Footnote_199_199"></a><a href="#FNanchor_199_199"><span class="label">[a]</span></a> 5 R. II. stat. 2, c. 5; Rot. Parl. 6 R. II. p. 141. Some +other instances of the commons attempting to prevent these unfair +practices are adduced by Ruffhead, in his preface to the Statutes, and in +Prynne's preface to Cotton's Abridgment of the Records. The act 13 R. II. +stat. 1, c. 15, that the king's castles and gaols which had been separated +from the body of the adjoining counties should be reunited to them, is not +founded upon any petition that appears on the roll; and probably, by +making search, other instances equally flagrant might be discovered.</p></div> + +<div class="footnote"><p><a name="Footnote_200_200" id="Footnote_200_200"></a><a href="#FNanchor_200_200"><span class="label">[b]</span></a> There had been, however, a petition of the commons on the +same subject, expressed in very general terms, on which this terrible +superstructure might artfully be raised. p. 474.</p></div> + +<div class="footnote"><p><a name="Footnote_201_201" id="Footnote_201_201"></a><a href="#FNanchor_201_201"><span class="label">[c]</span></a> p. 626.</p></div> + +<div class="footnote"><p><a name="Footnote_202_202" id="Footnote_202_202"></a><a href="#FNanchor_202_202"><span class="label">[d]</span></a> We find a remarkable petition in 8 H. IV., professedly +aimed against the Lollards, but intended, as I strongly suspect, in their +favour. It condemns persons preaching against the catholic faith or +sacraments to imprisonment till the next parliament, where they were to +abide such judgment as should be rendered <i>by the king and peers of the +realm</i>. This seems to supersede the burning statute of 2 H. IV., and the +spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The +petition was expressly granted; but the clergy, I suppose, prevented its +appearing on the statute roll.</p></div> + +<div class="footnote"><p><a name="Footnote_203_203" id="Footnote_203_203"></a><a href="#FNanchor_203_203"><span class="label">[e]</span></a> Rot. Parl. vol iii. p. 102.</p></div> + +<div class="footnote"><p><a name="Footnote_204_204" id="Footnote_204_204"></a><a href="#FNanchor_204_204"><span class="label">[f]</span></a> Rot. Parl. vol. iv. p. 22. It is curious that the authors +of the Parliamentary History say that the roll of this parliament is lost, +and consequently suppress altogether this important petition. Instead of +which they give, as their fashion is, impertinent speeches out of +Holingshed, which are certainly not genuine, and would be of no value if +they were so.</p></div> + +<div class="footnote"><p><a name="Footnote_205_205" id="Footnote_205_205"></a><a href="#FNanchor_205_205"><span class="label">[g]</span></a> Henry VI. and Edward IV. in some cases passed bills with +sundry provisions annexed by themselves. Thus the act for resumption of +grants, 4 E. IV., was encumbered with 289 clauses in favour of so many +persons whom the king meant to exempt from its operation; and the same was +done in other acts of the same description. Rot. Parl. vol. v. p. 517.</p></div> + +<div class="footnote"><p><a name="Footnote_206_206" id="Footnote_206_206"></a><a href="#FNanchor_206_206"><span class="label">[h]</span></a> The variations of each statute, as now printed, from the +parliamentary roll, whether in form or substance, are noticed in Cotton's +Abridgment. It may be worth while to consult the preface to Ruffhead's +edition of the Statutes, where this subject is treated at some length. +</p><p> +Perhaps the triple division of our legislature may be dated from this +innovation. For as it is impossible to deny that, while the king +promulgated a statute founded upon a mere petition, he was himself the +real legislator, so I think it is equally fair to assert, notwithstanding +the formal preamble of our statutes, that laws brought into either house +of parliament in a perfect shape, and receiving first the assent of lords +and commons, and finally that of the king, who has no power to modify +them, must be deemed to proceed, and derive their efficacy, from the joint +concurrence of all the three. It is said, indeed, at a much earlier time, +that le ley de la terre est fait en parlement par le roi, et les seigneurs +espirituels et temporels, et tout la communauté du royaume. Rot. Parl. +vol. iii. p. 293. But this, I must allow, was in the violent session of 11 +Ric. II., the constitutional authority of which is not to be highly +prized.</p></div> + +<div class="footnote"><p><a name="Footnote_207_207" id="Footnote_207_207"></a><a href="#FNanchor_207_207"><span class="label">[i]</span></a> 8 H. V. vol. iv. p. 127.</p></div> + +<div class="footnote"><p><a name="Footnote_208_208" id="Footnote_208_208"></a><a href="#FNanchor_208_208"><span class="label">[k]</span></a> The house of commons thanked the king for pardoning +Northumberland, whom, as it proved, he had just cause to suspect. 5 H. IV. +p. 525.</p></div> + +<div class="footnote"><p><a name="Footnote_209_209" id="Footnote_209_209"></a><a href="#FNanchor_209_209"><span class="label">[m]</span></a> 5 H. IV. p. 505.</p></div> + +<div class="footnote"><p><a name="Footnote_210_210" id="Footnote_210_210"></a><a href="#FNanchor_210_210"><span class="label">[n]</span></a> Rot. Parl. vol. iii. p. 529, 568, 573.</p></div> + +<div class="footnote"><p><a name="Footnote_211_211" id="Footnote_211_211"></a><a href="#FNanchor_211_211"><span class="label">[o]</span></a> p. 547.</p></div> + +<div class="footnote"><p><a name="Footnote_212_212" id="Footnote_212_212"></a><a href="#FNanchor_212_212"><span class="label">[p]</span></a> 13 H. IV. p 624.</p></div> + +<div class="footnote"><p><a name="Footnote_213_213" id="Footnote_213_213"></a><a href="#FNanchor_213_213"><span class="label">[q]</span></a> Rot. Parl. 8 H. IV. p. 585.</p></div> + +<div class="footnote"><p><a name="Footnote_214_214" id="Footnote_214_214"></a><a href="#FNanchor_214_214"><span class="label">[r]</span></a> 13 H. IV. p. 648, 658.</p></div> + +<div class="footnote"><p><a name="Footnote_215_215" id="Footnote_215_215"></a><a href="#FNanchor_215_215"><span class="label">[s]</span></a> Rot. Parl. vol. iii. p. 549, 568, 574, 611.</p></div> + +<div class="footnote"><p><a name="Footnote_216_216" id="Footnote_216_216"></a><a href="#FNanchor_216_216"><span class="label">[t]</span></a> This passage was written before I was aware that the same +opinion had been elaborately maintained by Mr. Luders, in one of his +valuable essays upon points of constitutional history.</p></div> + +<div class="footnote"><p><a name="Footnote_217_217" id="Footnote_217_217"></a><a href="#FNanchor_217_217"><span class="label">[u]</span></a> Rot. Parl. 8 H. V. vol. iv. p. 125.</p></div> + +<div class="footnote"><p><a name="Footnote_218_218" id="Footnote_218_218"></a><a href="#FNanchor_218_218"><span class="label">[x]</span></a> p. 128.</p></div> + +<div class="footnote"><p><a name="Footnote_219_219" id="Footnote_219_219"></a><a href="#FNanchor_219_219"><span class="label">[y]</span></a> p. 130.</p></div> + +<div class="footnote"><p><a name="Footnote_220_220" id="Footnote_220_220"></a><a href="#FNanchor_220_220"><span class="label">[z]</span></a> 7 R. II. vol. iii. p. 170.</p></div> + +<div class="footnote"><p><a name="Footnote_221_221" id="Footnote_221_221"></a><a href="#FNanchor_221_221"><span class="label">[a]</span></a> p. 215.</p></div> + +<div class="footnote"><p><a name="Footnote_222_222" id="Footnote_222_222"></a><a href="#FNanchor_222_222"><span class="label">[b]</span></a> 7 R. II. p. 315.</p></div> + +<div class="footnote"><p><a name="Footnote_223_223" id="Footnote_223_223"></a><a href="#FNanchor_223_223"><span class="label">[c]</span></a> 4 H. V. vol. iv. p. 98.</p></div> + +<div class="footnote"><p><a name="Footnote_224_224" id="Footnote_224_224"></a><a href="#FNanchor_224_224"><span class="label">[d]</span></a> p. 135.</p></div> + +<div class="footnote"><p><a name="Footnote_225_225" id="Footnote_225_225"></a><a href="#FNanchor_225_225"><span class="label">[e]</span></a> Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277.</p></div> + +<div class="footnote"><p><a name="Footnote_226_226" id="Footnote_226_226"></a><a href="#FNanchor_226_226"><span class="label">[f]</span></a> p. 371.</p></div> + +<div class="footnote"><p><a name="Footnote_227_227" id="Footnote_227_227"></a><a href="#FNanchor_227_227"><span class="label">[g]</span></a> 23 H. VI. vol. v. p. 102. There is rather a curious +instance in 3 H. VI. of the jealousy with which the commons regarded any +proceedings in parliament where they were not concerned. A controversy +arose between the earls marshal and of Warwick respecting their +precedence; founded upon the royal blood of the first, and long possession +of the second. In this the commons could not affect to interfere +judicially; but they found a singular way of meddling, by petitioning the +king to confer the dukedom of Norfolk on the earl marshal. vol. iv. p. +273.</p></div> + +<div class="footnote"><p><a name="Footnote_228_228" id="Footnote_228_228"></a><a href="#FNanchor_228_228"><span class="label">[h]</span></a> Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. +343.</p></div> + +<div class="footnote"><p><a name="Footnote_229_229" id="Footnote_229_229"></a><a href="#FNanchor_229_229"><span class="label">[i]</span></a> vol. v. 18 H. VI. p. 17.</p></div> + +<div class="footnote"><p><a name="Footnote_230_230" id="Footnote_230_230"></a><a href="#FNanchor_230_230"><span class="label">[k]</span></a> 28 H. VI. p. 185.</p></div> + +<div class="footnote"><p><a name="Footnote_231_231" id="Footnote_231_231"></a><a href="#FNanchor_231_231"><span class="label">[m]</span></a> Rot. Parl. vol. iii. p. 430, 449.</p></div> + +<div class="footnote"><p><a name="Footnote_232_232" id="Footnote_232_232"></a><a href="#FNanchor_232_232"><span class="label">[n]</span></a> Rot. Parl. 28 H. VI. vol. v. p. 176.</p></div> + +<div class="footnote"><p><a name="Footnote_233_233" id="Footnote_233_233"></a><a href="#FNanchor_233_233"><span class="label">[o]</span></a> If this were to rest upon antiquity of precedent, one might +be produced that would challenge all competition. In the laws of +Ethelbert, the first Christian king of Kent, at the end of the sixth +century, we find this provision: "If the king call his people to him (i.e. +in the witenagemot), and any one does an injury to one of them, let him +pay a fine." Wilkins, Leges Anglo-Saxon. p. 2.</p></div> + +<div class="footnote"><p><a name="Footnote_234_234" id="Footnote_234_234"></a><a href="#FNanchor_234_234"><span class="label">[p]</span></a> Hatsell, vol. i. p. 12.</p></div> + +<div class="footnote"><p><a name="Footnote_235_235" id="Footnote_235_235"></a><a href="#FNanchor_235_235"><span class="label">[q]</span></a> Rot. Parl. 5 H. IV. p. 541.</p></div> + +<div class="footnote"><p><a name="Footnote_236_236" id="Footnote_236_236"></a><a href="#FNanchor_236_236"><span class="label">[r]</span></a> The clergy had got a little precedence in this. An act +passed 8 H. VI. c. 1, granting privilege from arrest for themselves and +servants on their way to convocation.</p></div> + +<div class="footnote"><p><a name="Footnote_237_237" id="Footnote_237_237"></a><a href="#FNanchor_237_237"><span class="label">[s]</span></a> Rot. Parl. vol. iv. p. 357.</p></div> + +<div class="footnote"><p><a name="Footnote_238_238" id="Footnote_238_238"></a><a href="#FNanchor_238_238"><span class="label">[t]</span></a> vol. v. p. 374.</p></div> + +<div class="footnote"><p><a name="Footnote_239_239" id="Footnote_239_239"></a><a href="#FNanchor_239_239"><span class="label">[u]</span></a> Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.</p></div> + +<div class="footnote"><p><a name="Footnote_240_240" id="Footnote_240_240"></a><a href="#FNanchor_240_240"><span class="label">[x]</span></a> Upon this subject the reader should have recourse to +Hatsell's Precedents, vol. i. chap. 1.</p></div> + +<div class="footnote"><p><a name="Footnote_241_241" id="Footnote_241_241"></a><a href="#FNanchor_241_241"><span class="label">[y]</span></a> Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. +Hatsell seems to have overlooked this case, for he mentions that of +Strickland, in 1571, as the earliest instance of the crown's interference +with freedom of speech in parliament. vol. i. p. 85.</p></div> + +<div class="footnote"><p><a name="Footnote_242_242" id="Footnote_242_242"></a><a href="#FNanchor_242_242"><span class="label">[z]</span></a> This parliament sat at Gloucester.</p></div> + +<div class="footnote"><p><a name="Footnote_243_243" id="Footnote_243_243"></a><a href="#FNanchor_243_243"><span class="label">[a]</span></a> Rot. Parl. vol. iii. p. 611.</p></div> + +<div class="footnote"><p><a name="Footnote_244_244" id="Footnote_244_244"></a><a href="#FNanchor_244_244"><span class="label">[b]</span></a> A notion is entertained by many people, and not without the +authority of some very respectable names, that the king is one of the +three estates of the realm, the lords spiritual and temporal forming +together the second, as the commons in parliament do the third. This is +contradicted by the general tenor of our ancient records and law-books; +and indeed the analogy of other governments ought to have the greatest +weight, even if more reason for doubt appeared upon the face of our own +authorities. But the instances where the three estates are declared or +implied to be the nobility, clergy, and commons, or at least their +representatives in parliament, are too numerous for insertion. This land +standeth, says the Chancellor Stillington, in 7th Edward IV., by three +states, and above that one principal, that is to wit, lords spiritual, +lords temporal, and commons, and over that, state royal, as our sovereign +lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is declared that +the treaty of Staples in 1492 was to be confirmed per tres status regni +Angliæ ritè et debitè convocatos, videlicet per prelatos et clerum, +nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508. +</p><p> +I will not, however, suppress one passage, and the only instance that has +occurred in my reading, where the king does appear to have been reckoned +among the three estates. The commons say, in the 2nd of Henry IV., that +the states of the realm may be compared to a trinity, that is, the king, +the lords spiritual and temporal, and the commons. Rot. Parl. vol. iii. p. +459. In this expression, however, the sense shows that by estates of the +realm they meant members, or necessary parts, of the parliament. +</p><p> +Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length, +that the three estates are king, lords, and commons, which seems to have +been a current doctrine among the popular lawyers of the seventeenth +century. His reasoning is chiefly grounded on the baronial tenure of +bishops, the validity of acts passed against their consent, and other +arguments of the same kind; which might go to prove that there are only at +present two estates, but can never turn the king into one. +</p><p> +The source of this error is an inattention to the primary sense of the +word estate (status), which means an order or condition into which men are +classed by the institutions of society. It is only in a secondary, or +rather an elliptical application, that it can be referred to their +representatives in parliament or national councils. The lords temporal, +indeed, of England are identical with the estate of the nobility; but the +house of commons is not, strictly speaking, the estate of commonalty, to +which its members belong, and from which they are deputed. So the whole +body of the clergy are properly speaking one of the estates, and are +described as such in the older authorities, 21 Ric. II. Rot. Parl. vol. +iii. p. 348, though latterly the lords spiritual in parliament acquired, +with less correctness, that appellation. Hody on Convocations, p. 426. The +bishops, indeed, may be said, constructively, to represent the whole of +the clergy, with whose grievances they are supposed to be best acquainted, +and whose rights it is their peculiar duty to defend. And I do not find +that the inferior clergy had any other representation in the cortes of +Castile and Aragon, where the ecclesiastical order was always counted +among the estates of the realm.</p></div> + +<div class="footnote"><p><a name="Footnote_245_245" id="Footnote_245_245"></a><a href="#FNanchor_245_245"><span class="label">[c]</span></a> Rot. Parl. vol. iii. p. 623.</p></div> + +<div class="footnote"><p><a name="Footnote_246_246" id="Footnote_246_246"></a><a href="#FNanchor_246_246"><span class="label">[d]</span></a> Rot. Parl. 5 R. II. p. 100.</p></div> + +<div class="footnote"><p><a name="Footnote_247_247" id="Footnote_247_247"></a><a href="#FNanchor_247_247"><span class="label">[e]</span></a> Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.</p></div> + +<div class="footnote"><p><a name="Footnote_248_248" id="Footnote_248_248"></a><a href="#FNanchor_248_248"><span class="label">[f]</span></a> Rot. Parl. vol. v. p. 7. It appears by a case in the Year +Book of the 33rd of Henry VI., that, where the lords made only some minor +alterations in a bill sent up to them from the commons, even if it related +to a grant of money, the custom was not to remand it for their assent to +the amendment. Brooke's Abridgment: Parliament. 4. The passage is worth +extracting, in order to illustrate the course of proceeding in parliament +at that time. Case fuit que Sir J. P. fuit attaint de certeyn trespas par +acte de parliament dont les commons furent assentus, que sil ne vient eins +per tiel jour que il forfeytera tiel summe, et les seigneurs done plus +longe jour, et le bil nient rebaile al commons arrere; et per Kirby, clerk +des roles del parliament, l'use del parliament est, que si bil vient +primes a les commons, et ils passent ceo, il est use d'endorser ceo en +tiel forme, Soit bayle as seigniors; et si les seigniors <i>ne le roy</i> ne +alteront le bil, donques est use a liverer ceo al clerke del parliamente +destre enrol saunz endorser ceo.... Et si les seigniors volent alter un +bil in ceo que poet estoyer ore le bil, ils poyent saunz remandre ceo al +commons, come si les commons graunte poundage, pur quatuor ans, et les +grantent nisi par deux ans, ceo ne serra rebayle al commons; mes si les +commons grauntent nisi pur deux ans, et les seigneurs pur quatre ans, la +ceo serra reliver al commons, et en cest case les seigniors doyent faire +un sedule de lour intent, ou d'endorser le bil en ceste forme, Les +seigneurs ceo assentent pur durer par quatuor ans; et quant les commons +ount le bil arrere, et ne volent assenter a ceo, ceo ne poet estre un +actre; mes si les commons volent assenter, donques ils indorse leur +respons sur le mergent ne basse deins le bil en tiel forme, Les commons +sont assentans al sedul des seigniors, a mesme cesty bil annexe, et +donques sera bayle ad clerke del parliament, ut supra. Et si un bil soit +primes liver al seigniors, et le bil passe eux, ils ne usont de fayre +ascun endorsement, mess de mitter le bil as commons; et donques, si le bil +passe les commons, il est use destre issint endorce, Les commons sont +assentants; et ceo prove que il ad passe les seigniors devant, et lour +assent est a cest passer del seigniors; et ideo cest acte supra nest bon, +pur ceo que ne fuit rebaile as commons. +</p><p> +A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's +edit.), that a subsidy granted by the commons without assent of the peers +is good enough. This cannot surely have been law at that time.</p></div> + +<div class="footnote"><p><a name="Footnote_249_249" id="Footnote_249_249"></a><a href="#FNanchor_249_249"><span class="label">[g]</span></a> Rot. Parl. vol. iii. p. 244.</p></div> + +<div class="footnote"><p><a name="Footnote_250_250" id="Footnote_250_250"></a><a href="#FNanchor_250_250"><span class="label">[h]</span></a> Coke's 4th Institute, p. 15.</p></div> + +<div class="footnote"><p><a name="Footnote_251_251" id="Footnote_251_251"></a><a href="#FNanchor_251_251"><span class="label">[i]</span></a> Glanvil's Reports of Elections, edit. 1774; Introduction, +p. 12.</p></div> + +<div class="footnote"><p><a name="Footnote_252_252" id="Footnote_252_252"></a><a href="#FNanchor_252_252"><span class="label">[k]</span></a> 4 Prynne, p. 261.</p></div> + +<div class="footnote"><p><a name="Footnote_253_253" id="Footnote_253_253"></a><a href="#FNanchor_253_253"><span class="label">[m]</span></a> Glanvil's Reports, ibid. from Prynne.</p></div> + +<div class="footnote"><p><a name="Footnote_254_254" id="Footnote_254_254"></a><a href="#FNanchor_254_254"><span class="label">[n]</span></a> Glanvil's Reports, ibid. from Prynne.</p></div> + +<div class="footnote"><p><a name="Footnote_255_255" id="Footnote_255_255"></a><a href="#FNanchor_255_255"><span class="label">[o]</span></a> Id. ibid. and Rot. Parl. vol. iii. p. 530.</p></div> + +<div class="footnote"><p><a name="Footnote_256_256" id="Footnote_256_256"></a><a href="#FNanchor_256_256"><span class="label">[p]</span></a> Rot. Parl. vol. v. p. 7.</p></div> + +<div class="footnote"><p><a name="Footnote_257_257" id="Footnote_257_257"></a><a href="#FNanchor_257_257"><span class="label">[q]</span></a> 3 Prynne's Register, p. 187. This hypothesis, though +embraced by Prynne, is, I confess, much opposed to general opinion; and a +very respectable living writer treats such an interpretation of the +statute 7 H. IV. as chimerical. The words cited in the text, "as others," +mean only, according to him, suitors not duly summoned. Heywood on +Elections, vol. i. p. 20. But, as I presume, the summons to freeholders +was by general proclamation; so that it is not easy to perceive what +difference there could be between summoned and unsummoned suitors. And if +the words are supposed to glance at the private summonses to a few +friends, by means of which the sheriffs were accustomed to procure a +clandestine election, one can hardly imagine that such persons would be +styled "duly summoned." It is not unlikely, however, that these large +expressions were inadvertently used, and that they led to that inundation +of voters without property which rendered the subsequent act of Henry VI. +necessary. That of Henry IV. had itself been occasioned by an opposite +evil, the close election of knights by a few persons in the name of the +county. +</p><p> +Yet the consequence of the statute of Henry IV. was not to let in too many +voters, or to render elections tumultuous, in the largest of English +counties, whatever it might be in others. Prynne has published some +singular sheriff's indentures for the county of York, all during the +interval between the acts of Henry IV. and Henry VI., which are sealed by +a few persons calling themselves the attorneys of some peers and ladies, +who, as far as appears, had solely returned the knights of that shire. 3 +Prynne, p. 152. What degree of weight these anomalous returns ought to +possess I leave to the reader.</p></div> + +<div class="footnote"><p><a name="Footnote_258_258" id="Footnote_258_258"></a><a href="#FNanchor_258_258"><span class="label">[r]</span></a> The majority of prescriptive boroughs have prescriptive +corporations, which carry the legal, which is not always the moral, +presumption of an original charter. But "many boroughs and towns in +England have burgesses by prescription, that never were incorporated." Ch. +J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders +thinks, I know not how justly, that in the age of Edward I., which is most +to our immediate purpose, "there were not perhaps thirty corporations in +the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, +in the opinion of many sound lawyers, the representation of unchartered, +or at least, unincorporated boroughs was rather a <i>real</i> privilege, and +founded upon tenure, than one arising out of their share in public +contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood +on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the +more so, because the learning directed towards it has more frequently been +that of advocates pleading for their clients than of unbiassed +antiquaries. If this be kept in view, the lover of constitutional history +will find much information in several of the reported cases on +controverted elections; particularly those of Tewksbury and Liskeard, in +Peckwell's Reports, vol. i.</p></div> + +<div class="footnote"><p><a name="Footnote_259_259" id="Footnote_259_259"></a><a href="#FNanchor_259_259"><span class="label">[s]</span></a> Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, +in Peckwell's Reports, vol. i. p. 178.</p></div> + +<div class="footnote"><p><a name="Footnote_260_260" id="Footnote_260_260"></a><a href="#FNanchor_260_260"><span class="label">[t]</span></a> Littleton, s. 162, 163.</p></div> + +<div class="footnote"><p><a name="Footnote_261_261" id="Footnote_261_261"></a><a href="#FNanchor_261_261"><span class="label">[u]</span></a> Brady, p. 97.</p></div> + +<div class="footnote"><p><a name="Footnote_262_262" id="Footnote_262_262"></a><a href="#FNanchor_262_262"><span class="label">[x]</span></a> Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter +even argues that this power of omitting ancient boroughs was legally +vested in the sheriff before the 5th of Richard II.; and though the +language of that act implies the contrary of this position, yet it is more +than probable that most of our parliamentary boroughs by prescription, +especially such as were then unincorporated, are indebted for their +privileges to the exercise of the sheriff's discretion; not founded on +partiality, which would rather have led him to omit them, but on the broad +principle that they were sufficiently opulent and important to send +representatives to parliament.</p></div> + +<div class="footnote"><p><a name="Footnote_263_263" id="Footnote_263_263"></a><a href="#FNanchor_263_263"><span class="label">[y]</span></a> Willis, Notitia Parliamentaria, vol. i. preface, p. 35.</p></div> + +<div class="footnote"><p><a name="Footnote_264_264" id="Footnote_264_264"></a><a href="#FNanchor_264_264"><span class="label">[z]</span></a> p. 117.</p></div> + +<div class="footnote"><p><a name="Footnote_265_265" id="Footnote_265_265"></a><a href="#FNanchor_265_265"><span class="label">[a]</span></a> It is a perplexing question whether freeholders in socage +were liable to contribute towards the wages of knights; and authorities +might be produced on both sides. The more probable supposition is, that +they were not exempted. See the various petitions relating to the payment +of wages in Prynne's fourth Register. This is not unconnected with the +question as to their right of suffrage. See p. 115 of this volume. +Freeholders within franchises made repeated endeavours to exempt +themselves from payment of wages. Thus in 9 H. IV. it was settled by +parliament that, to put an end to the disputes on this subject between the +people of Cambridgeshire and those of the Isle of Ely, the latter should +pay 200<i>l.</i> and be quit in future of all charges on that account. Rot. +Parl. vol. iv. p. 383. By this means the inhabitants of that franchise +seem to have purchased the right of suffrage, which they still enjoy, +though not, I suppose, suitors to the county-court. In most other +franchises, and in many cities erected into distinct counties, the same +privilege of voting for knights of the shire is practically exercised; but +whether this has not proceeded as much from the tendency of returning +officers and of parliament to favour the right of election in doubtful +cases, as from the merits of their pretensions, may be a question.</p></div> + +<div class="footnote"><p><a name="Footnote_266_266" id="Footnote_266_266"></a><a href="#FNanchor_266_266"><span class="label">[b]</span></a> The wages of knights and burgesses were first reduced to +this certain sum by the writs De levandis expensis, 16 E. II. Prynne's +fourth Register, p. 53. These were issued at the request of those who had +served, after the dissolution of parliament, and included a certain number +of days, according to the distance of the county whence they came, for +going and returning. It appears by these that thirty-five or forty miles +were reckoned a day's journey; which may correct the exaggerated notions +of bad roads and tardy locomotion that are sometimes entertained. See +Prynne's fourth Register, and Willis's Notitia Parliamentaria, passim. +</p><p> +The latest entries of writs for expenses in the close rolls are of 2 H. +V.; but they may be proved to have issued much longer; and Prynne traces +them to the end of Henry VIII.'s reign, p. 495. Without the formality of +this writ a very few instances of towns remunerating their burgesses for +attendance in parliament are known to have occurred in later times. Andrew +Marvel is commonly said to have been the last who received this honourable +salary. A modern book asserts that wages were paid in some Cornish +boroughs as late as the eighteenth century. Lysons's Cornwall, preface, p. +xxxii; but the passage quoted in proof of this is not precise enough to +support so unlikely a fact.</p></div> + +<div class="footnote"><p><a name="Footnote_267_267" id="Footnote_267_267"></a><a href="#FNanchor_267_267"><span class="label">[c]</span></a> 3 Prynne, p. 165.</p></div> + +<div class="footnote"><p><a name="Footnote_268_268" id="Footnote_268_268"></a><a href="#FNanchor_268_268"><span class="label">[d]</span></a> 4 Prynne, p. 317.</p></div> + +<div class="footnote"><p><a name="Footnote_269_269" id="Footnote_269_269"></a><a href="#FNanchor_269_269"><span class="label">[e]</span></a> 4 Prynne, p. 320.</p></div> + +<div class="footnote"><p><a name="Footnote_270_270" id="Footnote_270_270"></a><a href="#FNanchor_270_270"><span class="label">[f]</span></a> 3 Prynne, p. 241.</p></div> + +<div class="footnote"><p><a name="Footnote_271_271" id="Footnote_271_271"></a><a href="#FNanchor_271_271"><span class="label">[g]</span></a> 5 R. II. stat. ii. c. 4.</p></div> + +<div class="footnote"><p><a name="Footnote_272_272" id="Footnote_272_272"></a><a href="#FNanchor_272_272"><span class="label">[h]</span></a> Luders's Reports, vol. i. p. 15. Sometimes an elected +burgess absolutely refused to go to parliament, and drove his constituents +to a fresh choice. 3 Prynne, p. 277.</p></div> + +<div class="footnote"><p><a name="Footnote_273_273" id="Footnote_273_273"></a><a href="#FNanchor_273_273"><span class="label">[i]</span></a> 3 Prynne, p. 252.</p></div> + +<div class="footnote"><p><a name="Footnote_274_274" id="Footnote_274_274"></a><a href="#FNanchor_274_274"><span class="label">[k]</span></a> 3 Prynne, p. 257, de assensu totius communitatis prædictæ +elegerunt R. W.; so in several other instances quoted in the ensuing +pages.</p></div> + +<div class="footnote"><p><a name="Footnote_275_275" id="Footnote_275_275"></a><a href="#FNanchor_275_275"><span class="label">[m]</span></a> Brady on Boroughs, p. 132, &c. 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 portion of the burgesses; and that, in the progress of the house of +commons to power and importance, the tendency has been in general to +render the elections more popular. It is certain 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 principles 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 purpose 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.</p></div> + +<div class="footnote"><p><a name="Footnote_276_276" id="Footnote_276_276"></a><a href="#FNanchor_276_276"><span class="label">[n]</span></a> Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 +Prynne, p. 224, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_277_277" id="Footnote_277_277"></a><a href="#FNanchor_277_277"><span class="label">[o]</span></a> In 4 Edw. II. the sheriff of Rutland made this return: +Eligi feci in pleno comitatu, loco duorum militum, eo quod milites non +sunt in hoc comitatu commorantes, duos homines de comitatu Rutland, de +discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But +this deficiency of actual knights soon became very common. In 19 E. II. +there were twenty-eight members returned from shires who were not knights, +and but twenty-seven who were such. The former had at this time only two +shillings or three shillings a day for their wages, while the real knights +had four shillings. 4 Prynne, p. 53. 74. But in the next reign their wages +were put on a level.</p></div> + +<div class="footnote"><p><a name="Footnote_278_278" id="Footnote_278_278"></a><a href="#FNanchor_278_278"><span class="label">[p]</span></a> Rot. Parl. vol. ii. p. 310.</p></div> + +<div class="footnote"><p><a name="Footnote_279_279" id="Footnote_279_279"></a><a href="#FNanchor_279_279"><span class="label">[q]</span></a> Rot. Parl. 1 H. V. c. 1.</p></div> + +<div class="footnote"><p><a name="Footnote_280_280" id="Footnote_280_280"></a><a href="#FNanchor_280_280"><span class="label">[r]</span></a> See the case of Dublin university in the first volume of +Peckwell's Reports of contested elections. Note D, p. 53. The statute +itself was repealed by 14 G. III. c. 58.</p></div> + +<div class="footnote"><p><a name="Footnote_281_281" id="Footnote_281_281"></a><a href="#FNanchor_281_281"><span class="label">[s]</span></a> By 23 H. VI. c. 15, none but gentlemen born, generosi a +nativitate, are capable of sitting in parliament as knights of counties; +an election was set aside 39 H. VI. because the person returned was not of +gentle birth. Prynne's third Register. p. 161.</p></div> + +<div class="footnote"><p><a name="Footnote_282_282" id="Footnote_282_282"></a><a href="#FNanchor_282_282"><span class="label">[t]</span></a> Willis, Notitia Parliamentaria, Prynne's fourth Register, +p. 1184. A letter in that authentic and interesting accession to our +knowledge of ancient times, the Paston collection, shows that eager +canvass was sometimes made by country gentlemen in Edward IV.'s reign to +represent boroughs. This letter throws light at the same time on the +creation or revival of boroughs. The writer tells Sir John Paston, "If ye +miss to be burgess of Malden, and my lord chamberlain will, ye may be in +another place; there be a dozen towns in England that choose no burgess, +which ought to do it: ye may be set in for one of those towns an' ye be +friended." This was in 1472. vol. ii. p. 107.</p></div> + +<div class="footnote"><p><a name="Footnote_283_283" id="Footnote_283_283"></a><a href="#FNanchor_283_283"><span class="label">[u]</span></a> Glanvil's Reports of Elections, edit. 1774, Introduction, +p. xii.</p></div> + +<div class="footnote"><p><a name="Footnote_284_284" id="Footnote_284_284"></a><a href="#FNanchor_284_284"><span class="label">[x]</span></a> Prynne's third Register, p. 171.</p></div> + +<div class="footnote"><p><a name="Footnote_285_285" id="Footnote_285_285"></a><a href="#FNanchor_285_285"><span class="label">[y]</span></a> 28 E. I. c. 8; 9 E. II. It is said that the sheriff was +elected by the people of his county in the Anglo-Saxon period; no instance +of this however, according to lord Lyttelton, occurs after the Conquest. +Shrievalties were commonly sold by the Norman kings. Hist. of Henry II. +vol. ii. p. 921.</p></div> + +<div class="footnote"><p><a name="Footnote_286_286" id="Footnote_286_286"></a><a href="#FNanchor_286_286"><span class="label">[z]</span></a> Vita Ricardi II. p. 85.</p></div> + +<div class="footnote"><p><a name="Footnote_287_287" id="Footnote_287_287"></a><a href="#FNanchor_287_287"><span class="label">[a]</span></a> Otterbourne, p. 191. He says of the knights returned on +this occasion, that they were not elected per communitatem, ut mos exigit, +sed per regiam voluntatem.</p></div> + +<div class="footnote"><p><a name="Footnote_288_288" id="Footnote_288_288"></a><a href="#FNanchor_288_288"><span class="label">[b]</span></a> Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.</p></div> + +<div class="footnote"><p><a name="Footnote_289_289" id="Footnote_289_289"></a><a href="#FNanchor_289_289"><span class="label">[c]</span></a> Prynne's second Reg. p. 450.</p></div> + +<div class="footnote"><p><a name="Footnote_290_290" id="Footnote_290_290"></a><a href="#FNanchor_290_290"><span class="label">[d]</span></a> vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.</p></div> + +<div class="footnote"><p><a name="Footnote_291_291" id="Footnote_291_291"></a><a href="#FNanchor_291_291"><span class="label">[e]</span></a> Upon this dry and obscure subject of inquiry, the nature +and constitution of the house of lords during this period, I have been +much indebted to the first part of Prynne's Register, and to West's +Inquiry into the Manner of creating Peers; which, though written with a +party motive, to serve the ministry of 1719 in the peerage bill, deserves, +for the perspicuity of the method and style, to be reckoned among the best +of our constitutional dissertations.</p></div> + +<div class="footnote"><p><a name="Footnote_292_292" id="Footnote_292_292"></a><a href="#FNanchor_292_292"><span class="label">[f]</span></a> Baronies were often divided by descent among females into +many parts, each retaining its character as a fractional member of a +barony. The tenants in such case were said to hold of the king by the +third, fourth, or twentieth part of a barony, and did service or paid +relief in such proportion.</p></div> + +<div class="footnote"><p><a name="Footnote_293_293" id="Footnote_293_293"></a><a href="#FNanchor_293_293"><span class="label">[g]</span></a> Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. +28, 33. That a baron could only be tried by his fellow barons was probably +a rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon +Bereford having been accused before the lords in parliament of aiding and +advising Mortimer in his treasons, they declared with one voice that he +was not their peer; wherefore they were not bound to judge him as a peer +of the land; but inasmuch as it was notorious that he had been concerned +in usurpation of royal powers and murder of the liege lord (as they styled +Edward II.), the lords, as judges of parliament, by assent of the king in +parliament, awarded and adjudged him to be hanged. A like sentence with a +like protestation was passed on Mautravers and Gournay. There is a very +remarkable anomaly in the case of Lord Berkley, who, though undoubtedly a +baron, his ancestors having been summoned from the earliest date of writs, +put himself on his trial in parliament, by twelve knights of the county of +Gloucester. Rot. Parl. vol. ii. p. 53; Rymer, t. iv. p. 734.</p></div> + +<div class="footnote"><p><a name="Footnote_294_294" id="Footnote_294_294"></a><a href="#FNanchor_294_294"><span class="label">[h]</span></a> Prynne, p. 142, &c.; West's Inquiry.</p></div> + +<div class="footnote"><p><a name="Footnote_295_295" id="Footnote_295_295"></a><a href="#FNanchor_295_295"><span class="label">[i]</span></a> Prynne, p. 141.</p></div> + +<div class="footnote"><p><a name="Footnote_296_296" id="Footnote_296_296"></a><a href="#FNanchor_296_296"><span class="label">[k]</span></a> It is worthy of observation that the spiritual peers +summoned to parliament were in general considerably more numerous than the +temporal. Prynne, p. 114. This appears, among other causes, to have saved +the church from that sweeping reformation of its wealth, and perhaps of +its doctrines, which the commons were thoroughly inclined to make under +Richard II. and Henry IV. Thus the reduction of the spiritual lords by the +dissolution of monasteries was indispensably required to bring the +ecclesiastical order into due subjection to the state.</p></div> + +<div class="footnote"><p><a name="Footnote_297_297" id="Footnote_297_297"></a><a href="#FNanchor_297_297"><span class="label">[m]</span></a> Perhaps it can hardly be said that the king's prerogative +compelled the party summoned, not being a tenant by barony, to take his +seat. But though several spiritual persons appear to have been discharged +from attendance on account of their holding nothing by barony, as has been +justly observed, yet there is, I believe, no instance of any layman's +making such an application. The terms of the ancient writ of summons, +however, in fide et <i>homagio</i> quibus nobis tenemini, afford a presumption +that a feudal tenure was, in construction of law, the basis of every +lord's attendance in parliament. This form was not finally changed to the +present, in fide et <i>ligeantiâ</i>, till the 46th of Edw. III. Prynne's first +Register, p. 206.</p></div> + +<div class="footnote"><p><a name="Footnote_298_298" id="Footnote_298_298"></a><a href="#FNanchor_298_298"><span class="label">[n]</span></a> Collins's Proceedings on Claims of Baronies, p. 24 and 73.</p></div> + +<div class="footnote"><p><a name="Footnote_299_299" id="Footnote_299_299"></a><a href="#FNanchor_299_299"><span class="label">[o]</span></a> Prynne speaks of "the alienation of baronies by sale, gift, +or marriage, after which the new purchasers were summoned instead," as if +it frequently happened. First Register, p. 239. And several instances are +mentioned in the Bergavenny case (Collins's Proceedings, p. 113) where, +land-baronies having been entailed by the owners on their heirs male, the +heirs general have been excluded from inheriting the dignity.</p></div> + +<div class="footnote"><p><a name="Footnote_300_300" id="Footnote_300_300"></a><a href="#FNanchor_300_300"><span class="label">[p]</span></a> Prynne's first Register, p. 237. This must be understood to +mean that no new families were summoned; for the descendants of some who +are not supposed to have held land-baronies may constantly be found in +later lists. [<a href="#N9"><span class="smcap">Note</span> IX.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_301_301" id="Footnote_301_301"></a><a href="#FNanchor_301_301"><span class="label">[q]</span></a> West's Inquiry. Prynne, who takes rather lower ground than +West, and was not aware of Sir Henry de Bromflete's descent, admits that a +writ of summons to any one, naming him baron, or dominus, as Baroni de +Greystoke, domino de Furnival, did give an inheritable peerage; not so a +writ generally worded, naming the party knight or esquire, unless he held +by barony.</p></div> + +<div class="footnote"><p><a name="Footnote_302_302" id="Footnote_302_302"></a><a href="#FNanchor_302_302"><span class="label">[r]</span></a> Lord Abergavenny's case, 12 Coke's Reports; and Collins's +Proceedings on Claims of Baronies by Writ, p. 61.</p></div> + +<div class="footnote"><p><a name="Footnote_303_303" id="Footnote_303_303"></a><a href="#FNanchor_303_303"><span class="label">[s]</span></a> Prynne's first Register, p. 232. Elsynge, who strenuously +contends against the writ of summons conferring an hereditary nobility, is +of opinion that the party summoned was never omitted in subsequent +parliaments, and consequently was a peer for life. p. 43. But more regard +is due to Prynne's later inquiries.</p></div> + +<div class="footnote"><p><a name="Footnote_304_304" id="Footnote_304_304"></a><a href="#FNanchor_304_304"><span class="label">[t]</span></a> Case of Willoughby, Collins, p. 8; of Dacres, p. 41; of +Abergavenny, p. 119. But see the case of Grey de Ruthin, p. 222 and 230, +where the contrary position is stated by Selden upon better grounds.</p></div> + +<div class="footnote"><p><a name="Footnote_305_305" id="Footnote_305_305"></a><a href="#FNanchor_305_305"><span class="label">[u]</span></a> It seems to have been admitted by Lord Redesdale, in the +case of the barony of L'Isle, that a writ of summons, with sufficient +proof of having sat by virtue of it in the house 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 +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, +<i>arguendo</i>, "that every person whose name appears in the writ of summons +of 5 Ric. II. was again summoned to the following parliament, and their +posterity have sat in parliament as peers." p. 233.</p></div> + +<div class="footnote"><p><a name="Footnote_306_306" id="Footnote_306_306"></a><a href="#FNanchor_306_306"><span class="label">[x]</span></a> Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, +424; vol. iv. p. 374. Rymer, t. vii. p. 161.</p></div> + +<div class="footnote"><p><a name="Footnote_307_307" id="Footnote_307_307"></a><a href="#FNanchor_307_307"><span class="label">[y]</span></a> Selden's Works, vol. iii. p. 764. Selden's opinion that +bannerets in the lords' house were the same as barons may seem to call on +me for some contrary authorities, in order to support my own assertion, +besides the passages above quoted from the rolls, of which he would +naturally be supposed a more competent judge. I refer therefore to +Spelman's Glossary, p. 74; Whitelocke on Parliamentary Writ, vol. i. p. +313; and Elsynge's Method of holding Parliaments, p. 65.</p></div> + +<div class="footnote"><p><a name="Footnote_308_308" id="Footnote_308_308"></a><a href="#FNanchor_308_308"><span class="label">[z]</span></a> Puis un fut chalengé purce qu'il fut a banniere, et non +allocatur; car s'il soit a banniere, et ne tient pas par baronie, il sera +en l'assise. Year-book 22 Edw. III. fol. 18 a. apud West's Inquiry, p. +22.</p></div> + +<div class="footnote"><p><a name="Footnote_309_309" id="Footnote_309_309"></a><a href="#FNanchor_309_309"><span class="label">[a]</span></a> Rot. Parl. vol. iv. p. 201.</p></div> + +<div class="footnote"><p><a name="Footnote_310_310" id="Footnote_310_310"></a><a href="#FNanchor_310_310"><span class="label">[b]</span></a> Pinkerton's Hist. of Scotland, vol. i. p. 357 and 365.</p></div> + +<div class="footnote"><p><a name="Footnote_311_311" id="Footnote_311_311"></a><a href="#FNanchor_311_311"><span class="label">[c]</span></a> 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 barons, 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.</p></div> + +<div class="footnote"><p><a name="Footnote_312_312" id="Footnote_312_312"></a><a href="#FNanchor_312_312"><span class="label">[d]</span></a> West, whose business it was to represent the barons by writ +as mere assistants without suffrage, cites the writ to them rather +disingenuously, as if it ran vobiscum et cum prelatis, magnatibus ac +proceribus, omitting the important word cæteris. p. 35. Prynne, however, +from whom West has borrowed a great part of his arguments, does not seem +to go the length of denying the right of suffrage to persons so summoned. +First Register, p. 237.</p></div> + +<div class="footnote"><p><a name="Footnote_313_313" id="Footnote_313_313"></a><a href="#FNanchor_313_313"><span class="label">[e]</span></a> These descended from two persons, each named Geoffrey le +Scrope, chief justices of K.B. and C.B. at the beginning of Edward III.'s +reign. The name of one of them is once found among the barons, but I +presume this to have been an accident, or mistake in the roll; as he is +frequently mentioned afterwards among the judges. Scrope, chief justice of +K.B., was made a <i>banneret</i> in 14 E. III. He was the father of Henry +Scrope of Masham, a considerable person in Edward III. and Richard II.'s +government, whose grandson, Lord Scrope of Masham, was beheaded for a +conspiracy against Henry V. There was a family of Scrupe as old as the +reign of Henry II.; but it is not clear, notwithstanding Dugdale's +assertion, that the Scropes descended from them, or at least that they +held the same lands: nor were the Scrupes barons, as appears by their +paying a relief of only sixty marks for three knights' fees. Dugdale's +Baronage, p. 654. +</p><p> +The want of consistency in old records throws much additional difficulty +over this intricate subject. Thus Scrope of Masham, though certainly a +baron, and tried next year by the peers, is called chevalier in an +instrument of 1 H. V. Rymer, t. ix. p. 13. So in the indictment against +Sir John Oldcastle he is constantly styled knight, though he had been +summoned several times as lord Cobham, in right of his wife, who inherited +that barony. Rot. Parl. vol. iv. p. 107.</p></div> + +<div class="footnote"><p><a name="Footnote_314_314" id="Footnote_314_314"></a><a href="#FNanchor_314_314"><span class="label">[f]</span></a> Blomefield's Hist, of Norfolk, vol. iii. p. 645 (folio +edit).</p></div> + +<div class="footnote"><p><a name="Footnote_315_315" id="Footnote_315_315"></a><a href="#FNanchor_315_315"><span class="label">[g]</span></a> Rot. Parl. vol. iii. p. 427.</p></div> + +<div class="footnote"><p><a name="Footnote_316_316" id="Footnote_316_316"></a><a href="#FNanchor_316_316"><span class="label">[h]</span></a> Rot. Parl. vol. ii. p. 290.</p></div> + +<div class="footnote"><p><a name="Footnote_317_317" id="Footnote_317_317"></a><a href="#FNanchor_317_317"><span class="label">[i]</span></a> vol. iii. p. 209.</p></div> + +<div class="footnote"><p><a name="Footnote_318_318" id="Footnote_318_318"></a><a href="#FNanchor_318_318"><span class="label">[k]</span></a> Id. p. 263, 264.</p></div> + +<div class="footnote"><p><a name="Footnote_319_319" id="Footnote_319_319"></a><a href="#FNanchor_319_319"><span class="label">[m]</span></a> vol. iv. p. 17.</p></div> + +<div class="footnote"><p><a name="Footnote_320_320" id="Footnote_320_320"></a><a href="#FNanchor_320_320"><span class="label">[n]</span></a> Id. p. 401.</p></div> + +<div class="footnote"><p><a name="Footnote_321_321" id="Footnote_321_321"></a><a href="#FNanchor_321_321"><span class="label">[o]</span></a> West's Inquiry, p. 65. This writer does not allow that the +king possessed the prerogative of creating new peers without consent of +parliament. But Prynne (1st Register, p. 225), who generally adopts the +same theory of peerage as West, strongly asserts the contrary; and the +party views of the latter's treatise, which I mentioned above, should be +kept in sight. It was his object to prove that the pending bill to limit +the numbers of the peerage was conformable to the original constitution.</p></div> + +<div class="footnote"><p><a name="Footnote_322_322" id="Footnote_322_322"></a><a href="#FNanchor_322_322"><span class="label">[p]</span></a> Hody's History of Convocations, p. 12. Dissertatio de +antiquâ et modernâ Synodi Anglicani Constitutione, prefixed to Wilkins's +Concilia, t. 1.</p></div> + +<div class="footnote"><p><a name="Footnote_323_323" id="Footnote_323_323"></a><a href="#FNanchor_323_323"><span class="label">[q]</span></a> 2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. +345. Atterbury (Rights of Convocations, p. 295, 315) endeavours to show +that the clergy had been represented in parliament from the Conquest as +well as before it. Many of the passages he quotes are very inconclusive; +but possibly there may be some weight in one from Matthew Paris, ad ann. +1247 and two or three writs of the reign of Henry III.</p></div> + +<div class="footnote"><p><a name="Footnote_324_324" id="Footnote_324_324"></a><a href="#FNanchor_324_324"><span class="label">[r]</span></a> Hody, p. 381; Atterbury's Rights of Convocations, p. 221.</p></div> + +<div class="footnote"><p><a name="Footnote_325_325" id="Footnote_325_325"></a><a href="#FNanchor_325_325"><span class="label">[s]</span></a> Hody, p. 386; Atterbury, p. 222.</p></div> + +<div class="footnote"><p><a name="Footnote_326_326" id="Footnote_326_326"></a><a href="#FNanchor_326_326"><span class="label">[t]</span></a> Hody, p. 391.</p></div> + +<div class="footnote"><p><a name="Footnote_327_327" id="Footnote_327_327"></a><a href="#FNanchor_327_327"><span class="label">[u]</span></a> Gilbert's Hist. of Exchequer, p. 47.</p></div> + +<div class="footnote"><p><a name="Footnote_328_328" id="Footnote_328_328"></a><a href="#FNanchor_328_328"><span class="label">[x]</span></a> Rot. Parl. vol. i. p. 189; Atterbury, p. 229.</p></div> + +<div class="footnote"><p><a name="Footnote_329_329" id="Footnote_329_329"></a><a href="#FNanchor_329_329"><span class="label">[y]</span></a> The lower house of convocation, in 1547, terrified at the +progress of reformation, petitioned that, "according to the tenor of the +king's writ, and the ancient customs of the realm, they might have room +and place and be associated with the commons in the nether house of this +present parliament, as members of the commonwealth and the king's most +humble subjects." Burnet's Hist. of Reformation, vol. ii.; Appendix, No. +17. +</p><p> +This assertion that the clergy had ever been associated as one body with +the commons is not borne out by anything that appears on our records, and +is contradicted by many passages. But it is said that the clergy were +actually so united with the commons in the Irish parliament till the +Reformation. Gilbert's Hist. of the Exchequer, p. 57.</p></div> + +<div class="footnote"><p><a name="Footnote_330_330" id="Footnote_330_330"></a><a href="#FNanchor_330_330"><span class="label">[z]</span></a> Hody, p. 392.</p></div> + +<div class="footnote"><p><a name="Footnote_331_331" id="Footnote_331_331"></a><a href="#FNanchor_331_331"><span class="label">[a]</span></a> The præmunientes clause in a bishop's writ of summons was +so far regarded down to the Reformation, that proctors were elected, and +their names returned upon the writ; though the clergy never attended from +the beginning of the fifteenth century, and gave their money only in +convocation. Since the Reformation the clause has been preserved for form +merely in the writ. Wilkins, Dissertatio, ubi supra.</p></div> + +<div class="footnote"><p><a name="Footnote_332_332" id="Footnote_332_332"></a><a href="#FNanchor_332_332"><span class="label">[b]</span></a> Hody, p. 396. 403, &c. In 1314 the clergy protest even +against the recital of the king's writ to the archbishop directing him to +summon the clergy of his province in his letters mandatory, declaring that +the English clergy had not been accustomed, nor ought by right, to be +convoked by the king's authority. Atterbury, p. 230.</p></div> + +<div class="footnote"><p><a name="Footnote_333_333" id="Footnote_333_333"></a><a href="#FNanchor_333_333"><span class="label">[c]</span></a> Hody, p. 425. Atterbury, p. 42, 233. The latter seems to +think that the clergy of both provinces never actually met in a national +council or house of parliament, under the præmunientes writ, after the +reign of Edward II., though the proctors were duly returned. But Hody does +not go quite so far, and Atterbury had a particular motive to enhance the +influence of the convocation of Canterbury.</p></div> + +<div class="footnote"><p><a name="Footnote_334_334" id="Footnote_334_334"></a><a href="#FNanchor_334_334"><span class="label">[d]</span></a> Atterbury, p. 46.</p></div> + +<div class="footnote"><p><a name="Footnote_335_335" id="Footnote_335_335"></a><a href="#FNanchor_335_335"><span class="label">[e]</span></a> Rot. Parl. vol. ii. p. 64, 65.</p></div> + +<div class="footnote"><p><a name="Footnote_336_336" id="Footnote_336_336"></a><a href="#FNanchor_336_336"><span class="label">[f]</span></a> 18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the +parliament in which it is very doubtful whether any deputies from cities +and boroughs had a place. The pretended statutes were therefore every way +null; being falsely imputed to an incomplete parliament.</p></div> + +<div class="footnote"><p><a name="Footnote_337_337" id="Footnote_337_337"></a><a href="#FNanchor_337_337"><span class="label">[g]</span></a> Rot. Parl. vol. ii. p. 151.</p></div> + +<div class="footnote"><p><a name="Footnote_338_338" id="Footnote_338_338"></a><a href="#FNanchor_338_338"><span class="label">[h]</span></a> 25 E. III. stat. 3.</p></div> + +<div class="footnote"><p><a name="Footnote_339_339" id="Footnote_339_339"></a><a href="#FNanchor_339_339"><span class="label">[i]</span></a> p. 368. The word <i>they</i> is ambiguous; Whitelocke (on +Parliamentary Writ, vol. ii. p. 346) interprets it of the commons: I +should rather suppose it to mean the clergy.</p></div> + +<div class="footnote"><p><a name="Footnote_340_340" id="Footnote_340_340"></a><a href="#FNanchor_340_340"><span class="label">[k]</span></a> 50 E. III. c. 4 & 5.</p></div> + +<div class="footnote"><p><a name="Footnote_341_341" id="Footnote_341_341"></a><a href="#FNanchor_341_341"><span class="label">[m]</span></a> Rot. Parl. vol. iii. p. 25. A nostre tres excellent +seigneur le roy supplient humblement ses devotes oratours, les prelats et +la clergie de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. +c. 13, 14, 15. But see Hody, p. 425; Atterbury, p. 329.</p></div> + +<div class="footnote"><p><a name="Footnote_342_342" id="Footnote_342_342"></a><a href="#FNanchor_342_342"><span class="label">[n]</span></a> Rot. Parl. vol. iii. p. 37.</p></div> + +<div class="footnote"><p><a name="Footnote_343_343" id="Footnote_343_343"></a><a href="#FNanchor_343_343"><span class="label">[o]</span></a> It might be argued, from a passage in the parliament-roll +of 21 R. II., that the clergy of both provinces were not only present, but +that they were accounted an essential part of parliament in temporal +matters, which is contrary to the whole tenor of our laws. The commons are +there said to have prayed that, "whereas many judgments and ordinances +formerly made in parliament had been annulled <i>because the estate of +clergy had not been present thereat</i>, the prelates and clergy might make a +proxy with sufficient power to consent in their name to all things done in +this parliament." Whereupon the spiritual lords agreed to intrust their +powers to Sir Thomas Percy, and gave him a procuration commencing in the +following words: "Nos Thomas Cantuar' et Robertus Ebor' archiepiscopi, ac +prælati <i>et clerus utriusque provinciæ Cantuar' et Ebor' jure ecclesiarum +nostrarum et temporalium earundem habentes jus interessendi in singulis +parliamentis</i> domini nostri regis et regni Angliæ pro tempore celebrandis, +necnon tractandi et expediendi in eisdem quantum ad singula in instanti +parliamento pro statu et honore domini nostri regis, necnon regaliæ suæ, +ac quiete, pace, et tranquillitate regni judicialiter justificandis, +venerabili viro domino Thomæ de Percy militi, nostram plenarie committimus +potestatem." It may be perceived by these expressions, and more +unequivocally by the nature of the case, that it was the judicial power of +parliament which the spiritual lords delegated to their proxy. Many +impeachments for capital offences were coming on, at which, by their +canons, the bishops could not assist. But it can never be conceived that +the inferior clergy had any share in this high judicature. And, upon +looking attentively at the words above printed in italics, it will be +evident that the spiritual lords holding by barony are the only persons +designated; whatever may have been meant by the singular phrase, as +applied to them, clerus utriusque provinciæ. Rot. Parl. vol. iii. p. 348.</p></div> + +<div class="footnote"><p><a name="Footnote_344_344" id="Footnote_344_344"></a><a href="#FNanchor_344_344"><span class="label">[p]</span></a> Atterbury. p. 346.</p></div> + +<div class="footnote"><p><a name="Footnote_345_345" id="Footnote_345_345"></a><a href="#FNanchor_345_345"><span class="label">[q]</span></a> 21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. +47) led me to this act, which I had overlooked.</p></div> + +<div class="footnote"><p><a name="Footnote_346_346" id="Footnote_346_346"></a><a href="#FNanchor_346_346"><span class="label">[r]</span></a> Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.</p></div> + +<div class="footnote"><p><a name="Footnote_347_347" id="Footnote_347_347"></a><a href="#FNanchor_347_347"><span class="label">[s]</span></a> The ensuing sketch of the jurisdiction exercised by the +king's council has been chiefly derived from Sir Matthew Hale's Treatise +of the Jurisdiction of the Lords' House in Parliament, published by Mr. +Hargrave.</p></div> + +<div class="footnote"><p><a name="Footnote_348_348" id="Footnote_348_348"></a><a href="#FNanchor_348_348"><span class="label">[t]</span></a> 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 <i>consilium +ordinarium</i>; and, in the former capacity, began to keep formal records of +their proceedings. The acts of this council though, as I have just said, +it bore as yet no distinguishing name, are extant from the year 1386, and +for seventy years afterwards are known through the valuable publication of +Sir Harris Nicolas.</p></div> + +<div class="footnote"><p><a name="Footnote_349_349" id="Footnote_349_349"></a><a href="#FNanchor_349_349"><span class="label">[u]</span></a> Rot. Parl. vol. iii. p. 84.</p></div> + +<div class="footnote"><p><a name="Footnote_350_350" id="Footnote_350_350"></a><a href="#FNanchor_350_350"><span class="label">[x]</span></a> Ibid. p. 266.</p></div> + +<div class="footnote"><p><a name="Footnote_351_351" id="Footnote_351_351"></a><a href="#FNanchor_351_351"><span class="label">[y]</span></a> 25 E. III. stat. 5, c. 4. Probably this fifth statute of +the 25th of Edward III. is the most extensively beneficial act in the +whole body of our laws. It established certainty in treasons, regulated +purveyance, prohibited arbitrary imprisonment and the determination of +pleas of freehold before the council, took away the compulsory finding of +men-at-arms and other troops, confirmed the reasonable aid of the king's +tenants fixed by 3 E. I., and provided that the king's protection should +not hinder civil process or execution.</p></div> + +<div class="footnote"><p><a name="Footnote_352_352" id="Footnote_352_352"></a><a href="#FNanchor_352_352"><span class="label">[z]</span></a> 28 E. III. c. 3.</p></div> + +<div class="footnote"><p><a name="Footnote_353_353" id="Footnote_353_353"></a><a href="#FNanchor_353_353"><span class="label">[a]</span></a> 42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not +surprising that the king's council should have persisted in these +transgressions of their lawful authority, when we find a similar +jurisdiction usurped by the officers of inferior persons. Complaint is +made in the 18th of Richard II. that men were compelled to answer before +<i>the council of divers lords and ladies</i>, for their freeholds and other +matters cognizable at common law, and a remedy for this abuse is given by +petition in chancery, stat. 15 R. II. c. 12. This act is confirmed with a +penalty on its contraveners the next year, 16 R. II. c. 2. The private +gaols which some lords were permitted by law to possess, and for which +there was always a provision in their castles, enabled them to render this +oppressive jurisdiction effectual.</p></div> + +<div class="footnote"><p><a name="Footnote_354_354" id="Footnote_354_354"></a><a href="#FNanchor_354_354"><span class="label">[b]</span></a> Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 +H. VI. vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. +403; 15 H. VI. p. 501. To one of these (10 H. VI.), "that none should be +put to answer for his freehold in parliament, nor before any court or +council where such things are not cognizable by the law of the land," the +king gave a denial. As it was less usual to refuse promises of this kind +than to forget them afterwards, I do not understand the motive of this.</p></div> + +<div class="footnote"><p><a name="Footnote_355_355" id="Footnote_355_355"></a><a href="#FNanchor_355_355"><span class="label">[c]</span></a> Hale's Jurisdiction of Lords' House, p. 46. Coke, 2 Inst. +p. 553. The last author places this a little later. There is a petition of +the commons, in the roll of the 4th of Henry IV. p. 511, that, whereas +many grantees and feoffees in trust for their grantors and feoffers +alienate or charge the tenements granted, <i>in which case there is no +remedy unless one is ordered by parliament</i>, that the king and lords would +provide a remedy. This petition is referred to the king's council to +advise of a remedy against the ensuing parliament. It may perhaps be +inferred from hence that the writ of subpœna out of chancery had not +yet been applied to protect the cestui que use. But it is equally possible +that the commons, being disinclined to what they would deem an illegal +innovation, were endeavouring to reduce these fiduciary estates within the +pale of the common law, as was afterwards done by the statute of uses. +[<a href="#N10"><span class="smcap">Note</span> X.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_356_356" id="Footnote_356_356"></a><a href="#FNanchor_356_356"><span class="label">[d]</span></a> Rot. Parl. vol. i. p. 416.</p></div> + +<div class="footnote"><p><a name="Footnote_357_357" id="Footnote_357_357"></a><a href="#FNanchor_357_357"><span class="label">[e]</span></a> L. ii. c. 2.</p></div> + +<div class="footnote"><p><a name="Footnote_358_358" id="Footnote_358_358"></a><a href="#FNanchor_358_358"><span class="label">[f]</span></a> [<a href="#N11"><span class="smcap">Note</span> XI.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_359_359" id="Footnote_359_359"></a><a href="#FNanchor_359_359"><span class="label">[g]</span></a> This is remarkably expressed in one of the articles agreed +in parliament 8 H. VI. for the regulation of the council. "Item, that alle +the billes that comprehend matters terminable atte the common lawe shall +be remitted ther to be determined; but if so be that the discresion of the +counseill fele to grete myght on that õ syde, and unmyght on that other, +or elles other cause resonable yat shal move him." Rot. Parl. vol. iv. p. +343. Mr. Bruce has well observed of the articles agreed upon in 8 Hen. +VI., or rather of "those in 5 Hen. VI., which were nearly the same, that +in theory nothing could be more excellent. In turbulent times, it is +scarcely necessary to remark, great men were too apt to weigh out justice +for themselves, and with no great nicety; a court, therefore, to which the +people might fly for relief against powerful oppressors, was most +especially needful. Law charges also were considerable; and this, 'the +poor man's court, in which he might have right without paying any money' +(Sir T. Smith's Commonwealth, book iii. ch. 7), was an institution +apparently calculated to be of unquestionable utility. It was the +comprehensiveness of the last clause—the 'other cause resonable'—which +was its ruin." Archæologia, vol. xxv. p. 348. The statute 31 Hen. VI. c. +2, which is not printed in Ruffhead's edition, is very important, as +giving a legal authority to the council, by writs under the great seal, +and by writs of proclamation to the sheriffs, on parties making default, +to compel the attendance of any persons complained of for "great riots, +extortions, oppressions, and grievous offences," under heavy penalties; in +case of a peer, "the loss of his estate, and name of lord, and his place +in parliament," and all his lands for the term of his life; and fine at +discretion in the case of other persons. A proviso is added that no matter +determinable by the law of the realm should be determined in other form +than after the course of law in the king's courts. Sir Francis Palgrave +(Essay on the King's Council, p. 84) observes that this proviso "would in +no way interfere with the effective jurisdiction of the council, inasmuch +as it could always be alleged in the bills which were preferred before it +that the oppressive and grievous offences of which they complained were +not determinable by the ordinary course of the common law" p. 86. But this +takes the word "determinable" to mean <i>in fact</i>; whereas I apprehend that +the proviso must be understood to mean cases legally determinable; the +words, I think, will bear no other construction. But as all the offences +enumerated were indictable, we must either hold the proviso to be utterly +inconsistent with the rest of the statute, or suppose that the words +"other form" were intended to prohibit the irregular process usual with +the council; secret examination of witnesses, torture, neglect of +technical formality in specifying charges, punishments not according to +the course of law, and other violations of fair and free trial, which +constituted the greatest grievance in the proceedings of the council.</p></div> + +<div class="footnote"><p><a name="Footnote_360_360" id="Footnote_360_360"></a><a href="#FNanchor_360_360"><span class="label">[h]</span></a> The judgment against Mortimer was reversed at the suit of +his son, 28 E. III., because he had not been put on his trial. The peers +had adjudged him to death in his absence, upon common notoriety of his +guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of +Arundel's attainder was also reversed, which had passed in 1 E. III., when +Mortimer was at the height of his power. These precedents taken together +seem to have resulted from no partiality, but a true sense of justice in +respect of treasons, animated by the recent statute. Rot. Parl. vol. ii. +p. 256.</p></div> + +<div class="footnote"><p><a name="Footnote_361_361" id="Footnote_361_361"></a><a href="#FNanchor_361_361"><span class="label">[i]</span></a> Rot. Parl. vol. iii. p. 427.</p></div> + +<div class="footnote"><p><a name="Footnote_362_362" id="Footnote_362_362"></a><a href="#FNanchor_362_362"><span class="label">[k]</span></a> Blackstone's Comment. from Finch, vol. i. c. 7.</p></div> + +<div class="footnote"><p><a name="Footnote_363_363" id="Footnote_363_363"></a><a href="#FNanchor_363_363"><span class="label">[m]</span></a> Letters are directed to all the sheriffs, 2 E. I., +enjoining them to send up a certain number of beeves, sheep, capons, &c., +for the king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. +III. c. 12, goods taken by the purveyors were to be paid for on the spot +if under twenty shillings' value, or within three months' time if above +that value. But it is not to be imagined that this law was or could be +observed. +</p><p> +Edward III., impelled by the exigencies of his French war, went still +greater lengths, and seized larger quantities of wool, which he sold +beyond sea, as well as provisions for the supply of his army. In both +cases the proprietors had tallies, or other securities; but their despair +of obtaining payment gave rise, in 1338, to an insurrection. There is a +singular apologetical letter of Edward to the archbishops on this +occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col. 2570.</p></div> + +<div class="footnote"><p><a name="Footnote_364_364" id="Footnote_364_364"></a><a href="#FNanchor_364_364"><span class="label">[n]</span></a> Rymer, t. vi. p. 417.</p></div> + +<div class="footnote"><p><a name="Footnote_365_365" id="Footnote_365_365"></a><a href="#FNanchor_365_365"><span class="label">[o]</span></a> Idem, t. xi. p. 852.</p></div> + +<div class="footnote"><p><a name="Footnote_366_366" id="Footnote_366_366"></a><a href="#FNanchor_366_366"><span class="label">[p]</span></a> Matthew Paris asserts that John granted a separate +forest-charter, and supports his position by asserting that of Henry III. +at full length. In fact, the clauses relating to the forest were +incorporated with the great charter of John. Such an error as this shows +the precariousness of historical testimony, even where it seems to be best +grounded.</p></div> + +<div class="footnote"><p><a name="Footnote_367_367" id="Footnote_367_367"></a><a href="#FNanchor_367_367"><span class="label">[q]</span></a> Coke, fourth Inst. p. 294. The forest domain of the king, +says the author of the Dialogue on the Exchequer under Henry II., is +governed by its own laws, not founded on the common law of the land, but +the voluntary enactment of princes: so that whatever is done by that law +is reckoned not legal in itself, but legal according to forest law, p. 29, +non justum absolutè, sed justum secundum legem forestæ dicatur. I believe +my translation of <i>justum</i> is right; for he is not writing satirically.</p></div> + +<div class="footnote"><p><a name="Footnote_368_368" id="Footnote_368_368"></a><a href="#FNanchor_368_368"><span class="label">[r]</span></a> 13 R. II. c. 2.</p></div> + +<div class="footnote"><p><a name="Footnote_369_369" id="Footnote_369_369"></a><a href="#FNanchor_369_369"><span class="label">[s]</span></a> Rot. Parl. vol. iii. p. 530.</p></div> + +<div class="footnote"><p><a name="Footnote_370_370" id="Footnote_370_370"></a><a href="#FNanchor_370_370"><span class="label">[t]</span></a> The apprehension of this compliant spirit in the ministers +of justice led to an excellent act in 2 E. III. c. 8, that the judges +shall not omit to do right for any command under the great or privy seal. +And the conduct of Richard II., who sought absolute power by corrupting or +intimidating them, produced another statute in the eleventh year of his +reign (c. 10), providing that neither letters of the king's signet nor of +the privy seal should from thenceforth be sent in disturbance of the law. +An ordinance of Charles V., king of France, in 1369, directs the +parliament of Paris to pay no regard to any letters under his seal +suspending the course of legal procedure, but to consider them as +surreptitiously obtained. Villaret, t. x. p. 175. This ordinance, which +was sedulously observed, tended very much to confirm the independence and +integrity of that tribunal.</p></div> + +<div class="footnote"><p><a name="Footnote_371_371" id="Footnote_371_371"></a><a href="#FNanchor_371_371"><span class="label">[u]</span></a> Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. +p. 1. Hume quotes a grant of the office of constable to the earl of Rivers +in 7 E. IV., and infers, unwarrantably enough, that "its authority was in +direct contradiction to Magna Charta; and it is evident that no regular +liberty could subsist with it. It involved a full dictatorial power, +continually subsisting in the state." Hist. of England, c. 22. But by the +very words of this patent the jurisdiction given was only over such causes +quæ in curiâ constabularii Angliæ ab antiquo, viz. tempore dicti Gulielmi +conquæstoris, seu aliquo tempore citra, tractari, audiri, examinari, aut +decidi consueverunt aut <i>jure debuerant aut debent</i>. These are expressed, +though not very perspicuously, in the statute 13 R. II. c. 2, that +declares the constable's jurisdiction. And the chief criminal matter +reserved by law to the court of this officer was treason committed out of +the kingdom. In violent and revolutionary seasons, such as the +commencement of Edward IV.'s reign, some persons were tried by martial law +before the constable. But, in general, the exercise of criminal justice by +this tribunal, though one of the abuses of the times, cannot be said to +warrant the strong language adopted by Hume.</p></div> + +<div class="footnote"><p><a name="Footnote_372_372" id="Footnote_372_372"></a><a href="#FNanchor_372_372"><span class="label">[x]</span></a> Fortescue, De Laudibus Legum Angliæ, c. 9.</p></div> + +<div class="footnote"><p><a name="Footnote_373_373" id="Footnote_373_373"></a><a href="#FNanchor_373_373"><span class="label">[y]</span></a> Id. c. 13.</p></div> + +<div class="footnote"><p><a name="Footnote_374_374" id="Footnote_374_374"></a><a href="#FNanchor_374_374"><span class="label">[z]</span></a> The latter treatise having been written under Edward IV., +whom Fortescue, as a restored Lancastrian, would be anxious not to offend, +and whom in fact he took some pains to conciliate both in this and other +writings, it is evident that the principles of limited monarchy were as +fully recognised in his reign whatever particular acts of violence might +occur, as they had been under the Lancastrian princes.</p></div> + +<div class="footnote"><p><a name="Footnote_375_375" id="Footnote_375_375"></a><a href="#FNanchor_375_375"><span class="label">[a]</span></a> The following is one example of these prejudices: In the +9th of Richard II. a tax on wool granted till the ensuing feast of St. +John Baptist was to be intermitted from thence to that of St. Peter, and +then to recommence; that it might not be claimed as a right. Rot. Parl. +vol. iii. p. 214. Mr. Hume has noticed this provision, as "showing an +accuracy beyond what was to be expected in those <i>rude</i> times." In this +epithet we see the foundation of his mistakes. The age of Richard II. +might perhaps be called rude in some respects. But assuredly in prudent +and circumspect perception of consequences, and an accurate use of +language, there could be no reason why it should be deemed inferior to our +own. If Mr. Hume had ever deigned to glance at the legal decisions +reported in the Year-books of those times, he would have been surprised, +not only at the utmost <i>accuracy</i>, but at a subtle refinement in verbal +logic, which none of his own metaphysical treatises could surpass.</p></div> + +<div class="footnote"><p><a name="Footnote_376_376" id="Footnote_376_376"></a><a href="#FNanchor_376_376"><span class="label">[b]</span></a> [<a href="#N12"><span class="smcap">Note</span> XII.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_377_377" id="Footnote_377_377"></a><a href="#FNanchor_377_377"><span class="label">[c]</span></a> During the famous process against the knights templars in +the reign of Edward II., the archbishop of York, having taken the +examination of certain templars in his province, felt some doubts which he +propounded to several monasteries and divines. Most of these relate to the +main subject. But one question, fitter indeed for lawyers than +theologians, was, whereas many would not confess without torture, whether +he might make use of this means, <i>licet hoc in regno Angliæ nunquam visum +fuerit vel auditum</i>? Et si torquendi sunt, utrum per clericos vel laicos? +Et dato, quòd <i>nullus omnino tortor inveniri valeat</i> in Angliâ, utrum pro +tortoribus mittendum sit ad partes transmarinas? Walt. Hemingford, p. 256. +Instances, however, of its use are said to have occurred in the 15th +century. See a learned 'Reading on the Use of Torture in the Criminal Law +of England, by David Jardine, Esq., 1837.'</p></div> + +<div class="footnote"><p><a name="Footnote_378_378" id="Footnote_378_378"></a><a href="#FNanchor_378_378"><span class="label">[d]</span></a> Rot. Parl. vol. iv. p. 65.</p></div> + +<div class="footnote"><p><a name="Footnote_379_379" id="Footnote_379_379"></a><a href="#FNanchor_379_379"><span class="label">[e]</span></a> Rot. Parl. vol. iv. p. 202.</p></div> + +<div class="footnote"><p><a name="Footnote_380_380" id="Footnote_380_380"></a><a href="#FNanchor_380_380"><span class="label">[f]</span></a> This was written in 1811 or 1812; and is among many +passages which the progress of time has somewhat falsified.</p></div> + +<div class="footnote"><p><a name="Footnote_381_381" id="Footnote_381_381"></a><a href="#FNanchor_381_381"><span class="label">[g]</span></a> Philip de Comines takes several opportunities of testifying +his esteem for the English government. See particularly 1. iv. c. i. and +1. v. c. xix.</p></div> + +<div class="footnote"><p><a name="Footnote_382_382" id="Footnote_382_382"></a><a href="#FNanchor_382_382"><span class="label">[h]</span></a> By a frankleyn in this place we are to understand what we +call a country squire, like the frankleyn of Chaucer; for the word esquire +in Fortescue's time was only used in its limited sense, for the sons of +peers and knights, or such as had obtained the title by creation or some +other legal means. +</p><p> +The mention of Chaucer leads me to add that the prologue to his Canterbury +Tales is of itself a continual testimony to the plenteous and comfortable +situation of the middle ranks in England, as well as to that fearless +independence and frequent originality of character amongst them, which +liberty and competence have conspired to produce.</p></div> + +<div class="footnote"><p><a name="Footnote_383_383" id="Footnote_383_383"></a><a href="#FNanchor_383_383"><span class="label">[i]</span></a> Brady's Hist. vol. i.; Appendix, p. 148.</p></div> + +<div class="footnote"><p><a name="Footnote_384_384" id="Footnote_384_384"></a><a href="#FNanchor_384_384"><span class="label">[k]</span></a> Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. +iv. p. 41.</p></div> + +<div class="footnote"><p><a name="Footnote_385_385" id="Footnote_385_385"></a><a href="#FNanchor_385_385"><span class="label">[m]</span></a> If a man was disseised of his land, he might enter upon the +disseisor and reinstate himself without course of law. In what case this +right of entry was taken away, or <i>tolled</i>, as it was expressed, by the +death or alienation of the disseisor, is a subject extensive enough to +occupy two chapters of Littleton. What pertains to our inquiry is, that by +an entry in the old law-books we must understand an actual repossession of +the disseisee, not a suit in ejectment, as it is now interpreted, but +which is a comparatively modern proceeding. The first remedy, says +Britton, of the disseisee is to collect a body of his friends (recoiller +amys et force), and without delay to cast out the disseisors, or at least +to maintain himself in possession along with them. c. 44. This entry ought +indeed, by 5 R. II. stat. i. c. 8, to be made peaceably; and the justices +might assemble the posse comitatus to imprison persons entering on lands +by violence (15 R. II. c. 2), but these laws imply the facts that made +them necessary.</p></div> + +<div class="footnote"><p><a name="Footnote_386_386" id="Footnote_386_386"></a><a href="#FNanchor_386_386"><span class="label">[n]</span></a> No lord, or other person, by 20 R. II. c. 3, was permitted +to sit on the bench with the justices of assise. Trials were sometimes +overawed by armed parties, who endeavoured to prevent their adversaries +from appearing. Paston Letters, vol. iii. p. 119.</p></div> + +<div class="footnote"><p><a name="Footnote_387_387" id="Footnote_387_387"></a><a href="#FNanchor_387_387"><span class="label">[o]</span></a> From a passage in the Paston Letters (vol. ii. p. 23) it +appears that, far from these acts being regarded, it was considered as a +mark of respect to the king, when he came into a county, for the noblemen +and gentry to meet him with as many attendants in livery as they could +muster. Sir John Paston was to provide twenty men in their livery-gowns, +and the duke of Norfolk two hundred. This illustrates the well-known story +of Henry VII. and the earl of Oxford, and shows the mean and oppressive +conduct of the king in that affair, which Hume has pretended to justify. +</p><p> +In the first of Edward IV. it is said in the roll of parliament (vol. v. +p. 407), that, "by yeving of liveries and signets, contrary to the +statutes and ordinances made aforetyme maintenaunce of quarrels, +extortions, robberies, murders been multiplied and continued within this +reame, to the grete disturbaunce and inquietation of the same."</p></div> + +<div class="footnote"><p><a name="Footnote_388_388" id="Footnote_388_388"></a><a href="#FNanchor_388_388"><span class="label">[p]</span></a> Thus to select one passage out of many: Eodem anno (1332) +quidam maligni, fulti quorundam magnatum præsidio, regis adolescentiam +spernentes, et regnum perturbare intendentes, in tantam turbam creverunt, +nemora et saltus occupaverunt, ita quod toti regno terrori essent. +Walsingham, p. 132.</p></div> + +<div class="footnote"><p><a name="Footnote_389_389" id="Footnote_389_389"></a><a href="#FNanchor_389_389"><span class="label">[q]</span></a> I am aware that in many, probably a great majority of +reported cases, this word was technically used, where some unwarranted +conveyance, such as a feoffment by the tenant for life, was held to have +wrought a disseisin; or where the plaintiff was allowed, for the purpose +of a more convenient remedy, to feign himself disseised, which was called +disseisin by election. But several proofs might be brought from the +parliamentary petitions, and I doubt not, if nearly looked at, from the +Year-books, that in other cases there was an actual and violent expulsion. +And the definition of disseisin in all the old writers, such as Britton +and Littleton, is obviously framed upon its primary meaning of violent +dispossession, which the word had probably acquired long before the more +peaceable disseisins, if I may use the expression, became the subject of +the remedy by assise. +</p><p> +I would speak with deference of Lord Mansfield's elaborate judgment in +Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in it +appear to me rather too strongly stated; and particularly that the +acceptance of the disseisor as tenant by the lord was necessary to render +the disseisin complete; a condition which I have not found hinted in any +law-book. See Butler's note on Co. Litt. p. 330; where that eminent lawyer +expresses similar doubts as to Lord Mansfield's reasoning. It may however +be remarked, that constructive or elective disseisins, being of a +technical nature, were more likely to produce cases in the Year-books than +those accompanied with actual violence, which would commonly turn only on +matters of fact, and be determined by a jury. +</p><p> +A remarkable instance of violent disseisin, amounting in effect to a +private war, may be found in the Paston Letters occupying most of the +fourth volume. One of the Paston family, claiming a right to Caistor +Castle, kept possession against the duke of Norfolk, who brought a large +force, and laid a regular siege to the place, till it surrendered for want +of provisions. Two of the besiegers were killed. It does not appear that +any legal measures were taken to prevent or punish this outrage.</p></div> + +<div class="footnote"><p><a name="Footnote_390_390" id="Footnote_390_390"></a><a href="#FNanchor_390_390"><span class="label">[r]</span></a> Difference between an Absolute and Limited Monarchy, p. +99.</p></div> + +<div class="footnote"><p><a name="Footnote_391_391" id="Footnote_391_391"></a><a href="#FNanchor_391_391"><span class="label">[s]</span></a> The manner in which these were obtained, in spite of law, +may be noticed among the violent courses of prerogative. By statute 2 E. +III. c. 2, confirmed by 10 E. III. c. 2, the king's power of granting +pardons was taken away, except in cases of homicide per infortunium. +Another act, 14 E. III. c. 15, reciting that the former laws in this +respect have not been kept, declares that all pardons contrary to them +shall be holden as null. This however was disregarded like the rest; and +the commons began tacitly to recede from them, and endeavoured to +compromise the question with the crown. By 27 E. III. stat. I, c. 2, +without adverting to the existing provisions, which may therefore seem to +be repealed by implication, it is enacted that in every charter of pardon, +granted at any one's suggestion, the suggestor's name and the grounds of +his suggestion shall be expressed, that if the same be found untrue it may +be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to find +the commons requesting that pardons might not be granted, as if the +subject were wholly, unknown to the law; the king protesting in reply that +he will save his liberty and regality, as his progenitors had done before, +but conceding some regulations, far less remedial than what were provided +already by the 27th of Edward II. Pardons make a pretty large head in +Brooke's Abridgment, and were undoubtedly granted without scruple by every +one of our kings. A pardon obtained in a case of peculiar atrocity is the +subject of a specific remonstrance in 23 H. VI. Rot. Parl. vol. v. p. +111.</p></div> + +<div class="footnote"><p><a name="Footnote_392_392" id="Footnote_392_392"></a><a href="#FNanchor_392_392"><span class="label">[t]</span></a> Rot. Parl. vol. ii. p. 201. A strange policy, for which no +rational cause can be alleged, kept Wales and even Cheshire distinct from +the rest of the kingdom. Nothing could be more injurious to the adjacent +counties. Upon the credit of their immunity from the jurisdiction of the +king's courts, the people of Cheshire broke with armed bands into the +neighbouring counties, and perpetrated all the crimes in their power. Rot. +Parl. vol. iii. p. 81, 201, 440; Stat. 1 H. IV. c. 18. As to the Welsh +frontier, it was constantly almost in a state of war, which a very little +good sense and benevolence in any one of our shepherds would have easily +prevented, by admitting the conquered people to partake in equal +privileges with their fellow-subjects. Instead of this, they satisfied +themselves with aggravating the mischief by granting legal reprisals upon +Welshmen. Stat. 2 H. IV. c. 16. Welshmen were absolutely excluded from +bearing offices in Wales. The English living in the English towns of Wales +earnestly petition, 23 H. VI. Rot. Parl. vol. v. p. 104, 154, that this +exclusion may be kept in force. Complaints of the disorderly state of the +Welsh frontier are repeated as late as 12 E. IV. vol. vi. p. 8. +</p><p> +It is curious that, so early as 15 E. II., a writ was addressed to the +earl of Arundel, justiciary of Wales, directing him to cause twenty-four +discreet persons to be chosen from the north, and as many from the south +of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456. +And we find a similar writ in the 20th of the same king. Prynne's +Register, 4th part, p. 60. Willis says that he has seen a return to one of +these precepts, much obliterated, but from which it appears that Conway, +Beaumaris, and Carnarvon returned members. Notitia Parliamentaria, vol. i. +preface, p. 15.</p></div> + +<div class="footnote"><p><a name="Footnote_393_393" id="Footnote_393_393"></a><a href="#FNanchor_393_393"><span class="label">[u]</span></a> The statute of Winton was confirmed, and proclaimed afresh +by the sheriffs, 7 R. II. c. 6, after an era of great disorder.</p></div> + +<div class="footnote"><p><a name="Footnote_394_394" id="Footnote_394_394"></a><a href="#FNanchor_394_394"><span class="label">[x]</span></a> Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.</p></div> + +<div class="footnote"><p><a name="Footnote_395_395" id="Footnote_395_395"></a><a href="#FNanchor_395_395"><span class="label">[y]</span></a> 1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; +7 R. II. c. 5. The institution excited a good deal of ill-will, even +before these strong acts were passed. Many petitions of the commons in the +28th E. III., and other years, complain of it. Rot. Parl. vol. ii.</p></div> + +<div class="footnote"><p><a name="Footnote_396_396" id="Footnote_396_396"></a><a href="#FNanchor_396_396"><span class="label">[z]</span></a> Rot. Parl. vol. iii. p. 65. It may be observed that this +act, 2 E. II. c. 16, was not founded on a petition, but on the king's +answer; so that the commons were not real parties to it, and accordingly +call it an ordinance in their present petition. This naturally increased +their animosity in treating it as an infringement of the subject's right.</p></div> + +<div class="footnote"><p><a name="Footnote_397_397" id="Footnote_397_397"></a><a href="#FNanchor_397_397"><span class="label">[a]</span></a> Glanvil, 1. v. c. 5.</p></div> + +<div class="footnote"><p><a name="Footnote_398_398" id="Footnote_398_398"></a><a href="#FNanchor_398_398"><span class="label">[b]</span></a> According to Bracton, the bastard of a nief, or female +villein, was born in servitude; and where the parents lived on a villein +tenement, the children of a nief, even though married to a freeman, were +villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109. +But Littleton lays down an opposite doctrine, that a bastard was +necessarily free; because, being the child of no father in the +contemplation of law, he could not be presumed to inherit servitude from +any one; and makes no distinction as to the parent's residence. Sect 188. +I merely take notice of this change in the law between the reigns of Henry +III. and Edward IV. as an instance of the bias which the judges showed in +favour of personal freedom. Another, if we can rely upon it, is more +important. In the reign of Henry II. a freeman marrying a nief, and +settling on a villein tenement, lost the privileges of freedom during the +time of his occupation; legem terræ quasi nativus amittit. Glanvil, 1. v. +c. 6. This was consonant to the customs of some other countries, some of +which went further, and treated such a person for ever as a villein. But, +on the contrary, we find in Britton, a century later, that the nief +herself by such a marriage became free during the coverture, c. 31. [<a href="#N13"><span class="smcap">Note</span> +XIII.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_399_399" id="Footnote_399_399"></a><a href="#FNanchor_399_399"><span class="label">[c]</span></a> I must confess that I have some doubts how far this was law +at the epoch of Magna Charta. Glanvil and Bracton both speak of the +<i>status villenagii</i>, as opposed to that of liberty, and seem to consider +it as a civil condition, not a merely personal relation. The civil law and +the French treatise of Beaumanoir hold the same language. And Sir Robert +Cotton maintains without hesitation that villeins are not within the 29th +section of Magna Charta, "being excluded by the word liber." Cotton's +Posthuma, p. 223. Britton, however, a little after Bracton, says that in +an action the villein is answerable to all men, and all men to him. p. 79. +And later judges, in favorem libertatis, gave this construction to the +villein's situation, which must therefore be considered as the clear law +of England in the fourteenth and fifteenth centuries.</p></div> + +<div class="footnote"><p><a name="Footnote_400_400" id="Footnote_400_400"></a><a href="#FNanchor_400_400"><span class="label">[d]</span></a> Littleton, sect. 189, 190, speaks only of an appeal in the +two former cases; but an indictment is à fortiori; and he says, sect. 194, +that an indictment, though not an appeal, lies against the lord for +maiming his villein.</p></div> + +<div class="footnote"><p><a name="Footnote_401_401" id="Footnote_401_401"></a><a href="#FNanchor_401_401"><span class="label">[e]</span></a> Gurdon, on Courts Baron, p. 592, supposes the villein in +gross to have been the Lazzus or Servus of early times, a domestic serf, +and of an inferior species to the cultivator, or villein regardant. +Unluckily Bracton and Littleton do not confirm this notion, which would be +convenient enough; for in Domesday Book there is a marked distinction +between the Servi and Villani. Blackstone expresses himself inaccurately +when he says the villein in gross was annexed to the person of the lord, +and transferable by deed from one owner to another. By this means indeed a +villein regardant would become a villein in gross, but all villeins were +alike liable to be sold by their owners. Littleton, sect. 181. +Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that +villeins in gross were never numerous (Case of Somerset, Howell's State +Trials, vol. xx. p. 42): drawing this inference from the few cases +relative to them that occur in the Year-books. And certainly the form of a +writ de nativitate probandâ, and the peculiar evidence it required, which +may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s argument, are +only applicable to the other species. It is a doubtful point whether a +freeman could, in contemplation of law, become a villein in gross; though +his confession in a court of record, upon a suit already commenced (for +this was requisite), would estop him from claiming his liberty; and hence +Bracton speaks of this proceeding as a mode by which a freeman might fall +into servitude.</p></div> + +<div class="footnote"><p><a name="Footnote_402_402" id="Footnote_402_402"></a><a href="#FNanchor_402_402"><span class="label">[f]</span></a> [<a href="#N14"><span class="smcap">Note</span> XIV.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_403_403" id="Footnote_403_403"></a><a href="#FNanchor_403_403"><span class="label">[g]</span></a> Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.</p></div> + +<div class="footnote"><p><a name="Footnote_404_404" id="Footnote_404_404"></a><a href="#FNanchor_404_404"><span class="label">[h]</span></a> Glanvil, 1. iv. c. 5.</p></div> + +<div class="footnote"><p><a name="Footnote_405_405" id="Footnote_405_405"></a><a href="#FNanchor_405_405"><span class="label">[i]</span></a> Dugdale's Warwickshire, apud Eden's State of the Poor, vol. +i. p. 13. A passage in another local history rather seems to indicate that +some kind of delinquency was usually alleged, and some ceremony employed, +before the lord entered on the villein's land. In Gissing manor, 39 E. +III., the jury present, that W. G., a villein by blood, was a rebel and +ungrateful toward his lord, for which all his tenements were seized. His +offence was the having said that the lord kept four stolen sheep in his +field. Blomefield's Norfolk, vol. i. p. 114.</p></div> + +<div class="footnote"><p><a name="Footnote_406_406" id="Footnote_406_406"></a><a href="#FNanchor_406_406"><span class="label">[k]</span></a> Gurdon on Courts Baron, p. 574.</p></div> + +<div class="footnote"><p><a name="Footnote_407_407" id="Footnote_407_407"></a><a href="#FNanchor_407_407"><span class="label">[m]</span></a> Brooke's Abridgm. Tenant par copie, 1. By the extent-roll +of the manor of Brisingham in Norfolk, in 1254, it appears that there were +then ninety-four copyholders and six cottagers in villenage; the former +performing many, but determinate services of labour for the lord. +Blomefield's Norfolk, vol. i. p. 34.</p></div> + +<div class="footnote"><p><a name="Footnote_408_408" id="Footnote_408_408"></a><a href="#FNanchor_408_408"><span class="label">[n]</span></a> Littl. sect. 77. A copyholder without legal remedy may seem +little better than a tenant in mere villenage, except in name. But though, +from the relation between the lord and copyholder the latter might not be +permitted to sue his superior, yet it does not follow that he might not +bring his action against any person acting under the lord's direction, in +which the defendant could not set up an illegal authority; just as, +although no writ runs against the king, his ministers or officers are not +justified in acting under his command contrary to law. I wish this note to +be considered as correcting one in my first volume, p. 200, where I have +said that a similar law in France rendered the distinction between a serf +and a homme de poote little more than theoretical.</p></div> + +<div class="footnote"><p><a name="Footnote_409_409" id="Footnote_409_409"></a><a href="#FNanchor_409_409"><span class="label">[o]</span></a> See the rules of pleading and evidence in questions of +villenage fully stated in Mr. Hargrave's argument in the case of Somerset. +Howell's State Trials, vol. xx. p. 38.</p></div> + +<div class="footnote"><p><a name="Footnote_410_410" id="Footnote_410_410"></a><a href="#FNanchor_410_410"><span class="label">[p]</span></a> 1. v. c. v.</p></div> + +<div class="footnote"><p><a name="Footnote_411_411" id="Footnote_411_411"></a><a href="#FNanchor_411_411"><span class="label">[q]</span></a> Blomefleld's Norfolk, vol. i. p. 657. I know not how far +this privilege was supposed to be impaired by the statute 34 E. III. c. +11; which however might, I should conceive, very well stand along with +it.</p></div> + +<div class="footnote"><p><a name="Footnote_412_412" id="Footnote_412_412"></a><a href="#FNanchor_412_412"><span class="label">[r]</span></a> Stat. 23 E. III.</p></div> + +<div class="footnote"><p><a name="Footnote_413_413" id="Footnote_413_413"></a><a href="#FNanchor_413_413"><span class="label">[s]</span></a> [<a href="#N15"><span class="smcap">Note</span> XV.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_414_414" id="Footnote_414_414"></a><a href="#FNanchor_414_414"><span class="label">[t]</span></a> I have been more influenced by natural probabilities than +testimony in ascribing this effect to Wicliffe's innovations, because the +historians are prejudiced witnesses against him. Several of them depose to +the connexion between his opinions and the rebellion of 1382; especially +Walsingham, p. 288. This implies no reflection upon Wicliffe, any more +than the crimes of the anabaptists in Munster do upon Luther. Every one +knows the distich of John Ball, which comprehends the essence of religious +democracy: +</p> +<div class="poem"><div class="stanza"> +<span class="i0">"When Adam delved and Eve span,<br /></span> +<span class="i5">Where was then the gentleman?"<br /></span> +</div></div> +<p> +The sermon of this priest, as related by Walsingham, p. 275, derives its +argument for equality from the common origin of the species. He is said to +have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii. p. +420.</p></div> + +<div class="footnote"><p><a name="Footnote_415_415" id="Footnote_415_415"></a><a href="#FNanchor_415_415"><span class="label">[u]</span></a> Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21.</p></div> + +<div class="footnote"><p><a name="Footnote_416_416" id="Footnote_416_416"></a><a href="#FNanchor_416_416"><span class="label">[x]</span></a> 30 E. I., in Fitzherbert. Villenage, apud Lambard's +Perambulation of Kent, p. 632. Somner on Gavelkind, p. 72.</p></div> + +<div class="footnote"><p><a name="Footnote_417_417" id="Footnote_417_417"></a><a href="#FNanchor_417_417"><span class="label">[y]</span></a> Rymer, t. vii. p. 316, &c. The king holds this bitter +language to the villeins of Essex, after the death of Tyler and execution +of the other leaders had disconcerted them: Rustici quidem fuistis et +estis, in bondagio permanebitis, non ut hactenus, sed incomparabiliter +viliori, &c. Walsingham, p. 269.</p></div> + +<div class="footnote"><p><a name="Footnote_418_418" id="Footnote_418_418"></a><a href="#FNanchor_418_418"><span class="label">[z]</span></a> Rot. Parl. vol. iii. p. 100.</p></div> + +<div class="footnote"><p><a name="Footnote_419_419" id="Footnote_419_419"></a><a href="#FNanchor_419_419"><span class="label">[a]</span></a> 5 R II. c. 7. The words are, riot et rumour <i>n'autres +semblables</i>; rather a general way of creating a new treason; but panic +puts an end to jealousy.</p></div> + +<div class="footnote"><p><a name="Footnote_420_420" id="Footnote_420_420"></a><a href="#FNanchor_420_420"><span class="label">[b]</span></a> 12 R. II. c. 3.</p></div> + +<div class="footnote"><p><a name="Footnote_421_421" id="Footnote_421_421"></a><a href="#FNanchor_421_421"><span class="label">[c]</span></a> Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 +H. IV. c. 17, enacts that no one shall put his son or daughter apprentice +to any trade in a borough, unless he have land or rent to the value of +twenty shillings a year, but that any one may put his children to school. +The reason assigned is the scarcity of labourers in husbandry, in +consequence of people living in <i>Upland</i> apprenticing their children.</p></div> + +<div class="footnote"><p><a name="Footnote_422_422" id="Footnote_422_422"></a><a href="#FNanchor_422_422"><span class="label">[d]</span></a> Blomefield's Norfolk, vol. iii. p. 571.</p></div> + +<div class="footnote"><p><a name="Footnote_423_423" id="Footnote_423_423"></a><a href="#FNanchor_423_423"><span class="label">[e]</span></a> Rymer, t. v. p. 44.</p></div> + +<div class="footnote"><p><a name="Footnote_424_424" id="Footnote_424_424"></a><a href="#FNanchor_424_424"><span class="label">[f]</span></a> Gurdon on Courts Baron, p. 596; Madox, Formulare +Anglicanum, p. 420; Barrington on Ancient Statutes, p. 278. It is said in +a modern book that villenage was very rare in Scotland, and even that no +instance exists in records of an estate sold with the labourers and their +families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p. +147. But Mr. Chalmers, in his Caledonia, has brought several proofs that +this assertion is too general.</p></div> + +<div class="footnote"><p><a name="Footnote_425_425" id="Footnote_425_425"></a><a href="#FNanchor_425_425"><span class="label">[g]</span></a> Barrington, ubi supra, from Rymer.</p></div> + +<div class="footnote"><p><a name="Footnote_426_426" id="Footnote_426_426"></a><a href="#FNanchor_426_426"><span class="label">[h]</span></a> There are several later cases reported wherein villenage +was pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.) +See Hargrave's argument, State Trials, vol. xx. p 41. But these are so +briefly stated, that it is difficult in general to understand them. It is +obvious, however, that judgment was in no case given in favour of the +plea; so that we can infer nothing as to the actual continuance of +villenage. +</p><p> +It is remarkable, and may be deemed by some persons a proof of legal +pedantry, that Sir E. Coke, while he dilates on the law of villenage, +never intimates that it was become antiquated.</p></div> + +<div class="footnote"><p><a name="Footnote_427_427" id="Footnote_427_427"></a><a href="#FNanchor_427_427"><span class="label">[i]</span></a> 8 H. V. c. 1.</p></div> + +<div class="footnote"><p><a name="Footnote_428_428" id="Footnote_428_428"></a><a href="#FNanchor_428_428"><span class="label">[k]</span></a> This prince having been sent to Antwerp, six commissioners +were appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.</p></div> + +<div class="footnote"><p><a name="Footnote_429_429" id="Footnote_429_429"></a><a href="#FNanchor_429_429"><span class="label">[m]</span></a> Rymer, t. vi. p. 748.</p></div> + +<div class="footnote"><p><a name="Footnote_430_430" id="Footnote_430_430"></a><a href="#FNanchor_430_430"><span class="label">[n]</span></a> Matt. Paris, p. 243.</p></div> + +<div class="footnote"><p><a name="Footnote_431_431" id="Footnote_431_431"></a><a href="#FNanchor_431_431"><span class="label">[o]</span></a> Matt Westmonast. ap. Brady's History of England, vol. ii. +p. 1.</p></div> + +<div class="footnote"><p><a name="Footnote_432_432" id="Footnote_432_432"></a><a href="#FNanchor_432_432"><span class="label">[p]</span></a> Rot. Parl vol. ii. p. 52.</p></div> + +<div class="footnote"><p><a name="Footnote_433_433" id="Footnote_433_433"></a><a href="#FNanchor_433_433"><span class="label">[q]</span></a> Rymer, t. vii. p. 171.</p></div> + +<div class="footnote"><p><a name="Footnote_434_434" id="Footnote_434_434"></a><a href="#FNanchor_434_434"><span class="label">[r]</span></a> Rot. Parl. vol. iv. p. 169.</p></div> + +<div class="footnote"><p><a name="Footnote_435_435" id="Footnote_435_435"></a><a href="#FNanchor_435_435"><span class="label">[s]</span></a> Rot. Parl. vol. iv. p. 174, 176.</p></div> + +<div class="footnote"><p><a name="Footnote_436_436" id="Footnote_436_436"></a><a href="#FNanchor_436_436"><span class="label">[t]</span></a> Ibid. p. 201.</p></div> + +<div class="footnote"><p><a name="Footnote_437_437" id="Footnote_437_437"></a><a href="#FNanchor_437_437"><span class="label">[u]</span></a> I follow the orthography of the roll, which I hope will not +be inconvenient to the reader. Why this orthography, from obsolete and +difficult, so frequently becomes almost modern, as will appear in the +course of these extracts, I cannot conjecture. The usual irregularity of +ancient spelling is hardly sufficient to account for such variations; but +if there be any error, it belongs to the superintendents of that +publication, and is not mine.</p></div> + +<div class="footnote"><p><a name="Footnote_438_438" id="Footnote_438_438"></a><a href="#FNanchor_438_438"><span class="label">[x]</span></a> Rot. Parl. 6 H. VI. vol. iv. p. 326.</p></div> + +<div class="footnote"><p><a name="Footnote_439_439" id="Footnote_439_439"></a><a href="#FNanchor_439_439"><span class="label">[y]</span></a> Rot. Parl. 8 H. VI. vol. iv. p. 336.</p></div> + +<div class="footnote"><p><a name="Footnote_440_440" id="Footnote_440_440"></a><a href="#FNanchor_440_440"><span class="label">[z]</span></a> Rot. Parl. vol. v. p. 241.</p></div> + +<div class="footnote"><p><a name="Footnote_441_441" id="Footnote_441_441"></a><a href="#FNanchor_441_441"><span class="label">[a]</span></a> Paston Letters, vol. i. p. 81. The proofs of sound mind +given in this letter are not very decisive, but the wits of sovereigns are +never weighed in golden scales.</p></div> + +<div class="footnote"><p><a name="Footnote_442_442" id="Footnote_442_442"></a><a href="#FNanchor_442_442"><span class="label">[b]</span></a> This may seem an improper appellation for what is usually +termed a battle, wherein 5000 men are said to have fallen. But I rely here +upon my faithful guide, the Paston Letters, p. 100, one of which, written +immediately after the engagement, says that only sixscore were killed. +Surely this testimony outweighs a thousand ordinary chroniclers. And the +nature of the action, which was a sudden attack on the town of St. Albans, +without any pitched combat, renders the larger number improbable. +Whethamstede, himself abbot of St. Albans at the time, makes the duke of +York's army but 3000 fighting men. p. 352. This account of the trifling +loss of life in the battle of St. Albans is confirmed by a contemporary +letter, published in the Archæologia (xx. 519). The whole number of the +slain was but forty-eight, including, however, several lords.</p></div> + +<div class="footnote"><p><a name="Footnote_443_443" id="Footnote_443_443"></a><a href="#FNanchor_443_443"><span class="label">[c]</span></a> See some account of these in Paston Letters, vol. i. p. +114.</p></div> + +<div class="footnote"><p><a name="Footnote_444_444" id="Footnote_444_444"></a><a href="#FNanchor_444_444"><span class="label">[d]</span></a> Rot. Parl. vol. v. p. 284-290.</p></div> + +<div class="footnote"><p><a name="Footnote_445_445" id="Footnote_445_445"></a><a href="#FNanchor_445_445"><span class="label">[e]</span></a> Hall, p. 210.</p></div> + +<div class="footnote"><p><a name="Footnote_446_446" id="Footnote_446_446"></a><a href="#FNanchor_446_446"><span class="label">[f]</span></a> The ill-will of York and the queen began as early as 1449, +as we learn from an unequivocal testimony, a letter of that date in the +Paston collection, vol. i. p. 26.</p></div> + +<div class="footnote"><p><a name="Footnote_447_447" id="Footnote_447_447"></a><a href="#FNanchor_447_447"><span class="label">[g]</span></a> Upon this great question the fourth discourse in Sir +Michael Foster's Reports ought particularly to be read.</p></div> + +<div class="footnote"><p><a name="Footnote_448_448" id="Footnote_448_448"></a><a href="#FNanchor_448_448"><span class="label">[h]</span></a> Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. +1736).</p></div> + +<div class="footnote"><p><a name="Footnote_449_449" id="Footnote_449_449"></a><a href="#FNanchor_449_449"><span class="label">[i]</span></a> Rot. Parl. vol. v. p. 351.</p></div> + +<div class="footnote"><p><a name="Footnote_450_450" id="Footnote_450_450"></a><a href="#FNanchor_450_450"><span class="label">[k]</span></a> Id. p. 375. This entry in the roll is highly interesting +and important. It ought to be read in preference to any of our historians. +Hume, who drew from inferior sources, is not altogether accurate. Yet one +remarkable circumstance, told by Hall and other chroniclers, that the duke +of York stood by the throne, as if to claim it, though omitted entirely in +the roll, is confirmed by Whethamstede, abbot of St. Albans, who was +probably then present. (p. 484, edit. Hearne.) This shows that we should +only doubt, and not reject, unless upon real grounds of suspicion, the +assertions of secondary writers.</p></div> + +<div class="footnote"><p><a name="Footnote_451_451" id="Footnote_451_451"></a><a href="#FNanchor_451_451"><span class="label">[m]</span></a> The abbey of St. Albans was stripped by the queen and her +army after the second battle fought at that place, Feb. 17, 1461; which +changed Whethamstede the abbot and historiographer from a violent +Lancastrian into a Yorkist. His change of party is quite sudden, and +amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the Paston +family were originally Lancastrian, and returned to that side in 1470.</p></div> + +<div class="footnote"><p><a name="Footnote_452_452" id="Footnote_452_452"></a><a href="#FNanchor_452_452"><span class="label">[n]</span></a> There are several instances of violence and oppression +apparent on the rolls during this reign, but not proceeding from the +crown. One of a remarkable nature (vol. v. p. 173) was brought forward to +throw an odium on the duke of Clarence, who had been concerned in it. +Several passages indicate the character of the duke of Gloucester.</p></div> + +<div class="footnote"><p><a name="Footnote_453_453" id="Footnote_453_453"></a><a href="#FNanchor_453_453"><span class="label">[o]</span></a> See in Cro. Car. 120, the indictment against Burdett for +compassing the king's death, and for that purpose conspiring with Stacie +and Blake to calculate his nativity and his son's, ad sciendum quando +iidem rex et Edwardus ejus filius morientur: Also for the same end +dispersing divers rhymes and ballads de murmurationibus, seditionibus et +proditoriis excitationibus, factas et fabricatas apud Holbourn, to the +intent that the people might withdraw their love from the king and desert +him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem +levarent, ad finalem destructionem ipsorum regis ac domini principis, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_454_454" id="Footnote_454_454"></a><a href="#FNanchor_454_454"><span class="label">[p]</span></a> Rot. Parl. vol. vi. p. 193.</p></div> + +<div class="footnote"><p><a name="Footnote_455_455" id="Footnote_455_455"></a><a href="#FNanchor_455_455"><span class="label">[q]</span></a> The rolls of Henry VII.'s first parliament are full of an +absurd confusion in thought and language, which is rendered odious by the +purposes to which it is applied. Both Henry VI. and Edward IV. are +considered as lawful kings; except in one instance, where Alan Cotterell, +petitioning for the reversal of his attainder, speaks of Edward, "late +called Edward IV." (vol. iv. p. 290.) But this is only the language of a +private Lancastrian. And Henry VI. passes for having been king during his +short restoration in 1470, when Edward had been nine years upon the +throne. For the earl of Oxford is said to have been attainted "for the +true allegiance and service he owed and did to Henry VI. at Barnet field +and otherwise." (p. 281.) This might be reasonable enough on the true +principle that allegiance is due to a king <i>de facto</i>; if indeed we could +determine who was the king de facto on the morning of the battle of +Barnet. But this principle was not fairly recognised. Richard III. is +always called, "in deed and not in right king of England." Nor was this +merely founded on his usurpation as against his nephew. For that +unfortunate boy is little better treated, and in the act of resumption, 1 +H. VII., while Edward IV. is styled "late king," appears only with the +denomination of "Edward his son, late called Edward V." (p. 336.) Who then +was king after the death of Edward IV.? And was his son really +illegitimate, as an usurping uncle pretended? Or did the crime of Richard, +though punished in him, enure to the benefit of Henry? These were points +which, like the fate of the young princes in the Tower, he chose to wrap +in discreet silence. But the first question he seems to have answered in +his own favour. For Richard himself, Howard duke of Norfolk, Lord Lovel, +and some others, are attainted (p. 276) for "traiterously intending, +compassing, and imagining" the death of Henry; of course before or at the +battle of Bosworth; and while his right, unsupported by possession, could +have rested only on an hereditary title which it was an insult to the +nation to prefer. These monstrous proceedings explain the necessity of +that conservative statute to which I have already alluded, which passed in +the eleventh year of his reign, and afforded as much security for men +following the plain line of rallying round the standard of their country +as mere law can offer. There is some extraordinary reasoning upon this act +in Carte's History (vol. ii. p. 844), for the purpose of proving that the +adherents of George II. would not be protected by it on the restoration of +the true blood.</p></div> + +<div class="footnote"><p><a name="Footnote_456_456" id="Footnote_456_456"></a><a href="#FNanchor_456_456"><span class="label">[r]</span></a> Difference of Absolute and Limited Monarchy, p. 83.</p></div> + +<div class="footnote"><p><a name="Footnote_457_457" id="Footnote_457_457"></a><a href="#FNanchor_457_457"><span class="label">[s]</span></a> Rot. Parl. vol. vi. p. 241.</p></div> + +<div class="footnote"><p><a name="Footnote_458_458" id="Footnote_458_458"></a><a href="#FNanchor_458_458"><span class="label">[t]</span></a> 1 R. III. c. 2.</p></div> + +<div class="footnote"><p><a name="Footnote_459_459" id="Footnote_459_459"></a><a href="#FNanchor_459_459"><span class="label">[u]</span></a> The long-debated question as to the murder of Edward and +his brother seems to me more probably solved on the common supposition +that it was really perpetrated by the orders of Richard, than on that of +Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at +least, was in some way released from the Tower, and reappeared as Perkin +Warbeck. But a very strong conviction either way is not readily +attainable.</p></div> +</div> + +<hr /> + +<h2>NOTES TO CHAPTER VIII.</h2> + +<p class="center">(<span class="smcap">Part</span> III.) +<span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span></p> + +<p class="center"><span class="smcap"><a name="N1" id="N1"></a>Note</span> I. Page 5.</p> + +<p><span class="smcap">It</span> is rather a curious speculative question, and such only, we may +presume, it will long continue, whether bishops are entitled, on charges +of treason or felony, to a trial by the peers. If this question be +considered either theoretically or according to ancient authority, I think +the affirmative proposition is beyond dispute. Bishops were at all times +members of the great national council, and fully equal to lay lords in +temporal power as well as dignity. Since the Conquest they have held their +temporalities of the crown by a baronial tenure, which, if there be any +consistency in law, must unequivocally distinguish them from +commoners—since any one holding by barony might be challenged on a jury, +as not being the peer of the party whom he was to try. It is true that +they take no share in the judicial power of the house of lords in cases of +treason or felony; but this is merely in conformity to those +ecclesiastical canons which prohibited the clergy from partaking in +capital judgment, and they have always withdrawn from the house on such +occasions under a protestation of their right to remain. Had it not been +for this particularity, arising wholly out of their own discipline, the +question of their peerage could never have come into dispute. As for the +common argument that they are not tried as peers because they have no +inheritable nobility, I consider it as very frivolous, since it takes for +granted the precise matter in controversy, that an inheritable nobility is +necessary to the definition of peerage, or to its incidental privileges.</p> + +<p>If we come to constitutional precedents, by which, +<span class="pagenum"><a name="Page_205" id="Page_205">[Pg 205]</a></span> when sufficiently +numerous and unexceptionable, all questions of this kind are ultimately to +be determined, the weight of ancient authority seems to be in favour of +the prelates. In the fifteenth year of Edward III. (1340), the king +brought several charges against archbishop Stratford. He came to +parliament with a declared intention of defending himself before his +peers. The king insisted upon his answering in the court of exchequer. +Stratford however persevered, and the house of lords, by the king's +consent, appointed twelve of their number, bishops, earls, and barons, to +report whether peers ought to answer criminal charges in parliament, and +not elsewhere. This committee reported to the king in full parliament that +the peers of the land ought not to be arraigned, nor put on trial, except +in parliament and by their peers. The archbishop upon this prayed the +king, that, inasmuch as he had been notoriously defamed, he might be +arraigned in full parliament before the peers, and there make answer; +which request the king granted. (Rot. Parl. vol. ii. p. 127. Collier's +Eccles. Hist. vol. i. p. 543.) The proceedings against Stratford went no +further; but I think it impossible not to admit that his right to trial as +a peer was fully recognised both by the king and lords.</p> + +<p>This is, however, the latest, and perhaps the only instance of a prelate's +obtaining so high a privilege. In the preceding reign of Edward II., if we +can rely on the account of Walsingham (p. 119), Adam Orleton, the factious +bishop of Hereford, had first been arraigned before the house of lords, +and subsequently convicted by a common jury; but the transaction was of a +singular nature, and the king might probably be influenced by the +difficulty of obtaining a conviction from the temporal peers, of whom many +were disaffected to him, in a case where privilege of clergy was +vehemently claimed. But about 1357 a bishop of Ely, being accused of +harbouring one guilty of murder, though he demanded a trial by the peers, +was compelled to abide the verdict of a jury. (Collier, p. 557.) In the +31st of Edw. III. (1358) the abbot of Missenden was hanged for coining. (2 +Inst. p. 635.) The abbot of this monastery appears from Dugdale to have +been summoned by writ in the 49th of Henry III. If he actually held by +barony, I do +<span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a></span> +not perceive any strong distinction between his case and +that of a bishop. The leading precedent, however, and that upon which +lawyers principally found their denial of this privilege to the bishops, +is the case of Fisher, who was certainly tried before an ordinary jury; +nor am I aware that any remonstrance was made by himself, or complaint by +his friends, upon this ground. Cranmer was treated in the same manner; and +from these two, being the most recent precedents, though neither of them +in the best of times, the great plurality of law-books have drawn a +conclusion that bishops are not entitled to trial by the temporal peers. +Nor can there be much doubt that, whenever the occasion shall occur, this +will be the decision of the house of lords.</p> + +<p>There are two peculiarities, as it may naturally appear, in the +above-mentioned resolution of the lords in Stratford's case. The first is, +that they claim to be tried, not only before their peers, but in +parliament. And in the case of the bishop of Ely it is said to have been +objected to his claim of trial by his peers, that parliament was not then +sitting. (Collier, ubi sup.) It is most probable, therefore, that the +court of the lord high steward, for the special purpose of trying a peer, +was of more recent institution—as appears also from Sir E. Coke's +expressions. (4 Inst. p. 58.) The second circumstance that may strike a +reader is, that the lords assert their privilege in all criminal cases, +not distinguishing misdemeanors from treasons and felonies. But in this +they were undoubtedly warranted by the clear language of Magna Charta, +which makes no distinction of the kind. The practice of trying a peer for +misdemeanors by a jury of commoners, concerning the origin of which I can +say nothing, is one of those anomalies which too often render our laws +capricious and unreasonable in the eyes of impartial men.</p> + +<p>Since writing the above note I have read Stillingfleet's treatise on the +judicial power of the bishops in capital cases—a right which, though now, +I think, abrogated by non-claim and a course of contrary precedents, he +proves beyond dispute to have existed by the common law and constitutions +of Clarendon, to have been occasionally exercised, and to have been only +suspended by their voluntary act. In the course of this argument he treats +of the peerage of the bishops, and produces abundant +<span class="pagenum"><a name="Page_207" id="Page_207">[Pg 207]</a></span> evidence from the +records of parliament that they were styled peers, for which, though +convinced from general recollection, I had not leisure or disposition to +search. But if any doubt should remain, the statute 25 E. III. c. 6, +contains a legislative declaration of the peerage of bishops. The whole +subject is discussed with much perspicuity and force by Stillingfleet, who +seems however not to press very greatly the right of trial by peers, aware +no doubt of the weight of opposite precedents. (Stillingfleet's Works, +vol. iii. p. 820.) In one distinction, that the bishops vote in their +judicial functions as barons, but in legislation as magnates, which +Warburton has brought forward as his own in the Alliance of Church and +State, Stillingfleet has perhaps not taken the strongest ground, nor +sufficiently accounted for their right of sitting in judgment on the +impeachment of a commoner. Parliamentary impeachment, upon charges of high +public crimes, seems to be the exercise of a right inherent in the great +council of the nation, some traces of which appear even before the +Conquest (Chron. Sax. p. 164, 169), independent of and superseding that of +trial by peers, which, if the 29th section of Magna Charta be strictly +construed, is only required upon indictments at the king's suit. And this +consideration is of great weight in the question, still unsettled, whether +a commoner can be tried by the lords upon an impeachment for treason.</p> + +<p>The treatise of Stillingfleet was written on occasion of the objection +raised by the commons to the bishops voting on the question of Lord +Danby's pardon, which he pleaded in bar of his impeachment. Burnet seems +to suppose that their right to final judgment had never been defended, and +confounds judgment with sentence. Mr. Hargrave, strange to say, has made a +much greater blunder, and imagined that the question related to their +right of voting on a bill of attainder, which no one, I believe, ever +disputed. (Notes on Co. Litt. 134 b.)</p> + +<p class="center"><br /><span class="smcap"><a name="N2" id="N2"></a>Note</span> II. Page 9.</p> + +<p>The constitution of parliament in this period, antecedent to the Great +Charter, has been minutely and scrupulously investigated by the Lords' +Committee on +<span class="pagenum"><a name="Page_208" id="Page_208">[Pg 208]</a></span> +the Dignity of a Peer in 1819. Two questions may be raised +as to the lay portion of the great council of the nation from the Conquest +to the reign of John:—first, Did it comprise any members, whether from +the counties or boroughs, not holding themselves, nor deputed by others +holding in chief of the crown by knight-service or grand serjeanty? +secondly, Were all such tenants <i>in capite</i> 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?</p> + +<p>The former of these questions they readily determine. The committee have +discovered no proof, nor any likelihood from analogy, that the great +council, in these Norman 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, <i>de honore</i>.</p> + +<p>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 <i>in capite</i> 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 honourable +to themselves as it renders their ultimate judgment worthy of respect.</p> + +<p>"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 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 +<span class="pagenum"><a name="Page_209" id="Page_209">[Pg 209]</a></span> +generally been considered as the law of +the land that the king had a right to require the advice of any of his +subjects, and their personal services, for the general benefit of the +kingdom; but as, by the 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 originally 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 residences, and +the inconvenience of assembling at one time, in one spot, all those who +thus held of the crown, and upon whom the maintenance of the Conquest +itself must for a considerable time have importantly depended, must have +produced difficulties, even in the reign of the Conqueror; and the +increase of their numbers by subdivision of tenures must have greatly +increased the difficulty in the reign of his son Henry: and at length, in +the reigns of his successors, it must have been almost impossible to have +convened such an assembly, except by general summons of the greater part +of the persons who were to form it; and unless those who obeyed the +summons could bind those who did not, the powers of the assembly when +convened must have been very defective." (p. 40.)</p> + +<p>Though I do not perceive why we should assume any great subdivision of +tenures before the statute of <i>Quia Emptores</i>, in 18 Edw. I., which +prohibited subinfeudation, it is obvious that the committee have pointed +out the inconvenience of a scheme which gave all tenants <i>in capite</i> (more +numerous in Domesday than they perhaps were aware) a right to assist at +great councils. Still, as it is manifest from the early charters, and +explicitly admitted by the committee, that the king could raise no +extraordinary contribution from his immediate vassals by his own +authority, and as there was no feudal subordination between one of these +and another, however differing in wealth, it is clear that they were legally +<span class="pagenum"><a name="Page_210" id="Page_210">[Pg 210]</a></span> +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.</p> + +<p>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 <i>in capite</i>, possess their lands as a barony, and are bound to attend +in the judgments of the king's court like other barons. It is plain, from +the general tenor of these constitutions, that "universæ personæ regni" +must be restrained to ecclesiastics; and the only words which can be +important in the present discussion are "sicut barones cæteri." "It +seems," says 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 archbishops 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 probably 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 military and honourable tenures; though, whether all who +held of the king as of his crown, 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 <i>tenure per +baroniam</i>, as has been asserted, the Constitutions of Clarendon do not +assist to ascertain." (p. 45.) But this, as they point out, +<span class="pagenum"><a name="Page_211" id="Page_211">[Pg 211]</a></span> involves the +question whether the <i>Curia Regis</i>, mentioned in these constitutions, was +not only a judicial but a legislative 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.</p> + +<p>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 assemblies of the realm still leaves the subject in great +obscurity." (p. 49.) But it is remarkable that they have never alluded to +the presence of tenants in chief, knights as well as barons, at the +parliament of Northampton under Henry II. 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,<a name="FNanchor_460_460" id="FNanchor_460_460"></a><a href="#Footnote_460_460" class="fnanchor">[a]</a> +were at one time deemed necessary members of the common councils of the realm, when +summoned for extraordinary purposes, and especially for the purpose of +obtaining a grant of any extraordinary aid to the king; and this opinion +accords with what has generally been deemed originally the law in France, +of other countries where what is called the feudal system of tenures has +been established." (p. 54.) It cannot surely admit of a doubt, and has +been already affirmed more than once by the committee, that for an +extraordinary grant of money the consent of military tenants in chief was +required long before the reign of John. Nor was that a reign, till the +enactment 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 "extraordinary purposes" of another +description.</p> + +<p>They observe afterwards that "they have found no document before the Great +Charter of John in which the term 'majores barones' has been used, though in some +<span class="pagenum"><a name="Page_212" id="Page_212">[Pg 212]</a></span> +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, generally 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 quæ ad coronam pertinent; +baronias scilicet majores seu minores." (Lib. ii. cap. 10.) It would be +trifling to dispute that the tenant of a <i>baronia major</i> might be called a +<i>baro major</i>. And what could the <i>secundæ dignitatis barones</i> at +Northampton have been but tenants <i>in capite</i> holding fiefs by some line +or other distinguishable from a superior +class?<a name="FNanchor_461_461" id="FNanchor_461_461"></a><a href="#Footnote_461_461" class="fnanchor">[b]</a></p> + +<p>It appears, therefore, on the whole, that in the judgment of the +committee, by no means indulgent in their requisition of evidence, or +disposed to take the more popular side, all the military tenants <i>in +capite</i> were constitutionally members of the <i>commune concilium</i> of the +realm during the Norman constitution. This <i>commune concilium</i> the +committee distinguish from a <i>magnum concilium</i>, though it seems doubtful +whether there were any very definite line between the two. But that the +consent of these tenants was required for taxation they repeatedly +acknowledge. 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 +<span class="pagenum"><a name="Page_213" id="Page_213">[Pg 213]</a></span> 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.</p> + +<p>The committee seem to have been perplexed about the word <i>magnates</i> +employed in several records to express part of those present in great +councils. In general they interpret it, as well as the word <i>proceres</i>, to +include persons not distinguished by the name "<i>barones</i>;" 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 <i>magnates</i> 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 <i>magnates</i> +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 magnates, episcopi, abbates, comites, et barones, qui patri nostro +viventi semper astiterunt fideliter et devotè, et alii quamplurimi; +applaudentibus clero et populo, &c., publicè fuimus in regem Angliæ +inuncti et coronati." (p. 77.) I think that <i>magnates</i> is a collective +word, including the "alii quamplurimi." It appears to me that <i>magnates</i>, +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 peculiar dignities, whether lay or spiritual. And +upon the whole we may be led to believe that the Norman great council was +essentially of the same composition as the witenagemot which had 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 immediate fiefs from the crown.</p> + +<p>The result of the whole inquiry into the constitution of parliament down +to the reign of John seems to be—1. That the Norman kings explicitly +renounced all prerogative of levying money on the immediate military +tenants of the crown, without their consent given in a +<span class="pagenum"><a name="Page_214" id="Page_214">[Pg 214]</a></span> 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 summons 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 summoned, but whether by strict right or usage does not fully +appear. 5. That the irregularity of passing many of them over when +councils were held for the purpose of levying money, led to the provision +in the Great Charter of John by which the king promises that they shall +all be summoned through the sheriff on such occasions; but the promise +does not extend to any other subject of parliamentary deliberation. 6. +That even this concession, though but the recognition of a known right, +appeared so dangerous to some in the government that it was withdrawn in +the first charter of Henry III.</p> + +<p>The charter of John, as has just been observed, while it removes all +doubt, if any could have been entertained, as to the right of every +military tenant <i>in capite</i> 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. We cannot absolutely +assume any to have been, in a general sense, members of the legislature +except the prelates and the <i>majores barones</i>. But who were these, and how +distinguished? For distinguished they must now have become, and that by no +new provision, since none is made. The right of personal summons did not +constitute them, for it is on <i>majores barones</i>, 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.<a name="FNanchor_462_462" id="FNanchor_462_462"></a><a href="#Footnote_462_462" class="fnanchor">[c]</a></p> + +<p><span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span> +The charter, as renewed in the first year of Henry III., does not only +omit the clause prohibiting the imposition of aids and scutages without +consent, and providing for the summons of all tenants <i>in capite</i> before +either could be levied, but gives the following reason for suspending this +and other articles of king John's charter:—"Quia vero quædam capitula in +priori cartâ continebantur, quæ gravia et dubitabilia videbantur, <i>sicut +de scutagiis et auxiliis assidendis</i> ... placuit supra-dictis prælatis et +magnatibus ea esse in respectu, quousque plenius consilium habuerimus, et +tunc faciemus plurissimè, tam de his quam de aliis quæ occurrerint +emendanda, quæ ad communem omnium utilitatem pertinuerint, et pacem et +statum nostrum et regni nostri." This charter was made but twenty-four +days after the death of John; and we may agree with the committee (p. 77) +in thinking it extraordinary that these deviations from the charter of +Runnymede, in such important particulars, have been so little noticed. It +is worthy of consideration in what respects the provisions respecting the +levying of money could have appeared grave and doubtful. We cannot believe +that the earl of Pembroke, and the other barons who were with the young +king, himself a child of nine years old and incapable of taking a part, +meant to abandon the constitutional privilege of not being taxed in aids +without their consent. But this they might deem sufficiently provided for +by the charters of former kings and by general usage. It is not, however, +impossible that the government demurred to the prohibition of levying +scutage, which stood on a different footing from extraordinary aids; for +scutage appears to have been formerly taken without consent of the +tenants; and in the second charter of Henry III. there is a clause that it +should be taken as it had been in the time of Henry II. This was a certain +payment for every knight's fee; but if the original provision of the +Runnymede charter had been maintained, none could have been levied without +consent of parliament.</p> + +<p>It seems also highly probable that, before the principle of representation +had been established, the greater barons looked with jealousy on the +equality of suffrage claimed by the inferior tenants <i>in capite</i>. That +these were constitutionally members of the great council, at least in +respect of taxation, has been sufficiently shown; +<span class="pagenum"><a name="Page_216" id="Page_216">[Pg 216]</a></span> but they had hitherto +come in small numbers, likely to act always in subordination to the more +potent aristocracy. It became another question whether they should all be +summoned, in their own counties, by a writ selecting no one through +favour, and in its terms compelling all to obey. And this question was +less for the crown, which might possibly find its advantage in the +disunion of its tenants, than for the barons themselves. They would +naturally be jealous of a second order, whom in their haughtiness they +held much beneath them, yet by whom they might be outnumbered in those +councils where they had bearded the king. No effectual or permanent +compromise could be made but by representation, and the hour for +representation was not come.</p> + +<p class="center"><br /><span class="smcap"><a name="N3" id="N3"></a>Note</span> III. Page 19.</p> + +<p>The Lords' committee, though not very confidently, take the view of Brady +and Blackstone, confining the electors of knights to tenants <i>in capite</i>. +They admit that "the subsequent usage, and the subsequent statutes founded +on that usage, afford ground for supposing that in the 49th of Henry III. +and in the reign of Edward I. the knights of the shires returned to +parliament were elected at the county courts and by the suitors of those +courts. If the knights of the shires were so elected in the reigns of +Henry III. and Edward I., it seems important to discover, if possible, who +were the suitors of the county courts in these reigns" (p. 149). The +subject, they are compelled to confess, after a discussion of some length, +remains involved in great obscurity, which their industry has been unable +to disperse. They had, however, in an earlier part of their report (p. +30), thought it highly probable that the knights of the shires in the +reign of Edward III. represented a description of persons who might in the +reign of the Conqueror have been termed barons. And the general spirit of +their subsequent investigation seems to favour this result, though they +finally somewhat recede from it, and admit at least that, before the close +of Edward III.'s reign, the elective franchise extended to freeholders.</p> + +<p>The question, as the committee have stated it, will turn on the character +of those who were suitors to the +<span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span> +county court. And, if this may be +granted, I must own that to my apprehension there is no room for the +hypothesis that the county court was differently constituted in the reign +of Edward I. or of Edward III. from what it was very lately, and what it +was long before those princes sat on the throne. In the Anglo-Saxon period +we find this court composed of thanes, but not exclusively of royal +thanes, who were comparatively few. In the laws of Henry I. we still find +sufficient evidence that the suitors of the court were all who held +freehold lands, <i>terrarum domini</i>; or, even if we please to limit this to +lords of manors, which is not at all probable, still without distinction +of a mesne or immediate tenure. Vavassors, that is, mesne tenants, are +particularly mentioned in one enumeration of barons attending the court. +In some counties a limitation to tenants <i>in capite</i> would have left this +important tribunal very deficient in numbers. And as in all our law-books +we find the county court composed of freeholders, we may reasonably demand +evidence of two changes in its constitution, which the adherents to the +theory of restrained representation must combine—one which excluded all +freeholders except those who held immediately of the crown; another which +restored them. The notion that the county court was the king's court baron +(Report, p. 150), and thus bore an analogy to that of the lord in every +manor, whether it rests on any modern legal authority or not, seems +delusive. The court baron was essentially a feudal institution; the county +court was from a different source; it was old Teutonic, and subsisted in +this and other countries before the feudal jurisdictions had taken root. +It is a serious error to conceive that, because many great alterations +were introduced by the Normans, there was nothing left of the old system +of society.<a name="FNanchor_463_463" id="FNanchor_463_463"></a><a href="#Footnote_463_463" class="fnanchor">[d]</a></p> + +<p>It may, however, be naturally inquired why, if the +<span class="pagenum"><a name="Page_218" id="Page_218">[Pg 218]</a></span> king's tenants in +chief were exclusively members of the national council before the era of +county representation, they did not retain that privilege; especially if +we conceive, as seems on the whole probable, that the knights chosen in 38 +Henry III. were actually representatives of the military tenants of the +crown. The answer might be that these knights do not appear to have been +elected in the county court; and when that mode of choosing knights of the +shire was adopted, it was but consonant to the increasing spirit of +liberty, and to the weight also of the barons, whose tenants crowded the +court, that no freeholder should be debarred of his equal suffrage. But +this became the more important, and we might almost add necessary, when +the feudal aids were replaced by subsidies on movables; so that, unless +the mesne freeholders could vote at county elections, they would have been +taxed without their consent and placed in a worse condition than ordinary +burgesses. This of itself seems almost a decisive argument to prove that +they must have joined in the election of knights of the shire after the +<i>Confirmatio Chartarum</i>. If we were to go down so late as Richard II., and +some pretend that the mesne freeholders did not vote before the reign of +Henry IV., we find Chaucer's franklin, a vavassor, capable even of sitting +in parliament for his shire. For I do not think Chaucer ignorant of the +proper meaning of that word. And Allen says (Edinb. Rev. xxviii. 145)—"In +the earliest records of the house of commons we have found many instances +of sub-vassals who have represented their counties in parliament."</p> + +<p>If, however, it should be suggested that the practice of admitting the +votes of mesne tenants at county elections may have crept in by degrees, +partly by the constitutional principle of common consent, partly on +account of the broad demarcation of tenants <i>in capite</i> by knight-service +from barons, which the separation of the houses of parliament produced, +thus tending, by diminishing the importance of the former, to bring them +down to the level of other freeholders; partly, also, through the +operation of the statute <i>Quia Emptores</i> (18 Edward I.), which, by putting +an end to subinfeudation, created a new tenant of the crown upon every +alienation of land, however partial, by one who was such already, +<span class="pagenum"><a name="Page_219" id="Page_219">[Pg 219]</a></span> and +thus both multiplied their numbers and lowered their dignity; this +supposition, though incompatible with the argument built on the nature of +the county court, would be sufficient to explain the facts, provided we do +not date the establishment of the new usage too low. The Lords' committee +themselves, after much wavering, come to the conclusion that "at length, +if not always, two persons were elected by all the freeholders of the +county, whether holding in chief of the crown or of others" (p. 331). This +they infer from the petitions of the commons that the mesne tenants should +be charged with the wages of knights of the shire; since it would not be +reasonable to levy such wages from those who had no voice in the election. +They ultimately incline to the hypothesis that the change came in +silently, favoured by the growing tendency to enlarge the basis of the +constitution, and by the operation of the statute <i>Quia Emptores</i>, which +may not have been of inconsiderable influence. It appears by a petition in +51 Edward III. that much confusion had arisen with respect to tenures; and +it was frequently disputed whether lands were held of the king or of other +lords. This question would often turn on the date of alienation; and, in +the hurry of an election, the bias being always in favour of an extended +suffrage, it is to be supposed that the sheriff would not reject a claim +to vote which he had not leisure to investigate.</p> + +<p class="center"><br /><span class="smcap"><a name="N4" id="N4"></a>Note</span> IV. Page 21.</p> + +<p>It now appears more probable to me than it did that some of the greater +towns, but almost unquestionably London, did enjoy the right of electing +magistrates with a certain jurisdiction before the Conquest. The notion +which I found prevailing among the writers of the last century, that the +municipal privileges of towns on the continent were merely derived from +charters of the twelfth century, though I was aware of some degree of +limitation which it required, swayed me too much in estimating the +condition of our own burgesses. And I must fairly admit that I have laid +too much stress on the silence of Domesday Book; which, as has been justly +pointed out, does not relate to matters of internal +<span class="pagenum"><a name="Page_220" id="Page_220">[Pg 220]</a></span> government, unless +when they involve some rights of property.</p> + +<p>I do not conceive, nevertheless, that the municipal government of +Anglo-Saxon boroughs was analogous to that generally established in our +corporations from the reign of Henry II. and his successors. The real +presumption has been acutely indicated by Sir F. Palgrave, arising from +the universal institution of the court-leet, which gave to an alderman, or +otherwise denominated officer, chosen by the suitors, a jurisdiction, in +conjunction with themselves as a jury, over the greater part of civil +disputes and criminal accusations, as well as general police, that might +arise within the hundred. Wherever the town or borough was too large to be +included within a hundred, this would imply a distinct jurisdiction, which +may of course be called municipal. It would be similar to that which, till +lately, existed in some towns—an elective high bailiff or principal +magistrate, without a representative body of aldermen and councillors. But +this is more distinctly proved with respect to London, which, as is well +known, does not appear in Domesday, than as to any other town. It was +divided into wards, answering to hundreds in the county; each having its +own wardmote, or leet, under its elected alderman. "The city of London, as +well within the walls, as its liberties without the walls, has been +divided from time immemorial into wards, bearing nearly the same relation +to the city that the hundred anciently did to the shire. Each ward is, for +certain purposes, a distinct jurisdiction. The organisation of the +existing municipal constitution of the city is, and always has been, as +far as can be traced, entirely founded upon the ward system." +(Introduction to the French Chronicle of London.—Camden Society, 1844.)</p> + +<p>Sir F. Palgrave extends this much further:—"There were certain districts +locally included within the hundreds, which nevertheless constituted +independent bodies politic. The burgesses, the tenants, the resiants of +the king's burghs and manors in ancient demesne, owed neither suit nor +service to the hundred leet. They attended at their own leet, which +differed in no essential respect from the leet of the hundred. The +<span class="pagenum"><a name="Page_221" id="Page_221">[Pg 221]</a></span> +principle of frank-pledge required that each friborg should appear by its +head as its representative; and consequently, the jurymen of the leet of +the burgh or manor are usually described under the style of the twelve +chief pledges. The legislative and remedial assembly of the burgh or manor +was constituted by the meeting of the heads of its component parts. The +portreeve, constable, headborough, bailiff, or other the chief executive +magistrate, was elected or presented by the leet jury. Offences against +the law were repressed by their summary presentments. They who were +answerable to the community for the breach of the peace punished the +crime. Responsibility and authority were conjoined. In their legislative +capacity they bound their fellow-townsmen by making by-laws." (Edin. Rev. +xxxvi. 309.) "Domesday Book," he says afterwards, "does not notice the +hundred court, or the county-court; because it was unnecessary to inform +the king or his justiciaries of the existence of the tribunals which were +in constant action throughout all the land. It was equally unnecessary to +make a return of the leets which they knew to be inherent in every burgh. +Where any special municipal jurisdiction existed, as in Chester, Stamford, +and Lincoln, then it became necessary that the franchise should be +recorded. The twelve lagemen in the two latter burghs were probably +hereditary aldermen. In London and in Canterbury aldermen occasionally +held their sokes by inheritance.<a name="FNanchor_464_464" id="FNanchor_464_464"></a><a href="#Footnote_464_464" class="fnanchor">[e]</a> +The negative evidence extorted out of Domesday has, therefore, little weight." (p. 313.)</p> + +<p>It seems, however, not unquestionable whether this representation of an +Anglo-Saxon and Anglo-Norman municipality is not urged rather beyond the +truth. The portreeve of London, their principal magistrate, appears to +have been appointed by the crown. It was not till 1188 that Henry +Fitzalwyn, ancestor of the present Lord +Beaumont,<a name="FNanchor_465_465" id="FNanchor_465_465"></a><a href="#Footnote_465_465" class="fnanchor">[f]</a> +became the first mayor of London. But +<span class="pagenum"><a name="Page_222" id="Page_222">[Pg 222]</a></span> +he also was nominated by the crown, and remained +twenty-four years in office. In the same year the first sheriffs are said +to have been made (<i>facti</i>). But John, immediately after his accession in +1199, 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, p. 74, 76.) We read, however, under the year 1200, in the +ancient chronicle lately published, that twenty-five of the most discreet +men of the city were chosen and sworn to advise for the city, together +with the mayor. These were evidently different from the aldermen, and are +the original common council of the city. They were perhaps meant in a +later entry (1229):—"Omnes aldermanni et magnates civitatis per assensum +universorum civium," who are said to have agreed never to permit a sheriff +to remain in office during two consecutive years.</p> + +<p>The city and liberties of London were not wholly under the jurisdiction of +the several wardmotes and their aldermen. Landholders, secular and +ecclesiastical, possessed their 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 III., and upwards of twenty in +that of Edward I. 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 I., presenting the sokes as liberties enjoyed by +private persons or ecclesiastical corporations, to the detriment of the +crown. But, though the lords 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 +<span class="pagenum"><a name="Page_223" id="Page_223">[Pg 223]</a></span> +municipal 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 +Archæological Journal (p. 273).</p> + +<p>The inference which suggests itself from these facts is that London, for +more than two centuries after the Conquest, was not so exclusively a city +of traders, a democratic 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 what of course they were in part, engaged in foreign +and domestic commerce. It will strike every one, in running over the list +of mayors and sheriffs in the thirteenth 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 tumult easily repressed by force, kept on its +silent course till, near the end of the thirteenth century, the rights of +the citizens and burgesses in the legislature were constitutionally +established. [1848.]</p> + +<p class="center"><br /><span class="smcap"><a name="N5" id="N5"></a>Note</span> V. Page 26.</p> + +<p>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 +<span class="pagenum"><a name="Page_224" id="Page_224">[Pg 224]</a></span> +underrated 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.</p> + +<p>Even under Henry II., as we find by Fitz-Stephen, the prelates and nobles +had town houses. "Ad hæc omnes fere episcopi, abbates, et magnates Angliæ, +quasi cives et municipes sunt urbis Lundoniæ; sua ibi habentes ædificia +præclara; ubi se recipiunt, ubi divites impensas faciunt, ad concilia, ad +conventus celebres in urbem evocati, à domino rege vel metropolitano 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 liverymen, hawking, +cock-fighting, and much more. The word <i>cockney</i> is not improbably derived +from <i>cocayne</i>, the name of an imaginary land of ease and jollity.</p> + +<p>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.</p> + +<p>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 <i>taille</i> in +1313, reckons the inhabitants at +49,110.<a name="FNanchor_466_466" id="FNanchor_466_466"></a><a href="#Footnote_466_466" class="fnanchor">[g]</a> +But he seems to have made +unwarrantable assumptions where his data were deficient. M. Guérard, on +the other hand (Documens Inédits, 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 +<span class="pagenum"><a name="Page_225" id="Page_225">[Pg 225]</a></span> extent of +Paris in that age, which is tolerably known, must be decisive against so +high a population.<a name="FNanchor_467_467" id="FNanchor_467_467"></a><a href="#Footnote_467_467" class="fnanchor">[h]</a></p> + +<p>The Winton Domesday, in the possession of the Society of Antiquaries of +London, furnishes some important information 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 I. 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 possibly be gathered from the frequent recurrence +of the trade of goldsmith in it, and the populousness of the town from the +enumeration of the streets." (Cooper's Public Records, i. 226.) 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 contained about 10,000 +inhabitants under the Confessor, we may probably compute the population of +Winchester at nearly twice that number.</p> + +<p class="center"><br /><span class="smcap"><a name="N6" id="N6"></a>Note</span> VI. Page 32.</p> + +<p>The Lords' committee extenuate the presumption that either knights or +burgesses sat in any of these parliaments. The "cunctarum regni civitatum +pariter et burgorum potentiores," mentioned by Wikes in 1269 or 1270, they +suppose to have been invited in order to witness the ceremony of +translating the body of Edward the Confessor to his tomb newly prepared in +Westminster Abbey (p. 161). It is evident, indeed, that this assembly +acted afterwards as a parliament in levying money. But the burgesses are +not mentioned in this. It cannot, nevertheless, be presumed from the +silence of the historian, who had previously informed us of their presence +at Westminster, that they took no part. It may be +<span class="pagenum"><a name="Page_226" id="Page_226">[Pg 226]</a></span> perhaps, more doubtful +whether they were chosen by their constituents or merely summoned as +"potentiores."</p> + +<p>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 1271, +described in the Annals of Waverley, "seems to have been an extraordinary +convention, warranted rather by the particular circumstances under which +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 familiar. The committee are even unwilling to admit that "la +communauté de la terre illocques summons" in the statute of Westminster +I., though expressly distinguished from the prelates, earls, and barons, +appeared in consequence of election (p. 173). But, if not elected, we +cannot suppose less than that all the tenants in chief, or a large number +of them, were summoned; which, after the experience of representation, was +hardly a probable course.</p> + +<p>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 +<span class="pagenum"><a name="Page_227" id="Page_227">[Pg 227]</a></span> 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 III., were probably adopted for a particular purpose, possibly to +sanction one important law [the statute <i>Quia Emptores</i>], 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 all the +tenants in chief, and those holding under them" (p. 204).</p> + +<p>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 <i>Quia +Emptores</i>, which put an end to the subinfeudation 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 22nd of Edw. I. +(see the writ in Report of Committee, p. 209) is more regular. We do not +find that the citizens and burgesses were summoned to either parliament.</p> + +<p>But, after the 23rd of Edward I., the legislative constitution seems not +to have been unquestionably settled, even in the essential point of +taxation. The Confirmation of the Charters, in the 25th year of that +reign, while it contained a positive 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 +<span class="pagenum"><a name="Page_228" id="Page_228">[Pg 228]</a></span> +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 <i>de tallagio non +concedendo</i>], 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 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).</p> + +<p>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 writ, which is also +the case in some parliaments where, from other sources, we can trace the +commons to have been present, little stress should be laid upon it.</p> + +<p>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.</p> + +<p class="center"><br /><span class="smcap"><a name="N7" id="N7"></a>Note</span> VII. Page 35.</p> + +<p>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. +<span class="pagenum"><a name="Page_229" id="Page_229">[Pg 229]</a></span> +Hallam," lets us know, two or three years afterwards, that +the scale was tending the other way, when, in his review of the Report of +the Lords' Committee, who give a decided opinion that cities and boroughs +were on no occasion called upon to assist at legislative meetings before +the forty-ninth of Henry III., and are much disposed to 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 propositions, and convinced that the latter is entirely erroneous." +(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 summoned at all, it is probable +that the citizens and burgesses were assembled on particular occasions +only, when their assistance or authority was wanted to confirm or +establish the measures in contemplation by the government." But as he +alleges no proof that this was ever done, and merely descants on the +importance of London and other cities both before and after the Conquest, +and as such an occasional summons to a great council, for the purpose of +advice, would by no means involve the necessity of legislative consent, we +can hardly reckon this very acute writer among the positive advocates of a +high antiquity for the commons in parliament.</p> + +<p>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 I. According to this, we are not to look to feudal principles for +our great councils of advice and consent. They were the aggregate of +representatives from the courts-leet of each shire and each borough, and +elected by the juries to present the grievances of the people and to +suggest their remedies. The assembly summoned by William the Conqueror +appears to him not only, as it did to lord Hale, "a sufficient +parliament," but a regular one; "proposing the law and giving the +initiation to the bill which required the king's consent." (Ed. Rev. +xxxvi. 327.) "We cannot," he proceeds, "discover any essential +<span class="pagenum"><a name="Page_230" id="Page_230">[Pg 230]</a></span> +difference between the powers of these juries and the share of the legislative +authority which was enjoyed by the commons at a period when the +constitution assumed a more tangible shape and form." This is supported +with that copiousness 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 improbable, 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 beginning of the +reign of Edward should convert themselves at once into the third estate of +the realm, and stand before the king and his peers in possession of powers +and privileges which the original branches of the legislature could +neither dispute nor withstand" (p. 332). "It must not be forgotten that +the researches of all previous writers have been directed wholly in +furtherance of the opinions which have been held respecting the feudal +origin of parliament. No one has considered it as a common-law court."</p> + +<p>I do not know that it is necessary to believe in a properly feudal +<i>origin</i> 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 principles; but the royal thanes had always been +consenting parties. Of the representation of courts-leet we may require +better evidence: aldermen of London, or persons bearing that name, perhaps +as landowners rather than citizens (see a former note), may possibly have +been occasionally present; but it is remarkable that neither in historians +nor records do we find this mentioned; that aldermen, in the municipal +sense, are never enumerated among the constituents of a witenagemot or a council, +<span class="pagenum"><a name="Page_231" id="Page_231">[Pg 231]</a></span> +though they must, on the representative theory, have composed a +large portion of both. But, waiving this hypothesis, which the author +seems not here to insist upon, though he returns to it in the Rise and +Progress of the English Commonwealth, why is it "a startling paradox to +deny the substantial antiquity of the house of commons"? By this I +understand him to mean that representatives from counties and boroughs +came regularly, or at least frequently, to the great councils of Saxon and +Norman kings. Their indispensable consent in legislation I do not +apprehend him to affirm, but rather the reverse:—"The supposition that in +any early period the burgesses had a voice in the solemn acts of 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 great constitutional change was wrought in the +powers of the commons. The revolutionary character of Montfort's +parliament in the 49th of Hen. III. would sufficiently account both for +the appearance of representatives 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 much doubt.</p> + +<p>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 III.; because after this time +historians and chroniclers exactly of the same character as the former, or +even less copious and valuable, do not omit to mention it. We are +accustomed in the sister kingdoms, so to speak, of the continent, founded +on the same Teutonic original, to argue against the existence of +representative councils, or other institutions, from the same absence of +positive testimony. No one believes that the three estates of France were +called together before the time of Philip the Fair. No one strains the +representation of cities in the cortes of Castile beyond the +<span class="pagenum"><a name="Page_232" id="Page_232">[Pg 232]</a></span> 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 conviction equal +to a great mass of affirmative proof. And such I reckon the inference from +the language of Roger Hoveden, of Matthew Paris, and so many more who +speak of councils and parliaments full of prelates and nobles, without a +syllable of the burgesses. Either they were absent, or they were too +insignificant to be named; and in that case it is hard to perceive any +motive for requiring their attendance.</p> + +<p class="center"><br /><span class="smcap"><a name="N8" id="N8"></a>Note</span> VIII. Page 42.</p> + +<p>A record, which may be read in Brady's History of England (vol. ii. +Append. p. 66) and in Rymer (t. iv. p. 1237), relative to the proceedings +on Edward II.'s flight into Wales and subsequent detention, recites that, +"the king having left his kingdom without government, and gone away with +notorious enemies of the queen, prince, and realm, divers prelates, earls, +barons, and knights, then being at Bristol in the presence of the said +queen and duke (prince Edward, duke of Cornwall), <i>by the assent of the +whole commonalty of the realm there being</i>, unanimously elected the said +duke to be guardian of the said kingdom; so that the said duke and +guardian should rule and govern the said realm in the name and by the +authority of the king his father, he being thus absent." But the king +being taken and brought back into England, the power thus delegated to the +guardian ceased of course; whereupon the bishop of Hereford was sent to +press the king to permit that the great seal, which he had with him, the +prince having only used his private seal, should be used in all things +that required it. Accordingly the king sent the great seal to the queen +and prince. The bishop is said to have been thus commissioned to fetch the +seal by the prince and queen, and by the said prelates and peers, <i>with +the assent of the said commonalty then being at Hereford</i>. It is plain +that these were mere words of course; for no parliament had been convoked, and no +<span class="pagenum"><a name="Page_233" id="Page_233">[Pg 233]</a></span> +proper representatives could have been either at Bristol or +Hereford. However, this is a very curious record, inasmuch as it proves +the importance attached to the forms of the constitution at this period.</p> + +<p>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, concerning the royal power of the king or his heirs, or +against the estate of the crown, should be void and of no avail or force +whatsoever; but the matters to be established for the estate of the king +and of his heirs, and for the estate of the realm and of the people, +should be treated, accorded, and established in parliament by the king, +and by the assent of the prelates, earls, and barons, and the commonalty +of the realm, according as had been before accustomed. This proceeding, +therefore, declared the legislative authority to reside only in the king, +with the assent of the prelates, earls, and barons, and commons 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 Lancaster to the scaffold, and the present +enactment was levelled at the ordinances which had been forced upon the +crown by his faction. The lords ordainers, nevertheless, had been +appointed with consent of the commons, as has been mentioned in the text; +so that this provision in 15 Edward II. seems rather to limit than to +enhance the supreme 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 +<span class="pagenum"><a name="Page_234" id="Page_234">[Pg 234]</a></span> +both he and his son may have been to prevent its complete +establishment, the necessity of parliamentary consent both for levying +money and enacting laws must have become an article of the public creed +before his death. If it be true that even after this declaratory statute +laws were made without the assent or presence of the commons, as the +Lords' committee incline to hold (p. 285, 286, 287), it was undeniably an +irregular and unconstitutional proceeding; but this can only show that we +ought to be very slow in presuming earlier proceedings of the same nature +to have been more conformable to the spirit of the existing constitution. +The 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 II., and that +"the practice had prevailed so long before as to give it, in the opinion +of the parliament then assembled, the force and effect of a custom, which +the parliament declared should thereafter be considered as established +law." (p. 293.) This appears to me rather an inadequate exposition of the +public spirit, of the tendency towards enlarging the basis of the +constitution, to which the "practice and custom" owed its origin; but the +positive facts are truly stated.</p> + +<p class="center"><br /><span class="smcap"><a name="N9" id="N9"></a>Note</span> IX. Page 124.</p> + +<p>Writs are addressed in 11th of Edw. II. "comitibus, majoribus baronibus, +et prælatis," whence the Lords' committee infer that the style used in +John's charter was still preserved (Report, p. 277). And though in those +times there might be much irregularity in issuing writs of summons, the +term "majores barones" must have had an application to definite persons. +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 Dugdale's Summonitiones ad +Parliamentum. The committee endeavour to draw an inference from this +against a subsisting right of tenure. But if it is meant +<span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span> 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 intended to +be retained in favour of the lesser barons, or tenants <i>in capite</i>, could +not, relatively to the rights of the superior order, have been designedly +relinquished.</p> + +<p>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 15th of Edward III., "those who may +have been deemed to have been in the reign of John distinguished as +<i>majores barones</i> by the honour of a personal 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 denominated peers of the land, and +having distinct personal rights; while the other tenants in chief, +whatsoever their rights may have been in the reign of John, sunk into the +general mass." (p. 314.)</p> + +<p>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 parliament, we should have a difficulty in finding any +determinate 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 +<i>majores barones</i> had by prescription, antecedent to any statute or +charter, been summoned to parliament: +<span class="pagenum"><a name="Page_236" id="Page_236">[Pg 236]</a></span> +but this prescription would not be +broken by the omission, through negligence or policy, of an individual +tenant by barony in a few parliaments. The prescription was properly in +favour of the class, the <i>majores barones</i> 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.</p> + +<p>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 Report, p. 226.) Yet they have not only found many +cases of persons summoned by 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 +ancestor, by writ of summons and sitting in parliament, was a peer, but +doubt whether "even at this day the doctrine of that case ought to be +considered as generally applicable, or may be limited by time and +circumstances."<a name="FNanchor_468_468" id="FNanchor_468_468"></a><a href="#Footnote_468_468" class="fnanchor">[i]</a> (p. 33.)</p> + +<p>It seems, with much deference to more learned investigators, rather +improbable that, either before or after the regular admission of the +knights and burgesses by representation, 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 notoriously one of the <i>majores barones</i>. +Nor will this be much +<span class="pagenum"><a name="Page_237" id="Page_237">[Pg 237]</a></span> +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 obligation of doing suit and service to the king in his high +court. Nor was the alienee, doubtless, to be taxed without his own +consent, any more than another tenant <i>in capite</i>. What incongruity, +therefore, is there in the supposition that, after tenants in fee simple +acquired by statute the power of alienation without previous consent of +the crown, the new purchaser stood on the same footing in all other +respects 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 courtesy after +the wife's death; though it must be owned that the committee doubt, in +their Third Report (p. 47), whether tenancy by courtesy of a dignity was +ever allowed as a right. Thus, too, every estate created in tail male was +a diversion of the inheritance by the owner's sole will from its course +according to law. 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.<a name="FNanchor_469_469" id="FNanchor_469_469"></a><a href="#Footnote_469_469" class="fnanchor">[k]</a></p> + +<p>If it be asked whether the posterity of a baron aliening the lands which +gave him a right to be summoned to the king's court would be entitled to +the privileges of peerage by nobility of blood, it is true that, according +<span class="pagenum"><a name="Page_238" id="Page_238">[Pg 238]</a></span> +to Collins, whose opinion the committee incline to follow, +there are instances of persons in such circumstances being summoned. But +this seems not to prove anything 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 parliament by a different title. +It is very hard to determine any question as to times of much +irregularity; but it seems that the posterity of one who had parted with +his baronial lands would not, in those early times, as a matter of course, +remain noble. A right by tenure seems to exclude a right by blood; not +necessarily, because two collateral titles may coexist, but in the +principle of the constitution. A feudal principle was surely the more +ancient; and what could be more alien to this than a baron, a peer, an +hereditary counsellor, without a fief? Nobility, that is, 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 peaceable, +more indolent, more accommodated to the rules of fixed law and vigorous +monarchy. It is difficult to trace the progress 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.</p> + +<p>Tenure by barony appears to have been recognised by the house of lords in +the reign of Henry VI., when the earldom of Arundel was claimed as annexed +to the "castle, honour, and lordship aforesaid." The Lords' +<span class="pagenum"><a name="Page_239" id="Page_239">[Pg 239]</a></span> committee +have elaborately disproved the allegations of descent and tenure, on which +this claim was allowed. (Second Report, p. 406-426.) But all with which we +are concerned is the decision of the crown and of the house in the 11th +year of Henry VI., whether it were right or wrong as to the particular +facts of the case. And here we find that the king, by the advice and +assent of the lords, "considering that Richard Fitzalan, &c., was seised +of the castle, honour, and lordship in fee, and by reason of his +possession thereof, without any other reason or creation, was earl of +Arundel, and held the name, style, and 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 by act of parliament +(3 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 parliament by virtue 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 Abergavenny +case, even setting aside that of Arundel as peculiar in its character, and +as settled by statute); "and so not fit to be received, or to admit any +pretence of right to succession thereto." It is fair to observe that some +eminent judges were present on this occasion. The committee justly say +that "this decision" (which, after all, was not in the house of lords) +"may perhaps be considered as amounting to a solemn opinion that, although +in early times the right to a writ of summons to parliament as a baron may +have been founded on tenure, a contrary practice had prevailed for ages, and +<span class="pagenum"><a name="Page_240" id="Page_240">[Pg 240]</a></span> +that, therefore, it was not to be taken as then forming part of the +constitutional law of the land." (p. 446.) Thus ended barony by tenure. +The final decision, for such it has been considered, and recent attempts +to revive the ancient doctrine have been defeated, has prevented many +tedious investigations 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 coparceners, must have been common, and sometimes +difficult to disprove. It was held, indeed, by some, that the <i>caput +baroniæ</i>, 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.</p> + +<p>It is not very easy to reconcile this peremptory denial of peerage by +tenure with the proviso in the recent statute taking away tenure by +knight-service, and, inasmuch 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. II. c. 24, s. 11.)</p> + +<p>Surely this clause was designed to preserve the incident 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 Fitzwalter claim, did not allude to this statute, probably on +account of the above proviso, and seem to argue that, if tenure by barony +was no longer in being, the privilege attached to it must have been +extinguished also. It is, however, observable that tenure by barony is not +taken away by the statute, except by implication. No act indeed can be +more loosely drawn than this, which was to change essentially the +condition of landed property throughout the kingdom. It literally +abolishes all tenure <i>in capite</i>; though this is the basis of the crown's +right to escheat, and though lands in common socage, which the act with a +strange confusion opposes to socage <i>in capite</i>, were as much holden of +the king or other lord as those by knight-service. Whether it was +<span class="pagenum"><a name="Page_241" id="Page_241">[Pg 241]</a></span> +intended by the silence about tenure by barony to pass it over as +obsolete, or this arose from negligence 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 privilege, as well for Arundel +and Abergavenny as for any other that might be entitled to +it.<a name="FNanchor_470_470" id="FNanchor_470_470"></a><a href="#Footnote_470_470" class="fnanchor">[m]</a></p> + +<p class="center"><br /><span class="smcap"><a name="N10" id="N10"></a>Note</span> X. Page 142.</p> + +<p>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 II. This great minister of the +crown, as he was at least from the time of the +Conquest,<a name="FNanchor_471_471" id="FNanchor_471_471"></a><a href="#Footnote_471_471" class="fnanchor">[n]</a> +always till the reign of Edward III. an ecclesiastic of high 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 +the text, and which will be the subject +<span class="pagenum"><a name="Page_242" id="Page_242">[Pg 242]</a></span> of another note. But he is more +prominent when presiding in a separate tribunal as a single judge.</p> + +<p>The Court of Chancery is not distinctly to be traced under Henry III. For +a passage in Matthew Paris, who says of Radulfus de Nevil—"Erat regis +fidelissimus cancellarius, et inconcussa columna veritatis, singulis sua +jura, præcipue pauperibus, justè reddens et indilatè," 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 delegated the exercise of his prerogative to his +council, directing them to give such remedy as should appear to be +consonant to honesty (or equity, <i>honestati</i>). "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 we cannot always determine whether the petition +was on account of wrongs by the crown or others. The following is rather +more clear than the rest:—"18 Edw. I. The king's tenants of Aulton +complain that Adam Gordon ejected them from their pasture, contrary to the +tenor of the king's writ. 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, perhaps, there was no +legal remedy.</p> + +<p>In the reign of Edward II. the peculiar jurisdiction of the chancellor was +still more distinctly marked. "From petitions and answers lately +discovered, it appears that during this reign the jurisdiction of the +Court of Chancery was considerably extended, as the +<span class="pagenum"><a name="Page_243" id="Page_243">[Pg 243]</a></span> 'consuetudo +cancellariæ' is often familiarly mentioned. We find petitions referred to +the chancellor in his court, either separately, or in conjunction with the +king's justices, or the king's serjeants; on disputes respecting the +wardship of infants, partition, dower, rent-charges, tithes, and goods of +felons. The chancellor was in full possession of his jurisdiction over +charities, and he superintended the conduct of coroners. Mere wrongs, such +as malicious prosecutions and trespasses to personal property, are +sometimes the subject of proceedings before him; but I apprehend that +those were cases where, from powerful combinations and confederacies, +redress could not be obtained in the courts of common law." (Lives of +Chanc. vol. i. p. 204.)</p> + +<p>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 sometimes directed to the council, is referred to the +chancellor for determination. One only of these, so far as we can judge +from their very brief expression, implies anything of an equitable +jurisdiction. It is again a case of dower, and the claimant is remitted to +the Chancery; "et fiat sibi ibidem justitia, quia non potest juvari per +communem legem per breve de dote." This case is in the Rolls of Parliament +(i. 340), and had been previously mentioned by Mr. Bruce in a learned +memoir on the Court of Star-Chamber. (Archæologia, xxv. 345.) It is +difficult to say whether this fell within the modern rules of equity, but +the general principle is evidently the same.</p> + +<p>Another petition is from the commonalty of Suffolk to the council, +complaining of false indictments and presentments in courts-leet. It is +answered—"Si quis sequi voluerit adversus falsos indicatores et +procuratores de falsis indictamentis, sequatur in Cancell. et habebit +remedium consequens." Several other entries in this list are illustrative +of the jurisdiction appertaining, in fact at least, to the council and the +chancellor; and being of so early a reign form a valuable accession to +those which later records have furnished to Sir Matthew Hale and others.</p> + +<p>The Court of Chancery began to decide causes as a court of equity, +according to Mr. Hardy, in the reign of +<span class="pagenum"><a name="Page_244" id="Page_244">[Pg 244]</a></span> Edward III., probably about 22 +Edw. III. (Introduction to Close Rolls, p. 28.) Lord Campbell would carry +this jurisdiction higher, and the instances already mentioned may be +sufficient just to prove that it had begun to exist. It certainly seems no +unnatural supposition that the great principle of doing justice, by which +the council and the chancellor professed to guide their exercise of +judicature, may have led them to grant relief in some of those numerous +instances where the common law was defective or its rules too technical +and unbending. But, as has been observed, the actual entries, as far as +quoted, do not afford many precedents of equity. Mr. Hardy, indeed, +suggests (p. 25) that the <i>Curia Regis</i> in the Norman period proceeded on +equitable principles; and that this led to the removal of plaints into it +from the county-court. This is, perhaps, not what we should naturally +presume. The subtle and technical spirit of the Norman lawyers is +precisely that which leads, in legal procedure, to definite and unbending +rules; while in the lower courts, where Anglo-Saxon thanes had ever judged +by the broad rules of justice, according to the circumstances of the case, +rather than a strict line of law which did not yet exist, we might expect +to find all the uncertainty and inconsistency which belongs to a system of +equity, until, as in England, it has acquired by length of time the +uniformity of law, but none at least of the technicality so characteristic +of our Norman common law, and by which the great object of judicial +proceedings was so continually defeated. This, therefore, does not seem to +me a probable cause of the removal of suits from the county-court or +court-baron to those of Westminster. The true reason, as I have observed +in another place, was the partiality of these local tribunals. And the +expense of trying a suit before the justices in eyre might not be very +much greater than in the county-court.</p> + +<p>I conceive, therefore, that the three supreme courts at Westminster +proceeded upon those rules of strict law which they had chiefly themselves +established; and this from the date of their separation from the original +<i>Curia Regis</i>. But whether the king's council may have given more +extensive remedies than the common law afforded, as early at least as the +reign of Henry III., is what we are not competent, apparently, to affirm +or deny. We +<span class="pagenum"><a name="Page_245" id="Page_245">[Pg 245]</a></span> +are at present only concerned with the Court of Chancery. And +it will be interesting to quote the deliberate opinion of a late +distinguished writer, who has taken a different view of the subject from +any of his predecessors.</p> + +<p>"After much deliberation," says Lord Campbell, "I must express my clear +conviction that the chancellor's equitable jurisdiction is as indubitable +and as ancient as his common-law jurisdiction, and that it may be traced +in a manner equally satisfactory. The silence of Bracton, Glanvil, Fleta, +and other early juridical writers, has been strongly relied upon to +disprove the equitable jurisdiction of the chancellor; but they as little +notice his common-law jurisdiction, most of them writing during the +subsistence of the <i>Aula Regia</i>; and they all speak of the Chancery, not +as a court, but merely as an office for the making and sealing of writs. +There are no very early decisions of the chancellors on points of law any +more than of equity, to be found in the Year-books or old abridgments.... +By 'equitable jurisdiction' must be understood the extraordinary +interference of the chancellor, without common-law process or regard to +the common-law rules of proceeding, upon the petition of a party grieved +who was without adequate remedy in a court of common law; whereupon the +opposite party was compelled to appear and to be examined, either +personally or upon written interrogatories: and evidence being heard on +both sides, without the interposition of a jury, an order was made +<i>secundum æquum et bonum</i>, which was enforced by imprisonment. Such a +jurisdiction had belonged to the Aula Regia, and was long exercised by +parliament; and, when parliament was not sitting, by the king's ordinary +council. Upon the dissolution of the <i>Aula Regia</i> many petitions, which +parliament or the council could not conveniently dispose of, were referred +to the chancellor, sometimes with and sometimes without assessors. To +avoid the circuity of applying to parliament or the council, the petition +was very soon, in many instances, addressed originally to the chancellor +himself." (Lives of Chancellors, i. 7.)</p> + +<p>In the latter part of Edward III.'s long reign this equitable jurisdiction +had become, it is likely, of such frequent exercise, that we may consider +the following brief summary by Lord Campbell as probable by analogy +<span class="pagenum"><a name="Page_246" id="Page_246">[Pg 246]</a></span> and +substantially true, if not sustained in all respects by the evidence that +has yet been brought to light:—"The jurisdiction of the Court of Chancery +was now established in all matters where its own officers were concerned, +in petitions of right where an injury was alleged to be done to a subject +by the king or his officers in relieving against judgments in courts of +law (lord C. gives two instances), and generally in cases of fraud, +accident, and trust." (p. 291.)</p> + +<p>In the reign of Richard II. the writ of <i>subpœna</i> was invented by John +de Waltham, master of the rolls; and to this a great importance seems to +have been attached at the time, as we may perceive by the frequent +complaints of the commons in parliament, and by the traditionary +abhorrence in which the name of the inventor was held. "In reality," says +lord Campbell, "he first framed it in its present form when a clerk in +Chancery in the latter end of the reign of Edward III.; but the invention +consisted in merely adding to the old clause, <i>Quibusdam certis de causis, +the words 'Et hoc sub pœna centum librarum nullatenus omittas</i>;' and I +am at a loss to conceive how such importance was attached to it, or how it +was supposed to have brought about so complete a revolution in equitable +proceedings, for the penalty was never enforced; and if the party failed +to appear, his default was treated, according to the practice prevailing +in our own time, as a contempt of court, and made the foundation of +compulsory process." (p. 296.)</p> + +<p>The commons in parliament, whose sensitiveness to public grievances was by +no means accompanied by an equal sagacity in devising remedies, had, +probably without intention, vastly enhanced the power of the chancellor by +a clause in a remedial act passed in the thirty-sixth year of Edward III., +that, "If any man that feeleth himself aggrieved contrary to any of the +articles above written, or others contained in divers statutes, will come +into the Chancery, or any for him, and thereof make his complaint, he +shall presently there have remedy by force of the said articles or +statutes, without elsewhere pursuing to have remedy." Yet nothing could be +more obvious than that the breach of any statute was cognizable before the +courts of law. And the mischief of permitting men to be sued vexatiously +before the chancellor +<span class="pagenum"><a name="Page_247" id="Page_247">[Pg 247]</a></span> +becoming felt, a statute was enacted, thirty years +indeed after this time (17 Ric. II. c. 6), analogous altogether to those +in the late reign respecting the jurisdiction of the council, which, +reciting that "people be compelled to come before the king's council, or +in the Chancery, by writs grounded on untrue suggestions," provides that +"the chancellor for the time being, presently after that such suggestions +be duly found and proved untrue, shall have power to ordain and award +damages, according to his discretion, to him which is so troubled unduly +as aforesaid." "This remedy," lord Campbell justly remarks, "which was +referred to the discretion of the chancellor himself, whose jurisdiction +was to be controlled, proved, as might be expected, wholly ineffectual; +but it was used as a parliamentary recognition of his jurisdiction, and a +pretence for refusing to establish any other check on it." (p. 247.)</p> + +<p>A few years before this statute the commons had petitioned (13 Ric. II., +Rot. Parl. iii. 269) that the chancellor might make no order against the +common law, and that no one should appear before the chancellor where +remedy was given by the common law. "This carries with it an admission," +as lord C. observes, "that a power of jurisdiction did reside in the +chancellor, so long as he did not determine against the common law, nor +interfere where the common law furnished a remedy. The king's answer, +'that it should continue as the usage had been heretofore,' clearly +demonstrates that such an authority, restrained within due bounds, was +recognised by the constitution of the country." (p. 305.)</p> + +<p>The act of 17 Ric. II. seems to have produced a greater regularity in the +proceedings of the court, and put an end to such hasty interference, on +perhaps verbal suggestions, as had given rise to this remedial provision. +From the very year in which the statute was enacted we find bills in +Chancery, and the answers to them, regularly filed; the grounds of +demanding relief appear, and the chancellor renders himself in every +instance responsible for the orders he has issued, by thus showing that +they came within his jurisdiction. There are certainly many among the +earlier bills in Chancery, which, according to the statute law and the +great principle that they were determinable in other courts, could not have +<span class="pagenum"><a name="Page_248" id="Page_248">[Pg 248]</a></span> +been heard; but we are unable to pronounce how far the allegation +usually contained or implied, that justice could not be had elsewhere, was +founded on the real circumstances. A calendar of these early proceedings +(in abstract) is printed in the Introduction to the first volume of the +Calendar of Chancery Proceedings in the Reign of Elizabeth, and may also +be found in Cooper's Public Records, i. 356.</p> + +<p>The struggle, however, in behalf of the common law was not at an end. It +is more than probable that the petitions against encroachments of +Chancery, which fill the rolls under Henry IV., Henry V., and in the +minority of Henry VI., emanated from that numerous and jealous body whose +interests as well as prejudices were so deeply affected. Certain it is +that the commons, though now acknowledging an equitable jurisdiction, or +rather one more extensive than is understood by the word "equitable," in +the greatest judicial officer of the crown, did not cease to remonstrate +against his transgression of these boundaries. They succeeded so far, in +1436, as to obtain a statute (15 Hen. VI. c. 4) in these words:—"For that +divers persons have before this time been greatly vexed and grieved by +writs of <i>subpœna</i>, purchased for matters determinable by the common +law of this land, to the great damage of such persons so vexed, in +suspension and impediment of the common law as aforesaid; Our lord the +king doth command that the statutes thereof made shall be duly observed, +according to the form and effect of the same, and that no writ of +<i>subpœna</i> be granted from henceforth until surety be found to satisfy +the party so grieved and vexed for his damages and expenses, if so be that +the matter cannot be made good which is contained in the bill." It was the +intention of the commons, as appears by the preamble of this statute, and +more fully by their petition in Rot. Parl. (iv. 101), that the matters +contained in the bill on which the <i>subpœna</i> was issued should be not +only true in themselves, but such as could not be determined at common +law. But the king's answer appears rather equivocal.</p> + +<p>The principle seems nevertheless to have been generally established, about +the reign of Henry VI., that the Court of Chancery exercises merely a +remedial jurisdiction, not indeed controllable by courts of law, unless +<span class="pagenum"><a name="Page_249" id="Page_249">[Pg 249]</a></span> +possibly in such circumstances as cannot be expected, but bound by its +general responsibility to preserve the limits which ancient usage and +innumerable precedents have imposed. It was at the end of this reign, and +not in that of Richard II., according to the writer so often quoted, that +the great enhancement of the chancellor's authority, by bringing +feoffments to uses within it, opened a new era in the history of our law. +And this the judges brought on themselves by their narrow adherence to +technical notions. They now began to discover this; and those of Edward +IV., as lord Campbell well says, were "very bold men," having repealed the +statute <i>de donis</i> by their own authority in Taltarum's case—a stretch of +judicial power beyond any that the Court of Chancery had ventured upon. +They were also exceedingly jealous of that court; and in one case, +reported in the Year-books (22 Edw. IV. 37), advised a party to disobey an +injunction from the Court of Chancery, telling him that, if the chancellor +committed him to the Fleet, they would discharge the prisoner by <i>habeas +corpus</i>. (Lord Campbell, p. 394.) The case seems to have been one where, +in modern times, no injunction would have been granted, the courts of law +being competent to apply a remedy.</p> + +<p class="center"><br /><span class="smcap"><a name="N11" id="N11"></a>Note</span> XI. Page 145.</p> + +<p>This intricate subject has been illustrated, since the first publication +of these volumes, in an Essay upon the original Authority of the King's +Council, by Sir Francis Palgrave (1834), written with remarkable +perspicuity and freedom from diffusiveness. But I do not yet assent to the +judgment of the author as to the legality of proceedings before the +council, which I have represented as unconstitutional, and which certainly +it was the object of parliament to restrain.</p> + +<p>"It seems," he says, "that in the reign of Henry III. the council was +considered as a court of peers within the terms of Magna Charta; and +before which, as a court of original jurisdiction, the rights of tenants +holding <i>in capite</i> or by barony were to be discussed and decided, and it +unquestionably exercised a direct jurisdiction over all the king's +subjects" (p. 34). The first volume of Close +<span class="pagenum"><a name="Page_250" id="Page_250">[Pg 250]</a></span> Rolls, published by Mr. +Hardy since Sir F. Palgrave's Essay, contains no instances of jurisdiction +exercised by the council in the reign of John. But they begin immediately +afterwards, in the minority of Henry III.; so that we have not only the +fullest evidence that the council took on itself a coercive jurisdiction +in matters of law at that time, but that it had not done so before: for +the Close Rolls of John are so full as to render the negative argument +satisfactory. It will, of course, be understood that I take the facts on +the authority of Mr. Hardy (Introduction to Close Rolls, vol. ii.), whose +diligence and accuracy are indisputable. Thus this exercise of judicial +power began immediately after the Great Charter. And yet, if it is to be +reconciled with the twenty-ninth section, it is difficult to perceive in +what manner that celebrated provision for personal liberty against the +crown, which has always been accounted the most precious jewel in the +whole coronet, the most valuable stipulation made at Runnymede, and the +most enduring to later times, could merit the fondness with which it has +been regarded. "Non super eum ibimus, nec super eum mittemus, nisi per +legale judicium parium suorum, vel per legem terræ." If it is alleged that +the jurisdiction of the king's council was the law of the land, the whole +security falls to the ground and leaves the grievance as it stood, +unredressed. Could the judgment of the council have been reckoned, as Sir +P. Palgrave supposes, a "judicium parium suorum," except perhaps in the +case of tenants in chief? The word is commonly understood of that trial +<i>per pais</i> which, in one form or another, is of immemorial antiquity in +our social institutions.</p> + +<p>"Though this jurisdiction," he proceeds, "was more frequently called into +action when parliament was sitting, still it was no less inherent in the +council at all other times; and until the middle of the reign of Edward +III. no exception had ever been taken to the form of its proceedings." He +subjoins indeed in a note, "Unless the statute of 5 Edw. III. c. 9, may be +considered as an earlier testimony against the authority of the council. +This, however, is by no means clear, and there is no corresponding +petition in the parliament roll from which any further information could +be obtained" (p. 34).</p> + +<p>The irresistible conclusion from this passage is, that +<span class="pagenum"><a name="Page_251" id="Page_251">[Pg 251]</a></span> we have been +wholly mistaken in supposing the commons under Edward III. and his +successors to have resisted an illegal encroachment of power in the king's +ordinary council, while it had in truth been exercising an ancient +jurisdiction, never restrained by law and never complained of by the +subject. This would reverse our constitutional theory to no small degree, +and affect so much the spirit of my own pages, that I cannot suffer it to +pass, coming on an authority so respectable, without some comment. But why +is it asserted that this jurisdiction was inherent in the council? Why are +we to interpret Magna Charta otherwise than according to the natural +meaning of the words and the concurrent voice of parliament? The silence +of the commons in parliament under Edward II. as to this grievance will +hardly prove that it was not felt, when we consider how few petitions of a +public nature, during that reign, are on the rolls. But it may be admitted +that they were not so strenuous in demanding redress, because they were of +comparatively recent origin as an estate of parliament, as they became in +the next long reign, the most important, perhaps, in our early +constitutional history.</p> + +<p>It is doubted by Sir F. Palgrave whether the statute of 5 Edw. III. c. 9, +can be considered as a testimony against the authority of the council. It +is, however, very natural so to interpret it, when we look at the +subsequent statutes and petitions of the commons, directed for more than a +century to the same object. "No man shall be taken," says lord Coke (2 +Inst. 46), "that is, restrained of liberty, by petition or suggestion to +the king or to his council, unless it be by indictment or presentment of +good and lawful men, where such deeds be done. This branch and divers +other parts of this act have been wholly explained by divers acts of +parliament, &c., quoted in the margent." He then gives the titles of six +statutes, the first being this of 5 Edw. III. c. 9. But let us suppose +that the petition of the commons in 25 Edw. III. demanded an innovation in +law, as it certainly did in long-established usage. And let us admit what +is justly pointed out by Sir F. Palgrave, that the king's first answer to +their petition is not commensurate to its request, and reserves, though it +is not quite easy to see what, some part of its extraordinary +jurisdiction.<a name="FNanchor_472_472" id="FNanchor_472_472"></a><a href="#Footnote_472_472" class="fnanchor">[o]</a> +<span class="pagenum"><a name="Page_252" id="Page_252">[Pg 252]</a></span> +Still the statute itself, enacted on a similar +petition in a subsequent parliament, is explicit that "none shall be taken +by petition or suggestion to the king or his council, unless it be by +indictment or presentment" (in a criminal charge), "or by writ original at +the common law" (in a civil suit), "nor shall be put out of his franchise +of freehold, unless he have been duly put to answer, and forejudged of the +same by due course of law."</p> + +<p>Lord Hale has quoted a remarkable passage from a Year-book, not long after +these statutes of 25 Edw. III. and 28 Edw. III., which, if Sir F. Palgrave +had not overlooked, he would have found not very favourable to his high +notions of the king's prerogative in council. "In after ages," says Hale, +"the constant opinion and practice was to disallow any reversals of +judgment by the council, which appears by the notable case in Year-book, +39 Edw. III. 14." (Jurisdiction of Lords' House, p. 41.) It is indeed a +notable case, wherein the chancellor before the council reverses a +judgment of a court of law. "Mes les justices ne pristoient nul regard al +reverser devant le council, par ceo que ce ne fust place ou jugement +purroit estre reverse." If the council could not exercise this +jurisdiction on appeal, which is not perhaps expressly taken away by any +statute, much less against the language of so many statutes could they +lawfully entertain any original suit. Such, however, were the vacillations +of a motley assembly, so steady the perseverance of government in +retaining its power, so indefinite the limits of ancient usage, so loose +the phrases of remedial statutes, passing sometimes by their generality +the intentions of +<span class="pagenum"><a name="Page_253" id="Page_253">[Pg 253]</a></span> +those who enacted them, so useful, we may add, and +almost indispensable, was a portion of those prerogatives which the crown +exercised through the council and chancery, that we find soon afterwards a +statute (37 Edw. III. c. 18), which recognises in some measure those +irregular proceedings before the council, by providing only that those who +make suggestions to the chancellor and great council, by which men are put +in danger against the form of the charter, shall give security for proving +them. This is rendered more remedial by another act next year (38 Edw. +III. c. 9), which, however, leaves the liberty of making such suggestions +untouched. The truth is, that the act of 25 Edw. III. went to annihilate +the legal and equitable jurisdiction of the Court of Chancery—the former +of which had been long exercised, and the latter was beginning to spring +up. But the 42 Edw. III. c. 3, which seems to go as far as the former in +the enacting words, will be found, according to the preamble, to regard +only criminal charges.</p> + +<p>Sir Francis Palgrave maintains that the council never intermitted its +authority, but on the contrary "it continually assumed more consistency +and order. It is probable that the long absences of Henry V. from England +invested this body with a greater degree of importance. After every +minority and after every appointment of a select or extraordinary council +by authority of the legislature, we find that the ordinary council +acquired a fresh impulse and further powers. Hence the next reign +constitutes a new era" (p. 80). He proceeds to give the same passage which +I have quoted from Rot. Parl. 8 Hen. VI., vol. v. p. 343, as well as one +in an earlier parliament (2 Hen. VI. p. 28). But I had neglected to state +the whole case where I mention the articles settled in parliament for the +regulation of the council. In the first place, this was not the king's +ordinary council, but one specially appointed by the lords in parliament +for the government of the realm during his minority. They consisted of +certain lords spiritual and temporal, the chancellor, the treasurer, and a +few commoners. These commissioners delivered a schedule of provisions "for +the good and the governance of the land, which the lords that be of the +king's council desireth" (p. 28). It does +<span class="pagenum"><a name="Page_254" id="Page_254">[Pg 254]</a></span> +not explicitly appear that the +commons assented to these provisions; but it may be presumed, at least in +a legal sense, by their being present and by the schedule being delivered +into parliament, "baillez en meme le parlement." But in the 8 Hen. VI., +where the same provision as to the jurisdiction of this extraordinary +council is repeated, the articles are said, after being approved by the +lords spiritual and temporal, to have been read "coram domino rege in +eodem parliamento, in presentia trium regni statuum" (p. 343). It is +always held that what is expressly declared to be done in presence of all +the estates is an act of parliament.</p> + +<p>We find, therefore, a recognition of the principle which had always been +alleged in defence of the ordinary council in this parliamentary +confirmation—the principle that breaches of the law, which the law could +not, through the weakness of its ministers, or corruption, or partiality, +sufficiently repress, must be reserved for the strong arm of royal +authority. "Thus," says Sir Francis Palgrave, "did the council settle and +define its principles and practice. A new tribunal was erected, and one +which obtained a virtual supremacy over the common law. The exception +reserved to their 'discretion' of interfering wherever their lordships +felt too much might on one side, and too much unmight on the other, was of +itself sufficient to embrace almost every dispute or trial" (p. 81).</p> + +<p>But, in the first place, this latitude of construction was not by any +means what the parliament meant to allow, nor could it be taken, except by +wilfully usurping powers never imparted; and, secondly, it was not the +ordinary council which was thus constituted during the king's minority; +nor did the jurisdiction intrusted to persons so specially named in +parliament extend to the regular officers of the crown. The restraining +statutes were suspended for a time in favour of a new tribunal. But I have +already observed that there was always a class of cases precisely of the +same kind as those mentioned in the act creating this tribunal, tacitly +excluded from the operation of those statutes, wherein the coercive +jurisdiction of the king's ordinary council had great convenience, namely, +where the course of justice was obstructed by riots, combinations of +maintenance, or overawing influence. +<span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span> +And there is no doubt that, down to +the final abolition of the Court of Star Chamber (which was no other than +the <i>consilium ordinarium</i> under a different name), these offences were +cognizable in it, without the regular forms of the common +law.<a name="FNanchor_473_473" id="FNanchor_473_473"></a><a href="#Footnote_473_473" class="fnanchor">[p]</a></p> + +<p>"From the reign of Edward IV. we do not trace any further opposition to +the authority either of the chancery or of the council. These courts had +become engrafted on the constitution; and if they excited fear or +jealousy, there was no one who dared to complain. Yet additional +parliamentary sanction was not considered as unnecessary by Henry VII., +and in the third year of his reign an act was passed for giving the Court +of Star Chamber, which had now acquired its determinate name, further +authority to punish divers misdemeanours." (Palgrave, p. 97.)</p> + +<p>It is really more than we can grant that the jurisdiction of the +<i>consilium ordinarium</i> had been engrafted on the constitution, when the +statute-book was full of laws to restrain, if not to abrogate it. The acts +already mentioned, in the reign of Henry VI., by granting a temporary and +limited jurisdiction to the council, demonstrate that its general exercise +was not acknowledged by parliament. We can only say that it may have +continued without remonstrance in the reign of Edward IV. I have observed +in the text that the Rolls of Parliament under Edward IV. contain no +complaints of grievances. But it is not quite manifest that the council +did exercise in that reign as much jurisdiction as it had once done. Lord +Hale tells us that "this jurisdiction was gradually brought into great +disuse, though there remain some straggling footsteps of their proceedings +till near 3 Hen. VII." (Hist. of Lords' Jurisdiction, p. 38.) And the +famous statute in that year, which erected a new court, sometimes +improperly called the Court of Star Chamber, seems to have been prompted +by a desire to restore, in a new and more legal form, a jurisdiction which +was become almost obsolete, and, being in contradiction to acts of +parliament, could not well be rendered effective without +one.<a name="FNanchor_474_474" id="FNanchor_474_474"></a><a href="#Footnote_474_474" class="fnanchor">[q]</a></p> + +<p>We cannot but discover, throughout the learned and +<span class="pagenum"><a name="Page_256" id="Page_256">[Pg 256]</a></span> +luminous Essay on the Authority of the King's Council, a strong tendency to represent its +exercise as both constitutional and salutary. The former epithet cannot, I +think, be possibly applicable in the face of statute law; for what else +determines our constitution? But it is a problem with some, whether the +powers actually exerted by this anomalous court, admitting them to have +been, at least latterly, in contravention of many statutes, may not have +been rendered necessary by the disorderly condition of society and the +comparative impotence of the common law. This cannot easily be solved with +the defective knowledge that we possess. Sometimes, no doubt, the "might +on one side, and unmight on the other," as the answer to a petition +forcibly expresses it, afforded a justification which, practically at +least, the commons themselves were content to allow. But were these +exceptional instances so frequent as not to leave a much greater number +wherein the legal remedy by suit before the king's justices of assise +might have been perfectly effectual? For we are not concerned with the old +county-courts, which were perhaps tumultuary and partial enough, but with +the regular administration, civil and criminal, before the king's justices +of oyer and terminer and of gaol delivery. Had not they, generally +speaking, in the reign of Edward III. and his successors, such means of +enforcing the execution of law as left no sufficient pretext for recurring +to an arbitrary tribunal? Liberty, we should remember, may require the +sacrifice of some degree of security against private wrong, which a +despotic government, with an unlimited power of restraint, can alone +supply. If no one were permitted to travel on the high road without a +licence, or, as now so usual, without a passport, if no one could keep +arms without a registry, if every one might be indefinitely detained on +suspicion, the evil doers of society would be materially impeded, but at +the expense, to a certain degree, of every man's freedom and enjoyment. +Freedom being but a means to the greatest good, times might arise when it +must yield to the security of still higher blessings; but the immediate +question is, whether such were the state of society in the fourteenth and +fifteenth centuries. Now, that it was lawless and insecure, comparatively +with our own times or the times of our fathers, +<span class="pagenum"><a name="Page_257" id="Page_257">[Pg 257]</a></span> is hardly to be disputed. +But if it required that arbitrary government which the king's council were +anxious to maintain, the representatives of the commons in parliament, +knights and burgesses, not above the law, and much interested in the +conservation of property, must have complained very unreasonably for more +than a hundred years. They were apparently as well able to judge as our +writers can be; and if they reckoned a trial by jury at <i>nisi prius</i> more +likely, on the whole, to insure a just adjudication of a civil suit, than +one before the great officers of state and other constituent members of +the ordinary council, it does not seem clear to me that we have a right to +assert the contrary. This mode of trial by jury, as has been seen in +another place, had acquired, by the beginning of the fifteenth century, +its present form; and considering the great authority of the judges of +assise, it may not, probably, have given very frequent occasion for +complaint of partiality or corrupt influence.</p> + +<p class="center"><br /><span class="smcap"><a name="N12" id="N12"></a>Note</span> XII. Page 156.</p> + +<p>The learned author of the Inquiry into the Rise and Growth of the Royal +Prerogative in England has founded his historical theory on the confusion +which he supposes to have grown up between the ideal king of the +constitution and the personal king on the throne. By the former he means +the personification of abstract principles, sovereign power, and absolute +justice, which the law attributes to the <i>genus</i> king, but which flattery +or other motives have transferred to the possessor of the crown for the +time being, and have thus changed the Teutonic <i>cyning</i>, the first man of +the commonwealth, the man of the highest weregild, the man who was so much +responsible that he might be sued for damages in his own courts or deposed +for misgovernment, into the sole irresponsible person of indefeasible +prerogatives, of attributes almost divine, whom Bracton and a long series +of subsequent lawyers raised up to a height far beyond the theory of our +early constitution.</p> + +<p>This is supported with great acuteness and learning; nor is it possible to +deny that the king of England, as the law-books represent him, is +considerably different +<span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span> +from what we generally conceive an ancient German +chieftain to have been. Yet I doubt whether Mr. Allen has not laid too +much stress on this, and given to the fictions of law a greater influence +than they possessed in those times to which his inquiry relates; and +whether, also, what he calls the monarchical theory was so much derived +from foreign sources as he apprehends. We have no occasion to seek, in the +systems of civilians or the dogmas of churchmen, what arose from a +deep-seated principle of human nature. A king is a person; to persons +alone we attach the attributes of power and wisdom; on persons we bestow +our affection or our ill-will. An abstraction, a politic idea of royalty, +is convenient for lawyers; it suits the speculative reasoner, but it never +can become so familiar to a people, especially one too rude to have +listened to such reasoners, as the simple image of the king, the one man +whom we are to love and to fear. The other idea is a sort of monarchical +pantheism, of which the vanishing point is a republic. And to this the +prevalent theory, that kings are to reign but not to govern, cannot but +lead. It is a plausible, and in the main, perhaps, for the times we have +reached, a necessary theory; but it renders monarchy ultimately scarcely +possible. And it was neither the sentiment of the Anglo-Saxons, nor of the +Norman baronage; the feudal relation was essentially and exclusively +personal; and if we had not enough, in a more universal feeling of human +nature, to account for loyalty, we could not mistake its inevitable +connexion with the fealty and homage of the vassal. The influence of Roman +notions was not inconsiderable upon the continent; but they never +prevailed very much here; and though, after the close alliance between the +church and state established by the Reformation, the whole weight of the +former was thrown into the scale of the crown, the mediæval clergy, as I +have observed in the text, were anything rather than upholders of despotic +power.</p> + +<p>It may be very true that, by considering the monarchy as a merely +political institution, the scheme of prudent men to avoid confusion, and +confer the <i>minimum</i> of personal authority on the reigning prince, the +principle of his irresponsibility seems to be better maintained. But the +question to which we are turning our eyes is not a +<span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span> political one; it +relates to the positive law and positive sentiments of the English nation +in the mediæval period. And here I cannot put a few necessary fictions +grown up in the courts, such as, the king never dies, the king can do no +wrong, the king is everywhere, against the tenor of our constitutional +language, which implies an actual and active personality. Mr. Allen +acknowledges that the act against the Despensers under Edward II., and +re-confirmed after its repeal, for promulgating the doctrine that +allegiance had more regard to the crown than to the person of the king, +"seems to establish, as the deliberate opinion of the legislature, that +allegiance is due to the person of the king generally, and not merely to +his crown or politic capacity, so as to be released and destroyed by his +misgovernment of the kingdom" (p. 14); which, he adds, is not easily +reconcilable with the deposition of Richard II. But that was accomplished +by force, with whatever formalities it may have been thought expedient to +surround it.</p> + +<p>We cannot, however, infer from the declaration of the legislature, that +allegiance is due to the king's person and not to his politic capacity, +any such consequence as that it is not, in any possible case, to be +released by his misgovernment. This was surely not in the spirit of any +parliament under Edward II. or Edward III.; and it is precisely because +allegiance is due to the person, that, upon either feudal or natural +principles, it might be cancelled by personal misconduct. A contrary +language was undoubtedly held under the Stuarts; but it was not that of +the mediæval period.</p> + +<p>The tenet of our law, that all the soil belongs theoretically to the king, +is undoubtedly an enormous fiction, and very repugnant to the barbaric +theory preserved by the Saxons, that all unappropriated land belonged to +the folk, and was unalienable without its +consent.<a name="FNanchor_475_475" id="FNanchor_475_475"></a><a href="#Footnote_475_475" class="fnanchor">[r]</a> +It was, however, but an extension of the feudal tenure to the whole kingdom, and rested on +the personality of feudal homage. William established it more by his power +than by any theory of lawyers; though doubtless his successors often found +lawyers as ready to shape the acts of power into a theory as if they had +originally projected them. +<span class="pagenum"><a name="Page_260" id="Page_260">[Pg 260]</a></span> +And thus grew up the high schemes of +prerogative, which, for many centuries, were in conflict with those of +liberty. We are not able, nevertheless, to define the constitutional +authority of the Saxon kings; it was not legislative, nor was that of +William and his 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 something +very unlike that of the German kings in Tacitus.</p> + +<p class="center"><br /><span class="smcap"><a name="N13" id="N13"></a>Note</span> XIII. Page 172.</p> + +<p>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 Archæologia (vol. xxx. p. 225). After adverting to the +oppression of the peasants in Normandy, which produced several rebellions, +he proceeds thus:—"These feelings of hatred and contempt for the +peasantry were brought into our island by the Norman barons in the latter +half of the eleventh century. The Saxon laws and customs continued; but +the Normans acted as the Franks had done towards the Roman coloni; they +enforced with harshness the laws which were in their own favour, and +gradually threw aside, or broke through, those which were in favour of the +miserable serf."</p> + +<p>In the Laws of Henry I. we find the weregild of the twyhinder, or villein, +set at 200 shillings in Wessex, "quæ caput regni est et legum" (c. 70). +But this expression argues an Anglo-Saxon source; and, in fact, so much in +that treatise seems to be copied, without regard to the change of times, +from old authorities, mixed up with provisions of a feudal or Norman +character, that we hardly know how to distinguish what belongs to each +period. It is far from improbable that villenage, in the sense the word +afterwards bore, that is, an absolutely servile tenure of lands, not only +without legal +<span class="pagenum"><a name="Page_261" id="Page_261">[Pg 261]</a></span> +rights over them, but with an incapacity of acquiring +either immovable or movable property against the lord, may have made +considerable strides before the reign of Henry +II.<a name="FNanchor_476_476" id="FNanchor_476_476"></a><a href="#Footnote_476_476" class="fnanchor">[s]</a> +But unless light +should be thrown on its history by the publication of more records, it +seems almost impossible to determine the introduction of predial villenage +more precisely than to say it does not appear in the laws of England at +the Conquest, and it does so in the time of Glanvil. Mr. Wright's Memoir +in the Archæologia, above quoted, contains some interesting matter; but he +has too much confounded the <i>theow</i>, or Anglo-Saxon slave, with the +<i>ceorl</i>; not even mentioning the latter, though it is indisputable that +<i>villanus</i> is the equivalent of <i>ceorl</i>, and <i>servus</i> of <i>theow</i>.</p> + +<p>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. +<i>Terre-tenants en villenage</i> and tenants <i>par copie</i>, who were undoubtedly +free, appear in the early Year-books, and we know not why they may not +always have existed.<a name="FNanchor_477_477" id="FNanchor_477_477"></a><a href="#Footnote_477_477" class="fnanchor">[t]</a> +This, however, is a subject which I am not +sufficiently conversant with records to explore; it deserves the attention +of those well-informed and diligent antiquaries whom we possess. Meantime +it is to be observed that the lands occupied by <i>villani</i> or <i>bordarii</i>, +according to the Domesday survey, were much more extensive than the +copyholds of the present day; and +<span class="pagenum"><a name="Page_262" id="Page_262">[Pg 262]</a></span> 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 <i>villenagia</i> of +Glanvil's and Bracton's age. It would be interesting to ascertain at what +time the latter were distinguished from <i>libera tenementa</i>; at what time, +that is, the distinction of territorial servitude, independent as it was +of the personal state of the occupant, was established in England.</p> + +<p class="center"><br /><span class="smcap"><a name="N14" id="N14"></a>Note</span> XIV. Page 173.</p> + +<p>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:—</p> + +<p>I. It will not be contended that the words "regardant" and "in gross" +indicate of themselves any specific difference between the two, or can +mean anything but the title by which the villein was held; prescriptive +and territorial in one case, absolute in the other. For the proof, +therefore, of any such difference we require some ancient authority, which +has not been given. II. The villein regardant might be severed from the +manor, with or without land, and would then become a villein in gross. If +he was sold as a domestic serf, he might, perhaps, be practically in a +lower condition than before, but his legal state was the same. If he was +aliened with lands, parcel of the manor, as in the case of its descent to +coparceners who made partition, he would no longer be regardant, because +that implied a prescriptive dependence on the lord, but would occupy the +same tenements and be in exactly the same position as before. "Villein in +gross," says Littleton, "is where a man is seised of a manor whereunto a +villein is regardant, and granteth the same villein by deed to another; +then he is a villein in gross, and not regardant." (Sect. 181.) III. The +servitude of all villeins 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 +<span class="pagenum"><a name="Page_263" id="Page_263">[Pg 263]</a></span> 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 præstandum servitium incertum et +indeterminatum, ubi scire non poterit vespere quod servitium fieri debet +mane.'" (Co. Lit. 120, b.) How could a villein in gross be lower than +this? It is true that the villein had one inestimable advantage over the +American negro, that he was a freeman, except relatively to his lord; +possibly he might be better protected against personal injury; but in his +incapacity of acquiring secure 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 <i>servi</i>, 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.)</p> + +<p>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 fifteenth centuries, though we should scarcely +infer, from the pains Littleton takes to describe them, that none were +left in his time. But some may be found in an earlier age. In the ninth of +John, William sued Ralph the priest for granting away lands which he held +to Canford priory. Ralph pleaded that they were his freehold. William +replied that he held them in villenage, and that he (the plaintiff) had +sold one of Ralph's sisters for four shillings. (Blomefield's Norfolk, +vol. iii. p. 860, 4to. edition.) And Mr. Wright has found in Madox's +Formulare Anglicanum not less than five instances of villeins sold with +their family and chattels, but without land. (Archæologia, xxx. 228.) Even +where they were sold along with land, unless it were a manor, they would, +as has been observed before, have been villeins in gross. I have, however, +been informed that in valuations under escheats in the old records a +separate value is never put upon villeins; their alienation without the +land was apparently not contemplated. Few cases concerning villeins in +gross, it has been said, occur in the Year-books; but villenage of any kind +<span class="pagenum"><a name="Page_264" id="Page_264">[Pg 264]</a></span> +does not furnish a great many; and 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 numerous +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 the descent unproved, the villein became free.</p> + +<p>Manumissions were often, no doubt, gratuitous; in some cases the villein +seems to have purchased his freedom. For though in strictness, as Glanvil +tells us, he could not "libertatem suam suis denariis quærere," inasmuch +as all he possessed already belonged to the lord, it would have been +thought a meanness to insist on so extreme 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 enfranchisement. +(Archæologia, xxx. 228.)</p> + +<p>It appears not by any means improbable that regular money payments, or +other fixed liabilities, were often substituted instead of uncertain +services for the benefit of the lord as well as the tenant. And when these +had lasted a 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, with a copy given to himself, would +operate of itself, in construction of law, as a manumission. This I do not +pretend to determine.</p> + +<p class="center"><br /><span class="smcap"><a name="N15" id="N15"></a>Note</span> XV. Page 179.</p> + +<p>The public history of Europe in the middle ages inadequately represents +the popular sentiment, or only when it is expressed too loudly to escape +the regard of writers intent sometimes on less important subjects. But +when we descend below the surface, a sullen murmur of discontent meets the +ear, and we perceive that mankind was not more insensible to wrongs and +sufferings than at present. Besides the various outbreakings of the people +in several counties, and their complaints in parliament, after the commons +obtained a representation, we gain a conclusive insight into the spirit of the times +<span class="pagenum"><a name="Page_265" id="Page_265">[Pg 265]</a></span> +by their popular poetry. Two very interesting collections of +this kind have been lately published by the Camden Society, through the +diligence of Mr. Thomas Wright; one, the Poems attributed to Walter Mapes; +the other, the Political Songs of England, from John to Edward II.</p> + +<p>Mapes lived under Henry II., and has long been known as the reputed author +of humorous Latin verses; but it seems much more probable, that the far +greater part of the 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 +imaginary Golias.</p> + +<p>"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." (Introduction to Poems ascribed to Walter Mapes, p. 21.) The +poems in this collection reflect almost entirely on the pope and the +higher clergy. They are all in rhyming Latin, and chiefly, though with +exceptions, in the loose trochaic metre called Leonine. The authors, +therefore, must have been 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 reproof, and +the poets were willing enough to bestow both.</p> + +<p>But this popular poetry of the middle ages did not confine itself to the +church. In the collection entitled 'Political Songs' we have some +reflecting on Henry III., some on the general administration. The famous +song on the battle of Lewes in 1264 is the earliest in English; but in the +reign of Edward I. several occur in that language. Others are in French or +in Latin; one complaining of the taxes is in an odd mixture of these two +languages; which, indeed, is not without other examples +<span class="pagenum"><a name="Page_266" id="Page_266">[Pg 266]</a></span> in mediæval +poetry. These Latin songs could not, of course, have been generally +understood. But what the priests sung in Latin, they said in English; the +lower clergy fanned the flame, and gave utterance to what others felt. It +may, perhaps, be remarked, as a proof of general sympathy with the +democratic spirit which was then fermenting, that we have a song of +exultation on the great defeat which Philip IV. had just sustained at +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.</p> + +<p>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 oppression, that belief in the vices of the +great, which, too often for social peace and their own happiness, are +cherished by the poor. In comparison, indeed, with the efficacy 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 discontent 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.<a name="FNanchor_478_478" id="FNanchor_478_478"></a><a href="#Footnote_478_478" class="fnanchor">[u]</a> They are +said to have become afterwards less frequent, though the wars of the Roses +were likely to bring them, forward.</p> + +<p>Some of the political songs are written in France, +<span class="pagenum"><a name="Page_267" id="Page_267">[Pg 267]</a></span> though relating to our +kings John and Henry III. Deducting these, we have two in Latin for the +former reign; seven in Latin, three in French (or what the editor calls +Anglo-Norman, which is really the same 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 proportion of these songs +contain panegyric and exultation on victory rather than satire; and that +of the satire much is general, and much falls on the church; so that the +animadversions on the king and the nobility are not very frequent, though +with considerable boldness; but this is more shown in the Latin than the +English poems.</p> + +<div class="footnotes">FOOTNOTES: + +<div class="footnote"><p><a name="Footnote_460_460" id="Footnote_460_460"></a><a href="#FNanchor_460_460"><span class="label">[a]</span></a> This hypothetical clause is somewhat remarkable. Grand +serjeanty is of course included by parity under military service. But did +any hold of the king in socage, except on his demesne lands? There might +be some by petty serjeanty. Yet the committee, as we have just seen, +absolutely exclude these from any share in the great councils of the +Conqueror and his immediate descendants.</p></div> + +<div class="footnote"><p><a name="Footnote_461_461" id="Footnote_461_461"></a><a href="#FNanchor_461_461"><span class="label">[b]</span></a> Mr. Spence has ingeniously conjectured, observing that in +some passages of Domesday (he quotes two, but I only find one) the barons +who held more than six manors paid their relief directly to the king, +while those who had six or less paid theirs to the sheriff (Yorkshire, +298, b), that "this may tend to solve the disputed question as to what +constituted one of the greater barons mentioned in the Magna Charta of +John and other early Norman documents; for, by analogy to the mode in +which the relief was paid, the greater barons were summoned by particular +writs, the rest by one general summons through the sheriff." History of +Equitable Jurisdiction, p. 40.</p></div> + +<div class="footnote"><p><a name="Footnote_462_462" id="Footnote_462_462"></a><a href="#FNanchor_462_462"><span class="label">[c]</span></a> See quotation from Spence's Equitable Jurisdiction, a +little above. The barony of Berkeley was granted in 1 Ric. I., to be +holden by the service of five knights, which was afterwards reduced to +three. Nicolas's Report of Claim to Barony of L'Isle, Appendix, p. 318.</p></div> + +<div class="footnote"><p><a name="Footnote_463_463" id="Footnote_463_463"></a><a href="#FNanchor_463_463"><span class="label">[d]</span></a> A charter of Henry I., published in the new edition of +Rymer (i. p. 12), fully confirms what is here said. Sciatis quod concedo +et præcipio, ut à modo comitatus mei et hundreda in illis locis et iisdem +terminis sedeant, sicut sederunt in tempore regis Edwardi, et non aliter. +Ego enim, quando voluero, faciam ea satis summoneri propter mea dominica +necessaria ad voluntatem meam. Et si modo exurgat placitum de divisione +terrarum, si est inter barones meos dominicos, tractetur placitum in curea +mea. Et si est inter vavassores duorum dominorum, tractetur in comitatu. +Et hoc duello fiat, nisi in eis remanserit. Et volo et præcipio, ut omnes +de comitatu eant ad comitatus et hundreda, sicut fecerunt in tempore regis +Edwardi. But it is also easily proved from the Leges Henrici Primi.</p></div> + +<div class="footnote"><p><a name="Footnote_464_464" id="Footnote_464_464"></a><a href="#FNanchor_464_464"><span class="label">[e]</span></a> See the ensuing part of this note.</p></div> + +<div class="footnote"><p><a name="Footnote_465_465" id="Footnote_465_465"></a><a href="#FNanchor_465_465"><span class="label">[f]</span></a> This pedigree is elaborately, and with pious care, traced +by Mr. Stapleton, in his excellent introduction to the old chronicle of +London, already quoted. The name Alwyn appears rather Saxon than Norman, +so that we may presume the first mayor to have been of English descent; +but whether he were a merchant, or a landholder living in the city, must +be undecided.</p></div> + +<div class="footnote"><p><a name="Footnote_466_466" id="Footnote_466_466"></a><a href="#FNanchor_466_466"><span class="label">[g]</span></a> Hist. de Paris, vol. iii. p. 231.</p></div> + +<div class="footnote"><p><a name="Footnote_467_467" id="Footnote_467_467"></a><a href="#FNanchor_467_467"><span class="label">[h]</span></a> John of Troyes says, in 1467, that from sixty to eighty +thousand men appeared in arms. Dulaure (Hist. de Paris, vol. iii. p. 505) +says this gives 120,000 for the whole population; but it gives double, +which is incredible. In the thirteenth and fourteenth centuries the houses +were still cottages: only four streets were paved; they were very narrow +and dirty, and often inundated by the Seine. Ib. p. 198.</p></div> + +<div class="footnote"><p><a name="Footnote_468_468" id="Footnote_468_468"></a><a href="#FNanchor_468_468"><span class="label">[i]</span></a> This doubt was soon afterwards changed into a proposition, +strenuously maintained by the supposed compiler of these Reports, lord +Redesdale, on the claim to the barony of L'Isle in 1829. The ancestor had +been called by writ to several parliaments of Edw. III.; and having only a +daughter, the negative argument from the omission of his posterity is of +little value; for though the husbands of heiresses were frequently +summoned, this does not seem to have been an universal practice. It was +held by lord Redesdale, that, at least until the statute of 5 Richard II. +c. 4, no hereditary or even personal right to the peerage was created by +the writ of summons. The house of lords rejected the claim, though the +language of their resolution is not conclusive as to the principle. The +opinion of lord R. has been ably impugned by Sir Harris Nicolas, in his +Report of the L'Isle Peerage, 1829.</p></div> + +<div class="footnote"><p><a name="Footnote_469_469" id="Footnote_469_469"></a><a href="#FNanchor_469_469"><span class="label">[k]</span></a> The Lords' committee (Second Report, p. 436) endeavour to +elude the force of this authority; but it manifestly appears that the +Nevilles were preferred to the Fanes for the particular barony in +question; though some satisfaction was made to the claimant of the latter +family by calling her to a different peerage.</p></div> + +<div class="footnote"><p><a name="Footnote_470_470" id="Footnote_470_470"></a><a href="#FNanchor_470_470"><span class="label">[m]</span></a> The continuance of barony by tenure has been controverted +by Sir Harris 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 L'Isle +Peerage. In the particular case there seem to have been several +difficulties, independently of the great one, that, in the reign of +Charles II., barony by tenure had been finally condemned. But there is +surely a great general difficulty on the opposite side, in the hypothesis +that, while it is acknowledged that there were, in the reigns of Edward I. +and Edward II., certain known persons holding by barony and called peers +of the realm, it could have been agreeable to the feudal or to the English +constitution that the king, by refusing to the posterity of such barons a +writ of summons to parliament, might deprive them of their nobility, and +reduce them for ever to the rank of commoners.</p></div> + +<div class="footnote"><p><a name="Footnote_471_471" id="Footnote_471_471"></a><a href="#FNanchor_471_471"><span class="label">[n]</span></a> It has been doubted, notwithstanding the authority of +Spelman, and some earlier but rather precarious testimony, whether the +chancellor before the Conquest was any more than a scribe or secretary. +Palgrave, in the Quarterly Review, xxxiv. 291. The Anglo-Saxon charters, +as far as I have observed, never mention him as a witness; which seems a +very strong circumstance. Ingulfus, indeed, has given a pompous account of +chancellor Turketul; and, if the history ascribed to Ingulfus be genuine, +the office must have been of high dignity. Lord Campbell assumes this in +his Lives of the Chancellors.</p></div> + +<div class="footnote"><p><a name="Footnote_472_472" id="Footnote_472_472"></a><a href="#FNanchor_472_472"><span class="label">[o]</span></a> The words of the petition and answer are the following:— +</p><p> +"Item, que nul franc homme ne soit mys a respondre de son franc tenement, +ne de riens qui touche vie et membre, fyns ou redemptions, par apposailles +devant le conseil notre seigneur le roi, ne devant ses ministres +queconques, sinoun par proces de ley de ces en arere use." +</p><p> +"Il plest a notre seigneur le roi que les leies de son roialme soient +tenuz et gardez en lour force, et que nul homme soit tenu a respondre de +son fraunk tenement, sinoun par processe de ley: mes de chose que touche +vie ou membre, contemptz ou excesse, soit fait come ad este use ces en +arere." Rot. Par. ii. 228. +</p><p> +It is not easy to perceive what was reserved by the words "chose que +touche vie ou membre;" for the council never determined these. Possibly it +regarded accusations of treason or felony, which they might entertain as +an inquest, though they would ultimately be tried by a jury. Contempts are +easily understood; and by excesses were meant riots and seditions. These +political offences, which could not be always safely tried in a lower +court, it was the constant intention of the government to reserve for the +council.</p></div> + +<div class="footnote"><p><a name="Footnote_473_473" id="Footnote_473_473"></a><a href="#FNanchor_473_473"><span class="label">[p]</span></a> See Note in p. 145, for the statute 31 H. VI. c. 2.</p></div> + +<div class="footnote"><p><a name="Footnote_474_474" id="Footnote_474_474"></a><a href="#FNanchor_474_474"><span class="label">[q]</span></a> See Constitutional History of England, vol. i. p. 49. +(1842.)</p></div> + +<div class="footnote"><p><a name="Footnote_475_475" id="Footnote_475_475"></a><a href="#FNanchor_475_475"><span class="label">[r]</span></a> It has been mentioned in a former note, on Mr. Allen's +authority, that the folcland had acquired the appellation <i>terra regis</i> +before the Conquest.</p></div> + +<div class="footnote"><p><a name="Footnote_476_476" id="Footnote_476_476"></a><a href="#FNanchor_476_476"><span class="label">[s]</span></a> A presumptive proof of this may be drawn from a chapter in +the Laws of Henry I. c. 81, where the penalty payable by a villein for +certain petty offences is set at thirty pence; that of a <i>cotset</i> at +fifteen; and of a theow at six. The passage is extremely obscure; and this +proportion of the three classes of men is almost the only part that +appears evident. The cotset, who is often mentioned in Domesday, may thus +have been an inferior villein, nearly similar to what Glanvil and later +law-books call such.</p></div> + +<div class="footnote"><p><a name="Footnote_477_477" id="Footnote_477_477"></a><a href="#FNanchor_477_477"><span class="label">[t]</span></a> The following passage in the Chronicle of Brakelond does +not mention any manumission of the ceorl on whom abbot Samson conferred a +manor:—Unum solum manerium carta sua confirmavit cuidam Anglico natione, +<i>glebæ adscripto</i>, de cujus fidelitate plenius confidebat quia bonus +agricola erat, et quia nesciebat loqui Gallicè. p. 24.</p></div> + +<div class="footnote"><p><a name="Footnote_478_478" id="Footnote_478_478"></a><a href="#FNanchor_478_478"><span class="label">[u]</span></a> Mr. Wright has given a few specimens in Essays on the +Literature and Popular Superstitions of England in the Middle Ages, vol. +i. p. 257. In fact we may reckon Piers Plowman an instance of popular +satire, though far superior to the rest.</p></div> +</div> + +<hr /> + +<h2>CHAPTER IX.<span class="sixty"><a name="FNanchor_479_479" id="FNanchor_479_479"></a><a href="#Footnote_479_479" class="fnanchor">[a]</a></span></h2> + +<p class="center">ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES. +<span class="pagenum"><a name="Page_268" id="Page_268">[Pg 268]</a></span></p> + +<p class="center">PART I.</p> + +<blockquote><p class="ind">Introduction—Decline of Literature in the latter Period of the +Roman Empire—Its Causes—Corruption of the Latin +Language—Means by which it was effected—Formation of new +Languages—General Ignorance of the Dark Ages—Scarcity of +Books—Causes that prevented the total Extinction of +Learning—Prevalence of Superstition and Fanaticism—General +Corruption of Religion—Monasteries—their +Effects—Pilgrimages—Love of Field Sports—State of +Agriculture—of Internal and Foreign Trade down to the End of +the Eleventh Century—Improvement of Europe dated from that Age. </p></blockquote> + +<p><span class="smcap">It</span> has been the object of every preceding chapter of this work, either to +trace the civil revolutions of states during the period of the middle +ages, or to investigate, with rather more minute attention, their +political institutions. There remains a large tract to be explored, if we +would complete the circle of historical information, and give to our +knowledge that copiousness and clear perception which arise from +comprehending a subject under numerous relations. The philosophy of +history embraces far more than the wars and treaties, the factions and +cabals of common political narration; it extends to whatever illustrates +the character of the human species in a particular period, to their +reasonings and sentiments, their arts and industry. Nor is this +comprehensive survey merely interesting to the speculative philosopher; +without it the statesman would form very erroneous estimates of events, +and find himself constantly misled in any analogical application of them +to present circumstances. Nor is it an uncommon source +<span class="pagenum"><a name="Page_269" id="Page_269">[Pg 269]</a></span> of error to +neglect the general signs of the times, and to deduce a prognostic from +some partial coincidence with past events, where a more enlarged +comparison of all the facts that ought to enter into the combination would +destroy the whole parallel. The philosophical student, however, will not +follow the antiquary into his minute details; and though it is hard to say +what may not supply matter for a reflecting mind, there is always some +danger of losing sight of grand objects in historical disquisition, by too +laborious a research into trifles. I may possibly be thought to furnish, +in some instances, an example of the error I condemn. But in the choice +and disposition of topics to which the present chapter relates, some have +been omitted oh account of their comparative insignificance, and others on +account of their want of connexion with the leading subject. Even of those +treated I can only undertake to give a transient view; and must bespeak +the reader's candour to remember that passages which, separately taken, +may often appear superficial, are but parts of the context of a single +chapter, as the chapter itself is of an entire work.</p> + +<p>The Middle Ages, according to the division I have adopted, comprise about +one thousand years, from the invasion of France by Clovis to that of +Naples by Charles VIII. This period, considered as to the state of +society, has been esteemed dark through ignorance, and barbarous through +poverty and want of refinement. And although this character is much less +applicable to the last two centuries of the period than to those which +preceded its commencement, yet we cannot expect to feel, in respect of +ages at best imperfectly civilized and slowly progressive, that interest +which attends a more perfect development of human capacities, and more +brilliant advances in improvement. The first moiety indeed of these ten +ages is almost absolutely barren, and presents little but a catalogue of +evils. The subversion of the Roman empire, and devastation of its +provinces, by barbarous nations, either immediately preceded, or were +coincident with the commencement of the middle period. We begin in +darkness and calamity; and though the shadows grow fainter as we advance, +yet we are to break off our pursuit as the morning breathes upon us, and +the twilight reddens into the lustre of day.</p> + +<div class="sidenote">Decline of learning in Roman empire.</div> + +<p><span class="pagenum"><a name="Page_270" id="Page_270">[Pg 270]</a></span> +No circumstance is so prominent on the first survey of society during the +earlier centuries of this period as the depth of ignorance in which it was +immersed; and as from this, more than any single cause, the moral and +social evils which those ages experienced appear to have been derived and +perpetuated, it deserves to occupy the first place in the arrangement of +our present subject. We must not altogether ascribe the ruin of literature +to the barbarian destroyers of the Roman empire. So gradual, and, +apparently, so irretrievable a decay had long before spread over all +liberal studies, that it is impossible to pronounce whether they would not +have been almost equally extinguished if the august throne of the Cæsars +had been left to moulder by its intrinsic weakness. Under the paternal +sovereignty of Marcus Aurelius the approaching declension of learning +might be scarcely perceptible to an incurious observer. There was much +indeed to distinguish his times from those of Augustus; much lost in +originality of genius, in correctness of taste, in the masterly conception +and consummate finish of art, in purity of the Latin, and even of the +Greek language. But there were men who made the age famous, grave lawyers, +judicious historians, wise philosophers; the name of learning was +honourable, its professors were encouraged; and along the vast surface of +the Roman empire there was perhaps a greater number whose minds were +cultivated by intellectual discipline than under the more brilliant reign +of the first emperor.</p> + +<div class="sidenote">Its causes.</div> + +<p>It is not, I think, very easy to give a perfectly satisfactory solution of +the rapid downfall of literature between the ages of Antonine and of +Diocletian. Perhaps the prosperous condition of the empire from Trajan to +Marcus Aurelius, and the patron age which those good princes bestowed on +letters, gave an artificial health to them for a moment, and suspended the +operation of a disease which had already begun to undermine their vigour. +Perhaps the intellectual energies of mankind can never remain stationary; +and a nation that ceases to produce original and inventive minds, born to +advance the landmarks of knowledge or skill, will recede from step to +step, till it loses even the +<span class="pagenum"><a name="Page_271" id="Page_271">[Pg 271]</a></span> +secondary merits of imitation and industry. +During the third century, not only there were no great writers, but even +few names of indifferent writers have been recovered by the diligence of +modern inquiry.<a name="FNanchor_480_480" id="FNanchor_480_480"></a><a href="#Footnote_480_480" class="fnanchor">[b]</a> +Law neglected, philosophy perverted till it became +contemptible, history nearly silent, the Latin tongue growing rapidly +barbarous, poetry rarely and feebly attempted, art more and more vitiated; +such were the symptoms by which the age previous to Constantine announced +the decline of human intellect. If we cannot fully account for this +unhappy change, as I have observed, we must, however, assign much weight +to the degradation of Rome and Italy in the system of Severus and his +successors, to the admission of barbarians into the military and even +civil dignities of the empire, to the discouraging influence of provincial +and illiterate sovereigns, and to the calamities which followed for half a +century the first invasion of the Goths and the defeat of Decius. To this +sickly condition of literature the fourth century supplied no permanent +remedy. If under the house of Constantine the Roman world suffered rather +less from civil warfare or barbarous invasions than in the preceding age, +yet every other cause of decline just enumerated prevailed with aggravated +force; and the fourth century set in storms, sufficiently destructive in +themselves, and ominous of those calamities which humbled the majesty of +Rome at the commencement of the ensuing period, and overwhelmed the +Western Empire in absolute and final ruin before its termination.</p> + +<p>The diffusion of literature is perfectly distinguishable from its +advancement; and whatever obscurity we may find in explaining the +variations of the one, there are a few simple causes which seem to account +for the other. Knowledge will be spread over the surface of a nation in +proportion to the facilities of education; to the free circulation of +books; to the emoluments and distinctions which literary attainments are +found to produce; and still more to the reward which they meet in the +general respect and applause of society. This cheering incite +<span class="pagenum"><a name="Page_272" id="Page_272">[Pg 272]</a></span>ment, the +genial sunshine of approbation, has at all times promoted the cultivation +of literature in small republics rather than large empires, and in cities +compared with the country. If these are the sources which nourish +literature, we should naturally expect that they must have become scanty +or dry when learning languishes or expires. Accordingly, in the later ages +of the Roman empire a general indifference towards the cultivation of +letters became the characteristic of its inhabitants. Laws were indeed +enacted by Constantine, Julian, Theodosius, and other emperors, for the +encouragement of learned men and the promotion of liberal education. But +these laws, which would not perhaps have been thought necessary in better +times, were unavailing to counteract the lethargy of ignorance in which +even the native citizens of the empire were contented to repose. This +alienation of men from their national literature may doubtless be imputed +in some measure to its own demerits. A jargon of mystical philosophy, half +fanaticism and half imposture, a barren and inflated eloquence, a +frivolous philology, were not among those charms of wisdom by which man is +to be diverted from pleasure or aroused from indolence.</p> + +<p>In this temper of the public mind there was little probability that new +compositions of excellence would be produced, and much doubt whether the +old would be preserved. Since the invention of printing, the absolute +extinction of any considerable work seems a danger too improbable for +apprehension. The press pours forth in a few days a thousand volumes, +which, scattered like seeds in the air over the republic of Europe, could +hardly be destroyed without the extirpation of its inhabitants. But in the +times of antiquity manuscripts were copied with cost, labour, and delay; +and if the diffusion of knowledge be measured by the multiplication of +books, no unfair standard, the most golden ages of ancient learning could +never bear the least comparison with the three last centuries. The +destruction of a few libraries by accidental fire, the desolation of a few +provinces by unsparing and illiterate barbarians, might annihilate every +vestige of an author, or leave a few scattered copies, which, from the +public indifference, there was no inducement to multiply, exposed to +similar casualties in succeeding times.</p> + +<p><span class="pagenum"><a name="Page_273" id="Page_273">[Pg 273]</a></span> +We are warranted by good authorities to assign, as a collateral cause of +this irretrievable revolution the neglect of heathen literature by the +Christian church. I am not versed enough in ecclesiastical writers to +estimate the degree of this neglect; nor am I disposed to deny that the +mischief was beyond recovery before the accession of Constantine. From the +primitive ages, however, it seems that a dislike of pagan learning was +pretty general among Christians. Many of the fathers undoubtedly were +accomplished in liberal studies, and we are indebted to them for valuable +fragments of authors whom we have lost. But the literary character of the +church is not to be measured by that of its more illustrious leaders. +Proscribed and persecuted, the early Christians had not perhaps access to +the public schools, nor inclination to studies which seemed, very +excusably, uncongenial to the character of their profession. Their +prejudices, however, survived the establishment of Christianity. The +fourth council of Carthage in 398 prohibited the reading of secular books +by bishops. Jerome plainly condemns the study of them except for pious +ends. All physical science especially was held in avowed contempt, as +inconsistent with revealed truths. Nor do there appear to have been any +canons made in favour of learning, or any restriction on the ordination of +persons absolutely +illiterate.<a name="FNanchor_481_481" id="FNanchor_481_481"></a><a href="#Footnote_481_481" class="fnanchor">[c]</a> +There was indeed abundance of what is +called theological learning displayed in the controversies of the fourth +and fifth centuries; and those who admire such disputations may consider +the principal champions in them as contributing to the glory, or at least +retarding the decline, of literature. But I believe rather that polemical +disputes will be found not only to corrupt the genuine spirit of religion, +but to degrade and contract the faculties. What keenness and subtlety +these may sometimes acquire by such exercise is more like that worldly +shrewdness we see in men whose trade it is to outwit their neighbours than +the clear and calm discrimination of philosophy. However this may be, it +cannot be doubted that the controversies agitated in the church +<span class="pagenum"><a name="Page_274" id="Page_274">[Pg 274]</a></span> during +these two centuries must have diverted studious minds from profane +literature, and narrowed more and more the circle of that knowledge which +they were desirous to attain.</p> + +<p>The torrent of irrational superstitions which carried all before it in the +fifth century, and the progress of ascetic enthusiasm, had an influence +still more decidedly inimical to learning. I cannot indeed conceive any +state of society more adverse to the intellectual improvement of mankind +than one which admitted of no middle line between gross dissoluteness and +fanatical mortification. An equable tone of public morals, social and +humane, verging neither to voluptuousness nor austerity, seems the most +adapted to genius, or at least to letters, as it is to individual comfort +and national prosperity. After the introduction of monkery and its +unsocial theory of duties, the serious and reflecting part of mankind, on +whom science most relies, were turned to habits which, in the most +favourable view, could not quicken the intellectual energies; and it might +be a difficult question whether the cultivators and admirers of useful +literature were less likely to be found among the profligate citizens of +Rome and their barbarian conquerors or the melancholy recluses of the +wilderness.</p> + +<p>Such therefore was the state of learning before the subversion of the +Western Empire. And we may form some notion how little probability there +was of its producing any excellent fruits, even if that revolution had +never occurred, by considering what took place in Greece during the +subsequent ages; where, although there was some attention shown to +preserve the best monuments of antiquity, and diligence in compiling from +them, yet no one original writer of any superior merit arose, and +learning, though plunged but for a short period into mere darkness, may be +said to have languished in a middle region of twilight for the greater +part of a thousand years.</p> + +<p>But not to delay ourselves in this speculation, the final settlement of +barbarous nations in Gaul, Spain, and Italy consummated the ruin of +literature. Their first irruptions were uniformly attended with +devastation; and if some of the Gothic kings, after their establishment, +proved humane and civilized sovereigns, yet the nation +<span class="pagenum"><a name="Page_275" id="Page_275">[Pg 275]</a></span> gloried in its +original rudeness, and viewed with no unreasonable disdain arts which had +neither preserved their cultivators from corruption nor raised them from +servitude. Theodoric, the most famous of the Ostrogoth kings in Italy, +could not write his name, and is said to have restrained his countrymen +from attending those schools of learning by which he, or rather perhaps +his minister Cassiodorus, endeavoured to revive the studies of his Italian +subjects. Scarcely one of the barbarians, so long as they continued +unconfused with the native inhabitants, acquired the slightest tincture of +letters; and the praise of equal ignorance was soon aspired to and +attained by the entire mass of the Roman laity. They, however, could +hardly have divested themselves so completely of all acquaintance with +even the elements of learning, if the language in which books were written +had not ceased to be their natural dialect. This remarkable change in the +speech of France, Spain, and Italy is most intimately connected with the +extinction of learning; and there is enough of obscurity as well as of +interest in the subject to deserve some discussion.</p> + +<div class="sidenote">Corruption of the Latin language.</div> + +<p>It is obvious, on the most cursory view of the French and Spanish +languages, that they, as well as the Italian, are derived from one common +source, the Latin. That must therefore have been at some period, and +certainly not since the establishment of the barbarous nations in Spain +and Gaul, substituted in ordinary use for the original dialects of those +countries which are generally supposed to have been Celtic, not +essentially differing from those which are spoken in Wales and Ireland. +Rome, says Augustin, imposed not only her yoke, but her language, upon +conquered nations. The success of such an attempt is indeed very +remarkable. Though it is the natural effect of conquest, or even of +commercial intercourse, to ingraft fresh words and foreign idioms on the +stock of the original language, yet the entire disuse of the latter, and +adoption of one radically different, scarcely takes place in the lapse of +a far longer period than that of the Roman dominion in Gaul. Thus, in part +of Britany the people speak a language which has perhaps sustained no +essential alteration from the revolution of two thousand years; and we +know how steadily another Celtic dialect has kept its ground in +<span class="pagenum"><a name="Page_276" id="Page_276">[Pg 276]</a></span> Wales, +notwithstanding English, laws and government, and the long line of +contiguous frontier which brings the natives of that principality into +contact with Englishmen. Nor did the Romans ever establish their language +(I know not whether they wished to do so) in this island, as we perceive +by that stubborn British tongue which has survived two +conquests.<a name="FNanchor_482_482" id="FNanchor_482_482"></a><a href="#Footnote_482_482" class="fnanchor">[d]</a></p> + +<p>In Gaul and in Spain, however, they did succeed, as the present state of +the French and peninsular languages renders undeniable, though by gradual +changes, and not, as the Benedictine authors of the Histoire Littéraire de +la France seem to imagine, by a sudden and arbitrary +innovation.<a name="FNanchor_483_483" id="FNanchor_483_483"></a><a href="#Footnote_483_483" class="fnanchor">[e]</a> This +is neither possible in itself, nor agreeable to the testimony of Irenæus, +bishop of Lyons at the end of the second century, who laments the +necessity of learning Celtic.<a name="FNanchor_484_484" id="FNanchor_484_484"></a><a href="#Footnote_484_484" class="fnanchor">[f]</a> +But although the inhabitants of these +provinces came at length to make use of Latin so completely as their +mother tongue that few vestiges of their original Celtic could perhaps be +discovered in their common speech, it does not follow that they spoke with +the pure pronunciation of Italians, far less with that conformity to the +written sounds which we assume to be essential to the expression of Latin +words.</p> + +<div class="sidenote">Ancient Latin pronunciation.</div> + +<p>It appears to be taken for granted that the Romans pronounced their +language as we do at present, so far at least as the enunciation of all +the consonants, however we may admit our deviations from the classical +standard in propriety of sounds and in measure of time. Yet the example of +our own language, and of French, might show us that orthography may become +a very inadequate representative of pronunciation. +<span class="pagenum"><a name="Page_277" id="Page_277">[Pg 277]</a></span> It is indeed capable +of proof that in the purest ages of Latinity some variation existed +between these two. Those numerous changes in spelling which distinguish +the same words in the poetry of Ennius and of Virgil are best explained by +the supposition of their being accommodated, to the current pronunciation. +Harsh combinations of letters, softened down through delicacy of ear or +rapidity of utterance, gradually lost their place in the written language. +Thus <i>exfregit</i> and <i>adrogavit</i> assumed a form representing their more +liquid sound; and <i>auctor</i> was latterly spelled <i>autor</i>, which has been +followed in French and Italian. <i>Autor</i> was probably so pronounced at all +times; and the orthography was afterwards corrected or corrupted, +whichever we please to say, according to the sound. We have the best +authority to assert that the final <i>m</i> was very faintly pronounced, rather +it seems as a rest and short interval between two syllables than an +articulate letter; nor indeed can we conceive upon what other ground it +was subject to elision before a vowel in verse, since we cannot suppose +that the nice ears of Rome would have submitted to a capricious rule of +poetry for which Greece presented no +analogy.<a name="FNanchor_485_485" id="FNanchor_485_485"></a><a href="#Footnote_485_485" class="fnanchor">[g]</a></p> + +<p>A decisive proof, in my opinion, of the deviation which took place, +through the rapidity of ordinary elocution, from the strict laws of +enunciation, may be found in the metre of Terence. His verses, which are +absolutely refractory to the common laws of prosody, may be readily +scanned by the application of this principle. Thus, in the first act of +the Heautontimorumenos, a part selected at random, I have found, I. Vowels +contracted or dropped so as to shorten the word by a syllable; in <i>rei</i>, +<i>viâ</i>, <i>diutius</i>, <i>ei</i>, <i>solius</i>, <i>eam</i>, <i>unius</i>, <i>suam</i>, <i>divitias</i>, +<i>senex</i>, <i>voluptatem</i>, <i>illius</i>, <i>semel</i>; II. The proceleusmatic foot, or +four short syllables, instead of the dactyl; scen. i. v. 59, 73, 76, 88, +109; scen. ii. v. 36; III. The elision of <i>s</i> in words ending with <i>us</i> or +<i>is</i> short, and sometimes even of the whole syllable, before the next word +beginning with a vowel; in scen. i. v. 30, 81, 98, 101, 116, 119; scen. +ii. v. 28.<span class="pagenum"><a name="Page_278" id="Page_278">[Pg 278]</a></span> +IV. The first syllable of <i>ille</i> is repeatedly shortened, and +indeed nothing is more usual in Terence than this licence; whence we may +collect how ready this word was for abbreviation into the French and +Italian articles. V. The last letter of <i>apud</i> is cut off, scen. i. v. +120; and scen. ii. v. 8. VI. <i>Hodie</i> is used as a pyrrhichius, in scen. +ii. v. 11. VII. Lastly, there is a clear instance of a short syllable, the +antepenultimate of <i>impulerim</i>, lengthened on account of the accent at the +113th verse of the first scene.</p> + +<div class="sidenote">Its corruption by the populace,</div> + +<div class="sidenote">and the provincials.</div> + +<p>These licences are in all probability chiefly colloquial, and would not +have been adopted in public harangues, to which the precepts of rhetorical +writers commonly relate. But if the more elegant language of the Romans, +since such we must suppose to have been copied by Terence for his higher +characters, differed so much in ordinary discourse from their orthography, +it is probable that the vulgar went into much greater deviations. The +popular pronunciation errs generally, we might say perhaps invariably, by +abbreviation of words, and by liquefying consonants, as is natural to the +rapidity of colloquial speech.<a name="FNanchor_486_486" id="FNanchor_486_486"></a><a href="#Footnote_486_486" class="fnanchor">[h]</a> +It is by their knowledge of +orthography and etymology that the more educated part of the community is +preserved from these corrupt modes of pronunciation. There is always +therefore a standard by which common speech may be rectified; and in +proportion to the diffusion of knowledge and politeness the deviations +from it will be more slight and gradual. But in distant provinces, and +especially where the language itself is but of recent introduction, many +more changes may be expected to occur. Even in France and England there +are provincial dialects, which, if written with all their anomalies of +pronunciation as well as idiom, would seem strangely out of unison with +the regular language; and in Italy, as +<span class="pagenum"><a name="Page_279" id="Page_279">[Pg 279]</a></span> is well known, the varieties of +dialect are still more striking. Now, in an advancing state of society, +and especially with such a vigorous political circulation as we experience +in England, language will constantly approximate to uniformity, as +provincial expressions are more and more rejected for incorrectness or +inelegance. But, where literature is on the decline, and public +misfortunes contract the circle of those who are solicitous about +refinement, as in the last ages of the Roman empire, there will be no +longer any definite standard of living speech, nor any general desire to +conform to it if one could be found; and thus the vicious corruptions of +the vulgar will entirely predominate. The niceties of ancient idiom will +be totally lost, while new idioms will be formed out of violations of +grammar sanctioned by usage, which, among a civilized people, would have +been proscribed at their appearance.</p> + +<p>Such appears to have been the progress of corruption in the Latin +language. The adoption of words from the Teutonic dialects of the +barbarians, which took place very freely, would not of itself have +destroyed the character of that language, though it sullied its purity. +The worst law Latin of the middle ages is still Latin, if its barbarous +terms have been bent to the regular inflections. It is possible, on the +other hand, to write whole pages of Italian, wherein every word shall be +of unequivocal Latin derivation, though the character and personality, if +I may so say, of the language be entirely dissimilar. But, as I conceive, +the loss of literature took away the only check upon arbitrary +pronunciation and upon erroneous grammar. Each people innovated through +caprice, imitation of their neighbours, or some of those indescribable +causes which dispose the organs of different nations to different sounds. +The French melted down the middle consonants; the Italians omitted the +final. Corruptions arising out of ignorance were mingled with those of +pronunciation. It would have been marvellous if illiterate and +semi-barbarous provincials had preserved that delicate precision in using +the inflections of tenses which our best scholars do not clearly attain. +The common speech of any people whose language is highly complicated will +be full of solecisms. The French inflections are not comparable in number or delicacy to +<span class="pagenum"><a name="Page_280" id="Page_280">[Pg 280]</a></span> +the Latin, and yet the vulgar confuse their most ordinary +forms.</p> + +<p>But, in all probability, the variation of these derivative languages from +popular Latin has been considerably less than it appears. In the purest +ages of Latinity the citizens of Rome itself made use of many terms which +we deem barbarous, and of many idioms which we should reject as modern. +That highly complicated grammar, which the best writers employed, was too +elliptical and obscure, too deficient in the connecting parts of speech, +for general use. We cannot indeed ascertain in what degree the vulgar +Latin differed from that of Cicero or Seneca. It would be highly absurd to +imagine, as some are said to have done, that modern Italian was spoken at +Rome under Augustus.<a name="FNanchor_487_487" id="FNanchor_487_487"></a><a href="#Footnote_487_487" class="fnanchor">[i]</a> +But I believe it may be asserted not only that +much the greater part of those words in the present language of Italy +which strike us as incapable of a Latin etymology are in fact derived from +those current in the Augustan age, but that very many phrases which +offended nicer ears prevailed in the same vernacular speech, and have +passed from thence into the modern French and Italian. Such, for example, +was the frequent use of prepositions to indicate a relation between two +parts of a sentence which a classical writer would have made to depend on +mere inflection.<a name="FNanchor_488_488" id="FNanchor_488_488"></a><a href="#Footnote_488_488" class="fnanchor">[k]</a></p> + +<p>From the difficulty of retaining a right discrimination of tense seems to +have proceeded the active auxiliary verb. It is possible that this was +borrowed from the Teutonic languages of the barbarians, and accommodated +both by them and by the natives to words of Latin origin. The passive +auxiliary is obtained by a very ready resolution of any tense in that +mood, and has not been altogether dispensed with even in Greek, while in +Latin it is used much more frequently. It is not quite so easy to perceive +the propriety of the active habeo or teneo, one +<span class="pagenum"><a name="Page_281" id="Page_281">[Pg 281]</a></span> or both of which all +modern languages have adopted as their auxiliaries in conjugating the +verb. But in some instances this analysis is not improper; and it may be +supposed that nations, careless of etymology or correctness, applied the +same verb by a rude analogy to cases where it ought not strictly to have +been employed.<a name="FNanchor_489_489" id="FNanchor_489_489"></a><a href="#Footnote_489_489" class="fnanchor">[m]</a></p> + +<p>Next to the changes founded on pronunciation and to the substitution of +auxiliary verbs for inflections, the usage of the definite and indefinite +articles in nouns appears the most considerable step in the transmutation +of Latin into its derivative languages. None but Latin, I believe, has +ever wanted this part of speech; and the defect to which custom reconciled +the Romans would be an insuperable stumbling-block to nations who were to +translate their original idiom into that language. A coarse expedient of +applying <i>unus</i>, <i>ipse</i>, or <i>ille</i> to the purposes of an article might +perhaps be no unfrequent vulgarism of the provincials; and after the +Teutonic tribes brought in their own grammar, it was natural that a +corruption should become universal, which in fact supplied a real and +essential deficiency.</p> + +<div class="sidenote">Pronunciation no longer regulated by quantity.</div> + +<p>That the quantity of Latin syllables is neglected, or rather lost, in +modern pronunciation, seems to be generally admitted. Whether, indeed, the +ancient Romans, in their ordinary speaking, distinguished the measure of +syllables with such uniform musical accuracy as we imagine, giving a +certain time to those termed long, and exactly half that duration to the +short, might very reasonably be questioned; though this was probably done, +or attempted to be done, by every reader of poetry. Certainly, however, +the laws of quantity were forgotten, and an accentual pronunciation came +to predominate, before Latin had ceased to be a living language. A +Christian writer named Commodianus, who lived before the end of the third +century according to some, or, as others think, in the reign of +Constantine, has left us a philological curiosity, in a series of attacks +on the pagan superstitions, composed in what are meant to be verses, +regulated by accent instead of quantity, exactly as we read Virgil at +present.<a name="FNanchor_490_490" id="FNanchor_490_490"></a><a href="#Footnote_490_490" class="fnanchor">[n]</a></p> + +<p><span class="pagenum"><a name="Page_282" id="Page_282">[Pg 282]</a></span> +It is not improbable that Commodianus may have written in Africa, the +province in which more than any the purity of Latin was debased. At the +end of the fourth century St. Augustin assailed his old enemies, the +Donatists, with nearly the same arms that Commodianus had wielded against +heathenism. But as the refined and various music of hexameters was +unlikely to be relished by the vulgar, he prudently adopted a different +measure.<a name="FNanchor_491_491" id="FNanchor_491_491"></a><a href="#Footnote_491_491" class="fnanchor">[o]</a> +All the nations of Europe seem to love the trochaic verse; +it was frequent on the Greek and Roman stage; it is more common than any +other in the popular poetry of modern languages. This proceeds from its +simplicity, its liveliness, and its ready accommodation to dancing and +music. In St. Austin's poem he united to a trochaic measure the novel +attraction of rhyme.</p> + +<p>As Africa must have lost all regard to the rules of measure in the fourth +century, so it appears that Gaul was not more correct in the next two +ages. A poem addressed by Auspicius bishop of Toul to count Arbogastes, of +earlier date probably than the invasion of Clovis, is written with no +regard to quantity.<a name="FNanchor_492_492" id="FNanchor_492_492"></a><a href="#Footnote_492_492" class="fnanchor">[p]</a> The +<span class="pagenum"><a name="Page_283" id="Page_283">[Pg 283]</a></span> +bishop by whom this was composed is +mentioned by his contemporaries as a man of learning. Probably he did not +choose to perplex the barbarian to whom he was writing (for Arbogastes is +plainly a barbarous name) by legitimate Roman metre. In the next century +Gregory of Tours informs us that Chilperic attempted to write Latin +verses; but the lines could not be reconciled to any division of feet; his +ignorance having confounded long and short syllables +together.<a name="FNanchor_493_493" id="FNanchor_493_493"></a><a href="#Footnote_493_493" class="fnanchor">[q]</a> Now +Chilperic must have learned to speak Latin like other kings of the Franks, +and was a smatterer in several kinds of literature. If Chilperic therefore +was not master of these distinctions, we may conclude that the bishops and +other Romans with whom he conversed did not observe them; and that his +blunders in versification arose from ignorance of rules, which, however +fit to be preserved in poetry, were entirely obsolete in the living Latin +of his age. Indeed the frequency of false quantities in the poets even of +the fifth, but much more of the sixth century, is palpable. Fortunatus is +quite full of them. This seems a decisive proof that the ancient +pronunciation was lost. Avitus tells us that few preserved the proper +measure of syllables in singing. Yet he was bishop of Vienne, where a +purer pronunciation might be expected than in the remoter parts of +Gaul.<a name="FNanchor_494_494" id="FNanchor_494_494"></a><a href="#Footnote_494_494" class="fnanchor">[r]</a></p> + +<div class="sidenote">Change of Latin into Romance.</div> + +<p>Defective, however, as it had become in respect of pronunciation, Latin +was still spoken in France during the sixth and seventh centuries. We have +compositions of that time, intended for the people, in grammatical +language. A song is still extant in rhyme and loose accentual measure, +written upon a victory of Clotaire II. over the Saxons in 622, and +obviously intended for circulation among the +people.<a name="FNanchor_495_495" id="FNanchor_495_495"></a><a href="#Footnote_495_495" class="fnanchor">[s]</a> Fortunatus +<span class="pagenum"><a name="Page_284" id="Page_284">[Pg 284]</a></span> +says, in his Life of St. Aubin of Angers, that he should take care not to +use any expression unintelligible to the +people.<a name="FNanchor_496_496" id="FNanchor_496_496"></a><a href="#Footnote_496_496" class="fnanchor">[t]</a> +Baudemind, in the +middle of the seventh century, declares, in his Life of St. Amand, that he +writes in a rustic and vulgar style, that the reader may be excited to +imitation.<a name="FNanchor_497_497" id="FNanchor_497_497"></a><a href="#Footnote_497_497" class="fnanchor">[u]</a> +Not that these legends were actually perused by the +populace, for the very art of reading was confined to a few. But they were +read publicly in the churches, and probably with a pronunciation +accommodated to the corruptions of ordinary language. Still the Latin +syntax must have been tolerably understood; and we may therefore say that +Latin had not ceased to be a living language, in Gaul at least, before the +latter part of the seventh century. Faults indeed against the rules of +grammar, as well as unusual idioms, perpetually occur in the best writers +of the Merovingian period, such as Gregory of Tours; while charters drawn +up by less expert scholars deviate much further from +purity.<a name="FNanchor_498_498" id="FNanchor_498_498"></a><a href="#Footnote_498_498" class="fnanchor">[x]</a></p> + +<p>The corrupt provincial idiom became gradually more and more dissimilar to +grammatical Latin; and the lingua Romana rustica, as the vulgar <i>patois</i> +(to borrow a word that I cannot well translate) had been called, acquired +a distinct character as a new language in the eighth +century.<a name="FNanchor_499_499" id="FNanchor_499_499"></a><a href="#Footnote_499_499" class="fnanchor">[y]</a> Latin +orthography, which had been hitherto pretty well maintained in books, +though not always in charters, gave way to a new spelling, conformably to +the current pronunciation. Thus we find lui, for illius, in the +Formularies of Marculfus; and Tu lo juva in a liturgy of Charlemagne's +age, for Tu illum juva. When this barrier was once broken down, such a +deluge of innovation poured in that all the characteristics of Latin were +<span class="pagenum"><a name="Page_285" id="Page_285">[Pg 285]</a></span> +effaced in writing as well as speaking, and the existence of a new +language became undeniable. In a council held at Tours in 813 the bishops +are ordered to have certain homilies of the fathers translated into the +rustic Roman, as well as the German +tongue.<a name="FNanchor_500_500" id="FNanchor_500_500"></a><a href="#Footnote_500_500" class="fnanchor">[z]</a> +After this it is unnecessary to multiply proofs of the change which Latin had undergone.</p> + +<div class="sidenote">Its corruption in Italy.</div> + +<p>In Italy the progressive corruptions of the Latin language were analogous +to those which occurred in France, though we do not find in writings any +unequivocal specimens of a new formation at so early a period. But the old +inscriptions, even of the fourth and fifth centuries, are full of +solecisms and corrupt orthography. In legal instruments under the Lombard +kings the Latin inflections are indeed used, but with so little regard to +propriety that it is obvious the writers had not the slightest tincture of +grammatical knowledge. This observation extends to a very large proportion +of such documents down to the twelfth century, and is as applicable to +France and Spain as it is to Italy. In these charters the peculiar +characteristics of Italian orthography and grammar frequently appear. Thus +we find, in the eighth century, diveatis for debeatis, da for de in the +ablative, avendi for habendi, dava for dabat, cedo a deo, and ad ecclesia, +among many similar corruptions.<a name="FNanchor_501_501" id="FNanchor_501_501"></a><a href="#Footnote_501_501" class="fnanchor">[a]</a> +Latin was so changed, it is said by a +writer of Charlemagne's age, that scarcely any part of it was popularly +known. Italy indeed had suffered more than France itself by invasion, and +was reduced to a lower state of barbarism, though probably, from the +greater distinctness of pronunciation habitual to the Italians, they lost +less of their original language than the French. I do not find, however, +in the writers who have treated this subject, any express evidence of a +vulgar language distinct from Latin earlier than the close of the tenth +century, when it is said in the epitaph of Pope Gregory V., who died in +999, that he instructed the people in three dialects—the Frankish or +German, the vulgar, and the +Latin.<a name="FNanchor_502_502" id="FNanchor_502_502"></a><a href="#Footnote_502_502" class="fnanchor">[b]</a></p> + +<div class="sidenote">Ignorance consequent on the disuse of Latin.</div> + +<p><span class="pagenum"><a name="Page_286" id="Page_286">[Pg 286]</a></span> +When Latin had thus ceased to be a living language, the whole treasury of +knowledge was locked up from the eyes of the people. The few who might +have imbibed a taste for literature, if books had been accessible to them, +were reduced to abandon pursuits that could only be cultivated through a +kind of education not easily within their reach. Schools, confined to +cathedrals and monasteries, and exclusively designed for the purposes of +religion, afforded no encouragement or opportunities to the +laity.<a name="FNanchor_503_503" id="FNanchor_503_503"></a><a href="#Footnote_503_503" class="fnanchor">[c]</a> +The worst effect was, that, as the newly-formed languages were hardly made +use of in writing, Latin being still preserved in all legal instruments +and public correspondence, the very use of letters, as well as of books, +was forgotten. For many centuries, to sum up the account of ignorance in a +word, it was rare for a layman, of whatever rank, to know how to sign his +name.<a name="FNanchor_504_504" id="FNanchor_504_504"></a><a href="#Footnote_504_504" class="fnanchor">[d]</a> +Their charters, till the use of seals became general, were +subscribed with the mark of the cross. Still more extraordinary it was to +find one who had any tincture of learning. Even admitting every indistinct +commendation of a monkish biographer (with whom a knowledge of +church-music would pass for +literature<a name="FNanchor_505_505" id="FNanchor_505_505"></a><a href="#Footnote_505_505" class="fnanchor">[e]</a>), +we could make out a very +short list of scholars. None certainly were more distinguished as such +than Charlemagne and Alfred. But the former, unless we reject a very plain +testimony, was incapable of writing;<a name="FNanchor_506_506" id="FNanchor_506_506"></a><a href="#Footnote_506_506" class="fnanchor">[f]</a> +and Alfred found<span class="pagenum"><a name="Page_287" id="Page_287">[Pg 287]</a></span> difficulty in +making a translation from the pastoral instruction of St. Gregory, on +account of his imperfect knowledge of +Latin.<a name="FNanchor_507_507" id="FNanchor_507_507"></a><a href="#Footnote_507_507" class="fnanchor">[g]</a></p> + +<p>Whatever mention, therefore, we find of learning and the learned during +these dark ages, must be understood to relate only to such as were within +the pale of clergy, which indeed was pretty extensive, and comprehended +many who did not exercise the offices of religious ministry. But even the +clergy were, for a long period, not very materially superior, as a body, +to the uninstructed laity. A cloud of ignorance overspread the whole face +of the church, hardly broken by a few glimmering lights, who owe much of +their distinction to the surrounding darkness. In the sixth century the +best writers in Latin were scarcely +read;<a name="FNanchor_508_508" id="FNanchor_508_508"></a><a href="#Footnote_508_508" class="fnanchor">[h]</a> +and perhaps from the middle +of this age to the eleventh there was, in a general view of literature, +little difference to be discerned. If we look more accurately, there will +appear certain gradual shades of twilight on each side of the greatest +obscurity. France reached her lowest point about the beginning of the +eighth century; but England was at that time more respectable, and did not +fall into complete degradation till the middle of the ninth. There could +be nothing more deplorable than the state of letters in Italy and in +England during the succeeding century; but France cannot be denied to have +been uniformly, though very slowly, progressive from the time of +Charlemagne.<a name="FNanchor_509_509" id="FNanchor_509_509"></a><a href="#Footnote_509_509" class="fnanchor">[i]</a></p> + +<p><span class="pagenum"><a name="Page_288" id="Page_288">[Pg 288]</a></span> +Of this prevailing ignorance it is easy to produce abundant testimony. +Contracts were made verbally, for want of notaries capable of drawing up +charters; and these, when written, were frequently barbarous and +ungrammatical to an incredible degree. For some considerable intervals +scarcely any monument of literature has been preserved, except a few +jejune chronicles, the vilest legends of saints, or verses equally +destitute of spirit and metre. In almost every council the ignorance of +the clergy forms a subject for reproach. It is asserted by one held in 992 +that scarcely a single person was to be found in Rome itself who knew the +first elements of letters.<a name="FNanchor_510_510" id="FNanchor_510_510"></a><a href="#Footnote_510_510" class="fnanchor">[k]</a> +Not one priest of a thousand in Spain, +about the age of Charlemagne, could address a common letter of salutation +to another.<a name="FNanchor_511_511" id="FNanchor_511_511"></a><a href="#Footnote_511_511" class="fnanchor">[m]</a> +In England, Alfred declares that he could not recollect a +single priest south of the Thames (the most civilized part of England), at +the time of his accession, who understood the ordinary prayers, or could +translate Latin into his mother +tongue.<a name="FNanchor_512_512" id="FNanchor_512_512"></a><a href="#Footnote_512_512" class="fnanchor">[n]</a> +Nor was this better in the +time of Dunstan, when, it is said, none of the clergy knew how to write or +translate a Latin letter.<a name="FNanchor_513_513" id="FNanchor_513_513"></a><a href="#Footnote_513_513" class="fnanchor">[o]</a> +The homilies which they preached were +<span class="pagenum"><a name="Page_289" id="Page_289">[Pg 289]</a></span> +compiled for their use by some bishops, from former works of the same +kind, or the writings of the fathers.</p> + +<div class="sidenote">Scarcity of books.</div> + +<p>This universal ignorance was rendered unavoidable, among other causes, by +the scarcity of books, which could only be procured at an immense price. +From the conquest of Alexandria by the Saracens at the beginning of the +seventh century, when the Egyptian papyrus almost ceased to be imported +into Europe, to the close of the eleventh, about which time the art of +making paper from cotton rags seems to have been introduced, there were no +materials for writing except parchment, a substance too expensive to be +readily spared for mere purposes of +literature.<a name="FNanchor_514_514" id="FNanchor_514_514"></a><a href="#Footnote_514_514" class="fnanchor">[p]</a> +Hence an unfortunate +practice gained ground, of erasing a manuscript in order to substitute +another on the same skin. This occasioned the loss of many ancient +authors, who have made way for the legends of saints, or other +ecclesiastical rubbish.</p> + +<div class="sidenote">Want of eminent men in literature.</div> + +<p>If we would listen to some literary historians, we should believe that the +darkest ages contained many individuals, not only distinguished among +their contemporaries, but positively eminent for abilities and knowledge. +A proneness to extol every monk of whose production a few letters or a +<span class="pagenum"><a name="Page_290" id="Page_290">[Pg 290]</a></span> +devotional treatise survives, every bishop of whom it is related that he +composed homilies, runs through the laborious work of the Benedictines of +St. Maur, the Literary History of France, and, in a less degree, is +observable even in Tiraboschi, and in most books of this class. Bede, +Alcuin, Hincmar, Raban, and a number of inferior names, become real giants +of learning in their uncritical panegyrics. But one might justly say that +ignorance is the smallest defect of the writers of these dark ages. +Several of them were tolerably acquainted with books; but that wherein +they are uniformly deficient is original argument or expression. Almost +every one is a compiler of scraps from the fathers, or from such +semi-classical authors as Boethius, Cassiodorus, or Martianus +Capella.<a name="FNanchor_515_515" id="FNanchor_515_515"></a><a href="#Footnote_515_515" class="fnanchor">[q]</a> +Indeed I am not aware that there appeared more than two +really considerable men in the republic of letters from the sixth to the +middle of the eleventh century—John, surnamed Scotus or Erigena, a native +of Ireland; and Gerbert, who became pope by the name of Silvester II.: the +first endowed with a bold and acute metaphysical genius; the second +excellent, for the time when he lived, in mathematical science and +mechanical inventions.<a name="FNanchor_516_516" id="FNanchor_516_516"></a><a href="#Footnote_516_516" class="fnanchor">[r]</a></p> + +<div class="sidenote">Causes of the preservation of learning—religion.</div> + +<p><span class="pagenum"><a name="Page_291" id="Page_291">[Pg 291]</a></span> +If it be demanded by what cause it happened that a few sparks of ancient +learning survived throughout this long winter, we can only ascribe their +preservation to the establishment of Christianity. Religion alone made a +bridge, as it were, across the chaos, and has linked the two periods of +ancient and modern civilization. Without this connecting principle, Europe +might indeed have awakened to intellectual pursuits, and the genius of +recent times needed not to be invigorated by the imitation of antiquity. +But the memory of Greece and Rome would have been feebly preserved by +tradition, and the monuments of those nations might have excited, on the +return of civilization, that vague sentiment of speculation and wonder +with which men now contemplate Persepolis or the Pyramids. It is not, +however, from religion simply that we have derived this advantage, but +from religion as it was modified in the dark ages. Such is the complex +reciprocation of good and evil in the dispensations of Providence, that we +may assert, with only an apparent paradox, that, had religion been more +pure, it would have been less permanent, and that Christianity has been +preserved by means of its corruptions. The sole hope for literature +depended on the Latin language; and I do not see why that should not have +been lost, if three circumstances in the prevailing religious system, all +of which we are justly accustomed to disapprove, had not conspired to +maintain it—the papal supremacy, the monastic institutions, and the use +of a Latin liturgy. 1. A continual intercourse was kept up, in consequence +of the first, between Rome and the several nations of Europe; her laws +were received by the bishops, her legates presided in councils; so that a +common language was as necessary in the church as it is at present in the +diplomatic relations of kingdoms. 2. Throughout the whole course of +<span class="pagenum"><a name="Page_292" id="Page_292">[Pg 292]</a></span> the +middle ages there was no learning, and very little regularity of manners, +among the parochial clergy. Almost every distinguished man was either the +member of a chapter or of a convent. The monasteries were subjected to +strict rules of discipline, and held out, at the worst, more opportunities +for study than the secular clergy possessed, and fewer for worldly +dissipations. But their most important service was as secure repositories +for books. All our manuscripts have been preserved in this manner, and +could hardly have descended to us by any other channel; at least there +were intervals when I do not conceive that any royal or private libraries +existed.<a name="FNanchor_517_517" id="FNanchor_517_517"></a><a href="#Footnote_517_517" class="fnanchor">[s]</a> +3. Monasteries, however, would probably have contributed +very little towards the preservation of learning, if the Scriptures and +the liturgy had been translated out of Latin when that language ceased to +be intelligible. Every rational principle of religious worship called for +such a change; but it would have been made at the expense of posterity. +One might presume, if such refined conjectures were consistent with +historical caution, that the more learned and sagacious ecclesiastics of +those times, deploring the gradual corruption of the Latin tongue, and the +danger of its absolute extinction, were induced to maintain it as a sacred +language, and the depository, as it were, of that truth and that science +which would be lost in the barbarous +<span class="pagenum"><a name="Page_293" id="Page_293">[Pg 293]</a></span> dialects of the vulgar. But a +simpler explanation is found in the radical dislike of innovation which is +natural to an established clergy. Nor did they want as good pretexts, on +the ground of convenience, as are commonly alleged by the opponents of +reform. They were habituated to the Latin words of the church-service, +which had become, by this association, the readiest instruments of +devotion, and with the majesty of which the Romance jargon could bear no +comparison. Their musical chants were adapted to these sounds, and their +hymns depended, for metrical effect, on the marked accents and powerful +rhymes which the Latin language affords. The vulgate Latin of the Bible +was still more venerable. It was like a copy of a lost original; and a +copy attested by one of the most eminent fathers, and by the general +consent of the church. These are certainly no adequate excuses for keeping +the people in ignorance; and the gross corruption of the middle ages is in +a great degree assignable to this policy. But learning, and consequently +religion, have eventually derived from it the utmost advantage.</p> + +<div class="sidenote">Superstitions.</div> + +<p>In the shadows of this universal ignorance a thousand superstitions, like +foul animals of night, were propagated and nourished. It would be very +unsatisfactory to exhibit a few specimens of this odious brood, when the +real character of those times is only to be judged by their accumulated +multitude. In every age it would be easy to select proofs of irrational +superstition, which, separately considered, seem to degrade mankind from +its level in the creation; and perhaps the contemporaries of Swedenborg +and Southcote have no right to look very contemptuously upon the +fanaticism of their ancestors. There are many books from which a +sufficient number of instances may be collected to show the absurdity and +ignorance of the middle ages in this respect. I shall only mention two, as +affording more general evidence than any local or obscure superstition. In +the tenth century an opinion prevailed everywhere that the end of the +world was approaching. Many charters begin with these words, "As the world +is now drawing to its close." An army marching under the emperor Otho I. +was so terrified by an eclipse of the sun, which it conceived to announce +this consummation, +<span class="pagenum"><a name="Page_294" id="Page_294">[Pg 294]</a></span> +as to disperse hastily on all sides. As this notion +seems to have been founded on some confused theory of the millennium, it +naturally died away when the seasons proceeded in the eleventh century +with their usual regularity.<a name="FNanchor_518_518" id="FNanchor_518_518"></a><a href="#Footnote_518_518" class="fnanchor">[t]</a> +A far more remarkable and permanent +superstition was the appeal to Heaven in judicial controversies, whether +through the means of combat or of ordeal. The principle of these was the +same; but in the former it was mingled with feelings independent of +religion—the natural dictates of resentment in a brave man unjustly +accused, and the sympathy of a warlike people with the display of skill +and intrepidity. These, in course of time, almost obliterated the primary +character of judicial combat, and ultimately changed it into the modern +duel, in which assuredly there is no mixture of +superstition.<a name="FNanchor_519_519" id="FNanchor_519_519"></a><a href="#Footnote_519_519" class="fnanchor">[u]</a> +But, in the various tests of innocence which were called ordeals, this stood +undisguised and unqualified. It is not necessary to describe what is so +well known—the ceremonies of trial by handling hot iron, by plunging the +arm into boiling fluids, by floating or sinking in cold water, or by +swallowing a piece of consecrated bread. It is observable that, as the +interference of Heaven was relied upon as a matter of course, it seems to +have been reckoned nearly indifferent whether such a test was adopted as +must, humanly considered, absolve all the guilty, or one that must convict +all the innocent. The ordeals of hot iron or water were, however, more +commonly used; and it has been a perplexing question by what dexterity +these tremendous proofs were eluded. They seem at least to have placed the +decision of all judicial controversies in the hands of the clergy, who +<span class="pagenum"><a name="Page_295" id="Page_295">[Pg 295]</a></span> +must have known the secret, whatever that might be, of satisfying the +spectators that an accused person had held a mass of burning iron with +impunity. For several centuries this mode of investigation was in great +repute, though not without opposition from some eminent bishops. It does +discredit to the memory of Charlemagne that he was one of its warmest +advocates.<a name="FNanchor_520_520" id="FNanchor_520_520"></a><a href="#Footnote_520_520" class="fnanchor">[x]</a> +But the judicial combat, which indeed might be reckoned +one species of ordeal, gradually put an end to the rest; and as the church +acquired better notions of law, and a code of her own, she strenuously +exerted herself against all these barbarous +superstitions.<a name="FNanchor_521_521" id="FNanchor_521_521"></a><a href="#Footnote_521_521" class="fnanchor">[y]</a></p> + +<div class="sidenote">Enthusiastic risings.</div> + +<p>But the religious ignorance of the middle ages sometimes burst out in +ebullitions of epidemical enthusiasm, more remarkable than these +superstitious usages, though proceeding in fact from similar causes. For +enthusiasm is little else than superstition put in motion, and is equally +founded on a strong conviction of supernatural agency without any just +conceptions of its nature. Nor has any denomination of Christians +produced, or even sanctioned, more fanaticism than the church of Rome. +These epidemical frenzies, however, to which I am alluding, were merely tumultuous, +<span class="pagenum"><a name="Page_296" id="Page_296">[Pg 296]</a></span> +though certainly fostered by the creed of perpetual miracles +which the clergy inculcated, and drawing a legitimate precedent for +religious insurrection from the crusades. For these, among other evil +consequences, seem to have principally excited a wild fanaticism that did +not sleep for several centuries.<a name="FNanchor_522_522" id="FNanchor_522_522"></a><a href="#Footnote_522_522" class="fnanchor">[z]</a></p> + +<p>The first conspicuous appearance of it was in the reign of Philip +Augustus, when the mercenary troops, dismissed from the pay of that prince +and of Henry II., committed the greatest outrages in the south of France. +One Durand, a carpenter, deluded it is said by a contrived appearance of +the Virgin, put himself at the head of an army of the populace, in order +to destroy these marauders. His followers were styled Brethren of the +White Caps, from the linen coverings of their heads. They bound themselves +not to play at dice nor frequent taverns, to wear no affected clothing, to +avoid perjury and vain swearing. After some successes over the plunderers, +they went so far as to forbid the lords to take any dues from their +vassals, on pain of incurring the indignation of the brotherhood. It may +easily be imagined that they were soon entirely discomfited, so that no +one dared to own that he had belonged to them.<a name="FNanchor_523_523" id="FNanchor_523_523"></a><a href="#Footnote_523_523" class="fnanchor">[a]</a></p> + +<p>During the captivity of St. Louis in Egypt, a more extensive and terrible +ferment broke out in Flanders, and spread from thence over great part of +France. An impostor declared himself commissioned by the Virgin to preach +a crusade, not to the rich and noble, who for their pride had been +rejected of God, but the poor. His disciples were called Pastoureaux, the +simplicity of shepherds having exposed them more readily to this delusion. +In a short time they were swelled by the confluence of abundant streams to +a moving mass of a hundred thousand men, divided into companies, with +banners bearing a cross and a lamb, and commanded by the impostor's +<span class="pagenum"><a name="Page_297" id="Page_297">[Pg 297]</a></span> +lieutenants. He assumed a priestly character, preaching, absolving, +annulling marriages. At Amiens, Bourges, Orleans, and Paris itself, he was +received as a divine prophet. Even the regent Blanche, for a time, was led +away by the popular tide. His main topic was reproach of the clergy for +their idleness and corruption—a theme well adapted to the ears of the +people, who had long been uttering similar strains of complaint. In some +towns his followers massacred the priests and plundered the monasteries. +The government at length began to exert itself; and the public sentiment +turning against the authors of so much confusion, this rabble was put to +the sword or dissipated.<a name="FNanchor_524_524" id="FNanchor_524_524"></a><a href="#Footnote_524_524" class="fnanchor">[b]</a> +Seventy years afterwards an insurrection, +almost exactly parallel to this, burst out under the same pretence of a +crusade. These insurgents, too, bore the name of Pastoureaux, and their +short career was distinguished by a general massacre of the +Jews.<a name="FNanchor_525_525" id="FNanchor_525_525"></a><a href="#Footnote_525_525" class="fnanchor">[c]</a></p> + +<p>But though the contagion of fanaticism spreads much more rapidly among the +populace, and in modern times is almost entirely confined to it, there +were examples, in the middle ages, of an epidemical religious lunacy, from +which no class was exempt. One of these occurred about the year 1260, when +a multitude of every rank, age, and sex, marching two by two in procession +along the streets and public roads, mingled groans and dolorous hymns with +the sound of leathern scourges which they exercised upon their naked +backs. From this mark of penitence, which, as it bears at least all the +appearance of sincerity, is not uncommon in the church of Rome, they +acquired the name of Flagellants. Their career began, it is said, at +Perugia, whence they spread over the rest of Italy, and into Germany and +Poland. As this spontaneous fanaticism met with no encouragement from the +church, and was prudently discountenanced by the civil magistrate, it died +away in a very short time.<a name="FNanchor_526_526" id="FNanchor_526_526"></a><a href="#Footnote_526_526" class="fnanchor">[d]</a> +But it is more surprising that, after +almost a century and a half of continual improvement and illumination, +another irruption of popular extravagance burst out under circumstances +<span class="pagenum"><a name="Page_298" id="Page_298">[Pg 298]</a></span> +exceedingly similar.<a name="FNanchor_527_527" id="FNanchor_527_527"></a><a href="#Footnote_527_527" class="fnanchor">[e]</a> +"In the month of August 1399," says a +contemporary historian, "there appeared all over Italy a description of +persons, called Bianchi, from the white linen vestment that they wore. +They passed from province to province, and from city to city, crying out +Misericordia! with their faces covered and bent towards the ground, and +bearing before them a great crucifix. Their constant song was Stabat Mater +dolorosa. This lasted three months; and whoever did not attend their +procession was reputed a heretic."<a name="FNanchor_528_528" id="FNanchor_528_528"></a><a href="#Footnote_528_528" class="fnanchor">[f]</a> +Almost every Italian writer of the +time takes notice of these Bianchi; and Muratori ascribes a remarkable +reformation of manners (though certainly a very transient one) to their +influence.<a name="FNanchor_529_529" id="FNanchor_529_529"></a><a href="#Footnote_529_529" class="fnanchor">[g]</a> +Nor were they confined to Italy, though no such +meritorious exertions are imputed to them in other countries. In France +their practice of covering the face gave such opportunity to crimes as to +be prohibited by the government;<a name="FNanchor_530_530" id="FNanchor_530_530"></a><a href="#Footnote_530_530" class="fnanchor">[h]</a> +and we have an act on the rolls of +the first parliament of Henry IV., forbidding any one, "under pain of +forfeiting all his worth, to receive the new sect in white clothes, +pretending to great sanctity," which had recently appeared in foreign +parts.<a name="FNanchor_531_531" id="FNanchor_531_531"></a><a href="#Footnote_531_531" class="fnanchor">[i]</a></p> + +<div class="sidenote">Pretended miracles.</div> + +<p>The devotion of the multitude was wrought to this feverish height by the +prevailing system of the clergy. In that singular polytheism, which had +been grafted on Christianity, nothing was so conspicuous as the belief of +perpetual miracles—if indeed those could properly be termed miracles +which, by their constant recurrence, even upon trifling occasions, might +seem within the ordinary dispensations of Providence. These superstitions +arose in what are called primitive times, and are certainly no part of +popery, if in that word we include any especial reference to the Roman +see. But successive ages of ignorance swelled the delusion +<span class="pagenum"><a name="Page_299" id="Page_299">[Pg 299]</a></span> +to such an enormous pitch, that it was as difficult to trace, we may say without +exaggeration, the real religion of the Gospel in the popular belief of the +laity, as the real history of Charlemagne in the romance of Turpin. It +must not be supposed that these absurdities were produced, as well as +nourished, by ignorance. In most cases they were the work of deliberate +imposture. Every cathedral or monastery had its tutelar saint, and every +saint his legend, fabricated in order to enrich the churches under his +protection, by exaggerating his virtues, his miracles, and consequently +his power of serving those who paid liberally for his +patronage.<a name="FNanchor_532_532" id="FNanchor_532_532"></a><a href="#Footnote_532_532" class="fnanchor">[k]</a> Many +of those saints were imaginary persons; sometimes a blundered inscription +added a name to the calendar, and sometimes, it is said, a heathen god was +surprised at the company to which he was introduced, and the rites with +which he was honoured.<a name="FNanchor_533_533" id="FNanchor_533_533"></a><a href="#Footnote_533_533" class="fnanchor">[m]</a></p> + +<div class="sidenote">Mischiefs arising from this superstition.</div> + +<p>It would not be consonant to the nature of the present work to dwell upon +the erroneousness of this religion; but its effect upon the moral and +intellectual character of mankind was so prominent, that no one can take a +philosophical view of the middle ages without attending more than is at +present fashionable to their ecclesiastical history. That the exclusive +worship of saints, under the guidance of an artful though illiterate +priesthood, degraded the understanding and begot a stupid credulity and +fanaticism, is sufficiently evident. But it was also so managed as to +loosen the bonds of religion and pervert the standard of morality. If +these inhabitants of heaven had been represented as stern avengers, +accepting no slight atonement for heavy offences, and prompt to interpose +their control over natural events for the detection and punishment of +guilt, the creed, however impossible to be reconciled with experience, +might have proved a salutary check upon a rude people, and would at least +have had the only palliation that can be offered for a religious +imposture, its political expediency. In the legends of those times, on +<span class="pagenum"><a name="Page_300" id="Page_300">[Pg 300]</a></span> +the contrary, they appeared only as perpetual intercessors, so +good-natured and so powerful, that a sinner was more emphatically foolish +than he is usually represented if he failed to secure himself against any +bad consequences. For a little attention to the saints, and especially to +the Virgin, with due liberality to their servants, had saved, he would be +told, so many of the most atrocious delinquents, that he might equitably +presume upon similar luck in his own case.</p> + +<p>This monstrous superstition grew to its height in the twelfth century. For +the advance that learning then made was by no means sufficient to +counteract the vast increase of monasteries, and the opportunities which +the greater cultivation of modern languages afforded for the diffusion of +legendary tales. It was now, too, that the veneration paid to the Virgin, +in early times very great, rose to an almost exclusive idolatry. It is +difficult to conceive the stupid absurdity and the disgusting profaneness +of those stories which were invented by the monks to do her honour. A few +examples have been thrown into a +note.<a name="FNanchor_534_534" id="FNanchor_534_534"></a><a href="#Footnote_534_534" class="fnanchor">[n]</a></p> + +<div class="sidenote">Not altogether unmixed with good.</div> + +<p><span class="pagenum"><a name="Page_301" id="Page_301">[Pg 301]</a></span> +Whether the superstition of these dark ages had actually passed that point +when it becomes more injurious to public morals and the welfare of society +than the entire absence of all religious notions is a very complex +question, upon which I would by no means pronounce an affirmative +decision.<a name="FNanchor_535_535" id="FNanchor_535_535"></a><a href="#Footnote_535_535" class="fnanchor">[o]</a> +A salutary influence, breathed from the spirit of a more +genuine religion, often displayed itself among the corruptions of a +degenerate superstition. In the original principles of monastic orders, +and the rules by which they ought at least to have been governed, there +was a character of meekness, self-denial, and charity that +<span class="pagenum"><a name="Page_302" id="Page_302">[Pg 302]</a></span> could not +wholly be effaced. These virtues, rather than justice and veracity, were +inculcated by the religious ethics of the middle ages; and in the relief +of indigence it may, upon the whole, be asserted that the monks did not +fall short of their profession.<a name="FNanchor_536_536" id="FNanchor_536_536"></a><a href="#Footnote_536_536" class="fnanchor">[p]</a> +This eleemosynary spirit indeed +remarkably distinguishes both Christianity and Mohammedism from the moral +systems of Greece and Rome, which were very deficient in general humanity +and sympathy with suffering. Nor do we find in any single instance during +ancient times, if I mistake not, those public institutions for the +alleviation of human miseries which have long been scattered over every +part of Europe. The virtues of the monks assumed a still higher character +when they stood forward as protectors of the oppressed. By an established +law, founded on very ancient superstition, the precincts of a church +afforded sanctuary to accused persons. Under a due administration of +justice this privilege would have been simply and constantly mischievous, +as we properly consider it to be in those countries where it still +subsists. But in the rapine and tumult of the middle ages the right of +sanctuary might as often be a shield to innocence as an immunity to crime. +We can hardly regret, in reflecting on the desolating violence which +prevailed, that there should have been some green spots in the wilderness +where the feeble and the persecuted could find refuge. How must this right +have enhanced the veneration for religious institutions! How gladly must +the victims of internal warfare have turned their eyes from the baronial +castle, the dread and scourge of the neighbourhood, to those venerable +walls within which not even the clamour of arms could be heard to disturb +the chant of holy men and the sacred service of the altar! The protection of +<span class="pagenum"><a name="Page_303" id="Page_303">[Pg 303]</a></span> +the sanctuary was never withheld. A son of Chilperic king of France +having fled to that of Tours, his father threatened to ravage all the +lands of the church unless they gave him up. Gregory the historian, bishop +of the city, replied in the name of his clergy that Christians could not +be guilty of an act unheard of among pagans. The king was as good as his +word, and did not spare the estate of the church, but dared not infringe +its privileges. He had indeed previously addressed a letter to St. Martin, +which was laid on his tomb in the church, requesting permission to take +away his son by force; but the honest saint returned no +answer.<a name="FNanchor_537_537" id="FNanchor_537_537"></a><a href="#Footnote_537_537" class="fnanchor">[q]</a></p> + +<div class="sidenote">Vices of the monks and clergy.</div> + +<p>The virtues indeed, or supposed virtues, which had induced a credulous +generation to enrich so many of the monastic orders, were not long +preserved. We must reject, in the excess of our candour, all testimonies +that the middle ages present, from the solemn declaration of councils and +reports of judicial inquiry to the casual evidence of common fame in the +ballad or romance, if we would extenuate the general corruption of those +institutions. In vain new rules of discipline were devised, or the old +corrected by reforms. Many of their worst vices grew so naturally out of +their mode of life, that a stricter discipline could have no tendency to +extirpate them. Such were the frauds I have already noticed, and the whole +scheme of hypocritical austerities. Their extreme licentiousness was +sometimes hardly concealed by the cowl of sanctity. I know not by what +right we should disbelieve the reports of the visitation under Henry +VIII., entering as they do into a multitude of specific charges both +probable in their nature and consonant to the unanimous opinion of the +world.<a name="FNanchor_538_538" id="FNanchor_538_538"></a><a href="#Footnote_538_538" class="fnanchor">[r]</a> +Doubtless there were many communities, as well as individuals, +to whom none of these reproaches +<span class="pagenum"><a name="Page_304" id="Page_304">[Pg 304]</a></span> +would apply. In the very best view, +however, that can be taken of monasteries, their existence is deeply +injurious to the general morals of a nation. They withdraw men of pure +conduct and conscientious principles from the exercise of social duties, +and leave the common mass of human vice more unmixed. Such men are always +inclined to form schemes of ascetic perfection, which can only be +fulfilled in retirement; but in the strict rules of monastic life, and +under the influence of a grovelling superstition, their virtue lost all +its usefulness. They fell implicitly into the snares of crafty priests, +who made submission to the church not only the condition but the measure +of all praise. "He is a good Christian," says Eligius, a saint of the +seventh century, "who comes frequently to church; who presents an oblation +that it may be offered to God on the altar; who does not taste the fruits +of his land till he has consecrated a part of them to God; who can repeat +the Creed or the Lord's Prayer. Redeem your souls from punishment while it +is in your power; offer presents and tithes to churches, light candles in +holy places, as much as you can afford, come more frequently to church, +implore the protection of the saints; for, if you observe these things, +you may come with security at the day of judgment to say, Give unto us, +Lord, for we have given unto thee."<a name="FNanchor_539_539" id="FNanchor_539_539"></a><a href="#Footnote_539_539" class="fnanchor">[s]</a></p> + +<p><span class="pagenum"><a name="Page_305" id="Page_305">[Pg 305]</a></span> +With such a definition of the Christian character, it is not surprising +that any fraud and injustice became honourable when it contributed to the +riches of the clergy and glory of their order. Their frauds, however, were +less atrocious than the savage bigotry with which they maintained their +own system and infected the laity. In Saxony, Poland, Lithuania, and the +countries on the Baltic Sea, a sanguinary persecution extirpated the +original idolatry. The Jews were everywhere the objects of popular insult +and oppression, frequently of a general massacre, though protected, it +must be confessed, by the laws of the church, as well as in general by +temporal princes.<a name="FNanchor_540_540" id="FNanchor_540_540"></a><a href="#Footnote_540_540" class="fnanchor">[t]</a> +Of the crusades it is only necessary to repeat that +they began in a tremendous eruption of fanaticism, and ceased only because +that spirit could not be constantly kept alive. A similar influence +produced the devastation of Languedoc, the stakes and scaffolds of the +Inquisition, and rooted in the religious theory of Europe those maxims of +intolerance which it has so slowly, and still perhaps so imperfectly, +renounced.</p> + +<p>From no other cause are the dictates of sound reason and the moral sense +of mankind more confused than by this narrow theological bigotry. For as +it must often happen that men to whom the arrogance of a prevailing +faction imputes religious error are exemplary for their performance of +moral duties, these virtues gradually cease to make their proper +impression, and are depreciated by the rigidly orthodox as of little value +in comparison with just opinions in speculative points. On the other hand, +vices are forgiven to those who are zealous in the faith. I speak too +gently, and with a view to later times; in treating of the dark ages it +would be more correct to say that crimes were commended. Thus Gregory of +Tours, a saint of the church, after relating a most atrocious story +<span class="pagenum"><a name="Page_306" id="Page_306">[Pg 306]</a></span> of +Clovis—the murder of a prince whom he had previously instigated to +parricide—continues the sentence: "For God daily subdued his enemies to +his hand, and increased his kingdom; because he walked before him in +uprightness, and did what was pleasing in his +eyes."<a name="FNanchor_541_541" id="FNanchor_541_541"></a><a href="#Footnote_541_541" class="fnanchor">[u]</a></p> + +<div class="sidenote">Commutation of penances.</div> + +<p>It is a frequent complaint of ecclesiastical writers that the rigorous +penances imposed by the primitive canons upon delinquents were commuted in +a laxer state of discipline for less severe atonements, and ultimately +indeed for money.<a name="FNanchor_542_542" id="FNanchor_542_542"></a><a href="#Footnote_542_542" class="fnanchor">[x]</a> +We must not, however, regret that the clergy should +have lost the power of compelling men to abstain fifteen years from eating +meat, or to stand exposed to public derision at the gates of a church. +Such implicit submissiveness could only have produced superstition and +hypocrisy among the laity, and prepared the road for a tyranny not less +oppressive than that of India or ancient Egypt. Indeed the two earliest +instances of ecclesiastical interference with the rights of +sovereigns—namely, the deposition of Wamba in Spain and that of Louis the +Debonair—were founded upon this austere system of penitence. But it is +true that a repentance redeemed by money or performed by a substitute +could have no salutary effect on the sinner; and some of the modes of +atonement which the church most approved were particularly hostile to +public morals. None was so usual as pilgrimage, whether to Jerusalem or +Rome, which were the great objects of devotion; or to the shrine of some +national saint—a James of Compostella, a David, or a Thomas à Becket. +This licensed vagrancy was naturally +<span class="pagenum"><a name="Page_307" id="Page_307">[Pg 307]</a></span> productive of dissoluteness, +especially among the women. Our English ladies, in their zeal to obtain +the spiritual treasures of Rome, are said to have relaxed the necessary +caution about one that was in their own +custody.<a name="FNanchor_543_543" id="FNanchor_543_543"></a><a href="#Footnote_543_543" class="fnanchor">[y]</a> There is a +capitulary of Charlemagne directed against itinerant penitents, who +probably considered the iron chain around their necks an expiation of +future as well as past +offences.<a name="FNanchor_544_544" id="FNanchor_544_544"></a><a href="#Footnote_544_544" class="fnanchor">[z]</a></p> + +<p>The crusades may be considered as martial pilgrimages on an enormous +scale, and their influence upon general morality seems to have been +altogether pernicious. Those who served under the cross would not indeed +have lived very virtuously at home; but the confidence in their own +merits, which the principle of such expeditions inspired, must have +aggravated the ferocity and dissoluteness of their ancient habits. Several +historians attest the depravation of morals which existed both among the +crusaders and in the states formed out of their +conquests.<a name="FNanchor_545_545" id="FNanchor_545_545"></a><a href="#Footnote_545_545" class="fnanchor">[a]</a></p> + +<div class="sidenote">Want of law.</div> + +<p>While religion had thus lost almost every quality that renders it +conducive to the good order of society, the control of human law was still +less efficacious. But this part of my subject has been anticipated in +other passages of the present work; and I shall only glance at the want of +regular subordination, which rendered legislative and judicial edicts a +dead letter, and at the incessant private warfare, rendered legitimate by +the usages of most continental nations. Such hostilities, conducted as +they must usually have been with injustice and cruelty, could not fail to +produce a degree of rapacious ferocity in the general disposition of a +people. And this certainly was among the characteristics of every nation +for many centuries.</p> + +<div class="sidenote">Degradation of morals.</div> + +<p>It is easy to infer the degradation of society during the dark ages from +the state of religion and police. Certainly there are a few great +landmarks of moral distinctions so deeply fixed in human nature, that no +degree of rudeness can destroy, nor even any superstition +<span class="pagenum"><a name="Page_308" id="Page_308">[Pg 308]</a></span> +remove them. Wherever an extreme corruption has in any particular society defaced these +sacred archetypes that are given to guide and correct the sentiments of +mankind, it is in the course of Providence that the society itself should +perish by internal discord or the sword of a conqueror. In the worst ages +of Europe there must have existed the seeds of social virtues, of +fidelity, gratitude, and disinterestedness, sufficient at least to +preserve the public approbation of more elevated principles than the +public conduct displayed. Without these imperishable elements there could +have been no restoration of the moral energies; nothing upon which +reformed faith, revived knowledge, renewed law, could exercise their +nourishing influences. But history, which reflects only the more prominent +features of society, cannot exhibit the virtues that were scarcely able to +struggle through the general depravation. I am aware that a tone of +exaggerated declamation is at all times usual with those who lament the +vices of their own time; and writers of the middle ages are in abundant +need of allowance on this score. Nor is it reasonable to found any +inferences as to the general condition of society on single instances of +crimes, however atrocious, especially when committed under the influence +of violent passion. Such enormities are the fruit of every age, and none +is to be measured by them. They make, however, a strong impression at the +moment, and thus find a place in contemporary annals, from which modern +writers are commonly glad to extract whatever may seem to throw light upon +manners. I shall, therefore, abstain from producing any particular cases +of dissoluteness or cruelty from the records of the middle ages, lest I +should weaken a general proposition by offering an imperfect induction to +support it, and shall content myself with observing that times to which +men sometimes appeal, as to a golden period, were far inferior in every +moral comparison to those in which we are +thrown.<a name="FNanchor_546_546" id="FNanchor_546_546"></a><a href="#Footnote_546_546" class="fnanchor">[b]</a> +One crime, as more +<span class="pagenum"><a name="Page_309" id="Page_309">[Pg 309]</a></span> +universal and characteristic than others, may be particularly noticed. All +writers agree in the prevalence of judicial perjury. It seems to have +almost invariably escaped human punishment; and the barriers of +superstition were in this, as in every other instance, too feeble to +prevent the commission of crimes. Many of the proofs by ordeal were +applied to witnesses as well as those whom they accused; and undoubtedly +trial by combat was preserved in a considerable degree on account of the +difficulty experienced in securing a just cause against the perjury of +witnesses. Robert king of France, perceiving how frequently men forswore +themselves upon the relics of saints, and less shocked apparently at the +crime than at the sacrilege, caused an empty reliquary of crystal to be +used, that those who touched it might incur less guilt in fact, though not +in intention. Such an anecdote characterizes both the man and the +times.<a name="FNanchor_547_547" id="FNanchor_547_547"></a><a href="#Footnote_547_547" class="fnanchor">[c]</a></p> + +<div class="sidenote">Love of field sports.</div> + +<p>The favourite diversions of the middle ages, in the intervals of war, were +those of hunting and hawking. The former must in all countries be a source +of pleasure; but it seems to have been enjoyed in moderation by the Greeks +and the Romans. With the northern invaders, however, it was rather a +predominant appetite than an amusement; it was their pride and their +ornament, the theme of their songs, the object of their laws, and the +business of their lives. Falconry, unknown as a diversion to the ancients, +became from the fourth century an equally delightful +occupation.<a name="FNanchor_548_548" id="FNanchor_548_548"></a><a href="#Footnote_548_548" class="fnanchor">[d]</a> From +the Salic and other barbarous codes of the fifth century to the close of +the period under our review, every age would furnish testimony to the +ruling passion for these two species of chace, or, as they were sometimes called, +<span class="pagenum"><a name="Page_310" id="Page_310">[Pg 310]</a></span> +the mysteries of woods and rivers. A knight seldom stirred from +his house without a falcon on his wrist or a greyhound that followed him. +Thus are Harold and his attendants represented, in the famous tapestry of +Bayeux. And in the monuments of those who died anywhere but on the field +of battle, it is usual to find the greyhound lying at their feet, or the +bird upon their wrists. Nor are the tombs of ladies without their falcon; +for this diversion, being of less danger and fatigue than the chace, was +shared by the delicate sex.<a name="FNanchor_549_549" id="FNanchor_549_549"></a><a href="#Footnote_549_549" class="fnanchor">[e]</a></p> + +<p>It was impossible to repress the eagerness with which the clergy, +especially after the barbarians were tempted by rich bishoprics to take +upon them the sacred functions, rushed into these secular amusements. +Prohibitions of councils, however frequently repeated, produced little +effect. In some instances a particular monastery obtained a dispensation. +Thus that of St. Denis, in 774, represented to Charlemagne that the flesh +of hunted animals was salutary for sick monks, and that their skins would +serve to bind the books in the +library.<a name="FNanchor_550_550" id="FNanchor_550_550"></a><a href="#Footnote_550_550" class="fnanchor">[f]</a> +Reasons equally cogent, we +may presume, could not be wanting in every other case. As the bishops and +abbots were perfectly feudal lords, and often did not scruple to lead +their vassals into the field, it was not to be expected that they should +debar themselves of an innocent pastime. It was hardly such indeed, when +practised at the expense of others. Alexander III., by a letter to the +clergy of Berkshire, dispenses with their keeping the archdeacon in dogs +and hawks during his +visitation.<a name="FNanchor_551_551" id="FNanchor_551_551"></a><a href="#Footnote_551_551" class="fnanchor">[g]</a> +This season gave jovial +ecclesiastics an opportunity of trying different countries. An archbishop +of York, in 1321, seems to have carried a train of two hundred persons, +who were maintained at the expense of the abbeys on his road, and to have +hunted with a pack of hounds from parish to +parish.<a name="FNanchor_552_552" id="FNanchor_552_552"></a><a href="#Footnote_552_552" class="fnanchor">[h]</a> +The third council +of Lateran, in 1180, had prohibited this amusement on such journeys, and +restricted bishops to a train of forty or fifty +horses.<a name="FNanchor_553_553" id="FNanchor_553_553"></a><a href="#Footnote_553_553" class="fnanchor">[i]</a></p> + +<p>Though hunting had ceased to be a necessary means of procuring food, it +was a very convenient resource, on +<span class="pagenum"><a name="Page_311" id="Page_311">[Pg 311]</a></span> +which the wholesomeness and comfort, +as well as the luxury, of the table depended. Before the natural pastures +were improved, and new kinds of fodder for cattle discovered, it was +impossible to maintain the summer stock during the cold season. Hence a +portion of it was regularly slaughtered and salted for winter provision. +We may suppose that, when no alternative was offered but these salted +meats, even the leanest venison was devoured with relish. There was +somewhat more excuse therefore for the severity with which the lords of +forests and manors preserved the beasts of chace than if they had been +considered as merely objects of sport. The laws relating to preservation +of game were in every country uncommonly rigorous. They formed in England +that odious system of forest laws which distinguished the tyranny of our +Norman kings. Capital punishment for killing a stag or wild boar was +frequent, and perhaps warranted by law, until the charter of +John.<a name="FNanchor_554_554" id="FNanchor_554_554"></a><a href="#Footnote_554_554" class="fnanchor">[k]</a> +The French code was less severe, but even Henry IV. enacted the pain of +death against the repeated offence of chasing deer in the royal forests. +The privilege of hunting was reserved to the nobility till the reign of +Louis IX., who extended it in some degree to persons of lower +birth.<a name="FNanchor_555_555" id="FNanchor_555_555"></a><a href="#Footnote_555_555" class="fnanchor">[m]</a></p> + +<p>This excessive passion for the sports of the field produced those evils +which are apt to result from it—a strenuous idleness which disdained all +useful occupations, and an oppressive spirit towards the peasantry. The +devastation committed under the pretence of destroying wild animals, which +had been already protected in their depredations, is noticed in serious +authors, and has also been the topic of popular +ballads.<a name="FNanchor_556_556" id="FNanchor_556_556"></a><a href="#Footnote_556_556" class="fnanchor">[n]</a> +What effect this +<span class="pagenum"><a name="Page_312" id="Page_312">[Pg 312]</a></span> +must have had on agriculture it is easy to conjecture. The levelling +of forests, the draining of morasses, and the extirpation of mischievous +animals which inhabit them, are the first objects of man's labour in +reclaiming the earth to his use; and these were forbidden by a landed +aristocracy, whose control over the progress of agricultural improvement +was unlimited, and who had not yet learned to sacrifice their pleasures to +their avarice.</p> + +<div class="sidenote">Bad state of agriculture;</div> + +<p>These habits of the rich, and the miserable servitude of those who +cultivated the land, rendered its fertility unavailing. Predial servitude +indeed, in some of its modifications, has always been the great bar to +improvement. In the agricultural economy of Rome the labouring husbandman, +a menial slave of some wealthy senator, had not even that qualified +interest in the soil which the tenure of villenage afforded to the peasant +of feudal ages. Italy, therefore, a country presenting many natural +impediments, was but imperfectly reduced into cultivation before the +irruption of the barbarians.<a name="FNanchor_557_557" id="FNanchor_557_557"></a><a href="#Footnote_557_557" class="fnanchor">[o]</a> +That revolution destroyed agriculture +with every other art, and succeeding calamities during five or six +centuries left the finest regions of Europe unfruitful and desolate. There +are but two possible modes in which the produce of the earth can be +increased; one by rendering fresh land serviceable, the other by improving +the fertility of that which is already cultivated. The last is only +attainable by the application of capital and of skill to agriculture, +neither of which could be expected in the ruder ages of society. The +former is, to a certain extent, always practicable while waste lands +remain; but it was checked by laws hostile to improvement, such as the +manerial and commonable rights in England, and by the general tone of +manners.</p> + +<p>Till the reign of Charlemagne there were no towns in Germany, except a few +that had been erected on the Rhine and Danube by the Romans. A house with +its stables and farm-buildings, surrounded by a hedge or enclosure, was +called a court, or, as we find it in our law-books, a curtilage; the toft +or homestead of a more genuine English dialect. One of these, with the adjacent +<span class="pagenum"><a name="Page_313" id="Page_313">[Pg 313]</a></span> +domain of arable fields and woods, had the name of a villa or +manse. Several manses composed a march; and several marches formed a pagus +or district.<a name="FNanchor_558_558" id="FNanchor_558_558"></a><a href="#Footnote_558_558" class="fnanchor">[p]</a> +From these elements in the progress of population arose +villages and towns. In France undoubtedly there were always cities of some +importance. Country parishes contained several manses or farms of arable +land, around a common pasture, where every one was bound by custom to feed +his cattle.<a name="FNanchor_559_559" id="FNanchor_559_559"></a><a href="#Footnote_559_559" class="fnanchor">[q]</a></p> + +<div class="sidenote">of internal trade;</div> + +<p>The condition even of internal trade was hardly preferable to that of +agriculture. There is not a vestige perhaps to be discovered for several +centuries of any considerable manufacture; I mean, of working up articles +of common utility to an extent beyond what the necessities of an adjacent +district required.<a name="FNanchor_560_560" id="FNanchor_560_560"></a><a href="#Footnote_560_560" class="fnanchor">[r]</a> +Rich men kept domestic artisans among their +servants; even kings, in the ninth century, had their clothes made by the +women upon their farms;<a name="FNanchor_561_561" id="FNanchor_561_561"></a><a href="#Footnote_561_561" class="fnanchor">[s]</a> +but the peasantry must have been supplied +with garments and implements of labour by purchase; and every town, it +cannot be doubted, had its weaver, its smith, and its currier. But there +were almost insuperable impediments to any extended traffic—the +insecurity of moveable wealth, and difficulty of accumulating it; the +ignorance of mutual wants; the peril of robbery in conveying merchandise, +and the certainty of extortion. In the domains of every lord a toll was to +be paid in passing his bridge, or along his highway, or at his +market.<a name="FNanchor_562_562" id="FNanchor_562_562"></a><a href="#Footnote_562_562" class="fnanchor">[t]</a> +<span class="pagenum"><a name="Page_314" id="Page_314">[Pg 314]</a></span> +These customs, equitable and necessary in their principle, +became in practice oppressive, because they were arbitrary, and renewed in +every petty territory which the road might intersect. Several of +Charlemagne's capitularies repeat complaints of these exactions, and +endeavour to abolish such tolls as were not founded on +prescription.<a name="FNanchor_563_563" id="FNanchor_563_563"></a><a href="#Footnote_563_563" class="fnanchor">[u]</a> +One of them rather amusingly illustrates the modesty and moderation of the +landholders. It is enacted that no one shall be compelled to go out of his +way in order to pay toll at a particular bridge, when he can cross the +river more conveniently at another +place.<a name="FNanchor_564_564" id="FNanchor_564_564"></a><a href="#Footnote_564_564" class="fnanchor">[x]</a> +These provisions, like most +others of that age, were unlikely to produce much amendment. It was only +the milder species, however, of feudal lords who were content with the +tribute of merchants. The more ravenous descended from their fortresses to +pillage the wealthy traveller, or shared in the spoil of inferior +plunderers, whom they both protected and instigated. Proofs occur, even in +the later periods of the middle ages, when government had regained its +energy, and civilization had made considerable progress, of public +robberies systematically perpetrated by men of noble rank. In the more +savage times, before the twelfth century, they were probably too frequent +to excite much attention. It was a custom in some places to waylay +travellers, and not only to plunder, but to sell them as slaves, or compel +them to pay a ransom. Harold son of Godwin, having been wrecked on the +coast of Ponthieu, was imprisoned by the lord, says an historian, +according to the custom of that +territory.<a name="FNanchor_565_565" id="FNanchor_565_565"></a><a href="#Footnote_565_565" class="fnanchor">[y]</a> +Germany appears to have been, upon the whole, the country where downright robbery was most +unscrupulously practised by the great. Their castles, erected on almost +inaccessible heights among the woods, became the secure receptacles of +predatory bands, who spread terror over the country. From these barbarian +lords of the dark ages, as from a living model, the romances are said to +have drawn their giants and other disloyal enemies of true chivalry. +<span class="pagenum"><a name="Page_315" id="Page_315">[Pg 315]</a></span> +Robbery, indeed, is the constant theme both of the Capitularies and of the +Anglo-Saxon laws; one has more reason to wonder at the intrepid thirst of +lucre, which induced a very few merchants to exchange the products of +different regions, than to ask why no general spirit of commercial +activity prevailed.</p> + +<div class="sidenote">and of foreign commerce.</div> + +<p>Under all these circumstances it is obvious that very little oriental +commerce could have existed in these western countries of Europe. +Destitute as they have been created, speaking comparatively, of natural +productions fit for exportation, their invention and industry are the +great resources from which they can supply the demands of the East. Before +any manufactures were established in Europe, her commercial intercourse +with Egypt and Asia must of necessity have been very trifling; because, +whatever inclination she might feel to enjoy the luxuries of those genial +regions, she wanted the means of obtaining them. It is not therefore +necessary to rest the miserable condition of oriental commerce upon the +Saracen conquests, because the poverty of Europe is an adequate cause; +and, in fact, what little traffic remained was carried on with no material +inconvenience through the channel of Constantinople. Venice took the lead +in trading with Greece and more eastern +countries.<a name="FNanchor_566_566" id="FNanchor_566_566"></a><a href="#Footnote_566_566" class="fnanchor">[z]</a> +Amalfi had the second place in the commerce of those dark ages. These cities imported, +besides natural productions, the fine clothes of Constantinople; yet as +this traffic seems to have been illicit, it was not probably +extensive.<a name="FNanchor_567_567" id="FNanchor_567_567"></a><a href="#Footnote_567_567" class="fnanchor">[a]</a> +Their exports were gold and silver, by which, as none was +likely to return, the circulating money of Europe was probably less in the +eleventh century than at the subversion +<span class="pagenum"><a name="Page_316" id="Page_316">[Pg 316]</a></span> +of the Roman empire; furs, which +were obtained from the Sclavonian countries; and arms, the sale of which +to pagans or Saracens was vainly prohibited by Charlemagne and by the Holy +See.<a name="FNanchor_568_568" id="FNanchor_568_568"></a><a href="#Footnote_568_568" class="fnanchor">[b]</a> +A more scandalous traffic, and one that still more fitly called +for prohibitory laws, was carried on in slaves. It is an humiliating proof +of the degradation of Christendom, that the Venetians were reduced to +purchase the luxuries of Asia by supplying the slave-market of the +Saracens.<a name="FNanchor_569_569" id="FNanchor_569_569"></a><a href="#Footnote_569_569" class="fnanchor">[c]</a> +Their apology would perhaps have been, that these were +purchased from their heathen neighbours; but a slave-dealer was probably +not very inquisitive as to the faith or origin of his victim. This trade +was not peculiar to Venice. In England it was very common, even after the +Conquest, to export slaves to Ireland, till, in the reign of Henry II., +the Irish came to a non-importation agreement, which put a stop to the +practice.<a name="FNanchor_570_570" id="FNanchor_570_570"></a><a href="#Footnote_570_570" class="fnanchor">[d]</a></p> + +<p>From this state of degradation and poverty all the countries of Europe +have recovered, with a progression in some respects tolerably uniform, in +others more unequal; and the course of their improvement, more gradual and +less dependent upon conspicuous civil revolutions than their decline, +affords one of the most interesting subjects into which a philosophical +mind can inquire. The commencement of this restoration has usually been +dated from about the close of the eleventh century; though it is +unnecessary to observe that the +<span class="pagenum"><a name="Page_317" id="Page_317">[Pg 317]</a></span> +subject does not admit of anything +approximating to chronological accuracy. It may, therefore, be sometimes +not improper to distinguish the first six of the ten centuries which the +present work embraces under the appellation of the <i>dark</i> ages; an epithet +which I do not extend to the twelfth and three following. In tracing the +decline of society from the subversion of the Roman empire, we have been +led, not without connexion, from ignorance to superstition, from +superstition to vice and lawlessness, and from thence to general rudeness +and poverty. I shall pursue an inverted order in passing along the +ascending scale, and class the various improvements which took place +between the twelfth and fifteenth centuries under three principal heads, +as they relate to the wealth, the manners, or the taste and learning of +Europe. Different arrangements might probably be suggested, equally +natural and convenient; but in the disposition of topics that have not +always an unbroken connexion with each other, no method can be prescribed +as absolutely more scientific than the rest. That which I have adopted +appears to me as philosophical and as little liable to transitions as any +other.</p> + +<div class="footnotes">FOOTNOTES: + +<div class="footnote"><p><a name="Footnote_479_479" id="Footnote_479_479"></a><a href="#FNanchor_479_479"><span class="label">[a]</span></a> The subject of the present chapter, so far as it relates to +the condition of literature 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 Fifteenth, Sixteenth, and +Seventeenth Centuries. Some things will be found in it more exactly +stated, others newly supplied from recent sources.</p></div> + +<div class="footnote"><p><a name="Footnote_480_480" id="Footnote_480_480"></a><a href="#FNanchor_480_480"><span class="label">[b]</span></a> The authors of Histoire Littéraire de la France, t. i., can +only find three writers of Gaul, no inconsiderable part of the Roman +Empire, mentioned upon any authority; two of whom are now lost. In the +preceding century the number was considerably greater.</p></div> + +<div class="footnote"><p><a name="Footnote_481_481" id="Footnote_481_481"></a><a href="#FNanchor_481_481"><span class="label">[c]</span></a> Mosheim, Cent. 4. Tiraboschi endeavours to elevate higher +the learning of the early Christians, t. ii. p. 328. Jortin, however, +asserts that many of the bishops in the general councils of Ephesus and +Chalcedon could not write their names. Remarks on Ecclesiast. Hist. vol. +ii. p. 417.</p></div> + +<div class="footnote"><p><a name="Footnote_482_482" id="Footnote_482_482"></a><a href="#FNanchor_482_482"><span class="label">[d]</span></a> Gibbon roundly asserts that "the language of Virgil and +Cicero, though with some inevitable mixture of corruption, was so +universally adopted in Africa, Spain, Gaul, Great Britain, and Pannonia, +that the faint traces of the Punic or Celtic idioms were preserved only in +the mountains or among the peasants." Decline and Fall, vol. i. p. 60 +(8vo. edit.). For Britain he quotes Tacitus's Life of Agricola as his +voucher. But the only passage in this work that gives the least colour to +Gibbon's assertion is one in which Agricola is said to have encouraged the +children of British chieftains to acquire a taste for liberal studies, and +to have succeeded so much by judicious commendation of their abilities, ut +qui modo linguam Romanam abnuebant, eloquentiam concupiscerent. (c. 21.) +This, it is sufficiently obvious, is very different from the national +adoption of Latin as a mother tongue.</p></div> + +<div class="footnote"><p><a name="Footnote_483_483" id="Footnote_483_483"></a><a href="#FNanchor_483_483"><span class="label">[e]</span></a> t. vii. preface.</p></div> + +<div class="footnote"><p><a name="Footnote_484_484" id="Footnote_484_484"></a><a href="#FNanchor_484_484"><span class="label">[f]</span></a> It appears, by a passage quoted from the digest by M. +Bonamy, Mém. de l'Acad. des Inscriptions, t. xxiv. p. 589, that Celtic was +spoken in Gaul, or at least parts of it, as well as Punic in Africa.</p></div> + +<div class="footnote"><p><a name="Footnote_485_485" id="Footnote_485_485"></a><a href="#FNanchor_485_485"><span class="label">[g]</span></a> Atque eadem illa litera, quoties ultima est, et vocalem +verbi sequentis ita contingit, ut in eam transire possit, etiam si +scribitur, tamen parum exprimitur, ut <i>Multum ille</i>, et <i>Quantum erat</i>: +adeo ut pene cujusdam novæ literæ sonum reddat. Neque enim eximitur, sed +obscuratur, et tantùm aliqua inter duos vocales velut nota est, ne ipsæ +coeant. Quintilian, Institut. 1. ix. c. 4, p. 585, edit. Capperonier.</p></div> + +<div class="footnote"><p><a name="Footnote_486_486" id="Footnote_486_486"></a><a href="#FNanchor_486_486"><span class="label">[h]</span></a> The following passage of Quintilian is an evidence both of +the omission of harsh or superfluous letters by the best speakers, and of +the corrupt abbreviations usual with the worst. Dilucida vero erit +pronunciatio primum, si verba tota exegerit, quorum pars devorari, pars +destitui solet, plerisque extremas syllabas non proferentibus, dum priorum +sono indulgent. Ut est autem necessaria verborum explanatio, ita omnes +computare et velut adnumerare literas, molestum et odiosum.—Nam et +vocales frequentissimè coeunt, et consonantium quædam insequente vocali +dissimulantur; utriusque exemplum posuimus; Multum ille et terris. Vitatur +etiam duriorum inter se congressus, unde <i>pellexit</i> et <i>collegit</i>, et quæ +alio loco dicta sunt. 1. ii. c. 3, p. 696.</p></div> + +<div class="footnote"><p><a name="Footnote_487_487" id="Footnote_487_487"></a><a href="#FNanchor_487_487"><span class="label">[i]</span></a> Tiraboschi (Storia dell. Lett. Ital. t. iii. preface, p. +v.) imputes this paradox to Bembo and Quadrio; but I can hardly believe +that either of them could maintain it in a literal sense.</p></div> + +<div class="footnote"><p><a name="Footnote_488_488" id="Footnote_488_488"></a><a href="#FNanchor_488_488"><span class="label">[k]</span></a> M. Bonamy, in an essay printed in Mém. de l'Académie des +Inscriptions, t. xxiv., has produced several proofs of this from the +classical writers on agriculture and other arts, though some of his +instances are not in point, as any schoolboy would have told him. This +essay, which by some accident had escaped my notice till I had nearly +finished the observations in my text, contains, I think, the best view +that I have seen of the process of transition by which Latin was changed +into French and Italian. Add however, the preface to Tiraboschi's third +volume and the thirty-second dissertation of Muratori.</p></div> + +<div class="footnote"><p><a name="Footnote_489_489" id="Footnote_489_489"></a><a href="#FNanchor_489_489"><span class="label">[m]</span></a> See Lanzi, Saggio della Lingua Etrusca, t. i. c. 431; Mém. +de l'Acad. des Inscrip. t. xxiv. p. 632.</p></div> + +<div class="footnote"><p><a name="Footnote_490_490" id="Footnote_490_490"></a><a href="#FNanchor_490_490"><span class="label">[n]</span></a> No description can give so adequate a notion of this +extraordinary performance as a short specimen. Take the introductory +lines; which really, prejudices of education apart, are by no means +inharmonious:— +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Præfatio nostra viam erranti demonstrat,<br /></span> +<span class="i0">Respectumque bonum, cum venerit sæculi meta,<br /></span> +<span class="i0">Æternum fieri, quod discredunt inscia corda.<br /></span> +<span class="i0">Ego similiter erravi tempore multo,<br /></span> +<span class="i0">Fana prosequendo, parentibus insciis ipsis.<br /></span> +<span class="i0">Abstuli me tandem inde, legendo de lege.<br /></span> +<span class="i0">Testificor Dominum, doleo, proh! civica turba<br /></span> +<span class="i0">Inscia quod perdit, pergens deos quærere vanos.<br /></span> +<span class="i0">Ob ea perdoctus ignoros instruo verum.<br /></span> +</div></div> +<p> +Commodianus however did not keep up this excellence in every part. Some of +his lines are not reducible to any pronunciation, without the summary +rules of Procrustes; as for instance:— +</p><p> +Paratus ad epulas, et refugiscere præcepta; or, Capillos inficitis, oculos +fuligine relinitis. +</p><p> +It must be owned that this text is exceedingly corrupt, and I should not +despair of seeing a truly critical editor, unscrupulous as his fraternity +are apt to be, improve his lines into unblemished hexameters. Till this +time arrives, however, we must consider him either as utterly ignorant of +metrical distinctions, or at least as aware that the populace whom he +addressed did not observe them in speaking. Commodianus is published by +Dawes at the end of his edition of Minucius Felix. Some specimens are +quoted in Harris's Philological Inquiries.</p></div> + +<div class="footnote"><p><a name="Footnote_491_491" id="Footnote_491_491"></a><a href="#FNanchor_491_491"><span class="label">[o]</span></a> Archæologia, vol. xiv. p. 188. The following are the first +lines:— +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Abundantia peccatorum solet fratres conturbare;<br /></span> +<span class="i0">Propter hoc Dominus noster voluit nos præmonere,<br /></span> +<span class="i0">Comparans regnum cœlorum reticulo misso in mare,<br /></span> +<span class="i0">Congreganti multos pisces, omne genus hinc et inde,<br /></span> +<span class="i0">Quos cum traxissent ad littus, tunc cœperunt separare,<br /></span> +<span class="i0">Bonos in vasa miserunt, reliquos malos in mare.<br /></span> +</div></div> +<p> +This trash is much below the level of Augustin; but it could not have been +later than his age.</p></div> + +<div class="footnote"><p><a name="Footnote_492_492" id="Footnote_492_492"></a><a href="#FNanchor_492_492"><span class="label">[p]</span></a> Recueil des Historiens, t. i. p. 814; it begins in the +following manner:— +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Præcelso expectabili bis Arbogasto comiti<br /></span> +<span class="i0">Auspicius, qui diligo, salutem dico plurimam.<br /></span> +<span class="i0">Magnas cœlesti Domino rependo corde gratias<br /></span> +<span class="i0">Quod te Tullensi proxime magnum in urbe vidimus.<br /></span> +<span class="i0">Multis me tuis artibus lætificabas antea,<br /></span> +<span class="i0">Sed nunc fecisti maximo me exultare gaudio.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_493_493" id="Footnote_493_493"></a><a href="#FNanchor_493_493"><span class="label">[q]</span></a> Chilpericus rex ... confecit duos libros, quorum versiculi +debiles nullis pedibus subsistere possunt: in quibus, dum non +intelligebat, pro longis syllabas breves posuit, et pro brevibus longas +statuebat. 1. vi. c. 46.</p></div> + +<div class="footnote"><p><a name="Footnote_494_494" id="Footnote_494_494"></a><a href="#FNanchor_494_494"><span class="label">[r]</span></a> Mém. de l'Académie des Inscriptions, t. xvii. Hist. +Littéraire de la France, t. ii. p. 28. It seems rather probable that the +poetry of Avitus belongs to the fifth century, though not very far from +its termination. 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.</p></div> + +<div class="footnote"><p><a name="Footnote_495_495" id="Footnote_495_495"></a><a href="#FNanchor_495_495"><span class="label">[s]</span></a> One stanza of this song will suffice to show that the Latin +language was yet unchanged:— +</p> +<div class="poem"><div class="stanza"> +<span class="i0">De Clotario est canere rege Francorum,<br /></span> +<span class="i0">Qui ivi pugnare cum gente Saxonum,<br /></span> +<span class="i0">Quam graviter provenisset missis Saxonum,<br /></span> +<span class="i0">Si non fuisset inclitus Faro de gente<br /></span> +<span class="i0">Burgundionum.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_496_496" id="Footnote_496_496"></a><a href="#FNanchor_496_496"><span class="label">[t]</span></a> Præcavendum est, ne ad aures populi minus aliquid +intelligibile proferatur. Mém. de l'Acad. t. xvii. p. 712.</p></div> + +<div class="footnote"><p><a name="Footnote_497_497" id="Footnote_497_497"></a><a href="#FNanchor_497_497"><span class="label">[u]</span></a> Rustico et plebeio sermone propter exemplum et imitationem. +Id. ibid.</p></div> + +<div class="footnote"><p><a name="Footnote_498_498" id="Footnote_498_498"></a><a href="#FNanchor_498_498"><span class="label">[x]</span></a> Hist. Littéraire de la France, t. iii. p. 5. Mém. de +l'Académie, t. xxiv. p. 617. Nouveau Traité de Diplomatique, t. iv. p. +485.</p></div> + +<div class="footnote"><p><a name="Footnote_499_499" id="Footnote_499_499"></a><a href="#FNanchor_499_499"><span class="label">[y]</span></a> Hist. Littéraire de la France, t. vii. p. 12. The editors +say that it is mentioned by name even in the seventh century, which is +very natural, as the corruption of Latin had then become striking. It is +familiarly known that illiterate persons <i>understand</i> a more correct +language than they use themselves; so that the corruption of Latin might +have gone to a considerable length among the people, while sermons were +preached, and tolerably comprehended, in a purer grammar.</p></div> + +<div class="footnote"><p><a name="Footnote_500_500" id="Footnote_500_500"></a><a href="#FNanchor_500_500"><span class="label">[z]</span></a> Mém. de l'Acad. des Insc. t. xvii. See two memoirs in this +volume by du Clos and le Bœuf, especially the latter, as well as that +already mentioned in t. xxiv. p. 582, by M. Bonamy.</p></div> + +<div class="footnote"><p><a name="Footnote_501_501" id="Footnote_501_501"></a><a href="#FNanchor_501_501"><span class="label">[a]</span></a> Muratori, Dissert. i. and xliii.</p></div> + +<div class="footnote"><p><a name="Footnote_502_502" id="Footnote_502_502"></a><a href="#FNanchor_502_502"><span class="label">[b]</span></a> +</p> +<blockquote><p>Usus Franciscâ, vulgari, et voce Latinâ.<br /> Instituit populos +eloquio tripici. </p></blockquote> +Fontanini dell'Eloquenza Italiana, p. 15. Muratori, Dissert. xxxii.</div> + +<div class="footnote"><p><a name="Footnote_503_503" id="Footnote_503_503"></a><a href="#FNanchor_503_503"><span class="label">[c]</span></a> Histoire Littéraire de la France, t. vi. p. 20. Muratori, +Dissert. xliii.</p></div> + +<div class="footnote"><p><a name="Footnote_504_504" id="Footnote_504_504"></a><a href="#FNanchor_504_504"><span class="label">[d]</span></a> Nouveau Traité de Diplomatique, t. ii. p. 419. This became, +the editors say, much less unusual about the end of the thirteenth +century; a pretty late period! A few signatures to deeds appear in the +fourteenth century; in the next they are more frequent. Ibid. The emperor +Frederic Barbarossa could not read (Struvius, Corpus Hist. German. t. i. +p. 377), nor John king of Bohemia in the middle of the fourteenth century +(Sismondi, t. v. p. 205), nor Philip the Hardy, king of France, although +the son of St. Louis. (Velly, t. vi. p. 426.)</p></div> + +<div class="footnote"><p><a name="Footnote_505_505" id="Footnote_505_505"></a><a href="#FNanchor_505_505"><span class="label">[e]</span></a> Louis IV., king of France, laughing at Fulk count of Anjou, +who sang anthems among the choristers of Tours, received the following +pithy epistle from his learned vassal: Noveritis, domines quod rex +illiteratus est asinus coronatus. Gesta Comitum Andegavensium. In the same +book, Geoffrey, father of our Henry II., is said to be optime literatus; +which perhaps imports little more learning than his ancestor Fulk +possessed.</p></div> + +<div class="footnote"><p><a name="Footnote_506_506" id="Footnote_506_506"></a><a href="#FNanchor_506_506"><span class="label">[f]</span></a> The passage in Eginhard, which has occasioned so much +dispute, speaks for itself: Tentabat et scribere, tabulasque et codicillos +ad hoc in lecticula sub cervicalibus circumferre solebat, ut, cum vacuum +tempus esset, manum effigiandis literis assuefaceret; sed parum prosperè +successit labor præposterus ac serò inchoatus. +</p><p> +Many are still unwilling to believe that Charlemagne could not write. M. +Ampère 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 VIII. claim a book against +Luther, which was not written by himself? <i>Qui facit per alium, facit per +se</i>, 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. Ampère 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. [1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_507_507" id="Footnote_507_507"></a><a href="#FNanchor_507_507"><span class="label">[g]</span></a> Spelman, Vit. Alfred. Append.</p></div> + +<div class="footnote"><p><a name="Footnote_508_508" id="Footnote_508_508"></a><a href="#FNanchor_508_508"><span class="label">[h]</span></a> Hist. Littéraire de la France, t. iii. p. 5.</p></div> + +<div class="footnote"><p><a name="Footnote_509_509" id="Footnote_509_509"></a><a href="#FNanchor_509_509"><span class="label">[i]</span></a> These four dark centuries, the eighth, ninth, tenth, and +eleventh, occupy five large quarto volumes of the Literary History of +France, by the fathers of St. Maur. But the most useful part will be found +in the general view at the commencement of each volume; the remainder is +taken up with biographies, into which a reader may dive at random, and +sometimes bring up a curious fact. I may refer also to the 14th volume of +Leber, Collections Relatives à l'Histoire de France, where some learned +dissertations by the Abbés Lebeuf and Goujet, a little before the middle +of the last century, are reprinted. [<a href="#N1_1"><span class="smcap">Note</span> I.</a>] +</p><p> +Tiraboschi, Storia della Letteratura, t. iii., and Muratori's forty-third +Dissertation, are good authorities for the condition of letters in Italy; +but I cannot easily give references to all the books which I have +consulted.</p></div> + +<div class="footnote"><p><a name="Footnote_510_510" id="Footnote_510_510"></a><a href="#FNanchor_510_510"><span class="label">[k]</span></a> Tiraboschi, t. iii. p. 198.</p></div> + +<div class="footnote"><p><a name="Footnote_511_511" id="Footnote_511_511"></a><a href="#FNanchor_511_511"><span class="label">[m]</span></a> Mabillon, De Re Diplomaticâ, p. 55. The reason alleged, +indeed, is that they were wholly occupied with studying Arabic, in order +to carry on a controversy with the Saracens. But, as this is not very +credible, we may rest with the main fact that they could write no Latin.</p></div> + +<div class="footnote"><p><a name="Footnote_512_512" id="Footnote_512_512"></a><a href="#FNanchor_512_512"><span class="label">[n]</span></a> Spelman, Vit. Alfred. Append. The whole drift of Alfred's +preface to this translation is to defend the expediency of rendering books +into English, on account of the general ignorance of Latin. The zeal which +this excellent prince shows for literature is delightful. Let us +endeavour, he says, that all the English youth, especially the children of +those who are free-born, and can educate them, may learn to read English +before they take to any employment. Afterwards such as please may be +instructed in Latin. Before the Danish invasion indeed, he tells us, +churches were well furnished with books; but the priests got little good +from them, being written in a foreign language which they could not +understand.</p></div> + +<div class="footnote"><p><a name="Footnote_513_513" id="Footnote_513_513"></a><a href="#FNanchor_513_513"><span class="label">[o]</span></a> Mabillon, De Re Diplomaticâ, p. 55. Ordericus Vitalis, a +more candid judge of our unfortunate ancestors than other contemporary +annalists, says that the English were, at the Conquest, rude and almost +illiterate, which he ascribes to the Danish invasion. Du Chesne, Hist. +Norm. Script. p. 518. However, Ingulfus tells us that the library of +Croyland contained above three hundred volumes, till the unfortunate fire +that destroyed that abbey in 1091. Gale, XV Scriptores, t. i. 93. Such a +library was very extraordinary in the eleventh century, and could not have +been equalled for some ages afterwards. Ingulfus mentions at the same time +a nadir, as he calls it, or planetarium, executed in various metals. This +had been presented to abbot Turketul in the tenth century by a king of +France, and was, I make no doubt, of Arabian or Greek manufacture.</p></div> + +<div class="footnote"><p><a name="Footnote_514_514" id="Footnote_514_514"></a><a href="#FNanchor_514_514"><span class="label">[p]</span></a> Parchment was so scarce that none could be procured about +1120 for an illuminated copy of the Bible. Warton's Hist. of English +Poetry, Dissert. II. I suppose the deficiency was of skins beautiful +enough for this purpose; it cannot be meant that there was no parchment +for legal instruments. +</p><p> +Manuscripts written on papyrus, as may be supposed from the fragility of +the material, as well as the difficulty of procuring it, are of extreme +rarity. That in the British Museum, being a charter to a church at Ravenna +in 572, is in every respect the most curious: and indeed both Mabillon and +Muratori seem never to have seen anything written on papyrus, though they +trace its occasional use down to the eleventh or twelfth centuries. +Mabillon, De Re Diplomaticâ, 1. ii.; Muratori, Antichità Italiane, +Dissert. xliii. p. 602. But the authors of the Nouveau Traité de +Diplomatique speak of several manuscripts on this material as extant in +France and Italy. t. i. p. 493. +</p><p> +As to the general scarcity and high price of books in the middle ages, +Robertson (Introduction to Hist. Charles V. note x.), and Warton in the +above-cited dissertation, not to quote authors less accessible, have +collected some of the leading facts; to whom I refer the reader.</p></div> + +<div class="footnote"><p><a name="Footnote_515_515" id="Footnote_515_515"></a><a href="#FNanchor_515_515"><span class="label">[q]</span></a> Lest I should seem to have spoken too peremptorily, I wish +it to be understood that I pretend to hardly any direct acquaintance with +these writers, and found my censure on the authority of others, chiefly +indeed on the admissions of those who are too disposed to fall into a +strain of panegyric. See Histoire Littéraire de la France, t. iv. p. 281 +et alibi.</p></div> + +<div class="footnote"><p><a name="Footnote_516_516" id="Footnote_516_516"></a><a href="#FNanchor_516_516"><span class="label">[r]</span></a> John Scotus, who, it is almost needless to say, must not be +confounded with the still more famous metaphysician Duns Scotus, lived +under Charles the Bald, in the middle of the ninth century. 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 disregarded. But it is another +question whether he can be reckoned an original writer; those who have +attended most to his treatise De Divisione Naturæ, 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 Naturæ; 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 +véritable importance historique, says Ampère, de Scot Erigène n'est donc +pas dans ses opinions; celles-ci n'ont d'autre intérêt que leur date et le +lieu où elles apparaissent. Sans doute, il est piquant et bizarre de voir +ces opinions orientales et alexandrines surgir au IX<sup>e</sup> siècle, à Paris, à +la cour de Charles le Chauve; mais ce qui n'est pas seulement piquant et +bizarre, ce qui intéresse le développement de l'esprit humain, c'est que +la question ait été posée, dès lors, si nettement entre l'autorité et la +raison, et si énergiquement résolue en faveur de la seconde. En un mot, +par ses idées, Scot Erigène est encore un philosophe de l'antiquité +Grecque; et par l'indépendance hautement accusée de son point de vue +philosophique, il est déjà un dévancier de la philosophie moderne. Hist. +Litt. iii. 146. +</p><p> +Silvester II. died in 1003. Whether he first brought the Arabic numeration +into Europe, as has been commonly said, seems uncertain; it was at least +not much practised for some centuries after his death.</p></div> + +<div class="footnote"><p><a name="Footnote_517_517" id="Footnote_517_517"></a><a href="#FNanchor_517_517"><span class="label">[s]</span></a> 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 supposition 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. +</p><p> +"We possess a catalogue," says M. Ampère (quoting d'Achery's Spicilegium, +ii. 310), "of the library in the abbey of St. Riquier, written in 831; it +consists of 256 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." Ampère, iii. 236. Can anything 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 somewhat better furnished than this; else the Latin authors +would have been still less known in the ninth century than they actually +were. +</p><p> +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. Fuit dux iste, says a +contemporary writer, a pueritia doctus literis, et satis notitiam +Scripturarum habuit; librorum copiam in palatio suo servavit; et si forte +a frequentia causarum et tumultu vacaret, lectioni per seipsum operam +dabat longioribus noctibus elucubrans in libris, donec somno vinceretur. +Rec. des Hist. x. 155.</p></div> + +<div class="footnote"><p><a name="Footnote_518_518" id="Footnote_518_518"></a><a href="#FNanchor_518_518"><span class="label">[t]</span></a> Robertson, Introduction to Hist. Charles V. note 13; +Schmidt, Hist. des Allemands, t. ii. p. 380; Hist. Littéraire de la +France, t. vi.</p></div> + +<div class="footnote"><p><a name="Footnote_519_519" id="Footnote_519_519"></a><a href="#FNanchor_519_519"><span class="label">[u]</span></a> Duelling, in the modern sense of the word, exclusive of +casual frays and single combat during war, was unknown before the +sixteenth century. But we find one anecdote which seems to illustrate its +derivation from the judicial combat. The dukes of Lancaster and Brunswick, +having some differences, agreed to decide them by duel before John king of +France. The lists were prepared with the solemnity of a real trial by +battle; but the king interfered to prevent the engagement. Villaret, t. +ix. p. 71. The barbarous practice of wearing swords as a part of domestic +dress, which tended very much to the frequency of duelling, was not +introduced till the latter part of the 15th century. I can only find one +print in Montfaucon's Monuments of the French monarchy where a sword is +worn without armour before the reign of Charles VIII.: though a few, as +early as the reign of Charles VI., have short daggers in their girdles. +The exception is a figure of Charles VII. t. iii. pl. 47.</p></div> + +<div class="footnote"><p><a name="Footnote_520_520" id="Footnote_520_520"></a><a href="#FNanchor_520_520"><span class="label">[x]</span></a> Baluzii Capitularia, p. 444. It was prohibited by Louis the +Debonair; a man, as I have noticed in another place, not inferior, as a +legislator, to his father. Ibid. p. 668. "The spirit of party," says a +late writer, "has often accused the church of having devised these +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." Ampère, +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. Ampère 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.</p></div> + +<div class="footnote"><p><a name="Footnote_521_521" id="Footnote_521_521"></a><a href="#FNanchor_521_521"><span class="label">[y]</span></a> Ordeals were not actually abolished in France, +notwithstanding the law of Louis above-mentioned, so late as the eleventh +century (Bouquet, t. xi. p. 430), nor in England till the reign of Henry +III. Some of the stories we read, wherein accused persons have passed +triumphantly through these severe proofs, are perplexing enough: and +perhaps it is safer, as well as easier, to deny than to explain them. For +example, a writer in the Archæologia (vol. xv. p. 172) has shown that +Emma, queen of Edward the Confessor, did not perform her trial by stepping +<i>between</i>, as Blackstone imagines, but <i>upon</i> nine red-hot ploughshares. +But he seems not aware that the whole story is unsupported by any +contemporary or even respectable testimony. A similar anecdote is related +of Cunegunda, wife of the emperor Henry II., which probably gave rise to +that of Emma. There are, however, medicaments, as is well known, that +protect the skin to a certain degree against the effect of fire. This +phenomenon would pass for miraculous, and form the basis of those +exaggerated stories in monkish books.</p></div> + +<div class="footnote"><p><a name="Footnote_522_522" id="Footnote_522_522"></a><a href="#FNanchor_522_522"><span class="label">[z]</span></a> The most singular effect of this crusading spirit was +witnessed in 1211, when a multitude, amounting, as some say, to 90,000, +chiefly composed of children, and commanded by a child, set out for the +purpose of recovering the Holy Land. They came for the most part from +Germany, and reached Genoa without harm. But, finding there an obstacle +which their imperfect knowledge of geography had not anticipated, they +soon dispersed in various directions. Thirty thousand arrived at +Marseilles, where part were murdered, part probably starved, and the rest +sold to the Saracens. Annali di Muratori, <small>A.D.</small> 1211; Velly, Hist. de +France, t. iv. p. 206.</p></div> + +<div class="footnote"><p><a name="Footnote_523_523" id="Footnote_523_523"></a><a href="#FNanchor_523_523"><span class="label">[a]</span></a> Velly, t. iii. p. 295; Du Cange, v. Capuciati.</p></div> + +<div class="footnote"><p><a name="Footnote_524_524" id="Footnote_524_524"></a><a href="#FNanchor_524_524"><span class="label">[b]</span></a> Velly, Hist. de France, t. v. p. 7; Du Cange, v. +Pastorelli.</p></div> + +<div class="footnote"><p><a name="Footnote_525_525" id="Footnote_525_525"></a><a href="#FNanchor_525_525"><span class="label">[c]</span></a> Velly, Hist. de France, t. viii. p. 99. The continuator of +Nangis says, sicut fumus subitò evanuit tota illa commotio. Spicilegium, +t. iii. p. 77.</p></div> + +<div class="footnote"><p><a name="Footnote_526_526" id="Footnote_526_526"></a><a href="#FNanchor_526_526"><span class="label">[d]</span></a> Velly, t. v. p. 279; Du Cange, v. Verberatio.</p></div> + +<div class="footnote"><p><a name="Footnote_527_527" id="Footnote_527_527"></a><a href="#FNanchor_527_527"><span class="label">[e]</span></a> Something of a similar kind is mentioned by G. Villani, +under the year 1310. 1. viii. c. 122.</p></div> + +<div class="footnote"><p><a name="Footnote_528_528" id="Footnote_528_528"></a><a href="#FNanchor_528_528"><span class="label">[f]</span></a> Annal. Mediolan. in Murat. Script. Rer. Ital. t. xvi. p. +832; G. Stella. Ann. Genuens. t. xvii. p. 1072; Chron. Foroliviense, t. +xix. p. 874; Ann. Bonincontri, t. xxi. p. 79.</p></div> + +<div class="footnote"><p><a name="Footnote_529_529" id="Footnote_529_529"></a><a href="#FNanchor_529_529"><span class="label">[g]</span></a> Dissert. 75. Sudden transitions from profligate to austere +manners were so common among individuals, that we cannot be surprised at +their sometimes becoming in a manner national. Azarius, a chronicler of +Milan, after describing the almost incredible dissoluteness of Pavia, +gives an account of an instantaneous reformation wrought by the preaching +of a certain friar. This was about 1350. Script. Rer. Ital. t. xvi. p. +375.</p></div> + +<div class="footnote"><p><a name="Footnote_530_530" id="Footnote_530_530"></a><a href="#FNanchor_530_530"><span class="label">[h]</span></a> Villaret, t. xii. p. 327.</p></div> + +<div class="footnote"><p><a name="Footnote_531_531" id="Footnote_531_531"></a><a href="#FNanchor_531_531"><span class="label">[i]</span></a> Rot. Parl. v. iii. p. 428.</p></div> + +<div class="footnote"><p><a name="Footnote_532_532" id="Footnote_532_532"></a><a href="#FNanchor_532_532"><span class="label">[k]</span></a> This is confessed by the authors of Histoire Littéraire de +la France, t. ii. p. 4, and indeed by many catholic writers. I need not +quote Mosheim, who more than confirms every word of my text.</p></div> + +<div class="footnote"><p><a name="Footnote_533_533" id="Footnote_533_533"></a><a href="#FNanchor_533_533"><span class="label">[m]</span></a> Middleton's Letter from Rome. If some of our eloquent +countryman's positions should be disputed, there are still abundant +catholic testimonies that imaginary saints have been canonized.</p></div> + +<div class="footnote"><p><a name="Footnote_534_534" id="Footnote_534_534"></a><a href="#FNanchor_534_534"><span class="label">[n]</span></a> Le Grand d'Aussy has given us, in the fifth volume of his +Fabliaux, several of the religious tales by which the monks endeavoured to +withdraw the people from romances of chivalry. The following specimens +will abundantly confirm my assertions, which may perhaps appear harsh and +extravagant to the reader. +</p><p> +There was a man whose occupation was highway robbery; but whenever he set +out on any such expedition, he was careful to address a prayer to the +Virgin. Taken at last, he was sentenced to be hanged. While the cord was +round his neck he made his usual prayer, nor was it ineffectual. The +Virgin supported his feet "with her white hands," and thus kept him alive +two days, to the no small surprise of the executioner, who attempted to +complete his work with strokes of a sword. But the same invisible hand +turned aside the weapon, and the executioner was compelled to release his +victim, acknowledging the miracle. The thief retired into a monastery, +which is always the termination of these deliverances. +</p><p> +At the monastery of St. Peter, near Cologne, lived a monk perfectly +dissolute and irreligious, but very devout towards the Apostle. Unluckily +he died suddenly without confession. The fiends came as usual to seize his +soul. St. Peter, vexed at losing so faithful a votary, besought God to +admit the monk into Paradise. His prayer was refused; and though the whole +body of saints, apostles, angels, and martyrs joined at his request to +make interest, it was of no avail. In this extremity he had recourse to +the Mother of God. "Fair lady," he said, "my monk is lost if you do not +interfere for him; but what is impossible for us will be but sport to you, +if you please to assist us. Your Son, if you but speak a word, must yield, +since it is in your power to command him." The Queen Mother assented, and, +followed by all the virgins, moved towards her Son. He who had himself +given the precept, Honour thy father and thy mother, no sooner saw his own +parent approach than he rose to receive her; and taking her by the hand +inquired her wishes. The rest may be easily conjectured. Compare the gross +stupidity, or rather the atrocious impiety of this tale, with the pure +theism of the Arabian Nights, and judge whether the Deity was better +worshipped at Cologne or at Bagdad. +</p><p> +It is unnecessary to multiply instances of this kind. In one tale the +Virgin takes the shape of a nun, who had eloped from the convent, and +performs her duties ten years, till, tired of a libertine life, she +returns unsuspected. This was in consideration of her having never omitted +to say an Ave as she passed the Virgin's image. In another, a gentleman, +in love with a handsome widow, consents, at the instigation of a sorcerer, +to renounce God and the saints, but cannot be persuaded to give up the +Virgin, well knowing that if he kept her his friend he should obtain +pardon through her means. Accordingly she inspired his mistress with so +much passion that he married her within a few days. +</p><p> +These tales, it may be said, were the production of ignorant men, and +circulated among the populace. Certainly they would have excited contempt +and indignation in the more enlightened clergy. But I am concerned with +the general character of religious notions among the people: and for this +it is better to take such popular compositions, adapted to what the laity +already believed, than the writings of comparatively learned and +reflecting men. However, stories of the same cast are frequent in the +monkish historians. Matthew Paris, one of the most respectable of that +class, and no friend to the covetousness or relaxed lives of the +priesthood, tells us of a knight who was on the point of being damned for +frequenting tournaments, but saved by a donation he had formerly made to +the Virgin. p. 290.</p></div> + +<div class="footnote"><p><a name="Footnote_535_535" id="Footnote_535_535"></a><a href="#FNanchor_535_535"><span class="label">[o]</span></a> 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 considered 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 +especially, was to exaggerate the crimes and follies of mediæval +ages—perhaps I have fallen into it a little too much; in the present we +seem more in danger of extenuating 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 +captivating book can hardly be named than the Mores Catholici of Mr. +Digby; and it contains certainly a great deal of truth; but the general +effect is that of a <i>mirage</i>, 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 sympathy with the mediæval church, a great +indulgence to its errors, and indeed a reluctance to admit them, with a +corresponding estrangement from all that has passed in the last three +centuries. [1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_536_536" id="Footnote_536_536"></a><a href="#FNanchor_536_536"><span class="label">[p]</span></a> I am inclined to acquiesce in this general opinion; yet an +account of expenses at Bolton Abbey, about the reign of Edward II., +published in Whitaker's History of Craven, p. 51, makes a very scanty show +of almsgiving in this opulent monastery. Much, however, was no doubt given +in victuals. But it is a strange error to conceive that English +monasteries before the dissolution fed the indigent part of the nation, +and gave that general relief which the poor-laws are intended to afford. +</p><p> +Piers Plowman is indeed a satirist; but he plainly charges the monks with +want of charity. +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Little had lordes to do to give landes from their heires<br /></span> +<span class="i0">To religious that have no ruthe though it raine on their aultres;<br /></span> +<span class="i0">In many places there the parsons be themself at ease,<br /></span> +<span class="i0">Of the poor they have no pitie and that is their poor charitie.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_537_537" id="Footnote_537_537"></a><a href="#FNanchor_537_537"><span class="label">[q]</span></a> Schmidt, Hist. des Allemands, t. i. p. 374.</p></div> + +<div class="footnote"><p><a name="Footnote_538_538" id="Footnote_538_538"></a><a href="#FNanchor_538_538"><span class="label">[r]</span></a> See Fosbrooke's British Monachism (vol. i. p. 127, and vol. +ii. p. 8) for a farrago of evidence against the monks. Clemangis, a French +theologian of considerable eminence at the beginning of the fifteenth +century, speaks of nunneries in the following terms:—Quid aliud sunt hoc +tempore puellarum monasteria, nisi quædam non dico Dei sanctuaria, sed +Veneris execranda prostibula, sed lascivorum et impudicorum juvenum ad +libidines explendas receptacula? ut idem sit hodie puellam velare, quod et +publicè ad scortandum exponere. William Prynne, from whose records (vol. +ii. p. 229) I have taken this passage, quotes it on occasion of a charter +of king John, banishing thirty nuns of Ambresbury into different convents, +propter vitæ suæ turpitudinem.</p></div> + +<div class="footnote"><p><a name="Footnote_539_539" id="Footnote_539_539"></a><a href="#FNanchor_539_539"><span class="label">[s]</span></a> Mosheim, cent. vii. c. 3. Robertson has quoted this +passage, to whom perhaps I am immediately indebted for it. Hist. Charles +V., vol. i. note 11. +</p><p> +I leave this passage as it stood in former editions. But it is due to +justice that this extract from Eligius should never be quoted in future, +as the translator of Mosheim has induced Robertson and many others, as +well as myself, to do. Dr. Lingard has pointed out that it is a very +imperfect representation of what Eligius has written; for though he has +dwelled on these devotional practices as parts of the definition of a good +Christian, he certainly adds a great deal more to which no one could +object. Yet no one is, in fact, to blame for this misrepresentation, +which, being contained in popular books, has gone forth so widely. +Mosheim, as will appear on referring to him, did not quote the passage as +containing a complete definition of the Christian character. His +translator, Maclaine, mistook this, and wrote, in consequence, the severe +note which Robertson has copied. I have seen the whole passage in +d'Achery's Spicilegium (vol. v. p. 213, 4to. edit.), and can testify that +Dr. Lingard is perfectly correct. Upon the whole, this is a striking proof +how dangerous it is to take any authorities at second-hand.—<i>Note to +Fourth Edition.</i> 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-hand. And this is +perfectly true, and ought to be constantly 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 [1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_540_540" id="Footnote_540_540"></a><a href="#FNanchor_540_540"><span class="label">[t]</span></a> Mr. Turner has collected many curious facts relative to the +condition of the Jews, especially in England. Hist. of England, vol. ii. +p. 95. Others may be found dispersed in Velly's History of France; and +many in the Spanish writers, Mariana and Zurita. The following are from +Vaissette's History of Languedoc. It was the custom at Toulouse to give a +blow on the face to a Jew every Easter; this was commuted in the twelfth +century for a tribute. t. ii. p. 151. At Beziers another usage prevailed, +that of attacking the Jews' houses with stones from Palm Sunday to Easter. +No other weapon was to be used; but it generally produced bloodshed. The +populace were regularly instigated to the assault by a sermon from the +bishop. At length a prelate wiser than the rest abolished this ancient +practice, but not without receiving a good sum from the Jews. p. 485.</p></div> + +<div class="footnote"><p><a name="Footnote_541_541" id="Footnote_541_541"></a><a href="#FNanchor_541_541"><span class="label">[u]</span></a> Greg. Tur. 1. ii. c. 40. Of Theodebert, grandson of Clovis, +the same historian says, Magnum se et in omni bonitate præcipuum reddidit. +In the next paragraph we find a story of his having two wives, and looking +so tenderly on the daughter of one of them, that her mother tossed her +over a bridge into the river. 1. iii. c. 25. This indeed is a trifle to +the passage in the text. There are continual proofs of immorality in the +monkish historians. In the history of Ramsey Abbey, one of our best +documents for Anglo-Saxon times, we have an anecdote of a bishop who made +a Danish nobleman drunk, that he might cheat him of an estate, which is +told with much approbation. Gale, Script. Anglic. t. i. p. 441. Walter de +Hemingford recounts with excessive delight the well-known story of the +Jews who were persuaded by the captain of their vessel to walk on the +sands at low water, till the rising tide drowned them; and adds that the +captain was both pardoned and rewarded for it by the king, gratiam +promeruit et præmium. This is a mistake, inasmuch as he was hanged; but it +exhibits the character of the historian, Hemingford, p. 21.</p></div> + +<div class="footnote"><p><a name="Footnote_542_542" id="Footnote_542_542"></a><a href="#FNanchor_542_542"><span class="label">[x]</span></a> Fleury, Troisième Discours sur l'Histoire Ecclésiastique.</p></div> + +<div class="footnote"><p><a name="Footnote_543_543" id="Footnote_543_543"></a><a href="#FNanchor_543_543"><span class="label">[y]</span></a> Henry, Hist. of England, vol. ii. c. 7.</p></div> + +<div class="footnote"><p><a name="Footnote_544_544" id="Footnote_544_544"></a><a href="#FNanchor_544_544"><span class="label">[z]</span></a> Du Cange, v. Peregrinatio. Non sinantur vagari isti nudi +cum ferro, qui dicunt se datâ pœnitentiâ ire vagantes. Melius videtur, +ut si aliquod inconsuetum et capitale crimen commiserint, in uno loco +permaneant laborantes et servientes et pœnitentiam agentes, secundum +quod canonicè iis impositum sit.</p></div> + +<div class="footnote"><p><a name="Footnote_545_545" id="Footnote_545_545"></a><a href="#FNanchor_545_545"><span class="label">[a]</span></a> I. de Vitriaco, in Gesta Dei per Francos, t. i.; Villani, +1. vii. c. 144.</p></div> + +<div class="footnote"><p><a name="Footnote_546_546" id="Footnote_546_546"></a><a href="#FNanchor_546_546"><span class="label">[b]</span></a> Henry has taken pains in drawing a picture, not very +favourable, of Anglo-Saxon manners. Book II. chap. 7. This perhaps is the +best chapter, as the volume is the best volume, of his unequal work. His +account of the Anglo-Saxons is derived in a great degree from William of +Malmsbury, who does not spare them. Their civil history, indeed, and their +laws, speak sufficiently against the character of that people. But the +Normans had little more to boast of in respect of moral correctness. Their +luxurious and dissolute habits are as much noticed as their insolence. +Vid. Ordericus Vitalis, p. 602; Johann. Sarisburiensis Policraticus, p. +194; Velly, Hist. de France, t. iii. p. 59. The state of manners in France +under the first two races of kings, and in Italy both under the Lombards +and the subsequent dynasties, may be collected from their histories, their +laws, and those miscellaneous facts which books of every description +contain. Neither Velly, nor Muratori, Dissert. 23, are so satisfactory as +we might desire.</p></div> + +<div class="footnote"><p><a name="Footnote_547_547" id="Footnote_547_547"></a><a href="#FNanchor_547_547"><span class="label">[c]</span></a> Velly, Hist. de France, t. ii. p. 335. It has been +observed, that Quid mores sine legibus? is as just a question as that of +Horace; and that bad laws must produce bad morals. The strange practice of +requiring numerous compurgators to prove the innocence of an accused +person had a most obvious tendency to increase perjury.</p></div> + +<div class="footnote"><p><a name="Footnote_548_548" id="Footnote_548_548"></a><a href="#FNanchor_548_548"><span class="label">[d]</span></a> Muratori, Dissert. 23, t. i. p. 306 (Italian); Beckman's +Hist. of Inventions, vol. i. p. 319; Vie privée des Français, t. ii. p. +1.</p></div> + +<div class="footnote"><p><a name="Footnote_549_549" id="Footnote_549_549"></a><a href="#FNanchor_549_549"><span class="label">[e]</span></a> Vie privée des Français, t. i. p. 320; t. ii. p. 11.</p></div> + +<div class="footnote"><p><a name="Footnote_550_550" id="Footnote_550_550"></a><a href="#FNanchor_550_550"><span class="label">[f]</span></a> Ibid. t. i. p. 324.</p></div> + +<div class="footnote"><p><a name="Footnote_551_551" id="Footnote_551_551"></a><a href="#FNanchor_551_551"><span class="label">[g]</span></a> Rymer, t. i. p. 61.</p></div> + +<div class="footnote"><p><a name="Footnote_552_552" id="Footnote_552_552"></a><a href="#FNanchor_552_552"><span class="label">[h]</span></a> Whitaker's Hist. of Craven, p. 340, and of Whalley, p. +171.</p></div> + +<div class="footnote"><p><a name="Footnote_553_553" id="Footnote_553_553"></a><a href="#FNanchor_553_553"><span class="label">[i]</span></a> Velly, Hist. de France, t. iii. p. 236.</p></div> + +<div class="footnote"><p><a name="Footnote_554_554" id="Footnote_554_554"></a><a href="#FNanchor_554_554"><span class="label">[k]</span></a> John of Salisbury inveighs against the game-laws of his +age, with an odd transition from the Gospel to the Pandects. Nec veriti +sunt hominem pro unâ bestiolâ perdere, quem unigentius Dei Filius sanguine +redemit suo. Quæ feræ naturæ sunt, et de jure occupantium fiunt, sibi +audet humana temeritas vindicare, &c. Polycraticon, p. 18.</p></div> + +<div class="footnote"><p><a name="Footnote_555_555" id="Footnote_555_555"></a><a href="#FNanchor_555_555"><span class="label">[m]</span></a> Le Grand, Vie privée des Français, t. i. p. 325.</p></div> + +<div class="footnote"><p><a name="Footnote_556_556" id="Footnote_556_556"></a><a href="#FNanchor_556_556"><span class="label">[n]</span></a> For the injuries which this people sustained from the +seigniorial rights of the chace, in the eleventh century, see the Recueil +des Historiens, in the valuable preface to the eleventh volume, p. 181. +This continued to be felt in France down to the revolution, to which it +did not perhaps a little contribute. (See Young's Travels in France.) The +monstrous privilege of free-warren (monstrous, I mean, when not originally +founded upon the property of the soil) is recognised by our own laws; +though, in this age, it is not often that a court and jury will sustain +its exercise. Sir Walter Scott's ballad of the Wild Huntsman, from a +German original, is well known; and, I believe, there are several others +in that country not dissimilar in subject.</p></div> + +<div class="footnote"><p><a name="Footnote_557_557" id="Footnote_557_557"></a><a href="#FNanchor_557_557"><span class="label">[o]</span></a> Muratori, Dissert. 21. This dissertation contains ample +evidence of the wretched state of culture in Italy, at least in the +northern parts, both before the irruption of the barbarians, and, in a +much greater degree, under the Lombard kings.</p></div> + +<div class="footnote"><p><a name="Footnote_558_558" id="Footnote_558_558"></a><a href="#FNanchor_558_558"><span class="label">[p]</span></a> Schmidt, Hist. des Allem. t. i. p. 408. The following +passage seems to illustrate Schmidt's account of German villages in the +ninth century, though relating to a different age and country. "A toft," +says Dr. Whitaker, "is a homestead in a village, so called from the small +tufts of maple, elm, ash, and other wood, with which dwelling-houses were +anciently overhung. Even now it is impossible to enter Craven without +being struck with the insulated homesteads, surrounded by their little +garths, and overhung with tufts of trees. These are the genuine tofts and +crofts of our ancestors, with the substitution only of stone for the +wooden crocks and thatched roofs of antiquity." Hist. of Craven, p. 380.</p></div> + +<div class="footnote"><p><a name="Footnote_559_559" id="Footnote_559_559"></a><a href="#FNanchor_559_559"><span class="label">[q]</span></a> It is laid down in the Speculum Saxonicum, a collection of +feudal customs which prevailed over most of Germany, that no one might +have a separate pasture for his cattle unless he possessed three mansi. Du +Cange, v. Mansus. There seems to have been a price paid, I suppose to the +lord, for agistment in the common pasture.</p></div> + +<div class="footnote"><p><a name="Footnote_560_560" id="Footnote_560_560"></a><a href="#FNanchor_560_560"><span class="label">[r]</span></a> The only mention of a manufacture, as early as the ninth or +tenth centuries, that I remember to have met with, is in Schmidt, t. ii. +p. 146, who says that cloths were exported from Friesland to England and +other parts. He quotes no authority, but I am satisfied that he has not +advanced the fact gratuitously.</p></div> + +<div class="footnote"><p><a name="Footnote_561_561" id="Footnote_561_561"></a><a href="#FNanchor_561_561"><span class="label">[s]</span></a> Schmidt, t. i. p. 411; t. ii. p. 146.</p></div> + +<div class="footnote"><p><a name="Footnote_562_562" id="Footnote_562_562"></a><a href="#FNanchor_562_562"><span class="label">[t]</span></a> Du Cange, Pedagium, Pontaticum, Teloneum, Mercatum, +Stallagium, Lastagium, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_563_563" id="Footnote_563_563"></a><a href="#FNanchor_563_563"><span class="label">[u]</span></a> Baluz. Capit. p. 621 et alibi.</p></div> + +<div class="footnote"><p><a name="Footnote_564_564" id="Footnote_564_564"></a><a href="#FNanchor_564_564"><span class="label">[x]</span></a> Ut nullus cogatur ad pontem ire ad fluvium transeundum +propter telonei causas quando ille in alio loco compendiosius illud flumen +transire potest. p. 764 et alibi.</p></div> + +<div class="footnote"><p><a name="Footnote_565_565" id="Footnote_565_565"></a><a href="#FNanchor_565_565"><span class="label">[y]</span></a> Eadmer apud Recueil des Historiens des Gaules, t. xi. +preface, p. 192. Pro ritu illius loci, a domino terræ captivitati +addicitur.</p></div> + +<div class="footnote"><p><a name="Footnote_566_566" id="Footnote_566_566"></a><a href="#FNanchor_566_566"><span class="label">[z]</span></a> Heeren has frequently referred to a work published in 1789, +by Marini, intitled, Storia civile e politica del Commerzio de' Veneziani, +which casts a new light upon the early relations of Venice with the East. +Of this book I know nothing; but a memoir by de Guignes, in the +thirty-seventh volume of the Academy of Inscriptions, on the commerce of +France with the East before the crusades, is singularly unproductive; the +fault of the subject, not of the author.</p></div> + +<div class="footnote"><p><a name="Footnote_567_567" id="Footnote_567_567"></a><a href="#FNanchor_567_567"><span class="label">[a]</span></a> There is an odd passage in Luitprand's relation of his +embassy from the Emperor Otho to Nicephorus Phocas. The Greeks making a +display of their dress, he told them that in Lombardy the common people +wore as good clothes as they. How, they said, can you procure them? +Through the Venetian and Amalfitan dealers, he replied, who gain their +subsistence by selling them to us. The foolish Greeks were very angry, and +declared that any dealer presuming to export their fine clothes should be +flogged, Luitprandi Opera, p. 155, edit. Antwerp. 1640.</p></div> + +<div class="footnote"><p><a name="Footnote_568_568" id="Footnote_568_568"></a><a href="#FNanchor_568_568"><span class="label">[b]</span></a> Baluz. Capitul. p. 775. One of the main advantages which +the Christian nations possessed over the Saracens was the coat of mail, +and other defensive armour; so that this prohibition was founded upon very +good political reasons.</p></div> + +<div class="footnote"><p><a name="Footnote_569_569" id="Footnote_569_569"></a><a href="#FNanchor_569_569"><span class="label">[c]</span></a> Schmidt, Hist. des Allem, t. ii. p. 146; Heeren, sur +l'Influence des Croisades, p. 316. In Baluze we find a law of Carloman, +brother to Charlemagne: Ut mancipia Christiana paganis non vendantur. +Capitularia, t. i. p. 150, vide quoque, p. 361.</p></div> + +<div class="footnote"><p><a name="Footnote_570_570" id="Footnote_570_570"></a><a href="#FNanchor_570_570"><span class="label">[d]</span></a> William of Malmsbury accuses the Anglo-Saxon nobility of +selling their female servants, even when pregnant by them, as slaves to +foreigners, p. 102. I hope there were not many of these Yaricoes; and +should not perhaps have given credit to an historian rather prejudiced +against the English, if I had not found too much authority for the general +practice. In the canons of a council at London in 1102 we read, Let no one +from henceforth presume to carry on that wicked traffic by which men of +England have hitherto been sold like brute animals. Wilkins's Concilia, t. +i. p. 383. And Giraldus Cambrensis says that the English before the +Conquest were generally in the habit of selling their children and other +relations to be slaves in Ireland, without having even the pretext of +distress or famine, till the Irish, in a national synod, agreed to +emancipate all the English slaves in the kingdom. Id. p. 471. This seems +to have been designed to take away all pretext for the threatened invasion +of Henry II. Lyttelton, vol. iii. p. 70.</p></div></div> + +<p class="center"><br />PART II. +<span class="pagenum"><a name="Page_318" id="Page_318">[Pg 318]</a></span></p> + +<blockquote><p class="ind">Progress of Commercial Improvement in Germany, Flanders, and +England—in the North of Europe—in the Countries upon the +Mediterranean Sea—Maritime Laws—Usury—Banking +Companies—Progress of Refinement in Manners—Domestic +Architecture—Ecclesiastical Architecture—State of Agriculture +in England—Value of Money—Improvement of the Moral Character +of Society—its Causes—Police—Changes in Religious +Opinion—Various Sects—Chivalry—its Progress, Character, and +Influence—Causes of the Intellectual Improvement of European +Society—1. The Study of Civil Law—2. Institution of +Universities—their Celebrity—Scholastic Philosophy—3. +Cultivation of Modern Languages—Provençal Poets—Norman +Poets—French Prose Writers—Italian—early Poets in that +Language—Dante—Petrarch—English Language—its +Progress—Chaucer—4. Revival of Classical Learning—Latin +Writers of the Twelfth Century—Literature of the Fourteenth +Century—Greek Literature—its Restoration in Italy—Invention +of Printing. </p></blockquote> + +<div class="sidenote">European commerce.</div> + +<p><span class="smcap">The</span> geographical position of Europe naturally divides its maritime +commerce into two principal regions—one comprehending those countries +which border on the Baltic, the German and the Atlantic oceans; another, +those situated around the Mediterranean Sea. During the four centuries +which preceded the discovery of America, and especially the two former of +them, this separation was more remarkable than at present, inasmuch as +their intercourse, either by land or sea, was extremely limited. To the +first region belonged the Netherlands, the coasts of France, Germany, and +Scandinavia, and the maritime districts of England. In the second we may +class the provinces of Valencia and Catalonia, those of Provence and +Languedoc, and the whole of Italy.</p> + +<div class="sidenote">Woollen manufacture of Flanders.</div> + +<p>1. The former, or northern division, was first animated by the woollen +manufacture of Flanders. It is not easy either to discover the early +beginnings of this, or to account for its rapid advancement. The fertility +of that province and its facilities of interior navigation were doubtless +necessary causes; but there must have been some temporary encouragement +from the personal character of its sovereigns, or other accidental +circumstances. Several testimonies to the flourishing condition of Flemish +<span class="pagenum"><a name="Page_319" id="Page_319">[Pg 319]</a></span> +manufactures occur in the twelfth century, and some might perhaps +be found even earlier.<a name="FNanchor_571_571" id="FNanchor_571_571"></a><a href="#Footnote_571_571" class="fnanchor">[a]</a> +A writer of the thirteenth asserts that all +the world was clothed from English wool wrought in +Flanders.<a name="FNanchor_572_572" id="FNanchor_572_572"></a><a href="#Footnote_572_572" class="fnanchor">[b]</a> This, +indeed, is an exaggerated vaunt; but the Flemish stuffs were probably sold +wherever the sea or a navigable river permitted them to be carried. +Cologne was the chief trading city upon the Rhine; and its merchants, who +had been considerable even under the emperor Henry IV., established a +factory at London in 1220. The woollen manufacture, notwithstanding +frequent wars and the impolitic regulations of +magistrates,<a name="FNanchor_573_573" id="FNanchor_573_573"></a><a href="#Footnote_573_573" class="fnanchor">[c]</a> +continued to flourish in the Netherlands (for Brabant and Hainault shared it in some +degree with Flanders), until England became not only capable of supplying +her own demand, but a rival in all the marts of Europe. "All Christian +kingdoms, and even the Turks themselves," says an historian of the +sixteenth century, "lamented the desperate war between the Flemish cities +and their count Louis, that broke out in 1380. For at that time Flanders +was a market for the traders of all the world. Merchants from seventeen +kingdoms had their settled domiciles at Bruges, besides strangers from +almost unknown countries who repaired +thither."<a name="FNanchor_574_574" id="FNanchor_574_574"></a><a href="#Footnote_574_574" class="fnanchor">[d]</a> +During this war, and on all other occasions, the weavers both of Ghent and Bruges distinguished +themselves by a democratical spirit, the consequence, no doubt, of their +numbers and prosperity.<a name="FNanchor_575_575" id="FNanchor_575_575"></a><a href="#Footnote_575_575" class="fnanchor">[e]</a> +Ghent was one of the largest cities in +Europe, and, in the opinion of +<span class="pagenum"><a name="Page_320" id="Page_320">[Pg 320]</a></span> +many, the best situated.<a name="FNanchor_576_576" id="FNanchor_576_576"></a><a href="#Footnote_576_576" class="fnanchor">[f]</a> But Bruges, +though in circuit but half the former, was more splendid in its buildings, +and the seat of far more trade; being the great staple both for +Mediterranean and northern +merchandise.<a name="FNanchor_577_577" id="FNanchor_577_577"></a><a href="#Footnote_577_577" class="fnanchor">[g]</a> Antwerp, which early in the +sixteenth century drew away a large part of this commerce from Bruges, was +not considerable in the preceding ages; nor were the towns of Zealand and +Holland much noted except for their fisheries, though those provinces +acquired in the fifteenth century some share of the woollen manufacture.</p> + +<div class="sidenote">Export of wool from England.</div> + +<p>For the first two centuries after the Conquest our English towns, as has +been observed in a different place, made some forward steps towards +improvement, though still very inferior to those of the continent. Their +commerce was almost confined to the exportation of wool, the great staple +commodity of England, upon which, more than any other, in its raw or +manufactured state, our wealth has been founded. A woollen manufacture, +however, indisputably existed under Henry +II.;<a name="FNanchor_578_578" id="FNanchor_578_578"></a><a href="#Footnote_578_578" class="fnanchor">[h]</a> +it is noticed in regulations of Richard I.; and by the importation of woad under John it +may be inferred to have still flourished. The disturbances of the next +reign, perhaps, or the rapid elevation of the Flemish towns, retarded its +growth, though a remarkable law was passed by the Oxford parliament in +1261, prohibiting the export of wool and the importation of cloth. This, +while it shows the deference paid by the discontented barons, who +predominated in that parliament, to their confederates the burghers, was evidently +<span class="pagenum"><a name="Page_321" id="Page_321">[Pg 321]</a></span> +too premature to be enforced. We may infer from it, however, +that cloths were made at home, though not sufficiently for the people's +consumption.<a name="FNanchor_579_579" id="FNanchor_579_579"></a><a href="#Footnote_579_579" class="fnanchor">[i]</a></p> + +<p>Prohibitions of the same nature, though with a different object, were +frequently imposed on the trade between England and Flanders by Edward I. +and his son. As their political connexions fluctuated, these princes gave +full liberty and settlement to the Flemish merchants, or banished them at +once from the country.<a name="FNanchor_580_580" id="FNanchor_580_580"></a><a href="#Footnote_580_580" class="fnanchor">[k]</a> +Nothing could be more injurious to England +than this arbitrary vacillation. The Flemings were in every respect our +natural allies; but besides those connexions with France, the constant +enemy of Flanders, into which both the Edwards occasionally fell, a mutual +alienation had been produced by the trade of the former people with +Scotland, a trade too lucrative to be resigned at the king of England's +request.<a name="FNanchor_581_581" id="FNanchor_581_581"></a><a href="#Footnote_581_581" class="fnanchor">[m]</a> +An early instance of that conflicting selfishness of +belligerents and neutrals, which was destined to aggravate the animosities +and misfortunes of our own +time.<a name="FNanchor_582_582" id="FNanchor_582_582"></a><a href="#Footnote_582_582" class="fnanchor">[n]</a></p> + +<div class="sidenote">English woollen manufacture.</div> + +<p>A more prosperous era began with Edward III., the father, as he may almost +be called, of English commerce, a title not indeed more glorious, but by +which he may perhaps claim more of our gratitude than as the hero of +Crecy. In 1331 he took advantage of discontents among the manufacturers of +Flanders to invite them as settlers into his +dominions.<a name="FNanchor_583_583" id="FNanchor_583_583"></a><a href="#Footnote_583_583" class="fnanchor">[o]</a> +They brought the finer manufacture of woollen cloths, which had been unknown in +England. The discontents alluded to resulted from the monopolizing spirit +of their corporations, who oppressed all artisans without the +<span class="pagenum"><a name="Page_322" id="Page_322">[Pg 322]</a></span> pale of +their community. The history of corporations brings home to our minds one +cardinal truth, that political institutions have very frequently but a +relative and temporary usefulness, and that what forwarded improvement +during one part of its course may prove to it in time a most pernicious +obstacle. Corporations in England, we may be sure, wanted nothing of their +usual character; and it cost Edward no little trouble to protect his +colonists from the selfishness and from the blind nationality of the +vulgar.<a name="FNanchor_584_584" id="FNanchor_584_584"></a><a href="#Footnote_584_584" class="fnanchor">[p]</a> +The emigration of Flemish weavers into England continued +during this reign, and we find it mentioned, at intervals, for more than a +century.</p> + +<div class="sidenote">Increase of English commerce.</div> + +<p>Commerce now became, next to liberty, the leading object of parliament. +For the greater part of our statutes from the accession of Edward III. +bear relation to this subject; not always well devised, or liberal, or +consistent, but by no means worse in those respects than such as have been +enacted in subsequent ages. The occupation of a merchant became +honourable; and, notwithstanding the natural jealousy of the two classes, +he was placed, in some measure, on a footing with landed proprietors. By +the statute of apparel, in 37 Edw. III., merchants and artificers who had +five hundred pounds value in goods and chattels might use the same dress +as squires of one hundred pounds a year. And those who were worth more +than this might dress like men of double that estate. Wool was still the +principal article of export and source of revenue. Subsidies granted by +every parliament upon this article were, on account of the scarcity of +money, commonly taken in kind. To prevent evasion of this duty seems to +have been the principle of those multifarious regulations which fix the +staple, or market for wool, in certain towns, either in England, or, more +commonly, on the continent. To these all wool was to be carried, and the +tax was there collected. It is not easy, however, to comprehend the drift +of all the provisions relating to the staple, many of which tend to +benefit foreign at the expense of English merchants. By degrees the +exportation of woollen cloths increased so as to diminish that of the raw +material, but the latter was not absolutely prohibited during the period +<span class="pagenum"><a name="Page_323" id="Page_323">[Pg 323]</a></span> +under review;<a name="FNanchor_585_585" id="FNanchor_585_585"></a><a href="#Footnote_585_585" class="fnanchor">[q]</a> +although some restrictions were imposed upon it by +Edward IV. For a much earlier statute, in the 11th of Edward III., making +the exportation of wool a capital felony, was in its terms provisional, +until it should be otherwise ordered by the council; and the king almost +immediately set it aside.<a name="FNanchor_586_586" id="FNanchor_586_586"></a><a href="#Footnote_586_586" class="fnanchor">[r]</a></p> + +<div class="sidenote">Manufactures of France and Germany.</div> + +<p>A manufacturing district, as we see in our own country, sends out, as it +were, suckers into all its neighbourhood. Accordingly, the woollen +manufacture spread from Flanders along the banks of the Rhine and into the +northern provinces of France.<a name="FNanchor_587_587" id="FNanchor_587_587"></a><a href="#Footnote_587_587" class="fnanchor">[s]</a> +I am not, however, prepared to trace +its history in these regions. In Germany the privileges conceded by Henry +V. to the free cities, and especially to their artisans, gave a soul to +industry; though the central parts of the empire were, for many reasons, +very ill-calculated for commercial enterprise during the middle +ages.<a name="FNanchor_588_588" id="FNanchor_588_588"></a><a href="#Footnote_588_588" class="fnanchor">[t]</a> +But the French towns were never so much +<span class="pagenum"><a name="Page_324" id="Page_324">[Pg 324]</a></span> emancipated from arbitrary power +as those of Germany or Flanders; and the evils of exorbitant taxation, +with those produced by the English wars, conspired to retard the advance +of manufactures in France. That of linen made some little progress; but +this work was still, perhaps, chiefly confined to the labour of female +servants.<a name="FNanchor_589_589" id="FNanchor_589_589"></a><a href="#Footnote_589_589" class="fnanchor">[u]</a></p> + +<div class="sidenote">Baltic trade.</div> + +<p>The manufactures of Flanders and England found a market, not only in these +adjacent countries, but in a part of Europe which for many ages had only +been known enough to be dreaded. In the middle of the eleventh century a +native of Bremen, and a writer much superior to most others of his time, +was almost entirely ignorant of the geography of the Baltic; doubting +whether any one had reached Russia by that sea, and reckoning Esthonia and +Courland among its islands.<a name="FNanchor_590_590" id="FNanchor_590_590"></a><a href="#Footnote_590_590" class="fnanchor">[x]</a> +But in one hundred years more the +maritime regions of Mecklenburg and Pomerania, inhabited by a tribe of +heathen Sclavonians, were subdued by some German princes; and the Teutonic +order some time afterwards, having conquered Prussia, extended a line of +at least comparative civilization as far as the gulf of Finland. The first +town erected on the coasts of the Baltic was Lubec, which owes its +foundation to Adolphus count of Holstein, in 1140. After several +vicissitudes it became independent of any sovereign but the emperor in the +thirteenth century. Hamburgh and Bremen, upon the other side of the +Cimbric peninsula, emulated the prosperity of Lubec; the former city +purchased independence of its bishop in 1225. A colony from Bremen founded +Riga in Livonia about 1162. The city of Dantzic grew into importance about +the end of the following century. Konigsberg was founded by Ottocar king +of Bohemia in the same age.</p> + +<p>But the real importance of these cities is to be dated +<span class="pagenum"><a name="Page_325" id="Page_325">[Pg 325]</a></span> from their famous +union into the Hanseatic confederacy. The origin of this is rather +obscure, but it may certainly be nearly referred in point of time to the +middle of the thirteenth century,<a name="FNanchor_591_591" id="FNanchor_591_591"></a><a href="#Footnote_591_591" class="fnanchor">[y]</a> +and accounted for by the necessity +of mutual defence, which piracy by sea and pillage by land had taught the +merchants of Germany. The nobles endeavoured to obstruct the formation of +this league, which indeed was in great measure designed to withstand their +exactions. It powerfully maintained the influence which the free imperial +cities were at this time acquiring. Eighty of the most considerable places +constituted the Hanseatic confederacy, divided into four colleges, whereof +Lubec, Cologne, Brunswic, and Dantzic were the leading towns. Lubec held +the chief rank, and became, as it were, the patriarchal see of the league; +whose province it was to preside in all general discussions for +mercantile, political, or military purposes, and to carry them into +execution. The league had four principal factories in foreign parts, at +London, Bruges, Bergen, and Novogorod; endowed by the sovereigns of those +cities with considerable privileges, to which every merchant belonging to +a Hanseatic town was +entitled.<a name="FNanchor_592_592" id="FNanchor_592_592"></a><a href="#Footnote_592_592" class="fnanchor">[z]</a> +In England the German guildhall or +factory was established by concession of Henry III.; and in later periods +the Hanse traders were favoured above many others in the capricious +vacillations of our mercantile +policy.<a name="FNanchor_593_593" id="FNanchor_593_593"></a><a href="#Footnote_593_593" class="fnanchor">[a]</a> +The English had also their +factories on the Baltic coast as far as Prussia and in the dominions of +Denmark.<a name="FNanchor_594_594" id="FNanchor_594_594"></a><a href="#Footnote_594_594" class="fnanchor">[b]</a></p> + +<div class="sidenote">Rapid progress of English trade.</div> + +<p>This opening of a northern market powerfully accelerated the growth of our +own commercial opulence, especially after the woollen manufacture had +begun to thrive. From about the middle of the fourteenth century we find +continual evidences of a rapid increase in wealth. Thus, in 1363, Picard, +who had been lord mayor some years before, entertained Edward III. and the +Black Prince, the kings of France, Scotland, and Cyprus, with many of the +nobility, at his +<span class="pagenum"><a name="Page_326" id="Page_326">[Pg 326]</a></span> +own house in the Vintry, and presented them with +handsome gifts.<a name="FNanchor_595_595" id="FNanchor_595_595"></a><a href="#Footnote_595_595" class="fnanchor">[c]</a> +Philpot, another eminent citizen in Richard II.'s +time, when the trade of England was considerably annoyed by privateers, +hired 1000 armed men, and despatched them to sea, where they took fifteen +Spanish vessels with their prizes.<a name="FNanchor_596_596" id="FNanchor_596_596"></a><a href="#Footnote_596_596" class="fnanchor">[d]</a> +We find Richard obtaining a great +deal from private merchants and trading towns. In 1379 he got 5000<i>l.</i> +from London, 1000 marks from Bristol, and in proportion from smaller +places. In 1386 London gave 4000<i>l.</i> more, and 10,000 marks in +1397.<a name="FNanchor_597_597" id="FNanchor_597_597"></a><a href="#Footnote_597_597" class="fnanchor">[e]</a> +The latter sum was obtained also for the coronation of Henry +VI.<a name="FNanchor_598_598" id="FNanchor_598_598"></a><a href="#Footnote_598_598" class="fnanchor">[f]</a> Nor +were the contributions of individuals contemptible, considering the high +value of money. Hinde, a citizen of London, lent to Henry IV. 2000<i>l.</i> in +1407, and Whittington one half of that sum. The merchants of the staple +advanced 4000<i>l.</i> at the same +time.<a name="FNanchor_599_599" id="FNanchor_599_599"></a><a href="#Footnote_599_599" class="fnanchor">[g]</a> +Our commerce continued to be regularly and rapidly progressive during the fifteenth century. The famous +Canynges of Bristol, under Henry VI. and Edward IV., had ships of 900 tons +burthen.<a name="FNanchor_600_600" id="FNanchor_600_600"></a><a href="#Footnote_600_600" class="fnanchor">[h]</a> +The trade and even the internal wealth of England reached so +much higher a pitch in the reign of the last-mentioned king than at any +former period, that we may perceive the wars of York and Lancaster to have +produced no very serious effect on national prosperity. Some battles were +doubtless sanguinary; but the loss of lives in battle is soon repaired by +a flourishing nation; and the devastation occasioned by armies was both +partial and transitory.</p> + +<div class="sidenote">Intercourse with the south of Europe.</div> + +<p>A commercial intercourse between these northern and southern regions of +Europe began about the early part of the fourteenth century, or, at most, +a little sooner. Until, indeed, the use of the magnet was thoroughly +understood, and a competent skill in marine architecture, as well as +navigation, acquired, the Italian merchants were scarce likely to attempt +a voyage perilous in itself and rendered more formidable by the imaginary +difficulties which had been supposed to attend an expedition beyond the +straits of Hercules. But the English, accustomed +<span class="pagenum"><a name="Page_327" id="Page_327">[Pg 327]</a></span> +to their own rough seas, +were always more intrepid, and probably more skilful navigators. Though it +was extremely rare, even in the fifteenth century, for an English trading +vessel to appear in the Mediterranean,<a name="FNanchor_601_601" id="FNanchor_601_601"></a><a href="#Footnote_601_601" class="fnanchor">[i]</a> +yet a famous military +armament, that destined for the crusade of Richard I., displayed at a very +early time the seamanship of our countrymen. In the reign of Edward II. we +find mention in Rymer's collection of Genoese ships trading to Flanders +and England. His son was very solicitous to preserve the friendship of +that opulent republic; and it is by his letters to his senate, or by royal +orders restoring ships unjustly seized, that we come by a knowledge of +those facts which historians neglect to relate. Pisa shared a little in +this traffic, and Venice more considerably; but Genoa was beyond all +competition at the head of Italian commerce in these seas during the +fourteenth century. In the next her general decline left it more open to +her rival; but I doubt whether Venice ever maintained so strong a +connexion with England. Through London and Bruges, their chief station in +Flanders, the merchants of Italy and of Spain transported oriental produce +to the farthest parts of the north. The inhabitants of the Baltic coast +were stimulated by the desire of precious luxuries which they had never +known; and these wants, though selfish and frivolous, are the means by +which nations +<span class="pagenum"><a name="Page_328" id="Page_328">[Pg 328]</a></span> +acquire civilization, and the earth is rendered fruitful of +its produce. As the carriers of this trade the Hanseatic merchants +resident in England and Flanders derived profits through which eventually +of course those countries were enriched. It seems that the Italian vessels +unloaded at the marts of London or Bruges, and that such part of their +cargoes as were intended for a more northern trade came there into the +hands of the German merchants. In the reign of Henry VI. England carried +on a pretty extensive traffic with the countries around the Mediterranean, +for whose commodities her wool and woollen cloths enabled her to pay.</p> + +<div class="sidenote">Commerce of the Mediterranean countries.</div> + +<div class="sidenote">Amalfi.</div> + +<p>The commerce of the southern division, though it did not, I think, produce +more extensively beneficial effects upon the progress of society, was both +earlier and more splendid than that of England and the neighbouring +countries. Besides Venice, which has been mentioned already, Amalfi kept +up the commercial intercourse of Christendom with the Saracen countries +before the first crusade.<a name="FNanchor_602_602" id="FNanchor_602_602"></a><a href="#Footnote_602_602" class="fnanchor">[k]</a> +It was the singular fate of this city to +have filled up the interval between two periods of civilization, in +neither of which she was destined to be distinguished. Scarcely known +before the end of the sixth century, Amalfi ran a brilliant career, as a +free and trading republic, which was checked by the arms of a conqueror in +the middle of the twelfth. Since her subjugation by Roger king of Sicily, +the name of a people who for a +<span class="pagenum"><a name="Page_329" id="Page_329">[Pg 329]</a></span> +while connected Europe with Asia has +hardly been repeated, except for two discoveries falsely imputed to them, +those of the Pandects and of the compass.</p> + +<div class="sidenote">Pisa, Genoa, Venice.</div> + +<p>But the decline of Amalfi was amply compensated to the rest of Italy by +the constant elevation of Pisa, Genoa, and Venice in the twelfth and +ensuing ages. The crusades led immediately to this growing prosperity of +the commercial cities. Besides the profit accruing from so many naval +armaments which they supplied, and the continual passage of private +adventurers in their vessels, they were enabled to open a more extensive +channel of oriental traffic than had hitherto been known. These three +Italian republics enjoyed immunities in the Christian principalities of +Syria; possessing separate quarters in Acre, Tripoli, and other cities, +where they were governed by their own laws and magistrates. Though the +progress of commerce must, from the condition of European industry, have +been slow, it was uninterrupted; and the settlements in Palestine were +becoming important as factories, an use of which Godfrey and Urban little +dreamed, when they were lost through the guilt and imprudence of their +inhabitants.<a name="FNanchor_603_603" id="FNanchor_603_603"></a><a href="#Footnote_603_603" class="fnanchor">[m]</a> +Villani laments the injury sustained by commerce in +consequence of the capture of Acre, "situated, as it was, on the coast of +the Mediterranean, in the centre of Syria, and, as we might say, of the +habitable world, a haven for all merchandize, both from the East and the +West, which all the nations of the earth frequented for this +trade."<a name="FNanchor_604_604" id="FNanchor_604_604"></a><a href="#Footnote_604_604" class="fnanchor">[n]</a> +But the loss was soon retrieved, not perhaps by Pisa and Genoa, but by +Venice, who formed connexions with the Saracen governments, and maintained +her commercial intercourse with Syria and Egypt by their licence, though +subject probably to heavy exactions. Sanuto, a Venetian author at the +beginning of the fourteenth century, has left a curious account of the +Levant trade which his countrymen carried on at that time. Their imports +it is easy to guess, and it appears that timber, brass, tin, and lead, as +well as the precious metals, were exported to +<span class="pagenum"><a name="Page_330" id="Page_330">[Pg 330]</a></span> +Alexandria, besides oil, +saffron, and some of the productions of Italy, and even wool and woollen +cloths.<a name="FNanchor_605_605" id="FNanchor_605_605"></a><a href="#Footnote_605_605" class="fnanchor">[o]</a> +The European side of the account had therefore become respectable.</p> + +<p>The commercial cities enjoyed as great privileges at Constantinople as in +Syria, and they bore an eminent part in the vicissitudes of the Eastern +empire. After the capture of Constantinople by the Latin crusaders, the +Venetians, having been concerned in that conquest, became, of course, the +favoured traders under the new dynasty; possessing their own district in +the city, with their magistrate or podestà, appointed at Venice, and +subject to the parent republic. When the Greeks recovered the seat of +their empire, the Genoese, who, from jealousy of their rivals, had +contributed to that revolution, obtained similar immunities. This powerful +and enterprising state, in the fourteenth century, sometimes the ally, +sometimes the enemy, of the Byzantine court, maintained its independent +settlement at Pera. From thence she spread her sails into the Euxine, and, +planting a colony at Caffa in the Crimea, extended a line of commerce with +the interior regions of Asia, which even the skill and spirit of our own +times has not yet been able to revive.<a name="FNanchor_606_606" id="FNanchor_606_606"></a><a href="#Footnote_606_606" class="fnanchor">[p]</a></p> + +<p>The French provinces which border on the Mediterranean Sea partook in the +advantages which it offered. Not only Marseilles, whose trade had +continued in a certain degree throughout the worst ages, but Narbonne, +<span class="pagenum"><a name="Page_331" id="Page_331">[Pg 331]</a></span> +Nismes, and especially Montpelier, were distinguished for commercial +prosperity.<a name="FNanchor_607_607" id="FNanchor_607_607"></a><a href="#Footnote_607_607" class="fnanchor">[q]</a> +A still greater activity prevailed in Catalonia. From the +middle of the thirteenth century (for we need not trace the rudiments of +its history) Barcelona began to emulate the Italian cities in both the +branches of naval energy, war and commerce. Engaged in frequent and severe +hostilities with Genoa, and sometimes with Constantinople, while their +vessels traded to every part of the Mediterranean, and even of the English +Channel, the Catalans might justly be reckoned among the first of maritime +nations. The commerce of Barcelona has never since attained so great a +height as in the fifteenth century.<a name="FNanchor_608_608" id="FNanchor_608_608"></a><a href="#Footnote_608_608" class="fnanchor">[r]</a></p> + +<div class="sidenote">Their manufactures.</div> + +<p>The introduction of a silk manufacture at Palermo, by Roger Guiscard in +1148, gave perhaps the earliest impulse to the industry of Italy. Nearly +about the same time the Genoese plundered two Moorish cities of Spain, +from which they derived the same art. In the next age this became a staple +manufacture of the Lombard and Tuscan republics, and the cultivation of +mulberries was enforced by their +laws.<a name="FNanchor_609_609" id="FNanchor_609_609"></a><a href="#Footnote_609_609" class="fnanchor">[s]</a> +Woollen stuffs, though the trade was perhaps less conspicuous than that of Flanders, and though many +of the coarser kinds were imported from thence, employed a multitude of +workmen in Italy, Catalonia, and the south of +France.<a name="FNanchor_610_610" id="FNanchor_610_610"></a><a href="#Footnote_610_610" class="fnanchor">[t]</a> +Among the trading companies into which the middling ranks were distributed, those +concerned in silk and woollens were most numerous and +honourable.<a name="FNanchor_611_611" id="FNanchor_611_611"></a><a href="#Footnote_611_611" class="fnanchor">[u]</a></p> + +<div class="sidenote">Invention of the mariner's compass.</div> + +<p>A property of a natural substance, long overlooked +<span class="pagenum"><a name="Page_332" id="Page_332">[Pg 332]</a></span> even though it +attracted observation by a different peculiarity, has influenced by its +accidental discovery the fortunes of mankind more than all the deductions +of philosophy. It is, perhaps, impossible to ascertain the epoch when the +polarity of the magnet was first known in Europe. The common opinion, +which ascribes its discovery to a citizen of Amalfi in the fourteenth +century, is undoubtedly erroneous. Guiot de Provins, a French poet, who +lived about the year 1200, or, at the latest, under St. Louis, describes +it in the most unequivocal language. James de Vitry, a bishop in +Palestine, before the middle of the thirteenth century, and Guido +Guinizzelli, an Italian poet of the same time, are equally explicit. The +French, as well as Italians, claim the discovery as their own; but whether +it were due to either of these nations, or rather learned from their +intercourse with the Saracens, is not easily to be +ascertained.<a name="FNanchor_612_612" id="FNanchor_612_612"></a><a href="#Footnote_612_612" class="fnanchor">[x]</a> For +some time, perhaps, even this wonderful improvement in the art of +navigation might not be universally adopted by vessels sailing within +<span class="pagenum"><a name="Page_333" id="Page_333">[Pg 333]</a></span> the +Mediterranean, and accustomed to their old system of observations. But +when it became more established, it naturally inspired a more fearless +spirit of adventure. It was not, as has been mentioned, till the beginning +of the fourteenth century that the Genoese and other nations around that +inland sea steered into the Atlantic Ocean towards England and Flanders. +This intercourse with the northern countries enlivened their trade with +the Levant by the exchange of productions which Spain and Italy do not +supply, and enriched the merchants by means of whose capital the exports +of London and of Alexandria were conveyed into each other's harbours.</p> + +<div class="sidenote">Maritime laws.</div> + +<p>The usual risks of navigation, and those incident to commercial adventure, +produce a variety of questions in every system of jurisprudence, which, +though always to be determined, as far as possible, by principles of +natural justice, must in many cases depend upon established customs. These +customs of maritime law were anciently reduced into a code by the +Rhodians, and the Roman emperors preserved or reformed the constitutions +of that republic. It would be hard to say how far the tradition of this +early jurisprudence survived the decline of commerce in the darker ages; +but after it began to recover itself, necessity suggested, or recollection +prompted, a scheme of regulations resembling in some degree, but much more +enlarged than those of antiquity. This was formed into a written code, Il +Consolato del Mare, not much earlier, probably, than the middle of the +thirteenth century; and its promulgation seems rather to have proceeded +from the citizens of Barcelona than from those of Pisa or Venice, who have +also claimed to be the first legislators of the +sea.<a name="FNanchor_613_613" id="FNanchor_613_613"></a><a href="#Footnote_613_613" class="fnanchor">[y]</a> Besides +regulations simply mercantile, +<span class="pagenum"><a name="Page_334" id="Page_334">[Pg 334]</a></span> +this system has defined the mutual rights +of neutral and belligerent vessels, and thus laid the basis of the +positive law of nations in its most important and disputed cases. The king +of France and count of Provence solemnly acceded to this maritime code, +which hence acquired a binding force within the Mediterranean Sea; and in +most respects the law merchant of Europe is at present conformable to its +provisions. A set of regulations, chiefly borrowed from the Consolato, was +compiled in France under the reign of Louis IX., and prevailed in their +own country. These have been denominated the laws of Oleron, from an idle +story that they were enacted by Richard I., while his expedition to the +Holy Land lay at anchor in that +island.<a name="FNanchor_614_614" id="FNanchor_614_614"></a><a href="#Footnote_614_614" class="fnanchor">[z]</a> +Nor was the north without its peculiar code of maritime jurisprudence; namely, the Ordinances of Wisbuy, +a town in the isle of Gothland, principally compiled from those of Oleron, +before the year 1400, by which the Baltic traders were +governed.<a name="FNanchor_615_615" id="FNanchor_615_615"></a><a href="#Footnote_615_615" class="fnanchor">[a]</a></p> + +<div class="sidenote">Frequency of piracy.</div> + +<div class="sidenote">Law of reprisals.</div> + +<p>There was abundant reason for establishing among maritime nations some +theory of mutual rights, and for securing the redress of injuries, as far +as possible, by means of acknowledged tribunals. In that state of +barbarous anarchy which so long resisted the coercive authority of civil +magistrates, the sea held out even more temptation and more impunity than +the land; and when the laws had regained their sovereignty, and neither +robbery nor private warfare was any longer tolerated, there remained that +great common of mankind, unclaimed by any king, and the liberty of the sea +was another name for the security of plunderers. A pirate, in a well-armed +quick-sailing vessel, must feel, I suppose, the enjoyments of his +exemption from control more exquisitely +<span class="pagenum"><a name="Page_335" id="Page_335">[Pg 335]</a></span> +than any other freebooter; and +darting along the bosom of the ocean, under the impartial radiance of the +heavens, may deride the dark concealments and hurried flights of the +forest robber. His occupation is, indeed, extinguished by the civilization +of later ages, or confined to distant climates. But in the thirteenth and +fourteenth centuries, a rich vessel was never secure from attack; and +neither restitution nor punishment of the criminals was to be obtained +from governments who sometimes feared the plunderer and sometimes connived +at the offence.<a name="FNanchor_616_616" id="FNanchor_616_616"></a><a href="#Footnote_616_616" class="fnanchor">[b]</a> +Mere piracy, however, was not the only danger. The +maritime towns of Flanders, France, and England, like the free republics +of Italy, prosecuted their own quarrels by arms, without asking the leave +of their respective sovereigns. This practice, exactly analogous to that +of private war in the feudal system, more than once involved the kings of +France and England in +hostility.<a name="FNanchor_617_617" id="FNanchor_617_617"></a><a href="#Footnote_617_617" class="fnanchor">[c]</a> +But where the quarrel did not +proceed to such a length as absolutely to engage two opposite towns, a +modification of this ancient right of revenge formed part of the regular +law of nations, under the name of reprisals. Whoever was plundered or +injured by the inhabitant of another town obtained authority from his own +magistrates to seize the property of any other person belonging to it, +until his loss should be compensated. This law of reprisal was not +confined to maritime places; it prevailed in Lombardy, and probably in the +German cities. Thus, if a citizen of Modena was robbed by a Bolognese, he +complained to the magistrates of the former city, who represented the case +to those of Bologna, demanding redress. If this were not immediately +granted, letters of reprisals were issued to plunder the territory of +Bologna till the injured party should be reimbursed by sale of the +spoil.<a name="FNanchor_618_618" id="FNanchor_618_618"></a><a href="#Footnote_618_618" class="fnanchor">[d]</a> +In the laws of Marseilles it is declared, "If a foreigner take anything from +<span class="pagenum"><a name="Page_336" id="Page_336">[Pg 336]</a></span> +a citizen of Marseilles, and he who has jurisdiction over +the said debtor or unjust taker does not cause right to be done in the +same, the rector or consuls, at the petition of the said citizen, shall +grant him reprisals upon all the goods of the said debtor or unjust taker, +and also upon the goods of others who are under the jurisdiction of him +who ought to do justice, and would not, to the said citizen of +Marseilles."<a name="FNanchor_619_619" id="FNanchor_619_619"></a><a href="#Footnote_619_619" class="fnanchor">[e]</a> +Edward III. remonstrates, in an instrument published by +Rymer, against letters of marque granted by the king of Aragon to one +Berenger de la Tone, who had been robbed by an English pirate of 2000<i>l.</i>, +alleging that, inasmuch as he had always been ready to give redress to the +party, it seemed to his counsellors that there was no just cause for +reprisals upon the king's or his subjects' +property.<a name="FNanchor_620_620" id="FNanchor_620_620"></a><a href="#Footnote_620_620" class="fnanchor">[f]</a> +This passage is so far curious as it asserts the existence of a customary law of nations, +the knowledge of which was already a sort of learning. Sir E. Coke speaks +of this right of private reprisals as if it still +existed;<a name="FNanchor_621_621" id="FNanchor_621_621"></a><a href="#Footnote_621_621" class="fnanchor">[g]</a> and, in +fact, there are instances of granting such letters as late as the reign of +Charles I.</p> + +<div class="sidenote">Liability of aliens for each other's debts.</div> + +<p>A practice, founded on the same principles as reprisal, though rather less +violent, was that of attaching the goods or persons of resident foreigners +for the debts of their countrymen. This indeed, in England, was not +confined to foreigners until the statute of Westminster I. c. 23, which +enacts that "no stranger who is of this realm shall be distrained in any +town or market for a debt wherein he is neither principal nor surety." +Henry III. had previously granted a charter to the burgesses of Lubec, +that they should "not be arrested for the debt of any of their countrymen, +unless the magistrates of Lubec neglected to compel +payment."<a name="FNanchor_622_622" id="FNanchor_622_622"></a><a href="#Footnote_622_622" class="fnanchor">[h]</a> But by +a variety of grants from Edward II. the privileges of English subjects +under the statute of Westminster were extended to most foreign +nations.<a name="FNanchor_623_623" id="FNanchor_623_623"></a><a href="#Footnote_623_623" class="fnanchor">[i]</a> +<span class="pagenum"><a name="Page_337" id="Page_337">[Pg 337]</a></span> +This unjust responsibility had not been confined to civil +cases. One of a company of Italian merchants, the Spini, having killed a +man, the officers of justice seized the bodies and effects of all the +rest.<a name="FNanchor_624_624" id="FNanchor_624_624"></a><a href="#Footnote_624_624" class="fnanchor">[k]</a></p> + +<div class="sidenote">Great profits of trade,</div> + +<div class="sidenote">and high rate of interest.</div> + +<div class="sidenote">Money dealings of the Jews.</div> + +<p>If under all these obstacles, whether created by barbarous manners, by +national prejudice, or by the fraudulent and arbitrary measures of +princes, the merchants of different countries became so opulent as almost +to rival the ancient nobility, it must be ascribed to the greatness of +their commercial profits. The trading companies possessed either a +positive or a virtual monopoly, and held the keys of those eastern +regions, for the luxuries of which the progressive refinement of manners +produced an increasing demand. It is not easy to determine the average +rate of profit;<a name="FNanchor_625_625" id="FNanchor_625_625"></a><a href="#Footnote_625_625" class="fnanchor">[m]</a> +but we know that the interest of money was +exceedingly high throughout the middle ages. At Verona, in 1228, it was +fixed by law at twelve and a half per cent.; at Modena, in 1270, it seems +to have been as high as twenty.<a name="FNanchor_626_626" id="FNanchor_626_626"></a><a href="#Footnote_626_626" class="fnanchor">[n]</a> +The republic of Genoa, towards the +end of the fourteenth century, when Italy had grown wealthy, paid only +from seven to ten per cent. to her +creditors.<a name="FNanchor_627_627" id="FNanchor_627_627"></a><a href="#Footnote_627_627" class="fnanchor">[o]</a> +But in France and England the rate was far more oppressive. An ordinance of Philip the Fair, +in 1311, allows twenty per cent. after the first year of the +loan.<a name="FNanchor_628_628" id="FNanchor_628_628"></a><a href="#Footnote_628_628" class="fnanchor">[p]</a> +Under Henry III., according to Matthew Paris, the debtor paid ten per +cent. every two months;<a name="FNanchor_629_629" id="FNanchor_629_629"></a><a href="#Footnote_629_629" class="fnanchor">[q]</a> +but this is absolutely incredible as a +general practice. This was not merely owing to scarcity of money, but to +the discouragement which a strange prejudice opposed, to one of the most +useful and legitimate branches of commerce. Usury, or lending money for +profit, was treated as a crime by the theologians of the middle ages; and +though the superstition has been eradicated, some part of the prejudice +remains in our legislation. This trade in +<span class="pagenum"><a name="Page_338" id="Page_338">[Pg 338]</a></span> +money, and indeed a great part +of inland trade in general, had originally fallen to the Jews, who were +noted for their usury so early as the sixth +century.<a name="FNanchor_630_630" id="FNanchor_630_630"></a><a href="#Footnote_630_630" class="fnanchor">[r]</a> +For several subsequent ages they continued to employ their capital and industry to the +same advantage, with little molestation from the clergy, who always +tolerated their avowed and national infidelity, and often with some +encouragement from princes. In the twelfth century we find them not only +possessed of landed property in Languedoc, and cultivating the studies of +medicine and Rabbinical literature in their own academy at Montpelier, +under the protection of the count of Toulouse, but invested with civil +offices.<a name="FNanchor_631_631" id="FNanchor_631_631"></a><a href="#Footnote_631_631" class="fnanchor">[s]</a> +Raymond Roger, viscount of Carcasonne, directs a writ "to +his bailiffs, Christian and Jewish."<a name="FNanchor_632_632" id="FNanchor_632_632"></a><a href="#Footnote_632_632" class="fnanchor">[t]</a> +It was one of the conditions +imposed by the church on the count of Toulouse, that he should allow no +Jews to possess magistracy in his +dominions.<a name="FNanchor_633_633" id="FNanchor_633_633"></a><a href="#Footnote_633_633" class="fnanchor">[u]</a> +But in Spain they were placed by some of the municipal laws on the footing of Christians, with +respect to the composition for their lives, and seem in no other European +country to have been so numerous or +considerable.<a name="FNanchor_634_634" id="FNanchor_634_634"></a><a href="#Footnote_634_634" class="fnanchor">[x]</a> The diligence and +expertness of this people in all pecuniary dealings recommended them to +princes who were solicitous about the improvement of their revenue. We +find an article in the general charter of privileges granted by Peter III. +of Aragon, in 1283, that no Jew should hold the office of a bayle or +judge. And two kings of Castile, Alonzo XI. and Peter the Cruel, incurred +much odium by employing Jewish ministers in their treasury. But, in other +parts of Europe, their condition had, before that time, begun to change +for the worse—partly from the fanatical spirit of the crusades, which +prompted the populace to massacre, and partly from the jealousy which +their opulence excited. Kings, in order to gain money and popularity at +once, abolished the debts due to the children of Israel, except a part +which they retained as the price of their bounty. One is at a loss to +conceive the process of reasoning in an ordinance of St. Louis, where, +"for the salvation of his own soul and those of his ancestors, he releases to all +<span class="pagenum"><a name="Page_339" id="Page_339">[Pg 339]</a></span> +Christians a third part of what was owing by them to +Jews."<a name="FNanchor_635_635" id="FNanchor_635_635"></a><a href="#Footnote_635_635" class="fnanchor">[y]</a> +Not content with such edicts, the kings of France sometimes banished the +whole nation from their dominions, seizing their effects at the same time; +and a season of alternative severity and toleration continued till, under +Charles VI., they were finally expelled from the kingdom, where they never +afterwards possessed any legal +settlement.<a name="FNanchor_636_636" id="FNanchor_636_636"></a><a href="#Footnote_636_636" class="fnanchor">[z]</a> +They were expelled from +England under Edward I., and never obtained any legal permission to reside +till the time of Cromwell. This decline of the Jews was owing to the +transference of their trade in money to other hands. In the early part of +the thirteenth century the merchants of Lombardy and of the south of +France<a name="FNanchor_637_637" id="FNanchor_637_637"></a><a href="#Footnote_637_637" class="fnanchor">[a]</a> +took up the business of remitting money by bills of +exchange,<a name="FNanchor_638_638" id="FNanchor_638_638"></a><a href="#Footnote_638_638" class="fnanchor">[b]</a> +and of making profit upon loans. The utility of this was +found so great, especially by the Italian clergy, who thus in an easy +manner drew the income of their transalpine benefices, that in spite of +much obloquy, the Lombard usurers established themselves in every country, +and the general progress of commerce wore off the bigotry that had +obstructed their reception. A distinction was made between moderate and +exorbitant interest; and though the casuists did not acquiesce in this +legal regulation, yet it satisfied, even in superstitious times, the +consciences of provident +traders.<a name="FNanchor_639_639" id="FNanchor_639_639"></a><a href="#Footnote_639_639" class="fnanchor">[c]</a> +The Italian bankers were frequently +allowed to farm the customs in England, as a security perhaps +<span class="pagenum"><a name="Page_340" id="Page_340">[Pg 340]</a></span> for loans +which, were not very punctually +repaid.<a name="FNanchor_640_640" id="FNanchor_640_640"></a><a href="#Footnote_640_640" class="fnanchor">[d]</a> +In 1345 the Bardi at Florence, the greatest company in Italy, became bankrupt, Edward III. +owing them, in principal and interest, 900,000 gold florins. Another, the +Peruzzi, failed at the same time, being creditors to Edward for 600,000 +florins. The king of Sicily owed 100,000 florins to each of these bankers. +Their failure involved, of course, a multitude of Florentine citizens, and +was a heavy misfortune to the +state.<a name="FNanchor_641_641" id="FNanchor_641_641"></a><a href="#Footnote_641_641" class="fnanchor">[e]</a></p> + +<div class="sidenote">Banks of Genoa and others.</div> + +<p>The earliest bank of deposit, instituted for the accommodation of private +merchants, is said to have been that of Barcelona, +in 1401.<a name="FNanchor_642_642" id="FNanchor_642_642"></a><a href="#Footnote_642_642" class="fnanchor">[f]</a> +The banks of Venice and Genoa were of a different description. Although the former +of these two has the advantage of greater antiquity, having been formed, +as we are told, in the twelfth century, yet its early history is not so +clear as that of Genoa, nor its political importance so remarkable, +however similar might be its origin.<a name="FNanchor_643_643" id="FNanchor_643_643"></a><a href="#Footnote_643_643" class="fnanchor">[g]</a> +During the wars of Genoa in the +fourteenth century, she had borrowed large sums of private citizens, to +whom the revenues were pledged for repayment. The republic of Florence had +set a recent, though not a very encouraging example of a public loan, to +defray the expense of her war against Mastino della Scala, in 1336. The +chief mercantile firms, as well as individual citizens, furnished money on +an assignment of the taxes, receiving fifteen per cent. interest, which +appears to have been above the +<span class="pagenum"><a name="Page_341" id="Page_341">[Pg 341]</a></span> +rate of private usury.<a name="FNanchor_644_644" id="FNanchor_644_644"></a><a href="#Footnote_644_644" class="fnanchor">[h]</a> The state was +not unreasonably considered a worse debtor than some of her citizens, for +in a few years these loans were consolidated into a general fund, or +<i>monte</i>, with some deduction from the capital and a great diminution of +interest; so that an original debt of one hundred florins sold only for +twenty-five.<a name="FNanchor_645_645" id="FNanchor_645_645"></a><a href="#Footnote_645_645" class="fnanchor">[i]</a> +But I have not found that these creditors formed at +Florence a corporate body, or took any part, as such, in the affairs of +the republic. The case was different at Genoa. As a security, at least, +for their interest, the subscribers to public loans were permitted to +receive the produce of the taxes by their own collectors, paying the +excess into the treasury. The number and distinct classes of these +subscribers becoming at length inconvenient, they were formed, about the +year 1407, into a single corporation, called the bank of St. George, which +was from that time the sole national creditor and mortgagee. The +government of this was intrusted to eight protectors. It soon became +almost independent of the state. Every senator, on his admission, swore to +maintain the privileges of the bank, which were confirmed by the pope, and +even by the emperor. The bank interposed its advice in every measure of +government, and generally, as is admitted, to the public advantage. It +equipped armaments at its own expense, one of which subdued the island of +Corsica; and this acquisition, like those of our great Indian corporation, +was long subject to a company of merchants, without any interference of +the mother country.<a name="FNanchor_646_646" id="FNanchor_646_646"></a><a href="#Footnote_646_646" class="fnanchor">[k]</a></p> + +<div class="sidenote">Increase of domestic expenditure.</div> + +<p>The increasing wealth of Europe, whether derived from internal improvement +or foreign commerce, displayed itself in more expensive consumption, and +greater refinements of domestic life. But these effects were for a long +time very gradual, each generation making a few steps in the progress, +which are hardly discernible except by an attentive inquirer. It is not +till the latter half of the thirteenth century that an accelerated impulse +appears to be given to society. The just government and suppression of +disorder under St. +<span class="pagenum"><a name="Page_342" id="Page_342">[Pg 342]</a></span> +Louis, and the peaceful temper of his brother Alfonso, +count of Toulouse and Poitou, gave France leisure to avail herself of her +admirable fertility. England, that to a soil not greatly inferior to that +of France united the inestimable advantage of an insular position, and was +invigorated, above all, by her free constitution and the steady +industriousness of her people, rose with a pretty uniform motion from the +time of Edward I. Italy, though the better days of freedom had passed away +in most of her republics, made a rapid transition from simplicity to +refinement. "In those times," says a writer about the year 1300, speaking +of the age of Frederic II., "the manners of the Italians were rude. A man +and his wife ate off the same plate. There was no wooden-handled knives, +nor more than one or two drinking cups in a house. Candles of wax or +tallow were unknown; a servant held a torch during supper. The clothes of +men were of leather unlined: scarcely any gold or silver was seen on their +dress. The common people ate flesh but three times a week, and kept their +cold meat for supper. Many did not drink wine in summer. A small stock of +corn seemed riches. The portions of women were small; their dress, even +after marriage, was simple. The pride of men was to be well provided with +arms and horses; that of the nobility to have lofty towers, of which all +the cities in Italy were full. But now frugality has been changed for +sumptuousness; every thing exquisite is sought after in dress; gold, +silver, pearls, silks, and rich furs. Foreign wines and rich meats are +required. Hence usury, rapine, fraud, tyranny," +&c.<a name="FNanchor_647_647" id="FNanchor_647_647"></a><a href="#Footnote_647_647" class="fnanchor">[m]</a> +This passage is supported by other testimonies nearly of the same time. The conquest of +Naples by Charles of Anjou in 1266 seems to have been the epoch of +increasing luxury throughout Italy. His Provençal knights with their +plumed helmets and golden collars, the chariot of his +<span class="pagenum"><a name="Page_343" id="Page_343">[Pg 343]</a></span> queen covered with +blue velvet and sprinkled with lilies of gold, astonished the citizens of +Naples.<a name="FNanchor_648_648" id="FNanchor_648_648"></a><a href="#Footnote_648_648" class="fnanchor">[n]</a> +Provence had enjoyed a long tranquillity, the natural source +of luxurious magnificence; and Italy, now liberated from the yoke of the +empire, soon reaped the same fruit of a condition more easy and peaceful +than had been her lot for several ages. Dante speaks of the change of +manners at Florence from simplicity and virtue to refinement and +dissoluteness, in terms very nearly similar to those quoted +above.<a name="FNanchor_649_649" id="FNanchor_649_649"></a><a href="#Footnote_649_649" class="fnanchor">[o]</a></p> + +<p>Throughout the fourteenth century there continued to be a rapid but steady +progression in England of what we may denominate elegance, improvement, or +luxury; and if this was for a time suspended in France, it must be +ascribed to the unusual calamities which befell that country under Philip +of Valois and his son. Just before the breaking out of the English wars an +excessive fondness for dress is said to have distinguished not only the +higher ranks, but the burghers, whose foolish emulation at least indicates +their easy circumstances.<a name="FNanchor_650_650" id="FNanchor_650_650"></a><a href="#Footnote_650_650" class="fnanchor">[p]</a> +Modes of dress hardly perhaps deserve our +notice on their own account; yet so far as their universal prevalence was +a symptom of diffused wealth, we should not overlook either the invectives +bestowed by the clergy on the fantastic extravagances of fashion, or the +sumptuary laws by which it was endeavoured to restrain them.</p> + +<div class="sidenote">Sumptuary laws.</div> + +<p>The principle of sumptuary laws was partly derived from the small +republics of antiquity, which might perhaps require that security for +public spirit and equal rights—partly from the austere and injudicious +theory of religion disseminated by the clergy. These prejudices united to +render all increase of general comforts odious under the name of luxury; +and a third motive more powerful than either, the jealousy with +<span class="pagenum"><a name="Page_344" id="Page_344">[Pg 344]</a></span> which the +great regard anything like imitation in those beneath them, co-operated to +produce a sort of restrictive code in the laws of Europe. Some of these +regulations are more ancient; but the chief part were enacted, both in +France and England, during the fourteenth century, extending to expenses +of the table as well as apparel. The first statute of this description in +our own country was, however, repealed the next +year;<a name="FNanchor_651_651" id="FNanchor_651_651"></a><a href="#Footnote_651_651" class="fnanchor">[q]</a> +and subsequent provisions were entirely disregarded by a nation which valued liberty and +commerce too much to obey laws conceived in a spirit hostile to both. Laws +indeed designed by those governments to restrain the extravagance of their +subjects may well justify the severe indignation which Adam Smith has +poured upon all such interference with private expenditure. The kings of +France and England were undoubtedly more egregious spendthrifts than any +others in their dominions; and contributed far more by their love of +pageantry to excite a taste for dissipation in their people than by their +ordinances to repress it.</p> + +<div class="sidenote">Domestic manners of Italy.</div> + +<p>Mussus, an historian of Placentia, has left a pretty copious account of +the prevailing manners among his countrymen about 1388, and expressly +contrasts their more luxurious living with the style of their ancestors +seventy years before, when, as we have seen, they had already made +considerable steps towards refinement. This passage is highly interesting, +because it shows the regular tenor of domestic economy in an Italian city +rather than a mere display of individual magnificence, as in most of the +facts collected by our own and the French antiquaries. But it is much too +long for insertion in this +place.<a name="FNanchor_652_652" id="FNanchor_652_652"></a><a href="#Footnote_652_652" class="fnanchor">[r]</a> +No other country, perhaps, could +exhibit so fair a picture of middle life: in France the burghers, and even +the inferior gentry, were for the most part in a state of poverty at this +period, which they concealed by an affectation of ornament; while our +English yeomanry and tradesmen were more anxious to +<span class="pagenum"><a name="Page_345" id="Page_345">[Pg 345]</a></span> invigorate their +bodies by a generous diet than to dwell in well furnished houses, or to +find comfort in cleanliness and +elegance.<a name="FNanchor_653_653" id="FNanchor_653_653"></a><a href="#Footnote_653_653" class="fnanchor">[s]</a> +The German cities, however, had acquired with liberty the spirit of improvement and industry. From the +time that Henry V. admitted their artisans to the privileges of free +burghers they became more and more +prosperous;<a name="FNanchor_654_654" id="FNanchor_654_654"></a><a href="#Footnote_654_654" class="fnanchor">[t]</a> while the steadiness +and frugality of the German character compensated for some disadvantages +arising out of their inland situation. Spire, Nuremberg, Ratisbon, and +Augsburg were not indeed like the rich markets of London and Bruges, nor +could their burghers rival the princely merchants of Italy; but they +enjoyed the blessings of competence diffused over a large class of +industrious freemen, and in the fifteenth century one of the politest +Italians could extol their splendid and well furnished dwellings, their +rich apparel, their easy and affluent mode of living, the security of +their rights and just equality of their +laws.<a name="FNanchor_655_655" id="FNanchor_655_655"></a><a href="#Footnote_655_655" class="fnanchor">[u]</a></p> + +<div class="sidenote">Civil architecture.</div> + +<p>No chapter in the history of national manners would illustrate so well, if +duly executed, the progress of social +<span class="pagenum"><a name="Page_346" id="Page_346">[Pg 346]</a></span> life as that dedicated to domestic +architecture. The fashions of dress and of amusements are generally +capricious and irreducible to rule; but every change in the dwellings of +mankind, from the rudest wooden cabin to the stately mansion, has been +dictated by some principle of convenience, neatness, comfort, or +magnificence. Yet this most interesting field of research has been less +beaten by our antiquaries than others comparatively barren. I do not +pretend to a complete knowledge of what has been written by these learned +inquirers; but I can only name one book in which the civil architecture of +our ancestors has been sketched, loosely indeed, but with a superior hand, +and another in which it is partially noticed. I mean by the first a +chapter in the Appendix to Dr. Whitaker's History of Whalley; and by the +second Mr. King's Essays on Ancient Castles in the +Archæologia.<a name="FNanchor_656_656" id="FNanchor_656_656"></a><a href="#Footnote_656_656" class="fnanchor">[x]</a> Of +these I shall make free use in the following paragraphs.</p> + +<p>The most ancient buildings which we can trace in this island, after the +departure of the Romans, were circular towers of no great size, whereof +many remain in Scotland, erected either on a natural eminence or on an +artificial mound of earth. Such are Conisborough Castle in Yorkshire and +Castleton in Derbyshire, built perhaps, according to Mr. King, before the +Conquest.<a name="FNanchor_657_657" id="FNanchor_657_657"></a><a href="#Footnote_657_657" class="fnanchor">[y]</a> +To the lower chambers of those gloomy keeps there was no +admission of light or air except through long narrow loop-holes and an +aperture in the roof. Regular windows were made in the upper apartments. +Were it not for the vast thickness of the walls, and some marks of +attention both to convenience and decoration in these structures, we might +be induced to consider them as rather intended for security +<span class="pagenum"><a name="Page_347" id="Page_347">[Pg 347]</a></span> during the +transient inroad of an enemy than for a chieftain's usual residence. They +bear a close resemblance, except by their circular form and more insulated +situation, to the peels, or square towers of three or four stories, which +are still found contiguous to ancient mansion-houses, themselves far more +ancient, in the northern +counties,<a name="FNanchor_658_658" id="FNanchor_658_658"></a><a href="#Footnote_658_658" class="fnanchor">[z]</a> +and seem to have been designed for places of refuge.</p> + +<p>In course of time, the barons who owned these castles began to covet a +more comfortable dwelling. The keep was either much enlarged, or +altogether relinquished as a place of residence except in time of siege; +while more convenient apartments were sometimes erected in the tower of +entrance, over the great gateway, which led to the inner ballium or +court-yard. Thus at Tunbridge Castle, this part of which is referred by +Mr. King to the beginning of the thirteenth century, there was a room, +twenty-eight feet by sixteen, on each side of the gateway; another above +of the same dimensions, with an intermediate room over the entrance; and +one large apartment on the second floor occupying the whole space, and +intended for state. The windows in this class of castles were still little +better than loop-holes on the basement story, but in the upper rooms often +large and beautifully ornamented, though always looking inwards to the +court. Edward I. introduced a more splendid and convenient style of +castles, containing many habitable towers, with communicating apartments. +Conway and Carnarvon will be familiar examples. The next innovation was +the castle-palace—of which Windsor, if not quite the earliest, is the +most magnificent instance. Alnwick, Naworth, Harewood, Spofforth, +Kenilworth, and Warwick, were all built upon this scheme during the +fourteenth century, but subsequent enlargements have rendered caution +necessary to distinguish their original remains. "The odd mixture," says +Mr. King, "of convenience and magnificence with cautious designs for +protection and defence, and with the inconveniences of the former confined +plan of a close fortress, is very striking." The provisions for defence +became now, however, little more than nugatory; large arched windows, +<span class="pagenum"><a name="Page_348" id="Page_348">[Pg 348]</a></span> +like those of cathedrals, were introduced into halls, and this change in +architecture manifestly bears witness to the cessation of baronial wars +and the increasing love of splendour in the reign of Edward III.</p> + +<p>To these succeeded the castellated houses of the fifteenth century, such +as Herstmonceux in Sussex, Haddon Hall in Derbyshire, and the older part +of Knowle in Kent.<a name="FNanchor_659_659" id="FNanchor_659_659"></a><a href="#Footnote_659_659" class="fnanchor">[a]</a> +They resembled fortified castles in their strong +gateways, their turrets and battlements, to erect which a royal licence +was necessary; but their defensive strength could only have availed +against a sudden affray or attempt at forcible dispossession. They were +always built round one or two court-yards, the circumference of the first, +when they were two, being occupied by the offices and servants' rooms, +that of the second by the state-apartments. Regular quadrangular houses, +not castellated, were sometimes built during the same age, and under Henry +VII. became universal in the superior style of domestic +architecture.<a name="FNanchor_660_660" id="FNanchor_660_660"></a><a href="#Footnote_660_660" class="fnanchor">[b]</a> +The quadrangular form, as well from security and convenience as from +imitation of conventual houses, which were always constructed upon that +model, was generally preferred—even where the dwelling-house, as indeed +was usual, only took up one side of the enclosure, and the remaining three +contained the offices, stables, and farm-buildings, with walls of +communication. Several very old parsonages appear to have been built in +this manner.<a name="FNanchor_661_661" id="FNanchor_661_661"></a><a href="#Footnote_661_661" class="fnanchor">[c]</a> +It is, however, not very easy to discover any large +fragments of houses inhabited by the gentry before the reign, at soonest, +of Edward III., or even to trace them by engravings in the older +topographical works, not only from the dilapidations of time, but because +very few considerable mansions had been erected by that class. A great +part of England affords no stone fit for building, and the vast though +unfortunately not inexhaustible resources of her oak forests were easily +applied to less durable and magnificent structures. A frame of massive +timber, independent of walls and resembling the inverted hull of a large +ship, formed the skeleton, as it were, of an ancient hall—the principal +beams springing from the ground naturally +<span class="pagenum"><a name="Page_349" id="Page_349">[Pg 349]</a></span> curved, and forming a Gothic +arch overhead. The intervals of these were filled up with horizontal +planks; but in the earlier buildings, at least in some districts, no part +of the walls was of stone.<a name="FNanchor_662_662" id="FNanchor_662_662"></a><a href="#Footnote_662_662" class="fnanchor">[d]</a> +Stone houses are, however, mentioned as +belonging to citizens of London, even in the reign of Henry +II.;<a name="FNanchor_663_663" id="FNanchor_663_663"></a><a href="#Footnote_663_663" class="fnanchor">[e]</a> and, +though not often perhaps regularly hewn stones, yet those scattered over +the soil or dug from flint quarries, bound together with a very strong and +durable cement, were employed in the construction of manerial houses, +especially in the western counties and other parts where that material is +easily procured.<a name="FNanchor_664_664" id="FNanchor_664_664"></a><a href="#Footnote_664_664" class="fnanchor">[f]</a> +Gradually even in timber buildings the intervals of +the main beams, which now became perpendicular, not throwing off their +curved springers till they reached a considerable height, were occupied by +stone walls, or where stone was expensive, by mortar or plaster, +intersected by horizontal or diagonal beams, grooved into the principal +piers.<a name="FNanchor_665_665" id="FNanchor_665_665"></a><a href="#Footnote_665_665" class="fnanchor">[g]</a> +This mode of building continued for a long time, and is still +familiar to our eyes in the older streets of the metropolis and other +towns, and in many parts of the +country.<a name="FNanchor_666_666" id="FNanchor_666_666"></a><a href="#Footnote_666_666" class="fnanchor">[h]</a> +Early in the fourteenth century the art of building with brick, which had been lost since the +Roman dominion, was introduced probably from Flanders. Though several +edifices of that age are constructed with this material, it did not come +into general use till the reign of Henry +VI.<a name="FNanchor_667_667" id="FNanchor_667_667"></a><a href="#Footnote_667_667" class="fnanchor">[i]</a> +Many considerable houses as well as public buildings were erected with bricks during his reign and +that of Edward IV., chiefly in the eastern counties, where the deficiency +of stone was most experienced. Few, if any, brick mansion-houses of the +fifteenth century exist, except in a dilapidated state; but Queen's +College and Clare Hall at Cambridge, and part of Eton College, are +subsisting witnesses to the durability of the material as it was then +employed.</p> + +<div class="sidenote">Meanness of ordinary mansion-houses.</div> + +<p>It is an error to suppose that the English gentry were +<span class="pagenum"><a name="Page_350" id="Page_350">[Pg 350]</a></span> lodged in stately +or even in well-sized houses. Generally speaking, their dwellings were +almost as inferior to those of their descendants in capacity as they were +in convenience. The usual arrangement consisted of an entrance-passage +running through the house, with a hall on one side, a parlour beyond, and +one or two chambers above, and on the opposite side, a kitchen, pantry, +and other offices.<a name="FNanchor_668_668" id="FNanchor_668_668"></a><a href="#Footnote_668_668" class="fnanchor">[k]</a> +Such was the ordinary manor-house of the fifteenth +and sixteenth centuries, as appears not only from the documents and +engravings, but as to the latter period, from the buildings themselves, +sometimes, though not very frequently, occupied by families of +consideration, more often converted into farm-houses or distinct +tenements. Larger structures were erected by men of great estates during +the reigns of Henry IV. and Edward IV.; but very few can be traced higher; +and such has been the effect of time, still more through the advance or +decline of families and the progress of architectural improvement, than +the natural decay of these buildings, that I should conceive it difficult +to name a house in England, still inhabited by a gentleman and not +belonging to the order of castles, the principal apartments of which are +older than the reign of Henry VII. The instances at least must be +extremely few.<a name="FNanchor_669_669" id="FNanchor_669_669"></a><a href="#Footnote_669_669" class="fnanchor">[m]</a></p> + +<p>France by no means appears to have made a greater progress than our own +country in domestic architecture. Except fortified castles, I do not find +in the work of a very miscellaneous but apparently diligent +writer,<a name="FNanchor_670_670" id="FNanchor_670_670"></a><a href="#Footnote_670_670" class="fnanchor">[n]</a> +any considerable dwellings mentioned before the reign of Charles VII., and +very few of so early a +date.<a name="FNanchor_671_671" id="FNanchor_671_671"></a><a href="#Footnote_671_671" class="fnanchor">[o]</a> Jacques +<span class="pagenum"><a name="Page_351" id="Page_351">[Pg 351]</a></span> Cœur, a famous merchant +unjustly persecuted by that prince, had a handsome house at Paris, as well +as another at Bourges.<a name="FNanchor_672_672" id="FNanchor_672_672"></a><a href="#Footnote_672_672" class="fnanchor">[p]</a> +It is obvious that the long calamities which +France endured before the expulsion of the English must have retarded this +eminent branch of national improvement.</p> + +<p>Even in Italy, where from the size of her cities and social refinements of +her inhabitants, greater elegance and splendour in building were justly to +be expected, the domestic architecture of the middle ages did not attain +any perfection. In several towns the houses were covered with thatch, and +suffered consequently from destructive fires. Costanzo, a Neapolitan +historian near the end of the sixteenth century, remarks the change of +manners that had occurred since the reign of Joanna II. one hundred and +fifty years before. The great families under the queen expended all their +wealth on their retainers, and placed their chief pride in bringing them +into the field. They were ill lodged, not sumptuously clothed, nor +luxurious in their tables. The house of Caracciolo, high steward of that +princess, one of the most powerful subjects that ever existed, having +fallen into the hands of persons incomparably below his station, had been +enlarged by them, as insufficient for their +accommodation.<a name="FNanchor_673_673" id="FNanchor_673_673"></a><a href="#Footnote_673_673" class="fnanchor">[q]</a> If such +were the case in the city of Naples so late as the beginning of the +fifteenth century, we may guess how mean were the habitations in less +polished parts of Europe.</p> + +<div class="sidenote">Invention of chimneys and glass windows.</div> + +<p>The two most essential improvements in architecture during this period, +one of which had been missed by the sagacity of Greece and Rome, were +chimneys and glass windows. Nothing apparently can be more simple than the former; +<span class="pagenum"><a name="Page_352" id="Page_352">[Pg 352]</a></span> +yet the wisdom of ancient times had been content to let the smoke +escape by an aperture in the centre of the roof; and a discovery, of which +Vitruvius had not a glimpse, was made, perhaps in this country, by some +forgotten semi-barbarian. About the middle of the fourteenth century the +use of chimneys is distinctly mentioned in England and in Italy; but they +are found in several of our castles which bear a much older +date.<a name="FNanchor_674_674" id="FNanchor_674_674"></a><a href="#Footnote_674_674" class="fnanchor">[r]</a> +This country seems to have lost very early the art of making glass, which +was preserved in France, whence artificers were brought into England to +furnish the windows in some new churches in the seventh +century.<a name="FNanchor_675_675" id="FNanchor_675_675"></a><a href="#Footnote_675_675" class="fnanchor">[s]</a> It +is said that in the reign of Henry III. a few ecclesiastical buildings had +glazed windows.<a name="FNanchor_676_676" id="FNanchor_676_676"></a><a href="#Footnote_676_676" class="fnanchor">[t]</a> +Suger, however, a century before, had adorned his +great work, the abbey of St. +<span class="pagenum"><a name="Page_353" id="Page_353">[Pg 353]</a></span> +Denis, with windows, not only glazed but +painted;<a name="FNanchor_677_677" id="FNanchor_677_677"></a><a href="#Footnote_677_677" class="fnanchor">[u]</a> +and I presume that other churches of the same class, both in +France and England, especially after the lancet-shaped window had yielded +to one of ampler dimensions, were generally decorated in a similar manner. +Yet glass is said not to have been employed in the domestic architecture +of France before the fourteenth +century;<a name="FNanchor_678_678" id="FNanchor_678_678"></a><a href="#Footnote_678_678" class="fnanchor">[x]</a> and its introduction into +England was probably by no means earlier. Nor indeed did it come into +general use during the period of the middle ages. Glazed windows were +considered as moveable furniture, and probably bore a high price. When the +earls of Northumberland, as late as the reign of Elizabeth, left Alnwick +Castle, the windows were taken out of their frames, and carefully laid +by.<a name="FNanchor_679_679" id="FNanchor_679_679"></a><a href="#Footnote_679_679" class="fnanchor">[y]</a></p> + +<div class="sidenote">Furniture of houses.</div> + +<p>But if the domestic buildings of the fifteenth century would not seem very +spacious or convenient at present, far less would this luxurious +generation be content with their internal accommodations. A gentleman's +house containing three or four beds was extraordinarily well provided; few +probably had more than two. The walls were commonly bare, without wainscot +or even plaster; except that some great houses were furnished with +hangings, and that perhaps hardly so soon as the reign of Edward IV. It is +unnecessary to add, that neither libraries of books nor pictures could +have found a place among furniture. Silver plate was very rare, and hardly +used for the table. A few inventories of furniture that still remain +exhibit a miserable +deficiency.<a name="FNanchor_680_680" id="FNanchor_680_680"></a><a href="#Footnote_680_680" class="fnanchor">[z]</a> +And this was incomparably greater in +private gentlemen's houses than among citizens, and especially foreign +merchants. We have an inventory of the goods belonging to Contarini, a +rich Venetian trader, at +<span class="pagenum"><a name="Page_354" id="Page_354">[Pg 354]</a></span> +his house in St. Botolph's Lane, <small>A.D.</small> 1481. +There appear to have been no less than ten beds, and glass windows are +especially noticed as moveable furniture. No mention however is made of +chairs or looking-glasses.<a name="FNanchor_681_681" id="FNanchor_681_681"></a><a href="#Footnote_681_681" class="fnanchor">[a]</a> +If we compare this account, however +trifling in our estimation, with a similar inventory of furniture in +Skipton Castle, the great honour of the earls of Cumberland, and among the +most splendid mansions of the north, not at the same period, for I have +not found any inventory of a nobleman's furniture so ancient, but in 1572, +after almost a century of continual improvement, we shall be astonished at +the inferior provision of the baronial residence. There were not more than +seven or eight beds in this great castle; nor had any of the chambers +either chairs, glasses, or +carpets.<a name="FNanchor_682_682" id="FNanchor_682_682"></a><a href="#Footnote_682_682" class="fnanchor">[b]</a> +It is in this sense, probably, +that we must understand Æneas Sylvius, if he meant any thing more than to +express a traveller's discontent, when he declares that the kings of +Scotland would rejoice to be as well lodged as the second class of +citizens at Nuremberg.<a name="FNanchor_683_683" id="FNanchor_683_683"></a><a href="#Footnote_683_683" class="fnanchor">[c]</a> +Few burghers of that town had mansions, I +presume, equal to the palaces of Dumferlin +<span class="pagenum"><a name="Page_355" id="Page_355">[Pg 355]</a></span> or Stirling, but it is not +unlikely that they were better furnished.</p> + +<div class="sidenote">Farm-houses and cottages.</div> + +<p>In the construction of farm-houses and cottages, especially the latter, +there have probably been fewer changes; and those it would be more +difficult to follow. No building of this class can be supposed to exist of +the antiquity to which the present work is confined; and I do not know +that we have any document as to the inferior architecture of England, so +valuable as one which M. de Paulmy has quoted for that of France, though +perhaps more strictly applicable to Italy, an illuminated manuscript of +the fourteenth century, being a translation of Crescentio's work on +agriculture, illustrating the customs, and, among other things, the +habitations of the agricultural class. According to Paulmy, there is no +other difference between an ancient and a modern farm-house than arises +from the introduction of tiled +roofs.<a name="FNanchor_684_684" id="FNanchor_684_684"></a><a href="#Footnote_684_684" class="fnanchor">[d]</a> +In the original work of Crescentio, a native of Bologna, who composed this treatise on rural +affairs about the year 1300, an Italian farm-house, when built at least +according to his plan, appears to have been commodious both in size and +arrangement.<a name="FNanchor_685_685" id="FNanchor_685_685"></a><a href="#Footnote_685_685" class="fnanchor">[e]</a> +Cottages in England seem to have generally consisted of +a single room without division of stories. Chimneys were unknown in such +dwellings till the early part of Elizabeth's reign, when a very rapid and +sensible improvement took place in the comforts of our yeomanry and +cottagers.<a name="FNanchor_686_686" id="FNanchor_686_686"></a><a href="#Footnote_686_686" class="fnanchor">[f]</a></p> + +<div class="sidenote">Ecclesiastical architecture.</div> + +<p>It must be remembered that I have introduced this disadvantageous +representation of civil architecture, as a proof of general poverty and +backwardness in the refinements of life. Considered in its higher +departments, that art is the principal boast of the middle ages. The +common buildings, especially those of a public kind, were constructed with +skill and attention to durability. The castellated style displays these +<span class="pagenum"><a name="Page_356" id="Page_356">[Pg 356]</a></span> +qualities in great perfection; the means are well adapted to their +objects, and its imposing grandeur, though chiefly resulting no doubt from +massiveness and historical association, sometimes indicates a degree of +architectural genius in the conception. But the most remarkable works of +this art are the religious edifices erected in the twelfth and three +following centuries. These structures, uniting sublimity in general +composition with the beauties of variety and form, intricacy of parts, +skilful or at least fortunate effects of shadow and light, and in some +instances with extraordinary mechanical science, are naturally apt to lead +those antiquaries who are most conversant with them into too partial +estimates of the times wherein they were founded. They certainly are +accustomed to behold the fairest side of the picture. It was the favourite +and most honourable employment of ecclesiastical wealth, to erect, to +enlarge, to repair, to decorate cathedral and conventual churches. An +immense capital must have been expended upon these buildings in England +between the Conquest and the Reformation. And it is pleasing to observe +how the seeds of genius, hidden as it were under the frost of that dreary +winter, began to bud in the first sunshine of encouragement. In the +darkest period of the middle ages, especially after the Scandinavian +incursions into France and England, ecclesiastical architecture, though +always far more advanced than any other art, bespoke the rudeness and +poverty of the times. It began towards the latter part of the eleventh +century, when tranquillity, at least as to former enemies, was restored, +and some degree of learning reappeared, to assume a more noble appearance. +The Anglo-Norman cathedrals were perhaps as much distinguished above other +works of man in their own age, as the more splendid edifices of a later +period. The science manifested in them is not, however, very great; and +their style, though by no means destitute of lesser beauties, is upon the +whole an awkward imitation of Roman architecture, or perhaps more +immediately of the Saracenic buildings in Spain and those of the lower +Greek empire.<a name="FNanchor_687_687" id="FNanchor_687_687"></a><a href="#Footnote_687_687" class="fnanchor">[g]</a> +But about the middle of the twelfth +<span class="pagenum"><a name="Page_357" id="Page_357">[Pg 357]</a></span> century, this +manner began to give place to what is improperly denominated the Gothic +architecture;<a name="FNanchor_688_688" id="FNanchor_688_688"></a><a href="#Footnote_688_688" class="fnanchor">[h]</a> +of which the pointed arch, formed by the segments of +two intersecting semicircles of equal radius and described about a common +diameter, has generally been deemed the essential characteristic. We are +not concerned at present to inquire whether this style originated in +France or Germany, Italy or England, since it was certainly almost +simultaneous in all these +countries;<a name="FNanchor_689_689" id="FNanchor_689_689"></a><a href="#Footnote_689_689" class="fnanchor">[i]</a> nor from +<span class="pagenum"><a name="Page_358" id="Page_358">[Pg 358]</a></span> what source it was +derived—a question of no small difficulty. I would only venture to +remark, that whatever may be thought of the origin of the pointed arch, +for which there is more than one mode of accounting, we must perceive a +very oriental character in the vast profusion of ornament, especially on +the exterior surface, which is as distinguishing a mark of Gothic +buildings as their arches, and contributes in an eminent degree both to +their beauties and to their defects. This indeed is rather applicable to +the later than the earlier stage of architecture, and rather to +continental than English churches. Amiens is in a far more florid style +than Salisbury, though a contemporary structure. The Gothic species of +architecture is thought by most to have reached its perfection, considered +as an object of taste, by the middle or perhaps the close of the +fourteenth century, or at least to have lost something of its excellence +by the corresponding part of the next age; an effect of its early and +rapid cultivation, since arts appear to have, like individuals, their +natural progress and decay. The mechanical +<span class="pagenum"><a name="Page_359" id="Page_359">[Pg 359]</a></span> +execution, however, continued +to improve, and is so far beyond the apparent intellectual powers of those +times, that some have ascribed the principal ecclesiastical structures to +the fraternity of freemasons, depositaries of a concealed and traditionary +science. There is probably some ground for this opinion; and the earlier +archives of that mysterious association, if they existed, might illustrate +the progress of Gothic architecture, and perhaps reveal its origin. The +remarkable change into this new style, that was almost contemporaneous in +every part of Europe, cannot be explained by any local circumstances, or +the capricious taste of a single +nation.<a name="FNanchor_690_690" id="FNanchor_690_690"></a><a href="#Footnote_690_690" class="fnanchor">[k]</a></p> + +<div class="sidenote">Agriculture in some degree progressive.</div> + +<p>It would be a pleasing task to trace with satisfactory exactness the slow, +and almost perhaps insensible progress of agriculture and internal +improvement during the latter period of the middle ages. But no diligence +could recover the unrecorded history of a single village; though +considerable attention has of late been paid to this interesting subject +by those antiquaries, who, though sometimes affecting to despise the +lights of modern philosophy, are unconsciously guided by their effulgence. +I have already adverted to the wretched condition of agriculture during +the prevalence of feudal tenures, as well as before their general +establishment.<a name="FNanchor_691_691" id="FNanchor_691_691"></a><a href="#Footnote_691_691" class="fnanchor">[m]</a> +Yet even +<span class="pagenum"><a name="Page_360" id="Page_360">[Pg 360]</a></span> +in the least civilized ages, there were not +wanting partial encouragements to cultivation, and the ameliorating +principle of human industry struggled against destructive revolutions and +barbarous disorder. The devastation of war from the fifth to the eleventh +century rendered land the least costly of all gifts, though it must ever +be the most truly valuable and permanent. Many of the grants to +monasteries, which strike us as enormous, were of districts absolutely +wasted, which would probably have been reclaimed by no other means. We owe +the agricultural restoration of a great part of Europe to the monks. They +chose, for the sake of retirement, secluded regions which they cultivated +with the labour of their hands.<a name="FNanchor_692_692" id="FNanchor_692_692"></a><a href="#Footnote_692_692" class="fnanchor">[n]</a> +Several charters are extant, granted to +<span class="pagenum"><a name="Page_361" id="Page_361">[Pg 361]</a></span> +convents, and sometimes to laymen, of lands which they had recovered +from a desert condition, after the ravages of the +Saracens.<a name="FNanchor_693_693" id="FNanchor_693_693"></a><a href="#Footnote_693_693" class="fnanchor">[o]</a> Some +districts were allotted to a body of Spanish colonists, who emigrated, in +the reign of Louis the Debonair, to live under a Christian +sovereign.<a name="FNanchor_694_694" id="FNanchor_694_694"></a><a href="#Footnote_694_694" class="fnanchor">[p]</a> +Nor is this the only instance of agricultural colonies. Charlemagne +transplanted part of his conquered Saxons into Flanders, a country at that +time almost unpeopled; and at a much later period, there was a remarkable +reflux from the same country, or rather from Holland to the coasts of the +Baltic Sea. In the twelfth century, great numbers of Dutch colonists +settled along the whole line between the Ems and the Vistula. They +obtained grants of uncultivated land on condition of fixed rents, and were +governed by their own laws under magistrates of their own +election.<a name="FNanchor_695_695" id="FNanchor_695_695"></a><a href="#Footnote_695_695" class="fnanchor">[q]</a></p> + +<p>There cannot be a more striking proof of the low condition of English +agriculture in the eleventh century, than is exhibited by Domesday Book. +Though almost all England had been partially cultivated, and we find +nearly the same manors, except in the north, which exist at present, yet +the value and extent of cultivated ground are inconceivably small. With +every allowance for the inaccuracies and partialities of those by whom that +<span class="pagenum"><a name="Page_362" id="Page_362">[Pg 362]</a></span> +famous survey was completed,<a name="FNanchor_696_696" id="FNanchor_696_696"></a><a href="#Footnote_696_696" class="fnanchor">[r]</a> +we are lost in amazement at the +constant recurrence of two or three carucates in demesne, with other lands +occupied by ten or a dozen villeins, valued altogether at forty shillings, +as the return of a manor, which now would yield a competent income to a +gentleman. If Domesday Book can he considered as even approaching to +accuracy in respect of these estimates, agriculture must certainly have +made a very material progress in the four succeeding centuries. This +however is rendered probable by other documents. Ingulfus, abbot of +Croyland under the Conqueror, supplies an early and interesting evidence +of improvement.<a name="FNanchor_697_697" id="FNanchor_697_697"></a><a href="#Footnote_697_697" class="fnanchor">[s]</a> +Richard de Rules, lord of Deeping, he tells us, being +fond of agriculture, obtained permission from the abbey to inclose a large +portion of marsh for the purpose of separate pasture, excluding the +Welland by a strong dike, upon which he erected a town, and rendering +those stagnant fens a garden of +Eden.<a name="FNanchor_698_698" id="FNanchor_698_698"></a><a href="#Footnote_698_698" class="fnanchor">[t]</a> +In imitation of this spirited cultivator, the inhabitants of Spalding and some neighbouring villages by +a common resolution divided their marshes amongst them; when some +converting them to tillage, some reserving them for meadow, others leaving +them in pasture, they found a rich soil for every purpose. The abbey of +Croyland and villages in that neighbourhood followed this +example.<a name="FNanchor_699_699" id="FNanchor_699_699"></a><a href="#Footnote_699_699" class="fnanchor">[u]</a> +This early instance of parochial inclosure is not to be overlooked in the +history of social progress. By the statute of Merton, in the 20th of Henry +III., the lord is permitted to approve, that is, to inclose the waste +lands of his manor, provided he leave sufficient common of pasture for the +freeholders. Higden, a +<span class="pagenum"><a name="Page_363" id="Page_363">[Pg 363]</a></span> +writer who lived about the time of Richard II., +says, in reference to the number of hydes and vills of England at the +Conquest, that by clearing of woods, and ploughing up wastes, there were +many more of each in his age than formerly.<a name="FNanchor_700_700" id="FNanchor_700_700"></a><a href="#Footnote_700_700" class="fnanchor">[x]</a> +And it might be easily presumed, independently of proof, that woods were cleared, marshes +drained, and wastes brought into tillage, during the long period that the +house of Plantagenet sat on the throne. From manerial surveys indeed and +similar instruments, it appears that in some places there was nearly as +much ground cultivated in the reign of Edward III. as at the present day. +The condition of different counties however was very far from being alike, +and in general the northern and western parts of England were the most +backward.<a name="FNanchor_701_701" id="FNanchor_701_701"></a><a href="#Footnote_701_701" class="fnanchor">[y]</a></p> + +<p>The culture of arable land was very imperfect. Fleta remarks, in the reign +of Edward I. or II., that unless an acre yielded more than six bushels of +corn, the farmer would be a loser, and the land yield no +rent.<a name="FNanchor_702_702" id="FNanchor_702_702"></a><a href="#Footnote_702_702" class="fnanchor">[z]</a> And +Sir John Cullum, from very minute accounts, has calculated that nine or +ten bushels were a full average crop on an acre of wheat. An amazing +excess of tillage accompanied, and partly, I suppose, produced this +imperfect cultivation. In Hawsted, for example, under Edward I., there +were thirteen or fourteen hundred acres of arable, and only forty-five of +meadow ground. A similar disproportion occurs almost invariably in every +account we possess.<a name="FNanchor_703_703" id="FNanchor_703_703"></a><a href="#Footnote_703_703" class="fnanchor">[a]</a> +This seems inconsistent with the low price of +cattle. But we must recollect, that the common pasture, often the most +extensive part of a manor, is not included, at least by any specific +measurement, in these surveys. The rent of land differed of course +materially; sixpence an acre seems to have been about the average for +arable land in the thirteenth century,<a name="FNanchor_704_704" id="FNanchor_704_704"></a><a href="#Footnote_704_704" class="fnanchor">[b]</a> +though meadow was at +<span class="pagenum"><a name="Page_364" id="Page_364">[Pg 364]</a></span> double +or treble that sum. But the landlords were naturally solicitous to augment +a revenue that became more and more inadequate to their luxuries. They +grew attentive to agricultural concerns, and perceived that a high rate of +produce, against which their less enlightened ancestors had been used to +clamour, would bring much more into their coffers than it took away. The +exportation of corn had been absolutely prohibited. But the statute of the +15th Henry VI. c. 2, reciting that "on this account, farmers and others +who use husbandry, cannot sell their corn but at a low price, to the great +damage of the realm," permits it to be sent any where but to the king's +enemies, so long as the quarter of wheat shall not exceed 6<i>s.</i> 8<i>d.</i> in +value, or that of barley 3<i>s.</i></p> + +<p>The price of wool was fixed in the thirty-second year of the same reign at +a minimum, below which no person was suffered to buy it, though he might +give more;<a name="FNanchor_705_705" id="FNanchor_705_705"></a><a href="#Footnote_705_705" class="fnanchor">[c]</a> +a provision neither wise nor equitable, but obviously +suggested by the same motive. Whether the rents of land were augmented in +any degree through these measures, I have not perceived; their great rise +took place in the reign of Henry VIII., or rather +afterwards.<a name="FNanchor_706_706" id="FNanchor_706_706"></a><a href="#Footnote_706_706" class="fnanchor">[d]</a> The +usual price of land under Edward IV. seems to have been ten years' +purchase.<a name="FNanchor_707_707" id="FNanchor_707_707"></a><a href="#Footnote_707_707" class="fnanchor">[e]</a></p> + +<div class="sidenote">Its condition in France and Italy.</div> + +<p>It may easily be presumed that an English writer can furnish very little +information as to the state of agriculture in foreign countries. In such +works relating to France as have fallen within my reach, I have found +nothing satisfactory, and cannot pretend to determine, whether the natural +tendency of mankind to ameliorate their condition had a greater influence +in promoting agriculture, or the vices inherent in the actual order of +society, and those public misfortunes to which that kingdom was exposed, +in retarding it.<a name="FNanchor_708_708" id="FNanchor_708_708"></a><a href="#Footnote_708_708" class="fnanchor">[f]</a> +The state of Italy was far different; the rich +<span class="pagenum"><a name="Page_365" id="Page_365">[Pg 365]</a></span> +Lombard plains, still more fertilized by irrigation, became a garden, and +agriculture seems to have reached the excellence which it still retains. +The constant warfare indeed of neighbouring cities is not very favourable +to industry; and upon this account we might incline to place the greatest +territorial improvement of Lombardy at an era rather posterior to that of +her republican government; but from this it primarily sprung; and without +the subjugation of the feudal aristocracy, and that perpetual demand upon +the fertility of the earth which an increasing population of citizens +produced, the valley of the Po would not have yielded more to human labour +than it had done for several preceding +centuries.<a name="FNanchor_709_709" id="FNanchor_709_709"></a><a href="#Footnote_709_709" class="fnanchor">[g]</a> Though Lombardy was +extremely populous in the thirteenth and fourteenth centuries, she +exported large quantities of corn.<a name="FNanchor_710_710" id="FNanchor_710_710"></a><a href="#Footnote_710_710" class="fnanchor">[h]</a> +The very curious treatise of +Crescentius exhibits the full details of Italian husbandry about 1300, and +might afford an interesting comparison to those who are acquainted with +its present state. That state indeed in many parts of Italy displays no +symptoms of decline. But whatever mysterious influence of soil or climate +has scattered the seeds of death on the western regions of Tuscany, had +not manifested itself in the middle ages. Among uninhabitable plains, the +traveller is struck by the ruins of innumerable castles and villages, +monuments of a time when pestilence was either unfelt, or had at least not +forbad the residence of mankind. Volterra, whose deserted walls look down +upon that tainted solitude, was once a small but free republic; Siena, +round whom, though less depopulated, the malignant influence hovers, was +once almost the rival of Florence. So melancholy and apparently +irresistible a decline of culture and population through physical causes, +as seems to have gradually overspread that portion of Italy, has not +perhaps been experienced in any other part of Europe, unless we except +Iceland.</p> + +<div class="sidenote">Gardening.</div> + +<p>The Italians of the fourteenth century seem to have paid some attention to +an art, of which, both as related to cultivation and to architecture, our +<span class="pagenum"><a name="Page_366" id="Page_366">[Pg 366]</a></span> +own forefathers were almost entirely ignorant. Crescentius dilates upon +horticulture, and gives a pretty long list of herbs both esculent and +medicinal.<a name="FNanchor_711_711" id="FNanchor_711_711"></a><a href="#Footnote_711_711" class="fnanchor">[i]</a> +His notions about the ornamental department are rather +beyond what we should expect, and I do not know that his scheme of a +flower-garden could be much amended. His general arrangements, which are +minutely detailed with evident fondness for the subject, would of course +appear too formal at present; yet less so than those of subsequent times; +and though acquainted with what is called the topiary art, that of +training or cutting trees into regular figures, he does not seem to run +into its extravagance. Regular gardens, according to Paulmy, were not made +in France till the sixteenth or even seventeenth +century;<a name="FNanchor_712_712" id="FNanchor_712_712"></a><a href="#Footnote_712_712" class="fnanchor">[k]</a> +yet one is said to have existed at the Louvre, of much older +construction.<a name="FNanchor_713_713" id="FNanchor_713_713"></a><a href="#Footnote_713_713" class="fnanchor">[m]</a> +England, I believe, had nothing of the ornamental kind, unless it were +some trees regularly disposed in the orchard of a monastery. Even the +common horticultural art for culinary purposes, though not entirely +neglected, since the produce of gardens is sometimes mentioned in ancient +deeds, had not been cultivated with much +attention.<a name="FNanchor_714_714" id="FNanchor_714_714"></a><a href="#Footnote_714_714" class="fnanchor">[n]</a> +The esculent vegetables now most in use were introduced in the reign of Elizabeth, and +some sorts a great deal later.</p> + +<div class="sidenote">Changes in value of money.</div> + +<p>I should leave this slight survey of economical history still more +imperfect, were I to make no observation on the relative values of money. +Without something like precision in our notions upon this subject, every +statistical inquiry becomes a source of confusion and error. But +considerable difficulties attend the discussion. These arise principally +from two causes; the inaccuracy or partial representations of historical +writers, on whom we are accustomed too implicitly to rely, and the change +of manners, which renders a certain command over articles of purchase less +adequate to our wants than it was in former ages.</p> + +<p>The first of these difficulties is capable of being removed by a +circumspect use of authorities. When this part of statistical history +began to excite attention, +<span class="pagenum"><a name="Page_367" id="Page_367">[Pg 367]</a></span> +which was hardly perhaps before the +publication of Bishop Fleetwood's Chronicon Preciosum, so few authentic +documents had been published with respect to prices, that inquirers were +glad to have recourse to historians, even when not contemporary, for such +facts as they had thought fit to record. But these historians were +sometimes too distant from the times concerning which they wrote, and too +careless in their general character, to merit much regard; and even when +contemporary, were often credulous, remote from the concerns of the world, +and, at the best, more apt to register some extraordinary phenomenon of +scarcity or cheapness, than the average rate of pecuniary dealings. The +one ought, in my opinion, to be absolutely rejected as testimonies, the +other to be sparingly and diffidently +admitted.<a name="FNanchor_715_715" id="FNanchor_715_715"></a><a href="#Footnote_715_715" class="fnanchor">[o]</a> For it is no longer +necessary to lean upon such uncertain witnesses. During the last century a +very laudable industry has been shown by antiquaries in the publication of +account-books belonging to private persons, registers of expenses in +convents, returns of markets, valuations of goods, tavern-bills, and in +short every document, however trifling in itself, by which this important +subject can be illustrated. A sufficient number of such authorities, +proving the ordinary tenor of prices rather than any remarkable deviations +from it, are the true basis of a table, by which all changes in the value +of money should +<span class="pagenum"><a name="Page_368" id="Page_368">[Pg 368]</a></span> +be measured. I have little doubt but that such a table +might be constructed from the data we possess with tolerable exactness, +sufficient at least to supersede one often quoted by political economists, +but which appears to be founded upon very superficial and erroneous +inquiries.<a name="FNanchor_716_716" id="FNanchor_716_716"></a><a href="#Footnote_716_716" class="fnanchor">[p]</a></p> + +<p>It is by no means required that I should here offer such a table of +values, which, as to every country except England, I have no means of +constructing, and which, even as to England, would be subject to many +difficulties.<a name="FNanchor_717_717" id="FNanchor_717_717"></a><a href="#Footnote_717_717" class="fnanchor">[q]</a> +But a reader unaccustomed to these investigations ought +to have some assistance in comparing the prices of ancient times with +those of his own. I will therefore, without attempting to ascend very +high, for we have really no sufficient data as to the period immediately +subsequent to the Conquest, much less that which preceded, endeavour at a +sort of approximation for the thirteenth and fifteenth centuries. In the +reigns of Henry III. and Edward I., previously to the first debasement of +the coin by the latter in 1301, the ordinary price of a quarter of wheat +appears to have been about four shillings, and that of barley and oats in +proportion. A sheep was rather sold high at a shilling, and an ox might be +reckoned at ten or twelve.<a name="FNanchor_718_718" id="FNanchor_718_718"></a><a href="#Footnote_718_718" class="fnanchor">[r]</a> +The value of cattle is, of course, +dependent upon their breed and condition, and we have unluckily +<span class="pagenum"><a name="Page_369" id="Page_369">[Pg 369]</a></span> +no early account of butcher's meat; but we can hardly take a less multiple than +about thirty for animal food and eighteen or twenty for corn, in order to +bring the prices of the thirteenth century to a level with those of the +present day.<a name="FNanchor_719_719" id="FNanchor_719_719"></a><a href="#Footnote_719_719" class="fnanchor">[s]</a> +Combining the two, and setting the comparative dearness +of cloth against the cheapness of fuel and many other articles, we may +perhaps consider any given sum under Henry III. and Edward I. as +equivalent in general command over commodities to about twenty-four or +twenty-five times their nominal value at present. Under Henry VI. the coin +had lost one-third of its weight in silver, which caused a proportional +increase of money prices;<a name="FNanchor_720_720" id="FNanchor_720_720"></a><a href="#Footnote_720_720" class="fnanchor">[t]</a> +but, so far as I can perceive, there had +been no diminution in the value of that metal. We have not much +information as to the fertility of the mines which supplied Europe during +the middle ages; but it is probable that the drain of silver towards the +East, joined to the ostentatious splendour of courts, might fully absorb +the usual produce. By the statute 15 H. VI., c. 2, the price up to which +wheat might be exported is fixed at 6<i>s.</i> 8<i>d.</i>, a point no doubt above the +<span class="pagenum"><a name="Page_370" id="Page_370">[Pg 370]</a></span> +average; and the private documents of that period, which are +sufficiently numerous, lead to a similar +result.<a name="FNanchor_721_721" id="FNanchor_721_721"></a><a href="#Footnote_721_721" class="fnanchor">[u]</a> +Sixteen will be a proper multiple when we would bring the general value of money in this +reign to our present standard.<a name="FNanchor_722_722" id="FNanchor_722_722"></a><a href="#Footnote_722_722" class="fnanchor">[x]</a> [1816.]</p> + +<p>But after ascertaining the proportional values of money at different +periods by a comparison of the prices in several of the chief articles of +expenditure, which is the only fair process, we shall sometimes be +surprised at incidental facts of this class which seem irreducible to any +rule. These difficulties arise not so much from the relative scarcity of +particular commodities, which it is for the most part easy to explain, as +from the change in manners and in the usual mode of living. We have +reached in this age so high a pitch of luxury that we can hardly believe +or comprehend the frugality of ancient times; and have in general formed +mistaken notions as to the habits of expenditure which then prevailed. +Accustomed to judge of feudal and chivalrous ages by works of fiction, or +by historians who embellished their writings with accounts of occasional +festivals and tournaments, and sometimes inattentive enough to transfer +the manners of the seventeenth to the fourteenth century, we are not at +all aware of the usual simplicity with which the gentry lived under Edward +I. or even Henry VI. They drank little wine; they had no +<span class="pagenum"><a name="Page_371" id="Page_371">[Pg 371]</a></span> foreign +luxuries; they rarely or never kept male servants except for husbandry; +their horses, as we may guess by the price, were indifferent; they seldom +travelled beyond their county. And even their hospitality must have been +greatly limited, if the value of manors were really no greater than we +find it in many surveys. Twenty-four seems a sufficient multiple when we +would raise a sum mentioned by a writer under Edward I. to the same real +value expressed in our present money, but an income of 10<i>l.</i> or 20<i>l.</i> +was reckoned a competent estate for a gentleman; at least the lord of a +single manor would seldom have enjoyed more. A knight who possessed +150<i>l.</i> per annum passed for extremely +rich.<a name="FNanchor_723_723" id="FNanchor_723_723"></a><a href="#Footnote_723_723" class="fnanchor">[y]</a> +Yet this was not equal in command over commodities to 4000<i>l.</i> at present. But this income was +comparatively free from taxation, and its expenditure lightened by the +services of his villeins. Such a person, however, must have been among the +most opulent of country gentlemen. Sir John Fortescue speaks of five +pounds a year as "a fair living for a yeoman," a class of whom he is not +at all inclined to diminish the +importance.<a name="FNanchor_724_724" id="FNanchor_724_724"></a><a href="#Footnote_724_724" class="fnanchor">[z]</a> So, when Sir William +Drury, one of the richest men in Suffolk, bequeaths in 1493 fifty marks to +each of his daughters, we must not imagine that this was of greater value +than four or five hundred pounds at this day, but remark the family pride +and want of ready money which induced country gentlemen to leave their +younger children in poverty.<a name="FNanchor_725_725" id="FNanchor_725_725"></a><a href="#Footnote_725_725" class="fnanchor">[a]</a> +Or, if we read that the expense of a +scholar at the university in 1514 was but five pounds annually, we should +err in supposing that he had the liberal accommodation which the present +age deems indispensable, but consider how much could be afforded for about +sixty pounds, which will be not far from the proportion. And what would a +modern lawyer say to the following entry in the churchwarden's accounts of +St. Margaret, Westminster, for 1476: "Also paid to Roger Fylpott, learned +in the law, for his counsel giving, 3<i>s.</i> 8<i>d., with four-pence for his +dinner</i>"?<a name="FNanchor_726_726" id="FNanchor_726_726"></a><a href="#Footnote_726_726" class="fnanchor">[b]</a> Though +<span class="pagenum"><a name="Page_372" id="Page_372">[Pg 372]</a></span> +fifteen times the fee might not seem altogether +inadequate at present, five shillings would hardly furnish the table of a +barrister, even if the fastidiousness of our manners would admit of his +accepting such a dole. But this fastidiousness, which considers certain +kinds of remuneration degrading to a man of liberal condition, did not +prevail in those simple ages. It would seem rather strange that a young +lady should learn needlework and good breeding in a family of superior +rank, paying for her board; yet such was the laudable custom of the +fifteenth and even sixteenth centuries, as we perceive by the Paston +Letters, and even later authorities.<a name="FNanchor_727_727" id="FNanchor_727_727"></a><a href="#Footnote_727_727" class="fnanchor">[c]</a></p> + +<div class="sidenote">Labourers better paid than at present.</div> + +<p>There is one very unpleasing remark which every one who attends to the +subject of prices will be induced to make, that the labouring classes, +especially those engaged in agriculture, were better provided with the +means of subsistence in the reign of Edward III. or of Henry VI. than they +are at present. In the fourteenth century Sir John Cullum observes a +harvest man had fourpence a day, which enabled him in a week to buy a comb +of wheat; but to buy a comb of wheat a man must now (1784) work ten or +twelve days.<a name="FNanchor_728_728" id="FNanchor_728_728"></a><a href="#Footnote_728_728" class="fnanchor">[d]</a> +So, under Henry VI., if meat was at a farthing and a +half the pound, which I suppose was about the truth, a labourer earning +threepence a day, or eighteen pence in the week, could buy a bushel of +wheat at six shillings the quarter, and twenty-four pounds of meat for his +family. A labourer at present, earning twelve shillings a week, can only +buy half a bushel of wheat at eighty shillings the quarter, and twelve pounds of meat at +seven-pence.<a name="FNanchor_729_729" id="FNanchor_729_729"></a><a href="#Footnote_729_729" class="fnanchor">[e]</a> Several acts of +<span class="pagenum"><a name="Page_373" id="Page_373">[Pg 373]</a></span> parliament regulate +the wages that might be paid to labourers of different kinds. Thus the +statute of labourers in 1350 fixed the wages of reapers during harvest at +threepence a-day without diet, equal to five shillings at present; that of +23 H. VI., c. 12, in 1444, fixed the reapers' wages at five-pence and +those of common workmen in building at 3-1/2<i>d.</i>, equal to 6<i>s.</i> 8<i>d.</i> and +4<i>s.</i> 8<i>d.</i>; that of 11 H. VII., c. 22, in 1496, leaves the wages of +labourers in harvest as before, but rather increases those of ordinary +workmen. The yearly wages of a chief hind or shepherd by the act of 1444 +were 1<i>l.</i> 4<i>s.</i>, equivalent to about 20<i>l.</i>, those of a common servant in +husbandry 18<i>s.</i> 4<i>d.</i>, with meat and drink; they were somewhat augmented +by the statute of 1496.<a name="FNanchor_730_730" id="FNanchor_730_730"></a><a href="#Footnote_730_730" class="fnanchor">[f]</a> +Yet, although these wages are regulated as a +maximum by acts of parliament, which may naturally be supposed to have had +a view rather towards diminishing than enhancing the current rate, I am +not fully convinced that they were not rather beyond it; private accounts +at least do not always correspond with these statutable +prices.<a name="FNanchor_731_731" id="FNanchor_731_731"></a><a href="#Footnote_731_731" class="fnanchor">[g]</a> And +it is necessary to remember that the uncertainty of employment, natural to +so imperfect a state of husbandry, must have diminished the labourers' +means of subsistence. Extreme dearth, not more owing to adverse seasons +than to improvident consumption, +<span class="pagenum"><a name="Page_374" id="Page_374">[Pg 374]</a></span> +was frequently +endured.<a name="FNanchor_732_732" id="FNanchor_732_732"></a><a href="#Footnote_732_732" class="fnanchor">[h]</a> But after +every allowance of this kind I should find it difficult to resist the +conclusion that, however the labourer has derived benefit from the +cheapness of manufactured commodities and from many inventions of common +utility, he is much inferior in ability to support a family to his +ancestors three or four centuries ago. I know not why some have supposed +that meat was a luxury seldom obtained by the labourer. Doubtless he could +not have procured as much as he pleased. But, from the greater cheapness +of cattle, as compared with corn, it seems to follow that a more +considerable portion of his ordinary diet consisted of animal food than at +present. It was remarked by Sir John Fortescue that the English lived far +more upon animal diet than their rivals the French; and it was natural to +ascribe their superior strength and courage to this +cause.<a name="FNanchor_733_733" id="FNanchor_733_733"></a><a href="#Footnote_733_733" class="fnanchor">[i]</a> I should +feel much satisfaction in being convinced that no deterioration in the +state of the labouring classes has really taken place; yet it cannot, I +think, appear extraordinary to those who reflect, that the whole +population of England in the year 1377 did not much exceed 2,300,000 +souls, about one-fifth of the results upon the last enumeration, an +increase with which that of the fruits of the earth cannot be supposed to +have kept an even pace.<a name="FNanchor_734_734" id="FNanchor_734_734"></a><a href="#Footnote_734_734" class="fnanchor">[k]</a></p> + +<div class="sidenote">Improvement in the moral character of Europe.</div> + +<p>The second head to which I referred, the improvements of European society +in the latter period of the middle ages, comprehends several changes, not +always connected, with each other, which contributed to inspire a more +elevated tone of moral sentiment, or at least to restrain the commission +of crimes. But the general effect of these upon the human character is +neither so distinctly to be traced, +<span class="pagenum"><a name="Page_375" id="Page_375">[Pg 375]</a></span> +nor can it be arranged with so much +attention to chronology, as the progress of commercial wealth or of the +arts that depend upon it. We cannot from any past experience indulge the +pleasing vision of a constant and parallel relation between the moral and +intellectual energies, the virtues and the civilization of mankind. Nor is +any problem connected with philosophical history more difficult than to +compare the relative characters of different generations, especially if we +include a large geographical surface in our estimate. Refinement has its +evils as well as barbarism; the virtues that elevate a nation in one +century pass in the next to a different region; vice changes its form +without losing its essence; the marked features of individual character +stand out in relief from the surface of history, and mislead our judgment +as to the general course of manners; while political revolutions and a bad +constitution of government may always undermine or subvert the +improvements to which more favourable circumstances have contributed. In +comparing, therefore, the fifteenth with the twelfth century, no one would +deny the vast increase of navigation and manufactures, the superior +refinement of manners, the greater diffusion of literature. But should I +assert that man had raised himself in the latter period above the moral +degradation of a more barbarous age, I might be met by the question +whether history bears witness to any greater excesses of rapine and +inhumanity than in the wars of France and England under Charles VII., or +whether the rough patriotism and fervid passions of the Lombards in the +twelfth century were not better than the systematic treachery of their +servile descendants three hundred years afterwards. The proposition must +therefore be greatly limited; yet we can scarcely hesitate to admit, upon +a comprehensive view, that there were several changes during the last four +of the middle ages, which must naturally have tended to produce, and some +of which did unequivocally produce, a meliorating effect, within the +sphere of their operation, upon the moral character of society.</p> + +<div class="sidenote">Elevation of the lower ranks.</div> + +<p>The first and perhaps the most important of these, was the gradual +elevation of those whom unjust systems of polity had long depressed; of +the people itself, as opposed to the small number +<span class="pagenum"><a name="Page_376" id="Page_376">[Pg 376]</a></span> of rich and noble, by +the abolition or desuetude of domestic and predial servitude, and by the +privileges extended to corporate towns. The condition of slavery is indeed +perfectly consistent with the observance of moral obligations; yet reason +and experience will justify the sentence of Homer, that he who loses his +liberty loses half his virtue. Those who have acquired, or may hope to +acquire, property of their own, are most likely to respect that of others; +those whom law protects as a parent are most willing to yield her a filial +obedience; those who have much to gain by the good-will of their fellow +citizens are most interested in the preservation of an honourable +character. I have been led, in different parts of the present work, to +consider these great revolutions in the order of society under other +relations than that of their moral efficacy; and it will therefore be +unnecessary to dwell upon them; especially as this efficacy is +indeterminate, though I think unquestionable, and rather to be inferred +from general reflections than capable of much illustration by specific +facts.</p> + +<div class="sidenote">Police.</div> + +<p>We may reckon in the next place among the causes of moral improvement, a +more regular administration of justice according to fixed laws, and a more +effectual police. Whether the courts of judicature were guided by the +feudal customs or the Roman law, it was necessary for them to resolve +litigated questions with precision and uniformity. Hence a more distinct +theory of justice and good faith was gradually apprehended; and the moral +sentiments of mankind were corrected, as on such subjects they often +require to be, by clearer and better grounded inferences of reasoning. +Again, though it cannot be said that lawless rapine was perfectly +restrained even at the end of the fifteenth century, a sensible amendment +had been every where experienced. Private warfare, the licensed robbery of +feudal manners, had been subjected to so many mortifications by the kings +of France, and especially by St. Louis, that it can hardly be traced +beyond the fourteenth century. In Germany and Spain it lasted longer; but +the various associations for maintaining tranquillity in the former +country had considerably diminished its violence before the great national +measure of public peace adopted under +<span class="pagenum"><a name="Page_377" id="Page_377">[Pg 377]</a></span> +Maximilian.<a name="FNanchor_735_735" id="FNanchor_735_735"></a><a href="#Footnote_735_735" class="fnanchor">[m]</a> Acts of outrage +committed by powerful men became less frequent as the executive government +acquired more strength to chastise them. We read that St. Louis, the best +of French kings, imposed a fine upon the lord of Vernon for permitting a +merchant to be robbed in his territory between sunrise and sunset. For by +the customary law, though in general ill observed, the lord was bound to +keep the roads free from depredators in the day-time, in consideration of +the toll he received from passengers.<a name="FNanchor_736_736" id="FNanchor_736_736"></a><a href="#Footnote_736_736" class="fnanchor">[n]</a> +The same prince was with +difficulty prevented from passing a capital sentence on Enguerrand de +Coucy, a baron of France, for a +murder.<a name="FNanchor_737_737" id="FNanchor_737_737"></a><a href="#Footnote_737_737" class="fnanchor">[o]</a> +Charles the Fair actually put to death a nobleman of Languedoc for a series of robberies, +notwithstanding the intercession of the provincial +nobility.<a name="FNanchor_738_738" id="FNanchor_738_738"></a><a href="#Footnote_738_738" class="fnanchor">[p]</a> The +towns established a police of their own for internal security, and +rendered themselves formidable to neighbouring plunderers. Finally, though +not before the reign of Louis XI., an armed force was established for the +preservation of police.<a name="FNanchor_739_739" id="FNanchor_739_739"></a><a href="#Footnote_739_739" class="fnanchor">[q]</a> +Various means were adopted in England to +prevent robberies, which indeed were not so frequently perpetrated as they +were on the continent, by men of high condition. None of these perhaps had +so much efficacy as the frequent sessions of judges under commissions of +gaol delivery. But the spirit of this country has never brooked that +coercive police which cannot exist without breaking in upon personal liberty +<span class="pagenum"><a name="Page_378" id="Page_378">[Pg 378]</a></span> +by irksome regulations, and discretionary exercise of power; the +sure instrument of tyranny, which renders civil privileges at once +nugatory and insecure, and by which we should dearly purchase some real +benefits connected with its slavish discipline.</p> + +<div class="sidenote">Religious sects.</div> + +<p>I have some difficulty in adverting to another source of moral improvement +during this period, the growth of religious opinions adverse to those of +the established church, both on account of its great obscurity, and +because many of these heresies were mixed up with an excessive fanaticism. +But they fixed themselves so deeply in the hearts of the inferior and more +numerous classes, they bore, generally speaking, so immediate a relation +to the state of manners, and they illustrate so much that more visible and +eminent revolution which ultimately rose out of them in the sixteenth +century, that I must reckon these among the most interesting phenomena in +the progress of European society.</p> + +<p>Many ages elapsed, during which no remarkable instance occurs of a popular +deviation from the prescribed line of belief; and pious Catholics console +themselves by reflecting that their forefathers, in those times of +ignorance, slept at least the sleep of orthodoxy, and that their darkness +was interrupted by no false lights of human +reasoning.<a name="FNanchor_740_740" id="FNanchor_740_740"></a><a href="#Footnote_740_740" class="fnanchor">[r]</a> +But from the twelfth century this can no longer be their boast. An inundation of heresy +broke in that age upon the church, which no persecution was able +thoroughly to repress, till it finally overspread half the surface of +Europe. Of this religious innovation we must seek the commencement in a +different part of the globe. The Manicheans afford an eminent example of +that durable attachment to a traditional creed, which so many ancient +sects, especially in the East, have cherished through the vicissitudes of +ages, in spite of persecution and contempt. Their plausible and widely +extended system had been in early times connected with the name of +Christianity, however incompatible with its doctrines and its history. +After a pretty long obscurity, the Manichean theory revived with some +modification in the western parts of Armenia, and was propagated in the +eighth and +<span class="pagenum"><a name="Page_379" id="Page_379">[Pg 379]</a></span> +ninth centuries by a sect denominated Paulicians. Their tenets +are not to be collected with absolute certainty from the mouths of their +adversaries, and no apology of their own survives. There seems however to +be sufficient evidence that the Paulicians, though professing to +acknowledge and even to study the apostolical writings, ascribed the +creation of the world to an evil deity, whom they supposed also to be the +author of the Jewish law, and consequently rejected all the Old Testament. +Believing, with the ancient Gnostics, that our Saviour was clothed on +earth with an impassive celestial body, they denied the reality of his +death and resurrection.<a name="FNanchor_741_741" id="FNanchor_741_741"></a><a href="#Footnote_741_741" class="fnanchor">[s]</a> +These errors exposed them to a long and cruel +persecution, during which a colony of exiles was planted by one of the +Greek emperors in Bulgaria.<a name="FNanchor_742_742" id="FNanchor_742_742"></a><a href="#Footnote_742_742" class="fnanchor">[t]</a> +From this settlement they silently +promulgated their Manichean creed over the western regions of Christendom. +A large part of the commerce of those countries with Constantinople was +carried on for several centuries by the channel of the Danube. +<span class="pagenum"><a name="Page_380" id="Page_380">[Pg 380]</a></span> This +opened an immediate intercourse with the Paulicians, who may be traced up +that river through Hungary and Bavaria, or sometimes taking the route of +Lombardy into Switzerland and +France.<a name="FNanchor_743_743" id="FNanchor_743_743"></a><a href="#Footnote_743_743" class="fnanchor">[u]</a> +In the last country, and +especially in its southern and eastern provinces, they became conspicuous +under a variety of names; such as Catharists, Picards, Paterins, but above +all, Albigenses. It is beyond a doubt that many of these sectaries owed +their origin to the Paulicians; the appellation of Bulgarians was +distinctively bestowed upon them; and, according to some writers, they +acknowledged a primate or patriarch resident in that +country.<a name="FNanchor_744_744" id="FNanchor_744_744"></a><a href="#Footnote_744_744" class="fnanchor">[x]</a> The +tenets ascribed to them by all contemporary authorities coincide +<span class="pagenum"><a name="Page_381" id="Page_381">[Pg 381]</a></span> so +remarkably with those held by the Paulicians, and in earlier times by the +Manicheans, that I do not see how we can reasonably deny what is confirmed +by separate and uncontradicted testimonies, and contains no intrinsic want +of probability.<a name="FNanchor_745_745" id="FNanchor_745_745"></a><a href="#Footnote_745_745" class="fnanchor">[y]</a></p> + +<div class="sidenote">Waldenses.</div> + +<p><span class="pagenum"><a name="Page_382" id="Page_382">[Pg 382]</a></span> +But though, the derivation of these heretics called Albigenses from +Bulgaria is sufficiently proved, it is by no means to be concluded that +all who incurred the same imputation either derived their faith from the +same country, or had adopted the Manichean theory of the Paulicians. From +the very invectives of their enemies, and the acts of the Inquisition, it +is manifest that almost every shade of heterodoxy was found among these +dissidents, till it vanished in a simple protestation against the wealth +and tyranny of the clergy. Those who were absolutely free from any taint +of Manicheism are properly called Waldenses; a name perpetually confounded +in later times with that of Albigenses, but distinguishing a sect probably +of separate origin, and at least of different tenets. These, according to +the majority of writers, took their appellation from Peter Waldo, a +merchant of Lyons, the parent, about the year 1160, of a congregation of +seceders from the church, who spread very rapidly over France and +Germany.<a name="FNanchor_746_746" id="FNanchor_746_746"></a><a href="#Footnote_746_746" class="fnanchor">[z]</a> +<span class="pagenum"><a name="Page_383" id="Page_383">[Pg 383]</a></span> +According to others, the original Waldenses were a race of uncorrupted +shepherds, who in the valleys of the Alps had shaken off, or perhaps never +learned, the system of superstition on which the Catholic church depended +for its ascendency. I am not certain whether their existence can be +distinctly traced beyond the preaching of Waldo, but it is well known that +the proper seat of the Waldenses or Vaudois has long continued to be in +certain valleys of Piedmont. These pious and innocent sectaries, of whom +the very monkish historians speak well, appear to have nearly resembled +the modern Moravians. They had ministers of their own appointment, and +denied the lawfulness of oaths and of capital punishment. In other +respects their opinions probably were not far removed from those usually +called Protestant. A simplicity of dress, and especially the use of wooden +sandals, was affected by this +people.<a name="FNanchor_747_747" id="FNanchor_747_747"></a><a href="#Footnote_747_747" class="fnanchor">[a]</a></p> + +<p><span class="pagenum"><a name="Page_384" id="Page_384">[Pg 384]</a></span> +I have already had occasion to relate the severe persecution which nearly +exterminated the Albigenses of Languedoc at the close of the twelfth +century, and involved the counts of Toulouse in their ruin. The +Catharists, a fraternity of the same Paulician origin, more dispersed than +the Albigenses, had previously sustained a similar trial. Their belief was +certainly a compound of strange errors with truth; but it was attended by +qualities of a far superior lustre to orthodoxy, by a sincerity, a piety, +and a self-devotion that almost purified the age in which they +lived.<a name="FNanchor_748_748" id="FNanchor_748_748"></a><a href="#Footnote_748_748" class="fnanchor">[b]</a> It is +<span class="pagenum"><a name="Page_385" id="Page_385">[Pg 385]</a></span> +always important to perceive that these high moral excellences have +no necessary connexion with speculative truths; and upon this account I +have been more disposed to state explicitly the real Manicheism of the +Albigenses; especially as Protestant writers, considering all the enemies +of Rome as their friends, have been apt to place the opinions of these +sectaries in a very false light. In the course of time, undoubtedly, the +system of their Paulician teachers would have yielded, if the inquisitors +had admitted the experiment, to a more accurate study of the Scriptures, +and to the knowledge which they would have imbibed from the church itself. +And, in fact, we find that the peculiar tenets of Manicheism died away +after the middle of the thirteenth century, although a spirit of dissent +from the established creed broke out in abundant instances during the two +subsequent ages.</p> + +<p>We are in general deprived of explicit testimonies in tracing the +revolutions of popular opinion. Much must therefore be left to conjecture; +but I am inclined to attribute a very extensive effect to the preaching of +these heretics. They appear in various countries nearly during the same +period, in Spain, Lombardy, Germany, Flanders, and England, as well as +France. Thirty unhappy persons, convicted of denying the sacraments, are +said to have perished at Oxford by cold and famine in the reign of Henry +II. In every country the new sects appear to have spread chiefly among the +lower people, which, while it accounts for the imperfect notice of +historians, indicates a more substantial influence upon the moral +condition of society than the conversion of a few nobles or +ecclesiastics.<a name="FNanchor_749_749" id="FNanchor_749_749"></a><a href="#Footnote_749_749" class="fnanchor">[c]</a></p> + +<p><span class="pagenum"><a name="Page_386" id="Page_386">[Pg 386]</a></span> +But even where men did not absolutely enlist under the banners of any new +sect, they were stimulated by the temper of their age to a more zealous +and independent discussion of their religious system. A curious +illustration of this is furnished by one of the letters of Innocent III. +He had been informed by the bishop of Metz, as he states to the clergy of +the diocese, that no small multitude of laymen and women, having procured +a translation of the gospels, epistles of St. Paul, the psalter, Job, and +other books of Scripture, to be made for them into French, meet in secret +conventicles to hear them read, and preach to each other, avoiding the +company of those who do not join in their devotion, and having been +reprimanded for this by some of their parish priests, have withstood them, +alleging reasons from the Scriptures, why they should not be so forbidden. +Some of them too deride the ignorance of their ministers, and maintain +that their own books teach them more than they can learn from the pulpit, +and that they can express it better. Although the desire of reading the +Scriptures, Innocent proceeds, is rather praiseworthy than reprehensible, +yet they are to be blamed for frequenting secret assemblies, for usurping +the office of +<span class="pagenum"><a name="Page_387" id="Page_387">[Pg 387]</a></span> +preaching, deriding their own ministers, and scorning the +company of such as do not concur in their novelties. He presses the bishop +and chapter to discover the author of this translation, which could not +have been made without a knowledge of letters, and what were his +intentions, and what degree of orthodoxy and respect for the Holy See +those who used it possessed. This letter of Innocent III., however, +considering the nature of the man, is sufficiently temperate and +conciliatory. It seems not to have answered its end; for in another letter +he complains that some members of this little association continued +refractory and refused to obey either the bishop or the +pope.<a name="FNanchor_750_750" id="FNanchor_750_750"></a><a href="#Footnote_750_750" class="fnanchor">[d]</a></p> + +<p>In the eighth and ninth centuries, when the Vulgate had ceased to be +generally intelligible, there is no reason to suspect any intention in the +church to deprive the laity of the Scriptures. Translations were freely +made into the vernacular languages, and perhaps read in churches, although +the acts of saints were generally deemed more instructive. Louis the +Debonair is said to have caused a German version of the New Testament to +be made. Otfrid, in the same century, rendered the gospels, or rather +abridged them, into German verse. This work is still extant, and is in +several respects an object of +curiosity.<a name="FNanchor_751_751" id="FNanchor_751_751"></a><a href="#Footnote_751_751" class="fnanchor">[e]</a> +In the eleventh or twelfth century we find translations of the Psalms, Job, Kings, and the Maccabees +into French.<a name="FNanchor_752_752" id="FNanchor_752_752"></a><a href="#Footnote_752_752" class="fnanchor">[f]</a> +But after the diffusion of heretical opinions, or, what +was much the same thing, of free inquiry, it became expedient to secure +the orthodox faith from lawless interpretation. Accordingly, the council +of Toulouse in 1229 prohibited the laity from possessing the Scriptures; +and this precaution was frequently repeated upon subsequent +occasions.<a name="FNanchor_753_753" id="FNanchor_753_753"></a><a href="#Footnote_753_753" class="fnanchor">[g]</a></p> + +<p><span class="pagenum"><a name="Page_388" id="Page_388">[Pg 388]</a></span> +The ecclesiastical history of the thirteenth or fourteenth centuries +teems with new sectaries and schismatics, various in their aberrations of +opinion, but all concurring in detestation of the established +church.<a name="FNanchor_754_754" id="FNanchor_754_754"></a><a href="#Footnote_754_754" class="fnanchor">[h]</a> +They endured severe persecutions with a sincerity and firmness which in +any cause ought to command respect. But in general we find an extravagant +fanaticism among them; and I do not know how to look for any amelioration +of society from the Franciscan seceders, who quibbled about the property +of things consumed by use, or from the mystical visionaries of different +appellations, whose moral practice was sometimes more than equivocal. +Those who feel any curiosity about such subjects, which are by no means +unimportant, as they illustrate the history of the human mind, will find +them treated very fully by Mosheim. But the original sources of +information are not always accessible in this country, and the research +would perhaps be more fatiguing than profitable.</p> + +<div class="sidenote">Lollards of England.</div> + +<p>I shall, for an opposite reason, pass lightly over the great revolution in +religious opinion wrought in England by Wicliffe, which will generally be +familiar to the reader from our common historians. Nor am I concerned to +treat of theological inquiries, or to write a history of the church. +Considered in its effects upon manners, the sole point which these pages +have in view, the preaching of this new sect certainly produced an +extensive reformation. But their virtues +<span class="pagenum"><a name="Page_389" id="Page_389">[Pg 389]</a></span> +were by no means free from some +unsocial qualities, in which, as well as in their superior attributes, the +Lollards bear a very close resemblance to the Puritans of Elizabeth's +reign; a moroseness that proscribed all cheerful amusements, an +uncharitable malignity that made no distinction in condemning the +established clergy, and a narrow prejudice that applied the rules of the +Jewish law to modern institutions.<a name="FNanchor_755_755" id="FNanchor_755_755"></a><a href="#Footnote_755_755" class="fnanchor">[i]</a> +Some of their principles were far +more dangerous to the good order of society, and cannot justly be ascribed +to the Puritans, though they grew afterwards out of the same soil. Such +was the notion, which is imputed also to the Albigenses, that civil +magistrates lose their right to govern by committing sin, or, as it was +quaintly expressed in the seventeenth century, that dominion is founded in +grace. These extravagances, however, do not belong to the learned and +politic Wicliffe, however they might be adopted by some of his +enthusiastic disciples.<a name="FNanchor_756_756" id="FNanchor_756_756"></a><a href="#Footnote_756_756" class="fnanchor">[k]</a> +Fostered by the general ill-will towards the +church, his principles made vast progress in England, and, unlike those of +earlier sectaries, were embraced by men of rank and civil influence. +Notwithstanding the check they sustained by the sanguinary law of Henry +IV., it is highly probable that multitudes secretly cherished them down to +the era of the Reformation.</p> + +<div class="sidenote">Hussites of Bohemia.</div> + +<p>From England the spirit of religious innovation was propagated into +Bohemia; for though John Huss was very far from embracing all the +doctrinal system of Wicliffe, it is manifest that his zeal had been +quickened by the writings of that +reformer.<a name="FNanchor_757_757" id="FNanchor_757_757"></a><a href="#Footnote_757_757" class="fnanchor">[m]</a> Inferior to the +<span class="pagenum"><a name="Page_390" id="Page_390">[Pg 390]</a></span> +Englishman in ability, but exciting greater attention by his constancy and +sufferings, as well as by the memorable war which his ashes kindled, the +Bohemian martyr was even more eminently the precursor of the Reformation. +But still regarding these dissensions merely in a temporal light, I cannot +assign any beneficial effect to the schism of the Hussites, at least in +its immediate results, and in the country where it appeared. Though some +degree of sympathy with their cause is inspired by resentment at the ill +faith of their adversaries, and by the associations of civil and religious +liberty, we cannot estimate the Taborites and other sectaries of that +description but as ferocious and desperate +fanatics.<a name="FNanchor_758_758" id="FNanchor_758_758"></a><a href="#Footnote_758_758" class="fnanchor">[n]</a> Perhaps beyond +the confines of Bohemia more substantial good may have been produced by +the influence of its reformation, and a better tone of morals inspired +into Germany. But I must again repeat that upon this obscure and ambiguous +subject I assert nothing definitely, and little with confidence. The +tendencies of religious dissent in the four ages before the Reformation +appear to have generally conduced towards the moral improvement of +mankind; and facts of this nature occupy a far greater space in a +philosophical view of society during that period, than we might at first +imagine; but every one who is disposed to prosecute this inquiry will +assign their character according to the result of his own investigations.</p> + +<div class="sidenote">Institution of chivalry.</div> + +<p>But the best school of moral discipline which the middle ages afforded was +the institution of chivalry. There is something perhaps to allow for the +partiality of modern writers upon this interesting subject; yet our most +sceptical criticism must assign a decisive influence to this great source +of human improvement. The more deeply it is considered, the more we shall +become sensible of its importance.</p> + +<p>There are, if I may so say, three powerful spirits which +<span class="pagenum"><a name="Page_391" id="Page_391">[Pg 391]</a></span> have from time +to time moved over the face of the waters, and given a predominant impulse +to the moral sentiments and energies of mankind. These are the spirits of +liberty, of religion, and of honour. It was the principal business of +chivalry to animate and cherish the last of these three. And whatever high +magnanimous energy the love of liberty or religious zeal has ever imparted +was equalled by the exquisite sense of honour which this institution +preserved.</p> + +<div class="sidenote">Its origin.</div> + +<p>It appears probable that the custom of receiving arms at the age of +manhood with some solemnity was of immemorial antiquity among the nations +that overthrew the Roman empire. For it is mentioned by Tacitus to have +prevailed among their German ancestors; and his expressions might have +been used with no great variation to describe the actual ceremonies of +knighthood.<a name="FNanchor_759_759" id="FNanchor_759_759"></a><a href="#Footnote_759_759" class="fnanchor">[o]</a> +There was even in that remote age a sort of public trial +as to the fitness of the candidate, which, though perhaps confined to his +bodily strength and activity, might be the germ of that refined +investigation which was thought necessary in the perfect stage of +chivalry. Proofs, though rare and incidental, might be adduced to show +that in the time of Charlemagne, and even earlier, the sons of monarchs at +least did not assume manly arms without a regular investiture. And in the +eleventh century it is evident that this was a general +practice.<a name="FNanchor_760_760" id="FNanchor_760_760"></a><a href="#Footnote_760_760" class="fnanchor">[p]</a></p> + +<p>This ceremony, however, would perhaps of itself have done little towards +forming that intrinsic principle which characterized the genuine chivalry. +But in the reign of Charlemagne we find a military distinction that +appears, in fact as well as in name, to have given birth to that +institution. Certain feudal tenants, and I suppose also alodial +proprietors, were bound to serve on +<span class="pagenum"><a name="Page_392" id="Page_392">[Pg 392]</a></span> +horseback, equipped with the coat of +mail. These were called Caballarii, from which the word chevaliers is an +obvious corruption.<a name="FNanchor_761_761" id="FNanchor_761_761"></a><a href="#Footnote_761_761" class="fnanchor">[q]</a> +But he who fought on horseback, and had been +invested with peculiar arms in a solemn manner, wanted nothing more to +render him a knight. Chivalry therefore may, in a general sense, be +referred to the age of Charlemagne. We may, however, go further, and +observe that these distinctive advantages above ordinary combatants were +probably the sources of that remarkable valour and that keen thirst for +glory, which became the essential attributes of a knightly character. For +confidence in our skill and strength is the usual foundation of courage; +it is by feeling ourselves able to surmount common dangers, that we become +adventurous enough to encounter those of a more extraordinary nature, and +to which more glory is attached. The reputation of superior personal +prowess, so difficult to be attained in the course of modern warfare, and +so liable to erroneous representations, was always within the reach of the +stoutest knight, and was founded on claims which could be measured with +much accuracy. Such is the subordination and mutual dependence in a modern +army, that every man must be content to divide his glory with his +comrades, his general, or his soldiers. But the soul of chivalry was +individual honour, coveted in so entire and absolute a perfection that it +must not be shared with an army or a nation. Most of the virtues it +inspired were what we may call independent, as opposed to those which are +founded upon social relations. The knights-errant of romance perform their +best exploits from the love of renown, or from a sort of abstract sense of +justice, rather than from any solicitude to promote the happiness of +mankind. If these springs of action are less generally beneficial, they +are, however, more connected with elevation of character than the +systematical prudence of men accustomed to social life. This solitary and +independent spirit of chivalry, dwelling, as it were, upon a rock, and +disdaining injustice or falsehood from a consciousness of internal +dignity, without +<span class="pagenum"><a name="Page_393" id="Page_393">[Pg 393]</a></span> +any calculation of their consequences, is not unlike +what we sometimes read of Arabian chiefs or the North American +Indians.<a name="FNanchor_762_762" id="FNanchor_762_762"></a><a href="#Footnote_762_762" class="fnanchor">[r]</a> +These nations, so widely remote from each other, seem to +partake of that moral energy, which, among European nations far remote +from both of them, was excited by the spirit of chivalry. But the most +beautiful picture that was ever portrayed of this character is the +Achilles of Homer, the representative of chivalry in its most general +form, with all its sincerity and unyielding rectitude, all its courtesies +and munificence. Calmly indifferent to the cause in which he is engaged, +and contemplating with a serious and unshaken look the premature death +that awaits him, his heart only beats for glory and friendship. To this +sublime character, bating that imaginary completion by which the creations +of the poet, like those of the sculptor, transcend all single works of +nature, there were probably many parallels in the ages of chivalry; +especially before a set education and the refinements of society had +altered a little the natural unadulterated warrior of a ruder period. One +illustrious example from this earlier age is the Cid Ruy Diaz, whose +history has fortunately been preserved much at length in several +chronicles of ancient date and in one valuable poem; and though I will not +say that the Spanish hero is altogether a counterpart of Achilles in +gracefulness and urbanity, yet was he inferior to none that ever lived in +frankness, honour, and +magnanimity.<a name="FNanchor_763_763" id="FNanchor_763_763"></a><a href="#Footnote_763_763" class="fnanchor">[s]</a></p> + +<div class="sidenote">Its connexion with feudal service.</div> + +<div class="sidenote">This connexion broken.</div> + +<p><span class="pagenum"><a name="Page_394" id="Page_394">[Pg 394]</a></span> +In the first state of chivalry, it was closely connected with the military +service of fiefs. The Caballarii in the Capitularies, the Milites of the +eleventh and twelfth centuries, were landholders who followed their lord +or sovereign into the field. A certain value of land was termed in England +a knight's fee, or in Normandy feudum loricæ, fief de haubert, from the +coat of mail which it entitled and required the tenant to wear; a military +tenure was said to be by service in chivalry. To serve as knights, mounted +and equipped, was the common duty of vassals; it implied no personal +merit, it gave of itself a claim to no civil privileges. But this +knight-service founded upon a feudal obligation is to be carefully +distinguished from that superior chivalry, in which all was independent +and voluntary. The latter, in fact, could hardly flourish in its full +perfection till the military service of feudal tenure began to decline; +namely, in the thirteenth century. The origin of this personal chivalry I +should incline to refer to the ancient usage of voluntary commendation, +which I have mentioned in a former chapter. Men commended themselves, that +is, did homage and professed attachment to a prince or lord; generally +indeed for protection or the hope of reward, but sometimes probably for +the sake of distinguishing themselves in his quarrels. When they received +pay, which must have been the usual case, they were literally his +soldiers, or stipendiary troops. Those who could afford to exert their +valour without recompense were like the knights of whom we read in +romance, who served a foreign master through love, or thirst of glory, or +gratitude. The extreme poverty of the lower nobility, arising from the +subdivision of fiefs, and the politic generosity of rich lords, made this +connexion as strong as that of territorial dependence. A younger brother, +leaving the paternal estate, in which he took a slender share, might look to +<span class="pagenum"><a name="Page_395" id="Page_395">[Pg 395]</a></span> +wealth and dignity in the service of a powerful count. Knighthood, +which he could not claim as his legal right, became the object of his +chief ambition. It raised him in the scale of society, equalling him in +dress, in arms, and in title, to the rich landholders. As it was due to +his merit, it did much more than equal him to those who had no pretensions +but from wealth; and the territorial knights became by degrees ashamed of +assuming the title till they could challenge it by real desert.</p> + +<div class="sidenote">Effect of the crusades on chivalry.</div> + +<p>This class of noble and gallant cavaliers serving commonly for pay, but on +the most honourable footing, became far more numerous through the +crusades; a great epoch in the history of European society. In these wars, +as all feudal service was out of the question, it was necessary for the +richer barons to take into their pay as many knights as they could afford +to maintain; speculating, so far as such motives operated, on an influence +with the leaders of the expedition, and on a share of plunder, +proportioned to the number of their followers. During the period of the +crusades, we find the institution of chivalry acquire its full vigour as +an order of personal nobility; and its original connexion with feudal +tenure, if not altogether effaced, became in a great measure forgotten in +the splendour and dignity of the new form which it wore.</p> + +<div class="sidenote">Chivalry connected with religion.</div> + +<p>The crusaders, however, changed in more than one respect the character of +chivalry. Before that epoch it appears to have had no particular reference +to religion. Ingulfus indeed tells us that the Anglo-Saxons preceded the +ceremony of investiture by a confession of their sins, and other pious +rites, and they received the order at the hands of a priest, instead of a +knight. But this was derided by the Normans as effeminacy, and seems to +have proceeded from the extreme devotion of the English before the +Conquest.<a name="FNanchor_764_764" id="FNanchor_764_764"></a><a href="#Footnote_764_764" class="fnanchor">[t]</a> +We can hardly perceive indeed why the assumption of arms to +be used in butchering mankind should be treated as a religious ceremony. +The clergy, to do them justice, constantly opposed the private wars in +which the courage of those ages wasted itself; and +<span class="pagenum"><a name="Page_396" id="Page_396">[Pg 396]</a></span> all bloodshed was +subject in strictness to a canonical penance. But the purposes for which +men bore arms in a crusade so sanctified their use, that chivalry acquired +the character as much of a religious as a military institution. For many +centuries, the recovery of the Holy Land was constantly at the heart of a +brave and superstitious nobility; and every knight was supposed at his +creation to pledge himself, as occasion should arise, to that cause. +Meanwhile, the defence of God's law against infidels was his primary and +standing duty. A knight, whenever present at mass, held the point of his +sword before him while the gospel was read, to signify his readiness to +support it. Writers of the middle ages compare the knightly to the +priestly character in an elaborate parallel, and the investiture of the +one was supposed analogous to the ordination of the other. The ceremonies +upon this occasion were almost wholly religious. The candidate passed +nights in prayer among priests in a church; he received the sacraments; he +entered into a bath, and was clad with a white robe, in allusion to the +presumed purification of his life; his sword was solemnly blessed; every +thing, in short, was contrived to identify his new condition with the +defence of religion, or at least of the +church.<a name="FNanchor_765_765" id="FNanchor_765_765"></a><a href="#Footnote_765_765" class="fnanchor">[u]</a></p> + +<div class="sidenote">And with gallantry.</div> + +<p>To this strong tincture of religion which entered into the composition of +chivalry from the twelfth century, was added another ingredient equally +distinguishing. A great respect for the female sex had always been a +remarkable characteristic of the Northern nations. The German women were +high-spirited and virtuous; qualities which might be causes or +consequences of the veneration with which they were regarded. I am not +sure that we could trace very minutely the condition of women for the +period between the subversion of the Roman empire and the first crusade; +but apparently man did not grossly abuse his superiority; and in point of +civil rights, and even as to the inheritance of property, the two sexes +were placed perhaps as +<span class="pagenum"><a name="Page_397" id="Page_397">[Pg 397]</a></span> +nearly on a level as the nature of such warlike +societies would admit. There seems, however, to have been more roughness +in the social intercourse between the sexes than we find in later periods. +The spirit of gallantry which became so animating a principle of chivalry, +must be ascribed to the progressive refinement of society during the +twelfth and two succeeding centuries. In a rude state of manners, as among +the lower people in all ages, woman has not full scope to display those +fascinating graces, by which nature has designed to counterbalance the +strength and energy of mankind. Even where those jealous customs that +degrade alike the two sexes have not prevailed, her lot is domestic +seclusion; nor is she fit to share in the boisterous pastimes of drunken +merriment to which the intercourse of an unpolished people is confined. +But as a taste for the more elegant enjoyments of wealth arises, a taste +which it is always her policy and her delight to nourish, she obtains an +ascendency at first in the lighter hour, and from thence in the serious +occupations of life. She chases, or brings into subjection, the god of +wine, a victory which might seem more ignoble were it less difficult, and +calls in the aid of divinities more propitious to her ambition. The love +of becoming ornament is not perhaps to be regarded in the light of vanity; +it is rather an instinct which woman has received from nature to give +effect to those charms that are her defence; and when commerce began to +minister more effectually to the wants of luxury, the rich furs of the +North, the gay silks of Asia, the wrought gold of domestic manufacture, +illumined the halls of chivalry, and cast, as if by the spell of +enchantment, that ineffable grace over beauty which the choice and +arrangement of dress is calculated to bestow. Courtesy had always been the +proper attribute of knighthood; protection of the weak its legitimate +duty; but these were heightened to a pitch of enthusiasm when woman became +their object. There was little jealousy shown in the treatment of that +sex, at least in France, the fountain of chivalry; they were present at +festivals, at tournaments, and sat promiscuously in the halls of their +castle. The romance of Perceforest (and romances have always been deemed +good witnesses as to manners) tells of a +<span class="pagenum"><a name="Page_398" id="Page_398">[Pg 398]</a></span> +feast where eight hundred +knights had each of them a lady eating off his +plate.<a name="FNanchor_766_766" id="FNanchor_766_766"></a><a href="#Footnote_766_766" class="fnanchor">[x]</a> For to eat off +the same plate was an usual mark of gallantry or friendship.</p> + +<p>Next therefore, or even equal to devotion, stood gallantry among the +principles of knighthood. But all comparison between the two was saved by +blending them together. The love of God and the ladies was enjoined as a +single duty. He who was faithful and true to his mistress was held sure of +salvation in the theology of castles though not of +cloisters.<a name="FNanchor_767_767" id="FNanchor_767_767"></a><a href="#Footnote_767_767" class="fnanchor">[y]</a> +Froissart announces that he had undertaken a collection of amorous poetry +with the help of God and of love; and Boccace returns thanks to each for +their assistance in the Decameron. The laws sometimes united in this +general homage to the fair. "We will," says James II. of Aragon, "that +every man, whether knight or no, who shall be in company with a lady, pass +safe and unmolested, unless he be guilty of +murder."<a name="FNanchor_768_768" id="FNanchor_768_768"></a><a href="#Footnote_768_768" class="fnanchor">[z]</a> Louis II., duke +of Bourbon, instituting the order of the Golden Shield, enjoins his +knights to honour above all the ladies, and not to permit any one to +slander them, "because from them after God comes all the honour that men +can acquire."<a name="FNanchor_769_769" id="FNanchor_769_769"></a><a href="#Footnote_769_769" class="fnanchor">[a]</a></p> + +<p>The gallantry of those ages, which was very often adulterous, had +certainly no right to profane the name of religion; but its union with +valour was at least more natural, and became so intimate, that the same +word has served to express both qualities. In the French and English wars +especially, the knights of each country brought to that serious conflict +the spirit of romantic attachment which had been cherished in the hours of +peace. They fought at Poitiers or Verneuil as they had fought at +tournaments, bearing over their armour scarves and devices as the livery +of their mistresses, and asserting the paramount beauty of her they served +in vaunting challenges towards the enemy. Thus in the middle of a +<span class="pagenum"><a name="Page_399" id="Page_399">[Pg 399]</a></span> keen +skirmish at Cherbourg, the squadrons remained motionless, while one knight +challenged to a single combat the most amorous of the adversaries. Such a +defiance was soon accepted, and the battle only recommenced when one of +the champions had lost his life for his +love.<a name="FNanchor_770_770" id="FNanchor_770_770"></a><a href="#Footnote_770_770" class="fnanchor">[b]</a> +In the first campaign of Edward's war some young English knights wore a covering over one eye, +vowing, for the sake of their ladies, never to see with both till they +should have signalized their prowess in the +field.<a name="FNanchor_771_771" id="FNanchor_771_771"></a><a href="#Footnote_771_771" class="fnanchor">[c]</a> These +extravagances of chivalry are so common that they form part of its general +character, and prove how far a course of action which depends upon the +impulses of sentiment may come to deviate from common sense.</p> + +<p>It cannot be presumed that this enthusiastic veneration, this devotedness +in life and death, were wasted upon ungrateful natures. The goddesses of +that idolatry knew too well the value of their worshippers. There has +seldom been such adamant about the female heart, as can resist the highest +renown for valour and courtesy, united with the steadiest fidelity. "He +loved," says Froissart of Eustace d'Auberthicourt, "and afterwards married +lady Isabel, daughter of the count of Juliers. This lady too loved lord +Eustace for the great exploits in arms which she heard told of him, and +she sent him horses and loving letters, which made the said lord Eustace +more bold than before, and he wrought such feats of chivalry, that all in +his company were gainers."<a name="FNanchor_772_772" id="FNanchor_772_772"></a><a href="#Footnote_772_772" class="fnanchor">[d]</a> +It were to be wished that the sympathy of +love and valour had always been as honourable. But the morals of chivalry, +we cannot deny, were not pure. In the amusing fictions which seem to have +been the only popular reading of the middle ages, there reigns a +licentious spirit, not of that slighter kind which is usual in such +compositions, but indicating a general dissoluteness in the intercourse of +the sexes. This has often been noticed of Boccaccio and the early Italian +novelists; but it equally characterized the tales and romances of France, +whether metrical or in prose, and all the poetry of the +Troubadours.<a name="FNanchor_773_773" id="FNanchor_773_773"></a><a href="#Footnote_773_773" class="fnanchor">[e]</a> +The violation of +<span class="pagenum"><a name="Page_400" id="Page_400">[Pg 400]</a></span> +marriage vows passes in them for an incontestable +privilege of the brave and the fair; and an accomplished knight seems to +have enjoyed as undoubted prerogatives, by general consent of opinion, as +were claimed by the brilliant courtiers of Louis XV.</p> + +<div class="sidenote">Virtues deemed essential to chivalry.</div> + +<p>But neither that emulous valour which chivalry excited, nor the religion +and gallantry which were its animating principles, alloyed as the latter +were by the corruption of those ages, could have rendered its institution +materially conducive to the moral improvement of society. There were, +however, excellences of a very high class which it equally encouraged. In +the books professedly written to lay down the duties of knighthood, they +appear to spread over the whole compass of human obligations. But these, +like other books of morality, strain their schemes of perfection far +beyond the actual practice of mankind. A juster estimate of chivalrous +manners is to be deduced from romances. Yet in these, as in all similar +fictions, there must be a few ideal touches beyond the simple truth of +character; and the picture can only be interesting when it ceases to +present images of mediocrity or striking imperfection. But they referred +their models of fictitious heroism to the existing standard of moral +approbation; a rule, which, if it generally falls short of what reason and +religion prescribe, is always beyond the average tenor of human conduct. +From these and from history itself we may infer the tendency of chivalry +to elevate and purify the moral feelings. Three virtues may particularly +be noticed as essential in the estimation of mankind to the character of a +knight; loyalty, courtesy, and munificence.</p> + +<div class="sidenote">Loyalty.</div> + +<p>The first of these in its original sense may be defined, fidelity to +engagements; whether actual promises, or such tacit obligations as bound a +vassal to his lord and a subject to his prince. It was applied also, and +in the utmost strictness, to the fidelity of a lover towards the lady he +served. Breach of faith, and especially of an express promise, was held a +disgrace that no valour could redeem. False, perjured, disloyal, recreant, +were the epithets which he must be compelled to endure who had swerved +from a plighted engagement +<span class="pagenum"><a name="Page_401" id="Page_401">[Pg 401]</a></span> +even towards an enemy. This is one of the most +striking changes produced by chivalry. Treachery, the usual vice of savage +as well as corrupt nations, became infamous during the vigour of that +discipline. As personal rather than national feelings actuated its heroes, +they never felt that hatred, much less that fear of their enemies, which +blind men to the heinousness of ill faith. In the wars of Edward III., +originating in no real animosity, the spirit of honourable as well as +courteous behaviour towards the foe seems to have arrived at its highest +point. Though avarice may have been the primary motive of ransoming +prisoners instead of putting them to death, their permission to return +home on the word of honour in order to procure the stipulated sum—an +indulgence never refused—could only be founded on experienced confidence +in the principles of chivalry.<a name="FNanchor_774_774" id="FNanchor_774_774"></a><a href="#Footnote_774_774" class="fnanchor">[f]</a></p> + +<div class="sidenote">Courtesy.</div> + +<div class="sidenote">Liberality.</div> + +<p>A knight was unfit to remain a member of the order if he violated his +faith; he was ill acquainted with its duties if he proved wanting in +courtesy. This word expressed the most highly refined good breeding, +founded less upon a knowledge of ceremonious politeness, though this was +not to be omitted, than on the spontaneous modesty, self-denial, and +respect for others, which ought to spring from his heart. Besides the +grace which this beautiful virtue threw over the habits of social life, it +softened down the natural roughness of war, and gradually introduced that +indulgent treatment of prisoners which was almost unknown to antiquity. +Instances of this kind are continual in the later period of the middle +ages. An Italian writer blames the soldier who wounded Eccelin, the famous +tyrant of Padua, after he was taken. "He deserved," says he, "no praise, +but rather the greatest infamy for his baseness; since it is as vile an +act to wound a prisoner, whether noble or otherwise, as to strike a dead +body."<a name="FNanchor_775_775" id="FNanchor_775_775"></a><a href="#Footnote_775_775" class="fnanchor">[g]</a> +Considering the crimes of Eccelin, this sentiment is a +remarkable proof of generosity. The behaviour of Edward III. to Eustace de +Ribaumont, after the capture +<span class="pagenum"><a name="Page_402" id="Page_402">[Pg 402]</a></span> +of Calais, and that, still more exquisitely +beautiful, of the Black Prince to his royal prisoner at Poitiers, are such +eminent instances of chivalrous virtue, that I omit to repeat them only +because they are so well known. Those great princes too might be imagined +to have soared far above the ordinary track of mankind. But in truth, the +knights who surrounded them and imitated their excellences, were only +inferior in opportunities of displaying the same virtue. After the battle +of Poitiers, "the English and Gascon knights," says Froissart, "having +entertained their prisoners, went home each of them with the knights or +squires he had taken, whom he then questioned upon their honour what +ransom they could pay without inconvenience, and easily gave them credit; +and it was common for men to say, that they would not straiten any knight +or squire so that he should not live well and keep up his +honour."<a name="FNanchor_776_776" id="FNanchor_776_776"></a><a href="#Footnote_776_776" class="fnanchor">[h]</a> +Liberality, indeed, and disdain of money, might be reckoned, as I have +said, among the essential virtues of chivalry. All the romances inculcate +the duty of scattering their wealth with profusion, especially towards +minstrels, pilgrims, and the poorer members of their own order. The last, +who were pretty numerous, had a constant right to succour from the +opulent; the castle of every lord, who respected the ties of knighthood, +was open with more than usual hospitality to the traveller whose armour +announced his dignity, though it might also conceal his +poverty.<a name="FNanchor_777_777" id="FNanchor_777_777"></a><a href="#Footnote_777_777" class="fnanchor">[i]</a></p> + +<div class="sidenote">Justice.</div> + +<p>Valour, loyalty, courtesy, munificence, formed collectively the character +of an accomplished knight, so far as was displayed in the ordinary tenor +of his life, reflecting these virtues as an unsullied mirror. Yet +something more was required for the perfect idea of chivalry, and enjoined +by its principles; an active sense of justice, an ardent indignation +against wrong, a +<span class="pagenum"><a name="Page_403" id="Page_403">[Pg 403]</a></span> +determination of courage to its best end, the prevention +or redress of injury. It grew up as a salutary antidote in the midst of +poisons, while scarce any law but that of the strongest obtained regard, +and the rights of territorial property, which are only rights as they +conduce to general good, became the means of general oppression. The real +condition of society, it has sometimes been thought, might suggest stories +of knight-errantry, which were wrought up into the popular romances of the +middle ages. A baron, abusing the advantage of an inaccessible castle in +the fastnesses of the Black Forest or the Alps, to pillage the +neighbourhood and confine travellers in his dungeon, though neither a +giant nor a Saracen, was a monster not less formidable, and could perhaps +as little be destroyed without the aid of disinterested bravery. +Knight-errantry, indeed, as a profession, cannot rationally be conceived +to have had any existence beyond the precincts of romance. Yet there seems +no improbability in supposing that a knight, journeying through +uncivilized regions in his way to the Holy Land, or to the court of a +foreign sovereign, might find himself engaged in adventures not very +dissimilar to those which are the theme of romance. We cannot indeed +expect to find any historical evidence of such incidents.</p> + +<div class="sidenote">Resemblance of chivalrous to eastern manners.</div> + +<p>The characteristic virtues of chivalry bear so much resemblance to those +which eastern writers of the same period extol, that I am a little +disposed to suspect Europe of having derived some improvement from +imitation of Asia. Though the crusades began in abhorrence of infidels, +this sentiment wore off in some degree before their cessation; and the +regular intercourse of commerce, sometimes of alliance, between the +Christians of Palestine and the Saracens, must have removed part of the +prejudice, while experience of their enemy's courage and generosity in war +would with those gallant knights serve to lighten the remainder. The +romancers expatiate with pleasure on the merits of Saladin, who actually +received the honour of knighthood from Hugh of Tabaria, his prisoner. An +ancient poem, entitled the Order of Chivalry, is founded upon this story, +and contains +<span class="pagenum"><a name="Page_404" id="Page_404">[Pg 404]</a></span> +a circumstantial account of the ceremonies, as well as +duties, which the institution +required.<a name="FNanchor_778_778" id="FNanchor_778_778"></a><a href="#Footnote_778_778" class="fnanchor">[k]</a> +One or two other instances of +a similar kind bear witness to the veneration in which the name of knight +was held among the eastern nations. And certainly the Mohammedan +chieftains were for the most part abundantly qualified to fulfil the +duties of European chivalry. Their manners had been polished and +courteous, while the western kingdoms were comparatively barbarous.</p> + +<div class="sidenote">Evils produced by the spirit of chivalry.</div> + +<p>The principles of chivalry were not, I think, naturally productive of many +evils. For it is unjust to class those acts of oppression or disorder +among the abuses of knighthood, which were committed in spite of its +regulations, and were only prevented by them from becoming more extensive. +The licence of times so imperfectly civilized could not be expected to +yield to institutions, which, like those of religion, fell prodigiously +short in their practical result of the reformation which they were +designed to work. Man's guilt and frailty have never admitted more than a +partial corrective. But some bad consequences may be more fairly ascribed +to the very nature of chivalry. I have already mentioned the dissoluteness +which almost unavoidably resulted from the prevailing tone of gallantry. +And yet we sometimes find in the writings of those times a spirit of pure +but exaggerated sentiment; and the most fanciful refinements of passion +are mingled by the same poets with the coarsest immorality. An undue +thirst for military renown was another fault that chivalry must have +nourished; and the love of war, sufficiently pernicious in any shape, was +more founded, as I have observed, on personal feelings of honour, and less +on public spirit, than in the citizens of free states. A third reproach +may be made to the character of knighthood, that it widened the separation +between the different classes of society, and confirmed that +aristocratical spirit of high birth, by which the large mass of mankind +were kept in unjust degradation. Compare the generosity of Edward III. +towards Eustace de Ribaumont at the siege of Calais with the harshness of +his conduct towards the citizens. This may be illustrated +<span class="pagenum"><a name="Page_405" id="Page_405">[Pg 405]</a></span> by a story from +Joinville, who was himself imbued with the full spirit of chivalry, and +felt like the best and bravest of his age. He is speaking of Henry count +of Champagne, who acquired, says he, very deservedly, the surname of +Liberal, and adduces the following proof of it. A poor knight implored of +him on his knees one day as much money as would serve to marry his two +daughters. One Arthault de Nogent, a rich burgess, willing to rid the +count of this importunity, but rather awkward, we must own, in the turn of +his argument, said to the petitioner; My lord has already given away so +much that he has nothing left. Sir Villain, replied Henry, turning round +to him, you do not speak truth in saying that I have nothing left to give, +when I have got yourself. Here, Sir Knight, I give you this man and +warrant your possession of him. Then, says Joinville, the poor knight was +not at all confounded, but seized hold of the burgess fast by the collar, +and told him he should not go till he had ransomed himself. And in the end +he was forced to pay a ransom of five hundred pounds. The simple-minded +writer who brings this evidence of the count of Champagne's liberality is +not at all struck with the facility of a virtue that is exercised at the +cost of others.<a name="FNanchor_779_779" id="FNanchor_779_779"></a><a href="#Footnote_779_779" class="fnanchor">[m]</a></p> + +<div class="sidenote">Circumstances tending to promote it.</div> + +<p>There is perhaps enough in the nature of this institution and its +congeniality to the habits of a warlike generation to account for the +respect in which it was held throughout Europe. But several collateral +circumstances served to invigorate its spirit. Besides the powerful +efficacy with which the poetry and romance of the middle ages stimulated +those susceptible minds which were alive to no other literature, we may +enumerate four distinct causes tending to the promotion of chivalry.</p> + +<div class="sidenote">Regular education for knighthood.</div> + +<p>The first of these was the regular scheme of education, according to which +the sons of gentlemen from the age of seven years, were brought up in the +castles of superior lords, where they at once learned the whole discipline +of their future profession, and imbibed its emulous and enthusiastic +spirit. This was an inestimable advantage to the poorer nobility, who +could hardly otherwise have +<span class="pagenum"><a name="Page_406" id="Page_406">[Pg 406]</a></span> +given their children the accomplishments of +their station. From seven to fourteen these boys were called pages or +varlets; at fourteen they bore the name of esquire. They were instructed +in the management of arms, in the art of horsemanship, in exercises of +strength and activity. They became accustomed to obedience and courteous +demeanour, serving their lord or lady in offices which had not yet become +derogatory to honourable birth, and striving to please visitors, and +especially ladies, at the ball or banquet. Thus placed in the centre of +all that could awaken their imaginations, the creed of chivalrous +gallantry, superstition, or honour must have made indelible impressions. +Panting for the glory which neither their strength nor the established +rules permitted them to anticipate, the young scions of chivalry attended +their masters to the tournament, and even to the battle, and riveted with +a sigh the armour they were forbidden to +wear.<a name="FNanchor_780_780" id="FNanchor_780_780"></a><a href="#Footnote_780_780" class="fnanchor">[n]</a></p> + +<div class="sidenote">Encouragement of princes. Tournaments.</div> + +<p>It was the constant policy of sovereigns to encourage this institution, +which furnished them with faithful supports, and counteracted the +independent spirit of feudal tenure. Hence they displayed a lavish +magnificence in festivals and tournaments, which may be reckoned a second +means of keeping up the tone of chivalrous feeling. The kings of France +and England held solemn or plenary courts at the great festivals, or at +other times, where the name of knight was always a title to admittance; +and the masque of chivalry, if I may use the expression, was acted in +pageants and ceremonies fantastical enough in our apprehension, but well +calculated for those heated understandings. Here the peacock and the +pheasant, birds of high fame in romance, received the homage of all true +knights.<a name="FNanchor_781_781" id="FNanchor_781_781"></a><a href="#Footnote_781_781" class="fnanchor">[o]</a> +The most singular festival of this kind was that celebrated +by Philip duke of Burgundy, in 1453. In the midst of the banquet a pageant +was introduced, representing the calamitous state of religion in +consequence of the recent capture of Constantinople. This was followed by +the appearance of a pheasant, which was laid before the duke, and to which +the knights present addressed their vows to undertake a +<span class="pagenum"><a name="Page_407" id="Page_407">[Pg 407]</a></span> crusade, in the +following very characteristic preamble: I swear before God my Creator in +the first place, and the glorious Virgin his mother, and next before the +ladies and the pheasant.<a name="FNanchor_782_782" id="FNanchor_782_782"></a><a href="#Footnote_782_782" class="fnanchor">[p]</a> +Tournaments were a still more powerful +incentive to emulation. These may be considered to have arisen about the +middle of the eleventh century; for though every martial people have found +diversion in representing the image of war, yet the name of tournaments, +and the laws that regulated them, cannot be traced any +higher.<a name="FNanchor_783_783" id="FNanchor_783_783"></a><a href="#Footnote_783_783" class="fnanchor">[q]</a> Every +scenic performance of modern times must be tame in comparison of these +animating combats. At a tournament, the space enclosed within the lists +was surrounded by sovereign princes and their noblest barons, by knights +of established renown, and all that rank and beauty had most distinguished +among the fair. Covered with steel, and known only by their emblazoned +shield or by the favours of their mistresses, a still prouder bearing, the +combatants rushed forward to a strife without enmity, but not without +danger. Though their weapons were pointless, and sometimes only of wood, +though they were bound by the laws of tournaments to strike only upon the +strong armour of the trunk, or, as it was called, between the four limbs, +those impetuous conflicts often terminated in wounds and death. The church +uttered her excommunications in vain against so wanton an exposure to +peril; but it was more easy for her to excite than to restrain that +martial enthusiasm. Victory in a tournament was little less glorious, and +perhaps at the moment more exquisitely felt, than in the field; since no +battle could assemble such witnesses of valour. "Honour to the sons of the +brave," resounded amidst the din of martial music from the lips of the +minstrels, as the conqueror advanced to receive the prize from his queen +or his mistress; while the surrounding multitude acknowledged in his +prowess of that day an augury of triumphs that might in more serious +contests be blended with those of his +country.<a name="FNanchor_784_784" id="FNanchor_784_784"></a><a href="#Footnote_784_784" class="fnanchor">[r]</a></p> + +<div class="sidenote">Privileges of knighthood.</div> + +<p><span class="pagenum"><a name="Page_408" id="Page_408">[Pg 408]</a></span> +Both honorary and substantial privileges belonged to the condition of +knighthood, and had of course a material tendency to preserve its credit. +A knight was distinguished abroad by his crested helmet, his weighty +armour, whether of mail or plate, bearing his heraldic coat, by his gilded +spurs, his horse barded with iron, or clothed in housing of gold; at home, +by richer silks and more costly furs than were permitted to squires, and +by the appropriated colour of scarlet. He was addressed by titles of more +respect.<a name="FNanchor_785_785" id="FNanchor_785_785"></a><a href="#Footnote_785_785" class="fnanchor">[s]</a> +Many civil offices, by rule or usage, were confined to his +order. But perhaps its chief privilege was to form one distinct class of +nobility extending itself throughout great part of Europe, and almost +independent, as to its rights and dignities, of any particular sovereign. +Whoever had been legitimately dubbed a knight in one country became, as it +were, a citizen of universal chivalry, and might assume most of its +privileges in any other. Nor did he require the act of a sovereign to be +thus distinguished. It was a fundamental principle that any knight might +confer the order; responsible only in his own reputation if he used +lightly so high a prerogative. But as all the distinctions of rank might +have been confounded, if this right had been without limit, it was an +equally fundamental rule, that it could only be exercised in favour of +gentlemen.<a name="FNanchor_786_786" id="FNanchor_786_786"></a><a href="#Footnote_786_786" class="fnanchor">[t]</a></p> + +<p><span class="pagenum"><a name="Page_409" id="Page_409">[Pg 409]</a></span> +The privileges annexed to chivalry were of peculiar advantage to the +vavassors, or inferior gentry, as they tended to counterbalance the +influence which territorial wealth threw into the scale of their feudal +suzerains. Knighthood brought these two classes nearly to a level; and it +is owing perhaps in no small degree to this institution that the lower +nobility saved themselves, notwithstanding their poverty, from being +confounded with the common people.</p> + +<div class="sidenote">Connexion of chivalry with military service.</div> + +<div class="sidenote">Knights-bannerets and bachelors.</div> + +<p>Lastly, the customs of chivalry were maintained by their connexion with +military service. After armies, which we may call comparatively regular, +had superseded in a great degree the feudal militia, princes were anxious +to bid high for the service of knights, the best-equipped and bravest +warriors of the time, on whose prowess the fate of battles was for a long +period justly supposed to depend. War brought into relief the generous +virtues of chivalry, and gave lustre to its distinctive privileges. The +rank was sought with enthusiastic emulation through heroic achievements, +to which, rather than to mere wealth and station, it was considered to +belong. In the wars of France and England, by far the most splendid period +of this institution, a promotion of knights followed every success, +besides the innumerable cases where the same +<span class="pagenum"><a name="Page_410" id="Page_410">[Pg 410]</a></span> +honour rewarded individual +bravery.<a name="FNanchor_787_787" id="FNanchor_787_787"></a><a href="#Footnote_787_787" class="fnanchor">[u]</a> +It may here be mentioned that an honorary distinction was +made between knights-bannerets and +bachelors.<a name="FNanchor_788_788" id="FNanchor_788_788"></a><a href="#Footnote_788_788" class="fnanchor">[x]</a> +The former were the +richest and best accompanied. No man could properly be a banneret unless +he possessed a certain estate, and could bring a certain number of lances +into the field.<a name="FNanchor_789_789" id="FNanchor_789_789"></a><a href="#Footnote_789_789" class="fnanchor">[y]</a> +His distinguishing mark was the square banner, +carried by a squire at the point of his lance; while the knight-bachelor +had only the coronet or pointed pendant. When a banneret was created, the +general cut off this pendant to render the banner +square.<a name="FNanchor_790_790" id="FNanchor_790_790"></a><a href="#Footnote_790_790" class="fnanchor">[z]</a> But this +distinction, however it elevated the banneret, gave him no claim to +military command, except over his own dependents or men at arms. Chandos +was still a knight-bachelor when he led part of the prince of Wales's army +into Spain. He first raised his banner at the battle of Navarette; and the +narration that Froissart gives of the ceremony will illustrate the manners +of chivalry and the character of that admirable hero, the conqueror of Du +Guesclin and pride of English chivalry, whose fame with posterity has been +a little overshadowed by his master's +laurels.<a name="FNanchor_791_791" id="FNanchor_791_791"></a><a href="#Footnote_791_791" class="fnanchor">[a]</a> +What seems more extraordinary is, that mere squires had frequently the command over +knights. Proofs of this are almost continual in Froissart. But the vast +estimation in which men held the dignity of knighthood led +<span class="pagenum"><a name="Page_411" id="Page_411">[Pg 411]</a></span> them sometimes +to defer it for great part of their lives, in hope of signalizing their +investiture by some eminent exploit.</p> + +<div class="sidenote">Decline of chivalry.</div> + +<p>These appear to have been the chief means of nourishing the principles of +chivalry among the nobility of Europe. But notwithstanding all +encouragement, it underwent the usual destiny of human institutions. St. +Palaye, to whom we are indebted for so vivid a picture of ancient manners, +ascribes the decline of chivalry in France to the profusion with which the +order was lavished under Charles VI., to the establishment of the +companies of ordonnance by Charles VII., and to the extension of knightly +honours to lawyers, and other men of civil occupation, by Francis +I.<a name="FNanchor_792_792" id="FNanchor_792_792"></a><a href="#Footnote_792_792" class="fnanchor">[b]</a> +But the real principle of decay was something different from these three +subordinate circumstances, unless so far as it may bear some relation to +the second. It was the invention of gunpowder that eventually overthrew +chivalry. From the time when the use of fire-arms became tolerably perfect +the weapons of former warfare lost their efficacy, and physical force was +reduced to a very subordinate place in the accomplishments of a soldier. +The advantages of a disciplined infantry became more sensible; and the +lancers, who continued till almost the end of the sixteenth century to +charge in a long line, felt the punishment of their presumption and +indiscipline. Even in the wars of Edward III., the disadvantageous tactics +of chivalry must have been perceptible; but the military art had not been +sufficiently studied to overcome the prejudices of men eager for +individual distinction. Tournaments became less frequent; and, after the +fatal accident of Henry II., were entirely discontinued in France. +Notwithstanding the convulsions of the religious wars, the sixteenth +century was more tranquil than any that had preceded; and thus a large +part of the nobility passed their lives in pacific habits, and if they +assumed the honours of chivalry, forgot their natural connexion with +military prowess. This is far more applicable to England, where, except +from the reign of Edward III. to that of Henry VI., chivalry, as a +military institution, seems not to have +<span class="pagenum"><a name="Page_412" id="Page_412">[Pg 412]</a></span> +found a very congenial +soil.<a name="FNanchor_793_793" id="FNanchor_793_793"></a><a href="#Footnote_793_793" class="fnanchor">[c]</a> +To these circumstances, immediately affecting the military condition of +nations, we must add the progress of reason and literature, which made +ignorance discreditable even in a soldier, and exposed the follies of +romance to a ridicule which they were very ill calculated to endure.</p> + +<p>The spirit of chivalry left behind it a more valuable successor. The +character of knight gradually subsided in that of gentleman; and the one +distinguishes European society in the sixteenth and seventeenth centuries, +as much as the other did in the preceding ages. A jealous sense of honour, +less romantic, but equally elevated, a ceremonious gallantry and +politeness, a strictness in devotional observances, a high pride of birth +and feeling of independence upon any sovereign for the dignity it gave, a +sympathy for martial honour, though more subdued by civil habits, are the +lineaments which prove an indisputable descent. The cavaliers of Charles +I. were genuine successors of Edward's knights; and the resemblance is +much more striking, if we ascend to the civil wars of the League. Time has +effaced much also of this gentlemanly, as it did before of the chivalrous +character. From the latter part of the seventeenth century its vigour and +purity have undergone a tacit decay, and yielded, perhaps in every +country, to increasing commercial wealth, more diffused instruction, the +spirit of general liberty in some, and of servile obsequiousness in +others, the modes of life in great cities, and the levelling customs of +social intercourse.<a name="FNanchor_794_794" id="FNanchor_794_794"></a><a href="#Footnote_794_794" class="fnanchor">[d]</a></p> + +<div class="sidenote">Literature.</div> + +<p><span class="pagenum"><a name="Page_413" id="Page_413">[Pg 413]</a></span> +It is now time to pass to a very different subject. The third head under +which I classed the improvements of society during the four last centuries +of the middle ages was that of literature. But I must apprise the reader +not to expect any general view of literary history, even in the most +abbreviated manner. +<span class="pagenum"><a name="Page_414" id="Page_414">[Pg 414]</a></span> +Such an epitome would not only be necessarily +superficial, but foreign in many of its details to the purposes of this +chapter, which, attempting to develop the circumstances that gave a new +complexion to society, considers literature only so far as it exercised a +general and powerful influence. The private researches, therefore, of a +single scholar, unproductive of any material effect in his generation, +ought not to arrest us, nor indeed would a series of biographical notices, +into which literary history is apt to fall, be very instructive to a +philosophical inquirer. But I have still a more decisive reason against +taking a large range of literary history into the compass of this work, +founded on the many contributions which have been made within the last +forty years in that department, some of them even since the commencement +of my own labour.<a name="FNanchor_795_795" id="FNanchor_795_795"></a><a href="#Footnote_795_795" class="fnanchor">[e]</a> +These have diffused so general an acquaintance with +the literature of the middle ages, that I must, in treating the subject, +either compile secondary information from well-known books, or enter upon +a vast field of reading, with little hope of improving upon what has been +already said, or even acquiring credit for original research. I shall, +therefore, confine myself to four points: the study of civil law; the +institution of universities; the application of modern languages to +literature, and especially to poetry; and the revival of ancient learning.</p> + +<div class="sidenote">Civil law.</div> + +<p>The Roman law had been nominally preserved ever since the destruction of +the empire; and a great portion of the inhabitants of France and Spain, as +well as Italy, were governed by its provisions. But this was a mere +compilation from the Theodosian code; which itself contained only the more +recent laws promulgated after the establishment of Christianity, with some +fragments from earlier collections. It was +<span class="pagenum"><a name="Page_415" id="Page_415">[Pg 415]</a></span> made by order of Alaric king +of the Visigoths about the year 500, and it is frequently confounded, with +the Theodosian code by writers of the dark +ages.<a name="FNanchor_796_796" id="FNanchor_796_796"></a><a href="#Footnote_796_796" class="fnanchor">[f]</a> The code of +Justinian, reduced into system after the separation of the two former +countries from the Greek empire, never obtained any authority in them; nor +was it received in the part of Italy subject to the Lombards. But that +this body of laws was absolutely unknown in the West during any period +seems to have been too hastily supposed. Some of the more eminent +ecclesiastics, as Hincmar and Ivon of Chartres, occasionally refer to it, +and bear witness to the regard which the Roman church had uniformly paid +to its decisions.<a name="FNanchor_797_797" id="FNanchor_797_797"></a><a href="#Footnote_797_797" class="fnanchor">[g]</a></p> + +<p>The revival of the study of jurisprudence, as derived from the laws of +Justinian, has generally been ascribed to the discovery made of a copy of +the Pandects at Amalfi, in 1135, when that city was taken by the Pisans. +This fact, though not improbable, seems not to rest upon sufficient +evidence.<a name="FNanchor_798_798" id="FNanchor_798_798"></a><a href="#Footnote_798_798" class="fnanchor">[h]</a> +But its truth is the less material, as it appears to be +unequivocally proved that the study of Justinian's system had recommenced +before that era. Early in the twelfth century a professor named +Irnerius<a name="FNanchor_799_799" id="FNanchor_799_799"></a><a href="#Footnote_799_799" class="fnanchor">[i]</a> +opened a school of civil law at Bologna, where he commented, +if not on the Pandects, yet on the other books, the Institutes and Code, +which were sufficient to teach the principles and inspire the love of that +comprehensive jurisprudence. The study of law, having thus revived, made a +surprising progress; within fifty years Lombardy was full of lawyers, on +whom Frederic Barbarossa and Alexander III., so hostile in every other +respect, conspired to shower honours and privileges. The schools of +Bologna were pre-eminent throughout this century for legal learning. There +seem also to have been seminaries at Modena and Mantua; nor was any +considerable city without distinguished civilians. In the next age they +became still more numerous, and their professors more conspicuous, and +universities arose at +<span class="pagenum"><a name="Page_416" id="Page_416">[Pg 416]</a></span> +Naples, Padua, and other places, where the Roman +law was the object of peculiar +regard.<a name="FNanchor_800_800" id="FNanchor_800_800"></a><a href="#Footnote_800_800" class="fnanchor">[k]</a></p> + +<p>There is apparently great justice in the opinion of Tiraboschi, that by +acquiring internal freedom and the right of determining controversies by +magistrates of their own election, the Italian cities were led to require +a more extensive and accurate code of written laws than they had hitherto +possessed. These municipal judges were chosen from among the citizens, and +the succession to offices was usually so rapid, that almost every freeman +might expect in his turn to partake in the public government, and +consequently in the administration of justice. The latter had always +indeed been exercised in the sight of the people by the count and his +assessors under the Lombard and Carlovingian sovereigns; but the laws were +rude, the proceedings tumultuary, and the decisions perverted by violence. +The spirit of liberty begot a stronger sense of right; and right, it was +soon perceived, could only be secured by a common standard. Magistrates +holding temporary offices, and little elevated in those simple times above +the citizens among whom they were to return, could only satisfy the +suitors, and those who surrounded their tribunal, by proving the +conformity of their sentences to acknowledged authorities. And the +practice of alleging reasons in giving judgment would of itself introduce +some uniformity of decision and some adherence to great rules of justice +in the most arbitrary tribunals; while, on the other hand, those of a free +country lose part of their title to respect, and of their tendency to +maintain right, whenever, either in civil or criminal questions, the mere +sentence of a judge is pronounced without explanation of its motives.</p> + +<p>The fame of this renovated jurisprudence spread very rapidly from Italy +over other parts of Europe. Students flocked from all parts of Bologna; +and some eminent masters of that school repeated its lessons in distant +countries. One of these, Placentinus, explained the Digest at Montpelier +before the end of the twelfth century; and the collection of Justinian +soon came to supersede the Theodosian code in the dominions of +<span class="pagenum"><a name="Page_417" id="Page_417">[Pg 417]</a></span> +Toulouse.<a name="FNanchor_801_801" id="FNanchor_801_801"></a><a href="#Footnote_801_801" class="fnanchor">[m]</a> +Its study continued to flourish in the universities of both +these cities; and hence the Roman law, as it is exhibited in the system of +Justinian, became the rule of all tribunals in the southern provinces of +France. Its authority in Spain is equally great, or at least is only +disputed by that of the +canonists;<a name="FNanchor_802_802" id="FNanchor_802_802"></a><a href="#Footnote_802_802" class="fnanchor">[n]</a> +and it forms the acknowledged +basis of decision in all the Germanic tribunals, sparingly modified by the +ancient feudal customaries, which the jurists of the empire reduce within +narrow bounds.<a name="FNanchor_803_803" id="FNanchor_803_803"></a><a href="#Footnote_803_803" class="fnanchor">[o]</a> +In the northern parts of France, where the legal +standard was sought in local customs, the civil law met naturally with +less regard. But the code of St. Louis borrows from that treasury many of +its provisions, and it was constantly cited in pleadings before the +parliament of Paris, either as obligatory by way of authority, or at least +as written wisdom, to which great deference was +shown.<a name="FNanchor_804_804" id="FNanchor_804_804"></a><a href="#Footnote_804_804" class="fnanchor">[p]</a> +Yet its study was long prohibited in the university of Paris, front a disposition of the +popes to establish exclusively their decretals, though the prohibition was +silently disregarded.<a name="FNanchor_805_805" id="FNanchor_805_805"></a><a href="#Footnote_805_805" class="fnanchor">[q]</a></p> + +<div class="sidenote">Its introduction into England.</div> + +<p>As early as the reign of Stephen, Vacarius, a lawyer of Bologna, taught at +Oxford with great success; but the students of scholastic theology opposed +themselves, from some unexplained reason, to this new jurisprudence, and +his lectures were interdicted.<a name="FNanchor_806_806" id="FNanchor_806_806"></a><a href="#Footnote_806_806" class="fnanchor">[r]</a> +About the time of Henry III. and +Edward I. the civil law acquired some credit in England; but a system +entirely incompatible with it had established itself in our courts of +justice; and the Roman jurisprudence was not only soon rejected, but +became obnoxious.<a name="FNanchor_807_807" id="FNanchor_807_807"></a><a href="#Footnote_807_807" class="fnanchor">[s]</a> +Every where, however, the clergy combined its +<span class="pagenum"><a name="Page_418" id="Page_418">[Pg 418]</a></span> +study with that of their own canons; it was a maxim that every canonist +must be a civilian, and that no one could be a good civilian unless he +were also a canonist. In all universities, degrees are granted in both +laws conjointly; and in all courts of ecclesiastical jurisdiction, the +authority of Justinian is cited, when that of Gregory or Clement is +wanting.<a name="FNanchor_808_808" id="FNanchor_808_808"></a><a href="#Footnote_808_808" class="fnanchor">[t]</a></p> + +<div class="sidenote">The elder civilians little regarded.</div> + +<p>I should earn little gratitude for my obscure diligence, were I to dwell +on the forgotten teachers of a science that attracts so few. These elder +professors of Roman jurisprudence are infected, as we are told, with the +faults and ignorance of their time; failing in the exposition of ancient +law through incorrectness of manuscripts and want of subsidiary learning, +or perverting their sense through the verbal subtleties of scholastic +philosophy. It appears that, even a hundred years since, neither Azzo and +Accursius, the principal civilians of the thirteenth century, nor Bartolus +and Baldus, the more conspicuous luminaries of the next age, nor the later +writings of Accolti, Fulgosius, and Panormitanus, were greatly regarded as +authorities; unless it were in Spain, where improvement is always odious, +and the name of Bartolus inspired absolute +deference.<a name="FNanchor_809_809" id="FNanchor_809_809"></a><a href="#Footnote_809_809" class="fnanchor">[u]</a> +In the sixteenth century, Alciatus and the greater Cujacius became, as it were, +the founders of a new and more enlightened academy of civil law, from +which the latter jurists derived their lessons. The laws of Justinian, +stripped of their impurer alloy, and of the tedious glosses of their +commentators, will form the basis of other systems, and mingling, as we +may hope, with the new institutions of philosophical legislators, continue +to influence the social relations of mankind, long after their direct +authority shall have been abrogated. The ruins of ancient Rome supplied +the materials of a new city; and the fragments +<span class="pagenum"><a name="Page_419" id="Page_419">[Pg 419]</a></span> +of her law, which have +already been wrought into the recent codes of France and Prussia, will +probably, under other names, guide far distant generations by the sagacity +of Modestinus and Ulpian.<a name="FNanchor_810_810" id="FNanchor_810_810"></a><a href="#Footnote_810_810" class="fnanchor">[x]</a></p> + +<div class="sidenote">Public schools established by Charlemagne.</div> + +<p>The establishment of public schools in France is owing to Charlemagne. At +his accession, we are assured that no means of obtaining a learned +education existed in his +dominions;<a name="FNanchor_811_811" id="FNanchor_811_811"></a><a href="#Footnote_811_811" class="fnanchor">[y]</a> +and in order to restore in some +degree the spirit of letters, he was compelled to invite strangers from +countries where learning was not so thoroughly extinguished. Alcuin of +England, Clement of Ireland, Theodulf of Germany, were the true Paladins +who repaired to his court. With the help of these he revived a few sparks +of diligence, and established schools in different cities of his empire; +nor was he ashamed to be the disciple of that in his own palace under the +care of Alcuin.<a name="FNanchor_812_812" id="FNanchor_812_812"></a><a href="#Footnote_812_812" class="fnanchor">[z]</a> +His two next successors, Louis the Debonair and +Charles the Bald, were also encouragers of letters; +<span class="pagenum"><a name="Page_420" id="Page_420">[Pg 420]</a></span> and the schools of +Lyons, Fulda, Corvey, Rheims, and some other cities, might be said to +flourish in the ninth century.<a name="FNanchor_813_813" id="FNanchor_813_813"></a><a href="#Footnote_813_813" class="fnanchor">[a]</a> +In these were taught the trivium and +quadrivium, a long-established division of sciences: the first +comprehending grammar, or what we now call philology, logic, and rhetoric; +the second, music, arithmetic, geometry, and +astronomy.<a name="FNanchor_814_814" id="FNanchor_814_814"></a><a href="#Footnote_814_814" class="fnanchor">[b]</a> +But in those ages scarcely anybody mastered the latter four; and to be perfect in the +three former was exceedingly rare. All those studies, however, were +referred to theology, and that in the narrowest manner; music, for +example, being reduced to church chanting, and astronomy to the +calculation of Easter.<a name="FNanchor_815_815" id="FNanchor_815_815"></a><a href="#Footnote_815_815" class="fnanchor">[c]</a> +Alcuin was, in his old age, against reading +the poets;<a name="FNanchor_816_816" id="FNanchor_816_816"></a><a href="#Footnote_816_816" class="fnanchor">[d]</a> +and this discouragement of secular learning was very +general; though some, as for instance Raban, permitted a slight tincture +of it, as subsidiary to religious +instruction.<a name="FNanchor_817_817" id="FNanchor_817_817"></a><a href="#Footnote_817_817" class="fnanchor">[e]</a></p> + +<div class="sidenote">University of Paris.</div> + +<div class="sidenote">Abelard.</div> + +<p>About the latter part of the eleventh century a greater ardour for +intellectual pursuits began to show itself in Europe, which in the twelfth +broke out into a flame. This was manifested in the numbers who repaired to +the public academies or schools of philosophy. None of these grew so early +into reputation as that of Paris. This cannot indeed, as has been vainly +pretended, trace its pedigree to Charlemagne. The first who is said to +have read lectures at Paris was Remigius of Auxerre, about the year +900.<a name="FNanchor_818_818" id="FNanchor_818_818"></a><a href="#Footnote_818_818" class="fnanchor">[f]</a> +For the two next centuries the history of this school is very +obscure; and it would be hard to prove an unbroken continuity, or at least +a dependence and connexion of its professors. In the year 1100 we find +William of Champeaux teaching logic, and apparently some higher parts of +philosophy, with much credit. But this preceptor was eclipsed by his +disciple, afterwards his rival and adversary, Peter Abelard, to whose +brilliant and hardy genius the university of Paris appears to be indebted +for its rapid advancement. Abelard was almost the first who awakened +<span class="pagenum"><a name="Page_421" id="Page_421">[Pg 421]</a></span> +mankind in the ages of darkness to a sympathy with intellectual +excellence. His bold theories, not the less attractive perhaps for +treading upon the bounds of heresy, his imprudent vanity, that scorned the +regularly acquired reputation of older men, allured a multitude of +disciples, who would never have listened to an ordinary teacher. It is +said that twenty cardinals and fifty bishops had been among his +hearers.<a name="FNanchor_819_819" id="FNanchor_819_819"></a><a href="#Footnote_819_819" class="fnanchor">[g]</a> +Even in the wilderness, where he had erected the monastery +of Paraclete, he was surrounded by enthusiastic admirers, relinquishing +the luxuries, if so they might be called, of Paris, for the coarse living +and imperfect accommodation which that retirement could +afford.<a name="FNanchor_820_820" id="FNanchor_820_820"></a><a href="#Footnote_820_820" class="fnanchor">[h]</a> But +the whole of Abelard's life was the shipwreck of genius; and of genius, +both the source of his own calamities and unserviceable to posterity. +There are few lives of literary men more interesting or more diversified +by success and adversity, by glory and humiliation, by the admiration of +mankind and the persecution of enemies; nor from which, I may add, more +impressive lessons of moral prudence may be +derived.<a name="FNanchor_821_821" id="FNanchor_821_821"></a><a href="#Footnote_821_821" class="fnanchor">[i]</a> +One of Abelard's pupils was Peter Lombard, afterwards archbishop of Paris, and author of a +work called the Book of Sentences, which obtained the highest authority +among the scholastic disputants. The resort of students to Paris became +continually greater; they appear, before the year 1169, to have been +divided into nations;<a name="FNanchor_822_822" id="FNanchor_822_822"></a><a href="#Footnote_822_822" class="fnanchor">[k]</a> +and probably they had an elected rector and +voluntary rules of discipline about the same time. This, however, is not +decisively proved; but in the last year of the twelfth century they +obtained their earliest charter from Philip +Augustus.<a name="FNanchor_823_823" id="FNanchor_823_823"></a><a href="#Footnote_823_823" class="fnanchor">[m]</a></p> + +<div class="sidenote">University of Oxford.</div> + +<p><span class="pagenum"><a name="Page_422" id="Page_422">[Pg 422]</a></span> +The opinion which ascribes the foundation of the university of Oxford to +Alfred, if it cannot be maintained as a truth, contains no intrinsic marks +of error. Ingulfus, abbot of Croyland, in the earliest authentic passage +that can be adduced to this point,<a name="FNanchor_824_824" id="FNanchor_824_824"></a><a href="#Footnote_824_824" class="fnanchor">[n]</a> +declares that he was sent from +Westminster to the school at Oxford, where he learned Aristotle, with the +first and second books of Tully's +Rhetoric.<a name="FNanchor_825_825" id="FNanchor_825_825"></a><a href="#Footnote_825_825" class="fnanchor">[o]</a> Since a school for +dialectics and rhetoric subsisted at Oxford, a town of but middling size +and not the seat of a bishop, we are naturally led to refer its foundation +to one of our kings, and none who had reigned after Alfred appears likely +to have manifested such zeal for learning. However, it is evident that the +school of Oxford was frequented under Edward the Confessor. There follows +an interval of above a century, during which we have, I believe, no +contemporary evidence of its continuance. But in the reign of Stephen, +Vacarius read lectures there upon civil law; and it is reasonable to +suppose that a foreigner would not have chosen that city, if he had not +found a seminary of learning already established. It was probably +inconsiderable, and might have been interrupted during some part of the +preceding century.<a name="FNanchor_826_826" id="FNanchor_826_826"></a><a href="#Footnote_826_826" class="fnanchor">[p]</a> +In the reign +<span class="pagenum"><a name="Page_423" id="Page_423">[Pg 423]</a></span> +of Henry II., or at least of Richard +I., Oxford became a very flourishing university, and in 1201, according to +Wood, contained 3000 +scholars.<a name="FNanchor_827_827" id="FNanchor_827_827"></a><a href="#Footnote_827_827" class="fnanchor">[q]</a> +The earliest charters were granted by John.</p> + +<div class="sidenote">University of Bologna.</div> + +<div class="sidenote">Encouragement given to universities.</div> + +<p>If it were necessary to construe the word university in the strict sense +of a legal incorporation, Bologna might lay claim to a higher antiquity +than either Paris or Oxford. There are a few vestiges of studies pursued +in that city even in the eleventh +century;<a name="FNanchor_828_828" id="FNanchor_828_828"></a><a href="#Footnote_828_828" class="fnanchor">[r]</a> +but early in the next the +revival of the Roman jurisprudence, as has been already noticed, brought a +throng of scholars round the chairs of its professors. Frederic Barbarossa +in 1158, by his authentic, or rescript, entitled Habita, took these under +his protection, and permitted them to be tried in civil suits by their own +judges. This exemption from the ordinary tribunals, and even from those of +the church, was naturally coveted by other academies; it was granted to +the university of Paris by its earliest charter from Philip Augustus, and +to Oxford by John. From this time the golden age of universities +commenced; and it is hard to say whether they were favoured more by their +sovereigns or by the see of Rome. Their history indeed is full of +struggles with the municipal authorities, and with the bishops of their +several cities, wherein they were sometimes the aggressors, and generally +the conquerors. From all parts of Europe students resorted to these +renowned seats of learning with an eagerness for instruction which may +astonish those who reflect how little of what we now deem useful could be +imparted. At Oxford, under Henry III., it is said that there were 30,000 +scholars; an exaggeration which seems to imply that the real number was +very great.<a name="FNanchor_829_829" id="FNanchor_829_829"></a><a href="#Footnote_829_829" class="fnanchor">[s]</a> +A respectable contemporary writer asserts that +<span class="pagenum"><a name="Page_424" id="Page_424">[Pg 424]</a></span> there +were full 10,000 at Bologna about the same +time.<a name="FNanchor_830_830" id="FNanchor_830_830"></a><a href="#Footnote_830_830" class="fnanchor">[t]</a> +I have not observed any numerical statement as to Paris during this age; but there can be no +doubt that it was more frequented than any other. At the death of Charles +VII. in 1453, it is said to have contained 25,000 +students.<a name="FNanchor_831_831" id="FNanchor_831_831"></a><a href="#Footnote_831_831" class="fnanchor">[u]</a> In the +thirteenth century other universities sprang up in different countries; +Padua and Naples under the patronage of Frederic II., a zealous and useful +friend to letters,<a name="FNanchor_832_832" id="FNanchor_832_832"></a><a href="#Footnote_832_832" class="fnanchor">[x]</a> +Toulouse and Montpelier, Cambridge and +Salamanca.<a name="FNanchor_833_833" id="FNanchor_833_833"></a><a href="#Footnote_833_833" class="fnanchor">[y]</a> +Orleans, which had long been distinguished as a school of +civil law, received the privileges of incorporation early in the +fourteenth century, and Angers before the expiration of the same +age.<a name="FNanchor_834_834" id="FNanchor_834_834"></a><a href="#Footnote_834_834" class="fnanchor">[z]</a> +Prague, the earliest and most eminent of German universities, was founded +in 1350; a secession from thence of Saxon students, in consequence of the +nationality of the Bohemians and the Hussite schism, gave rise to that of +Leipsic.<a name="FNanchor_835_835" id="FNanchor_835_835"></a><a href="#Footnote_835_835" class="fnanchor">[a]</a> +The fifteenth century produced several new academical +foundations in France and Spain.</p> + +<p>A large proportion of scholars in most of those institutions were drawn by +the love of science from foreign countries. The chief universities had +their own particular departments of excellence. Paris was unrivalled for +scholastic theology; Bologna and Orleans, and afterwards Bourges, for +jurisprudence; Montpelier for medicine. Though national prejudices, as in +the case of +<span class="pagenum"><a name="Page_425" id="Page_425">[Pg 425]</a></span> +Prague, sometimes interfered with this free resort of +foreigners to places of education, it was in general a wise policy of +government, as well as of the universities themselves, to encourage it. +The thirty-fifth article of the peace of Bretigni provides for the +restoration of former privileges to students respectively in the French +and English universities.<a name="FNanchor_836_836" id="FNanchor_836_836"></a><a href="#Footnote_836_836" class="fnanchor">[b]</a> +Various letters patent will be found in +Rymer's collection, securing to Scottish as well as French natives a safe +passage to their place of education. The English nation, including however +the Flemings and Germans,<a name="FNanchor_837_837" id="FNanchor_837_837"></a><a href="#Footnote_837_837" class="fnanchor">[c]</a> +had a separate vote in the faculty of arts +at Paris. But foreign students were not, I believe, so numerous in the +English academies.</p> + +<p>If endowments and privileges are the means of quickening a zeal for +letters, they were liberally bestowed in the last three of the middle +ages. Crevier enumerates fifteen colleges founded in the university of +Paris during the thirteenth century, besides one or two of a still earlier +date. Two only, or at most three, existed in that age at Oxford, and but +one at Cambridge. In the next two centuries these universities could +boast, as every one knows, of many splendid foundations, though much +exceeded in number by those of Paris. Considered as ecclesiastical +institutions it is not surprising that the universities obtained, +according to the spirit of their age, an exclusive cognizance of civil or +criminal suits affecting their members. This jurisdiction was, however, +local as well as personal, and in reality encroached on the regular police +of their cities. At Paris the privilege turned to a flagrant abuse, and +gave rise to many scandalous contentions.<a name="FNanchor_838_838" id="FNanchor_838_838"></a><a href="#Footnote_838_838" class="fnanchor">[d]</a> +Still more valuable advantages were those relating to ecclesiastical preferments, of which a +large proportion was reserved in France to academical graduates. Something +of the same sort, though less extensive, may still be traced in the rules +respecting plurality of benefices in our English church.</p> + +<div class="sidenote">Causes of their celebrity.</div> + +<div class="sidenote">Scholastic philosophy.</div> + +<p>This remarkable and almost sudden transition from a total indifference to +all intellectual pursuits cannot be ascribed perhaps to any general +causes. The restoration of the civil, and the formation of the canon law, +were indeed eminently conducive +<span class="pagenum"><a name="Page_426" id="Page_426">[Pg 426]</a></span> +to it, and a large proportion of scholars +in most universities confined themselves to jurisprudence. But the chief +attraction to the studious was the new scholastic philosophy. The love of +contention, especially with such arms as the art of dialectics supplies to +an acute understanding, is natural enough to mankind. That of speculating +upon the mysterious questions of metaphysics and theology is not less so. +These disputes and speculations, however, appear to have excited little +interest till, after the middle of the eleventh century, Roscelin, a +professor of logic, revived the old question of the Grecian schools +respecting universal ideas, the reality of which he denied. This kindled a +spirit of metaphysical discussion, which Lanfranc and Anselm, successively +archbishops of Canterbury, kept alive; and in the next century Abelard and +Peter Lombard, especially the latter, completed the scholastic system of +philosophizing. The logic of Aristotle seems to have been partly known in +the eleventh century, although that of Augustin was perhaps in higher +estimation;<a name="FNanchor_839_839" id="FNanchor_839_839"></a><a href="#Footnote_839_839" class="fnanchor">[e]</a> +in the twelfth it obtained more decisive influence. His +metaphysics, to which the logic might be considered as preparatory, were +introduced through translations from the Arabic, and perhaps also from the +Greek, early in the ensuing +century.<a name="FNanchor_840_840" id="FNanchor_840_840"></a><a href="#Footnote_840_840" class="fnanchor">[f]</a> +This work, condemned at first by +the decrees of popes and councils on account of its supposed tendency to atheism, +<span class="pagenum"><a name="Page_427" id="Page_427">[Pg 427]</a></span> +acquired by degrees an influence, to which even popes and +councils were obliged to yield. The Mendicant Friars, established +throughout Europe in the thirteenth century, greatly contributed to +promote the Aristotelian philosophy; and its final reception into the +orthodox system of the church may chiefly be ascribed to Thomas Aquinas, +the boast of the Dominican order, and certainly the most distinguished +metaphysician of the middle ages. His authority silenced all scruple's as +to that of Aristotle, and the two philosophers were treated with equally +implicit deference by the later +schoolmen.<a name="FNanchor_841_841" id="FNanchor_841_841"></a><a href="#Footnote_841_841" class="fnanchor">[g]</a></p> + +<p>This scholastic philosophy, so famous for several ages, has since passed +away and been forgotten. The history of literature, like that of empire, +is full of revolutions. Our public libraries are cemeteries of departed +reputation, and the dust accumulating upon their untouched volumes speaks +as forcibly as the grass that waves over the ruins of Babylon. Few, very +few, for a hundred years past, have broken the repose of the immense works +of the schoolmen. None perhaps in our own country have acquainted +themselves particularly with their contents. Leibnitz, however, expressed +a wish that some one conversant with modern philosophy would undertake to +extract the scattered particles of gold which may be hidden in their +abandoned mines. This wish has been at length partially fulfilled by three +or four of those industrious students and keen metaphysicians, who do +honour to modern Germany. But most of their works are unknown to me except +by repute, and as they all appear to be formed on a very extensive plan, I +doubt whether even those laborious men could afford adequate time for this +ungrateful research. Yet we cannot pretend to deny that Roscelin, Anselm, +Abelard, Peter Lombard, Albertus Magnus, Thomas Aquinas, Duns Scotus, and +Ockham, were men of acute and even profound understandings, the giants of +their own generation. Even +<span class="pagenum"><a name="Page_428" id="Page_428">[Pg 428]</a></span> +with the slight knowledge we possess of their +tenets, there appear through the cloud of repulsive technical barbarisms +rays of metaphysical genius which this age ought not to despise. Thus in +the works of Anselm is found the celebrated argument of Des Cartes for the +existence of a Deity, deduced from the idea of an infinitely perfect +being. One great object that most of the schoolmen had in view was, to +establish the principles of natural theology by abstract reasoning. This +reasoning was doubtless liable to great difficulties. But a modern writer, +who seems tolerably acquainted with the subject, assures us that it would +be difficult to mention any theoretical argument to prove the divine +attributes, or any objection capable of being raised against the proof, +which we do not find in some of the scholastic +philosophers.<a name="FNanchor_842_842" id="FNanchor_842_842"></a><a href="#Footnote_842_842" class="fnanchor">[h]</a> The most +celebrated subjects of discussion, and those on which this class of +reasoners were most divided, were the reality of universal ideas, +considered as extrinsic to the human mind and the freedom of will. These +have not ceased to occupy the thoughts of +metaphysicians.<a name="FNanchor_843_843" id="FNanchor_843_843"></a><a href="#Footnote_843_843" class="fnanchor">[i]</a></p> + +<p>But all discovery of truth by means of these controversies +<span class="pagenum"><a name="Page_429" id="Page_429">[Pg 429]</a></span> +was rendered hopeless by two insurmountable obstacles, the authority of Aristotle and +that of the church. Wherever obsequious reverence is substituted for bold +inquiry, truth, if she is not already at hand, will never be attained. The +scholastics did not understand Aristotle, whose original writings they +could not read;<a name="FNanchor_844_844" id="FNanchor_844_844"></a><a href="#Footnote_844_844" class="fnanchor">[k]</a> +but his name was received with implicit faith. They +learned his peculiar nomenclature, and fancied that he had given them +realities. The authority of the church did them still more harm. It has +been said, and probably with much truth, that their metaphysics were +injurious to their theology. But I must observe in return that their +theology was equally injurious to their metaphysics. Their disputes +continually turned upon questions either involving absurdity and +contradiction, or at best inscrutable by human comprehension. Those who +assert the greatest antiquity of the Roman Catholic doctrine as to the +real presence, allow that both the word and the definition of +transubstantiation are owing to the scholastic writers. Their subtleties +were not always so well received. They reasoned at imminent peril of being +charged with heresy, which Roscelin, Abelard, Lombard, and Ockham did not +escape. In the virulent factions that arose out of their metaphysical +quarrels, either party was eager to expose its adversary to detraction and +persecution. The Nominalists were accused, one hardly sees why, with +reducing, like Sabellius, the persons of the Trinity to modal +distinctions. The Realists, with more pretence, incurred the imputation of +holding a language that savoured of +atheism.<a name="FNanchor_845_845" id="FNanchor_845_845"></a><a href="#Footnote_845_845" class="fnanchor">[m]</a> +In the controversy which +the Dominicans and Franciscans, disciples respectively of Thomas Aquinas +and Duns Scotus, maintained about grace and freewill, it was of course still +<span class="pagenum"><a name="Page_430" id="Page_430">[Pg 430]</a></span> +more easy to deal in mutual reproaches of heterodoxy. But the +schoolmen were in general prudent enough not to defy the censures of the +church; and the popes, in return for the support they gave to all +exorbitant pretensions of the Holy See, connived at this factious +wrangling, which threatened no serious mischief, as it did not proceed +from any independent spirit of research. Yet with all their apparent +conformity to the received creed, there was, as might be expected from the +circumstances, a great deal of real deviation from orthodoxy, and even of +infidelity. The scholastic mode of dispute, admitting of no termination +and producing no conviction, was the sure cause of scepticism; and the +system of Aristotle, especially with the commentaries of Averroes, bore an +aspect very unfavourable to natural +religion.<a name="FNanchor_846_846" id="FNanchor_846_846"></a><a href="#Footnote_846_846" class="fnanchor">[n]</a> +The Aristotelian philosophy, even in the hands of the Master, was like a barren tree that +conceals its want of fruit by profusion of leaves. But the scholastic +ontology was much worse. What could be more trifling than disquisitions +about the nature of angels, their modes of operation, their means of +conversing, or (for these were distinguished) the morning and evening +state of their +understandings?<a name="FNanchor_847_847" id="FNanchor_847_847"></a><a href="#Footnote_847_847" class="fnanchor">[o]</a> +Into such follies the schoolmen appear +to have launched, partly because there was less danger of running against +a heresy in a matter where the church had defined so little—partly from +their presumption, which disdained all inquiries into the human mind, as +merely a part of physics—and in no small degree through a spirit of +mystical fanaticism, derived from the oriental philosophy and the later +Platonists, which blended itself with the cold-blooded technicalities of +the Aristotelian school.<a name="FNanchor_848_848" id="FNanchor_848_848"></a><a href="#Footnote_848_848" class="fnanchor">[p]</a> +But this unproductive waste of the faculties +<span class="pagenum"><a name="Page_431" id="Page_431">[Pg 431]</a></span> +could not last for ever. Men discovered that they had given +their time for the promise of wisdom, and been cheated in the bargain. +What John of Salisbury observes of the Parisian dialecticians in his own +time, that, after several years' absence, he found them not a step +advanced and still employed in urging and parrying the same arguments, was +equally applicable to the period of centuries. After three or four hundred +years, the scholastics had not untied a single knot, nor added one +unequivocal truth to the domain of philosophy. As this became more +evident, the enthusiasm for that kind of learning declined; after the +middle of the fourteenth century few distinguished teachers arose among +the schoolmen, and at the revival of letters their pretended science had +no advocates left, but among the prejudiced or ignorant adherents of +established systems. How different is the state of genuine philosophy, the +zeal for which will never wear out by length of time or change of fashion, +because the inquirer, unrestrained by authority, is perpetually cheered by +the discovery of truth in researches, which the boundless riches of nature +seem to render indefinitely +progressive!<a name="FNanchor_849_849" id="FNanchor_849_849"></a><a href="#Footnote_849_849" class="fnanchor">[q]</a></p> + +<p>Yet, upon a general consideration, the attention paid in the universities +to scholastic philosophy, may be deemed a source of improvement in the +intellectual character, when we compare it with the perfect ignorance of +<span class="pagenum"><a name="Page_432" id="Page_432">[Pg 432]</a></span> +some preceding ages. Whether the same industry would not have been more +profitably directed if the love of metaphysics had not intervened, is +another question. Philology, or the principles of good taste, degenerated +through the prevalence of school-logic. The Latin compositions of the +twelfth century are better than those of the three that followed—at least +on the northern side of the Alps. I do not, however, conceive that any +real correctness of taste or general elegance of style was likely to +subsist in so imperfect a condition of society. These qualities seem to +require a certain harmonious correspondence in the tone of manners before +they can establish a prevalent influence over literature. A more real evil +was the diverting of studious men from mathematical science. Early in the +twelfth century several persons, chiefly English, had brought into Europe +some of the Arabian writings on geometry and physics. In the thirteenth +the works of Euclid were commented upon by +Campano,<a name="FNanchor_850_850" id="FNanchor_850_850"></a><a href="#Footnote_850_850" class="fnanchor">[r]</a> +and Roger Bacon was fully acquainted with +them.<a name="FNanchor_851_851" id="FNanchor_851_851"></a><a href="#Footnote_851_851" class="fnanchor">[s]</a> +Algebra, as far as the Arabians knew it, extending to quadratic equations, was actually in the hands of some +Italians at the commencement of the same age, and preserved for almost +three hundred years as a secret, though without any conception of its +importance. As +<span class="pagenum"><a name="Page_433" id="Page_433">[Pg 433]</a></span> +abstract mathematics require no collateral aid, they may +reach the highest perfection in ages of general barbarism; and there seems +to be no reason why, if the course of study had been directed that way, +there should not have arisen a Newton or a La Place, instead of an Aquinas +or an Ockham. The knowledge displayed by Roger Bacon and by Albertus +Magnus, even in the mixed mathematics, under every disadvantage from the +imperfection of instruments and the want of recorded experience, is +sufficient to inspire us with regret that their contemporaries were more +inclined to astonishment than to emulation. These inquiries indeed were +subject to the ordeal of fire, the great purifier of books and men; for if +the metaphysician stood a chance of being burned as a heretic, the natural +philosopher was in not less jeopardy as a +magician.<a name="FNanchor_852_852" id="FNanchor_852_852"></a><a href="#Footnote_852_852" class="fnanchor">[t]</a></p> + +<div class="sidenote">Cultivation of the new languages.</div> + +<div class="sidenote">Division of the Romance tongue into two dialects.</div> + +<div class="sidenote">Troubadours of Provence.</div> + +<p>A far more substantial cause of intellectual improvement was the +development of those new languages that sprang out of the corruption of +Latin. For three or four centuries after what was called the Romance +tongue was spoken in France, there remain but few vestiges of its +employment in writing; though we cannot draw an absolute inference from +our want of proof, and a critic of much authority supposes translations to +have been made into it for religious purposes from the time of +Charlemagne.<a name="FNanchor_853_853" id="FNanchor_853_853"></a><a href="#Footnote_853_853" class="fnanchor">[u]</a> +During this period the language was split into two very +separate dialects, the regions of which may be considered, though by no +means strictly, as divided by the Loire. These were called the Langue +d'Oil and the Langue d'Oc; or in more modern terms, the French and +Provençal dialects. In the latter of these I know of nothing which can +even by name be traced beyond the year 1100. About that time Gregory de +Bechada, a gentleman of Limousin, recorded the memorable events of the +first crusade, then recent, in a metrical history of great +length.<a name="FNanchor_854_854" id="FNanchor_854_854"></a><a href="#Footnote_854_854" class="fnanchor">[x]</a> This +<span class="pagenum"><a name="Page_434" id="Page_434">[Pg 434]</a></span> +poem has altogether perished; which, considering the popularity of +its subject, as M. Sismondi justly remarks, would probably not have been +the case if it had possessed any merit. But very soon afterwards a +multitude of poets, like a swarm of summer insects, appeared in the +southern provinces of France. These were the celebrated Troubadours, whose +fame depends far less on their positive excellence than on the darkness of +preceding ages, on the temporary sensation they excited, and their +permanent influence on the state of European poetry. From William count of +Poitou, the earliest troubadour on record, who died in 1126, to their +extinction, about the end of the next century, there were probably several +hundred of these versifiers in the language of Provence, though not always +natives of France. Millot has published the lives of one hundred and +forty-two, besides the names of many more whose history is unknown; and a +still greater number, it cannot be doubted, are unknown by name. Among +those poets are reckoned a king of England (Richard I.), two of Aragon, +one of Sicily, a dauphin of Auvergne, a count of Foix, a prince of Orange, +many noblemen and several ladies. One can hardly pretend to account for +this sudden and transitory love of verse; but it is manifestly one symptom +of the rapid impulse which the human mind received in the twelfth century, +and contemporaneous with the severer studies that began to flourish in the +universities. It was encouraged by the prosperity of Languedoc and +Provence, undisturbed, comparatively with other countries, by internal +warfare, and disposed by the temper of their inhabitants to feel with +voluptuous sensibility the charm of music and amorous poetry. But the +tremendous storm that fell upon Languedoc in the crusade against the +Albigeois shook off the flowers of Provençal verse; and the final +extinction of the fief of Toulouse, with the removal of the counts of +Provence to Naples, deprived the troubadours of their most eminent +patrons. An attempt was made in the next century to revive them, by +distributing prizes for the best composition in the Floral Games of +Toulouse, which have sometimes been erroneously +<span class="pagenum"><a name="Page_435" id="Page_435">[Pg 435]</a></span> +referred to a higher +antiquity.<a name="FNanchor_855_855" id="FNanchor_855_855"></a><a href="#Footnote_855_855" class="fnanchor">[y]</a> +This institution perhaps still remains; but even in its +earliest period it did not establish the name of any Provençal poet. Nor +can we deem these fantastical solemnities, styled Courts of Love, where +ridiculous questions of metaphysical gallantry were debated by poetical +advocates, under the presidency and arbitration of certain ladies, much +calculated to bring forward any genuine excellence. They illustrate, +however, what is more immediately my own object, the general ardour for +poetry and the manners of those chivalrous +ages.<a name="FNanchor_856_856" id="FNanchor_856_856"></a><a href="#Footnote_856_856" class="fnanchor">[z]</a></p> + +<div class="sidenote">Their poetical character.</div> + +<p>The great reputation acquired by the troubadours, and panegyrics lavished +on some of them by Dante and Petrarch, excited a curiosity among literary +men, which has been a good deal disappointed by further acquaintance. An +excellent French antiquary of the last age, La Curne de St. Palaye, spent +great part of his life in accumulating manuscripts of Provençal poetry, +very little of which had ever been printed. Translations from part of this +collection, with memorials of the writers, were published by Millot; and +we certainly do not often meet with passages in his three volumes which +give us any poetical +pleasure.<a name="FNanchor_857_857" id="FNanchor_857_857"></a><a href="#Footnote_857_857" class="fnanchor">[a]</a> +Some of the original poems have since +been published, and the extracts made from them by the recent historians +of southern literature are rather superior. The troubadours chiefly +confined themselves to subjects of love, or rather gallantry, and to +satires (sirventes), which are sometimes keen and spirited. No romances of +chivalry, and hardly any tales, are found among their works. There seems a +general deficiency of imagination, and especially of that vivid +description which distinguishes works of genius in the rudest period of +society. In the poetry of sentiment, their favourite province, they seldom +attain any natural expression, and consequently produce no interest. I +speak, of course, on the presumption that the best specimens have been exhibited +<span class="pagenum"><a name="Page_436" id="Page_436">[Pg 436]</a></span> +by those who have undertaken the task. It must be allowed, +however, that we cannot judge of the troubadours at a greater disadvantage +than through the prose translations of Millot. Their poetry was entirely +of that class which is allied to music, and excites the fancy or feelings +rather by the power of sound than any stimulancy of imagery and passion. +Possessing a flexible and harmonious language, they invented a variety of +metrical arrangements, perfectly new to the nations of Europe. The Latin +hymns were striking, but monotonous, the metre of the northern French +unvaried; but in Provençal poetry, almost every length of verse, from two +syllables to twelve, and the most intricate disposition of rhymes, were at +the choice of the troubadour. The canzoni, the sestine, all the lyric +metres of Italy and Spain were borrowed from his treasury. With such a +command of poetical sounds, it was natural that he should inspire delight +into ears not yet rendered familiar to the artifices of verse; and even +now the fragments of these ancient lays, quoted by M. Sismondi and M. +Ginguené, seem to possess a sort of charm that has evaporated in +translation. Upon this harmony, and upon the facility with which mankind +are apt to be deluded into an admiration of exaggerated sentiment in +poetry, they depended for their influence. And however vapid the songs of +Provence may seem to our apprehensions, they were undoubtedly the source +from which poetry for many centuries derived a great portion of its +habitual language.<a name="FNanchor_858_858" id="FNanchor_858_858"></a><a href="#Footnote_858_858" class="fnanchor">[b]</a></p> + +<div class="sidenote">Northern French poetry and prose.</div> + +<p>It has been maintained by some antiquaries, that the northern Romance, or +what we properly call French, was not formed until the tenth century, the +common dialect of all France having previously resembled that of +Languedoc. This +<span class="pagenum"><a name="Page_437" id="Page_437">[Pg 437]</a></span> +hypothesis may not be indisputable; but the question is +not likely to be settled, as scarcely any written specimens of Romance, +even of that age, have +survived.<a name="FNanchor_859_859" id="FNanchor_859_859"></a><a href="#Footnote_859_859" class="fnanchor">[c]</a> +In the eleventh century, among other +more obscure productions, both in prose and metre, there appears what, if +unquestioned as to authenticity, would be a valuable monument of this +language; the laws of William the Conqueror. These are preserved in a +manuscript of Ingulfus's History of Croyland, a blank being left in other +copies where they should +be inserted.<a name="FNanchor_860_860" id="FNanchor_860_860"></a><a href="#Footnote_860_860" class="fnanchor">[d]</a> +They are written in an idiom so +far removed from the Provençal, that one would be disposed to think the +separation between these two species of Romance of older standing than is +commonly allowed. But it has been thought probable that these laws, which +in fact were nearly a repetition of those of Edward the Confessor, were +originally published in Anglo-Saxon, the only language intelligible to the +people, and translated, at a subsequent period, by some Norman monk into +French.<a name="FNanchor_861_861" id="FNanchor_861_861"></a><a href="#Footnote_861_861" class="fnanchor">[e]</a></p> + +<p>The use of a popular language became more common after the year 1100. +Translations of some books of Scripture and acts of saints were made about +that time, or even earlier, and there are French sermons of St. Bernard, +from which extracts have been published, in the royal library at +Paris.<a name="FNanchor_862_862" id="FNanchor_862_862"></a><a href="#Footnote_862_862" class="fnanchor">[f]</a> +In 1126, a charter was granted by Louis VI. to the city of +Beauvais in French.<a name="FNanchor_863_863" id="FNanchor_863_863"></a><a href="#Footnote_863_863" class="fnanchor">[g]</a> +<span class="pagenum"><a name="Page_438" id="Page_438">[Pg 438]</a></span> +Metrical compositions are in general the first +literature of a nation, and even if no distinct proof could be adduced, we +might assume their existence before the twelfth century. There is however +evidence, not to mention the fragments printed by Le Bœuf, of certain +lives of saints translated into French verse by Thibault de Vernon, a +canon of Rouen, before the middle of the preceding age. And we are told +that Taillefer, a Norman minstrel, recited a song or romance on the deeds +of Roland, before the army of his countrymen, at the battle of Hastings in +1066. Philip de Than, a Norman subject of Henry I., seems to be the +earliest poet whose works as well as name have reached us, unless we admit +a French, translation of the work of one Marbode upon precious stones to +be more ancient.<a name="FNanchor_864_864" id="FNanchor_864_864"></a><a href="#Footnote_864_864" class="fnanchor">[h]</a> +This De Than wrote a set of rules for computation of +time and an account of different calendars. A happy theme for inspiration +without doubt! Another performance of the same author is a treatise on +birds and beasts, dedicated to Adelaide, queen of Henry +I.<a name="FNanchor_865_865" id="FNanchor_865_865"></a><a href="#Footnote_865_865" class="fnanchor">[i]</a> But a more +famous votary of the muses was Wace, a native of Jersey, who about the +beginning of Henry II.'s reign turned Geoffrey of Monmouth's history into +French metre. Besides this poem, called le Brut d'Angleterre, he composed +a series of metrical histories, containing the transactions of the dukes +of Normandy, from Rollo, their great progenitor, who gave name to the +Roman de Rou, down to his own age. Other productions are ascribed to Wace, +who was at least a prolific versifier, and, if he seem to deserve no +higher title at present, has a claim to indulgence, and even to esteem, as +having far excelled his contemporaries, without any superior advantages of +knowledge. In emulation, however, of his fame, several Norman writers +addicted themselves to composing chronicles, or devotional treatises in +metre. The court of our Norman kings was to the early poets in the Langue +d'Oil, what those of Arles and Toulouse were to the troubadours. Henry I. +was fond enough of literature to obtain the +<span class="pagenum"><a name="Page_439" id="Page_439">[Pg 439]</a></span> surname of Beauclerc; Henry +II. was more indisputably an encourager of poetry; and Richard I. has left +compositions of his own in one or other (for the point is doubtful) of the +two dialects spoken in France.<a name="FNanchor_866_866" id="FNanchor_866_866"></a><a href="#Footnote_866_866" class="fnanchor">[k]</a></p> + +<div class="sidenote">Norman romances and tales.</div> + +<p>If the poets of Normandy had never gone beyond historical and religious +subjects, they would probably have had less claim to our attention than +their brethren of Provence. But a different and far more interesting +species of composition began to be cultivated in the latter part of the +twelfth century. Without entering upon the controverted question as to the +origin of romantic fictions, referred by one party to the Scandinavians, +by a second to the Arabs, by others to the natives of Britany, it is +manifest that the actual stories upon which one early and numerous class +of romances was founded are related to the traditions of the last people. +These are such as turn upon the fable of Arthur; for though we are not +entitled to deny the existence of such a personage, his story seems +chiefly the creation of Celtic vanity. Traditions current in Britany, +though probably derived from this island, became the basis of Geoffrey of +Monmouth's Latin prose, which, as has been seen, was transfused into +French metre by Wace.<a name="FNanchor_867_867" id="FNanchor_867_867"></a><a href="#Footnote_867_867" class="fnanchor">[m]</a> +The vicinity of Normandy enabled its poets to +enrich their narratives with other Armorican fictions, all relating to the +heroes who had surrounded the table of the son of +Uther.<a name="FNanchor_868_868" id="FNanchor_868_868"></a><a href="#Footnote_868_868" class="fnanchor">[n]</a> An equally +imaginary history of +<span class="pagenum"><a name="Page_440" id="Page_440">[Pg 440]</a></span> +Charlemagne gave rise to a new family of romances. +The authors of these fictions were called Trouveurs, a name obviously +identical with that of Troubadours. But except in name there was no +resemblance between the minstrels of the northern and southern dialects. +The invention of one class was turned to description, that of the other to +sentiment; the first were epic in their form and style, the latter almost +always lyric. We cannot perhaps give a better notion of their +dissimilitude, than by saying that one school produced Chaucer, and the +other Petrarch. Besides these romances of chivalry, the trouveurs +displayed their powers of lively narration in comic tales or fabliaux, (a +name sometimes extended to the higher romance,) which have aided the +imagination of Boccace and La Fontaine. These compositions are certainly +more entertaining than those of the troubadours; but, contrary to what I +have said of the latter, they often gain by appearing in a modern dress. +Their versification, which doubtless had its charm when listened to around +the hearth of an ancient castle, is very languid and prosaic, and suitable +enough to the tedious prolixity into which the narrative is apt to fall; +and though we find many sallies of that arch and sprightly simplicity +which characterizes the old language of France as well as England, it +requires, upon the whole, a factitious taste to relish these Norman tales, +considered as poetry in the higher sense of the word, distinguished from +metrical fiction.</p> + +<div class="sidenote">Roman de la Rose.</div> + +<p>A manner very different from that of the fabliaux was adopted, in the +Roman de la Rose, begun by William de Loris about 1250, and completed by +John de Meun half a century later. This poem, which contains about 16,000 +lines in the usual octo-syllable verse, from which the early French +writers seldom deviated, is an allegorical vision, wherein, love and the +other passions or qualities connected with it pass over the stage, without +the intervention, I believe, of any less abstract personages. Though +similar allegories were not unknown to the ancients, and, which is more to +the purpose, maybe found in other productions of the thirteenth +<span class="pagenum"><a name="Page_441" id="Page_441">[Pg 441]</a></span> century, +none had been constructed so elaborately as that of the Roman de la Rose. +Cold and tedious as we now consider this species of poetry, it originated +in the creative power of imagination, and appealed to more refined feeling +than the common metrical narratives could excite. This poem was highly +popular in the middle ages, and became the source of those numerous +allegories which had not ceased in the seventeenth century.</p> + +<div class="sidenote">Works in French prose.</div> + +<p>The French language was employed in prose as well as in metre. Indeed it +seems to have had almost an exclusive privilege in this respect. "The +language of Oil," says Dante, in his treatise on vulgar speech, "prefers +its claim to be ranked above those of Oc and Si (Provençal and Italian), +on the ground that all translations or compositions in prose have been +written therein, from its greater facility and grace, such as the books +compiled from the Trojan and Roman stories, the delightful fables about +Arthur, and many other works of history and +science."<a name="FNanchor_869_869" id="FNanchor_869_869"></a><a href="#Footnote_869_869" class="fnanchor">[o]</a> +I have mentioned already the sermons of St. Bernard and translations from +Scripture. The laws of the kingdom of Jerusalem purport to have been drawn +up immediately after the first crusade, and though their language has been +materially altered, there seems no doubt that they were originally +compiled in French.<a name="FNanchor_870_870" id="FNanchor_870_870"></a><a href="#Footnote_870_870" class="fnanchor">[p]</a> +Besides some charters, there are said to have +been prose romances before the year +1200.<a name="FNanchor_871_871" id="FNanchor_871_871"></a><a href="#Footnote_871_871" class="fnanchor">[q]</a> +Early in the next age Ville +Hardouin, seneschal of Campagne, recorded the capture of Constantinople in +the fourth crusade, an expedition, the glory and reward of +<span class="pagenum"><a name="Page_442" id="Page_442">[Pg 442]</a></span> which he had +personally shared, and, as every original work of prior date has either +perished or is of small importance, may be deemed the father of French +prose. The Establishments of St. Louis, and the law treatise of +Beaumanoir, fill up the interval of the thirteenth century, and before its +conclusion we must suppose the excellent memoirs of Joinville to have been +composed, since they are dedicated to Louis X. in 1315, when the author +could hardly be less than ninety years of age. Without prosecuting any +further the history of French literature, I will only mention the +translations of Livy and Sallust, made in the reign and by the order of +John, with those of Cæsar, Suetonius, Ovid, and parts of Cicero, which +are, due to his successor Charles V.<a name="FNanchor_872_872" id="FNanchor_872_872"></a><a href="#Footnote_872_872" class="fnanchor">[r]</a></p> + +<div class="sidenote">Spanish language.</div> + +<p>I confess myself wholly uninformed as to the original formation of the +Spanish language, and as to the epoch of its separation into the two +principal dialects of Castile and Portugal, or +Gallicia;<a name="FNanchor_873_873" id="FNanchor_873_873"></a><a href="#Footnote_873_873" class="fnanchor">[s]</a> +nor should I perhaps have alluded to the literature of that peninsula, were it not for +a remarkable poem which shines out among the minor lights of those times. +This is a metrical life of the Cid Ruy Diaz, written in a barbarous style +and with the rudest inequality of measure, but with a truly Homeric warmth +and vivacity of delineation. It is much to be regretted that the author's +name has perished; but its date has been referred by some to the middle of +the twelfth century, while the hero's actions were yet recent, and before +the taste of +<span class="pagenum"><a name="Page_443" id="Page_443">[Pg 443]</a></span> +Spain had been corrupted by the Provençal troubadours, whose +extremely different manner would, if it did not pervert the poet's genius, +at least have impeded his popularity. A very competent judge has +pronounced the poem of the Cid to be "decidedly and beyond comparison the +finest in the Spanish language." It is at least superior to any that was +written in Europe before the appearance of +Dante.<a name="FNanchor_874_874" id="FNanchor_874_874"></a><a href="#Footnote_874_874" class="fnanchor">[t]</a></p> + +<div class="sidenote">Early writers in the Italian.</div> + +<p>A strange obscurity envelops the infancy of the Italian language. Though +it is certain that grammatical Latin had ceased to be employed in ordinary +discourse, at least from the time of Charlemagne, we have not a single +passage of undisputed authenticity, in the current idiom, for nearly four +centuries afterwards. Though Italian phrases are mixed up in the barbarous +jargon of some charters, not an instrument is extant in that language +before the year 1200, unless we may reckon one in the Sardinian dialect +(which I believe was rather Provençal than Italian), noticed by +Muratori.<a name="FNanchor_875_875" id="FNanchor_875_875"></a><a href="#Footnote_875_875" class="fnanchor">[u]</a> +Nor is there a vestige of Italian poetry older than a few +fragments of Ciullo d'Alcamo, a Sicilian, who must have written before +1193, since he mentions Saladin as then +living.<a name="FNanchor_876_876" id="FNanchor_876_876"></a><a href="#Footnote_876_876" class="fnanchor">[x]</a> +This may strike us as +the more remarkable, when we consider the political circumstances of Italy +in the eleventh and twelfth centuries. From the struggles of her spirited +republics against the emperors and their internal factions, we might, upon +all general reasoning, anticipate the early use and vigorous cultivation +of their native language. Even if it were not yet ripe for historians and +philosophers, it is strange that no poet should have been inspired with +songs of triumph or invective by the various fortunes of his country. But, +on the contrary, the poets of Lombardy became troubadours, and wasted +their genius in Provençal love strains at the courts of princes. The +<span class="pagenum"><a name="Page_444" id="Page_444">[Pg 444]</a></span> +Milanese and other Lombard dialects were, indeed, exceedingly rude; but +this rudeness separated them more decidedly from Latin: nor is it possible +that the Lombards could have employed that language intelligibly for any +public or domestic purpose. And indeed in the earliest Italian +compositions that have been published, the new language is so thoroughly +formed, that it is natural to infer a very long disuse of that from which +it was derived. The Sicilians claim the glory of having first adapted +their own harmonious dialect to poetry. Frederic II. both encouraged their +art and cultivated it; among the very first essays of Italian verse we +find his productions and those of his chancellor Piero delle Vigne. Thus +Italy was destined to owe the beginnings of her national literature to a +foreigner and an enemy. These poems are very short and few; those ascribed +to St. Francis about the same time are hardly distinguishable from prose; +but after the middle of the thirteenth century the Tuscan poets awoke to a +sense of the beauties which their native language, refined from the +impurities of vulgar +speech,<a name="FNanchor_877_877" id="FNanchor_877_877"></a><a href="#Footnote_877_877" class="fnanchor">[y]</a> +could display, and the genius of Italian +literature was rocked upon the restless waves of the Florentine democracy. +Ricordano Malespini, the first historian, and nearly the first prose +writer in Italian, left memorials of the republic down to the year 1281, +which was that of his death, and it was continued by Giacchetto Malespini +to 1286. These are little inferior in purity of style to the best Tuscan +authors; for it is the singular fate of that language to have spared +itself all intermediate stages of refinement, and, starting the last in +the race, to have arrived almost instantaneously at the goal. There is an +interval of not much more than half a century between the short fragment +of Ciullo d'Alcamo, mentioned above, and the poems of Guido Guinizzelli, +Guitone d'Arezzo, and Guido Cavalcante, +<span class="pagenum"><a name="Page_445" id="Page_445">[Pg 445]</a></span> +which, in their diction and turn +of thought, are sometimes not unworthy of +Petrarch.<a name="FNanchor_878_878" id="FNanchor_878_878"></a><a href="#Footnote_878_878" class="fnanchor">[z]</a></p> + +<div class="sidenote">Dante.</div> + +<p>But at the beginning of the next age arose a much greater genius, the true +father of Italian poetry, and the first name in the literature of the +middle ages. This was Dante, or Durante Alighieri, born in 1265, of a +respectable family at Florence. Attached to the Guelf party, which had +then obtained a final ascendency over its rival, he might justly promise +himself the natural reward of talents under a free government, public +trust and the esteem of his compatriots. But the Guelfs unhappily were +split into two factions, the Bianchi and the Neri, with the former of +whom, and, as it proved, the unsuccessful side, Dante was connected. In +1300 he filled the office of one of the Priori, or chief magistrates at +Florence; and having manifested in this, as was alleged, some partiality +towards the Bianchi, a sentence of proscription passed against him about +two years afterwards, when it became the turn of the opposite faction to +triumph. Banished from his country, and baffled in several efforts of his +friends to restore their fortunes, he had no resource but at the courts of +the Scalas at Verona, and other Italian princes, attaching himself in +adversity to the Imperial interests, and tasting, in his own language, the +bitterness of another's bread.<a name="FNanchor_879_879" id="FNanchor_879_879"></a><a href="#Footnote_879_879" class="fnanchor">[a]</a> +In this state of exile he finished, if +he did not commence, his great poem, the Divine Comedy; a representation +of the three kingdoms of futurity, Hell, Purgatory, and Paradise, divided +into one hundred cantos, and containing about 14,000 lines. He died at +Ravenna in 1321.</p> + +<p><span class="pagenum"><a name="Page_446" id="Page_446">[Pg 446]</a></span> +Dante is among the very few who have created the national poetry of their +country. For notwithstanding the polished elegance of some earlier Italian +verse, it had been confined to amorous sentiment; and it was yet to be +seen that the language could sustain, for a greater length than any +existing poem except the Iliad, the varied style of narration, reasoning, +and ornament. Of all writers he is the most unquestionably original. +Virgil was indeed his inspiring genius, as he declares himself, and as may +sometimes be perceived in his diction; but his tone is so peculiar and +characteristic, that few readers would be willing at first to acknowledge +any resemblance. He possessed, in an extraordinary degree, a command of +language, the abuse of which led to his obscurity and licentious +innovations. No poet ever excelled him in conciseness, and in the rare +talent of finishing his pictures by a few bold touches; the merit of +Pindar in his better hours. How prolix would the stories of Francesca or +of Ugolino have become in the hands of Ariosto, or of Tasso, or of Ovid, +or of Spenser! This excellence indeed is most striking in the first part +of his poem. Having formed his plan so as to give an equal length to the +three regions of his spiritual world, he found himself unable to vary the +images of hope or beatitude, and the Paradise is a continual accumulation +of descriptions, separately beautiful, but uniform and tedious. Though +images derived from light and music are the most pleasing, and can be +borne longer in poetry than any others, their sweetness palls upon the +sense by frequent repetition, and we require the intermixture of sharper +flavours. Yet there are detached passages of great excellence in this +third part of Dante's poem; and even in the long theological discussions +which occupy the greater proportion of its thirty-three cantos, it is +impossible not to admire the enunciation of abstract positions with +remarkable energy, conciseness, and sometimes perspicuity. The first +twelve cantos of the Purgatory are an almost continual flow of soft and +brilliant poetry. The last seven are also very splendid; but there is some +heaviness in the intermediate parts. Fame has justly given the preference +to the Inferno, which displays throughout a more vigorous and masterly +conception; but the mind of Dante cannot be thoroughly appreciated without +a perusal of his entire poem.</p> + +<p><span class="pagenum"><a name="Page_447" id="Page_447">[Pg 447]</a></span> +The most forced and unnatural turns, the most barbarous licences of idiom, +are found in this poet, whose power of expression is at other times so +peculiarly happy. His style is indeed generally free from those conceits +of thought which discredited the other poets of his country; but no sense +is too remote for a word which he finds convenient for his measure or his +rhyme. It seems indeed as if he never altered a line on account of the +necessity of rhyme, but forced another, or perhaps a third, into company +with it. For many of his faults no sufficient excuse can be made. But it +is candid to remember, that Dante, writing almost in the infancy of a +language which he contributed to create, was not to anticipate that words +which he borrowed from the Latin, and from the provincial dialects, would +by accident, or through the timidity of later writers, lose their place in +the classical idiom of Italy. If Petrarch, Bembo, and a few more, had not +aimed rather at purity than copiousness, the phrases which now appear +barbarous, and are at least obsolete, might have been fixed by use in +poetical language.</p> + +<p>The great characteristic excellence of Dante is elevation of sentiment, to +which his compressed diction and the emphatic cadences of his measure +admirably correspond. We read him, not as an amusing poet, but as a master +of moral wisdom, with reverence and awe. Fresh from the deep and serious, +though somewhat barren studies of philosophy, and schooled in the severer +discipline of experience, he has made of his poem a mirror of his mind and +life, the register of his solicitudes and sorrows, and of the speculations +in which he sought to escape their recollection. The banished magistrate +of Florence, the disciple of Brunetto Latini, the statesman accustomed to +trace the varying fluctuations of Italian faction, is for ever before our +eyes. For this reason, even the prodigal display of erudition, which in an +epic poem would be entirely misplaced, increases the respect we feel for +the poet, though it does not tend to the reader's gratification. Except +Milton, he is much the most learned of all the great poets, and, +relatively to his age, far more learned than Milton. In one so highly +endowed by nature, and so consummate by instruction, we may well +sympathise with a resentment which exile and poverty rendered perpetually +fresh. The heart of +<span class="pagenum"><a name="Page_448" id="Page_448">[Pg 448]</a></span> +Dante was naturally sensible, and even tender; his +poetry is full of simple comparisons from rural life; and the sincerity of +his early passion for Beatrice pierces through the veil of allegory which +surrounds her. But the memory of his injuries pursues him into the +immensity of eternal light; and, in the company of saints and angels, his +unforgiving spirit darkens at the name of +Florence.<a name="FNanchor_880_880" id="FNanchor_880_880"></a><a href="#Footnote_880_880" class="fnanchor">[b]</a></p> + +<p>This great poem was received in Italy with that enthusiastic admiration +which attaches itself to works of genius only in ages too rude to listen +to the envy of competitors, or the fastidiousness of critics. Almost every +library in that country contains manuscript copies of the Divine Comedy, +and an account of those who have abridged or commented upon it would swell +to a volume. It was thrice printed in the year 1472, and at least nine +times within the fifteenth century. The city of Florence in 1373, with a +magnanimity which almost redeems her original injustice, appointed a +public professor to read lectures upon Dante; and it was hardly less +honourable to the poet's memory that the first person selected for this +office was Boccaccio. The universities of Pisa and Piacenza imitated this +example; but it is probable that Dante's abstruse philosophy was often +more regarded in their chairs than his higher +excellences.<a name="FNanchor_881_881" id="FNanchor_881_881"></a><a href="#Footnote_881_881" class="fnanchor">[c]</a> Italy +indeed, and all Europe, had reason to be proud of such a master. Since +Claudian, there had been seen for nine hundred years no considerable body +of poetry, except the Spanish poem of the Cid, of which no one had heard +beyond the peninsula, that could be said to pass mediocrity; and we must +go much further back than Claudian to find any one capable of being +compared with Dante. His appearance made an epoch in the intellectual +history of modern nations, and banished the discouraging suspicion which +long ages of lethargy tended to excite, that nature had exhausted her +fertility in the great poets of Greece and Rome. It was as if, at some of +the ancient games, a stranger had appeared upon the plain, and thrown his +quoit among the marks of former casts which tradition had ascribed to the +demigods. But the admiration of Dante, though it gave a general impulse to the human +<span class="pagenum"><a name="Page_449" id="Page_449">[Pg 449]</a></span> +mind, did not produce imitators. I am unaware at least of any +writer, in whatever language, who can be said to have followed the steps +of Dante: I mean not so much in his subject as in the character of his +genius and style. His orbit is still all his own, and the track of his +wheels can never be confounded with that of a +rival.<a name="FNanchor_882_882" id="FNanchor_882_882"></a><a href="#Footnote_882_882" class="fnanchor">[d]</a></p> + +<div class="sidenote">Petrarch.</div> + +<p>In the same year that Dante was expelled from Florence, a notary, by name +Petracco, was involved in a similar banishment. Retired to Arezzo, he +there became the father of Francis Petrarch. This great man shared of +course, during his early years, in the adverse fortune of his family, +which he was invincibly reluctant to restore, according to his father's +wish, by the profession of jurisprudence. The strong bias of nature +determined him to polite letters and poetry. These are seldom the +fountains of wealth; yet they would perhaps have been such to Petrarch, if +his temper could have borne the sacrifice of liberty for any worldly +acquisitions. At the city of Avignon, where his parents had latterly +resided, his graceful appearance and the reputation of his talents +attracted one of the Colonna family, then bishop of Lombes in Gascony. In +him, and in other members of that great house, never so illustrious as in +the fourteenth century, he experienced the union of patronage and +friendship. This, however, was not confined to the Colonnas. Unlike Dante, +no poet was ever so liberally and sincerely encouraged by the great; nor +did any perhaps ever carry to that perilous intercourse a spirit more +irritably independent, or more free from interested adulation. He praised +his friends lavishly because he loved them ardently; but his temper was +easily susceptible of offence, and there must have been much to tolerate +in that restlessness and jealousy of reputation which is perhaps the +inevitable failing of a +poet.<a name="FNanchor_883_883" id="FNanchor_883_883"></a><a href="#Footnote_883_883" class="fnanchor">[e]</a> +But every thing was forgiven to a man who was +<span class="pagenum"><a name="Page_450" id="Page_450">[Pg 450]</a></span> +the acknowledged boast of his age and country. Clement VI. +conferred one or two sinecure benefices upon Petrarch, and would probably +have raised him to a bishopric if he had chosen to adopt the +ecclesiastical profession. But he never took orders, the clerical tonsure +being a sufficient qualification for holding canonries. The same pope even +afforded him the post of apostolical secretary, and this was repeated by +Innocent VI. I know not whether we should ascribe to magnanimity or to a +politic motive the behaviour of Clement VI. towards Petrarch, who had +pursued a course as vexatious as possible to the Holy See. For not only he +made the residence of the supreme pontiffs at Avignon, and the vices of +their court, the topic of invectives, too well founded to be despised, but +he had ostentatiously put himself forward as the supporter of Nicola di +Rienzi in a project which could evidently have no other aim than to wrest +the city of Rome from the temporal sovereignty of its bishop. Nor was the +friendship and society of Petrarch less courted by the most respectable +Italian princes; by Robert king of Naples, by the Visconti, the Correggi +of Parma, the famous doge of Venice, Andrew Dandolo, and the Carrara +family of Padua, under whose protection he spent the latter years of his +life. Stories are related of the respect shown to him by men in humbler +stations which are perhaps still more +satisfactory.<a name="FNanchor_884_884" id="FNanchor_884_884"></a><a href="#Footnote_884_884" class="fnanchor">[f]</a> +But the most conspicuous +<span class="pagenum"><a name="Page_451" id="Page_451">[Pg 451]</a></span> +testimony of public esteem was bestowed by the city of Rome, +in his solemn coronation as laureat poet in the Capitol. This ceremony +took place in 1341; and it is remarkable that Petrarch had at that time +composed no works which could, in our estimation, give him pretensions to +so singular an honour.</p> + +<p>The moral character of Petrarch was formed of dispositions peculiarly +calculated for a poet. An enthusiast in the emotions of love and +friendship, of glory, of patriotism, of religion, he gave the rein to all +their impulses; and there is not perhaps a page in his Italian writing +which does not bear the trace of one or other of these affections. By far +the most predominant, and that which has given the greatest celebrity to +his name, is his passion for Laura. Twenty years of unrequited and almost +unaspiring love were lightened by song; and the attachment, which, having +long survived the beauty of its +object,<a name="FNanchor_885_885" id="FNanchor_885_885"></a><a href="#Footnote_885_885" class="fnanchor">[g]</a> +seems to have at one time +nearly passed from the heart to the fancy, was changed to an intenser +feeling, and to a sort of celestial adoration, by her death. Laura, before +the time of Petrarch's first accidental meeting with her, was united in +marriage with another; a fact which, besides some more particular +evidence, appears to me deducible from the whole tenor of his +poetry.<a name="FNanchor_886_886" id="FNanchor_886_886"></a><a href="#Footnote_886_886" class="fnanchor">[h]</a> +Such a passion is undoubtedly not capable of a moral defence; nor would I +seek its palliation so much in the prevalent manners of his age, by which +however the conduct of even good men is generally not a little influenced, +as in the infirmity of Petrarch's character, which induced him both to +obey and to justify the emotions of his heart. The lady too, whose virtue +and prudence we are not to question, seems to have tempered the light and +shadow of her countenance so as to preserve her admirer from despair, and +consequently to prolong his sufferings and servitude.</p> + +<p><span class="pagenum"><a name="Page_452" id="Page_452">[Pg 452]</a></span> +The general excellences of Petrarch, are his command over the music of +his native language, his correctness of style, scarcely two or three words +that he has used having been rejected by later writers, his exquisite +elegance of diction, improved by the perpetual study of Virgil; but, far +above all, that tone of pure and melancholy sentiment which has something +in it unearthly, and forms a strong contrast to the amatory poems of +antiquity. Most of these are either licentious or uninteresting; and those +of Catullus, a man endowed by nature with deep and serious sensibility, +and a poet, in my opinion, of greater and more varied genius than +Petrarch, are contaminated above all the rest with the most degrading +grossness. Of this there is not a single instance in the poet of Vaucluse; +and his strains, diffused and admired as they have been, may have +conferred a benefit that criticism cannot estimate, in giving elevation +and refinement to the imaginations of youth. The great defect of Petrarch +was his want of strong original conception, which prevented him from +throwing off the affected and overstrained manner of the Provençal +troubadours, and of the earlier Italian poets. Among his poems the +Triumphs are perhaps superior to the Odes, as the latter are to the +Sonnets; and of the latter, those written subsequently to the death of +Laura are in general the best. But that constrained and laborious measure +cannot equal the graceful flow of the canzone, or the vigorous compression +of the terza rima. The Triumphs have also a claim to superiority, as the +only poetical composition of Petrarch that extends to any considerable +length. They are in some degree perhaps an imitation of the dramatic +Mysteries, and form at least the earliest specimens of a kind of poetry +not uncommon in later times, wherein real and allegorical personages are +intermingled in a masque or scenic +representation.<a name="FNanchor_887_887" id="FNanchor_887_887"></a><a href="#Footnote_887_887" class="fnanchor">[i]</a></p> + +<div class="sidenote">English language.</div> + +<p>None of the principal modern languages was so late in its formation, or in +its application to the purposes of literature, as the English. This arose, +as is well known, out of the Saxon branch of the Great +<span class="pagenum"><a name="Page_453" id="Page_453">[Pg 453]</a></span> Teutonic stock +spoken in England till after the Conquest. From this mother dialect our +English differs less in respect of etymology, than of syntax, idiom, and +flexion. In so gradual a transition as probably took place, and one so +sparingly marked by any existing evidence, we cannot well assign a +definite origin to our present language. The question of identity is +almost as perplexing in languages as in individuals. But, in the reign of +Henry II., a version of Wace's poem of Brut, by one Layamon, a priest of +Ernly-upon-Severn, exhibits as it were the chrysalis of the English +language, in a very corrupt modification of the +Anglo-Saxon.<a name="FNanchor_888_888" id="FNanchor_888_888"></a><a href="#Footnote_888_888" class="fnanchor">[k]</a> +Very soon afterwards the new formation was better developed; and some metrical +pieces, referred by critics to the earlier part of the thirteenth century, +differ but little from our legitimate +grammar.<a name="FNanchor_889_889" id="FNanchor_889_889"></a><a href="#Footnote_889_889" class="fnanchor">[m]</a> +About the beginning of +Edward I.'s reign, Robert, a monk of Gloucester, composed a metrical +<span class="pagenum"><a name="Page_454" id="Page_454">[Pg 454]</a></span> +chronicle from the history of Geoffrey of Monmouth, which he continued to +his own time. This work, with a similar chronicle of Robert Manning, a +monk of Brunne (Bourne) in Lincolnshire, nearly thirty years later, stand +at the head of our English poetry. The romance of Sir Tristrem, ascribed +to Thomas of Erceldoune, surnamed the Rhymer, a Scottish minstrel, has +recently laid claim to somewhat higher +antiquity.<a name="FNanchor_890_890" id="FNanchor_890_890"></a><a href="#Footnote_890_890" class="fnanchor">[n]</a> In the fourteenth +century a great number of metrical romances were translated from the +French. It requires no small portion of indulgence to speak favourably of +any of these early English productions. A poetical line may no doubt +occasionally be found; but in general the narration is as heavy and prolix +as the versification is unmusical.<a name="FNanchor_891_891" id="FNanchor_891_891"></a><a href="#Footnote_891_891" class="fnanchor">[o]</a> +The first English writer who can +be read with approbation is William Langland, the author of Piers +Plowman's Vision, a severe satire upon the clergy. Though his measure is +more uncouth than that of his predecessors, there is real energy in his +conceptions, which he caught not from the chimeras of knight-errantry, but +the actual manners and opinions of his time.</p> + +<div class="sidenote">Cause of its slow progress.</div> + +<p>The very slow progress of the English language, as an instrument of +literature, is chiefly to be ascribed to the effects of the Norman +conquest, in degrading the native inhabitants and transferring all power +and riches to foreigners. The barons, without perhaps one exception, and a +large proportion of the gentry, were of French descent, and preserved +among themselves the speech of their fathers. This continued much longer +than we should naturally have expected; even after the loss of Normandy +had snapped the thread of French connexions, and they began to pride +themselves in the name of Englishmen, and in the inheritance of +traditionary English privileges. Robert of Gloucester has a remarkable +passage, which proves that in his time, somewhere about 1290, the superior +ranks continued to use the French +language.<a name="FNanchor_892_892" id="FNanchor_892_892"></a><a href="#Footnote_892_892" class="fnanchor">[p]</a> Ralph +<span class="pagenum"><a name="Page_455" id="Page_455">[Pg 455]</a></span> Higden, about the +early part of Edward III.'s reign, though his expressions do not go the +same length, asserts, that "gentlemen's children are taught to speak +French, from the time they are rocked in their cradle; and uplandish +(country) or inferior men will liken themselves to gentlemen, and learn +with great business for to speak French, for to be the more told of." +Notwithstanding, however, this predominance of French among the higher +class, I do not think that some modern critics are warranted in concluding +that they were in general ignorant of the English tongue. Men living upon +their estates among their tenantry, whom they welcomed in their halls, and +whose assistance they were perpetually needing in war and civil frays, +would hardly have permitted such a barrier to obstruct their intercourse. +For we cannot, at the utmost, presume that French was so well known to the +English commonalty in the thirteenth century as English is at present to +the same class in Wales and the Scottish Highlands. It may be remarked +also, that the institution of trial by jury must have rendered a knowledge +of English almost indispensable to those who administered justice. There +is a proclamation of Edward I. in Rymer, where he endeavours to excite his +subjects against the king of France by imputing to him the intention of +conquering the country and abolishing the English language (linguam delere +Anglicanam), and this is frequently repeated in the proclamations of +Edward III.<a name="FNanchor_893_893" id="FNanchor_893_893"></a><a href="#Footnote_893_893" class="fnanchor">[q]</a> +In his time, or perhaps a little before, the native +language had become more familiar than French in common use, even with the +court and nobility. Hence the numerous translations of metrical romances, +which are chiefly referred to his reign. An important change was effected +in 1362 by a statute, which enacts that all pleas in courts of justice +shall be pleaded, debated, and judged in English. But Latin was by this +act to be employed in drawing the record; for there seems to have still +continued a sort of prejudice against the use of English as a written +language. The earliest English instrument known to exist +<span class="pagenum"><a name="Page_456" id="Page_456">[Pg 456]</a></span> is said to bear +the date of 1343.<a name="FNanchor_894_894" id="FNanchor_894_894"></a><a href="#Footnote_894_894" class="fnanchor">[r]</a> +And there are but few entries in our own tongue +upon the rolls of parliament before the reign of Henry VI., after whose +accession its use becomes very +common.<a name="FNanchor_895_895" id="FNanchor_895_895"></a><a href="#Footnote_895_895" class="fnanchor">[s]</a> +Sir John Mandevile, about +1356, may pass for the father of English prose, no original work being so +ancient as his Travels. But the translation of the Bible and other +writings by Wicliffe, nearly thirty years afterwards, taught us the +copiousness and energy of which our native dialect was capable; and it was +employed in the fifteenth century by two writers of distinguished merit, +Bishop Pecock and Sir John Fortescue.</p> + +<div class="sidenote">Chaucer.</div> + +<p>But the principal ornament of our English literature was Geoffrey Chaucer, +who, with Dante and Petrarch, fills up the triumvirate of great poets in +the middle ages. Chaucer was born in 1328, and his life extended to the +last year of the fourteenth century. That rude and ignorant generation was +not likely to feel the admiration of native genius as warmly as the +compatriots of Petrarch; but he enjoyed the favour of Edward III., and +still more conspicuously of John duke of Lancaster; his fortunes were far +more prosperous than have usually been the lot of poets; and a reputation +was established beyond competition in his lifetime, from which no +succeeding generation has withheld its sanction. I cannot, in my own +taste, go completely along with the eulogies that some have bestowed upon +Chaucer, who seems to me to have wanted grandeur, where he is original, +both in conception and in language. But in vivacity of imagination and +ease of expression, he is above all poets of the middle time, and +comparable perhaps to the greatest of those who have followed. He +invented, or rather introduced from France, and employed with facility the +regular iambic couplet; and though it was not to be expected that he +should perceive the capacities latent in that measure, his versification, +to which he accommodated a very licentious and arbitrary pronunciation, is +uniform and harmonious.<a name="FNanchor_896_896" id="FNanchor_896_896"></a><a href="#Footnote_896_896" class="fnanchor">[t]</a> It is +<span class="pagenum"><a name="Page_457" id="Page_457">[Pg 457]</a></span> chiefly, indeed, as a comic poet, and +a minute observer of manners and circumstances, that Chaucer excels. In +serious and moral poetry he is frequently languid and diffuse; but he +springs like Antæus from the earth, when his subject changes to coarse +satire, or merry narrative. Among his more elevated compositions, the +Knight's Tale is abundantly sufficient to immortalize Chaucer, since it +would be difficult to find any where a story better conducted, or told +with more animation and strength of fancy. The second place may be given +to his Troilus and Creseide, a beautiful and interesting poem, though +enfeebled by expansion. But perhaps the most eminent, or at any rate the +most characteristic testimony to his genius will be found in the prologue +to his Canterbury Tales; a work entirely and exclusively his own, which +can seldom be said of his poetry, and the vivid delineations of which +perhaps very few writers but Shakspeare could have equalled. As the first +original English poet, if we except Langland, as the inventor of our most +approved measure, as an improver, though with too much innovation, of our +language, and as a faithful witness to the manners of his age, Chaucer +would deserve our reverence, if he had not also intrinsic claims for +excellences, which do not depend upon any collateral considerations.</p> + +<div class="sidenote">Revival of ancient learning.</div> + +<div class="sidenote">In the twelfth century;</div> + +<p>The last circumstance which I shall mention, as having contributed to +restore society from the intellectual degradation into which it had fallen +during the dark ages, is the revival of classical learning. The Latin +language indeed, in which all legal instruments were drawn up, and of +which all ecclesiastics availed themselves in their epistolary +intercourse, as well as in their more solemn proceedings, had never ceased +to be familiar. Though many solecisms and barbarous words occur in the +writings of what were called learned men, they possessed a fluency of +expression in Latin which does not often occur at present. During the dark +ages, however, properly so called, or the period from the sixth to the +eleventh century, we chiefly meet with quotations from the Vulgate or from +theological writers. Nevertheless, quotations from the Latin poets are +hardly to be called unusual. Virgil, Ovid, Statius, and Horace, are +brought forward by those +<span class="pagenum"><a name="Page_458" id="Page_458">[Pg 458]</a></span> +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. A considerable change took place in the course of the +twelfth century. The polite literature, as well as the abstruser science +of antiquity, became the subject of cultivation. Several writers of that +age, in different parts of Europe, are distinguished more or less for +elegance, though not absolute purity of Latin style; and for their +acquaintance with those ancients, who are its principal models. Such were +John of Salisbury, the acute and learned author of the Polycraticon, +William of Malmsbury, Giraldus Cambrensis, Roger Hoveden, in England; and +in foreign countries, Otho of Frisingen, Saxo Grammaticus, and the best +perhaps of all I have named as to style, Falcandus, the historian of +Sicily. In these we meet with frequent quotations from Livy, Cicero, +Pliny, and other considerable writers of antiquity. The poets were now +admired and even imitated. All metrical Latin before the latter part of +the twelfth century, so far as I have seen, is of little value; but at +this time, and early in the succeeding age, there appeared several +versifiers who aspired to the renown of following the steps of Virgil and +Statius in epic poetry. Joseph Iscanus, an Englishman, seems to have been +the earliest of these; his poem on the Trojan war containing an address to +Henry II. He wrote another, entitled Antiocheis, on the third crusade, +most of which has perished. The wars of Frederic Barbarossa were +celebrated by Gunther in his Ligurinus; and not long afterwards, +Guillelmus Brito wrote the Philippis, in honour of Philip Augustus, and +Walter de Chatillon the Alexandreis, taken from the popular romance of +Alexander. None of these poems, I believe, have much intrinsic merit; but +their existence is a proof of taste that could relish, though not of +genius that could emulate +antiquity.<a name="FNanchor_897_897" id="FNanchor_897_897"></a><a href="#Footnote_897_897" class="fnanchor">[u]</a></p> + +<div class="sidenote">much more the fourteenth.</div> + +<div class="sidenote">Invention of linen paper.</div> + +<div class="sidenote">Libraries.</div> + +<p><span class="pagenum"><a name="Page_459" id="Page_459">[Pg 459]</a></span> +In the thirteenth century there seems to have been some decline of +classical literature, in consequence probably of the scholastic +philosophy, which was then in its greatest vigour; at least we do not find +so many good writers as in the preceding age. But about the middle of the +fourteenth, or perhaps a little sooner, an ardent zeal for the restoration +of ancient learning began to display itself. The copying of books, for +some ages slowly and sparingly performed in monasteries, had already +become a branch of trade;<a name="FNanchor_898_898" id="FNanchor_898_898"></a><a href="#Footnote_898_898" class="fnanchor">[x]</a> +and their price was consequently reduced. +Tiraboschi denies that the invention of making paper from linen rags is +older than the middle of that century; and although doubts may be justly +entertained as to the accuracy of this position, yet the confidence with +which so eminent a scholar advances it is at least a proof that paper +manuscripts of an earlier date are very +rare.<a name="FNanchor_899_899" id="FNanchor_899_899"></a><a href="#Footnote_899_899" class="fnanchor">[y]</a> +Princes became far more attentive +<span class="pagenum"><a name="Page_460" id="Page_460">[Pg 460]</a></span> +to literature when it was no longer confined to metaphysical +theology and canon law. I have already mentioned the translations from +classical authors, made by command of John and Charles V. of France. These +French translations diffused some acquaintance with ancient history and +learning among our own countrymen.<a name="FNanchor_900_900" id="FNanchor_900_900"></a><a href="#Footnote_900_900" class="fnanchor">[z]</a> +The public libraries assumed a +more respectable appearance. Louis IX. had formed one at Paris, in which +it does not appear that any work of elegant literature was +found.<a name="FNanchor_901_901" id="FNanchor_901_901"></a><a href="#Footnote_901_901" class="fnanchor">[a]</a> At +the beginning of the fourteenth century, only four classical manuscripts +existed in this collection; of Cicero, Ovid, Lucan, and +Boethius.<a name="FNanchor_902_902" id="FNanchor_902_902"></a><a href="#Footnote_902_902" class="fnanchor">[b]</a> The +academical library of Oxford, in 1300, consisted of a few tracts kept in +chests under St Mary's church. That of Glastonbury Abbey, in 1240, +contained four hundred volumes, among which were Livy, Sallust, Lucan, +Virgil, Claudian, and other ancient +writers.<a name="FNanchor_903_903" id="FNanchor_903_903"></a><a href="#Footnote_903_903" class="fnanchor">[c]</a> +But no other, probably, +of that age was so numerous or so valuable. Richard of Bury, chancellor of +England, and Edward III., spared no expense in collecting a library, the +first perhaps that any private man had formed. But the scarcity of +valuable books was still so great, that he gave the abbot of St. Albans +fifty pounds weight of silver for between thirty and forty +volumes.<a name="FNanchor_904_904" id="FNanchor_904_904"></a><a href="#Footnote_904_904" class="fnanchor">[d]</a> +Charles V. +<span class="pagenum"><a name="Page_461" id="Page_461">[Pg 461]</a></span> +increased the royal library at Paris to nine hundred volumes, +which the duke of Bedford purchased and transported to +London.<a name="FNanchor_905_905" id="FNanchor_905_905"></a><a href="#Footnote_905_905" class="fnanchor">[e]</a> His +brother Humphrey duke of Gloucester presented the university of Oxford +with six hundred books, which seem to have been of extraordinary value, +one hundred and twenty of them having been estimated at one thousand +pounds. This indeed was in 1440, at which time such a library would not +have been thought remarkably numerous beyond the +Alps,<a name="FNanchor_906_906" id="FNanchor_906_906"></a><a href="#Footnote_906_906" class="fnanchor">[f]</a> but England +had made comparatively little progress in learning. Germany, however, was +probably still less advanced. Louis, Elector Palatine, bequeathed in 1421 +his library to the university of Heidelberg, consisting of one hundred and +fifty-two volumes. Eighty-nine of these related to theology, twelve to +canon and civil law, forty-five to medicine, and six to +philosophy.<a name="FNanchor_907_907" id="FNanchor_907_907"></a><a href="#Footnote_907_907" class="fnanchor">[g]</a></p> + +<div class="sidenote">Transcription of manuscripts.</div> + +<p>Those who first undertook to lay open the stores of ancient learning found +incredible difficulties from the scarcity of manuscripts. So gross and +supine was the ignorance of the monks, within whose walls these treasures +were concealed, that it was impossible to ascertain, except by +indefatigable researches, the extent of what had been saved out of the +great shipwreck of antiquity. To this inquiry Petrarch devoted continual +attention. He spared no means to preserve the remains of authors, who were +perishing from neglect and time. This danger was by no means +<span class="pagenum"><a name="Page_462" id="Page_462">[Pg 462]</a></span> passed in +the fourteenth century. A treatise of Cicero upon Glory, which had been in +his possession, was afterwards irretrievably +lost.<a name="FNanchor_908_908" id="FNanchor_908_908"></a><a href="#Footnote_908_908" class="fnanchor">[h]</a> He declares that +he had seen in his youth the works of Varro; but all his endeavours to +recover these and the second Decad of Livy were fruitless. He found, +however, Quintilian, in 1350, of which there was no copy in +Italy.<a name="FNanchor_909_909" id="FNanchor_909_909"></a><a href="#Footnote_909_909" class="fnanchor">[i]</a> +Boccaccio, and a man of less general fame, Colluccio Salutato, were +distinguished in the same honourable task. The diligence of these scholars +was not confined to searching for manuscripts. Transcribed by slovenly +monks, or by ignorant persons who made copies for sale, they required the +continual emendation of accurate +critics.<a name="FNanchor_910_910" id="FNanchor_910_910"></a><a href="#Footnote_910_910" class="fnanchor">[k]</a> +Though much certainly was +left for the more enlightened sagacity of later times, we owe the first +intelligible text of the Latin classics to Petrarch, Poggio, and their +contemporary labourers in this vineyard for a hundred years before the +invention of printing.</p> + +<div class="sidenote">Industry of the fifteenth century.</div> + +<div class="sidenote">Poggio.</div> + +<p>What Petrarch began in the fourteenth century was carried on by a new +generation with unabating industry. The whole lives of Italian scholars in +the fifteenth century were devoted to the recovery of manuscripts and the +revival of philology. For this they sacrificed their native language, +which had made such surprising shoots in the preceding age, and were +content to trace, in humble reverence, the footsteps of antiquity. For +this too they lost the hope of permanent glory, which can never remain +with imitators, or such as trim the lamp of ancient sepulchres. No writer +perhaps of the fifteenth century, except Politian, can aspire at present +even to the second class, in a just marshalling of literary reputation. +But we owe them our respect and gratitude for their taste and diligence. +The discovery of an unknown manuscript, says Tiraboschi, was regarded +almost as the conquest of a kingdom. The classical writers, he adds, were +chiefly either found in Italy, or at least by Italians; they were first +amended and first printed in Italy, and in Italy they were first collected +in public libraries.<a name="FNanchor_911_911" id="FNanchor_911_911"></a><a href="#Footnote_911_911" class="fnanchor">[m]</a> +<span class="pagenum"><a name="Page_463" id="Page_463">[Pg 463]</a></span> +This is subject to some exception, when fairly +considered; several ancient authors were never lost, and therefore cannot +be said to have been discovered; and we know that Italy did not always +anticipate other countries in classical printing. But her superior merit +is incontestable. Poggio Bracciolini, who stands perhaps at the head of +the restorers of learning, in the earlier part of the fifteenth century, +discovered in the monastery of St. Gall, among dirt and rubbish in a +dungeon scarcely fit for condemned criminals, as he describes it, an +entire copy of Quintilian, and part of Valerius Flaccus. This was in 1414; +and soon afterwards, he rescued the poem of Silius Italicus, and twelve +comedies of Plautus, in addition to eight that were previously known: +besides Lucretius, Columella, Tertullian, Ammianus Marcellinus, and other +writers of inferior note.<a name="FNanchor_912_912" id="FNanchor_912_912"></a><a href="#Footnote_912_912" class="fnanchor">[n]</a> +A bishop of Lodi brought to light the +rhetorical treatises of Cicero. Not that we must suppose these books to +have been universally unknown before; Quintilian, at least, is quoted by +English writers much earlier. But so little intercourse prevailed among +different countries, and the monks had so little acquaintance with the +riches of their conventual libraries, that an author might pass for lost +in Italy, who was familiar to a few learned men in other parts of Europe. +To the name of Poggio we may add a number of others, distinguished in this +memorable resurrection of ancient literature, and united, not always +indeed by friendship, for their bitter animosities disgrace their +profession, but by a sort of common sympathy in the cause of learning; +Filelfo, Laurentius Valla, Niccolo Niccoli, Ambrogio Traversari, more +commonly called Il Camaldolense, and Leonardo Aretino.</p> + +<div class="sidenote">Greek language unknown in the West.</div> + +<p>From the subversion of the Western Empire, or at least from the time when +Rome ceased to pay obedience to the exarchs of Ravenna, the Greek language +and literature had been almost entirely forgotten within the pale of the +Latin church. A very few exceptions might be found, especially in the +earlier period of the middle ages, while the eastern emperors retained +their dominion over +<span class="pagenum"><a name="Page_464" id="Page_464">[Pg 464]</a></span> +part of Italy.<a name="FNanchor_913_913" id="FNanchor_913_913"></a><a href="#Footnote_913_913" class="fnanchor">[o]</a> +Thus Charlemagne is said to have +established a school for Greek at +Osnaburg.<a name="FNanchor_914_914" id="FNanchor_914_914"></a><a href="#Footnote_914_914" class="fnanchor">[p]</a> +John Scotus seems to have +been well acquainted with the language. And Greek characters may +occasionally, though very seldom, be found in the writings of learned men; +such as Lanfranc or William of +Malmsbury.<a name="FNanchor_915_915" id="FNanchor_915_915"></a><a href="#Footnote_915_915" class="fnanchor">[q]</a> +It is said that Roger Bacon +understood Greek; and that his eminent contemporary, Robert Grostete, +bishop of Lincoln, had a sufficient intimacy with it to translate a part +of Suidas. Since Greek was spoken with considerable purity by the noble +and well educated natives of Constantinople, we may wonder that, even as a +living language, it was not better known by the western nations, and +especially in so neighbouring a nation as Italy. Yet here the ignorance +was perhaps even more complete than in France or England. In some parts +indeed of Calabria, which had been subject to the +<span class="pagenum"><a name="Page_465" id="Page_465">[Pg 465]</a></span> eastern empire till +near the year 1100, the liturgy was still performed in Greek; and a +considerable acquaintance with the language was of course preserved. But +for the scholars of Italy, Boccaccio positively asserts, that no one +understood so much as the Greek +characters.<a name="FNanchor_916_916" id="FNanchor_916_916"></a><a href="#Footnote_916_916" class="fnanchor">[r]</a> Nor is there probably a +single line quoted from any poet in that language from the sixth to the +fourteenth century.</p> + +<div class="sidenote">Its study revives in the fourteenth century.</div> + +<p>The first to lead the way in restoring Grecian learning in Europe were the +same men who had revived the kindred muses of Latium, Petrarch and +Boccaccio. Barlaam, a Calabrian by birth, during an embassy from the court +of Constantinople in 1335, was persuaded to become the preceptor of the +former, with whom he read the works of +Plato.<a name="FNanchor_917_917" id="FNanchor_917_917"></a><a href="#Footnote_917_917" class="fnanchor">[s]</a> +Leontius Pilatus, a +native of Thessalonica, was encouraged some years afterwards by Boccaccio +to give public lectures upon Homer at +Florence.<a name="FNanchor_918_918" id="FNanchor_918_918"></a><a href="#Footnote_918_918" class="fnanchor">[t]</a> +Whatever might be the +share of general attention that he excited, he had the honour of +instructing both these great Italians in his native language. Neither of +them perhaps reached an advanced degree of proficiency; but they bathed +their lips in the fountain, and enjoyed the pride of being the first who +paid the homage of a new posterity to the father of poetry. For some time +little fruit apparently resulted from their example; but Italy had imbibed +the desire of acquisitions in a new sphere of knowledge, which, after some +interval, she was abundantly able to realize. A few years before the +termination of the fourteenth century, Emanuel Chrysoloras, whom the +emperor John Palæologus had previously sent into Italy, and even as far as +England, upon one of those unavailing embassies, by which the Byzantine +court strove to obtain sympathy and succour from Europe, returned to +Florence as a public teacher of Grecian +literature.<a name="FNanchor_919_919" id="FNanchor_919_919"></a><a href="#Footnote_919_919" class="fnanchor">[u]</a> +His school was afterwards removed +<span class="pagenum"><a name="Page_466" id="Page_466">[Pg 466]</a></span> +successively to Pavia, Venice, and Rome; and during +nearly twenty years that he taught in Italy, most of those eminent +scholars whom I have already named, and who distinguish the first half of +that century, derived from his instruction their knowledge of the Greek +tongue. Some, not content with being the disciples of Chrysoloras, betook +themselves to the source of that literature at Constantinople; and +returned to Italy, not only with a more accurate insight into the Greek +idiom than they could have attained at home, but with copious treasures of +manuscripts, few, if any, of which probably existed previously in Italy, +where none had ability to read or value them; so that the principal +authors of Grecian antiquity may be considered as brought to light by +these inquirers, the most celebrated of whom are Guarino of Verona, +Aurispa, and Filelfo. The second of these brought home to Venice in 1423 +not less than two hundred and thirty-eight +volumes.<a name="FNanchor_920_920" id="FNanchor_920_920"></a><a href="#Footnote_920_920" class="fnanchor">[x]</a></p> + +<div class="sidenote">State of learning in Greece.</div> + +<p>The fall of that eastern empire, which had so long outlived all other +pretensions to respect that it scarcely retained that founded upon its +antiquity, seems to have been providentially delayed till Italy was ripe +to nourish the scattered seeds of literature that would have perished a +few ages earlier in the common catastrophe. From the commencement of the +fifteenth century even the national pride of Greece could not blind her to +the signs of approaching ruin. It was no longer possible to inspire the +European republic, distracted by wars and restrained by calculating +policy, with the generous fanaticism of the crusades; and at the council +of Florence, in 1439, the court and church of Constantinople had the +mortification of sacrificing their long-cherished faith, without +experiencing any sensible return of protection or security. The learned +Greeks were perhaps the first to anticipate, and certainly not the last to +avoid, their country's destruction. The council of Florence brought many +of them into Italian connexions, and held out at least a temporary +accommodation of their conflicting opinions. Though the Roman pontiffs did +nothing, and probably could have done nothing effectual, +<span class="pagenum"><a name="Page_467" id="Page_467">[Pg 467]</a></span> for the empire +of Constantinople, they were very ready to protect and reward the learning +of individuals. To Eugenius IV., to Nicolas V., to Pius II., and some +other popes of this age, the Greek exiles were indebted for a patronage +which they repaid by splendid services in the restoration of their native +literature throughout Italy. Bessarion, a disputant on the Greek side in +the council of Florence, was well content to renounce the doctrine of +single procession for a cardinal's hat—a dignity which he deserved for +his learning, if not for his pliancy. Theodore Gaza, George of Trebizond, +and Gemistus Pletho, might equal Bessarion in merit, though not in +honours. They all, however, experienced the patronage of those admirable +protectors of letters, Nicolas V., Cosmo de' Medici, or Alfonso king of +Naples. These men emigrated before the final destruction of the Greek +empire; Lascaris and Musurus, whose arrival in Italy was posterior to that +event, may be deemed perhaps still more conspicuous; but as the study of +the Greek language was already restored, it is unnecessary to pursue the +subject any further.</p> + +<p>The Greeks had preserved, through the course of the middle ages, their +share of ancient learning with more fidelity and attention than was shown +in the west of Europe. Genius indeed, or any original excellence, could +not well exist along with their cowardly despotism, and their contemptible +theology, more corrupted by frivolous subtleties than that of the Latin +church. The spirit of persecution, naturally allied to despotism and +bigotry, had nearly, during one period, extinguished the lamp, or at least +reduced the Greeks to a level with the most ignorant nations of the West. +In the age of Justinian, who expelled the last Platonic philosophers, +learning began rapidly to decline; in that of Heraclius it had reached a +much lower point of degradation; and for two centuries, especially while +the worshippers of images were persecuted with unrelenting intolerance, +there is almost a blank in the annals of Grecian +literature.<a name="FNanchor_921_921" id="FNanchor_921_921"></a><a href="#Footnote_921_921" class="fnanchor">[y]</a> But +about the middle of the ninth century it +<span class="pagenum"><a name="Page_468" id="Page_468">[Pg 468]</a></span> revived pretty suddenly, and +with considerable +success.<a name="FNanchor_922_922" id="FNanchor_922_922"></a><a href="#Footnote_922_922" class="fnanchor">[z]</a> +Though, as I have observed, we find in +very few instances any original talent, yet it was hardly less important +to have had compilers of such erudition as Photius, Suidas, Eustathius, +and Tzetzes. With these certainly the Latins of the middle ages could not +place any names in comparison. They possessed, to an extent which we +cannot precisely appreciate, many of those poets, historians, and orators +of ancient Greece, whose loss we have long regretted and must continue to +deem irretrievable. Great havoc, however, was made in the libraries of +Constantinople at its capture by the Latins—an epoch from which a rapid +decline is to be traced in the literature of the eastern empire. Solecisms +and barbarous terms, which sometimes occur in the old Byzantine writers, +are said to deform the style of the fourteenth and fifteenth +centuries.<a name="FNanchor_923_923" id="FNanchor_923_923"></a><a href="#Footnote_923_923" class="fnanchor">[a]</a> +The Turkish ravages and destruction of monasteries +<span class="pagenum"><a name="Page_469" id="Page_469">[Pg 469]</a></span> +ensued; and in the cheerless intervals of immediate terror there was no +longer any encouragement to preserve the monuments of an expiring +language, and of a name that was to lose its place among +nations.<a name="FNanchor_924_924" id="FNanchor_924_924"></a><a href="#Footnote_924_924" class="fnanchor">[b]</a></p> + +<div class="sidenote">Literature not much improved beyond Italy.</div> + +<p>That ardour for the restoration of classical literature which animated +Italy in the first part of the fifteenth century, was by no means common +to the rest of Europe. Neither England, nor France, nor Germany, seemed +aware of the approaching change. We are told that learning, by which I +believe is only meant the scholastic ontology, had begun to decline at +Oxford from the time of Edward +III.<a name="FNanchor_925_925" id="FNanchor_925_925"></a><a href="#Footnote_925_925" class="fnanchor">[c]</a> +And the fifteenth century, from +whatever cause, is particularly barren of writers in the Latin language. +The study of Greek was only introduced by Grocyn and Linacer under +<span class="pagenum"><a name="Page_470" id="Page_470">[Pg 470]</a></span> Henry +VII., and met with violent opposition in the university of Oxford, where +the unlearned party styled themselves Trojans, as a pretext for abusing +and insulting the scholars.<a name="FNanchor_926_926" id="FNanchor_926_926"></a><a href="#Footnote_926_926" class="fnanchor">[d]</a> +Nor did any classical work proceed from +the respectable press of Caxton. France, at the beginning of the fifteenth +age, had several eminent theologians; but the reigns of Charles VII. and +Louis XI. contributed far more to her political than her literary renown. +A Greek professor was first appointed at Paris in 1458, before which time +the language had not been publicly taught, and was little +understood.<a name="FNanchor_927_927" id="FNanchor_927_927"></a><a href="#Footnote_927_927" class="fnanchor">[e]</a> +Much less had Germany thrown off her ancient rudeness. Æneas Sylvius, +indeed, a deliberate flatterer, extols every circumstance in the social +state of that country; but Campano, the papal legate at Ratisbon in 1471, +exclaims against the barbarism of a nation, where very few possessed any +learning, none any elegance.<a name="FNanchor_928_928" id="FNanchor_928_928"></a><a href="#Footnote_928_928" class="fnanchor">[f]</a> +Yet the progress of intellectual +cultivation, at least in the two former countries, was uniform, though +silent; libraries became more numerous, and books, after the happy +invention of paper, though still very scarce, might be copied at less +expense. Many colleges were founded in the English as well as foreign +universities during the fourteenth and fifteenth centuries. Nor can I pass +over institutions that have so eminently contributed to the literary +reputation of this country, and that still continue to exercise so +conspicuous an influence over her taste and knowledge, as the two great +schools of grammatical learning, Winchester and Eton—the one founded by +William of Wykeham, bishop of Winchester, in 1373; the other in 1432, by +King Henry the Sixth.<a name="FNanchor_929_929" id="FNanchor_929_929"></a><a href="#Footnote_929_929" class="fnanchor">[g]</a></p> + +<div class="sidenote">Invention of printing.</div> + +<p><span class="pagenum"><a name="Page_471" id="Page_471">[Pg 471]</a></span> +But while the learned of Italy were eagerly exploring their recent +acquisitions of manuscripts, decyphered with difficulty and slowly +circulated from hand to hand, a few obscure Germans had gradually +perfected the most important discovery recorded in the annals of mankind. +The invention of printing, so far from being the result of philosophical +sagacity, does not appear to have been suggested by any regard to the +higher branches of literature, or to bear any other relation than that of +coincidence to their revival in Italy. The question why it was struck out +at that particular time must be referred to that disposition of unknown +causes which we call accident. Two or three centuries earlier, we cannot +but acknowledge the discovery would have been almost equally acceptable. +But the invention of paper seems to have naturally preceded those of +engraving and printing. It is generally agreed that playing cards, which +have been traced far back in the fourteenth century, gave the first notion +of taking off impressions from engraved figures upon wood. The second +stage, or rather second application of this art, was the representation of +saints and other religious devices, several instances of which are still +extant. Some of these are accompanied with an entire page of illustrative +text, cut into the same wooden block. This process is indeed far removed +from the invention that has given immortality to the names of Fust, +Schœffer, and Gutenburg, yet it probably led to the consideration of +means whereby it might be rendered less operose and inconvenient. Whether +moveable wooden characters were ever employed in any entire work is very +questionable—the opinion that referred their use to Laurence Coster, of +Haarlem, not having stood the test of more accurate investigation. They +appear, however, in the capital letters of some early printed books. But +no expedient of this kind could have fulfilled the great purposes of this +invention, until it was perfected by founding metal types in a matrix or +mould, the essential characteristic of printing, as distinguished from +other arts that bear some analogy to it.</p> + +<p>The first book that issued from the presses of Fust +<span class="pagenum"><a name="Page_472" id="Page_472">[Pg 472]</a></span> and his associates at +Mentz was an edition of the Vulgate, commonly called the Mazarine Bible, a +copy having been discovered in the library that owes its name to Cardinal +Mazarin at Paris. This is supposed to have been printed between the years +1450 and 1455.<a name="FNanchor_930_930" id="FNanchor_930_930"></a><a href="#Footnote_930_930" class="fnanchor">[h]</a> +In 1457 an edition of the Psalter appeared, and in +this the invention was announced to the world in a boasting colophon, +though certainly not unreasonably +bold.<a name="FNanchor_931_931" id="FNanchor_931_931"></a><a href="#Footnote_931_931" class="fnanchor">[i]</a> +Another edition of the +Psalter, one of an ecclesiastical book, Durand's account of liturgical +offices, one of the Constitutions of Pope Clement V., and one of a popular +treatise on general science, called the Catholicon, filled up the interval +till 1462, when the second Mentz Bible proceeded from the same +printers.<a name="FNanchor_932_932" id="FNanchor_932_932"></a><a href="#Footnote_932_932" class="fnanchor">[k]</a> +This, in the opinion of some, is the earliest book in which +cast types were employed—those of the Mazarine Bible having been cut with +the hand. But this is a controverted point. In 1465 Fust and Schœffer +published an edition of Cicero's Offices, the first tribute of the new art +to polite literature. Two pupils of their school, Sweynheim and Pannartz, +migrated the same year into Italy, and printed Donatus's grammar and the +works of Lactantius at the monastery of Subiaco, in the neighbourhood of +Rome.<a name="FNanchor_933_933" id="FNanchor_933_933"></a><a href="#Footnote_933_933" class="fnanchor">[m]</a> +Venice had the honour of extending her patronage to John of +Spira, the first who applied the art on an extensive scale to the +publication of classical writers.<a name="FNanchor_934_934" id="FNanchor_934_934"></a><a href="#Footnote_934_934" class="fnanchor">[n]</a> +Several Latin authors came forth +from his press in 1470; and during the next ten years a multitude of +editions were published in various parts of Italy. Though, as we may judge +from their present scarcity, these editions were by no means numerous in +respect of impressions, yet, contrasted with the dilatory process of +copying manuscripts, they were like a new mechanical power in machinery, +and gave a wonderfully accelerated impulse to the intellectual cultivation +of mankind. From the era of these first editions proceeding from the +Spiras, Zarot, Janson, or Sweynheim and Pannartz, literature must be +deemed to have altogether +<span class="pagenum"><a name="Page_473" id="Page_473">[Pg 473]</a></span> +revived in Italy. The sun was now fully above +the horizon, though countries less fortunately circumstanced did not +immediately catch his beams; and the restoration of ancient learning in +France and England cannot be considered as by any means effectual even at +the expiration of the fifteenth century. At this point, however, I close +the present chapter. The last twenty years of the middle ages, according +to the date which I have fixed for their termination in treating of +political history, might well invite me by their brilliancy to dwell upon +that golden morning of Italian literature. But, in the history of letters, +they rather appertain to the modern than the middle period; nor would it +become me to trespass upon the exhausted patience of my readers by +repeating what has been so often and so recently told, the story of art +and learning, that has employed the comprehensive research of a +Tiraboschi, a Ginguené, and a Roscoe.</p> + +<div class="footnotes">FOOTNOTES: + +<div class="footnote"><p><a name="Footnote_571_571" id="Footnote_571_571"></a><a href="#FNanchor_571_571"><span class="label">[a]</span></a> Macpherson's Annals of Commerce, vol. i. p. 270. Meyer +ascribes the origin of Flemish trade to Baldwin count of Flanders in 958, +who established markets at Bruges and other cities. Exchanges were in that +age, he says, chiefly effected by barter, little money circulating in +Flanders. Annales Flandrici, fol. 18 (edit. 1561).</p></div> + +<div class="footnote"><p><a name="Footnote_572_572" id="Footnote_572_572"></a><a href="#FNanchor_572_572"><span class="label">[b]</span></a> Matthew Westmonast, apud Macpherson's Annals of Commerce, +vol. i. p. 415.</p></div> + +<div class="footnote"><p><a name="Footnote_573_573" id="Footnote_573_573"></a><a href="#FNanchor_573_573"><span class="label">[c]</span></a> Such regulations scared away those Flemish weavers who +brought their art into England under Edward III. Macpherson, p. 467, 494, +546. Several years later the magistrates of Ghent are said by Meyer +(Annales Flandrici, fol. 156) to have imposed a tax on every loom. Though +the seditious spirit of the Weavers' Company had perhaps justly provoked +them, such a tax on their staple manufacture was a piece of madness, when +English goods were just coming into competition.</p></div> + +<div class="footnote"><p><a name="Footnote_574_574" id="Footnote_574_574"></a><a href="#FNanchor_574_574"><span class="label">[d]</span></a> Terrâ marique mercatura, rerumque commercia et quæstus +peribant. Non solum totius Europæ mercatores, verum etiam ipsi Turcæ +aliæque sepositæ nationes ob bellum istud Flandriæ magno afficiebantur +dolore. Erat nempe Flandria totius prope orbis stabile mercatoribus +emporium. Septemdecim regnorum negotiatores tum Brugis sua certa habuere +domicilia ac sedes, præter complures incognitas pæne gentes quæ undique +confluebant. Meyer, fol. 205, ad ann. 1385.</p></div> + +<div class="footnote"><p><a name="Footnote_575_575" id="Footnote_575_575"></a><a href="#FNanchor_575_575"><span class="label">[e]</span></a> Meyer; Froissart; Comines.</p></div> + +<div class="footnote"><p><a name="Footnote_576_576" id="Footnote_576_576"></a><a href="#FNanchor_576_576"><span class="label">[f]</span></a> It contained, according to Ludovico Guicciardini, 35,000 +houses, and the circuit of its walls was 45,640 Roman feet. Description +des Pais Bas, p. 350, &c. (edit. 1609). Part of this enclosure was not +built upon. The population of Ghent is reckoned by Guicciardini at 70,000, +but in his time it had greatly declined. It is certainly, however, much +exaggerated by earlier historians. And I entertain some doubts as to +Guicciardini's estimate of the number of houses. If at least he was +accurate, more than half of the city must since have been demolished or +become uninhabited, which its present appearance does not indicate; for +Ghent, though not very flourishing, by no means presents the decay and +dilapidation of several Italian towns.</p></div> + +<div class="footnote"><p><a name="Footnote_577_577" id="Footnote_577_577"></a><a href="#FNanchor_577_577"><span class="label">[g]</span></a> Guicciardini, p. 362; Mém. de Comines, 1. v. c. 17; Meyer, +fol. 354; Macpherson's Annals of Commerce, vol. i. p. 647, 651.</p></div> + +<div class="footnote"><p><a name="Footnote_578_578" id="Footnote_578_578"></a><a href="#FNanchor_578_578"><span class="label">[h]</span></a> Blomefield, the historian of Norfolk, thinks that a colony +of Flemings settled as early as this reign at Worsted, a village in that +county, and immortalized its name by their manufacture. It soon reached +Norwich, though not conspicuous till the reign of Edward I. Hist. of +Norfolk, vol. ii. Macpherson speaks of it for the first time in 1327. +There were several guilds of weavers in the time of Henry II. Lyttelton, +vol. ii. p. 174.</p></div> + +<div class="footnote"><p><a name="Footnote_579_579" id="Footnote_579_579"></a><a href="#FNanchor_579_579"><span class="label">[i]</span></a> Macpherson's Annals of Commerce, vol. i. p. 412, from +Walter Hemingford. I am considerably indebted to this laborious and useful +publication, which has superseded that of Anderson.</p></div> + +<div class="footnote"><p><a name="Footnote_580_580" id="Footnote_580_580"></a><a href="#FNanchor_580_580"><span class="label">[k]</span></a> Rymer, t. ii. p. 32, 50, 737, 949, 965; t. iii. p. 533, +1106, et alibi.</p></div> + +<div class="footnote"><p><a name="Footnote_581_581" id="Footnote_581_581"></a><a href="#FNanchor_581_581"><span class="label">[m]</span></a> Rymer, t. iii. p. 759. A Flemish factory was established at +Berwick about 1286. Macpherson.</p></div> + +<div class="footnote"><p><a name="Footnote_582_582" id="Footnote_582_582"></a><a href="#FNanchor_582_582"><span class="label">[n]</span></a> In 1295 Edward I. made masters of neutral ships in English +ports find security not to trade with France. Rymer, t. ii. p. 679.</p></div> + +<div class="footnote"><p><a name="Footnote_583_583" id="Footnote_583_583"></a><a href="#FNanchor_583_583"><span class="label">[o]</span></a> Rymer, t. iv. p. 491, &c. Fuller draws a notable picture of +the inducements held out to the Flemings. "Here they should feed on fat +beef and mutton, till nothing but their fulness should stint their +stomachs; their beds should be good, and their bedfellows better, seeing +the richest yeomen in England would not disdain to marry their daughters +unto them, and such the English beauties that the most envious foreigners +could not but commend them." Fuller's Church History, quoted in +Blomefield's Hist. of Norfolk.</p></div> + +<div class="footnote"><p><a name="Footnote_584_584" id="Footnote_584_584"></a><a href="#FNanchor_584_584"><span class="label">[p]</span></a> Rymer, t. v. p. 137, 430, 540.</p></div> + +<div class="footnote"><p><a name="Footnote_585_585" id="Footnote_585_585"></a><a href="#FNanchor_585_585"><span class="label">[q]</span></a> In 1409 woollen cloths formed great part of our exports, +and were extensively used over Spain and Italy. And in 1449, English +cloths having been prohibited by the duke of Burgundy, it was enacted +that, until he should repeal this ordinance, no merchandise of his +dominions should be admitted into England. 27 H. VI. c. 1. The system of +prohibiting the import of foreign wrought goods was acted upon very +extensively in Edward IV.'s reign.</p></div> + +<div class="footnote"><p><a name="Footnote_586_586" id="Footnote_586_586"></a><a href="#FNanchor_586_586"><span class="label">[r]</span></a> Stat. 11 E. III. c. 1. Blackstone says that transporting +wool out of the kingdom, to the detriment of our staple manufacture, was +forbidden at common law (vol. iv. c. 19), not recollecting that we had no +staple manufactures in the ages when the common law was formed, and that +the export of wool was almost the only means by which this country +procured silver, or any other article of which it stood in need, from the +continent. In fact, the landholders were so far from neglecting this +source of their wealth, that a minimum was fixed upon it, by a statute of +1343 (repealed indeed the next year, 18 E. III. c. 3), below which price +it was not to be sold; from a laudable apprehension, as it seems, that +foreigners were getting it too cheap. And this was revived in the 32nd of +H. VI., though the act is not printed among the statutes. Rot. Parl. t. v. +p. 275. The exportation of sheep was prohibited in 1338—Rymer, t. v. p. +36; and by act of Parliament in 1425—3 H. VI. c. 2. But this did not +prevent our importing the wool of a foreign country, to our own loss. It +is worthy of notice that English wool was superior to any other for +fineness during these ages. Henry II., in his patent to the Weavers' +Company, directs that, if any weaver mingled Spanish wool with English, it +should be burned by the lord mayor. Macpherson, p. 382. An English flock +transported into Spain about 1348 is said to have been the source of the +fine Spanish wool. Ibid. p. 539. But the superiority of English wool, even +as late as 1438, is proved by the laws of Barcelona forbidding its +adulteration. p. 654. Another exportation of English sheep to Spain took +place about 1465, in consequence of a commercial treaty. Rymer, t. xi. p. +534 et alibi. In return, Spain supplied England with horses, her breed of +which was reckoned the best in Europe; so that the exchange was tolerably +fair. Macpherson, p. 596. The best horses had been very dear in England, +being imported from Spain and Italy. Ibid.</p></div> + +<div class="footnote"><p><a name="Footnote_587_587" id="Footnote_587_587"></a><a href="#FNanchor_587_587"><span class="label">[s]</span></a> Schmidt, t. iv. p. 18.</p></div> + +<div class="footnote"><p><a name="Footnote_588_588" id="Footnote_588_588"></a><a href="#FNanchor_588_588"><span class="label">[t]</span></a> Considerable woollen manufactures appear to have existed in +Picardy about 1315. Macpherson ad annum. Capmany, t. iii. part 2, p. 151.</p></div> + +<div class="footnote"><p><a name="Footnote_589_589" id="Footnote_589_589"></a><a href="#FNanchor_589_589"><span class="label">[u]</span></a> The sheriffs of Wiltshire and Sussex are directed in 1253 +to purchase for the king 1000 ells of fine linen, lineæ telæ pulchræ et +delicate. This Macpherson supposes to be of domestic manufacture, which, +however, is not demonstrable. Linen was made at that time in Flanders; and +as late as 1417 the fine linen used in England was imported from France +and the Low Countries. Macpherson, from Rymer, t. ix. p. 334. Velly's +history is defective in giving no account of the French commerce and +manufactures, or at least none that is at all satisfactory.</p></div> + +<div class="footnote"><p><a name="Footnote_590_590" id="Footnote_590_590"></a><a href="#FNanchor_590_590"><span class="label">[x]</span></a> Adam Bremensis, de Situ Daniæ, p. 13. (Elzevir edit.)</p></div> + +<div class="footnote"><p><a name="Footnote_591_591" id="Footnote_591_591"></a><a href="#FNanchor_591_591"><span class="label">[y]</span></a> Schmidt, t. iv. p. 8. Macpherson, p. 392. The latter writer +thinks they were not known by the name of Hanse so early.</p></div> + +<div class="footnote"><p><a name="Footnote_592_592" id="Footnote_592_592"></a><a href="#FNanchor_592_592"><span class="label">[z]</span></a> Pfeffel, t. i. p. 443; Schmidt, t. iv. p. 18; t. v. p. 512; +Macpherson's Annals, vol. i. p. 693.</p></div> + +<div class="footnote"><p><a name="Footnote_593_593" id="Footnote_593_593"></a><a href="#FNanchor_593_593"><span class="label">[a]</span></a> Macpherson, vol. i. passim.</p></div> + +<div class="footnote"><p><a name="Footnote_594_594" id="Footnote_594_594"></a><a href="#FNanchor_594_594"><span class="label">[b]</span></a> Rymer, t. viii. p. 360.</p></div> + +<div class="footnote"><p><a name="Footnote_595_595" id="Footnote_595_595"></a><a href="#FNanchor_595_595"><span class="label">[c]</span></a> Macpherson (who quotes Stow), p. 415.</p></div> + +<div class="footnote"><p><a name="Footnote_596_596" id="Footnote_596_596"></a><a href="#FNanchor_596_596"><span class="label">[d]</span></a> Walsingham, p. 211.</p></div> + +<div class="footnote"><p><a name="Footnote_597_597" id="Footnote_597_597"></a><a href="#FNanchor_597_597"><span class="label">[e]</span></a> Rymer, t. vii. p. 210, 341; t. viii. p. 9.</p></div> + +<div class="footnote"><p><a name="Footnote_598_598" id="Footnote_598_598"></a><a href="#FNanchor_598_598"><span class="label">[f]</span></a> Rymer, t. x. p. 461.</p></div> + +<div class="footnote"><p><a name="Footnote_599_599" id="Footnote_599_599"></a><a href="#FNanchor_599_599"><span class="label">[g]</span></a> Rymer, t. viii. p. 488.</p></div> + +<div class="footnote"><p><a name="Footnote_600_600" id="Footnote_600_600"></a><a href="#FNanchor_600_600"><span class="label">[h]</span></a> Macpherson, p. 667.</p></div> + +<div class="footnote"><p><a name="Footnote_601_601" id="Footnote_601_601"></a><a href="#FNanchor_601_601"><span class="label">[i]</span></a> Richard III., in 1485, appointed a Florentine merchant to +be English consul at Pisa, on the ground that some of his subjects +intended to trade to Italy. Macpherson, p. 705, from Rymer. Perhaps we +cannot positively prove the existence of a Mediterranean trade at an +earlier time; and even this instrument is not conclusive. But a +considerable presumption arises from two documents in Rymer, of the year +1412, which inform us of a great shipment of wool and other goods made by +some merchants of London for the Mediterranean, under supercargoes, whom, +it being a new undertaking, the king expressly recommended to the Genoese +republic. But that people, impelled probably by commercial jealousy, +seized the vessels and their cargoes; which induced the king to grant the +owners letters of reprisal against all Genoese property. Rymer, t. viii. +p. 717, 773. Though it is not perhaps evident that the vessels were +English, the circumstances render it highly probable. The bad success, +however, of this attempt, might prevent its imitation. A Greek author +about the beginning of the fifteenth century reckons the +<span class="grk">Ιγγληνοι</span> +among the nations who traded to a port in the Archipelago. Gibbon, vol. +xii. p. 52. But these enumerations are generally swelled by vanity or the +love of exaggeration; and a few English sailors on board a foreign vessel +would justify the assertion. Benjamin of Tudela, a Jewish traveller, +pretends that the port of Alexandria, about 1160, contained vessels not +only from England, but from Russia, and even <i>Cracow</i>. Harris's Voyages, +vol. i. p. 554.</p></div> + +<div class="footnote"><p><a name="Footnote_602_602" id="Footnote_602_602"></a><a href="#FNanchor_602_602"><span class="label">[k]</span></a> The Amalfitans are thus described by William of Apulia, +apud Muratori, Dissert. 30. +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Urbs hæc dives opum, populoque referta videtur,<br /></span> +<span class="i0">Nulla magis locuples argento, vestibus, auro.<br /></span> +<span class="i0">Partibus innumeris ac plurimus urbe moratur<br /></span> +<span class="i0">Nauta, maris cœlique vias aperire peritus.<br /></span> +<span class="i0">Huc et Alexandri diversa feruntur ab urbe,<br /></span> +<span class="i0">Regis et Antiochi. Hæc [etiam?] freta plurima transit.<br /></span> +<span class="i0">Hic Arabes, Indi, Siculi noscuntur, et Afri.<br /></span> +<span class="i0">Hæc gens est totum prope nobilitata per orbem,<br /></span> +<span class="i0">Et mercanda ferens et amans mercata referre.<br /></span> +</div></div> +<p> +[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 +immediately 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 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. 1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_603_603" id="Footnote_603_603"></a><a href="#FNanchor_603_603"><span class="label">[m]</span></a> The inhabitants of Acre were noted, in an age not very +pure, for the excess of their vices. In 1291 they plundered some of the +subjects of a neighbouring Mohammedan prince, and, refusing reparation, +the city was besieged and taken by storm. Muratori, ad ann. Gibbon, c. +59.</p></div> + +<div class="footnote"><p><a name="Footnote_604_604" id="Footnote_604_604"></a><a href="#FNanchor_604_604"><span class="label">[n]</span></a> Villani, 1. vii. c. 144.</p></div> + +<div class="footnote"><p><a name="Footnote_605_605" id="Footnote_605_605"></a><a href="#FNanchor_605_605"><span class="label">[o]</span></a> Macpherson, p. 490.</p></div> + +<div class="footnote"><p><a name="Footnote_606_606" id="Footnote_606_606"></a><a href="#FNanchor_606_606"><span class="label">[p]</span></a> Capmany, Memorias Historicas, t. iii. preface, p. 11; and +part 2, p. 131. His authority is Balducci Pegalotti, a Florentine writer +upon commerce about 1340, whose work I have never seen. It appears from +Balducci that the route to China was from Asoph to Astrakan, and thence, +by a variety of places which cannot be found in modern maps, to Cambalu, +probably Pekin, the capital city of China, which he describes as being one +hundred miles in circumference. The journey was of rather more than eight +months, going and returning; and he assures us it was perfectly secure, +not only for caravans, but for a single traveller with a couple of +interpreters and a servant. The Venetians had also a settlement in the +Crimea, and appear, by a passage in Petrarch's letters, to have possessed +some of the trade through Tartary. In a letter written from Venice, after +extolling in too rhetorical a manner the commerce of that republic, he +mentions a particular ship that had just sailed for the Black Sea. Et ipsa +quidem Tanaim it visura, nostri enim maris navigatio non ultra tenditur; +eorum vero aliqui, quos hæc fert, illic iter [instituent] eam egressuri, +nec antea substituri, quàm Gange et Caucaso superato, ad Indos atque +extremos Seres et Orientalem perveniatur Oceanum. En quo ardens et +inexplebilis habendi sitis hominum mentes rapit! Petrarcæ Opera, Senil. 1. +ii. ep. 3, p. 760 edit. 1581.</p></div> + +<div class="footnote"><p><a name="Footnote_607_607" id="Footnote_607_607"></a><a href="#FNanchor_607_607"><span class="label">[q]</span></a> Hist. de Languedoc, t. iii. p. 531; t. iv. p. 517. Mém. de +l'Acad. des Inscriptions, t. xxxvii.</p></div> + +<div class="footnote"><p><a name="Footnote_608_608" id="Footnote_608_608"></a><a href="#FNanchor_608_608"><span class="label">[r]</span></a> Capmany, Memorias Historicas de Barcelona, t. i. part 2. +See particularly p. 36.</p></div> + +<div class="footnote"><p><a name="Footnote_609_609" id="Footnote_609_609"></a><a href="#FNanchor_609_609"><span class="label">[s]</span></a> Muratori, Dissert. 30. Denina, Rivoluzione d'Italia, 1. +xiv. c. 11. The latter writer is of opinion that mulberries were not +cultivated as an important object till after 1300, nor even to any great +extent till after 1500; the Italian manufacturers buying most of their +silk from Spain or the Levant.</p></div> + +<div class="footnote"><p><a name="Footnote_610_610" id="Footnote_610_610"></a><a href="#FNanchor_610_610"><span class="label">[t]</span></a> The history of Italian states, and especially Florence, +will speak for the first country; Capmany attests the woollen manufacture +of the second—Mem. Hist. de Barcel. t. i. part 3, p. 7, &c.; and +Vaissette that of Carcassonne and its vicinity—Hist. de Lang. t. iv. p. +517.</p></div> + +<div class="footnote"><p><a name="Footnote_611_611" id="Footnote_611_611"></a><a href="#FNanchor_611_611"><span class="label">[u]</span></a> None were admitted to the rank of burgesses in the town of +Aragon who used any manual trade, with the exception of dealers in fine +cloths. The woollen manufacture of Spain did not at any time become a +considerable article of export, nor even supply the internal consumption, +as Capmany has well shown. Memorias Historicas, t. iii. p. 325 et seqq., +and Edinburgh Review, vol. x.</p></div> + +<div class="footnote"><p><a name="Footnote_612_612" id="Footnote_612_612"></a><a href="#FNanchor_612_612"><span class="label">[x]</span></a> Boucher, the French translator of Il Consolato del Mare, +says that Edrissi, a Saracen geographer who lived about 1100, gives an +account, though in a confused manner, of the polarity of the magnet. t. +ii. p. 280. However, the lines of Guiot de Provins are decisive. These are +quoted in Hist. Littéraire de la France, t. ix. p. 199; Mém. de l'Acad. +des Inscript. t. xxi. p. 192; and several other works. Guinizzelli has the +following passage, in a canzone quoted by Ginguené, Hist. Littéraire de +l'Italie, t. i. p. 413:— +</p> +<div class="poem"><div class="stanza"> +<span class="i0">In quelle parti sotto tramontana,<br /></span> +<span class="i0">Sono li monti della calamita,<br /></span> +<span class="i0">Che dan virtute all'aere<br /></span> +<span class="i0">Di trarre il ferro; ma perchè lontana,<br /></span> +<span class="i0">Vole di simil pietra aver aita,<br /></span> +<span class="i0">A far la adoperare,<br /></span> +<span class="i0"><i>E dirizzar lo ago in ver la stella.</i><br /></span> +</div></div> +<p> +We cannot be diverted, by the nonsensical theory these lines contain, from +perceiving the positive testimony of the last verse to the poet's +knowledge of the polarity of the magnet. But if any doubt could remain, +Tiraboschi (t. iv. p. 171) has fully established, from a series of +passages, that this phenomenon was well known in the thirteenth century; +and puts an end altogether to the pretensions of Flavio Gioja, if such a +person, ever existed. See also Macpherson's Annals, p. 364 and 418. It is +provoking to find an historian like Robertson asserting, without +hesitation, that this citizen of Amalfi was the inventor of the compass, +and thus accrediting an error which had already been detected. +</p><p> +It is a singular circumstance, and only to be explained by the obstinacy +with which men are apt to reject improvement, that the magnetic needle was +not generally adopted in navigation till very long after the discovery of +its properties, and even after their peculiar importance had been +perceived. The writers of the thirteenth century, who mention the polarity +of the needle, mention also its use in navigation; yet Capmany has found +no distinct proof of its employment till 1403, and does not believe that +it was frequently on board Mediterranean ships at the latter part of the +preceding age. Memorias Historicas, t. iii. p. 70. Perhaps however he has +inferred too much from his negative proof; and this subject seems open to +further inquiry.</p></div> + +<div class="footnote"><p><a name="Footnote_613_613" id="Footnote_613_613"></a><a href="#FNanchor_613_613"><span class="label">[y]</span></a> Boucher supposes it to have been compiled at Barcelona +about 900; but his reasonings are inconclusive, t. i. p. 72; and indeed +Barcelona at that time was little, if at all, better than a fishing-town. +Some arguments might be drawn in favour of Pisa from the expressions of +Henry IV.'s charter granted to that city in 1081. Consuetudines, quas +habent de mari, sic iis observabimus sicut illorum est consuetudo. +Muratori Dissert. 45. Giannone seems to think the collection was compiled +about the reign of Louis IX. 1. xi. c. 6. Capmany, the last Spanish +editor, whose authority ought perhaps to outweigh every other, asserts and +seems to prove them to have been enacted by the mercantile magistrates of +Barcelona, under the reign of James the Conqueror which is much the same +period. Codigo de las Costumbres Maritimas de Barcelona, Madrid, 1791. +But, by whatever nation they were reduced into their present form, these +laws were certainly the ancient and established usages of the +Mediterranean states: and Pisa may very probably have taken a great share +in first practising what a century or two afterwards was rendered more +precise at Barcelona.</p></div> + +<div class="footnote"><p><a name="Footnote_614_614" id="Footnote_614_614"></a><a href="#FNanchor_614_614"><span class="label">[z]</span></a> Macpherson, p. 358. Boucher supposes them to be registers +of actual decisions.</p></div> + +<div class="footnote"><p><a name="Footnote_615_615" id="Footnote_615_615"></a><a href="#FNanchor_615_615"><span class="label">[a]</span></a> I have only the authority of Boucher for referring the +Ordinances of Wisbuy to the year 1400. Beckman imagines them to be older +than those of Oleron. But Wisbuy was not enclosed by a wall till 1288, a +proof that it could not have been previously a town of much importance. It +flourished chiefly in the first part of the fourteenth century, and was at +that time an independent republic, but fell under the yoke of Denmark +before the end of the same age.</p></div> + +<div class="footnote"><p><a name="Footnote_616_616" id="Footnote_616_616"></a><a href="#FNanchor_616_616"><span class="label">[b]</span></a> Hugh Despenser seized a Genoese vessel valued at 14,300 +marks, for which no restitution was ever made. Rym. t. iv. p. 701. +Macpherson, <small>A.D.</small> 1336.</p></div> + +<div class="footnote"><p><a name="Footnote_617_617" id="Footnote_617_617"></a><a href="#FNanchor_617_617"><span class="label">[c]</span></a> The Cinque Ports and other trading towns of England were in +a constant state of hostility with their opposite neighbours during the +reigns of Edward I. and II. One might quote almost half the instruments in +Rymer in proof of these conflicts, and of those with the mariners of +Norway and Denmark. Sometimes mutual envy produced frays between different +English towns. Thus, in 1254 the Winchelsea mariners attacked a Yarmouth +galley, and killed some of her men. Matt. Paris, apud Macpherson.</p></div> + +<div class="footnote"><p><a name="Footnote_618_618" id="Footnote_618_618"></a><a href="#FNanchor_618_618"><span class="label">[d]</span></a> Muratori, Dissert. 53.</p></div> + +<div class="footnote"><p><a name="Footnote_619_619" id="Footnote_619_619"></a><a href="#FNanchor_619_619"><span class="label">[e]</span></a> Du Cange, voc. Laudum.</p></div> + +<div class="footnote"><p><a name="Footnote_620_620" id="Footnote_620_620"></a><a href="#FNanchor_620_620"><span class="label">[f]</span></a> Rymer, t. iv. p. 576. Videtur sapientibus et peritis, quod +causa, de jure, non subfuit marcham seu reprisaliam in nostris, seu +subditorum nostrorum, bonis concedendi. See too a case of neutral goods on +board an enemy's vessel claimed by the owners, and a legal distinction +taken in favour of the captors. t. vi. p. 14.</p></div> + +<div class="footnote"><p><a name="Footnote_621_621" id="Footnote_621_621"></a><a href="#FNanchor_621_621"><span class="label">[g]</span></a> 27 E. III. stat. ii. c. 17, 2 Inst. p. 205.</p></div> + +<div class="footnote"><p><a name="Footnote_622_622" id="Footnote_622_622"></a><a href="#FNanchor_622_622"><span class="label">[h]</span></a> Rymer, t. i. p. 839.</p></div> + +<div class="footnote"><p><a name="Footnote_623_623" id="Footnote_623_623"></a><a href="#FNanchor_623_623"><span class="label">[i]</span></a> Idem, t. iii. p. 458, 647, 678, et infra. See too the +ordinances of the staple, in 27 Edw. III., which confirm this among other +privileges, and contain manifold evidence of the regard paid to commerce +in that reign.</p></div> + +<div class="footnote"><p><a name="Footnote_624_624" id="Footnote_624_624"></a><a href="#FNanchor_624_624"><span class="label">[k]</span></a> Rymer, t. ii. p. 891. Madox, Hist. Exchequer, c. xxii. s. +7.</p></div> + +<div class="footnote"><p><a name="Footnote_625_625" id="Footnote_625_625"></a><a href="#FNanchor_625_625"><span class="label">[m]</span></a> In the remarkable speech of the Doge Mocenigo, quoted in +another place, vol. i. p. 465, the annual profit made by Venice on her +mercantile capital is reckoned at forty per cent.</p></div> + +<div class="footnote"><p><a name="Footnote_626_626" id="Footnote_626_626"></a><a href="#FNanchor_626_626"><span class="label">[n]</span></a> Muratori, Dissert. 16.</p></div> + +<div class="footnote"><p><a name="Footnote_627_627" id="Footnote_627_627"></a><a href="#FNanchor_627_627"><span class="label">[o]</span></a> Bizarri, Hist. Genuens. p. 797. The rate of discount on +bills, which may not have exactly corresponded to the average annual +interest of money, was ten per cent. at Barcelona in 1435. Capmany t. i. +p. 209.</p></div> + +<div class="footnote"><p><a name="Footnote_628_628" id="Footnote_628_628"></a><a href="#FNanchor_628_628"><span class="label">[p]</span></a> Du Cange, v. Usura.</p></div> + +<div class="footnote"><p><a name="Footnote_629_629" id="Footnote_629_629"></a><a href="#FNanchor_629_629"><span class="label">[q]</span></a> Muratori, Diss. 16.</p></div> + +<div class="footnote"><p><a name="Footnote_630_630" id="Footnote_630_630"></a><a href="#FNanchor_630_630"><span class="label">[r]</span></a> Greg. Turon. I. iv.</p></div> + +<div class="footnote"><p><a name="Footnote_631_631" id="Footnote_631_631"></a><a href="#FNanchor_631_631"><span class="label">[s]</span></a> Hist. de Languedoc, t. ii. p. 517; t. iii. p. 531.</p></div> + +<div class="footnote"><p><a name="Footnote_632_632" id="Footnote_632_632"></a><a href="#FNanchor_632_632"><span class="label">[t]</span></a> Id. t. iii. p. 121.</p></div> + +<div class="footnote"><p><a name="Footnote_633_633" id="Footnote_633_633"></a><a href="#FNanchor_633_633"><span class="label">[u]</span></a> Id. p. 163.</p></div> + +<div class="footnote"><p><a name="Footnote_634_634" id="Footnote_634_634"></a><a href="#FNanchor_634_634"><span class="label">[x]</span></a> Marina, Ensayo Historico-Critico, p. 143.</p></div> + +<div class="footnote"><p><a name="Footnote_635_635" id="Footnote_635_635"></a><a href="#FNanchor_635_635"><span class="label">[y]</span></a> Martenne Thesaurus Anecdotorum, t. i. p. 984.</p></div> + +<div class="footnote"><p><a name="Footnote_636_636" id="Footnote_636_636"></a><a href="#FNanchor_636_636"><span class="label">[z]</span></a> Velly, t. iv. p. 136.</p></div> + +<div class="footnote"><p><a name="Footnote_637_637" id="Footnote_637_637"></a><a href="#FNanchor_637_637"><span class="label">[a]</span></a> The city of Cahors, in Quercy, the modern department of the +Lot, produced a tribe of money-dealers. The Caursini are almost as often +noticed as the Lombards. See the article in Du Cange. In Lombardy, Asti, a +city of no great note in other respects, was famous for the same +department of commerce.</p></div> + +<div class="footnote"><p><a name="Footnote_638_638" id="Footnote_638_638"></a><a href="#FNanchor_638_638"><span class="label">[b]</span></a> There were three species of paper credit in the dealings of +merchants: 1. General letters of credit, not directed to any one, which +are not uncommon in the Levant: 2. Orders to pay money to a particular +person: 3. Bills of exchange regularly negotiable. Boucher, t. ii. p. 621. +Instances of the first are mentioned by Macpherson about 1200, p. 367. The +second species was introduced by the Jews, about 1183 (Capmany, t. i. p. +297); but it may be doubtful whether the last stage of the progress was +reached nearly so soon. An instrument in Rymer, however, of the year 1364 +(t. vi. p. 495), mentions literæ cambitoriæ, which seem to have been +negotiable bills; and by 1400 they were drawn in sets, and worded exactly +as at present. Macpherson, p. 614, and Beckman, History of Inventions, +vol. iii. p. 430, give from Capmany an actual precedent of a bill dated in +1404.</p></div> + +<div class="footnote"><p><a name="Footnote_639_639" id="Footnote_639_639"></a><a href="#FNanchor_639_639"><span class="label">[c]</span></a> Usury was looked upon with horror by our English divines +long after the Reformation. Fleury, in his Institutions au Droit +Ecclésiastique, t. ii. p. 129, has shown the subterfuges to which men had +recourse in order to evade this prohibition. It is an unhappy truth, that +great part of the attention devoted to the best of sciences, ethics and +jurisprudence, has been employed to weaken principles that ought never to +have been acknowledged. +</p><p> +One species of usury, and that of the highest importance to commerce, was +always permitted, on account of the risk that attended it This was marine +insurance, which could not have existed, until money was considered, in +itself, as a source of profit. The earliest regulations on the subject of +insurance are those of Barcelona in 1433; but the practice was, of course, +earlier than these, though not of great antiquity. It is not mentioned in +the Consolato del Mare, nor in any of the Hanseatic laws of the fourteenth +century. Beckman, vol. i. p. 388. This author, not being aware of the +Barcelonese laws on this subject published by Capmany, supposes, the first +provisions regulating marine assurance to have been made at Florence in +1523.</p></div> + +<div class="footnote"><p><a name="Footnote_640_640" id="Footnote_640_640"></a><a href="#FNanchor_640_640"><span class="label">[d]</span></a> Macpherson, p. 487, et alibi. They had probably excellent +bargains; in 1329 the Bardi farmed all the customs in England for 20<i>l.</i> a +day. But in 1282 the customs had produced 8411<i>l.</i>, and half a century of +great improvement had elapsed.</p></div> + +<div class="footnote"><p><a name="Footnote_641_641" id="Footnote_641_641"></a><a href="#FNanchor_641_641"><span class="label">[e]</span></a> Villani, 1. xii. c. 55, 87. He calls these two +banking-houses the pillars which sustained great part of the commerce of +Christendom.</p></div> + +<div class="footnote"><p><a name="Footnote_642_642" id="Footnote_642_642"></a><a href="#FNanchor_642_642"><span class="label">[f]</span></a> Capmany, t. i. p. 213.</p></div> + +<div class="footnote"><p><a name="Footnote_643_643" id="Footnote_643_643"></a><a href="#FNanchor_643_643"><span class="label">[g]</span></a> Macpherson, p. 341, from Sanuto. The bank of Venice is +referred to 1171.</p></div> + +<div class="footnote"><p><a name="Footnote_644_644" id="Footnote_644_644"></a><a href="#FNanchor_644_644"><span class="label">[h]</span></a> G. Villani, 1. xi. c. 49.</p></div> + +<div class="footnote"><p><a name="Footnote_645_645" id="Footnote_645_645"></a><a href="#FNanchor_645_645"><span class="label">[i]</span></a> Matt. Villani, p. 227 (in Muratori, Script. Rer. Ital. t. +xiv.).</p></div> + +<div class="footnote"><p><a name="Footnote_646_646" id="Footnote_646_646"></a><a href="#FNanchor_646_646"><span class="label">[k]</span></a> Bizarri, Hist. Genuens. p. 797 (Antwerp, 1579); +Machiavelli, Storia Fiorentina, 1. viii.</p></div> + +<div class="footnote"><p><a name="Footnote_647_647" id="Footnote_647_647"></a><a href="#FNanchor_647_647"><span class="label">[m]</span></a> Ricobaldus Ferrarensis, apud Murat. Dissert. 23; Francisc. +Pippinus, ibidem. Muratori endeavours to extenuate the authority of this +passage, on account of some more ancient writers who complain of the +luxury of their times, and of some particular instances of magnificence +and expense. But Ricobaldi alludes, as Muratori himself admits, to the +mode of living in the middle ranks, and not to that of courts, which in +all ages might occasionally display considerable splendour. I see nothing +to weaken so explicit a testimony of a contemporary, which in fact is +confirmed by many writers of the next age, who, according to the practice +of Italian chroniclers, have copied it as their own.</p></div> + +<div class="footnote"><p><a name="Footnote_648_648" id="Footnote_648_648"></a><a href="#FNanchor_648_648"><span class="label">[n]</span></a> Murat. Dissert. 23.</p></div> + +<div class="footnote"><p><a name="Footnote_649_649" id="Footnote_649_649"></a><a href="#FNanchor_649_649"><span class="label">[o]</span></a> +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Bellincion Berti vid' io andar cinto<br /></span> +<span class="i0">Di cuojo e d'osso, e venir dallo specchio<br /></span> +<span class="i0">La donna sua senza 'l viso dipinto,<br /></span> +<span class="i0">E vidi quel di Nerli, e quel del Vecchio<br /></span> +<span class="i0">Esser contenti alla pelle scoverta,<br /></span> +<span class="i0">E sue donne al fuso ed al pennechio.<br /></span> +<span class="i0"> <br /></span> +<span class="i0">Paradis. canto xv.<br /></span> +</div></div> +<p> +See too the rest of this canto. But this is put in the mouth of +Cacciaguida, the poet's ancestor, who lived in the former half of the +twelfth century. The change, however, was probably subsequent to 1250, +when the times of wealth and turbulence began at Florence.</p></div> + +<div class="footnote"><p><a name="Footnote_650_650" id="Footnote_650_650"></a><a href="#FNanchor_650_650"><span class="label">[p]</span></a> Velly, t. xiii. p. 352. The second continuator of Nangis +vehemently inveighs against the long beards and short breeches of his age; +after the introduction of which novelties, he judiciously observes, the +French were much more disposed to run away from their enemies than before. +Spicilegium, t. iii. p. 105.</p></div> + +<div class="footnote"><p><a name="Footnote_651_651" id="Footnote_651_651"></a><a href="#FNanchor_651_651"><span class="label">[q]</span></a> 37 E. III. Rep. 38 E. III. Several other statutes of a +similar nature were passed in this and the ensuing reign. In France, there +were sumptuary laws as old as Charlemagne, prohibiting or taxing the use +of furs; but the first extensive regulation was under Philip the Fair. +Velly, t. vii. p. 64; t. xi. p. 190. These attempts to restrain what +cannot be restrained continued even down to 1700. De la Mare, Traité de la +Police, t. i. 1. iii.</p></div> + +<div class="footnote"><p><a name="Footnote_652_652" id="Footnote_652_652"></a><a href="#FNanchor_652_652"><span class="label">[r]</span></a> Muratori, Antichità Italiane, Dissert. 23, t. i. p. 325.</p></div> + +<div class="footnote"><p><a name="Footnote_653_653" id="Footnote_653_653"></a><a href="#FNanchor_653_653"><span class="label">[s]</span></a> "These English," said the Spaniards who came over with +Philip II., "have their houses made of sticks and dirt, but they fare +commonly so well as the king." Harrison's Description of Britain, prefixed +to Holingshed, vol. i. p. 315 (edit. 1807).</p></div> + +<div class="footnote"><p><a name="Footnote_654_654" id="Footnote_654_654"></a><a href="#FNanchor_654_654"><span class="label">[t]</span></a> Pfeffel, t. i. p. 293.</p></div> + +<div class="footnote"><p><a name="Footnote_655_655" id="Footnote_655_655"></a><a href="#FNanchor_655_655"><span class="label">[u]</span></a> Æneas Sylvius, de Moribus Germanorum. This treatise is an +amplified panegyric upon Germany, and contains several curious passages: +they must be taken perhaps with some allowance; for the drift of the whole +is to persuade the Germans, that so rich and noble a country could afford +a little money for the poor pope. Civitates quas vocant liberas, cum +Imperatori solùm subjiciuntur, cujus jugum est instar libertatis; nec +profectò usquam gentium tanta libertas est, quantâ fruuntur hujuscemodi +civitates. Nam populi quos Itali vocant liberos, hi potissimùm serviunt, +sive Venetias inspectes, sive Florentiam aut Cænas, in quibus cives, +præter paucos qui reliquos ducunt, loco mancipiorum habentur. Cum nec +rebus suis uti, ut libet, vel fari quæ velint, et gravissimis opprimuntur +pecuniarum exactionibus. Apud Germanos omnia læta sunt, omnia jucunda; +nemo suis privatur bonis. Salvo cuique sua hæreditas est, nulli nisi +nocenti magistratus nocent. Nec apud eos factiones sicut apud Italas urbes +grassantur. Sunt autem supra centum civitates hâc libertate fruentes. p. +1058. +</p><p> +In another part of his work (p. 719) he gives a specious account of +Vienna. The houses, he says, had glass windows and iron doors. Fenestræ +undique vitreæ perlucent, et ostia plerumque ferrea. In domibus multa et +munda supellex. Altæ domus magnificæque visuntur. Unum id dedecori est, +quod tecta plerumque tigno contegunt, pauca latere. Cætera ædificia muro +lapideo consistunt. Pictæ domus et exterius et interius splendent. +Civitatis populus 50,000 <i>communicantium</i> creditur. I suppose this gives +at least double for the total population. He proceeds to represent the +manners of the city in a less favourable point of view, charging the +citizens with gluttony and libertinism, the nobility with oppression, the +judges with corruption, &c. Vienna probably had the vices of a flourishing +city; but the love of amplification in so rhetorical a writer as Æneas +Sylvius weakens the value of his testimony, on whichever side it is +given.</p></div> + +<div class="footnote"><p><a name="Footnote_656_656" id="Footnote_656_656"></a><a href="#FNanchor_656_656"><span class="label">[x]</span></a> Vols. iv. and vi.</p></div> + +<div class="footnote"><p><a name="Footnote_657_657" id="Footnote_657_657"></a><a href="#FNanchor_657_657"><span class="label">[y]</span></a> Mr. Lysons refers Castleton to the age of William the +Conqueror, but without giving any reasons. Lysons's Derbyshire, p. +ccxxxvi. Mr. King had satisfied himself that it was built during the +Heptarchy, and even before the conversion of the Saxons to Christianity; +but in this he gave the reins, as usual, to his imagination, which as much +exceeded his learning, as the latter did his judgment. Conisborough should +seem, by the name, to have been a royal residence, which it certainly +never was after the Conquest. But if the engravings of the decorative +parts in the Archæologia, vol. vi. p. 244, are not remarkably inaccurate, +the architecture is too elegant for the Danes, much more for the +unconverted Saxons. Both these castles are enclosed by a court or ballium, +with a fortified entrance, like those erected by the Normans. +</p><p> +[No doubt is now entertained but that Conisborough was built late in the +Norman period. Mr. King's authority, which I followed for want of a +better, is by no means to be depended upon. 1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_658_658" id="Footnote_658_658"></a><a href="#FNanchor_658_658"><span class="label">[z]</span></a> Whitaker's Hist. of Whalley; Lysons's Cumberland, p. ccvi.</p></div> + +<div class="footnote"><p><a name="Footnote_659_659" id="Footnote_659_659"></a><a href="#FNanchor_659_659"><span class="label">[a]</span></a> The ruins of Herstmonceux are, I believe, tolerably +authentic remains of Henry VI.'s age, but only a part of Haddon Hall is of +the fifteenth century.</p></div> + +<div class="footnote"><p><a name="Footnote_660_660" id="Footnote_660_660"></a><a href="#FNanchor_660_660"><span class="label">[b]</span></a> Archæologia, vol. vi.</p></div> + +<div class="footnote"><p><a name="Footnote_661_661" id="Footnote_661_661"></a><a href="#FNanchor_661_661"><span class="label">[c]</span></a> Blomefield's Norfolk, vol. iii. p. 242.</p></div> + +<div class="footnote"><p><a name="Footnote_662_662" id="Footnote_662_662"></a><a href="#FNanchor_662_662"><span class="label">[d]</span></a> Whitaker's Hist. of Whalley.</p></div> + +<div class="footnote"><p><a name="Footnote_663_663" id="Footnote_663_663"></a><a href="#FNanchor_663_663"><span class="label">[e]</span></a> Lyttelton, t. iv. p. 130.</p></div> + +<div class="footnote"><p><a name="Footnote_664_664" id="Footnote_664_664"></a><a href="#FNanchor_664_664"><span class="label">[f]</span></a> Harrison says, that few of the houses of the commonalty, +except here and there in the west country towns, were made of stone. p. +314. This was about 1570.</p></div> + +<div class="footnote"><p><a name="Footnote_665_665" id="Footnote_665_665"></a><a href="#FNanchor_665_665"><span class="label">[g]</span></a> Hist. of Whalley.</p></div> + +<div class="footnote"><p><a name="Footnote_666_666" id="Footnote_666_666"></a><a href="#FNanchor_666_666"><span class="label">[h]</span></a> "The ancient manors and houses of our gentlemen," says +Harrison, "are yet and for the most part, of strong timber, in framing +whereof our carpenters have been and are worthily preferred before those +of like science among all other nations. Howbeit such as are lately +builded are either of brick or hard stone, or both." p. 316.</p></div> + +<div class="footnote"><p><a name="Footnote_667_667" id="Footnote_667_667"></a><a href="#FNanchor_667_667"><span class="label">[i]</span></a> Archæologia, vol. i. p. 143; vol. iv. p. 91.</p></div> + +<div class="footnote"><p><a name="Footnote_668_668" id="Footnote_668_668"></a><a href="#FNanchor_668_668"><span class="label">[k]</span></a> Hist. of Whalley. In Strutt's View of Manners we have an +inventory of furniture in the house of Mr. Richard Fermor, ancestor of the +earl of Pomfret, at Easton in Northamptonshire, and another in that of Sir +Adrian Foskewe. Both these houses appear to have been of the dimensions +and arrangement mentioned.</p></div> + +<div class="footnote"><p><a name="Footnote_669_669" id="Footnote_669_669"></a><a href="#FNanchor_669_669"><span class="label">[m]</span></a> Single rooms, windows, doorways, &c., of an earlier date +may perhaps not unfrequently be found; but such instances are always to be +verified by their intrinsic evidence, not by the tradition of the place. +[<a href="#N1_2"><span class="smcap">Note</span> II.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_670_670" id="Footnote_670_670"></a><a href="#FNanchor_670_670"><span class="label">[n]</span></a> Mélanges tirés d'une grande bibliothèque, par M. de Paulmy, +t. iii. et xxxi. It is to be regretted that Le Grand d'Aussy never +completed that part of his Vie privée des Français which was to have +comprehended the history of civil architecture. Villaret has slightly +noticed its state about 1380. t. ii. p. 141.</p></div> + +<div class="footnote"><p><a name="Footnote_671_671" id="Footnote_671_671"></a><a href="#FNanchor_671_671"><span class="label">[o]</span></a> Chenonceaux in Touraine was built by a nephew of Chancellor +Duprat; Gaillon in the department of Eure by Cardinal Amboise; both at the +beginning of the sixteenth century. These are now considered, in their +ruins, as among the most ancient houses in France. A work by Ducerceau +(Les plus excellens Batimens de France, 1607) gives accurate engravings of +thirty houses; but with one or two exceptions, they seem all to have been +built in the sixteenth century. Even in that age, defence was naturally an +object in constructing a French mansion-house; and where defence is to be +regarded, splendour and convenience must give way. The name of <i>château</i> +was not retained without meaning.</p></div> + +<div class="footnote"><p><a name="Footnote_672_672" id="Footnote_672_672"></a><a href="#FNanchor_672_672"><span class="label">[p]</span></a> Mélanges tirés, &c. t. iii. For the prosperity and downfall +of Jacques Cœur, see Villaret, t. xvi. p. 11; but more especially Mém. +de l'Acad. des Inscript. t. xx. p. 509. His mansion at Bourges still +exists, and is well known to the curious in architectural antiquity. In +former editions I have mentioned a house of Jacques Cœur at +Beaumont-sur-Oise; but this was probably by mistake, as I do not +recollect, nor can find, any authority for it.</p></div> + +<div class="footnote"><p><a name="Footnote_673_673" id="Footnote_673_673"></a><a href="#FNanchor_673_673"><span class="label">[q]</span></a> Giannone, Ist. di Napoli, t. iii. p. 280.</p></div> + +<div class="footnote"><p><a name="Footnote_674_674" id="Footnote_674_674"></a><a href="#FNanchor_674_674"><span class="label">[r]</span></a> Muratori, Antich. Ital. Dissert. 25, p. 390. Beckman, in +his History of Inventions, vol. i., a work of very great research, cannot +trace any explicit mention of chimneys beyond the writings of John +Villani, wherein however they are not noticed as a new invention. Piers +Plowman, a few years later than Villani, speaks of a "chambre with a +chimney" in which rich men usually dined. But in the account-book of +Bolton Abbey, under the year 1311, there is a charge pro faciendo camino +in the rectory-house of Gargrave. Whitaker's Hist. of Craven, p. 331. This +may, I think, have been only an iron stove or fire-pan; though Dr. W. +without hesitation translates it a chimney. However, Mr. King, in his +observations on ancient castles, Archæol. vol. vi., and Mr. Strutt, in his +View of Manners, vol. i., describe chimneys in castles of a very old +construction. That at Conisborough in Yorkshire is peculiarly worthy of +attention, and carries back this important invention to a remote +antiquity. +</p><p> +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 zigzag moulding; some +of these project slightly from the wall; the flues, however, go only a few +feet up in the thickness of the wall, and are then turned out at the back, +the apertures being small oblong holes. At the castle, Hedingham, Essex, +which is of about the same date, there are fireplaces 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 fourteenth century they are frequently very +short." Glossary 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. +</p><p> +Chimneys are still more modern in France; and seem, according to Paulmy, +to have come into common use since the middle of the seventeenth century. +Jadis nos pères n'avoient qu'un unique chauffoir, qui étoit commun à toute +une famille, et quelquefois à plusieurs. t. iii. p. 133. In another place, +however, he says: Il parait que les tuyaux de cheminées étaient déjà très +en usage en France, t. xxxi. p. 232.</p></div> + +<div class="footnote"><p><a name="Footnote_675_675" id="Footnote_675_675"></a><a href="#FNanchor_675_675"><span class="label">[s]</span></a> Du Cange, v. Vitreæ; Bentham's History of Ely, p. 22.</p></div> + +<div class="footnote"><p><a name="Footnote_676_676" id="Footnote_676_676"></a><a href="#FNanchor_676_676"><span class="label">[t]</span></a> Matt Paris; Vitæ Abbatum St. Alb. 122.</p></div> + +<div class="footnote"><p><a name="Footnote_677_677" id="Footnote_677_677"></a><a href="#FNanchor_677_677"><span class="label">[u]</span></a> Recueil des Hist. t. xii. p. 101.</p></div> + +<div class="footnote"><p><a name="Footnote_678_678" id="Footnote_678_678"></a><a href="#FNanchor_678_678"><span class="label">[x]</span></a> Paulmy, t. iii. p. 132. Villaret, t. xi. p. 141. +Macpherson, p. 679.</p></div> + +<div class="footnote"><p><a name="Footnote_679_679" id="Footnote_679_679"></a><a href="#FNanchor_679_679"><span class="label">[y]</span></a> Northumberland Household Book, preface, p. 16. Bishop Percy +says, on the authority of Harrison, that glass was not commonly used in +the reign of Henry VIII.</p></div> + +<div class="footnote"><p><a name="Footnote_680_680" id="Footnote_680_680"></a><a href="#FNanchor_680_680"><span class="label">[z]</span></a> See some curious valuations of furniture and stock in trade +at Colchester in 1296 and 1301. Eden's Introduct. to State of the Poor, p. +20 and 25, from the Rolls of Parliament. A carpenter's stock was valued at +a shilling, and consisted of five tools. Other tradesmen were almost as +poor; but a tanner's stock, if there is no mistake, was worth 9<i>l.</i> 7<i>s.</i> +10<i>d.</i>, more than ten times any other. Tanners were principal tradesmen, +the chief part of dress being made of leather. A few silver cups and +spoons are the only articles of plate; and as the former are valued but at +one or two shillings, they had, I suppose, but a little silver on the +rim.</p></div> + +<div class="footnote"><p><a name="Footnote_681_681" id="Footnote_681_681"></a><a href="#FNanchor_681_681"><span class="label">[a]</span></a> Nicholl's Illustrations, p. 119. In this work, among +several interesting facts of the same class, we have another inventory of +the goods of "John Port, late the king's servant," who died about 1524: he +seems to have been a man of some consideration and probably a merchant. +The house consisted of a hall, parlour, buttery, and kitchen, with two +chambers, and one smaller, on the floor above; a napery, or linen room, +and three garrets, besides a shop, which was probably detached. There were +five bedsteads in the house, and on the whole a great deal of furniture +for those times; much more than I have seen in any other inventory. His +plate is valued at 94<i>l.</i>; his jewels at 23<i>l.</i>; his funeral expenses come +to 73<i>l.</i> 6<i>s.</i> 8<i>d.</i> p. 119.</p></div> + +<div class="footnote"><p><a name="Footnote_682_682" id="Footnote_682_682"></a><a href="#FNanchor_682_682"><span class="label">[b]</span></a> Whitaker's Hist. of Craven, p. 289. A better notion of the +accommodations usual in the rank immediately below may be collected from +two inventories published by Strutt, one of Mr. Fermor's house at Easton, +the other Sir Adrian Foskewe's. I have mentioned the size of these +gentlemen's houses already. In the former, the parlour had wainscot, a +table and a few chairs; the chambers above had two best beds, and there +was one servant's bed; but the inferior servants had only mattresses on +the floor. The best chambers had window shutters and curtains. Mr. Fermor, +being a merchant, was probably better supplied than the neighbouring +gentry. His plate however consisted only of sixteen spoons, and a few +goblets and ale pots. Sir Adrian Foskewe's opulence appears to have been +greater; he had a service of silver plate, and his parlour was furnished +with hangings. This was in 1539; it is not to be imagined that a knight of +the shire a hundred years before would have rivalled even this scanty +provision of moveables. Strutt's View of Manners, vol. iii. p. 63. These +details, trifling as they may appear, are absolutely necessary in order to +give an idea with some precision of a state of national wealth so totally +different from the present.</p></div> + +<div class="footnote"><p><a name="Footnote_683_683" id="Footnote_683_683"></a><a href="#FNanchor_683_683"><span class="label">[c]</span></a> Cuperent tam egregiè Scotorum reges quàm mediocres +Nurembergæ cives habitare. Æn. Sylv. apud Schmidt, Hist. des Allem. t. v. +p. 510.</p></div> + +<div class="footnote"><p><a name="Footnote_684_684" id="Footnote_684_684"></a><a href="#FNanchor_684_684"><span class="label">[d]</span></a> t. iii. p. 127.</p></div> + +<div class="footnote"><p><a name="Footnote_685_685" id="Footnote_685_685"></a><a href="#FNanchor_685_685"><span class="label">[e]</span></a> Crescentius in Commodum Ruralium. (Lovaniæ, absque anno.) +This old edition contains many coarse wooden cuts, possibly taken from the +illuminations which Paulmy found in his manuscript.</p></div> + +<div class="footnote"><p><a name="Footnote_686_686" id="Footnote_686_686"></a><a href="#FNanchor_686_686"><span class="label">[f]</span></a> Harrison's account of England, prefixed to Hollingshed's +Chronicles. Chimneys were not used in the farm-houses of Cheshire till +within forty years of the publication of King's Vale-royal (1656); the +fire was in the midst of the house, against a hob of clay, and the oxen +lived under the same roof. Whitaker's Craven, p. 334.</p></div> + +<div class="footnote"><p><a name="Footnote_687_687" id="Footnote_687_687"></a><a href="#FNanchor_687_687"><span class="label">[g]</span></a> The Saracenic architecture was once conceived to have been +the parent of the Gothic. But the pointed arch does not occur, I believe, +in any Moorish buildings; while the great mosque of Cordova, built in the +eighth century, resembles, except by its superior beauty and magnificence, +one of our oldest cathedrals; the nave of Gloucester, for example, or +Durham. Even the vaulting is similar, and seems to indicate some +imitation, though perhaps of a common model. Compare Archæologia, vol. +xvii. plate 1 and 2, with Murphy's Arabian Antiquities, plate 5. The +pillars indeed at Cordova are of the Corinthian order, perfectly executed, +if we may trust the engraving, and the work, I presume, of Christian +architects; while those of our Anglo-Norman cathedrals are generally an +imitation of the Tuscan shaft, the builders not venturing to trust their +roofs to a more slender support, though Corinthian foliage is common in +the capitals, especially those of smaller ornamental columns. In fact, the +Roman architecture is universally acknowledged to have produced what we +call the Saxon or Norman; but it is remarkable that it should have been +adopted, with no variation but that of the singular horse-shoe arch, by +the Moors of Spain. +</p><p> +The Gothic, or pointed arch, though very uncommon in the genuine Saracenic +of Spain and the Levant, may be found in some prints from Eastern +buildings; and is particularly striking in the façade of the great mosque +at Lucknow, in Salt's designs for Lord Valentia's Travels. The pointed +arch buildings in the Holy Land have all been traced to the age of the +Crusades. Some arches, if they deserve the name, that have been referred +to this class, are not pointed by their construction, but rendered such by +cutting off and hollowing the projections of horizontal stones.</p></div> + +<div class="footnote"><p><a name="Footnote_688_688" id="Footnote_688_688"></a><a href="#FNanchor_688_688"><span class="label">[h]</span></a> Gibbon has asserted, what might justify this appellation, +that "the image of Theodoric's palace at Verona, still extant on a coin, +represents the oldest and most authentic model of Gothic architecture." +vol. vii. p. 33. For this he refers to Maffei, Verona Illustrata, p. 31, +where we find an engraving, not indeed of a coin, but of a seal; the +building represented on which is in a totally dissimilar style. The +following passages in Cassiodorus, for which I am indebted to M. Ginguené, +Hist. Littér. de l'Italie, t. i. p. 55, would be more to the purpose: Quid +dicamus columnarum junceam proceritatem? moles illas sublimissimas +fabricarum quasi quibusdam erectis hastilibus contineri. These columns of +reedy slenderness, so well described by juncea proceritas, are said to be +found in the cathedral of Montreal in Sicily, built in the eighth century. +Knight's Principles of Taste, p. 162. They are not however sufficient to +justify the denomination of Gothic, which is usually confined to the +pointed arch style.</p></div> + +<div class="footnote"><p><a name="Footnote_689_689" id="Footnote_689_689"></a><a href="#FNanchor_689_689"><span class="label">[i]</span></a> The famous abbot Suger, minister of Louis VI., rebuilt St. +Denis about 1140. The cathedral of Laon is said to have been dedicated in +1114. Hist. Littéraire de la France, t. ix. p. 220. I do not know in what +style the latter of these churches is built, but the former is, or rather +was, Gothic. Notre Dame at Paris was begun soon after the middle of the +twelfth century, and completed under St. Louis. Mélanges tirés d'une +grande bibliothèque, t. xxxi. p. 108. In England, the earliest specimen I +have seen of pointed arches is in a print of St. Botolphe's Priory at +Colchester, said by Strutt to have been built in 1110. View of Manners, +vol. i. plate 30. These are apertures formed by excavating the space +contained by the intersection of semicircular, or Saxon arches; which are +perpetually disposed, by way of ornament, on the outer as well as inner +surface of old churches, so as to cut each other, and consequently to +produce the figure of a Gothic arch; and if there is no mistake in the +date, they are probably among the most ancient of that style in Europe. +Those of the church of St. Cross near Winchester are of the reign of +Stephen; and generally speaking, the pointed style, especially in +vaulting, the most important object in the construction of a building, is +not considered as older than Henry II. The nave of Canterbury cathedral, +of the erection of which by a French architect about 1176 we have a full +account in Gervase (Twysden, Decem Scriptores, col. 1289), and the Temple +church, dedicated in 1183, are the most ancient English buildings +altogether in the Gothic manner. +</p><p> +The subject of ecclesiastical architecture in the middle ages has been so +fully discussed by intelligent and observant 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. +</p><p> +The circular and pointed forms, instead of one having at once supplanted +the other, were concurrent in the same building, through Germany, 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 cathedral 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. Denis, near +Paris, which, however, is not so old. The writings of Hope, Rickman, +Whewell, and Willis are prominent among many that have thrown light on +this subject. The beauty and magnificence of the pointed style is +acknowledged 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. [1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_690_690" id="Footnote_690_690"></a><a href="#FNanchor_690_690"><span class="label">[k]</span></a> The curious subject of freemasonry has unfortunately been +treated only by panegyrists or calumniators, both equally mendacious. I do +not wish to pry into the mysteries of the craft; but it would be +interesting to know more of their history during the period when they were +literally architects. They are charged by an act of parliament, 3 H. VI. +c. i., with fixing the price of their labour in their annual chapters, +contrary to the statute of labourers, and such chapters are consequently +prohibited. This is their first persecution; they have since undergone +others, and are perhaps reserved for still more. It is remarkable, that +masons were never legally incorporated, like other traders; their bond of +union being stronger than any charter. The article Masonry in the +Encyclopædia Britannica is worth reading.</p></div> + +<div class="footnote"><p><a name="Footnote_691_691" id="Footnote_691_691"></a><a href="#FNanchor_691_691"><span class="label">[m]</span></a> I cannot resist the pleasure of transcribing a lively and +eloquent passage from Dr. Whitaker. "Could a curious observer of the +present day carry himself nine or ten centuries back, and ranging the +summit of Pendle survey the forked vale of Calder on one side, and the +bolder margins of Ribble and Hadder on the other, instead of populous +towns and villages, the castle, the old tower-built house, the elegant +modern mansion, the artificial plantation, the inclosed park and pleasure +ground: instead of uninterrupted inclosures which have driven sterility +almost to the summit of the fells, how great must then have been the +contrast, when ranging either at a distance, or immediately beneath, his +eye must have caught vast tracts of forest ground stagnating with bog or +darkened by native woods, where the wild ox, the roe, the stag, and the +wolf, had scarcely learned the supremacy of man, when, directing his view +to the intermediate spaces, to the windings of the valleys, or the expanse +of plains beneath, he could only have distinguished a few insulated +patches of culture, each encircling a village of wretched cabins, among +which would still be remarked one rude mansion of wood, scarcely equal in +comfort to a modern cottage, yet then rising proudly eminent above the +rest, where the Saxon lord, surrounded by his faithful cotarii, enjoyed a +rude and solitary independence, owning no superior but his sovereign." +Hist. of Whalley, p. 133. About a fourteenth part of this parish of +Whalley was cultivated at the time of Domesday. This proportion, however, +would by no means hold in the counties south of Trent.</p></div> + +<div class="footnote"><p><a name="Footnote_692_692" id="Footnote_692_692"></a><a href="#FNanchor_692_692"><span class="label">[n]</span></a> "Of the Anglo-Saxon husbandry we may remark," says Mr. +Turner, "that Domesday Survey gives us some indication that the +cultivation of the church lands was much superior to that of any other +order of society. They have much less wood upon them, and less common of +pasture; and what they had appears often in smaller and more irregular +pieces; while their meadow was more abundant, and in more numerous +distributions." Hist. of Anglo-Saxons, vol. ii. p. 167. +</p><p> +It was the glory of St. 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 +example, or in Britany; there, at once missionaries and labourers, they +accomplished their double service through peril and fatigue." Civilis. en +France, Leçon 14. The north-eastern parts of France, as far as the Lower +Seine, were reduced into cultivation by the disciples of St. Columban, in +the sixth and seventh centuries. The proofs of this are in Mabillon's Acta +Sanctorum Ord. Bened. See Mém. de l'Acad. des Sciences Morales et +Politiques, iii. 708. +</p><p> +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 escape the imputation of +Protestant 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 the eighteenth century, who were too much alienated by the +faults of the clergy to acknowledge any redeeming virtues, or even with +Sismondi, who, coming in a moment of reaction, feared the returning +influence of mediæval prejudices, Guizot stands forward as an equitable +and indulgent arbitrator. In this spirit he says of the rule of St. +Benedict—La pensée morale et la discipline générale en sont sévères; mais +dans le détail de la vie elle est humaine et modérée; plus humaine, plus +modérée que les lois barbares, que les mœurs générales du temps; et je +ne doute pas que les frères, renfermés dans l'intérieur d'un monastère, +n'y fussent gouvernés par une autorité, à tout prendre, et plus +raisonnable, et d'une manière moins dure qu'ils ne l'eussent été dans la +société civile.</p></div> + +<div class="footnote"><p><a name="Footnote_693_693" id="Footnote_693_693"></a><a href="#FNanchor_693_693"><span class="label">[o]</span></a> Thus, in Marca Hispanica, Appendix, p. 770, we have a grant +from Lothaire I. in 834, to a person and his brother, of lands which their +father, ab eremo in Septimaniâ trahens, had possessed by a charter of +Charlemagne. See too p. 773, and other places. Du Cange, v. Eremus, gives +also a few instances.</p></div> + +<div class="footnote"><p><a name="Footnote_694_694" id="Footnote_694_694"></a><a href="#FNanchor_694_694"><span class="label">[p]</span></a> Du Cange, v. Aprisio. Baluze, Capitularia, t. i. p. 549. +They were permitted to decide petty suits among themselves, but for more +important matters were to repair to the county-court. A liberal policy +runs through the whole charter. See more on the same subject, id. p. 569.</p></div> + +<div class="footnote"><p><a name="Footnote_695_695" id="Footnote_695_695"></a><a href="#FNanchor_695_695"><span class="label">[q]</span></a> I owe this fact to M. Heeren, Essai sur l'Influence des +Croisades, p. 226. An inundation in their own country is supposed to have +immediately produced this emigration; but it was probably successive, and +connected with political as well as physical causes of greater permanence. +The first instrument in which they are mentioned is a grant from the +bishop of Hamburgh in 1106. This colony has affected the local usages, as +well as the denominations of things and places along the northern coast of +Germany. It must be presumed that a large proportion of the emigrants were +diverted from agriculture to people the commercial cities which grew up in +the twelfth century upon that coast.</p></div> + +<div class="footnote"><p><a name="Footnote_696_696" id="Footnote_696_696"></a><a href="#FNanchor_696_696"><span class="label">[r]</span></a> Ingulfus tells us that the commissioners were pious enough +to favour Croyland, returning its possessions inaccurately, both as to +measurement and value; non ad verum pretium, nec ad verum spatium nostrum +monasterium librabant misericorditer, præcaventes in futurum regis +exactionibus. p. 79. I may just observe by the way, that Ingulfus gives +the plain meaning of the word Domesday, which has been disputed. The book +was so called, he says, pro suâ generalitate omnia tenementa totius terræ +integrè continente; that is, it was as general and conclusive as the last +judgment will be.</p></div> + +<div class="footnote"><p><a name="Footnote_697_697" id="Footnote_697_697"></a><a href="#FNanchor_697_697"><span class="label">[s]</span></a> This of course is subject to the doubt as to the +authenticity of Ingulfus.</p></div> + +<div class="footnote"><p><a name="Footnote_698_698" id="Footnote_698_698"></a><a href="#FNanchor_698_698"><span class="label">[t]</span></a> 1 Gale, XV Script. p. 77.</p></div> + +<div class="footnote"><p><a name="Footnote_699_699" id="Footnote_699_699"></a><a href="#FNanchor_699_699"><span class="label">[u]</span></a> Communi plebiscito viritim inter se diviserunt, et quidam +suas portiones agricolantes, quidam ad fœnum conservantes, quidam ut +prius ad pasturam suorum animalium, separaliter jacere permittentes, +terram pinguem et uberem repererunt. p. 94.</p></div> + +<div class="footnote"><p><a name="Footnote_700_700" id="Footnote_700_700"></a><a href="#FNanchor_700_700"><span class="label">[x]</span></a> 1 Gale, XV Script. p. 201.</p></div> + +<div class="footnote"><p><a name="Footnote_701_701" id="Footnote_701_701"></a><a href="#FNanchor_701_701"><span class="label">[y]</span></a> A good deal of information upon the former state of +agriculture will be found in Cullum's History of Hawsted. Blomefield's +Norfolk is in this respect among the most valuable of our local histories. +Sir Frederic Eden, in the first part of his excellent work on the poor, +has collected several interesting facts.</p></div> + +<div class="footnote"><p><a name="Footnote_702_702" id="Footnote_702_702"></a><a href="#FNanchor_702_702"><span class="label">[z]</span></a> 1. ii. c. 8.</p></div> + +<div class="footnote"><p><a name="Footnote_703_703" id="Footnote_703_703"></a><a href="#FNanchor_703_703"><span class="label">[a]</span></a> Cullum, p. 100, 220. Eden's State of Poor, &c. p. 48. +Whitaker's Craven, p. 45, 336.</p></div> + +<div class="footnote"><p><a name="Footnote_704_704" id="Footnote_704_704"></a><a href="#FNanchor_704_704"><span class="label">[b]</span></a> I infer this from a number of passages in Blomefield, +Cullum, and other writers. Hearne says, that an acre was often called +Solidata terræ; because the yearly rent of one <i>on the best land</i> was a +shilling. Lib. Nig. Scacc. p. 31.</p></div> + +<div class="footnote"><p><a name="Footnote_705_705" id="Footnote_705_705"></a><a href="#FNanchor_705_705"><span class="label">[c]</span></a> Rot. Parl. vol. v. p. 275.</p></div> + +<div class="footnote"><p><a name="Footnote_706_706" id="Footnote_706_706"></a><a href="#FNanchor_706_706"><span class="label">[d]</span></a> A passage in Bishop Latimer's sermons, too often quoted to +require repetition, shows that land was much underlet about the end of the +fifteenth century. His father, he says, kept half a dozen husbandmen, and +milked thirty cows, on a farm of three or four pounds a year. It is not +surprising that he lived as plentifully as his son describes.</p></div> + +<div class="footnote"><p><a name="Footnote_707_707" id="Footnote_707_707"></a><a href="#FNanchor_707_707"><span class="label">[e]</span></a> Rymer, t. xii. p. 204.</p></div> + +<div class="footnote"><p><a name="Footnote_708_708" id="Footnote_708_708"></a><a href="#FNanchor_708_708"><span class="label">[f]</span></a> Velly and Villaret scarcely mention this subject; and Le +Grand merely tells us that it was entirely neglected; but the details of +such an art, even in its state of neglect, might be interesting.</p></div> + +<div class="footnote"><p><a name="Footnote_709_709" id="Footnote_709_709"></a><a href="#FNanchor_709_709"><span class="label">[g]</span></a> Muratori, Dissert. 21.</p></div> + +<div class="footnote"><p><a name="Footnote_710_710" id="Footnote_710_710"></a><a href="#FNanchor_710_710"><span class="label">[h]</span></a> Denina, 1. xi. c. 7.</p></div> + +<div class="footnote"><p><a name="Footnote_711_711" id="Footnote_711_711"></a><a href="#FNanchor_711_711"><span class="label">[i]</span></a> Denina, 1. vi.</p></div> + +<div class="footnote"><p><a name="Footnote_712_712" id="Footnote_712_712"></a><a href="#FNanchor_712_712"><span class="label">[k]</span></a> t. iii. p. 145; t. xxxi. p. 258.</p></div> + +<div class="footnote"><p><a name="Footnote_713_713" id="Footnote_713_713"></a><a href="#FNanchor_713_713"><span class="label">[m]</span></a> De la Mare, Traité de la Police, t. iii. p. 380.</p></div> + +<div class="footnote"><p><a name="Footnote_714_714" id="Footnote_714_714"></a><a href="#FNanchor_714_714"><span class="label">[n]</span></a> Eden's State of Poor, vol. i. p. 51.</p></div> + +<div class="footnote"><p><a name="Footnote_715_715" id="Footnote_715_715"></a><a href="#FNanchor_715_715"><span class="label">[o]</span></a> Sir F. Eden, whose table of prices, though capable of some +improvement, is perhaps the best that has appeared, would, I think, have +acted better, by omitting all references to mere historians, and relying +entirely on regular documents. I do not however include local histories, +such as the Annals of Dunstaple, when they record the market-prices of +their neighbourhood, in respect of which the book last mentioned is almost +in the nature of a register. Dr. Whitaker remarks the inexactness of +Stowe, who says that wheat sold in London, <small>A.D.</small> 1514, at 20<i>s.</i> a quarter: +whereas it appears to have been at 9<i>s.</i> in Lancashire, where it was +always dearer than in the metropolis. Hist. of Whalley, p. 97. It is an +odd mistake, into which Sir F. Eden has fallen, when he asserts and argues +on the supposition, that the price of wheat fluctuated in the thirteenth +century, from 1<i>s.</i> to 6<i>l.</i> 8<i>s.</i> a quarter, vol. i. p. 18. Certainly, if +any chronicler had mentioned such a price as the latter, equivalent to +150<i>l.</i> at present, we should either suppose that his text was corrupt, or +reject it as an absurd exaggeration. But, in fact, the author has, through +haste, mistaken 6<i>s.</i> 8<i>d.</i> for 6<i>l.</i> 8<i>s.</i>, as will appear by referring +to his own table of prices, where it is set down rightly. It is observed +by Mr. Macpherson, a very competent judge, that the arithmetical +statements of the best historians of the middle ages are seldom correct, +owing partly to their neglect of examination, and partly to blunders of +transcribers. Annals of Commerce, vol. i, p. 423.</p></div> + +<div class="footnote"><p><a name="Footnote_716_716" id="Footnote_716_716"></a><a href="#FNanchor_716_716"><span class="label">[p]</span></a> The table of comparative values by Sir George Shuckburgh +(Philosoph. Transact. for 1798, p. 196) is strangely incompatible with +every result to which my own reading has led me. It is the hasty attempt +of a man accustomed to different studies; and one can neither pardon the +presumption of obtruding such a slovenly performance on a subject where +the utmost diligence was required, nor the affectation with which he +apologizes for "descending from the dignity of philosophy."</p></div> + +<div class="footnote"><p><a name="Footnote_717_717" id="Footnote_717_717"></a><a href="#FNanchor_717_717"><span class="label">[q]</span></a> M. Guérard, editor of "Paris sous Philippe le Bel," in the +Documens Inédits (1841, p. 365), after a comparison 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 +(Mém. de l'Acad. des Inscript. Nouvelle Série, 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.</p></div> + +<div class="footnote"><p><a name="Footnote_718_718" id="Footnote_718_718"></a><a href="#FNanchor_718_718"><span class="label">[r]</span></a> Blomefield's History of Norfolk, and Sir J. Cullum's of +Hawsted, furnish several pieces even at this early period. Most of them +are collected by Sir F. Eden. Fleta reckons 4<i>s.</i> the average price of a +quarter of wheat in his time. 1. ii. c. 84. This writer has a digression +on agriculture, whence however less is to be collected than we should +expect.</p></div> + +<div class="footnote"><p><a name="Footnote_719_719" id="Footnote_719_719"></a><a href="#FNanchor_719_719"><span class="label">[s]</span></a> The fluctuations of price have unfortunately been so great +of late years, that it is almost as difficult to determine one side of our +equation as the other. Any reader, however, has it in his power to correct +my proportions, and adopt a greater or less multiple, according to his own +estimate of current prices, or the changes that may take place from the +time when this is written [1816].</p></div> + +<div class="footnote"><p><a name="Footnote_720_720" id="Footnote_720_720"></a><a href="#FNanchor_720_720"><span class="label">[t]</span></a> I have sometimes been surprised at the facility with which +prices adjusted themselves to the quantity of silver contained in the +current coin, in ages which appear too ignorant and too little commercial +for the application of this mercantile principle. But the extensive +dealings of the Jewish and Lombard usurers, who had many debtors in almost +all parts of the country, would of itself introduce a knowledge, that +silver, not its stamp, was the measure, of value. I have mentioned in +another place (vol. i. p. 211) the heavy discontents excited by this +debasement of the coin in France; but the more gradual enhancement of +nominal prices in England seems to have prevented any strong +manifestations of a similar spirit at the successive reductions in value +which the coin experienced from the year 1300. The connexion however +between commodities and silver was well understood. Wykes, an annalist of +Edward I.'s age, tells us, that the Jews clipped our coin, till it +retained hardly half its due weight, the effect of which was a general +enhancement of prices, and decline of foreign trade: Mercatores +transmarini cum mercimoniis suis regnum Angliæ minus solito frequentabant; +necnon quod omnimoda venalium genera incomparabiliter solito fuerunt +cariora. 2 Gale, XV Script. p. 107. Another chronicler of the same age +complains of bad foreign money, alloyed with copper; nec erat in quatuor +aut quinque ex iis pondus unius denarii argentii.... Eratque pessimum +sæculum pro tali monetâ, et fiebant commutationes plurimæ in emptione et +venditione rerum. Edward, as the historian informs us, bought in this bad +money at a rate below its value, in order to make a profit; and fined some +persons who interfered with his traffic. W. Hemingford, ad ann. 1299.</p></div> + +<div class="footnote"><p><a name="Footnote_721_721" id="Footnote_721_721"></a><a href="#FNanchor_721_721"><span class="label">[u]</span></a> These will chiefly be found in Sir F. Eden's table of +prices; the following may be added from the account-book of a convent +between 1415 and 1425. Wheat varied from 4<i>s.</i> to 6<i>s.</i>—barley from 3<i>s.</i> +2<i>d.</i> to 4<i>s.</i> 10<i>d.</i>—oats from 1<i>s.</i> 8<i>d.</i> to 2<i>s.</i> 4<i>d.</i>—oxen from +12<i>s.</i> to 16<i>s.</i>—sheep from 1<i>s.</i> 2<i>d.</i> to 1<i>s.</i> 4<i>d.</i>—butter 3/4<i>d.</i> +per lb.—eggs twenty-five for 1<i>d.</i>—cheese 1/2<i>d.</i> per lb. Lansdowne +MSS., vol. i. No. 28 and 29. These prices do not always agree with those +given in other documents of equal authority in the same period; but the +value of provisions varied in different counties, and still more so in +different seasons of the year.</p></div> + +<div class="footnote"><p><a name="Footnote_722_722" id="Footnote_722_722"></a><a href="#FNanchor_722_722"><span class="label">[x]</span></a> I insert the following comparative table of English money +from Sir Frederick Eden. The unit, or present value, refers of course to +that of the shilling before the last coinage, which reduced it. +</p> + +<div class='centered table'> +<table border="0" cellpadding="3" width="65%" cellspacing="0" summary="MONEY_COMPARISON"> +<tr> + <td style="border-top: 1px solid black; border-left: 1px solid black;"> </td> + <td style="border-top: 1px solid black;"> </td> + <td style="border-top: 1px solid black; border-left: 1px solid black; border-bottom: 1px solid black;">Value of pound sterling,<br /> present money.</td> + <td class="top" style="border-top: 1px solid black; border-right: 1px solid black; border-left: 1px solid black; border-bottom: 1px solid black;">Proportion.</td> +</tr> +<tr> + <td style="border-left: 1px solid black;"> </td> + <td> </td> + <td class="pad" style="border-left: 1px solid black;">£. s. d.</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;"> </td> +</tr> +<tr> + <td style="border-left: 1px solid black;">Conquest,</td> + <td>1066</td> + <td class="pad" style="border-left: 1px solid black;">2 18 1½</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">2·906</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">28 E. I.</td> + <td>1300</td> + <td class="pad" style="border-left: 1px solid black;">2 17 5</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">2·871</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">18 E. III.</td> + <td>1344</td> + <td class="pad" style="border-left: 1px solid black;">2 12 5¼</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">2·622</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">20 E. III.</td> + <td>1346</td> + <td class="pad" style="border-left: 1px solid black;">2 11 8</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">2·583</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">27 E. III.</td> + <td>1353</td> + <td class="pad" style="border-left: 1px solid black;">2 6 6</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">2·325</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">13 H. IV.</td> + <td>1412</td> + <td class="pad" style="border-left: 1px solid black;">1 18 9</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">1·937</td> +</tr> +<tr> + <td style="border-left: 1px solid black;"> 4 E. IV.</td> + <td>1464</td> + <td class="pad" style="border-left: 1px solid black;">1 11 0</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">0 1·55</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">18 H. VIII.</td> + <td>1527</td> + <td class="pad" style="border-left: 1px solid black;">1 7 6¾</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">1·378</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">34 H. VIII.</td> + <td>1543</td> + <td class="pad" style="border-left: 1px solid black;">1 3 3¼</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">1·163</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">36 H. VIII.</td> + <td>1545</td> + <td class="pad" style="border-left: 1px solid black;">0 13 11½</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">0·698</td> +</tr> +<tr> + <td style="border-left: 1px solid black;">37 H. VIII.</td> + <td>1546</td> + <td class="pad" style="border-left: 1px solid black;">0 9 3¾</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">0·466</td> +</tr> +<tr> + <td style="border-left: 1px solid black;"> 5 E. VI.</td> + <td>1551</td> + <td class="pad" style="border-left: 1px solid black;">0 4 7¾</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">0·232</td> +</tr> +<tr> + <td style="border-left: 1px solid black;"> 6 E. VI.</td> + <td>1552</td> + <td class="pad" style="border-left: 1px solid black;">1 0 6¾</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">1·028</td> +</tr> +<tr> + <td style="border-left: 1px solid black;"> 1 Mary</td> + <td>1553</td> + <td class="pad" style="border-left: 1px solid black;">1 0 5¾</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">1·024</td> +</tr> +<tr> + <td style="border-left: 1px solid black;"> 2 Eliz.</td> + <td>1560</td> + <td class="pad" style="border-left: 1px solid black;">1 0 8</td> + <td style="border-left: 1px solid black; border-right: 1px solid black;">1·033</td> +</tr> +<tr> + <td style="border-left: 1px solid black; border-bottom: 1px solid black;">43 Eliz.</td> + <td style="border-bottom: 1px solid black;">1601</td> + <td class="pad" style="border-bottom: 1px solid black; border-left: 1px solid black;">1 0 0</td> + <td style="border-bottom: 1px solid black; border-left: 1px solid black; border-right: 1px solid black;">1·000</td> +</tr> +</table></div> +</div> + +<div class="footnote"><p><a name="Footnote_723_723" id="Footnote_723_723"></a><a href="#FNanchor_723_723"><span class="label">[y]</span></a> Macpherson's Annals, p. 424, from Matt. Paris.</p></div> + +<div class="footnote"><p><a name="Footnote_724_724" id="Footnote_724_724"></a><a href="#FNanchor_724_724"><span class="label">[z]</span></a> Difference of Limited and Absolute Monarchy, p. 133.</p></div> + +<div class="footnote"><p><a name="Footnote_725_725" id="Footnote_725_725"></a><a href="#FNanchor_725_725"><span class="label">[a]</span></a> Hist. of Hawsted, p. 141.</p></div> + +<div class="footnote"><p><a name="Footnote_726_726" id="Footnote_726_726"></a><a href="#FNanchor_726_726"><span class="label">[b]</span></a> Nicholls's Illustrations, p. 2. One fact of this class did, +I own, stagger me. The great earl of Warwick writes to a private +gentleman, Sir Thomas Tudenham, begging the loan of ten or twenty pounds +to make up a sum he had to pay. Paston Letters, vol. i. p. 84. What way +shall we make this commensurate to the present value of money? But an +ingenious friend suggested, what I do not question is the case, that this +was one of many letters addressed to the adherents of Warwick, in order to +raise by their contributions a considerable sum. It is curious, in this +light, as an illustration of manners.</p></div> + +<div class="footnote"><p><a name="Footnote_727_727" id="Footnote_727_727"></a><a href="#FNanchor_727_727"><span class="label">[c]</span></a> Paston Letters, vol. i. p. 224; Cullum's Hawsted, p. 182.</p></div> + +<div class="footnote"><p><a name="Footnote_728_728" id="Footnote_728_728"></a><a href="#FNanchor_728_728"><span class="label">[d]</span></a> Hist. of Hawsted, p. 228.</p></div> + +<div class="footnote"><p><a name="Footnote_729_729" id="Footnote_729_729"></a><a href="#FNanchor_729_729"><span class="label">[e]</span></a> Mr Malthus observes on this that I "have overlooked the +distinction between the reigns of Edw. III. and Henry VIII. (perhaps a +misprint for VI.), 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 III., which appears to have been effected by the statute of +labourers (25 E. III.), 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 III., 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 [1816], the labourer could rarely have +purchased more than a peck with a day's labour, and frequently 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 himself, 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, account more than any other assignable cause for those in real +wages of labour, which do not regulate themselves very promptly by that +standard, especially when coercive measures are adopted to restrain them.</p></div> + +<div class="footnote"><p><a name="Footnote_730_730" id="Footnote_730_730"></a><a href="#FNanchor_730_730"><span class="label">[f]</span></a> See these rates more at length in Eden's State of the Poor, +vol. i. p. 32, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_731_731" id="Footnote_731_731"></a><a href="#FNanchor_731_731"><span class="label">[g]</span></a> In the Archæologia, vol. xviii. p. 281, we have a bailiffs +account of expenses in 1387, where it appears that a ploughman had +sixpence a week, and five shillings a year, with an allowance of diet; +which seems to have been only pottage. These wages are certainly not more +than fifteen shillings a week in present value [1816]; which, though +materially above the average rate of agricultural labour, is less so than +some of the statutes would lead us to expect. Other facts may be found of +a similar nature.</p></div> + +<div class="footnote"><p><a name="Footnote_732_732" id="Footnote_732_732"></a><a href="#FNanchor_732_732"><span class="label">[h]</span></a> See that singular book, Piers Plowman's Vision, p. 145 +(Whitaker's edition), for the different modes of living before and after +harvest. The passage may be found in Ellis's Specimens, vol. i. p. 151.</p></div> + +<div class="footnote"><p><a name="Footnote_733_733" id="Footnote_733_733"></a><a href="#FNanchor_733_733"><span class="label">[i]</span></a> Fortescue's Difference between Abs. and Lim. Monarchy, p. +19. The passages in Fortescue, which bear on his favourite theme, the +liberty and consequent happiness of the English, are very important, and +triumphantly refute those superficial writers who would make us believe +that they were a set of beggarly slaves.</p></div> + +<div class="footnote"><p><a name="Footnote_734_734" id="Footnote_734_734"></a><a href="#FNanchor_734_734"><span class="label">[k]</span></a> Besides the books to which I have occasionally referred, +Mr. Ellis's Specimens of English Poetry, vol. i. chap. 13, contain a short +digression, but from well-selected materials, on the private life of the +English in the middling and lower ranks about the fifteenth century. [I +leave the foregoing pages with little alteration, but they may probably +contain expressions which I would not now adopt. 1850.]</p></div> + +<div class="footnote"><p><a name="Footnote_735_735" id="Footnote_735_735"></a><a href="#FNanchor_735_735"><span class="label">[m]</span></a> Besides the German historians, see Du Cange, v. Ganerbium, +for the confederacies in the empire, and Hermandatum for those in Castile. +These appear to have been merely voluntary associations, and perhaps +directed as much towards the prevention of robbery, as of what is strictly +called private war. But no man can easily distinguish offensive war from +robbery except by its scale; and where this was so considerably reduced, +the two modes of injury almost coincide. In Aragon, there was a distinct +institution for the maintenance of peace, the kingdom being divided into +unions or juntas, with a chief officer, called Suprajunctarius, at their +head. Du Cange, v. Juncta.</p></div> + +<div class="footnote"><p><a name="Footnote_736_736" id="Footnote_736_736"></a><a href="#FNanchor_736_736"><span class="label">[n]</span></a> Henault, Abrégé Chronol. à l'an. 1255. The institutions of +Louis IX. and his successors relating to police form a part, though rather +a smaller part than we should expect from the title, of an immense work, +replete with miscellaneous information, by Delamare, Traité de la Police, +4 vols. in folio. A sketch of them may be found in Velly, t. v. p. 349, t. +xviii. p. 437.</p></div> + +<div class="footnote"><p><a name="Footnote_737_737" id="Footnote_737_737"></a><a href="#FNanchor_737_737"><span class="label">[o]</span></a> Velly, t. v. p. 162, where this incident is told in an +interesting manner from William de Nangis. Boulainvilliers has taken an +extraordinary view of the king's behaviour. Hist. de l'Ancien +Gouvernement, t. ii. p. 26. In his eyes princes and plebeians were made to +be the slaves of a feudal aristocracy.</p></div> + +<div class="footnote"><p><a name="Footnote_738_738" id="Footnote_738_738"></a><a href="#FNanchor_738_738"><span class="label">[p]</span></a> Velly, t. viii. p. 132.</p></div> + +<div class="footnote"><p><a name="Footnote_739_739" id="Footnote_739_739"></a><a href="#FNanchor_739_739"><span class="label">[q]</span></a> Id. xviii. p. 437.</p></div> + +<div class="footnote"><p><a name="Footnote_740_740" id="Footnote_740_740"></a><a href="#FNanchor_740_740"><span class="label">[r]</span></a> Fleury, 3<sup>me</sup> Discours sur l'Hist. Ecclés.</p></div> + +<div class="footnote"><p><a name="Footnote_741_741" id="Footnote_741_741"></a><a href="#FNanchor_741_741"><span class="label">[s]</span></a> The most authentic account of the Paulicians is found in a +little treatise of Petrus Siculus, who lived about 870, under Basil the +Macedonian. He had been employed on an embassy to Tephrica, the principal +town of these heretics, so that he might easily be well informed; and, +though he is sufficiently bigoted, I do not see any reason to question the +general truth of his testimony, especially as it tallies so well with what +we learn of the predecessors and successors of the Paulicians. They had +rejected several of the Manichean doctrines, those, I believe, which were +borrowed from the Oriental, Gnostic, and Cabbalistic philosophy of +emanation; and therefore readily condemned Manes, +<span class="grk">προθύμως +αναθεματίζουσι +Μάνετα</span>. +But they retained his capital errors, so far as +regarded the principle of dualism, which he had taken from Zerdusht's +religion, and the consequences he had derived from it. Petrus Siculus +enumerates six Paulician heresies. 1. They maintained the existence of two +deities, the one evil, and the creator of this world; the other good, called +<span class="grk">πατὴρ +ἐπουράνιος</span>, +the author of that which is to come. 2. +They refused to worship the Virgin, and asserted that Christ brought his +body from heaven. 3. They rejected the Lord's Supper. 4. And the adoration +of the cross. 5. They denied the authority of the Old Testament, but +admitted the New, except the epistles of St. Peter, and, perhaps, the +Apocalypse. 6. They did not acknowledge the order of priests. +</p><p> +There seems every reason to suppose that the Paulicians, notwithstanding +their mistakes, were endowed with sincere and zealous piety, and studious +of the Scriptures. A Paulician woman asked a young man if he had read the +Gospels: he replied that laymen were not permitted to do so, but only the +clergy: +<span class="grk">οὐκ +ἐξεστιν +ἡμὶν +τοῖς +κοσμίκοις +οὖσι +ταῦτα +ἀναγινώσκειν, +ἐι μὴ τοῖς +ἱέρευσι +μόνοις</span>. +p. 57. A curious proof that the Scriptures +were already forbidden in the Greek church, which I am inclined to +believe, notwithstanding the leniency with which Protestant writers have +treated it, was always more corrupt and more intolerant than the Latin.</p></div> + +<div class="footnote"><p><a name="Footnote_742_742" id="Footnote_742_742"></a><a href="#FNanchor_742_742"><span class="label">[t]</span></a> Gibbon, c. 54. This chapter of the historian of the Decline +and Fall upon the Paulicians appears to be accurate, as well as luminous, +and is at least far superior to any modern work on the subject.</p></div> + +<div class="footnote"><p><a name="Footnote_743_743" id="Footnote_743_743"></a><a href="#FNanchor_743_743"><span class="label">[u]</span></a> It is generally agreed, that the Manicheans from Bulgaria +did not penetrate into the west of Europe before the year 1000; and they +seem to have been in small numbers till about 1140. We find them, however, +early in the eleventh century. Under the reign of Robert in 1007 several +heretics were burned at Orleans for tenets which are represented as +Manichean. Velly, t. ii. p. 307. These are said to have been imported from +Italy; and the heresy began to strike root in that country about the same +time. Muratori, Dissert. 60 (Antichità Italiane, t. iii. p. 304). The +Italian Manicheans were generally called Paterini, the meaning of which +word has never been explained. We find few traces of them in France at +this time; but about the beginning of the twelfth century, Guibert, bishop +of Soissons, describes the heretics of that city, who denied the reality +of the death and resurrection of Jesus Christ, and rejected the +sacraments. Hist. Littéraire de la France, t. x. p. 451. Before the middle +of that age, the Cathari, Henricians, Petrobussians, and others appear, +and the new opinions attracted universal notice. Some of these sectaries, +however, were not Manicheans. Mosheim, vol. iii. p. 116. +</p><p> +The acts of the inquisition of Toulouse, published by Limborch, from an +ancient manuscript, contain many additional proofs that the Albigenses +held the Manichean doctrine. Limborch himself will guide the reader to the +principal passages, p. 30. In fact, the proof of Manicheism among the +heretics of the twelfth century is so strong (for I have confined myself +to those of Languedoc, and could easily have brought other testimony as to +the Cathari), that I should never have thought of arguing the point, but +for the confidence of some modern ecclesiastical writers.—What can we +think of one who says, "It was not unusual to stigmatize new sects with +the odious name of Manichees, though I <i>know no evidence</i> that there were +any real remains of that ancient sect in the twelfth century"? Milner's +History of the Church, vol. iii. p. 380. Though this writer was by no +means learned enough for the task he undertook, he could not be ignorant +of facts related by Mosheim and other common historians. +</p><p> +I will only add, in order to obviate cavilling, that I use the word +Albigenses for the Manichean sects, without pretending to assert that +their doctrines prevailed more in the neighbourhood of Albi than +elsewhere. The main position is, that a large part of the Languedocian +heretics against whom the crusade was directed had imbibed the Paulician +opinions. If any one chooses rather to call them Catharists, it will not +be material.</p></div> + +<div class="footnote"><p><a name="Footnote_744_744" id="Footnote_744_744"></a><a href="#FNanchor_744_744"><span class="label">[x]</span></a> M. Paris, p. 267. (<small>A.D.</small> 1223.) Circa dies istos, hæretici +Albigenses constituerunt sibi Antipapam in finibus Bulgarorum, Croatiæ et +Dalmatiæ, nomine Bartholomæum, &c. We are assured by good authorities that +Bosnia was full of Manicheans and Arians as late as the middle of the +fifteenth century. Æneas Sylvius, p. 407; Spondanus, ad an. 1460; +Mosheim.</p></div> + +<div class="footnote"><p><a name="Footnote_745_745" id="Footnote_745_745"></a><a href="#FNanchor_745_745"><span class="label">[y]</span></a> There has been so prevalent a disposition among English +divines to vindicate not only the morals and sincerity, but the orthodoxy +of these Albigenses, that I deem it necessary to confirm what I have said +in the text by some authorities, especially as few readers have it in +their power to examine this very obscure subject. Petrus Monachus, a +Cistercian monk, who wrote a history of the crusades against the +Albigenses, gives an account of the tenets maintained by the different +heretical sects. Many of them asserted two principles or creative beings: +a good one for things invisible, an evil one for things visible; the +former author of the New Testament, the latter of the Old. Novum +Testamentum benigno deo, vetus vero maligno attribuebant; et illud omninò +repudiabant, præter quasdam auctoritates, quæ de Veteri Testamento Novo +sunt insertæ, quas ob Novi reverentiam Testamenti recipere dignum +æstimabant. A vast number of strange errors are imputed to them, most of +which are not mentioned by Alanus, a more dispassionate writer. Du Chesne, +Scriptores Francorum, t. v. p. 556. This Alanus de Insulis, whose treatise +against heretics, written about 1200, was published by Masson at Lyons, in +1612, has left, I think, conclusive evidence of the Manicheism of the +Albigenses. He states their argument upon every disputed point as fairly +as possible, though his refutation is of course more at length. It appears +that great discrepancies of opinion existed among these heretics, but the +general tenor of their doctrines is evidently Manichean. Aiunt hæretici +temporis nostri quod duo sunt principia rerum, principium lucis et +principium tenebrarum, &c. This opinion, strange as we may think it, was +supported by Scriptural texts; so insufficient is a mere acquaintance with +the sacred writings to secure unlearned and prejudiced minds from the +wildest perversions of their meaning! Some denied the reality of Christ's +body; others his being the Son of God; many the resurrection of the body; +some even of a future state. They asserted in general the Mosaic law to +have proceeded from the devil, proving this by the crimes committed during +its dispensation, and by the words of St. Paul, "the law entered that sin +might abound." They rejected infant baptism, but were divided as to the +reason; some saying that infants could not sin, and did not need baptism; +others, that they could not be saved without faith, and consequently that +it was useless. They held sin after baptism to be irremissible. It does +not appear that they rejected either of the sacraments. They laid great +stress upon the imposition of hands, which seems to have been their +distinctive rite. +</p><p> +One circumstance, which both Alanus and Robertus Monachus mention, and +which other authorities confirm, is their division into two classes; the +Perfect, and the Credentes, or Consolati, both of which appellations are +used. The former abstained from animal food, and from marriage, and led in +every respect an austere life. The latter were a kind of lay brethren, +living in a secular manner. This distinction is thoroughly Manichean, and +leaves no doubt as to the origin of the Albigenses. See Beausobre, Hist. +du Manichéisme, t. ii. p. 762 and 777. This candid writer represents the +early Manicheans as a harmless and austere set of enthusiasts, exactly +what the Paulicians and Albigenses appear to have been in succeeding ages. +As many calumnies were vented against one as the other. +</p><p> +The long battle as to the Manicheism 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 +termination; 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. +</p><p> +The chief 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 writers 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. +[1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_746_746" id="Footnote_746_746"></a><a href="#FNanchor_746_746"><span class="label">[z]</span></a> The contemporary writers seem uniformly to represent Waldo +as the founder of the Waldenses; and I am not aware that they refer the +locality of that sect to the valleys of Piedmont, between Exiles and +Pignerol (see Leger's map), which have so long been distinguished as the +native country of the Vaudois. In the acts of the Inquisition, we find +Waldenses, sive pauperes de Lugduno, used as equivalent terms; and it can +hardly be doubted that the poor men of Lyons were the disciples of Waldo. +Alanus, the second book of whose treatise against heretics is an attack +upon the Waldenses, expressly derives them from Waldo. Petrus Monachus +does the same. These seem strong authorities, as it is not easy to +perceive what advantage they could derive from misrepresentation. It has +been however a position zealously maintained by some modern writers of +respectable name, that the people of the valleys had preserved a pure +faith for several ages before the appearance of Waldo. I have read what is +advanced on this head by Leger (Histoire des Eglises Vaudoises) and by +Allix (Remarks on the Ecclesiastical History of the Churches of Piedmont), +but without finding any sufficient proof for this supposition, which +nevertheless is not to be rejected as absolutely improbable. Their best +argument is deduced from an ancient poem called La Noble Loiçon, an +original manuscript of which is in the public library of Cambridge, and +another in that of Geneva. This poem is alleged to bear date in 1100, more +than half a century before the appearance of Waldo. But the lines that +contain the date are loosely expressed, and may very well suit with any +epoch before the termination of the twelfth century. +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Ben ha mil et cent ans compli entierament,<br /></span> +<span class="i0">Che fu scritta loro que sen al derier temp.<br /></span> +<span class="i0"> <br /></span> +<span class="i0">Eleven hundred years are now gone and past,<br /></span> +<span class="i0">Since thus it was written; These times are the last.<br /></span> +</div></div> +<p> +See Literature of Europe in 15th, 16th, and 17th Centuries, chap. 1, § 33. +</p><p> +I have found however a passage in a late work, which remarkably +illustrates the antiquity of Alpine protestantism, if we may depend on the +date it assigns to the quotation. Mr. Planta's History of Switzerland, p. +93, 4to. edit., contains the following note:—"A curious passage, +singularly descriptive of the character of the Swiss, has lately been +discovered in a MS. chronicle of the Abbey of Corvey, which appears to +have been written about the beginning of the twelfth century. Religionem +nostram, et omnium Latinæ ecclesiæ Christianorum fidem, laici ex Suaviâ, +Suiciâ, et Bavariâ humiliare voluerunt; homines seducti ab antiquâ +progenie simplicium hominum, qui Alpes et viciniam habitant, et semper +amant antiqua. In Suaviam, Bavariam et Italiam borealem sæpe intrant +illorum (ex Suiciâ) mercatores, qui biblia ediscunt memoriter, et ritus +ecclesiæ aversantur, quos credunt esse novos. Nolunt imagines venerari, +reliquias sanctorum aversantur, olera comedunt, rarò masticantes carnem, +alii nunquam. Appellamus eos idcircò Manichæos. Horum quidam ab Hungariâ +ad eos convenerunt, &c." It is a pity that the quotation has been broken +off, as it might have illustrated the connexion of the Bulgarians with +these sectaries.</p></div> + +<div class="footnote"><p><a name="Footnote_747_747" id="Footnote_747_747"></a><a href="#FNanchor_747_747"><span class="label">[a]</span></a> The Waldenses were always considered as much less erroneous +in their tenets than the Albigenses, or Manicheans. Erant præterea alii +hæretici, says Robert Monachus in the passage above quoted, qui Waldenses +dicebantur, a quodam Waldio nomine Lugdunensi. Hi quidem mali erant, sed +comparatione aliorum hæreticorum longè minus perversi; in multis enim +nobiscum conveniebant, in quibusdam dissentiebant. The only faults he +seems to impute to them are the denial of the lawfulness of oaths and +capital punishment, and the wearing wooden shoes. By this peculiarity of +wooden sandals (sabots) they got the name of Sabbatati or Insabbatati. (Du +Cange.) William du Puy, another historian of the same time, makes a +similar distinction. Erant quidam Ariani, quidam Manichæi, quidam etiam +Waldenses sive Lugdunenses, qui licet inter se dissidentes, omnes tamen in +animarum perniciem contra fidem Catholicam conspirabant; et illi quidem +Waldenses contra alios acutissimè disputant. Du Chesne, t. v. p. 666. +Alanus, in his second book, where he treats of the Waldenses, charges them +principally with disregarding the authority of the church and preaching +without a regular mission. It is evident however from the acts of the +Inquisition, that they denied the existence of purgatory; and I should +suppose that, even at that time, they had thrown off most of the popish +system of doctrine, which is so nearly connected with clerical wealth and +power. The difference made in these records between the Waldenses and the +Manichean sects shows that the imputations cast upon the latter were not +indiscriminate calumnies. See Limborch, p. 201 and 228. +</p><p> +The History of Languedoc, by Vaissette and Vich, contains a very good +account of the sectaries in that country; but I have not immediate access +to the book. I believe that proof will be found of the distinction between +the Waldenses and Albigenses in t. iii. p. 446. But I am satisfied that no +one who has looked at the original authorities will dispute the +proposition. These Benedictine historians represent the Henricians, an +early set of reformers, condemned by the council of Lombez, in 1165, as +Manichees. Mosheim considers them as of the Vaudois school. They appeared +some time before Waldo.</p></div> + +<div class="footnote"><p><a name="Footnote_748_748" id="Footnote_748_748"></a><a href="#FNanchor_748_748"><span class="label">[b]</span></a> The general testimony of their enemies to the purity of +morals among the Languedocian and Lyonese sectaries is abundantly +sufficient. One Regnier, who had lived among them, and became afterwards +an inquisitor, does them justice in this respect. See Turner's History of +England for several other proofs of this. It must be confessed that the +Catharists are not free from the imputation of promiscuous licentiousness. +But whether this was a mere calumny, or partly founded upon truth, I +cannot determine. Their prototypes, the ancient Gnostics, are said to have +been divided into two parties, the austere and the relaxed; both +condemning marriage for opposite reasons. Alanus, in the book above +quoted, seems to have taken up several vulgar prejudices against the +Cathari. He gives an etymology of their name à catto; quia osculantur +posteriora catti; in cujus specie, ut aiunt, appareret iis Lucifer, p. +146. This notable charge was brought afterwards against the Templars. +</p><p> +As to the Waldenses, their innocence is out of all doubt. No book can be +written in a more edifying manner than La Noble Loiçon, of which large +extracts are given by Leger, in his Histoire des Eglises Vaudoises. Four +lines are quoted by Voltaire (Hist. Universelle, c. 69), as a specimen of +the Provençal language, though they belong rather to the patois of the +valleys. But as he has not copied them rightly, and as they illustrate the +subject of this note, I shall repeat them here from Leger, p. 28. +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Que sel se troba alcun bon que vollia amar Dio e temer Jeshu Xrist,<br /></span> +<span class="i0">Que non vollia maudire, ni jura, ni mentir,<br /></span> +<span class="i0">Ni avoutrar, ni aucire, ni penre de l'autruy,<br /></span> +<span class="i0">Ni venjar se de li sio ennemie,<br /></span> +<span class="i0">Illi dison quel es Vaudes e degne de murir.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_749_749" id="Footnote_749_749"></a><a href="#FNanchor_749_749"><span class="label">[c]</span></a> It would be difficult to specify all the dispersed +authorities which attest the existence of the sects derived from the +Waldenses and Paulicians in the twelfth, thirteenth, and fourteenth +centuries. Besides Mosheim, who has paid considerable attention to the +subject, I would mention some articles in Du Cange which supply gleanings; +namely, Beghardi, Bulgari, Lollardi, Paterini, Picardi, Pifli, Populicani. +</p><p> +Upon the subject of the Waldenses and Albigenses generally, I have +borrowed some light from Mr. Turner's History of England, vol. ii. p. 377, +393. This learned writer has seen some books that have not fallen into my +way; and I am indebted to him for a knowledge of Alanus's treatise, which +I have since read. At the same time I must observe, that Mr. Turner has +not perceived the essential distinction between the two leading sects. +</p><p> +The name of Albigenses does not frequently occur after the middle of the +thirteenth century; but the Waldenses, or sects bearing that denomination, +were dispersed over Europe. As a term of different reproach was derived +from the word Bulgarian, so <i>vauderie</i>, or the profession of the Vaudois, +was sometimes applied to witchcraft. Thus in the proceedings of the +Chambre Brulante at Arras, in 1459, against persons accused of sorcery, +their crime is denominated <i>vauderie</i>. The fullest account of this +remarkable story is found in the Memoirs of Du Clercq, first published in +the general collection of Historical Memoirs, t. ix. p. 430, 471. It +exhibits a complete parallel to the events that happened in 1682 at Salem +in New England. A few obscure persons were accused of <i>vauderie</i>, or +witchcraft. After their condemnation, which was founded on confessions +obtained by torture, and afterwards retracted, an epidemical contagion of +superstitious dread was diffused all around. Numbers were arrested, burned +alive by order of a tribunal instituted for the detection of this offence, +or detained in prison; so that no person in Arras thought himself safe. It +was believed that many were accused for the sake of their possessions, +which were confiscated to the use of the church. At length the duke of +Burgundy interfered, and put a stop to the persecutions. The whole +narrative in Du Clercq is interesting, as a curious document of the +tyranny of bigots, and of the facility with which it is turned to private +ends. +</p><p> +To return to the Waldenses: the principal course of their emigration is +said to have been into Bohemia, where, in the fifteenth century, the name +was borne by one of the seceding sects. By their profession of faith, +presented to Ladislaus Posthumus, it appears that they acknowledged the +corporal presence in the eucharist, but rejected purgatory and other +Romish doctrines. See it in the Fasciculus Rerum expetendarum et +fugiendarum, a collection of treatises illustrating the origin of the +Reformation, originally published at Cologne in 1535, and reprinted at +London in 1690.</p></div> + +<div class="footnote"><p><a name="Footnote_750_750" id="Footnote_750_750"></a><a href="#FNanchor_750_750"><span class="label">[d]</span></a> Opera Innocent III. p. 468, 537. A translation of the Bible +had been made by direction of Peter Waldo; but whether this used in +Lorrain was the same, does not appear. Metz was full of the Vaudois, as we +find by other authorities.</p></div> + +<div class="footnote"><p><a name="Footnote_751_751" id="Footnote_751_751"></a><a href="#FNanchor_751_751"><span class="label">[e]</span></a> Schilteri Thesaurus Antiq. Teutonicorum.</p></div> + +<div class="footnote"><p><a name="Footnote_752_752" id="Footnote_752_752"></a><a href="#FNanchor_752_752"><span class="label">[f]</span></a> Mém. de l'Acad. des Inscript. t. xvii. p. 720.</p></div> + +<div class="footnote"><p><a name="Footnote_753_753" id="Footnote_753_753"></a><a href="#FNanchor_753_753"><span class="label">[g]</span></a> 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 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 Ang.-Sax. Church, i. 307. But he +allows that the Epistle and Gospel were read in English, which implies an +authorized translation. And we may adopt in a great measure Lappenberg's +proposition, which follows the above passage: "The numerous versions and +paraphrases of the Old and New Testament made those books known to the +laity and more familiar to the clergy." +</p><p> +We have seen a little above, that the laity were not permitted 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 Inédits, 1841. 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 Provençal by the Waldensian or other heretics were +made in the twelfth; several manuscripts of them are in existence, and one +has been published by Dr. Gilly. [1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_754_754" id="Footnote_754_754"></a><a href="#FNanchor_754_754"><span class="label">[h]</span></a> The application of the visions of the Apocalypse to the +corruptions of Rome has commonly been said to have been first made by the +Franciscan seceders. But it may be traced higher, and is remarkably +pointed out by Dante. +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Di voi pastor s' accorse 'l Vangelista,<br /></span> +<span class="i0">Quando colei, chi siede sovra l'acque,<br /></span> +<span class="i0">Puttaneggiar co' regi a lui fu vista.<br /></span> +<span class="i0"> <br /></span> +<span class="i0">Inferno, cant. xix.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_755_755" id="Footnote_755_755"></a><a href="#FNanchor_755_755"><span class="label">[i]</span></a> Walsingham, p. 238; Lewis's Life of Pecock, p. 65. Bishop +Pecock's answer to the Lollards of his time contains passages well worthy +of Hooker, both for weight of matter and dignity of style, setting forth +the necessity and importance of "the moral law of kinde, or moral +philosophie," in opposition to those who derive all morality from +revelation. +</p><p> +This great man fell afterwards under the displeasure of the church for +propositions, not indeed heretical, but repugnant to her scheme of +spiritual power. He asserted, indirectly, the right of private judgment, +and wrote on theological subjects in English, which gave much offence. In +fact, Pecock seems to have hoped that his acute reasoning would convince +the people, without requiring an implicit faith. But he greatly +misunderstood the principle of an infallible church. Lewis's Life of +Pecock does justice to his character, which, I need not say, is unfairly +represented by such historians as Collier, and such antiquaries as Thomas +Hearne.</p></div> + +<div class="footnote"><p><a name="Footnote_756_756" id="Footnote_756_756"></a><a href="#FNanchor_756_756"><span class="label">[k]</span></a> Lewis's Life of Wicliffe, p. 115; Lenfant, Hist. du Concile +de Constance, t. i. p. 213.</p></div> + +<div class="footnote"><p><a name="Footnote_757_757" id="Footnote_757_757"></a><a href="#FNanchor_757_757"><span class="label">[m]</span></a> Huss does not appear to have rejected any of the peculiar +tenets of popery. Lenfant, p. 414. He embraced, like Wicliffe, the +predestinarian system of Augustin, without pausing at any of those +inferences, apparently deducible from it, which, in the heads of +enthusiasts, may produce such extensive mischief. These were maintained by +Huss (id. p. 328), though not perhaps so crudely as by Luther. Everything +relative to the history and doctrine of Huss and his followers will be +found in Lenfant's three works on the councils of Pisa, Constance, and +Basle.</p></div> + +<div class="footnote"><p><a name="Footnote_758_758" id="Footnote_758_758"></a><a href="#FNanchor_758_758"><span class="label">[n]</span></a> Lenfant, Hist. de la Guerre des Hussites et du Concile de +Basle; Schmidt, Hist. des Allemands, t. v.</p></div> + +<div class="footnote"><p><a name="Footnote_759_759" id="Footnote_759_759"></a><a href="#FNanchor_759_759"><span class="label">[o]</span></a> Nihil neque publicæ neque privatæ rei nisi armati agunt. +Sed arma sumere non ante cuiquam moris, quàm civitas suffecturum +probaverit. Tum in ipso concilio, vel principum aliquis, vel pater, vel +propinquus, scuto frameâque juvenem ornant; hæc apud eos toga, hic primus +juventæ honos; ante hoc domûs pars videntur, mox reipublicæ. De Moribus +German. c. 13.</p></div> + +<div class="footnote"><p><a name="Footnote_760_760" id="Footnote_760_760"></a><a href="#FNanchor_760_760"><span class="label">[p]</span></a> William of Malmsbury says that Alfred conferred knighthood +on Athelstan, donatum chlamyde coccineâ, gemmato balteo, ense Saxonico cum +vaginâ aureâ. 1. ii. c. 6. St. Palaye (Mémoires sur la Chevalerie, p. 2) +mentions other instances; which may also be found in Du Cange's Glossary, +v. Arma, and in his 22nd dissertation on Joinville.</p></div> + +<div class="footnote"><p><a name="Footnote_761_761" id="Footnote_761_761"></a><a href="#FNanchor_761_761"><span class="label">[q]</span></a> Comites et vassalli nostri qui beneficia habere noscuntur, +et <i>caballarii</i> omnes ad placitum nostrum veniant bene preparati. +Capitularia, <small>A.D.</small> 807, in Baluze, t. i. p. 460.</p></div> + +<div class="footnote"><p><a name="Footnote_762_762" id="Footnote_762_762"></a><a href="#FNanchor_762_762"><span class="label">[r]</span></a> We must take for this the more favourable representations +of the Indian nations. A deteriorating intercourse with Europeans, or a +race of European extraction, has tended to efface those virtues which +possibly were rather exaggerated by earlier writers.</p></div> + +<div class="footnote"><p><a name="Footnote_763_763" id="Footnote_763_763"></a><a href="#FNanchor_763_763"><span class="label">[s]</span></a> Since this passage was written, I have found a parallel +drawn by Mr. Sharon Turner, in his valuable History of England, between +Achilles and Richard Cœur de Lion; the superior justness of which I +readily acknowledge. The real hero does not indeed excite so much interest +in me as the poetical; but the marks of resemblance are very striking, +whether we consider their passions, their talents, their virtues, their +vices, or the waste of their heroism. +</p><p> +The two principal persons in the Iliad, if I may digress into the +observation, appear to me representatives of the heroic character in its +two leading varieties; of the energy which has its sole principle, of +action within itself, and of that which borrows its impulse from external +relations; of the spirit of honour, in short, and of patriotism. As every +sentiment of Achilles is independent and self-supported, so those of +Hector all bear reference to his kindred and his country. The ardour of +the one might have been extinguished for want of nourishment in Thessaly; +but that of the other might, we fancy, have never been kindled but for the +dangers of Troy. Peace could have brought no delight to the one but from +the memory of war; war had no alleviation to the other but from the images +of peace. Compare, for example, the two speeches, beginning Il. Z. 441, +and Il. II. 49; or rather compare the two characters throughout the Iliad. +So wonderfully were those two great springs of human sympathy, variously +interesting according to the diversity of our tempers, first touched by +that ancient patriarch, +</p> +<div class="poem"><div class="stanza"> +<span class="i2">à quo, ceu fonte perenni,<br /></span> +<span class="i0">Vatum Pieriis ora rigantur aquis.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_764_764" id="Footnote_764_764"></a><a href="#FNanchor_764_764"><span class="label">[t]</span></a> Ingulfus, in Gale, XV Scriptores, t. i. p. 70. William +Rufus, however, was knighted by Archbishop Lanfranc, which looks as if the +ceremony was not absolutely repugnant to the Norman practice.</p></div> + +<div class="footnote"><p><a name="Footnote_765_765" id="Footnote_765_765"></a><a href="#FNanchor_765_765"><span class="label">[u]</span></a> Du Cange, v. Miles, and 22nd Dissertation on Joinville, St. +Palaye, Mém. sur la Chevalerie, part ii. A curious original illustration +of this, as well as of other chivalrous principles, will be found in +l'Ordene de Chevalerie, a long metrical romance published in Barbazan's +Fabliaux, t. i. p. 59 (edit. 1808).</p></div> + +<div class="footnote"><p><a name="Footnote_766_766" id="Footnote_766_766"></a><a href="#FNanchor_766_766"><span class="label">[x]</span></a> Y eut huit cens chevaliers séant à table; et si n'y eust +celui qui n'eust une dame on une pucelle à son ecuelle. In Launcelot du +Lac, a lady, who was troubled with a jealous husband, complains that it +was a long time since a knight had eaten off her plate. Le Grand, t. i. p. +24.</p></div> + +<div class="footnote"><p><a name="Footnote_767_767" id="Footnote_767_767"></a><a href="#FNanchor_767_767"><span class="label">[y]</span></a> Le Grand, Fabliaux, t. iii. p. 438; St. Palaye, t. i. p. +41. I quote St. Palaye's Mémoires from the first edition in 1759, which is +not the best.</p></div> + +<div class="footnote"><p><a name="Footnote_768_768" id="Footnote_768_768"></a><a href="#FNanchor_768_768"><span class="label">[z]</span></a> Statuimus, quod omnis homo, sive miles sive alius, qui +iverit cum dominâ generosâ, salvus sit atque securus, nisi fuerit +homicida. De Marca, Marca Hispanica, p. 1428.</p></div> + +<div class="footnote"><p><a name="Footnote_769_769" id="Footnote_769_769"></a><a href="#FNanchor_769_769"><span class="label">[a]</span></a> Le Grand, t. i. p. 120; St. Palaye, t. i. p. 13, 134, 221; +Fabliaux, Romances, &c., passim.</p></div> + +<div class="footnote"><p><a name="Footnote_770_770" id="Footnote_770_770"></a><a href="#FNanchor_770_770"><span class="label">[b]</span></a> St. Palaye, p. 222.</p></div> + +<div class="footnote"><p><a name="Footnote_771_771" id="Footnote_771_771"></a><a href="#FNanchor_771_771"><span class="label">[c]</span></a> Froissart, p. 33.</p></div> + +<div class="footnote"><p><a name="Footnote_772_772" id="Footnote_772_772"></a><a href="#FNanchor_772_772"><span class="label">[d]</span></a> St. Palaye, p. 268.</p></div> + +<div class="footnote"><p><a name="Footnote_773_773" id="Footnote_773_773"></a><a href="#FNanchor_773_773"><span class="label">[e]</span></a> The romances will speak for themselves; and the character +of the Provençal morality may be collected from Millot, Hist. des +Troubadours, passim; and from Sismondi, Littérature du Midi, t. i. p. 179, +&c. See too St. Palaye, t. ii. p. 62 and 68.</p></div> + +<div class="footnote"><p><a name="Footnote_774_774" id="Footnote_774_774"></a><a href="#FNanchor_774_774"><span class="label">[f]</span></a> St. Palaye, part ii.</p></div> + +<div class="footnote"><p><a name="Footnote_775_775" id="Footnote_775_775"></a><a href="#FNanchor_775_775"><span class="label">[g]</span></a> Non laudem meruit, sed summæ potius opprobrium vilitatis; +nam idem facinus est putandum captum nobilem vel ignobilem offendere, vel +ferire, quàm gladio cædere cadaver. Rolandinus, in Script Rer. Ital. t. +viii. p. 351.</p></div> + +<div class="footnote"><p><a name="Footnote_776_776" id="Footnote_776_776"></a><a href="#FNanchor_776_776"><span class="label">[h]</span></a> Froissart, 1. i. c. 161. He remarks in another place that +all English and French gentlemen treat their prisoners well; not so the +Germans, who put them in fetters, in order to extort more money, c. 136.</p></div> + +<div class="footnote"><p><a name="Footnote_777_777" id="Footnote_777_777"></a><a href="#FNanchor_777_777"><span class="label">[i]</span></a> St Palaye, part iv. p. 312, 367, &c. Le Grand, Fabliaux, t. +i. p. 115, 167. It was the custom in Great Britain, (says the romance of +Perceforest, speaking of course in an imaginary history,) that noblemen +and ladies placed a helmet on the highest point of their castles, as a +sign that all persons of such rank travelling that road might boldly enter +their houses like their own. St. Palaye, p. 367.</p></div> + +<div class="footnote"><p><a name="Footnote_778_778" id="Footnote_778_778"></a><a href="#FNanchor_778_778"><span class="label">[k]</span></a> Fabliaux de Barbasan, t. i.</p></div> + +<div class="footnote"><p><a name="Footnote_779_779" id="Footnote_779_779"></a><a href="#FNanchor_779_779"><span class="label">[m]</span></a> Joinville in Collection des Mémoires, t. i. p. 43.</p></div> + +<div class="footnote"><p><a name="Footnote_780_780" id="Footnote_780_780"></a><a href="#FNanchor_780_780"><span class="label">[n]</span></a> St. Palaye, part i.</p></div> + +<div class="footnote"><p><a name="Footnote_781_781" id="Footnote_781_781"></a><a href="#FNanchor_781_781"><span class="label">[o]</span></a> Du Cange, 5<sup>me</sup> Dissertation sur Joinville. St. Palaye, t. +i. p. 87, 118. Le Grand, t. i. p. 14.</p></div> + +<div class="footnote"><p><a name="Footnote_782_782" id="Footnote_782_782"></a><a href="#FNanchor_782_782"><span class="label">[p]</span></a> St. Palaye, t. i. p. 191.</p></div> + +<div class="footnote"><p><a name="Footnote_783_783" id="Footnote_783_783"></a><a href="#FNanchor_783_783"><span class="label">[q]</span></a> Godfrey de Preuilly, a French knight, is said by several +contemporary writers to have invented tournaments; which must of course be +understood in a limited sense. The Germans ascribe them to Henry the +Fowler; but this, according to Du Cange, is on no authority. 6<sup>me</sup> +Dissertation sur Joinville.</p></div> + +<div class="footnote"><p><a name="Footnote_784_784" id="Footnote_784_784"></a><a href="#FNanchor_784_784"><span class="label">[r]</span></a> St. Palaye, part ii. and part iii. au commencement. Du +Cange, Dissert. 6 and 7: and Glossary, v. Torneamentum. Le Grand, +Fabliaux, t. i. p. 184.</p></div> + +<div class="footnote"><p><a name="Footnote_785_785" id="Footnote_785_785"></a><a href="#FNanchor_785_785"><span class="label">[s]</span></a> St. Palaye, part iv. Selden's Titles of Honour, p. 806. +There was not, however, so much distinction in England as in France.</p></div> + +<div class="footnote"><p><a name="Footnote_786_786" id="Footnote_786_786"></a><a href="#FNanchor_786_786"><span class="label">[t]</span></a> St. Palaye, vol. i. p. 70, has forgotten to make this +distinction. It is, however, capable of abundant proof. Gunther, in his +poem called Ligurinus, observes of the Milanese republic: +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Quoslibet ex humili vulgo, quod Gallia fœdum<br /></span> +<span class="i0">Judicat, accingi gladio concedit equestri.<br /></span> +</div></div> +<p> +Otho of Frisingen expresses the same in prose. It is said, in the +Establishments of St. Louis, that if any one not being a gentleman on the +father's side was knighted, the king or baron in whose territory he +resides, may hack off his spurs on a dunghill, c. 130. The count de +Nevers, having knighted a person who was not noble exparte paternâ, was +fined in the king's court. The king, however, (Philip III.) confirmed the +knighthood. Daniel, Hist. de la Milice Françoise, p. 98. Fuit propositum +(says a passage quoted by Daniel) contra comitem Flandriensem, quod non +poterat, nec debebat facere de villano militem, sine auctoritate regis. +ibid. Statuimus, says James I. of Aragon, in 1234, ut nullus faciat +militem nisi filium militis. Marca Hispanica, p. 1428. Selden, Titles of +Honour, p. 592, produces other evidence to the same effect. And the +emperor Sigismund having conferred knighthood, during his stay in Paris in +1415, on a person incompetent to receive it for want of nobility, the +French were indignant at his conduct, as an assumption of sovereignty. +Villaret, t. xiii. p. 397. We are told, however, by Giannone, 1. xx. c. 3, +that nobility was not in fact required for receiving chivalry at Naples, +though it was in France. +</p><p> +The privilege of every knight to associate qualified persons to the order +at his pleasure, lasted very long in France; certainly down to the English +wars of Charles VII. (Monstrelet, part ii. folio 50), and, if I am not +mistaken, down to the time of Francis I. But in England, where the spirit +of independence did not prevail so much among the nobility, it soon +ceased. Selden mentions one remarkable instance in a writ of the 29th year +of Henry III. summoning tenants in capite to come and receive knighthood +from the king, ad recipiendum a nobis arma militaria; and tenants of mesne +lords to be knighted by whomsoever they pleased, ad recipiendum arma de +quibuscunque voluerint. Titles of Honour, p. 792. But soon after this +time, it became an established principle of our law that no subject can +confer knighthood except by the king's authority. Thus Edward III. grants +to a burgess of <i>Lyndia</i> in Guienne (I know not what place this is) the +privilege of receiving that rank at the hands of any knight, his want of +noble birth notwithstanding. Rymer, t. v. p. 623. It seems, however, that +a different law obtained in some places. Twenty-three of the chief +inhabitants of Beaucaire, partly knights, partly burgesses, certified in +1298, that the immemorial usage of Beaucaire and of Provence had been, for +burgesses to receive knighthood at the hands of noblemen, without the +prince's permission. Vaissette, Hist. de Languedoc, t. iii. p. 530. +Burgesses, in the great commercial towns, were considered as of a superior +class to the roturiers, and possessed a kind of demi-nobility. Charles V. +appears to have conceded a similar indulgence to the citizens of Paris. +Villaret, t. x. p. 248.</p></div> + +<div class="footnote"><p><a name="Footnote_787_787" id="Footnote_787_787"></a><a href="#FNanchor_787_787"><span class="label">[u]</span></a> St. Palaye, part iii. passim.</p></div> + +<div class="footnote"><p><a name="Footnote_788_788" id="Footnote_788_788"></a><a href="#FNanchor_788_788"><span class="label">[x]</span></a> The word bachelor has been sometimes derived from bas +chevalier; in opposition to banneret. But this cannot be right. We do not +find any authority for the expression bas chevalier, nor any equivalent in +Latin, baccalaureus certainly not suggesting that sense; and it is strange +that the corruption should obliterate every trace of the original term. +Bachelor is a very old word, and is used in early French poetry for a +young man, as bachelette is for a girl. So also in Chaucer: +</p> +<div class="poem"><div class="stanza"> +<span class="i4">"A yonge Squire,<br /></span> +<span class="i0">A lover, and a lusty <i>bachelor</i>."<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_789_789" id="Footnote_789_789"></a><a href="#FNanchor_789_789"><span class="label">[y]</span></a> Du Cange, Dissertation 9<sup>me</sup> sur Joinville. The number of +men at arms, whom a banneret ought to command, was properly fifty. But +Olivier de la Marche speaks of twenty-five as sufficient; and it appears +that, in fact, knights-banneret often did not bring so many.</p></div> + +<div class="footnote"><p><a name="Footnote_790_790" id="Footnote_790_790"></a><a href="#FNanchor_790_790"><span class="label">[z]</span></a> Ibid. Olivier de la Marche (Collection des Mémoires, t. +viii. p. 337) gives a particular example of this; and makes a distinction +between the bachelor, created a banneret on account of his estate, and the +hereditary banneret, who took a public opportunity of requesting the +sovereign to unfold his family banner which he had before borne wound +round his lance. The first was said relever banniere; the second, entrer +en banniere. This difference is more fully explained by Daniel, Hist. de +la Milice Françoise, p. 116. Chandos's banner was unfolded, not cut, at +Navarette. We read sometimes of esquire-bannerets, that is, of bannerets +by descent, not yet knighted.</p></div> + +<div class="footnote"><p><a name="Footnote_791_791" id="Footnote_791_791"></a><a href="#FNanchor_791_791"><span class="label">[a]</span></a> Froissart, part i. c. 241.</p></div> + +<div class="footnote"><p><a name="Footnote_792_792" id="Footnote_792_792"></a><a href="#FNanchor_792_792"><span class="label">[b]</span></a> Mém. sur la Chevalerie, part v.</p></div> + +<div class="footnote"><p><a name="Footnote_793_793" id="Footnote_793_793"></a><a href="#FNanchor_793_793"><span class="label">[c]</span></a> The prerogative exercised by the kings of England of +compelling men sufficiently qualified in point of estate to take on them +the honour of knighthood was inconsistent with the true spirit of +chivalry. This began, according to Lord Lyttelton, under Henry III. Hist. +of Henry II. vol. ii. p. 238. Independently of this, several causes tended +to render England less under the influence of chivalrous principles than +France or Germany; such as, her comparatively peaceful state, the smaller +share she took in the crusades, her inferiority in romances of +knight-errantry, but above all, the democratical character of her laws and +government. Still this is only to be understood relatively to the two +other countries above named; for chivalry was always in high repute among +us, nor did any nation produce more admirable specimens of its +excellences. +</p><p> +I am not minutely acquainted with the state of chivalry in Spain, where it +seems to have flourished considerably. Italy, except in Naples, and +perhaps Piedmont, displayed little of its spirit; which neither suited the +free republics of the twelfth and thirteenth, nor the jealous tyrannies of +the following centuries. Yet even here we find enough to furnish Muratori +with materials for his 53rd Dissertation.</p></div> + +<div class="footnote"><p><a name="Footnote_794_794" id="Footnote_794_794"></a><a href="#FNanchor_794_794"><span class="label">[d]</span></a> The well-known Memoirs of St. Palaye are the best +repository of interesting and illustrative facts respecting chivalry. +Possibly he may have relied a little too much on romances, whose pictures +will naturally be overcharged. Froissart himself has somewhat of this +partial tendency, and the manners of chivalrous times do not make so fair +an appearance in Monstrelet. In the Memoirs of la Tremouille (Collect. des +Mém. t. xiv. p. 169), we have perhaps the earliest delineation from the +life of those severe and stately virtues in high-born ladies, of which our +own country furnished so many examples in the sixteenth and seventeenth +centuries, and which were derived from the influence of chivalrous +principles. And those of Bayard in the same collection (t. xiv. and xv.) +are a beautiful exhibition of the best effects of that discipline. +</p><p> +It appears to me that M. Guizot, to whose judgment I owe all deference, +has dwelt rather too much on the feudal character of chivalry. Hist. de la +Civilisation en France, Leçon 36. Hence he treats the institution as in +its decline 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 England and the north of France, a +territorial dignity, which bore with it no actual presumption of merit, it +was sometimes also conferred on a more honourable principle. It was not +every knight who possessed a fief, nor in practice did every possessor of +a fief receive knighthood. +</p><p> +Guizot justly remarks, as Sismondi has done, the disparity 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 pensée morale des hommes s'élève et aspire fort au dessus de +leur vie. Et gardez vous de croire que parce qu'elle ne gouvernait pas +immédiatement les actions, parceque la pratique démontait sans cesse et +étrangement la théorie, l'influence de la théorie fut nulle et sans +valeur. C'est beaucoup que le jugement des hommes sur les actions +humaines; tot ou tard il devient efficace. +</p><p> +It may be thought by many severe judges, that I have over-valued the +efficacy of chivalrous sentiments in elevating the moral character of the +middle ages. But I do not see ground for withdrawing or modifying any +sentence. The comparison is never to be made with an ideal standard, or +even with one which a purer religion and a more liberal organization of +society may have rendered effectual, but with the condition of a country +where neither the sentiments 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. +</p><p> +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 +courteousness, the munificence, above all, the deeply religious character +of knighthood and its reverence for the church, naturally took hold of a +heart so susceptible of these emotions, 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 excellence. But the progress +of still deeper impression seems to have moderated the ardour of Mr. +Digby's admiration for the historical character of knighthood; he has +discovered enough of human alloy to render unqualified praise hardly +fitting, in his judgment, for a Christian writer; and in the Mores +Catholici, the second work of this amiable and gifted man, the colours in +which chivalry appears are by no means so brilliant [1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_795_795" id="Footnote_795_795"></a><a href="#FNanchor_795_795"><span class="label">[e]</span></a> Four very recent publications (not to mention that of Buhle +on modern philosophy) enter much at large into the middle literature; +those of M. Ginguené and M. Sismondi, the history of England by Mr. Sharon +Turner, and the Literary History of the Middle Ages by Mr. Berington. All +of these contain more or less useful information and judicious remarks; +but that of Ginguené is among the most learned and important works of this +century. I have no hesitation to prefer it, as far as its subjects extend, +to Tiraboschi. +</p><p> +[A subsequent work of my own, Introduction to the History of Literature in +the 15th, 16th, and 17th Centuries, contains, in the first and second +chapters, some additional illustrations of the antecedent period, to which +the reader may be referred, as complementary to these pages. 1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_796_796" id="Footnote_796_796"></a><a href="#FNanchor_796_796"><span class="label">[f]</span></a> Heineccius, Hist. Juris German. c. 1. p. 15.</p></div> + +<div class="footnote"><p><a name="Footnote_797_797" id="Footnote_797_797"></a><a href="#FNanchor_797_797"><span class="label">[g]</span></a> Giannone, 1. iv. c. 6. Selden, ad Fletam, p. 1071.</p></div> + +<div class="footnote"><p><a name="Footnote_798_798" id="Footnote_798_798"></a><a href="#FNanchor_798_798"><span class="label">[h]</span></a> Tiraboschi, t. iii. p. 359. Ginguené, Hist. Litt. de +l'Italie, t. i. p. 155.</p></div> + +<div class="footnote"><p><a name="Footnote_799_799" id="Footnote_799_799"></a><a href="#FNanchor_799_799"><span class="label">[i]</span></a> Irnerius is sometimes called Guarnerius, sometimes +Warnerius: the German W is changed into Gu by the Italians, and +occasionally omitted, especially in latinizing, for the sake of euphony or +purity.</p></div> + +<div class="footnote"><p><a name="Footnote_800_800" id="Footnote_800_800"></a><a href="#FNanchor_800_800"><span class="label">[k]</span></a> Tiraboschi, t. iv. p. 38; t. v. p. 55.</p></div> + +<div class="footnote"><p><a name="Footnote_801_801" id="Footnote_801_801"></a><a href="#FNanchor_801_801"><span class="label">[m]</span></a> Tiraboschi, t. v. Vaissette, Hist. de Languedoc, t. ii. p. +517; t. iii. p. 527; t. iv. p. 504.</p></div> + +<div class="footnote"><p><a name="Footnote_802_802" id="Footnote_802_802"></a><a href="#FNanchor_802_802"><span class="label">[n]</span></a> Duck, de Usu Juris Civilis, 1. ii. c. 6.</p></div> + +<div class="footnote"><p><a name="Footnote_803_803" id="Footnote_803_803"></a><a href="#FNanchor_803_803"><span class="label">[o]</span></a> Idem, 1. ii. 2.</p></div> + +<div class="footnote"><p><a name="Footnote_804_804" id="Footnote_804_804"></a><a href="#FNanchor_804_804"><span class="label">[p]</span></a> Duck, 1. ii. c. 5, s. 30, 31. Fleury, Hist. du Droit +François, p. 74 (prefixed to Argou, Institutions au Droit François, edit. +1787), says that it was a great question among lawyers, and still +undecided (i.e. in 1674), whether the Roman law was the common law in the +pays coutumiers, as to those points wherein their local customs were +silent. And, if I understand Denisart, (Dictionnaire des Décisions, art. +Droit-écrit,) the affirmative prevailed. It is plain at least by the +Causes Célèbres, that appeal was continually made to the principles of the +civil law in the argument of Parisian advocates.</p></div> + +<div class="footnote"><p><a name="Footnote_805_805" id="Footnote_805_805"></a><a href="#FNanchor_805_805"><span class="label">[q]</span></a> Crevier, Hist. de l'Université de Paris, t. i. p. 316; t. +ii. p. 275.</p></div> + +<div class="footnote"><p><a name="Footnote_806_806" id="Footnote_806_806"></a><a href="#FNanchor_806_806"><span class="label">[r]</span></a> Johan. Salisburiensis, apud Selden ad Fletam, p. 1082.</p></div> + +<div class="footnote"><p><a name="Footnote_807_807" id="Footnote_807_807"></a><a href="#FNanchor_807_807"><span class="label">[s]</span></a> Selden, ubi supra, p. 1095-1104. This passage is worthy of +attention. Yet, notwithstanding Selden's authority, I am not satisfied +that he has not extenuated the effect of Bracton's predilection for the +maxims of Roman jurisprudence. No early lawyer has contributed so much to +form our own system as Bracton; and if his definitions and rules are +sometimes borrowed from the civilians, as all admit, our common law may +have indirectly received greater modification from that influence, than +its professors were ready to acknowledge, or even than they knew. A full +view of this subject is still, I think, a desideratum in the history of +English law, which it would illustrate in a very interesting manner.</p></div> + +<div class="footnote"><p><a name="Footnote_808_808" id="Footnote_808_808"></a><a href="#FNanchor_808_808"><span class="label">[t]</span></a> Duck, De Usu Juris Civilis, 1. i. c. 87.</p></div> + +<div class="footnote"><p><a name="Footnote_809_809" id="Footnote_809_809"></a><a href="#FNanchor_809_809"><span class="label">[u]</span></a> Gravina, Origines Juris Civilis, p. 196.</p></div> + +<div class="footnote"><p><a name="Footnote_810_810" id="Footnote_810_810"></a><a href="#FNanchor_810_810"><span class="label">[x]</span></a> Those who feel some curiosity about the civilians of the +middle ages will find a concise and elegant account in Gravina, De Origine +Juris Civilis, p. 166-206. (Lips. 1708.) Tiraboschi contains perhaps more +information; but his prolixity is very wearisome. Besides this fault, it +is evident that Tiraboschi knew very little of law, and had not read the +civilians of whom he treats; whereas Gravina discusses their merits not +only with legal knowledge, but with an acuteness of criticism which, to +say the truth, Tiraboschi never shows except on a date or a name. +</p><p> +[The civil lawyers of the mediæval 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; though I have +heard that it is less regarded in France than formerly. In my earlier +editions I depreciated the study of the civil law too much, and with too +exclusive an attention to English notions.]</p></div> + +<div class="footnote"><p><a name="Footnote_811_811" id="Footnote_811_811"></a><a href="#FNanchor_811_811"><span class="label">[y]</span></a> Ante ipsum dominum Carolum regem in Galliâ nullum fuit +studium liberalium artium. Monachus Engolismensis, apud Launoy, De Scholis +per occidentem instauratis, p. 5. See too Histoire Littéraire de la +France, t. iv. p. 1. "Studia liberalium artium" in this passage, must be +understood to exclude 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 Aquitaine; we need hardly repeat that in England, the former of +these 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, Leçon 16; and Ampère, 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.</p></div> + +<div class="footnote"><p><a name="Footnote_812_812" id="Footnote_812_812"></a><a href="#FNanchor_812_812"><span class="label">[z]</span></a> Id. Ibid. There was a sort of literary club among them, +where the members assumed ancient names. Charlemagne was called David; +Alcuin, Horace; another, Dametas, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_813_813" id="Footnote_813_813"></a><a href="#FNanchor_813_813"><span class="label">[a]</span></a> Hist. Littéraire, p. 217, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_814_814" id="Footnote_814_814"></a><a href="#FNanchor_814_814"><span class="label">[b]</span></a> This division of the sciences is ascribed to St. Augustin; +and we certainly find it established early in the sixth century. Brucker, +Historia Critica Philosophiæ, t. iii. p. 597.</p></div> + +<div class="footnote"><p><a name="Footnote_815_815" id="Footnote_815_815"></a><a href="#FNanchor_815_815"><span class="label">[c]</span></a> Schmidt, Hist. des Allemands, t. ii. p. 126.</p></div> + +<div class="footnote"><p><a name="Footnote_816_816" id="Footnote_816_816"></a><a href="#FNanchor_816_816"><span class="label">[d]</span></a> Crevier, Hist. de l'Université de Paris, t. i. p. 28.</p></div> + +<div class="footnote"><p><a name="Footnote_817_817" id="Footnote_817_817"></a><a href="#FNanchor_817_817"><span class="label">[e]</span></a> Brucker, t. iii. p. 612. Raban Maurus was chief of the +cathedral school at Fulda, in the ninth century.</p></div> + +<div class="footnote"><p><a name="Footnote_818_818" id="Footnote_818_818"></a><a href="#FNanchor_818_818"><span class="label">[f]</span></a> Crevier, p. 66.</p></div> + +<div class="footnote"><p><a name="Footnote_819_819" id="Footnote_819_819"></a><a href="#FNanchor_819_819"><span class="label">[g]</span></a> Crevier, p. 171; Brucker, p. 677; Tiraboschi, t. iii. p. +275.</p></div> + +<div class="footnote"><p><a name="Footnote_820_820" id="Footnote_820_820"></a><a href="#FNanchor_820_820"><span class="label">[h]</span></a> Brucker, p. 750.</p></div> + +<div class="footnote"><p><a name="Footnote_821_821" id="Footnote_821_821"></a><a href="#FNanchor_821_821"><span class="label">[i]</span></a> A great interest has been revived in France for the +philosophy, as well as the personal history of Abelard, 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 Rémusat, in 1845, with the +title Abélard, 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 generally known by the name of +<i>conceptualism</i>.</p></div> + +<div class="footnote"><p><a name="Footnote_822_822" id="Footnote_822_822"></a><a href="#FNanchor_822_822"><span class="label">[k]</span></a> The faculty of arts in the university of Paris was divided +into four nations; those of France, Picardy, Normandy, and England. These +had distinct suffrages in the affairs of the university, and consequently, +when united, outnumbered the three higher faculties of theology, law, and +medicine. In 1169, Henry II. of England offers to refer his dispute with +Becket to the provinces of the school of Paris.</p></div> + +<div class="footnote"><p><a name="Footnote_823_823" id="Footnote_823_823"></a><a href="#FNanchor_823_823"><span class="label">[m]</span></a> Crevier, t. i. p. 279. The first statute regulating the +discipline of the university was given by Robert de Courçon, legate of +Honorius III., in 1215, id. p. 296.</p></div> + +<div class="footnote"><p><a name="Footnote_824_824" id="Footnote_824_824"></a><a href="#FNanchor_824_824"><span class="label">[n]</span></a> No one probably would choose to rely on a passage found in +one manuscript of Asserius, which has all appearance of an interpolation. +It is evident from an anecdote in Wood's History of Oxford, vol. i. p. 23 +(Gutch's edition), that Camden did not believe in the authenticity of this +passage, though he thought proper to insert it in the Britannia.</p></div> + +<div class="footnote"><p><a name="Footnote_825_825" id="Footnote_825_825"></a><a href="#FNanchor_825_825"><span class="label">[o]</span></a> 1 Gale, p. 75. The mention of Aristotle at so early a +period might seem to throw some suspicion on this passage. But it is +impossible to detach it from the context; and the works of Aristotle +intended by Ingulfus were translations of parts of his Logic by Boethius +and Victorin. Brucker, p. 678. A passage indeed in Peter of Blois's +continuation of Ingulfus, where the study of Averroes is said to have +taken place at <i>Cambridge</i> some years before he was born, is of a +different complexion, and must of course be rejected as spurious. In the +Gesta Comitum Andegavensium, Fulk, count of Anjou, who lived about 920, is +said to have been skilled Aristotelicis et Ciceronianis ratiocinationibus. +</p><p> +[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 Introduction to the History of +Literature, retracted the degree 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.]</p></div> + +<div class="footnote"><p><a name="Footnote_826_826" id="Footnote_826_826"></a><a href="#FNanchor_826_826"><span class="label">[p]</span></a> It may be remarked, that John of Salisbury, who wrote in +the first years of Henry II.'s reign, since his Polycraticon is dedicated +to Becket, before he became archbishop, makes no mention of Oxford, which +he would probably have done if it had been an eminent seat of learning at +that time.</p></div> + +<div class="footnote"><p><a name="Footnote_827_827" id="Footnote_827_827"></a><a href="#FNanchor_827_827"><span class="label">[q]</span></a> Wood's Hist. and Antiquities of Oxford, p. 177. The +Benedictines of St. Maur say, that there was an eminent school of canon +law at Oxford about the end of the twelfth century, to which many students +repaired from Paris. Hist. Litt. de la France, t. ix. p. 216.</p></div> + +<div class="footnote"><p><a name="Footnote_828_828" id="Footnote_828_828"></a><a href="#FNanchor_828_828"><span class="label">[r]</span></a> Tiraboschi, t. iii. p. 259, et alibi; Muratori, Dissert. +43.</p></div> + +<div class="footnote"><p><a name="Footnote_829_829" id="Footnote_829_829"></a><a href="#FNanchor_829_829"><span class="label">[s]</span></a> "But among these," says Anthony Wood, "a company of +varlets, who pretended to be scholars, shuffled themselves in, and did act +much villany in the university by thieving, whoring, quarrelling, &c. They +lived under no discipline, neither had they tutors; but only for fashion's +sake would sometimes thrust themselves into the schools at ordinary +lectures, and when they went to perform any mischief, then would they be +accounted scholars, that so they might free themselves from the +jurisdiction of the burghers." p. 206. If we allow three varlets to one +scholar, the university will still have been very fully frequented by the +latter.</p></div> + +<div class="footnote"><p><a name="Footnote_830_830" id="Footnote_830_830"></a><a href="#FNanchor_830_830"><span class="label">[t]</span></a> Tiraboschi, t. iv. p. 47. Azarius, about the middle of the +fourteenth century, says the number was about 13,000 in his time. +Muratori, Script. Rer. Ital. t. xvi. p. 325.</p></div> + +<div class="footnote"><p><a name="Footnote_831_831" id="Footnote_831_831"></a><a href="#FNanchor_831_831"><span class="label">[u]</span></a> Villaret, Hist. de France, t. xvi. p. 341. This may perhaps +require to be taken with allowance. But Paris owes a great part of its +buildings on the southern bank of the Seine to the university. The +students are said to have been about 12,000 before 1480. Crevier, t. iv. +p. 410.</p></div> + +<div class="footnote"><p><a name="Footnote_832_832" id="Footnote_832_832"></a><a href="#FNanchor_832_832"><span class="label">[x]</span></a> Tiraboschi, t. iv. p. 43 and 46.</p></div> + +<div class="footnote"><p><a name="Footnote_833_833" id="Footnote_833_833"></a><a href="#FNanchor_833_833"><span class="label">[y]</span></a> The earliest authentic mention of Cambridge as a place of +learning, if I mistake not, is in Matthew Paris, who informs us, that in +1209, John having caused three clerks of Oxford to be hanged on suspicion +of murder, the whole body of scholars left that city, and emigrated, some +to Cambridge, some to Reading, in order to carry on their studies (p. 191, +edit. 1684). But it may be conjectured with some probability, that they +were led to a town so distant as Cambridge by the previous establishment +of academical instruction in that place. The incorporation of Cambridge is +in 1231 (15 Hen. III.), so that there is no great difference in the legal +antiquity of our two universities.</p></div> + +<div class="footnote"><p><a name="Footnote_834_834" id="Footnote_834_834"></a><a href="#FNanchor_834_834"><span class="label">[z]</span></a> Crevier, Hist. de l'Université de Paris, t. ii. p. 216; t. +iii. p. 140.</p></div> + +<div class="footnote"><p><a name="Footnote_835_835" id="Footnote_835_835"></a><a href="#FNanchor_835_835"><span class="label">[a]</span></a> Pfeffel, Abrégé Chronologique de l'Hist. de l'Allemagne, p. +550, 607.</p></div> + +<div class="footnote"><p><a name="Footnote_836_836" id="Footnote_836_836"></a><a href="#FNanchor_836_836"><span class="label">[b]</span></a> Rymer, t. vi. p. 292.</p></div> + +<div class="footnote"><p><a name="Footnote_837_837" id="Footnote_837_837"></a><a href="#FNanchor_837_837"><span class="label">[c]</span></a> Crevier, t. ii. p. 398.</p></div> + +<div class="footnote"><p><a name="Footnote_838_838" id="Footnote_838_838"></a><a href="#FNanchor_838_838"><span class="label">[d]</span></a> Crevier and Villaret, passim.</p></div> + +<div class="footnote"><p><a name="Footnote_839_839" id="Footnote_839_839"></a><a href="#FNanchor_839_839"><span class="label">[e]</span></a> Brucker, Hist. Crit. Philosophiæ, t. iii. p. 678.</p></div> + +<div class="footnote"><p><a name="Footnote_840_840" id="Footnote_840_840"></a><a href="#FNanchor_840_840"><span class="label">[f]</span></a> Id. Ibid. Tiraboschi conceives that the translations of +Aristotle made by command of Frederic II. were directly from the Greek, t. +iv. p. 145; and censures Brucker for the contrary opinion. Buhle, however +(Hist. de la Philosophie Moderne, t. i. p. 696), appears to agree with +Brucker. It is almost certain that versions were made from the Arabic +Aristotle: which itself was not immediately taken from the Greek, but from +a Syriac medium. Ginguené, Hist. Litt. de l'Italie, t. i. p. 212 (on the +authority of M. Langlés). +</p><p> +It was not only a knowledge of Aristotle that the scholastics of Europe +derived from the Arabic language. His writings had produced in the +flourishing Mohammedan kingdoms a vast number of commentators, and of +metaphysicians trained in the same school. Of these Averroes, a native of +Cordova, who died early in the thirteenth century, was the most eminent. +It would be curious to examine more minutely than has hitherto been done +the original writings of these famous men, which no doubt have suffered in +translation. A passage from Al Gazel, which Mr. Turner has rendered from +the Latin, with all the disadvantage of a double remove from the author's +words, appears to state the argument in favour of that class of +Nominalists, called Conceptualists, with more clearness and precision than +any thing I have seen from the schoolmen. Al Gazel died in 1126, and +consequently might have suggested this theory to Abelard, which however is +not probable. Turner's Hist. of Engl. vol. i. p. 513.</p></div> + +<div class="footnote"><p><a name="Footnote_841_841" id="Footnote_841_841"></a><a href="#FNanchor_841_841"><span class="label">[g]</span></a> Brucker, Hist. Crit Philosophiæ, t. iii. I have found no +better guide than Brucker. But he confesses himself not to have read the +original writings of the scholastics; an admission which every reader will +perceive to be quite necessary. Consequently, he gives us rather a verbose +declamation against their philosophy than any clear view of its character. +Of the valuable works lately published in Germany on the history of +philosophy, I have only seen that of Buhle, which did not fall into my +hands till I had nearly written these pages. Tiedemann and Tennemann are I +believe, still untranslated.</p></div> + +<div class="footnote"><p><a name="Footnote_842_842" id="Footnote_842_842"></a><a href="#FNanchor_842_842"><span class="label">[h]</span></a> Buhle, Hist. de la Philos. Moderne, t. i. p. 723. This +author raises upon the whole a favourable notion of Anselm and Aquinas; +but he hardly notices any other.</p></div> + +<div class="footnote"><p><a name="Footnote_843_843" id="Footnote_843_843"></a><a href="#FNanchor_843_843"><span class="label">[i]</span></a> Mr. Turner has with his characteristic spirit of enterprise +examined some of the writings of our chief English schoolmen, Duns Scotus +and Ockham (Hist of Eng. vol. i.), and even given us some extracts from +them. They seem to me very frivolous, so far as I can collect their +meaning. Ockham in particular falls very short of what I had expected; and +his nominalism is strangely different from that of Berkeley. We can hardly +reckon a man in the right, who is so by accident, and through sophistical +reasoning. However, a well-known article in the Edinburgh Review, No. +liii. p. 204, gives, from Tennemann, a more favourable account of Ockham. +</p><p> +Perhaps I may have imagined the scholastics to be more forgotten than they +really are. Within a short time I have met with four living English +writers who have read parts of Thomas Aquinas; Mr. Turner, Mr. Berington, +Mr. Coleridge, and the Edinburgh Reviewer. Still I cannot bring myself to +think that there are four more in this country who can say the same. +Certain portions, however, of his writings are still read in the course of +instruction of some Catholic universities. +</p><p> +[I leave this passage as it was written about 1814. But it must be owned +with regard to the schoolmen, as well as the jurists, that I at that time +underrated, or at least did not anticipate, the attention which their +works have attracted in modern Europe, and that the passage in the text is +more applicable to 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 Cousin and Rémusat, in their excellent +labours on Abelard, have restored the mediæval philosophy to a place in +transcendental metaphysics, which, during the prevalence of the Cartesian +school, and those derived from it, had been refused. 1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_844_844" id="Footnote_844_844"></a><a href="#FNanchor_844_844"><span class="label">[k]</span></a> Roger Bacon, by far the truest philosopher of the middle +ages, complains of the ignorance of Aristotle's translators. Every +translator, he observes, ought to understand his author's subject, and the +two languages from which and into which he is to render the work. But none +hitherto, except Boethius, have sufficiently known the languages; nor has +one, except Robert Grostete (the famous bishop of Lincoln), had a +competent acquaintance with science. The rest make egregious errors in +both respects. And there is so much misapprehension and obscurity in the +Aristotelian writings as thus translated, that no one understands them. +Opus Majus, p. 45.</p></div> + +<div class="footnote"><p><a name="Footnote_845_845" id="Footnote_845_845"></a><a href="#FNanchor_845_845"><span class="label">[m]</span></a> Brucker, p. 733, 912. Mr. Turner has fallen into some +confusion as to this point, and supposes the nominalist system to have had +a pantheistical tendency, not clearly apprehending its characteristics, p. +512.</p></div> + +<div class="footnote"><p><a name="Footnote_846_846" id="Footnote_846_846"></a><a href="#FNanchor_846_846"><span class="label">[n]</span></a> Petrarch gives a curious account of the irreligion that +prevailed among the learned at Venice and Padua, in consequence of their +unbounded admiration for Aristotle and Averroes. One of this school, +conversing with him, after expressing much contempt for the Apostles and +Fathers, exclaimed: Utinam tu Averroim pati posses, ut videres quanto ille +tuis his nugatoribus major sit! Mém. de Pétrarque, t. iii. p. 759. +Tiraboschi, t. v. p. 162.</p></div> + +<div class="footnote"><p><a name="Footnote_847_847" id="Footnote_847_847"></a><a href="#FNanchor_847_847"><span class="label">[o]</span></a> Brucker, p. 898.</p></div> + +<div class="footnote"><p><a name="Footnote_848_848" id="Footnote_848_848"></a><a href="#FNanchor_848_848"><span class="label">[p]</span></a> This mystical philosophy appears to have been introduced +into Europe by John Scotus, whom Buhle treats as the founder of the +scholastic philosophy; though, as it made no sensible progress for two +centuries after his time, it seems more natural to give that credit to +Roscelin and Anselm. Scotus, or Erigena, as he is perhaps more frequently +called, took up, through the medium of a spurious work, ascribed to +Dionysius the Areopagite, that remarkable system, which has from time +immemorial prevailed in some schools of the East, wherein all external +phenomena, as well as all subordinate intellects, are considered as +<i>emanating</i> from the Supreme Being, into whose essence they are hereafter +to be absorbed. This system, reproduced under various modifications, and +combined with various theories of philosophy and religion, is perhaps the +most congenial to the spirit of solitary speculation, and consequently the +most extensively diffused of any which those high themes have engendered. +It originated no doubt in sublime conceptions of divine omnipotence and +ubiquity. But clearness of expression, or indeed of ideas, being not +easily connected with mysticism, the language of philosophers adopting the +theory of emanation is often hardly distinguishable from that of the +pantheists. Brucker, very unjustly, as I imagine from the passages he +quotes, accuses John Erigena of pantheism. Hist. Crit. Philos. p. 620. The +charge would, however, be better grounded against some whose style might +deceive an unaccustomed reader. In fact, the philosophy of emanation leads +very nearly to the doctrine of an universal substance, which, begot the +atheistic system of Spinoza, and which appears to have revived with +similar consequences among the metaphysicians of Germany. How very closely +the language of this oriental philosophy, or even that which regards the +Deity as the soul of the world, may verge upon pantheism, will be +perceived (without the trouble of reading the first book of Cudworth) from +two famous passages of Virgil and Lucan. Georg. I. iv. v. 219; and +Pharsalia, I. viii. v. 578.</p></div> + +<div class="footnote"><p><a name="Footnote_849_849" id="Footnote_849_849"></a><a href="#FNanchor_849_849"><span class="label">[q]</span></a> This subject, as well as some others in this part of the +present chapter, has been touched in my Introduction to the Literature of +the 15th, 16th, and 17th Centuries.</p></div> + +<div class="footnote"><p><a name="Footnote_850_850" id="Footnote_850_850"></a><a href="#FNanchor_850_850"><span class="label">[r]</span></a> Tiraboschi, t. iv. p. 150.</p></div> + +<div class="footnote"><p><a name="Footnote_851_851" id="Footnote_851_851"></a><a href="#FNanchor_851_851"><span class="label">[s]</span></a> There is a very copious and sensible account of Roger Bacon +in Wood's History of Oxford, vol. i. p. 332 (Gutch's edition). I am a +little surprised that Antony should have found out Bacon's merit. +</p><p> +The resemblance between Roger Bacon and his greater namesake is very +remarkable. Whether Lord Bacon ever read the Opus Majus, I know not; but +it is singular, that his favourite quaint expression, <i>prærogativæ</i> +scientiarum, should be found in that work, though not used with the same +allusion to the Roman comitia. And whoever reads the sixth part of the +Opus Majus, upon experimental science, must be struck by it as the +prototype, in spirit, of the Novum Organum. The same sanguine and +sometimes rash confidence in the effect of physical discoveries, the same +fondness for experiment, the same preference of inductive to abstract +reasoning, pervade both works. Roger Bacon's philosophical spirit may be +illustrated by the following passage: Duo sunt modi cognoscendi; scilicet +per argumentum et experimentum. Argumentum concludit et facit nos +concludere quæstionem; sed non certificat neque removet dubitationem, ut +quiescat animus in intuitu veritatis, nisi eam inveniat viâ experientiæ; +quia multi habent argumenta ad scibilia, sed quia non habent experientiam, +negligunt ea, neque vitant nociva nec persequuntur bona. Si enim aliquis +homo, qui nunquam vidit ignem, probavit per argumenta sufficientia quod +ignis comburit et lædit res et destruit, nunquam propter hoc quiesceret +animus audientis, nec ignem vitaret antequam poneret manum vel rem +combustibilem ad ignem, ut per experientiam probaret quod argumentum +edocebat; sed assumtâ experientiâ combustionis certificatur animus et +quiescit in fulgore veritatis, quo argumentum non sufficit, sed +experientia. p. 446.</p></div> + +<div class="footnote"><p><a name="Footnote_852_852" id="Footnote_852_852"></a><a href="#FNanchor_852_852"><span class="label">[t]</span></a> See the fate of Cecco d'Ascoli in Tiraboschi, t. v. p. +174.</p></div> + +<div class="footnote"><p><a name="Footnote_853_853" id="Footnote_853_853"></a><a href="#FNanchor_853_853"><span class="label">[u]</span></a> Le Bœuf, Mém. de l'Acad. des Inscript. t. xvii. p. 711.</p></div> + +<div class="footnote"><p><a name="Footnote_854_854" id="Footnote_854_854"></a><a href="#FNanchor_854_854"><span class="label">[x]</span></a> Gregorius, cognomento Bechada, de Castro de Turribus, +professione miles, subtilissimi ingenii vir, aliquantulum imbutus literis, +horum gesta præliorum maternâ linguâ rhythmo vulgari, ut populus pleniter +intelligeret, ingens volumen decenter composuit, et ut vera et faceta +verba proferret, duodecim annorum spatium super hoc opus operam dedit. Ne +verò vilesceret propter verbum vulgare, non sine præcepto episcopi +Eustorgii, et consilio Gauberti Normanni, hoc opus aggressus est. I +transcribe this from Heeren's Essai sur les Croisades, p. 447; whose +reference is to Labbé, Bibliotheca nova MSS. t. ii. p. 296.</p></div> + +<div class="footnote"><p><a name="Footnote_855_855" id="Footnote_855_855"></a><a href="#FNanchor_855_855"><span class="label">[y]</span></a> De Sade, Vie de Pétrarque, t. i. p. 155. Sismondi, Litt. du +Midi, t. i. p. 228.</p></div> + +<div class="footnote"><p><a name="Footnote_856_856" id="Footnote_856_856"></a><a href="#FNanchor_856_856"><span class="label">[z]</span></a> For the Courts of Love, see De Sade, Vie de Pétrarque, t. +ii. note 19. Le Grand. Fabliaux, t. i. p. 270. Roquefort, Etat de la +Poésie Françoise. p. 94. I have never had patience to look at the older +writers who have treated this tiresome subject.</p></div> + +<div class="footnote"><p><a name="Footnote_857_857" id="Footnote_857_857"></a><a href="#FNanchor_857_857"><span class="label">[a]</span></a> Histoire Littéraire des Troubadours Paris, 1774.</p></div> + +<div class="footnote"><p><a name="Footnote_858_858" id="Footnote_858_858"></a><a href="#FNanchor_858_858"><span class="label">[b]</span></a> Two very modern French writers, M. Ginguené (Histoire +Littéraire d'Italie, Paris, 1811) and M. Sismondi (Littérature du Midi de +l'Europe, Paris, 1813), have revived the poetical history of the +troubadours. To them, still more than to Millot and Tiraboschi, I would +acknowledge my obligations for the little I have learned in respect of +this forgotten school of poetry. Notwithstanding, however, the heaviness +of Millot's work, a fault not imputable to himself, though Ritson as I +remember, calls him, in his own polite style, "a blockhead," it will +always be useful to the inquirer into the manners and opinions of the +middle ages, from the numerous illustrations it contains of two general +facts; the extreme dissoluteness of morals among the higher ranks, and the +prevailing animosity of all classes against the clergy.</p></div> + +<div class="footnote"><p><a name="Footnote_859_859" id="Footnote_859_859"></a><a href="#FNanchor_859_859"><span class="label">[c]</span></a> Hist. Litt. de la France, t. vii. p. 58. Le Bœuf, +according to these Benedictines, has published some poetical fragments of +the tenth century; and they quote part of a charter as old as 940 in +Romance. p. 59. But that antiquary, in a memoir printed in the seventeenth +volume of the Academy of Inscriptions, which throws more light on the +infancy of the French language than anything within my knowledge, says +only that the earliest specimens of verse in the royal library are of the +eleventh century <i>au plus tard</i>. p. 717. M. de la Rue is said to have +found some poems of the eleventh century in the British Museum. Roquefort, +Etat de la Poésie Françoise, p. 206. Le Bœuf's fragment may be found in +this work, p. 379; it seems nearer to the Provençal than the French +dialect.</p></div> + +<div class="footnote"><p><a name="Footnote_860_860" id="Footnote_860_860"></a><a href="#FNanchor_860_860"><span class="label">[d]</span></a> Gale, XV Script. t. i. p. 88.</p></div> + +<div class="footnote"><p><a name="Footnote_861_861" id="Footnote_861_861"></a><a href="#FNanchor_861_861"><span class="label">[e]</span></a> Ritson's Dissertation on Romance, p. 66. [The laws of +William the Conqueror, published in Ingulfus, are translated from a Latin +original; the French is of the thirteenth century. It is now doubted +whether any French, except a fragment of a translation of Boethius, in +verse, is extant of an earlier age than the twelfth. Introduction to Hist. +of Literat. 3rd edit. p. 28.]</p></div> + +<div class="footnote"><p><a name="Footnote_862_862" id="Footnote_862_862"></a><a href="#FNanchor_862_862"><span class="label">[f]</span></a> Hist. Litt. t. ix. p. 149; Fabliaux par Barbasan, vol. i. +p. 9, edit. 1808; Mém. de l'Académie des Inscr. t. xv. and xvii, p. 714, +&c.</p></div> + +<div class="footnote"><p><a name="Footnote_863_863" id="Footnote_863_863"></a><a href="#FNanchor_863_863"><span class="label">[g]</span></a> Mabillon speaks of this as the oldest French instrument he +had seen. But the Benedictines quote some of the eleventh century. Hist. +Litt. t. vii. p. 59. This charter is supposed by the authors of Nouveau +Traité de Diplomatique to be translated from the Latin, t. iv. p. 519. +French charters, they say, are not common before the age of Louis IX.; and +this is confirmed by those published in Martenne's Thesaurus Anecdotorum, +which are very commonly in French from his reign, but hardly ever before.</p></div> + +<div class="footnote"><p><a name="Footnote_864_864" id="Footnote_864_864"></a><a href="#FNanchor_864_864"><span class="label">[h]</span></a> Ravalière, Révol. de la Langue Françoise, p. 116, doubts +the age of this translation.</p></div> + +<div class="footnote"><p><a name="Footnote_865_865" id="Footnote_865_865"></a><a href="#FNanchor_865_865"><span class="label">[i]</span></a> Archæologia, vols. xii. and xiii.</p></div> + +<div class="footnote"><p><a name="Footnote_866_866" id="Footnote_866_866"></a><a href="#FNanchor_866_866"><span class="label">[k]</span></a> Millot says that Richard's sirventes (satirical songs) have +appeared in French as well as Provençal, but that the former is probably a +translation. Hist. des Troubadours, vol. i. p. 54. Yet I have met with no +writer who quotes them in the latter language, and M. Ginguené, as well as +Le Grand d'Aussy, considers Richard as a trouveur. +</p><p> +[Raynouard has since published, in Provençal, 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 Français, 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. 77.]</p></div> + +<div class="footnote"><p><a name="Footnote_867_867" id="Footnote_867_867"></a><a href="#FNanchor_867_867"><span class="label">[m]</span></a> This derivation of the romantic stories of Arthur, which Le +Grand d'Aussy ridiculously attributes to the jealousy entertained by the +English of the renown of Charlemagne, is stated in a very perspicuous and +satisfactory manner by Mr. Ellis, in his Specimens of Early English +Metrical Romances.</p></div> + +<div class="footnote"><p><a name="Footnote_868_868" id="Footnote_868_868"></a><a href="#FNanchor_868_868"><span class="label">[n]</span></a> [Though the stories of Arthur were not invented by the +English out of jealousy of Charlemagne, it has been ingeniously +conjectured and rendered highly probable by Mr. Sharon Turner, that the +history by Geoffrey of Monmouth 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, whether +Geoffrey borrowed so much from Armorican traditions as he pretended.]</p></div> + +<div class="footnote"><p><a name="Footnote_869_869" id="Footnote_869_869"></a><a href="#FNanchor_869_869"><span class="label">[o]</span></a> Prose e Rime di Dante, Venez. 1758, t. iv. p. 261. Dante's +words, biblia cum Trojanorum Romanorumque gestibus compilata, seem to bear +no other meaning than what I have given. But there may be a doubt whether +<i>biblia</i> is ever used except for the Scriptures; and the Italian +translator renders it, cioè la bibbia, i fatti de i Trojani, e de i +Romani. In this case something is wrong in the original Latin, and Dante +will have alluded to the translations of parts of Scripture made into +French, as mentioned in the text.</p></div> + +<div class="footnote"><p><a name="Footnote_870_870" id="Footnote_870_870"></a><a href="#FNanchor_870_870"><span class="label">[p]</span></a> The Assises de Jérusalem have undergone two revisions; one, +in 1250, by order of John d'Ibelin, count of Jaffa, and a second in 1369, +by sixteen commissioners chosen by the states of the kingdom of Cyprus. +Their language seems to be such as might be expected from the time of the +former revision.</p></div> + +<div class="footnote"><p><a name="Footnote_871_871" id="Footnote_871_871"></a><a href="#FNanchor_871_871"><span class="label">[q]</span></a> Several prose romances were written or translated from the +Latin about 1170, and afterwards. Mr. Ellis seems inclined to dispute +their antiquity. But, besides the authorities of La Ravalière and Tressan, +the latter of which is not worth much, a late very extensively informed +writer seems to have put this matter out of doubt. Roquefort Flamericourt, +Etat de la Poésie Française dans les 12<sup>me</sup> et 13<sup>me</sup> siècles, Paris, +1815 p. 147.</p></div> + +<div class="footnote"><p><a name="Footnote_872_872" id="Footnote_872_872"></a><a href="#FNanchor_872_872"><span class="label">[r]</span></a> Villaret, Hist. de France, t. xi. p. 121; De Sade, Vie de +Pétrarque, t. iii. p. 548. Charles V. had more learning than most princes +of his time. Christine de Pisan, a lady who has written memoirs, or rather +an eulogy of him, says that his father le fist introdire en lettres moult +suffisamment, et tant que competemment entendoit son Latin, et +souffisamment scavoit les regles de grammaire; la quelle chose pleust a +dieu qu'ainsi fust accoutumée entre les princes. Collect. de Mém. t. v. p. +103, 190, &c.</p></div> + +<div class="footnote"><p><a name="Footnote_873_873" id="Footnote_873_873"></a><a href="#FNanchor_873_873"><span class="label">[s]</span></a> The earliest Spanish that I remember to have seen is an +instrument in Martenne, Thesaurus Anecdotorum, t. i. p. 263; the date of +which is 1095. Persons more conversant with the antiquities of that +country may possibly go further back. Another of 1101 is published in +Marina's Teoria de las Cortes, t. iii. p. 1. It is in a Vidimus by Peter +the Cruel, and cannot, I presume, have been a translation from the Latin. +Yet the editors of Nouveau Tr. de Diplom. mention a charter of 1243, as +the earliest they are acquainted with in the Spanish language. t. iv. p. +525. +</p><p> +Charters in the German language, according to the same work, first appear +in the time of the emperor Rodolph, after 1272, and became usual in the +next century. p. 523. But Struvius mentions an instrument of 1235, as the +earliest in German. Corp. Hist. Germ. p. 457.</p></div> + +<div class="footnote"><p><a name="Footnote_874_874" id="Footnote_874_874"></a><a href="#FNanchor_874_874"><span class="label">[t]</span></a> An extract from this poem was published in 1808 by Mr. +Southey, at the end of his "Chronicle of the Cid," the materials of which +it partly supplied, accompanied by an excellent version by a gentleman, +who is distinguished, among many other talents, for an unrivalled felicity +in expressing the peculiar manner of authors whom he translates or +imitates. M. Sismondi has given other passages in the third volume of his +History of Southern Literature. This popular and elegant work contains +some interesting and not very common information as to the early Spanish +poets in the Provençal dialect, as well as those who wrote in Castilian.</p></div> + +<div class="footnote"><p><a name="Footnote_875_875" id="Footnote_875_875"></a><a href="#FNanchor_875_875"><span class="label">[u]</span></a> Dissert. 32.</p></div> + +<div class="footnote"><p><a name="Footnote_876_876" id="Footnote_876_876"></a><a href="#FNanchor_876_876"><span class="label">[x]</span></a> Tiraboschi, t. iv. p. 340.</p></div> + +<div class="footnote"><p><a name="Footnote_877_877" id="Footnote_877_877"></a><a href="#FNanchor_877_877"><span class="label">[y]</span></a> Dante, in his treatise De vulgari Eloquentiâ, reckons +fourteen or fifteen dialects, spoken in different parts of Italy, all of +which were debased by impure modes of expression. But the "noble, +principal, and courtly Italian idiom," was that which belonged to every +city, and seemed to belong to none, and which, if Italy had a court, would +be the language of that court. p. 274, 277. +</p><p> +Allowing for the metaphysical obscurity in which Dante chooses to envelop +the subject, this might perhaps be said at present. The Florentine dialect +has its peculiarities, which distinguish it from the general Italian +language, though these are seldom discerned by foreigners, nor always by +natives, with whom Tuscan is the proper denomination of their national +tongue.</p></div> + +<div class="footnote"><p><a name="Footnote_878_878" id="Footnote_878_878"></a><a href="#FNanchor_878_878"><span class="label">[z]</span></a> Tiraboschi, t. iv. p. 309-377. Ginguené, vol. i. c. 6. The +style of the Vita Nuova of Dante, written soon after the death of his +Beatrice, which happened in 1290, is hardly distinguishable, by a +foreigner, from that of Machiavel or Castiglione. Yet so recent was the +adoption of this language, that the celebrated master of Dante, Brunetto +Latini, had written his <i>Tesoro</i> in French; and gives as a reason for it, +that it was a more agreeable and useful language than his own. Et se +aucuns demandoit pourquoi chis livre est ecris en Romans, selon la raison +de France, pour chose que nous sommes Ytalien, je diroie que ch'est pour +chose que nous sommes en France; l'autre pour chose <i>que la parleure en +est plus delitable et plus commune a toutes gens</i>. There is said to be a +manuscript history of Venice down to 1275, in the Florentine library, +written in French by Martin de Canale, who says that he has chosen that +language, parceque la langue franceise cort parmi le monde, et est la plus +delitable a lire et a oir que nulle autre. Ginguené, vol. i. p. 384.</p></div> + +<div class="footnote"><p><a name="Footnote_879_879" id="Footnote_879_879"></a><a href="#FNanchor_879_879"><span class="label">[a]</span></a> +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Tu proverai si (says Cacciaguida to him) come sà di sale<br /></span> +<span class="i0">Il pane altrui, e come è duro calle<br /></span> +<span class="i0">Il scendere e 'l salir per altrui scale.<br /></span> +<span class="i0"> <br /></span> +<span class="i0">Paradis. cant. 16.<br /></span> +</div></div> +</div> + +<div class="footnote"><p><a name="Footnote_880_880" id="Footnote_880_880"></a><a href="#FNanchor_880_880"><span class="label">[b]</span></a> Paradiso, cant. 16.</p></div> + +<div class="footnote"><p><a name="Footnote_881_881" id="Footnote_881_881"></a><a href="#FNanchor_881_881"><span class="label">[c]</span></a> Velli, Vita di Dante. Tiraboschi.</p></div> + +<div class="footnote"><p><a name="Footnote_882_882" id="Footnote_882_882"></a><a href="#FNanchor_882_882"><span class="label">[d]</span></a> The source from which Dante derived the scheme and general +idea of his poem has been a subject of inquiry in Italy. To his original +mind one might have thought the sixth Æneid would have sufficed. But +besides several legendary visions of the 12th and 13th centuries, it seems +probable that he derived hints from the Tesoretto of his master in +philosophical studies, Brunetto Latini. Ginguené, t. ii. p. 8.</p></div> + +<div class="footnote"><p><a name="Footnote_883_883" id="Footnote_883_883"></a><a href="#FNanchor_883_883"><span class="label">[e]</span></a> There is an unpleasing proof of this quality in a letter to +Boccaccio on Dante, whose merit he rather disingenuously extenuates; and +whose popularity evidently stung him to the quick. De Sade, t. iii. p. +512. Yet we judge so ill of ourselves, that Petrarch chose envy as the +vice from which of all others he was most free. In his dialogue with St. +Augustin, he says: Quicquid libuerit, dicito; modo me non accuses invidiæ. +<span class="smcap">Aug.</span> Utinam non tibi magis superbia quam invidia nocuisset: nam hoc +crimine, me judice, liber es. De Contemptu Mundi, edit. 1581, p. 342. +</p><p> +I have read in some modern book, but know not where to seek the passage, +that Petrarch did not intend to allude to Dante in the letter to Boccaccio +mentioned above, but rather to Zanobi Strata, a contemporary Florentine +poet, whom, however forgotten at present, the bad taste of a party in +criticism preferred to himself.—Matteo Villani mentions them together as +the two great ornaments of his age. This conjecture seems probable, for +some expressions are not in the least applicable to Dante. But whichever +was intended, the letter equally shows the irritable humour of Petrarch.</p></div> + +<div class="footnote"><p><a name="Footnote_884_884" id="Footnote_884_884"></a><a href="#FNanchor_884_884"><span class="label">[f]</span></a> A goldsmith of Bergamo, by name Henry Capra, smitten with +an enthusiastic love of letters, and of Petrarch, earnestly requested the +honour of a visit from the poet. The house of this good tradesman was full +of representations of his person, and of inscriptions with his name and +arms. No expense had been spared in copying all his works as they +appeared. He was received by Capra with a princely magnificence; lodged in +a chamber hung with purple, and a splendid bed on which no one before or +after him was permitted to sleep. Goldsmiths, as we may judge by this +instance, were opulent persons; yet the friends of Petrarch dissuaded him +from the visit, as derogatory to his own elevated station. De Sade, t. +iii. p. 496.</p></div> + +<div class="footnote"><p><a name="Footnote_885_885" id="Footnote_885_885"></a><a href="#FNanchor_885_885"><span class="label">[g]</span></a> See the beautiful sonnet, Erano i capei d'oro all'aura +sparsi. In a famous passage of his Confessions, he says: Corpus illud +egregium morbis et crebris partubus exhaustum, multum pristini vigoris +amisit. Those who maintain the virginity of Laura are forced to read +<i>perturbationibus</i>, instead of <i>partubus</i>. Two manuscripts in the royal +library at Paris have the contraction <i>ptbus</i>, which leaves the matter +open to controversy. De Sade contends that "crebris" is less applicable to +"perturbationibus" than to "partubus." I do not know that there is much in +this; but I am clear that corpus exhaustum partubus is much the more +elegant Latin expression of the two.</p></div> + +<div class="footnote"><p><a name="Footnote_886_886" id="Footnote_886_886"></a><a href="#FNanchor_886_886"><span class="label">[h]</span></a> [<a href="#N1_3"><span class="smcap">Note</span> III.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_887_887" id="Footnote_887_887"></a><a href="#FNanchor_887_887"><span class="label">[i]</span></a> [I leave this as it stood. But my own taste has changed. 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. 1848.]</p></div> + +<div class="footnote"><p><a name="Footnote_888_888" id="Footnote_888_888"></a><a href="#FNanchor_888_888"><span class="label">[k]</span></a> A sufficient extract from this work of Layamon has been +published by Mr. Ellis, in his Specimens of Early English Poetry, vol. i. +p. 61. This extract contains, he observes, no word which we are under the +necessity of ascribing to a French origin. +</p><p> +[Layamon, as is now supposed, wrote in the reign of John. See Sir +Frederick 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 +grammatical flexions. See Quarterly Review for April 1848. +</p><p> +The entire work of Layamon contains a small number of words taken from the +French; about fifty in the original text, and about forty more in that of +a manuscript, perhaps half a century later, and very considerably altered +in consequence of the progress of our language. Many of these words +derived from the French express new ideas, as admiral, astronomy, baron, +mantel, &c. "The language of Layamon," says Sir Frederick Madden, "belongs +to that transition period in which the groundwork of Anglo-Saxon +phraseology and grammar still existed, although gradually yielding to the +influence of the popular forms of speech. We find in it, as in the later +portion of the Saxon Chronicle, marked indications of a tendency to adopt +those terminations and sounds which characterize a language in a state of +change, and which are apparent also in some other branches of the Teutonic +tongue. The use of <i>a</i> as an article—the change of the Anglo-Saxon +terminations <i>a</i> and <i>an</i> into <i>e</i> and <i>en</i>, as well as the disregard of +inflections and genders—the masculine forms given to neuter nouns in the +plural—the neglect of the feminine terminations of adjectives and +pronouns, and confusion between the definite and indefinite +declensions—the introduction of the preposition <i>to</i> before infinitives, +and occasional use of weak preterites of verbs and participles instead of +strong—the constant recurrence of <i>er</i> for <i>or</i> in the plurals of +verbs—together with the uncertainty of the rule for the government of +prepositions—all these variations, more or less visible in the two texts +of Layamon, combined with the vowel-changes, which are numerous, though +not altogether arbitrary, will show at once the progress made in two +centuries, in departing from the ancient and purer grammatical forms, as +found in Anglo-Saxon manuscripts." Preface, p. xxviii.]</p></div> + +<div class="footnote"><p><a name="Footnote_889_889" id="Footnote_889_889"></a><a href="#FNanchor_889_889"><span class="label">[m]</span></a> Warton's Hist. of English Poetry, Ellis's Specimens.</p></div> + +<div class="footnote"><p><a name="Footnote_890_890" id="Footnote_890_890"></a><a href="#FNanchor_890_890"><span class="label">[n]</span></a> This conjecture of Scott has not been favourably received +by later critics.</p></div> + +<div class="footnote"><p><a name="Footnote_891_891" id="Footnote_891_891"></a><a href="#FNanchor_891_891"><span class="label">[o]</span></a> Warton printed copious extracts from some of these. Ritson +gave several of them entire to the press. And Mr. Ellis has adopted the +only plan which could render them palatable, by intermingling short +passages, where the original is rather above its usual mediocrity, with +his own lively analysis.</p></div> + +<div class="footnote"><p><a name="Footnote_892_892" id="Footnote_892_892"></a><a href="#FNanchor_892_892"><span class="label">[p]</span></a> The evidences of this general employment and gradual disuse +of French in conversation and writing are collected by Tyrwhitt, in a +dissertation on the ancient English language, prefixed to the fourth +volume of his edition of Chaucer's Canterbury Tales; and by Ritson, in the +preface to his Metrical Romances, vol. i. p. 70.</p></div> + +<div class="footnote"><p><a name="Footnote_893_893" id="Footnote_893_893"></a><a href="#FNanchor_893_893"><span class="label">[q]</span></a> Rymer, t. v. p. 490; t. vi. p. 642, et alibi.</p></div> + +<div class="footnote"><p><a name="Footnote_894_894" id="Footnote_894_894"></a><a href="#FNanchor_894_894"><span class="label">[r]</span></a> Ritson, p. 80. There is one in Rymer of the year 1385.</p></div> + +<div class="footnote"><p><a name="Footnote_895_895" id="Footnote_895_895"></a><a href="#FNanchor_895_895"><span class="label">[s]</span></a> [<a href="#N1_4"><span class="smcap">Note</span> IV.</a>]</p></div> + +<div class="footnote"><p><a name="Footnote_896_896" id="Footnote_896_896"></a><a href="#FNanchor_896_896"><span class="label">[t]</span></a> See Tyrwhitt's essay on the language and versification of +Chaucer, in the fourth volume of his edition of the Canterbury Tales. The +opinion of this eminent critic has lately been controverted by Dr. Nott, +who maintains the versification of Chaucer to have been wholly founded on +accentual and not syllabic regularity. I adhere, however, to Tyrwhitt's +doctrine.</p></div> + +<div class="footnote"><p><a name="Footnote_897_897" id="Footnote_897_897"></a><a href="#FNanchor_897_897"><span class="label">[u]</span></a> Warton's Hist. of English Poetry, vol. i. Dissertation II. +Roquefort, Etat de la Poésie Française du douzième Siècle p. 18. The +following lines from the beginning of the eighth book of the Philippis +seem a fair, or rather a favourable specimen of these epics. But I am very +superficially acquainted with any of them. +</p> +<div class="poem"><div class="stanza"> +<span class="i0">Solverat interea zephyris melioribus annum<br /></span> +<span class="i0">Frigore depulso veris tepor, et renovari<br /></span> +<span class="i0">Cœperat et viridi gremio juvenescere tellus;<br /></span> +<span class="i0">Cum Rea læta Jovis rideret ad oscula mater,<br /></span> +<span class="i0">Cum jam post tergum Phryxi vectore relicto<br /></span> +<span class="i0">Solis Agenorei premeret rota terga juvenci.<br /></span> +</div></div> +<p> +The tragedy of Eccerinus (Eccelin da Romano), by Albertinus Mussatus, a +Paduan, and author of a respectable history, deserves some attention, as +the first attempt to revive the regular tragedy. It was written soon after +1300. The language by no means wants animation, notwithstanding an +unskilful conduct of the fable. The Eccerinus is printed in the tenth +volume of Muratori's collection.</p></div> + +<div class="footnote"><p><a name="Footnote_898_898" id="Footnote_898_898"></a><a href="#FNanchor_898_898"><span class="label">[x]</span></a> Booksellers appear in the latter part of the twelfth +century. Peter of Blois mentions a law book which he had procured a quodam +publico mangone librorum. Hist. Littéraire de la France, t. ix. p. 84. In +the thirteenth century there were many copyists by occupation in the +Italian universities. Tiraboschi, t. iv. p. 72. The number of these at +Milan before the end of that age is said to have been fifty. Ibid. But a +very small proportion of their labour could have been devoted to purposes +merely literary. By a variety of ordinances, the first of which bears date +in 1275, the booksellers of Paris were subjected to the control of the +university. Crevier, t. ii. p. 67, 286. The pretext of this was, lest +erroneous copies should obtain circulation. And this appears to have been +the original of those restraints upon the freedom of publication, which +since the invention of printing have so much retarded the diffusion of +truth by means of that great instrument.</p></div> + +<div class="footnote"><p><a name="Footnote_899_899" id="Footnote_899_899"></a><a href="#FNanchor_899_899"><span class="label">[y]</span></a> Tiraboschi, t. v. p. 85. On the contrary side are +Montfaucon, Mabillon, and Muratori; the latter of whom carries up the +invention of our ordinary paper to the year 1000. But Tiraboschi contends +that the paper used in manuscripts of so early an age was made from cotton +rags, and, apparently from the inferior durability of that material, not +frequently employed. The editors of Nouveau Traité de Diplomatique are of +the same opinion, and doubt the use of linen paper before the year 1300. +t. i. p. 517, 521. Meerman, well known as a writer upon the antiquities of +printing, offered a reward for the earliest manuscript upon linen paper, +and, in a treatise upon the subject, fixed the date of its invention +between 1270 and 1300. But M. Schwandner of Vienna is said to have found +in the imperial library a small charter bearing the date of 1243 on such +paper. Macpherson's Annals of Commerce, vol. i. p. 394. Tiraboschi, if he +had known this, would probably have maintained the paper to be made of +cotton, which he says it is difficult to distinguish. He assigns the +invention of linen paper to Pace da Fabiano of Treviso. But more than one +Arabian writer asserts the manufacture of linen paper to have been carried +on at Samarcand early in the eighth century, having been brought thither +from China. And what is more conclusive, Casiri positively declares many +manuscripts in the Escurial of the eleventh and twelfth centuries to be +written on that substance. Bibliotheca Arabico-Hispanica, t. ii. p. 9. +This authority appears much to outweigh the opinion of Tiraboschi in +favour of Pace da Fabiano, who must perhaps take his place at the table of +fabulous heroes with Bartholomew Schwartz and Flavio Gioja. But the +material point, that paper was very little known in Europe till the latter +part of the fourteenth century, remains as before. See Introduction to +History of Literature, c. i. § 58.</p></div> + +<div class="footnote"><p><a name="Footnote_900_900" id="Footnote_900_900"></a><a href="#FNanchor_900_900"><span class="label">[z]</span></a> Warton's Hist. of English Poetry, vol. ii. p. 122.</p></div> + +<div class="footnote"><p><a name="Footnote_901_901" id="Footnote_901_901"></a><a href="#FNanchor_901_901"><span class="label">[a]</span></a> Velly, t. v. p. 202; Crevier, t. ii. p. 36.</p></div> + +<div class="footnote"><p><a name="Footnote_902_902" id="Footnote_902_902"></a><a href="#FNanchor_902_902"><span class="label">[b]</span></a> Warton, vol. i; Dissert. II.</p></div> + +<div class="footnote"><p><a name="Footnote_903_903" id="Footnote_903_903"></a><a href="#FNanchor_903_903"><span class="label">[c]</span></a> Ibid.</p></div> + +<div class="footnote"><p><a name="Footnote_904_904" id="Footnote_904_904"></a><a href="#FNanchor_904_904"><span class="label">[d]</span></a> Warton, vol. i. Dissert. II. Fifty-eight books were +transcribed in this abbey under one abbot, about the year 1300. Every +considerable monastery had a room, called Scriptorium, where this work was +performed. More than eighty were transcribed at St. Albans under +Whethamstede, in the time of Henry VI. ibid. See also Du Cange, V +Scriptores. Nevertheless we must remember, first, that the far greater +part of these books were mere monastic trash, or at least useless in our +modern apprehension; secondly, that it depended upon the character of the +abbot, whether the scriptorium should be occupied or not. Every head of a +monastery was not a Whethamstede. Ignorance and jollity, such as we find +in Bolton Abbey, were their more usual characteristics. By the account +books of this rich monastery, about the beginning of the fourteenth +century, three books only appear to have been purchased in forty years. +One of those was the Liber Sententiarum of Peter Lombard, which cost +thirty shillings, equivalent to near forty pounds at present. Whitaker's +Hist. of Craven, p. 330.</p></div> + +<div class="footnote"><p><a name="Footnote_905_905" id="Footnote_905_905"></a><a href="#FNanchor_905_905"><span class="label">[e]</span></a> Ibid.; Villaret, t. xi. p. 117.</p></div> + +<div class="footnote"><p><a name="Footnote_906_906" id="Footnote_906_906"></a><a href="#FNanchor_906_906"><span class="label">[f]</span></a> Niccolo Niccoli, a private scholar, who contributed +essentially to the restoration of ancient learning, bequeathed a library +of eight hundred volumes to the republic of Florence. This Niccoli hardly +published any thing of his own; but earned a well-merited reputation by +copying and correcting manuscripts. Tiraboschi, t. vi. p. 114; Shepherd's +Poggio, p. 319. In the preceding century Colluccio Salutato had procured +as many as eight hundred volumes. Ibid. p. 23. Roscoe's Lorenzo de' +Medici, p. 55.</p></div> + +<div class="footnote"><p><a name="Footnote_907_907" id="Footnote_907_907"></a><a href="#FNanchor_907_907"><span class="label">[g]</span></a> Schmidt, Hist. des Allemands, t. v. p. 520.</p></div> + +<div class="footnote"><p><a name="Footnote_908_908" id="Footnote_908_908"></a><a href="#FNanchor_908_908"><span class="label">[h]</span></a> He had lent it to a needy man of letters, who pawned the +book, which was never recovered. De Sade, t. i. p. 57.</p></div> + +<div class="footnote"><p><a name="Footnote_909_909" id="Footnote_909_909"></a><a href="#FNanchor_909_909"><span class="label">[i]</span></a> Tiraboschi, p. 89.</p></div> + +<div class="footnote"><p><a name="Footnote_910_910" id="Footnote_910_910"></a><a href="#FNanchor_910_910"><span class="label">[k]</span></a> Idem, t. v. p. 83; De Sade, t. i p. 88.</p></div> + +<div class="footnote"><p><a name="Footnote_911_911" id="Footnote_911_911"></a><a href="#FNanchor_911_911"><span class="label">[m]</span></a> Tiraboschi, p. 101.</p></div> + +<div class="footnote"><p><a name="Footnote_912_912" id="Footnote_912_912"></a><a href="#FNanchor_912_912"><span class="label">[n]</span></a> Tiraboschi, t. vi. p. 104; and Shepherd's Life of Poggio, +p. 106, 110; Roscoe's Lorenzo de' Medici, p. 38.</p></div> + +<div class="footnote"><p><a name="Footnote_913_913" id="Footnote_913_913"></a><a href="#FNanchor_913_913"><span class="label">[o]</span></a> Schmidt, Hist. des Allemands, t. ii. p. 374; Tiraboschi, t. +iii. p. 124, et alibi. Bede extols Theodore primate of Canterbury and +Tobias bishop of Rochester for their knowledge of Greek. Hist. Eccles. c. +9 and 24. But the former of these prelates, if not the latter, was a +native of Greece.</p></div> + +<div class="footnote"><p><a name="Footnote_914_914" id="Footnote_914_914"></a><a href="#FNanchor_914_914"><span class="label">[p]</span></a> Hist. Littéraire de la France, t. iv. p. 12</p></div> + +<div class="footnote"><p><a name="Footnote_915_915" id="Footnote_915_915"></a><a href="#FNanchor_915_915"><span class="label">[q]</span></a> Greek characters are found in a charter of 943, published +in Martenne, Thesaurus Anecdot. t. i. p. 74. The title of a treatise +<span class="grk">περὶ +φύσεων +μερίσμου</span>, +and the word +<span class="grk">θεοτόκος</span>, +occur in William of Malmsbury, and one or two others in Lanfranc's Constitutions. +It is said that a Greek psalter was written in an abbey at Tournay about +1105. Hist. Litt. de la France, t. ix. p. 102. This was, I should think, a +very rare instance of a Greek manuscript, sacred or profane, copied in the +western parts of Europe before the fifteenth century. But a Greek psalter +written in Latin characters at Milan in the 9th century was sold some +years ago in London. John of Salisbury is said by Crevier to have known a +little Greek, and he several times uses technical words in that language. +Yet he could not have been much more learned than his neighbours; since, +having found the word +<span class="grk">οὐσία</span> +in St. Ambrose, he was forced to ask +the meaning of one John Sarasin, an Englishman, because, says he, none of +our masters here (at Paris) understand Greek. Paris, indeed, Crevier +thinks, could not furnish any Greek scholar in that age except Abelard and +Heloise, and probably neither of them knew much. Hist. de l'Univers. de +Paris, t. i. p. 259. +</p><p> +The ecclesiastical language, it may be observed, was full of Greek words +Latinized. But this process had taken place before the fifth century; and +most of them will be found in the Latin dictionaries. A Greek word was now +and then borrowed, as more imposing than the correspondent Latin. Thus the +English and other kings sometimes called themselves Basileus, instead of +Rex. +</p><p> +It will not be supposed that I have professed to enumerate all the persons +of whose acquaintance with the Greek tongue some evidence may be found; +nor have I ever directed my attention to the subject with that view. +Doubtless the list might be more than doubled. But, if ten times the +number could be found, we should still be entitled to say, that the +language was almost unknown, and that it could have had no influence on +the condition of literature. [See Introduction to Hist. of Literature, +chap. 2, § 7.]</p></div> + +<div class="footnote"><p><a name="Footnote_916_916" id="Footnote_916_916"></a><a href="#FNanchor_916_916"><span class="label">[r]</span></a> Nemo est qui Græcas literas nôrit; at ego in hoc Latinitati +compatior, quæ sic omnino Græca abjecit studia, ut etiam non noscamus +characteres literarum. Genealogiæ Deorum, apud Hodium de Græcis +Illustribus, p. 3.</p></div> + +<div class="footnote"><p><a name="Footnote_917_917" id="Footnote_917_917"></a><a href="#FNanchor_917_917"><span class="label">[s]</span></a> Mém. de Pétrarque, t. i. p. 407.</p></div> + +<div class="footnote"><p><a name="Footnote_918_918" id="Footnote_918_918"></a><a href="#FNanchor_918_918"><span class="label">[t]</span></a> Mém. de Pétrarque, t. i. p. 447; t. iii. p. 634. Hody de +Græcis Illust. p. 2. Boccace speaks modestly of his own attainments in +Greek: etsi non satis plené perceperim, percepi tamen quantum potui; nee +dubium, si permansisset homo ille vagus diutius penes nos, quin plenius +percepissem. id. p. 4.</p></div> + +<div class="footnote"><p><a name="Footnote_919_919" id="Footnote_919_919"></a><a href="#FNanchor_919_919"><span class="label">[u]</span></a> Hody places the commencement of Chrysoloras's teaching as +early as 1391. p. 3. But Tiraboschi, whose research was more precise, +fixes it at the end of 1396 or beginning of 1397, t. vii. p. 126.</p></div> + +<div class="footnote"><p><a name="Footnote_920_920" id="Footnote_920_920"></a><a href="#FNanchor_920_920"><span class="label">[x]</span></a> Tiraboschi, t. vi. p. 102; Roscoe's Lorenzo de' Medici, +vol. i. p. 43.</p></div> + +<div class="footnote"><p><a name="Footnote_921_921" id="Footnote_921_921"></a><a href="#FNanchor_921_921"><span class="label">[y]</span></a> The authors most conversant with Byzantine learning agree +in this. Nevertheless, there is one manifest difference between the Greek +writers of the worst period, such as the eighth century, and those who +correspond to them in the West. Syncellus, for example, is of great use in +chronology, because he was acquainted with many ancient histories now no +more. But Bede possessed nothing which we have lost; and his compilations +are consequently altogether unprofitable. The eighth century, the Sæculum +Iconoclasticum of Cave, low as it was in all polite literature, produced +one man, John Damascenus, who has been deemed the founder of scholastic +theology, and who at least set the example of that style of reasoning in +the East. This person, and Michael Psellus, a philosopher of the eleventh +century, are the only considerable men, as original writers, in the annals +of Byzantine literature.</p></div> + +<div class="footnote"><p><a name="Footnote_922_922" id="Footnote_922_922"></a><a href="#FNanchor_922_922"><span class="label">[z]</span></a> The honour of restoring ancient or heathen literature is +due to the Cæsar Bardas, uncle and minister of Michael II. Cedrenus speaks +of it in the following terms: +<span class="grk">ἐπεμελήθη +δὲ καὶ τῆς +ἔξω σοφίας, +(ἢν γὰρ ἐκ πόλλου +χρόνου +παραῤῥυεῖσα, +καὶ πρὸς τῇ +μηδὲν ὅλως +χωρήσασα τῇ +τῶν κρατοῦντων +ἀργίᾳ καὶ +αμαθίᾳ) +διατρίβας +ἑκάστῃ τῶν +επιστήμων +άφορισὰς, +τῶν μὲν ἄλλων +ὅπῃ περ ἔτυχε, +τῆς δ' ἐπὶ +πασῶν ἐπόχου +φιλοσοφίας +κατ' ἀυτὰ τὰ +βασίλεια ἐν +τῇ Μαγναύρᾳ · +καὶ οὕτω +ἐξ ἐκέινου +ἀνηβάσκειν αἱ +ἐπιστημᾶι +ἤρξαντο. +κ. τ. λ.</span> +Hist. Byzant. Script. (Lutet.) +t. x. p. 547. Bardas found out and promoted Photius, afterwards patriarch +of Constantinople, and equally famous in the annals of the church and of +learning. Gibbon passes perhaps too rapidly over the Byzantine literature, +chap. 53. In this, as in many other places, the masterly boldness and +precision of his outline, which astonish those who have trodden parts of +the same field, are apt to escape an uninformed reader.</p></div> + +<div class="footnote"><p><a name="Footnote_923_923" id="Footnote_923_923"></a><a href="#FNanchor_923_923"><span class="label">[a]</span></a> Du Cange, Præfatio ad Glossar. Græcitatis Medii Evi. Anna +Comnena quotes some popular lines, which seem to be the earliest specimen +extant of the Romaic dialect, or something approaching it, as they observe +no grammatical inflexion, and bear about the same resemblance to ancient +Greek that the worst law-charters of the ninth and tenth centuries do to +pure Latin. In fact, the Greek language seems to have declined much in the +same manner as the Latin did, and almost at as early a period. In the +sixth century, Damascius, a Platonic philosopher, mentions the old +language as distinct from that which was vernacular, +<span class="grk">τὴν ἀρχάιαν +γλῶτταν +ὑπὲρ τὴν +ἰδιώτην +μελετοῦσι</span>. +Du Cange, ibid. p. 11. It is well +known that the popular, or <i>political</i> verses of Tzetzes, a writer of the +twelfth century, are accentual; that is, are to be read, as the modern +Greeks do, by treating every acute or circumflex syllable as long, without +regard to its original quantity. This innovation, which must have produced +still greater confusion of metrical rules than it did in Latin, is much +older than the age of Tzetzes; if, at least, the editor of some notes +subjoined to Meursius's edition of the Themata of Constantine +Porphyrogenitus (Lugduni, 1617) is right in ascribing certain political +verses to that emperor, who died in 959. These verses are regular +accentual trochaics. But I believe they have since been given to +Constantine Manasses, a writer of the eleventh century. +</p><p> +According to the opinion of a modern traveller (Hobhouse's Travels in +Albania, letter 33) the chief corruptions which distinguish the Romaic +from its parent stock, especially the auxiliary verbs, are not older than +the capture of Constantinople by Mahomet II. But it seems difficult to +obtain any satisfactory proof of this; and the auxiliary verb is so +natural and convenient, that the ancient Greeks may probably, in some of +their local idioms, have fallen into the use of it; as Mr. H. admits they +did with respect to the future auxiliary +<span class="grk">θελω</span>. +See some instances of this in Lesbonax, +<span class="grk">περὶ +σχημάτων</span>, +ad finem Ammonii, curâ Valckenaër.</p></div> + +<div class="footnote"><p><a name="Footnote_924_924" id="Footnote_924_924"></a><a href="#FNanchor_924_924"><span class="label">[b]</span></a> Photius (I write on the authority of M. Heeren) quotes +Theopompus, Arrian's History of Alexander's Successors, and of Parthia, +Ctesias, Agatharcides, the whole of Diodorus Siculus, Polybius, and +Dionysius of Halicarnassus, twenty lost orations of Demosthenes, almost +two hundred of Lycias, sixty-four of Isæus, about fifty of Hyperides. +Heeren ascribes the loss of these works altogether to the Latin capture of +Constantinople, no writer subsequent to that time having quoted them. +Essai sur les Croisades, p. 413. It is difficult however not to suppose +that some part, of the destruction was left for the Ottomans to perform. +Æneas Sylvius bemoans, in his speech before the diet of Frankfort, the +vast losses of literature by the recent subversion of the Greek empire. +Quid de libris dicam, qui illic erant innumerabiles, nondum Latinis +cogniti!... Nunc ergo, et Homero et Pindaro et <i>Menandro</i> et omnibus +illustrioribus poetis, secunda mors erit. But nothing can be inferred from +this declamation, except, perhaps, that he did not know whether Menander +still existed or not. Æn. Sylv. Opera, p. 715; also p. 881. Harris's +Philological Inquiries, part iii. c. 4. It is a remarkable proof, however, +of the turn which Europe, and especially Italy, was taking, that a pope's +legate should, on a solemn occasion, descant so seriously on the injury +sustained by profane literature. +</p><p> +An useful summary of the lower Greek literature, taken chiefly from the +Bibliotheca Græca of Fabricius, will be found in Berington's Literary +History of the Middle Ages, Appendix I.; and one rather more copious in +Schoëll, Abrégé de la Littérature Grècque. (Paris, 1812.)</p></div> + +<div class="footnote"><p><a name="Footnote_925_925" id="Footnote_925_925"></a><a href="#FNanchor_925_925"><span class="label">[c]</span></a> Wood's Antiquities of Oxford, vol. i p. 537.</p></div> + +<div class="footnote"><p><a name="Footnote_926_926" id="Footnote_926_926"></a><a href="#FNanchor_926_926"><span class="label">[d]</span></a> Roper's Vita Mori, ed. Hearne, p. 75.</p></div> + +<div class="footnote"><p><a name="Footnote_927_927" id="Footnote_927_927"></a><a href="#FNanchor_927_927"><span class="label">[e]</span></a> Crevier, t. iv. p. 243; see too p. 46.</p></div> + +<div class="footnote"><p><a name="Footnote_928_928" id="Footnote_928_928"></a><a href="#FNanchor_928_928"><span class="label">[f]</span></a> Incredibilis ingeniorum barbaries est; rarissimi literas +nôrunt, nulli elegantiam. Papiensis Epistolæ, p. 377. Campano's notion of +elegance was ridiculous enough. Nobody ever carried further the pedantic +affectation of avoiding modern terms in his Latinity. Thus, in the life of +Braccio da Montone, he renders his meaning almost unintelligible by excess +of classical purity. Braccio boasts se numquam deorum immortalium templa +violâsse. Troops committing outrages in a city are accused virgines +vestales incestâsse. In the terms of treaties he employs the old Roman +forms; exercitum trajicito—oppida pontificis sunto, &c. And with a most +absurd pedantry, the ecclesiastical state is called Romanum imperium. +Campani Vita Braccii, in Muratori Script. Rer. Ital. t. xix.</p></div> + +<div class="footnote"><p><a name="Footnote_929_929" id="Footnote_929_929"></a><a href="#FNanchor_929_929"><span class="label">[g]</span></a> A letter from Master William Paston at Eton (Paston +Letters, vol. i. p. 299) proves that Latin versification was taught there +as early as the beginning of Edward IV.'s reign. It is true that the +specimen he rather proudly exhibits does not much differ from what we +denominate nonsense verses. But a more material observation is, that the +sons of country gentlemen living at a considerable distance were already +sent to public schools for grammatical education.</p></div> + +<div class="footnote"><p><a name="Footnote_930_930" id="Footnote_930_930"></a><a href="#FNanchor_930_930"><span class="label">[h]</span></a> De Bure, t. i. p. 30. Several copies of this book have come +to light since its discovery.</p></div> + +<div class="footnote"><p><a name="Footnote_931_931" id="Footnote_931_931"></a><a href="#FNanchor_931_931"><span class="label">[i]</span></a> Id., p. 71.</p></div> + +<div class="footnote"><p><a name="Footnote_932_932" id="Footnote_932_932"></a><a href="#FNanchor_932_932"><span class="label">[k]</span></a> Mém. de l'Acad. des Inscriptions, t. xiv. p. 265. Another +edition of the Bible is supposed to have been printed by Pfister at +Bamberg in 1459.</p></div> + +<div class="footnote"><p><a name="Footnote_933_933" id="Footnote_933_933"></a><a href="#FNanchor_933_933"><span class="label">[m]</span></a> Tiraboschi, t. vi. p. 140.</p></div> + +<div class="footnote"><p><a name="Footnote_934_934" id="Footnote_934_934"></a><a href="#FNanchor_934_934"><span class="label">[n]</span></a> Sanuto mentions an order of the senate in 1469, that John +of Spira should print the epistles of Tully and Pliny for five years, and +that no one else should do so. Script. Rerum Italic. t. xxii. p. 1189.</p></div> +</div> + +<hr /> + +<h2>NOTES TO CHAPTER IX.</h2> + +<p class="center"><span class="smcap"><a name="N1_1"></a>Note</span> I. Page 288. +<span class="pagenum"><a name="Page_474" id="Page_474">[Pg 474]</a></span></p> + +<p><span class="smcap">A rapid</span> 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 possessed any acquaintance with +classical authors, or who wrote with any command of the Latin language. +Their studies, whenever they studied at all, were almost exclusively +theological; and this must be understood as to the subsequent centuries. +By theological is meant the vulgate Scriptures and some of the Latin +fathers; not, however, by reasoning upon them, or doing much more than +introducing them as authority in their own words. In the seventh century, +and still more at the beginning of the eighth, very little even of this +remained in France, where we find hardly a name deserving of remembrance +in a literary sense; but Isidore, and our own Bede, do honour to Spain and +Britain.</p> + +<p>It may certainly be said for France and Germany, notwithstanding 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 progress was so very slow, and the men in front +of it so little capable of bearing comparison with those of later times, +considering their writings positively and without indulgence, that it is +by no means unjust to call the centuries dark which elapsed between +Charlemagne and the manifest revival of literary pursuits towards the 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 +<span class="pagenum"><a name="Page_475" id="Page_475">[Pg 475]</a></span> +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 +further removed from classical poetry. Lupus, abbot of Ferrières, early in +the ninth century, in some of his epistles writes tolerable Latin, though +this is far from being always the case; he is smitten with a love of +classical literature, quotes several poets and prose writers, and is +almost as 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.<a name="FNanchor_935_935" id="FNanchor_935_935"></a><a href="#Footnote_935_935" class="fnanchor">[a]</a> +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.</p> + +<p>The tenth century has in all times borne the worst name. Baronius calls +it, in one page, <i>plumbeum</i>, <i>obscurum</i>, <i>infelix</i> (Annales, <small>A.D.</small> 900). +And Cave, who dubs all his centuries by some epithet, assigns <i>ferreum</i> 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 in it; more glimmerings of acquaintance with the +Latin classics appear; and the schools, cathedral and conventual, had +acquired a more regular and uninterrupted 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 +<span class="pagenum"><a name="Page_476" id="Page_476">[Pg 476]</a></span> +was extremely +perceptible. It is commonly 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 consecutive since the sixth.</p> + +<p>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, Cædmon, and +Alcuin; to whom, if Ireland will permit us, we may desire to add Scotus, +who came a little afterwards, but whose residence in this island at any +time appears an unauthenticated tale. But we know how Alfred speaks of the +ignorance of the clergy in his own age. Nor was this much better +afterwards. Even the eleventh century, especially before the Conquest, is +a very blank period in the literary annals of England. No one can have a +conception how wretchedly scanty is the list of literary names from Alfred +to the Conquest, who does not look to Mr. Turner's History of the +Anglo-Saxons, or to Mr. Wright's Biographia Literaria.</p> + +<p>There could be no general truth respecting the past, as it appeared to me, +more notorious, or more incapable of being denied with any plausibility, +than the characteristic ignorance of Europe during those centuries which +we commonly style the Dark Ages. A powerful stream, however, of what, as +to the majority at least, I must call prejudice, has been directed of late +years in an opposite direction. The mediæval period, in manners, in arts, +in literature, and especially in religion, has been regarded with unwonted +partiality; and this favourable temper has been extended to those ages +which had lain most frequently under the ban of historical and literary +censure.</p> + +<p>A considerable impression has been made on the predisposed by the Letters +on the Dark Ages, which we owe to Dr. Maitland. Nor is this by any means +surprising; both because the predisposed are soon convinced, and because +the Letters are written with great ability, accurate learning, a spirited +and lively pen, and consequently with a success in skirmishing warfare +which many readily mistake for the gain of a pitched battle. +<span class="pagenum"><a name="Page_477" id="Page_477">[Pg 477]</a></span> Dr. Maitland +is endowed with another quality, far more rare in historical controversy, +especially of the ecclesiastical kind: I believe him to be of scrupulous +integrity, minutely exact in all that he asserts; and indeed the wrath and +asperity, which sometimes appear rather more than enough, are only called +out by what he conceives to be wilful or slovenly misrepresentation. Had +I, therefore, 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 testimony, both in regard to his power of discerning +truth and his desire to express it. But I have no call for any +examination, could I institute it; 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 proposition that the dark ages, those from the sixth to the +eleventh, were ages of ignorance. Nor does he, as far as I collect, +attempt to deny this evident truth; it is merely his object to prove that +they were less ignorant, less dark, and in all points of view less worthy +of condemnation than many suppose. I do not gainsay this position; being +aware, as I have observed both in this and in another work, that the mere +ignorance of these ages, striking as it is in comparison with earlier and +later times, has been sometimes exaggerated; and that Europeans, and +especially Christians, could not fall back into the absolute barbarism of +the Esquimaux. But what a man of profound and accurate learning puts +forward with limitations, sometimes expressed, and always present to his +own mind, a heady and shallow retailer takes up, and exaggerates in +conformity with his own prejudices.</p> + +<p>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 <small>A.D.</small> 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 knowledge of the vulgate +Scriptures possessed by the better-informed clergy, he obtains no very +difficult victory over those who have imbibed extravagant notions, both as +to the ignorance of the Sacred Writings in those times and the desire to +keep them away from the people. +<span class="pagenum"><a name="Page_478" id="Page_478">[Pg 478]</a></span> +This latter prejudice is obviously +derived from a confusion of the subsequent period, the centuries preceding +the Reformation, with those which we have immediately before us. But as +the word <i>dark</i> 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 +common in monasteries as Dr. Maitland supposes; and yet his proofs seem +much too doubtful to sustain that hypothesis.</p> + +<p>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 immediate 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. Ampère, +in his Histoire Littéraire de la France avant le douzième siècle (3 vols. +Paris, 1840). No one will accuse this intelligent writer of unduly +depreciating the ages which he thus brings before us; and by the perusal +of his volumes, to which Heeren and 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.</p> + +<p>I shall conclude by remarking that one is a little tempted to inquire why +so much anxiety is felt by the advocates of the mediæval 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 Normans pillaged their monasteries. It +was not by their means that the Saracens shut up the supply of papyrus, +<span class="pagenum"><a name="Page_479" id="Page_479">[Pg 479]</a></span> +and that sheep-skins bore a great price. Europe was altogether decayed in +intellectual character, partly in consequence 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—<span class="grk">Σπέρμα +πυρὸς +σώζουσα</span>. Meantime, what better apology than +this ignorance 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 proportions 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 acknowledge the general +ignorance as a sort of excuse. [1848.]</p> + +<p class="center"><br /><span class="smcap"><a name="N1_2"></a>Note</span> II. Page 350.</p> + +<p>The account of domestic architecture given in the text is very +superficial; but the subject still remains, comparatively with other +portions of mediæval antiquity, but imperfectly 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. Twopeny, whose attention +has long been directed to the subject. "There is ample evidence yet +remaining of the domestic architecture in this country during the twelfth +century. The ordinary manor-houses, and even houses of greater +consideration, appear to have been generally built in the form of a +parallelogram, two stories high,<a name="FNanchor_936_936" id="FNanchor_936_936"></a><a href="#Footnote_936_936" class="fnanchor">[b]</a> +the lower story vaulted, with no +internal communication +<span class="pagenum"><a name="Page_480" id="Page_480">[Pg 480]</a></span> +between 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 preceding century." Instances of houses +partly remaining are then given. We may add to those mentioned by Mr. +Twopeny one, perhaps older than any, and better preserved than some, in +his list. 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.<a name="FNanchor_937_937" id="FNanchor_937_937"></a><a href="#Footnote_937_937" class="fnanchor">[c]</a></p> + +<p>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 on the ground, the staircase within; a kitchen and other offices, +originally detached, were usually connected with the hall by a passage running +<span class="pagenum"><a name="Page_481" id="Page_481">[Pg 481]</a></span> +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 +entire house, but detached turrets for sleeping-rooms rose at some of the +angles. This was the typical form which lasted, as we know, to the age of +Elizabeth, or even later. The superior houses of this class were sometimes +quadrangular, that is, including a court-yard, but seldom, perhaps, with +more than one side allotted to the main dwelling; offices, stables, or +mere walls filled the other three.</p> + +<p>Many dwellings erected in the fourteenth century may be found in England; +but neither of that nor the next age are there more than a very few, which +are still, in their chief rooms, inhabited by gentry. But houses, which by +their marks of decoration, or by external proof, are ascertained to have +been formerly occupied by good families, though now in the occupation of +small farmers, and built apparently from the reign of the second to that +of the fourth Edward, are common in many counties. They generally bear the +name of court, hall, or grange; sometimes only the surname of some ancient +occupant, and very frequently have been the residence of the lord of the +manor.</p> + +<p>The most striking circumstance in the oldest houses is not so much their +precautions for defence in the outside staircase, and when that was +disused, the better safeguard against robbery in the moat which frequently +environed the walls, the strong gateway, the small window broken by +mullions, which are no more than we should expect in the times, as the +paucity of apartments, so that both sexes, and that even in high rank, +must have occupied the same room. The progress of a regard to decency in +domestic architecture has been gradual, and in some respects has been +increasing up to our own age. But the mediæval period shows little of it; +though in the advance of wealth, a greater division of apartments +distinguishes the houses of the fourteenth and fifteenth centuries from +those of an earlier period.</p> + +<p>The French houses of the twelfth and thirteenth centuries 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 Archæological +<span class="pagenum"><a name="Page_482" id="Page_482">[Pg 482]</a></span> +Journal (vol. i. p. 212), +where proofs are adduced from the fabliaux of Barbasan. [1848.]</p> + +<p class="center"><br /><span class="smcap"><a name="N1_3"></a>Note</span> III. Page 451.</p> + +<p>The Abbé de Sade, in those copious memoirs of the life of Petrarch, which +illustrate in an agreeable though rather prolix manner the civil and +literary history of Provence and Italy in the fourteenth century, +endeavoured to establish his own descent from Laura, as the wife of Hughes +de Sade, and born in the family de Noves. This hypothesis has since been +received with general acquiescence by literary men; and Tiraboschi in +particular, whose talent lay in these petty biographical researches, and +who had a prejudice against every thing that came from France, seems to +consider it as decisively proved. But it has been called in question in a +modern publication by the late Lord Woodhouselee. (Essay on the Life and +Character of Petrarch, 1810.) I shall not offer any opinion as to the +identity of Petrarch's mistress with Laura de Sade; but the main position +of Lord W.'s essay, that Laura was an unmarried woman, and the object of +an honourable attachment in her lover, seems irreconcileable with the +evidence that his writings supply. 1. There is no passage in Petrarch, +whether of poetry or prose, that alludes to the virgin character of Laura, +or gives her the usual appellations of unmarried women, puella in Latin, +or donzella in Italian; even in the Trionfo della Castità, where so +obvious an opportunity occurred. Yet this was naturally to be expected +from so ethereal an imagination as that of Petrarch, always inclined to +invest her with the halo of celestial purity. We know how Milton took hold +of the mystical notions of virginity; notions more congenial to the +religion of Petrarch than his own:</p> + +<div class='centered table'> +<table border="0" cellpadding="0" width="75%" cellspacing="0" summary="POEM"> +<tr><td> +<div class="poem"><div class="stanza"> +<span class="i0">Quod tibi perpetuus pudor, et sine labe juventas<br /></span> +<span class="i0">Pura fuit, quod nulla tori libata voluptas,<br /></span> +<span class="i0">En etiam tibi virginei servantur honores.<br /></span> +<span class="i10">Epitaphium Damonis.<br /></span> +</div></div> +</td></tr></table></div> + +<p>2. The coldness of Laura towards so passionate and deserving a lover, if +no insurmountable obstacle intervened +<span class="pagenum"><a name="Page_483" id="Page_483">[Pg 483]</a></span> +during his twenty years of +devotion, would be at least a mark that his attachment was misplaced, and +show him in rather a ridiculous light. It is not surprising, that persons +believing Laura to be unmarried, as seems to have been the case with the +Italian commentators, should have thought his passion affected, and little +more than poetical. But upon the contrary supposition, a thread runs +through the whole of his poetry, and gives it consistency. A love on the +one side, instantaneously conceived, and retained by the susceptibility of +a tender heart and ardent fancy; nourished by slight encouragement, and +seldom presuming to hope for more; a mixture of prudence and coquetry on +the other, kept within bounds either by virtue or by the want of mutual +attachment, yet not dissatisfied with fame more brilliant and flattery +more refined than had ever before been the lot of woman—these are surely +pretty natural circumstances, and such as do not render the story less +intelligible. Unquestionably such a passion is not innocent. But Lord +Woodhouselee, who is so much scandalized at it, knew little, one would +think, of the fourteenth century. His standard is taken not from Avignon, +but from Edinburgh, a much better place, no doubt, and where the moral +barometer stands at a very different altitude. In one passage (p. 188) he +carries his strictness to an excess of prudery. From all we know of the +age of Petrarch, the only matter of astonishment is the persevering virtue +of Laura. The troubadours boast of much better success with Provençal +ladies. 3. But the following passage from Petrarch's dialogues with St. +Augustin, the work, as is well known, where he most unbosoms himself, will +leave no doubt, I think, that his passion could not have been gratified +consistently with honour. At mulier ista celebris, quam tibi certissimam +ducem fingis, ad superos cur non hæsitantem trepidumque direxerit, et quod +cæcis fieri solet, manu apprehensum non tenuit, quò et gradiendum foret +admonuit? <span class="smcap">Petr.</span> Fecit hoc illa quantum potuit. Quid enim aliud egit, cum +nullis mota precibus, nullis victa blanditiis, muliebrem tenuit decorem, +et adversus suam semel et meam ætatem, adversus multa et varia quæ +flectere adamantium spiritum debuissent, inexpugnabilis et firma +permansit? Profectò animus iste fœmineus +<span class="pagenum"><a name="Page_484" id="Page_484">[Pg 484]</a></span> +quid virum decuit admonebat, +præstabatque ne in sectando pudicitiæ studio, ut verbis utar Senecæ, aut +exemplum aut convitium deesset; postremò cum lorifragum ac præcipitem +videret, deserere maluit potius quàm sequi. <span class="smcap">August.</span> Turpe igitur aliquid +interdum voluisti, quod supra negaveras. At iste vulgatus amantium, vel, +ut dicam verius, amantium furor est, ut omnibus meritò dici possit: volo +nolo, nolo volo. Vobis ipsis quid velitis, aut nolitis, ignotum est. <span class="smcap">Pet.</span> +Invitus in laqueum offendi. Si quid tamen olim aliter forte voluissem, +amor ætasque coëgerunt; nunc quid velim et cupiam scio, firmavique jam +tandem animum labentem; contra autem illa propositi tenax et semper una +permansit, quare constantiam fœmineam quò magis intelligo, magis +admiror: idque sibi consilium fuisse, si unquam debuit, gaudeo nunc et +gratias ago. <span class="smcap">Aug.</span> Semel fallenti, non facile rursus fides habenda est: tu +prius mores atque habitum, vitamque mutavisti, quàm animum mutâsse +persuadeas; mitigatur forte si tuus leniturque ignis, extinctus non est. +Tu verò qui tantum dilectioni tribuis, non animadvertis, illam absolvendo, +quantum te ipse condemnas; illam fateri libet fuisse sanctissimam dum te +insanum scelestumque fateare.—De Contemptu Mundi, Dialog. 3, p. 367, +edit. 1581.</p> + +<p class="center"><br /><span class="smcap"><a name="N1_4"></a>Note</span> IV. Page 456.</p> + +<p>The progress of our language in proceedings of the legislature is so well +described in the preface to the authentic edition of Statutes of the +Realm, published by the Record Commission, that I shall transcribe the +passage, which I copy from Mr. Cooper's useful account of the Public +Records (vol. i. p. 189):—</p> + +<p>The earliest instance recorded of the use of the English language 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 <i>en Englois</i>; and the like +circumstance is noted in 37 and 38 Edw. +III.<a name="FNanchor_938_938" id="FNanchor_938_938"></a><a href="#Footnote_938_938" class="fnanchor">[d]</a> +In the 5th year of +Richard II., the chancellor is stated +<span class="pagenum"><a name="Page_485" id="Page_485">[Pg 485]</a></span> +to have made <i>un bone collacion en +Engleys</i> (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 words. 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 English, +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, +announcing to him the sentence of his deposition, and the yielding up, on +the part of the people, of their fealty and allegiance. In the 6th year of +the reign of Henry IV. an English answer is given to a petition of the +Commons, touching a proposed resumption of certain grants 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 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 23rd 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,<a name="FNanchor_939_939" id="FNanchor_939_939"></a><a href="#Footnote_939_939" class="fnanchor">[e]</a> +as in 8 Hen. VI., 27 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 III. are in many +<span class="pagenum"><a name="Page_486" id="Page_486">[Pg 486]</a></span> +manuscripts in French in a complete statute form; and they were so +printed in his reign and that of his successor. In the earlier English +editions a translation was inserted in the same form; but in several +editions, since 1618, they have been printed in English, in a different +form, agreeing, so far as relates to the acts printed, with the inrolment +in Chancery at the Chapel of the Rolls. The petitions and bills in +parliament, during these two reigns, are all in English. The statutes of +Henry VII. have always, it is believed, been published in English; but +there are manuscripts containing the statutes of the first two +parliaments, in his first and third year, in French. From the fourth year +to the end of his reign, and from thence to the present time, they are +universally in English.</p> + +<div class="footnotes">FOOTNOTES: + +<div class="footnote"><p><a name="Footnote_935_935" id="Footnote_935_935"></a><a href="#FNanchor_935_935"><span class="label">[a]</span></a> The writings of Lupus Servatus, abbot of Ferrières, were +published by Baluze; and a good account of them will be found in Ampère's +Hist. Litt. (vol. iii. p. 237), as well as in older works. He is a much +better writer than Gregory of Tours, but quite as much inferior to +Sidonius Apollinaris. I have observed in Lupus quotations from Horace, +Virgil, Martial, Cicero, Aulus Gellius, and Trogus Pompeius (meaning +probably Justin).</p></div> + +<div class="footnote"><p><a name="Footnote_936_936" id="Footnote_936_936"></a><a href="#FNanchor_936_936"><span class="label">[b]</span></a> This is rather equivocal, but it is certainly not meant +that there were ever two <i>floors</i> above that on the ground. In the review +of the "Chronicles of the Mayors and Sheriffs," published in the +Archæological Journal (vol. iv. p. 273), we read—"The houses in London, +of whatever material, seem never to have exceeded one story in height." +(p. 282.) But, soon afterwards—"The ground floor of the London houses at +this period was aptly enough called a cellar, the upper story a solar." It +thus appears that the reviewer does not mean the same thing as Mr. Twopeny +by the word <i>story</i>, which the former confines to the floor above that on +the ground, while the latter includes both. The use of language, as we +know, supports, in some measure, either meaning; but perhaps it is more +correct, and more common, to call the first story that which is reached by +a staircase from the ground-floor. The solar, or sleeping-room, raised +above the cellar, was often of wood.</p></div> + +<div class="footnote"><p><a name="Footnote_937_937" id="Footnote_937_937"></a><a href="#FNanchor_937_937"><span class="label">[c]</span></a> See a full description in the Archæological Journal, vol. +iv. p. 11. Those who visit Southampton may seek this house near a gate in +the west wall. We may add to the contribution of Mr. Twopeny one published +in the Proceedings of the Archæological Institute, by Mr. Hudson Turner, +Nov. 1847. This is chiefly founded on documents, as that of Mr. Twopeny is +on existing remains. These give more light where they can be found; but +the number is very small. Upon the whole, it may be here observed, that we +are frequently misled by works of fiction as to the domestic condition of +our forefathers. The house of Cedric the Saxon in Ivanhoe, with its +distinct and numerous apartments, is very unlike any that remain or can be +traced. This is by no means to be censured in the romancer, whose aim is +to delight by images more splendid than truth; but, especially when +presented by one who possessed in some respects a considerable knowledge +of antiquity, and was rather fond of displaying it, there is some danger +lest the reader should believe that he has a faithful picture before him.</p></div> + +<div class="footnote"><p><a name="Footnote_938_938" id="Footnote_938_938"></a><a href="#FNanchor_938_938"><span class="label">[d]</span></a> References are given to the Rolls of Parliament throughout +this extract.</p></div> + +<div class="footnote"><p><a name="Footnote_939_939" id="Footnote_939_939"></a><a href="#FNanchor_939_939"><span class="label">[e]</span></a> All the acts passed in the same session are legally one +statute; the difference of language was in separate chapters or acts.</p></div> +</div> + +<hr /> + +<h2><a name="INDEX" id="INDEX"></a>INDEX.</h2> + +<p><span class="pagenum"><a name="Page_487" id="Page_487">[Pg 487]</a></span> +<span class="tbhigh">* <span class="tblow">*</span> *</span> <i>The Roman Numerals refer to the Volumes—the Arabic Figures to the +Pages of each Volume.</i></p> + +<p class="ind"> +<span class="smcap"><a name="ABBAS" id="ABBAS"></a>Abbassides</span>, encouragement of science and art by the, ii. 121;<br /> +progress of their dynasty, 122;<br /> +its decadence, 123.</p> + +<p class="ind"> +Abdalrahman proclaimed khalif of Cordova, ii. 122.</p> + +<p class="ind">Abelard (Peter), enthusiasm excited by the teachings of, iii. <a href="#Page_420">420</a>;<br /> +his erratic career, <a href="#Page_421">421</a>.</p> + +<p class="ind">Acre, consequences to commerce by the capture of, iii. <a href="#Page_329">329</a>;<br /> +vices of its inhabitants, <i>ib. <a href="#Footnote_603_603">note</a></i> <sup>m</sup>.</p> + +<p class="ind">Adorni and Fregosi factions, disruption of Genoa by the, i. 496.</p> + +<p class="ind">Adolphus of Nassau elected emperor of Germany, ii. 82.</p> + +<p class="ind">Adrian II. (pope), attempts to overawe Charles the Bald, ii. 173.</p> + +<p class="ind">Adrian IV. (the only English pope), insolence of, towards Frederic Barbarossa, ii. 195;<br /> +his system of mandats, 212.</p> + +<p class="ind">Adventurers (military). See <a href="#MS">Military Systems</a>.</p> + +<p class="ind"><a name="A_SYL" id="A_SYL"></a>Æneas Sylvius (afterwards Pius II.), instance of the political foresight of, i. 504;<br /> +he abets the war against the Turks, ii. 137;<br /> +specimen of his oratory, 138 <i>note</i>;<br /> +his singular suggestion to Mahomet II., <i>ib. note</i>;<br /> +he plays into the hands of the pope, 253;<br /> +he obtains the repeal of the Pragmatic Sanction, 255;<br /> +his sketch of Vienna, iii. <a href="#Page_345">345</a> <i><a href="#Footnote_655_655">note</a></i> <sup>u</sup>.</p> + +<p class="ind"><a name="AGRI" id="AGRI"></a>Agriculture, cause of the low state of, iii. <a href="#Page_312">312</a>, <a href="#Page_359">359</a> and <i><a href="#Footnote_691_691">note</a></i> <sup>m</sup>;<br /> +superior cultivation of church lands, <a href="#Page_360">360</a>;<br /> +exemplary labours of the Benedictines, <i>ib. <a href="#Footnote_692_692">note</a></i> <sup>n</sup>;<br /> +agricultural colonies, <a href="#Page_361">361</a> and <i><a href="#Footnote_694_694">notes</a></i> <sup>p</sup> and <sup>q</sup>;<br /> +early enclosures and clearances, <a href="#Page_362">362</a>;<br /> +exportation of corn, how limited, <a href="#Page_364">364</a>;<br /> +usual prices of land, <i>ib.</i>;<br /> +high state of Italian agriculture, <i>ib.</i>;<br /> +effects of pestilence, <a href="#Page_365">365</a>;<br /> +excellence of the Italian gardens, <i>ib.</i>;<br /> +neglect of horticulture in England, <a href="#Page_366">366</a>.</p> + +<p class="ind">Alaric, tolerance of, towards his catholic subjects, i. 3 <i>note</i> <sup>f</sup>;<br /> +defeated by Clovis, 4;<br /> +laws compiled by his order, iii. <a href="#Page_414">414</a>.</p> + +<p class="ind">Albert I. of Germany, ii. 82;<br /> +his rule in Switzerland, 108;<br /> +his expulsion and assassination, 109;<br /> +the French crown offered to him, 231.</p> + +<p class="ind">Albert II. succeeds Sigismund as emperor of Germany, ii. 88.</p> + +<p class="ind">Albigensian heresy, spread of the, i. 28;<br /> +massacre of the Albigeois, <i>ib.</i>, 29 <i>notes</i>;<br /> +See <a href="#RS">Religious Sects</a>.</p> + +<p class="ind">Albizi, ascendency in Florence regained by the, i. 496;<br /> +Cosmo de' Medici banished at their instigation, 499;<br /> +their overthrow, <i>ib.</i>;<br /> +exclusion of their family from the magistracy, 499.</p> + +<p class="ind">Alcuin teaches Charlemagne, iii. <a href="#Page_419">419</a>;<br /> +he discourages secular learning, <a href="#Page_420">420</a>;<br /> +character of his poetry, <a href="#Page_474">474</a>.</p> + +<p class="ind">Alexander II. (pope), election of, ii. 184;<br /> +he deposes the English prelates, 305 <i>note</i> <sup>h</sup>.</p> + +<p class="ind">Alexander III. (pope), supports Thomas à Becket, ii. 195;<br /> +adopts the system of mandats, 212.</p> + +<p class="ind">Alexander V. elected pope, ii. 243;<br /> +his successor, <i>ib.</i></p> + +<p class="ind">Alexander III. king of Scotland, opposition to papal domination by, ii. 217.</p> + +<p class="ind"><a name="ALEX" id="ALEX"></a>Alexius Comnenus attacks the Turks, ii. 128;<br /> +he recovers the Greek territories, <i>ib.</i> and <i>note</i>.</p> + +<p class="ind">Alfonso I. of Aragon bequeaths his kingdom to the Knights Templars, ii. 8.</p> + +<p class="ind">Alfonso III. of Aragon compelled to apologise to his people, ii. 45.</p> + +<p class="ind"><a name="AL_V" id="AL_V"></a>Alfonso V. of Aragon (the Magnanimous), i. 490;<br /> +adopted by Joanna II. of Naples, <i>ib.</i>;<br /> +she revokes the adoption, 491;<br /> +his accession, <i>ib.</i>;<br /> +his imprisonment by the Genoese, 492;<br /> +his alliance with Milan, <i>ib.</i>, 493;<br /> +his virtues and patronage of the arts, 493;<br /> +his literary medicine, 494 <i>note</i>;<br /> +his love of Naples, ii. 42.</p> + +<p class="ind">Alfonso V. and VI. of Castile, towns incorporated by, ii. 6.</p> + +<p class="ind">Alfonso VII. of Castile, unwise division of his dominions by, ii. 9.</p> + +<p class="ind">Alfonso X. of Castile, scientific acquirements and governmental deficiencies of, ii. 12;<br /> +law promulgated by him, 37;<br /> +his election as emperor of Germany, 76;<br /> +tithes established in his reign, 146 <i>note</i> <sup>a</sup>;<br /> +clerical encroachments favoured by him, 220 <i>note</i> <sup>r</sup>;<br /> +<span class="pagenum"><a name="Page_488" id="Page_488">[Pg 488]</a></span> +he exempts the clergy from civil jurisdiction, 226.</p> + +<p class="ind">Alfonso XI. of Castile assassinates his cousin, ii. 14;<br /> +his disregard of law, 36.</p> + +<p class="ind">Alfred the Great, rescue of the Anglo-Saxon monarchy by, ii. 271;<br /> +his alleged division of the kingdom into counties, &c., 280;<br /> +ascription of trial by jury to him, 285;<br /> +his high claim to veneration, 289;<br /> +extent of his acquaintance with Latin, iii. <a href="#Page_286">286</a>;<br /> +his declaration of the ignorance of the clergy, <a href="#Page_288">288</a>;<br /> +his zeal for learning, <i>ib. <a href="#Footnote_512_512">note</a></i> <sup>n</sup>.</p> + +<p class="ind">Aliens held liable for each other's debts, iii. <a href="#Page_336">336</a>.</p> + +<p class="ind">Almamùn and Almansor, khalifs of Bagdad, patronage of letters by, ii. 121.</p> + +<p class="ind">Alodial tenure, characteristics of, i. 147, 148 and <i>notes</i>;<br /> +converted into feudal tenure, 163;<br /> +except in certain localities, 164 and <i>note</i>;<br /> +causes of the conversion, 317, 318;<br /> +alodial proprietors evidently freemen, 324.</p> + +<p class="ind">Alvaro de Luna. See <a href="#LUNA">Luna</a>.</p> + +<p class="ind">Amadeus (duke of Savoy), elected pope, ii. 248.</p> + +<p class="ind">Amalfi, early commercial eminence of, iii. <a href="#Page_328">328</a> and <i><a href="#Footnote_602_602">note</a></i>;<br /> +its decline, <i>ib.</i>;<br /> +alleged invention of the mariner's compass there, <a href="#Page_332">332</a> and <i><a href="#Footnote_612_612">note</a></i>;<br /> +discovery of the Pandects, <a href="#Page_415">415</a>.</p> + +<p class="ind">Amurath I., progresses of the Turkish arms under, ii. 132.</p> + +<p class="ind">Amurath II., rout of the Hungarians by, ii. 105;<br /> +reunion of the Ottoman monarchy under him, 135;<br /> +he perfects the institution of the Janizaries, 137.</p> + +<p class="ind">Anastasius confers the dignity of consulship on Clovis, i. 107;<br /> +elucidatory observations thereon, 107-111.</p> + +<p class="ind">Andalusia, conquest of, by Ferdinand III., ii. 9.</p> + +<p class="ind"><a name="AOH" id="AOH"></a>Andrew of Hungary married to Joanna of Naples, i. 486;<br /> +his murder imputed to Joanna, <i>ib.</i></p> + +<p class="ind">Anglo-Normans. See <a href="#ENG">England</a>.</p> + +<p class="ind"><a name="ANG_SAX" id="ANG_SAX"></a>Anglo-Saxons, divisions of England under the, ii. 270;<br /> +their Danish assailants, 271;<br /> +Alfred and his successors, 272, 273;<br /> +descent of the crown, 273;<br /> +influence of provincial governors, 274;<br /> +thanes and ceorls, 275;<br /> +condition of the ceorls, <i>ib.</i>;<br /> +privileges annexed to their possession of land, 276;<br /> +position of the socage tenants, 277;<br /> +condition of the British natives, <i>ib.</i>;<br /> +absence of British roots in the English language, 278 and <i>note</i> <sup>g</sup>;<br /> +constitution of the Witenagemot, 279, 374-379;<br /> +administration of justice, and divisions of the land for the purpose, 280;<br /> +hundreds and their probable origin, 280, 281, 379-381;<br /> +the tything-man and alderman, 282, and 283 <i>note</i> <sup>u</sup>;<br /> +the county court and its jurisdiction, 282;<br /> +contemporary report of a suit adjudicated in the reign of Canute, 283, 284 and <i>note</i> <sup>y</sup>;<br /> +trial by jury and its antecedents, 285-288;<br /> +introduction of the law of frank-pledge, 289, 290;<br /> +turbulence of the Anglo-Saxons, 290;<br /> +progress of the system of frank-pledges, 291;<br /> +responsibilities and uses of the tythings, 292, 293 and <i>notes</i>;<br /> +probable existence of feudal tenures before the Conquest, 293-301, 408-410;<br /> +observations on the change of the heptarchy into a monarchy, 352-356;<br /> +consolidation of the monarchy, 356-358;<br /> +condition, of the eorls and ceorls further elucidated, 358-371;<br /> +proportion of British natives under the Anglo-Saxon rule, 371-374;<br /> +judicial functions of the Anglo-Saxon kings, 381;<br /> +analogy between the French and Anglo-Saxon monarchies, 383;<br /> +peculiar jurisdiction of the king's court, 384-386.</p> + +<p class="ind">Anjou (Louis, duke of), seizure of Charles V.'s treasures by, i. 65, 66;<br /> +his claim as regent, 68 and <i>note</i>;<br /> +his attempt on the crown of Naples, and death, 69.<br /> +See Charles of Anjou.</p> + +<p class="ind">Anselm (archbishop), cause of his quarrel with William II. and Henry I., ii. 194;<br /> +Descartes's argument on the Deity anticipated by him, iii. <a href="#Page_428">428</a>.</p> + +<p class="ind">Appanages, effect of the system of, i. 88.</p> + +<p class="ind">Aquinas (Thomas), metaphysical eminence of, iii. <a href="#Page_427">427</a>;<br /> +comparative obsoleteness of his writings, <a href="#Page_428">428</a> <i><a href="#Footnote_843_843">note</a></i> <sup>i</sup>.</p> + +<p class="ind">Aquitaine, extent of the dominions so called, i. 116;<br /> +character of its people 116, 117;<br /> +effect of the wars of the Merovingian kings, 282.</p> + +<p class="ind">Arabia and the Arabs. See <a href="#MOH">Mohammed</a>.</p> + +<p class="ind"><a name="ARAG" id="ARAG"></a>Aragon, bequest of to the Templars by Alfonso I., and reversal thereof, ii. 8;<br /> +rise of the kingdom in political importance, 39;<br /> +struggle for the succession to its crown, 39-41;<br /> +points of interest in its form of government, 43;<br /> +privileges of its nobles and people, 43, 44;<br /> +its natural defects and political advantages, 45;<br /> +statistics of its wealth, population, &c., <i>ib. note</i> <sup>r</sup>;<br /> +grant of the "privilege of union," 46;<br /> +supersession thereof, 48;<br /> +the office of justiciary, <i>ib.</i>;<br /> +instances of that officer's integrity and courage, 49;<br /> +and of the submission of kings to his decrees, 53, 54;<br /> +duration and responsibilities of the office, 54;<br /> +the Cortes of Aragon, 56;<br /> +social condition of the kingdom, 58;<br /> +its union with Castile, <i>ib.</i>;<br /> +its burgesses, iii. <a href="#Page_331">331</a> <i><a href="#Footnote_611_611">note</a></i> <sup>u</sup>.</p> + +<p class="ind">Archers (English), invincibility of the, at Crecy and Poitiers, i. 54.<br /> +See <a href="#MS">Military Systems</a>.</p> + +<p class="ind"><a name="ARCH" id="ARCH"></a>Architecture, as illustrative of domestic progress, iii. <a href="#Page_346">346</a>;<br /> +early castles in England, <i>ib.</i>;<br /> +improvements thereon, <a href="#Page_347">347</a>; +<span class="pagenum"><a name="Page_489" id="Page_489">[Pg 489]</a></span><br /> +early houses, <a href="#Page_348">348</a>;<br /> +revival of the use of bricks, <a href="#Page_349">349</a>;<br /> +arrangement of ordinary mansion-houses, <a href="#Page_350">350</a>;<br /> +dwellings in France and Italy, <a href="#Page_350">350</a>, <a href="#Page_351">351</a>;<br /> +introduction of chimneys and glass windows, <a href="#Page_351">351-353</a> and <i><a href="#Footnote_672_672">notes</a></i>;<br /> +house furniture and domestic conveniences, <a href="#Page_353">353</a>, <a href="#Page_354">354</a> and <i><a href="#Footnote_681_681">notes</a></i>;<br /> +farm-houses and cottages, <a href="#Page_355">355</a>;<br /> +ecclesiastical architecture, its grandeur and varieties, <a href="#Page_355">355-359</a> and <i><a href="#Footnote_684_684">notes</a></i>;<br /> +domestic architecture of the 12th and 14th centuries, <a href="#Page_479">479-482</a>.</p> + +<p class="ind">Arian sovereigns, tolerance of the, i. 3 and <i>note</i> <sup>f</sup>.</p> + +<p class="ind">Aribert declared king of Aquitaine, i. 115.</p> + +<p class="ind">Aristocracy. See <a href="#NOB">Nobility</a>.</p> + +<p class="ind">Aristotle, writings of, how first known in Europe, iii. <a href="#Page_426">426</a> and <i><a href="#Footnote_840_840">note</a></i> <sup>f</sup>;<br /> +ignorance of his translators, <a href="#Page_429">429</a> and <i><a href="#Footnote_844_844">note</a></i> <sup>k</sup>;<br /> +character of the Aristotelian philosophy, <a href="#Page_430">430</a>;<br /> +its influence on religion, <i>ib. <a href="#Footnote_846_846">notes</a></i>.</p> + +<p class="ind">Armagnac (count of), opposes the duke of Burgundy, i. 71;<br /> +massacre of himself and partizans, 72;<br /> +assassination of a later count of Armagnac, 89.</p> + +<p class="ind">Armagnacs, rise of the faction of the, i. 71;<br /> +tactics of the dauphin towards them, 72;<br /> +their league with Henry IV. of England, 74;<br /> +their defeat by the Swiss, ii. 112.</p> + +<p class="ind">Armorial bearings, general introduction of, i. 190;<br /> +instances of their earliest use, 191 <i>note</i>.</p> + +<p class="ind">Armorican republic, questionable existence of the, i. 2;<br /> +hypothesis of Dubos relative thereto, <i>ib. note</i>;<br /> +further elucidation thereof, 103;<br /> +supposed extent of its territories, 103, 104.</p> + +<p class="ind">Armour. See <a href="#MS">Military Systems</a>.</p> + +<p class="ind">Artois. See <a href="#ROA">Robert of Artois</a>.</p> + +<p class="ind">Arundel (bishop and archbishop), remonstrates with Richard II., iii. <a href="#Page_67">67</a>;<br /> +deprived of, and reinvested with, the great seal, <a href="#Page_73">73</a>;<br /> +his subsequent deprivation and banishment, <a href="#Page_77">77</a>.</p> + +<p class="ind">Arundel (earl of, <i>temp.</i> Richard II.), favoured by the parliament, iii. <a href="#Page_65">65</a>;<br /> +his conduct as a lord appellant, <a href="#Page_72">72</a>;<br /> +his breach with the duke of Lancaster, <a href="#Page_74">74</a>;<br /> +refuses to aid in legitimating Lancaster's children, <a href="#Page_75">75</a>;<br /> +his decapitation, <a href="#Page_77">77</a>.</p> + +<p class="ind">Aschaffenburg, concordats of, ii. 253.</p> + +<p class="ind">Athens (duke of). See <a href="#BRI">Brienne</a>.</p> + +<p class="ind">Augustin (St.), specimen of the verses of, iii. <a href="#Page_282">282</a> <i><a href="#Footnote_491_491">note</a></i> <sup>o</sup>.</p> + +<p class="ind">Aulic council, powers and jurisdiction of the, ii. 99.</p> + +<p class="ind">Auspicius (bishop of Toul), character of the poetry of, iii. <a href="#Page_282">282</a>;<br /> +specimen thereof, <i>ib. <a href="#Footnote_492_492">note</a></i> <sup>p</sup>.</p> + +<p class="ind">Austrasia, characteristics of the people of, i. 118.</p> + +<p class="ind">Auxiliary verb active, probable cause of the, iii. <a href="#Page_280">280</a>.</p> + +<p class="ind">Averroes, error relative to, iii. <a href="#Page_422">422</a> <i><a href="#Footnote_825_825">note</a></i> <sup>o</sup>;<br /> +his eminence as a philosopher, <a href="#Page_426">426</a> <i><a href="#Footnote_840_840">note</a></i> <sup>f</sup>;<br /> +tendency of his commentaries, <a href="#Page_430">430</a>.</p> + +<p class="ind">Avignon, removal of the papal court to, ii. 233;<br /> +rapacity of its popes, 237, 238;<br /> +its abandonment by the popes, 240.</p> + +<p class="ind">Azincourt (battle of), i. 74 and <i>note</i>. +<br /> +<br /> +</p> + +<p class="ind">Bacon (Roger), a true philosopher, iii. <a href="#Page_429">429</a> <i><a href="#Footnote_844_844">note</a></i> <sup>k</sup>;<br /> +his acquaintance with mathematics, <a href="#Page_432">432</a>;<br /> +parallel between him and Lord Bacon, <i>ib. <a href="#Footnote_851_851">note</a></i> <sup>s</sup>;<br /> +his knowledge of Greek, <a href="#Page_464">464</a>.</p> + +<p class="ind">Bagdad, celebrity of the early khalifs of, ii. 121;<br /> +character of its later khalifs, 122;<br /> +frequency of their assassination, 123;<br /> +defection of its provinces, 124.</p> + +<p class="ind">Bajazet, military successes of, ii. 132;<br /> +defeated and captured by the Tartars, 134.</p> + +<p class="ind">Baltic trade. See <a href="#TRD">Trade</a>.</p> + +<p class="ind">Banks and bankers of Italy, iii. <a href="#Page_340">340</a>, <a href="#Page_341">341</a>.</p> + +<p class="ind">Barbiano (Alberic di), military eminence of, i. 474;<br /> +his pupils, 481.</p> + +<p class="ind">Barcelona, feudal submission to France of the counts of, i. 10, <i>note</i>;<br /> +its early commercial eminence, iii. <a href="#Page_331">331</a>;<br /> +its code of maritime laws, <a href="#Page_333">333</a> and <i><a href="#Footnote_613_613">note</a></i>;<br /> +and of marine insurance, <a href="#Page_339">339</a> <i><a href="#Footnote_639_639">note</a></i> <sup>c</sup>;<br /> +its bank of deposit, <a href="#Page_340">340</a>.</p> + +<p class="ind">Bardas, revival of Greek literature by, iii. <a href="#Page_468">468</a> <i><a href="#Footnote_922_922">note</a></i> <sup>z</sup>.</p> + +<p class="ind">Bardi, Florentine bankers, English customs farmed by the, iii. <a href="#Page_340">340</a> <i><a href="#Footnote_640_640">note</a></i> <sup>d</sup>.</p> + +<p class="ind">Barons (in France), occasional assemblages of the, i. 219;<br /> +consequences of their non-attendance at the royal council, 222;<br /> +they become subject to the monarch, 223;<br /> +their privileges curtailed by Philip IV., 226.<br /> +See Nobility.</p> + +<p class="ind">Barristers' fees in the 15th century, iii. <a href="#Page_371">371</a>.</p> + +<p class="ind">Basle, council of. See <a href="#COUN">Council</a>.</p> + +<p class="ind">Beaumanoir, definition of the three conditions of men by, i. 197, 200.</p> + +<p class="ind">Bedford (duke of), regent for Henry VI., i. 76;<br /> +his character, 77;<br /> +his successes in France, <i>ib.</i>;<br /> +overthrow of his forces by Joan of Arc, 79.</p> + +<p class="ind">Belgrade, siege and relief of, ii. 106.</p> + +<p class="ind">Benedict XI. reconciles Philip the Fair to the holy see, ii. 232;<br /> +he rescinds the bulls of Boniface VIII., 233.</p> + +<p class="ind">Benedict XII., purport of his letter to Edward III., i. 51 <i>note</i>;<br /> +his rapacity, ii. 237.</p> + +<p class="ind"><a name="BEN_XIII" id="BEN_XIII"></a>Benedict XIII. elected pope by the Avignon cardinals, ii. 242;<br /> +deposed by the council of Pisa, 243;<br /> +Spain supports him, <i>ib.</i></p> + +<p class="ind">Benedictines, exemplary agricultural labours of the, iii. <a href="#Page_360">360</a> <i><a href="#Footnote_692_692">note</a></i> <sup>n</sup>.</p> + +<p class="ind"><a name="BENE" id="BENE"></a>Benefices, grants of land so called, i. 159;<br /> +conditions annexed to them, <i>ib.</i>;<br /> +their extent, 160 and <i>note</i>; +<span class="pagenum"><a name="Page_490" id="Page_490">[Pg 490]</a></span><br /> +their character under Charlemagne and Louis the Debonair, 313;<br /> +views of various writers concerning their nature, 313-315;<br /> +character of hereditary benefices, 320;<br /> +their regenerative effects upon the French people, <i>ib.</i></p> + +<p class="ind">Benevolences, by whom first levied in England, iii. <a href="#Page_200">200</a>.</p> + +<p class="ind">Berenger I. and II. See <a href="#ITA">Italy</a>.</p> + +<p class="ind">Bermudo III. (king of Leon), killed in battle, ii. 4.</p> + +<p class="ind">Bernard (grandson of Charlemagne), deprived of sight by judicial sentence, i. 14.</p> + +<p class="ind">Berry (duke of), appointed guardian of Charles VI., i. 65;<br /> +his character, 69.</p> + +<p class="ind">Bianchi. See <a href="#SUPER">Superstitions</a>.</p> + +<p class="ind">Bianchi and Neri, factions of, i. 402;<br /> +iii. <a href="#Page_445">445</a>.</p> + +<p class="ind"><a name="BIGO" id="BIGO"></a>Bigod (Roger, earl of Norfolk), patriotism of, iii. <a href="#Page_2">2</a>.</p> + +<p class="ind">Bills. See <a href="#PARL">Parliament</a>.</p> + +<p class="ind">Birth, privileges of. See <a href="#NOB">Nobility</a>.</p> + +<p class="ind">Bishops. See <a href="#CHUR">Church</a>, <a href="#CLER">Clergy</a>.</p> + +<p class="ind">Blanchard (Alain), unjustifiable execution of, i. 84.</p> + +<p class="ind">Blanche of Castile, acts as regent during the minority of Louis IX., i. 30;<br /> +quells the rebellion of the barons, <i>ib.</i>;<br /> +instance of her undue influence over Louis, 32.</p> + +<p class="ind">Boccaccio, occasion of the Decamerone of, i. 57;<br /> +appointed to lecture on Dante, iii. <a href="#Page_448">448</a>.</p> + +<p class="ind">Boccanegra (Simon), first doge of Genoa, story of the election of, i. 451.</p> + +<p class="ind">Bocland, nature of, ii. 294, 408.</p> + +<p class="ind">Bohemia, nature of its connection with Germany, ii. 100;<br /> +its polity, 101;<br /> +the Hussite controversy and its results, 102, 103.</p> + +<p class="ind"><a name="BOHUN" id="BOHUN"></a>Bohun (Humphrey, earl of Hereford), patriotism of, iii. <a href="#Page_2">2</a>.</p> + +<p class="ind"><a name="BOLIN" id="BOLIN"></a>Bolingbroke (earl of Derby and duke of Hereford), made lord appellant, iii. <a href="#Page_72">72</a>;<br /> +he sides with the king, <a href="#Page_74">74</a>;<br /> +his quarrel with the duke of Norfolk, <a href="#Page_79">79</a>;<br /> +advantage taken of it by Richard II., <a href="#Page_80">80</a> and <i><a href="#Footnote_176_176">note</a></i> <sup>z</sup>;<br /> +his accession to the throne, <a href="#Page_81">81</a>.<br /> +See <a href="#HIV">Henry IV</a>.</p> + +<p class="ind">Bolognese law-schools, iii. <a href="#Page_415">415</a>.</p> + +<p class="ind">Boniface (St.). See <a href="#WINF">Winfrid</a>.</p> + +<p class="ind"><a name="B_VIII" id="B_VIII"></a>Boniface VIII. suspected of fraud towards Celestine V., ii. 228;<br /> +his extravagant pretensions, <i>ib.</i> and <i>note</i>;<br /> +disregard of his bulls by Edward I., 229;<br /> +his disputes with Philip the Fair, 230-232;<br /> +success of Philip's stratagem against him, 232;<br /> +his death, <i>ib.</i>;<br /> +rescindment of his bulls, 233;<br /> +Ockham's dialogue against him, 236 <i>note</i> <sup>n</sup>;<br /> +rejection of his supremacy by the English barons, 239.</p> + +<p class="ind">Boniface IX., elected pope, ii. 242;<br /> +his traffic in benefices, 245, 246;<br /> +his rapacity in England checked, 250, 251.</p> + +<p class="ind">Books and booksellers. See <a href="#LEARN">Learning</a>.</p> + +<p class="ind">Boroughs. See <a href="#MINS">Municipal Institutions</a>, <a href="#PARL">Parliament</a>, +<a href="#TOWN">Towns</a>.</p> + +<p class="ind">Braccio di Montone, rivalry of, with Sforza, i. 481.</p> + +<p class="ind"><a name="BRI" id="BRI"></a>Brienne (Walter de, duke of Athens), invested with extreme powers in Florence, i. 427;<br /> +his tyranny and excesses, 428;<br /> +his overthrow, 429.</p> + +<p class="ind">Britany, origin of the people of, i. 98 and <i>note</i>;<br /> +grant of the duchy to Montfort, 99;<br /> +its annexation to the crown, 100;<br /> +alleged existence of a king of Britany, 103;<br /> +right of its dukes to coin money, 206.</p> + +<p class="ind">Brunehaut, queen of Austrasia, i. 5;<br /> +her character and conduct, 6 <i>note</i>;<br /> +her mayor, Protadius, 114;<br /> +her scheme of government, 117;<br /> +she falls into the hands of Clotaire II., and is sentenced to death, 119;<br /> +cause of her overthrow, <i>note</i> 157, 293, 309;<br /> +pope Gregory I.'s adulation towards her, ii. 162 <i>note</i> <sup>q</sup>.</p> + +<p class="ind">Buchan (earl of), made constable of France, i. 78.</p> + +<p class="ind">Burdett (Thomas), cause of the execution of, iii. <a href="#Page_199">199</a> and <i><a href="#Footnote_453_453">note</a></i> <sup>o</sup>.</p> + +<p class="ind">Burgesses. See <a href="#PARL">Parliament</a>.</p> + +<p class="ind">Burgesses of the palisades, origin of the, ii. 92.</p> + +<p class="ind">Burgundians, Roman provinces occupied by the, i. 1;<br /> +their tolerance, 3 <i>note</i> <sup>f</sup>;<br /> +their mode of dividing conquered provinces, 146;<br /> +elucidatory observations thereon, 275-278.</p> + +<p class="ind"><a name="E_BURG" id="E_BURG"></a>Burgundy (<i>Eudes</i>, duke of), undertakes the protection of his niece Jane, i. 45;<br /> +he betrays her cause, 46.</p> + +<p class="ind">Burgundy (duke of), named guardian of Charles VI., i. 65;<br /> +loses his ascendency over the king, 69;<br /> +regains it, <i>ib.</i>;<br /> +his death, 70.</p> + +<p class="ind">Burgundy (<i>John</i>, duke of, "Sans-peur"), assassinates the duke of Orleans, i. 70;<br /> +his supposed provocation, <i>ib. note</i>;<br /> +obtains pardon for the crime, 71;<br /> +consequence of his reconciliation with the court, 71, 72;<br /> +is assassinated, 73 and <i>note</i>;<br /> +his defeat at Nicopolis, ii. 133 <i>note</i>.</p> + +<p class="ind">Burgundy (<i>Philip</i>, duke of), allies himself with Henry V., i. 76;<br /> +his French predilections, 82;<br /> +and treaty with Charles VII., <i>ib.</i> 90 <i>note</i> <sup>r</sup>, 91 <i>note</i> <sup>s</sup>;<br /> +splendour of his court, 91;<br /> +jealousy of his subjects concerning taxation, 93 <i>note</i> <sup>x</sup>.</p> + +<p class="ind">Burgundy (<i>Charles</i>, duke of), character and ambitious designs of, i. 91 and <i>note</i>, 92;<br /> +his contumacious subjects, 92;<br /> +his rash enterprises and failures, 93;<br /> +is defeated and killed, 94;<br /> +adventures of his diamond, <i>ib. note</i>.</p> + +<p class="ind"><a name="M_BURG" id="M_BURG"></a>Burgundy (Mary, duchess of), defends her rights against Louis XI., i. 94 and <i>notes</i>;<br /> +marries Maximilian of Austria, 95;<br /> +her death, 96. +<br /> +<br /> +</p> + +<p class="ind">Caballeros of Spain, privileges enjoyed by the, ii. 8. +<span class="pagenum"><a name="Page_491" id="Page_491">[Pg 491]</a></span></p> + +<p class="ind">Calais, abject condition of the citizens of, i. 58 <i>note</i> <sup>k</sup>;<br /> +terms of instruments signed there, 60.</p> + +<p class="ind">Calixtins, tenets of the, ii. 103.</p> + +<p class="ind">Calixtus II. (pope), compromise effected by, ii. 188;<br /> +he abolishes feudal services by bishops, 189.</p> + +<p class="ind">Calverley (Sir Hugh), characteristic anecdote of, i. 65.</p> + +<p class="ind">Cambridge university, first mention of, iii. <a href="#Page_424">424</a> <i><a href="#Footnote_833_833">note</a></i> <sup>y</sup>.</p> + +<p class="ind">Canon law, promulgation of the, ii. 203;<br /> +its study made imperative, 204.</p> + +<p class="ind"><a name="CAPET" id="CAPET"></a>Capet (Hugh), usurpation of the French throne by, i. 18;<br /> +antiquity of his family, <i>ib. note</i> <sup>r</sup>;<br /> +state of France at his accession, 22;<br /> +opposition to, and ultimate recognition of his authority, 23 and <i>note</i> <sup>g</sup>;<br /> +period of his assumption of regal power, 128;<br /> +degree of authority exercised by his immediate descendants, 24, 136;<br /> +his sources of revenue, 208.</p> + +<p class="ind">Capitularies, what they were, i. 215;<br /> +their latest date, 218 and <i>note</i>.</p> + +<p class="ind">Caraccioli, favourite of Joanna II. of Naples, i. 489;<br /> +his assassination, 491 <i>note</i>.</p> + +<p class="ind">Carloman, inheritance of the children of, usurped by Charlemagne, i. 9 <i>note</i> <sup>y</sup>.</p> + +<p class="ind">Carlovingian dynasty, extinction of the, i. 17.</p> + +<p class="ind">Carrara (Francesco da), Verona seized by, i. 464;<br /> +killed in prison, 465.</p> + +<p class="ind">Carroccio, the, i. 467 and <i>note</i> <sup>d</sup>.</p> + +<p class="ind"><a name="CAST" id="CAST"></a>Castile and Leon united into one kingdom, ii. 4;<br /> +their subsequent re-division and reunion, 9;<br /> +composition and character of the cortes of Castile [see <a href="#CORT">Cortes</a>];<br /> +the council and its functions, 33, 34;<br /> +administration of justice, 35;<br /> +violations of law by the kings, 36;<br /> +confederacies of the nobility, 37;<br /> +similarity of its polity to that of England, 38;<br /> +establishment of tithes in Castile, 146 <i>note</i> <sup>a</sup>.</p> + +<p class="ind">Castle, graphic description of a, i. 322.</p> + +<p class="ind">Castruccio Castrucani, success of, i. 410.</p> + +<p class="ind">Catalonia, character of the people of, ii. 57;<br /> +severity of the state of villenage there, <i>ib. note</i> <sup>c</sup>.</p> + +<p class="ind">Catharists, religious tenets held by the, iii. <a href="#Page_384">384</a>.</p> + +<p class="ind">Catholics, treatment of the, by their Gothic conquerors, i. 3 <i>note</i> <sup>f</sup>.</p> + +<p class="ind">Cava (count Julian's daughter), legend of the seduction of, ii. 62.</p> + +<p class="ind">Celestine V., fraud of Boniface VIII. towards, ii. 228.</p> + +<p class="ind">Champ de Mars. See <a href="#FOM">Field of March</a>.</p> + +<p class="ind">Charlemagne, reunion of the Frankish empire under, i. 9 and <i>note</i> <sup>y</sup>;<br /> +his victories in Italy and Spain, 9, 10;<br /> +obstinate resistance and ultimate submission of the Saxons to his rule, 10;<br /> +his Sclavonian conquests, 11;<br /> +extent of his dominions, <i>ib.</i>;<br /> +his coronation as emperor, <i>ib.</i> and <i>note</i> <sup>c</sup>;<br /> +its consequences, 12;<br /> +his intellectual acquirements and domestic improvements, <i>ib.</i> and <i>note</i> <sup>e</sup>;<br /> +his vices, cruelties, religious edicts, 13;<br /> +his sons and successors, 14;<br /> +his control over the clergy, 16;<br /> +degeneracy of his descendants, 17;<br /> +state of the people under his rule, 18;<br /> +his dread of the Normans, 21;<br /> +his alleged election by the Romans as emperor discussed, 122-124;<br /> +question of succession involved in his elevation to the imperial title, 124-126;<br /> +his wise provisions relative to fugitive serfs, 198 <i>note</i> <sup>q</sup>;<br /> +his revenue, how raised, 208;<br /> +peculiarities of his legislative assemblies, 215, 216;<br /> +French ignorance of his character in the 14th century, 228;<br /> +his capitulary relative to tithes, ii. 145, 146 and <i>note</i> <sup>z</sup>;<br /> +his authority over the popes, 182;<br /> +state of his education, iii., <a href="#Page_286">286</a> and <i><a href="#Footnote_506_506">note</a></i> <sup>f</sup>;<br /> +his library, <a href="#Page_292">292</a> <i><a href="#Footnote_517_517">note</a></i>;<br /> +his encouragement of ordeals, <a href="#Page_295">295</a>;<br /> +his agricultural colonies, <a href="#Page_361">361</a>;<br /> +public schools in France due to him, <a href="#Page_419">419</a>;<br /> +becomes a disciple of Alcuin, <i>ib.</i></p> + +<p class="ind">Charles the Bad. See <a href="#CON">Charles of Navarre</a>.</p> + +<p class="ind">Charles the Bald, share of empire allotted to, i. 16, and <i>note</i> on p. 17;<br /> +ravages of the Normans during his reign, 21;<br /> +his imbecile government and its consequences, 135;<br /> +his slavish submission to the church, ii. 156, 157;<br /> +he disobeys pope Adrian II., 173, 174.</p> + +<p class="ind">Charles the Fat, accession and deposition of, i. 17;<br /> +position of Germany at his death, ii. 66;<br /> +arrogance of pope John VIII. towards him, 174.</p> + +<p class="ind">Charles the Simple, policy of, towards the Normans, i. 22.</p> + +<p class="ind">Charles IV. (the Fair) ascends the throne pursuant to the Salic law, i. 48;<br /> +conduct of Edward III. of England after his death, <i>ib.</i></p> + +<p class="ind">Charles V. (the Wise) submits to the peace of Bretigni, i. 59;<br /> +his summons to Edward the Black Prince, 63;<br /> +his treaty with Henry of Castile, <i>ib. note</i> <sup>t</sup>;<br /> +his successes against the English, 64;<br /> +his premature death and character, 65;<br /> +seizure of his treasures by the duke of Anjou, 65, 66;<br /> +expenses of his household, 68 <i>note</i> <sup>z</sup>;<br /> +his conflicts with the States-General, 230, 231;<br /> +he imposes taxes without their consent, 232.</p> + +<p class="ind">Charles VI., accession of, i. 65;<br /> +state of France during his reign, 66;<br /> +defeats the citizens of Ghent, 67;<br /> +misapplication of taxes during his minority, 68 and <i>note</i> <sup>z</sup>;<br /> +his seizure with insanity, 69;<br /> +disgraceful conduct of his queen, <i>ib.</i> and <i>note</i>;<br /> +his death, 76;<br /> +his submission to the remonstrances of the States-General, 232. +<span class="pagenum"><a name="Page_492" id="Page_492">[Pg 492]</a></span></p> + +<p class="ind">Charles VII., state of France at the accession of, i. 77;<br /> +his impoverished exchequer, 78;<br /> +his Scotch auxiliaries, <i>ib.</i>;<br /> +his character, and choice of favourites, 79;<br /> +change wrought in his fortunes by Joan of Arc, 79, 80;<br /> +his connection with Agnes Sorel, 80 <i>note</i> <sup>z</sup>;<br /> +restores Richemont to power, 80;<br /> +is reconciled with the duke of Burgundy, 82;<br /> +reconquers the provinces ceded to the English crown, 83;<br /> +his cruelty to English captives, 84;<br /> +consolidation of his power, 85;<br /> +insurrection of Guienne against taxation, 86 and <i>note</i>;<br /> +his conduct relative to the States-General, 234;<br /> +he levies taxes of his own will, 235;<br /> +he enacts the Pragmatic Sanction of Bourges, ii. 255.</p> + +<p class="ind">Charles VIII., accession of, i. 98;<br /> +contest for the regency during his minority, <i>ib.</i> 236;<br /> +marries Anne of Britany, 100;<br /> +consolidation of the French monarchy under his sway, 100, 101 and <i>notes</i>;<br /> +proceedings of the States-General during his minority, 236, 237.</p> + +<p class="ind">Charles of Anjou (I. of Naples), seizure of the crown of Naples by, i. 406;<br /> +he puts Conradin, the heir, to death, 407;<br /> +he defeats the Ghibelins and governs Tuscany, <i>ib.</i> and <i>note</i>;<br /> +revolt of his subjects, 410.</p> + +<p class="ind">Charles II. of Naples, war of the Sicilians against, i. 485;<br /> +his death, <i>ib.</i></p> + +<p class="ind">Charles of Durazzo (III. of Naples), implicated in the murder of Andrew, i. 486 <i>note</i> <sup>q</sup>;<br /> +puts queen Joanna to death, 487;<br /> +his assassination, 488.</p> + +<p class="ind">Charles IV. of Germany, singular character of, ii. 85;<br /> +his Golden Bull, 86 and <i>note</i> <sup>e</sup>;<br /> +he alienates the imperial domains, 94;<br /> +advancement of Bohemia under his rule, 102.</p> + +<p class="ind"><a name="C_MART" id="C_MART"></a>Charles Martel, conquest of the Saracens by, i. 7;<br /> +site and importance of the battle, <i>ib. note</i> <sup>q</sup>;<br /> +its object, 12;<br /> +his spoliation of the church, ii. 146.</p> + +<p class="ind"><a name="CON" id="CON"></a>Charles of Navarre (the Bad), tumults in France excited by, i. 56;<br /> +his crimes, 57;<br /> +allies himself with Edward III., <i>ib.</i></p> + +<p class="ind">Chartered towns. See <a href="#MINS">Municipal Institutions</a>, <a href="#TOWN">Towns</a>.</p> + +<p class="ind">Chaucer (Geoffrey), testimony borne by his writings, iii. <a href="#Page_160">160</a> <i><a href="#Footnote_382_382">note</a></i>;<br /> +character of his works, <a href="#Page_456">456</a>, <a href="#Page_457">457</a>.</p> + +<p class="ind">Chaucer (Sir Thomas), rebuked by Henry IV., iii. <a href="#Page_95">95</a>.</p> + +<p class="ind">Childebert (son of Clovis), dominions allotted to, i. 4 and <i>note</i> <sup>i</sup>;<br /> +his proposal relative to Clodomir's children, 311 <i>note</i>.</p> + +<p class="ind">Childeric III., deposition of, i. 8.</p> + +<p class="ind">Children, crusade undertaken by, iii. <a href="#Page_296">296</a> <i><a href="#Footnote_522_522">note</a></i> <sup>z</sup>.</p> + +<p class="ind"><a name="CHIL" id="CHIL"></a>Chilperic, guilty conduct of Fredegonde, the queen of, i. 5, 119;<br /> +oppressive taxes levied by him, 306;<br /> +tumult which ensued, <i>ib.</i>;<br /> +what followed after his death, <i>ib.</i>;<br /> +his attempts at poetry, iii. <a href="#Page_283">283</a>;<br /> +his attack on the sanctuary, <a href="#Page_303">303</a>.</p> + +<p class="ind">Chimneys. See <a href="#ARCH">Architecture</a>.</p> + +<p class="ind"><a name="CHIV" id="CHIV"></a>Chivalry, as a school of moral discipline, ii. 390;<br /> +remoteness of its origin, 391;<br /> +individual honour its keystone, 392;<br /> +types of chivalry, 392 and <i>note</i> <sup>s</sup>;<br /> +its original connection with feudal service, 394;<br /> +effect of the crusades, 395;<br /> +its connection with religion, 395, 396;<br /> +enthusiasm inspired by gallantry, 396-398;<br /> +licentiousness incident to chivalry, 399;<br /> +virtues inculcated by it, 400;<br /> +practice of courtesy, liberality, and justice, 401-403;<br /> +obligations of chivalry to the East, 403;<br /> +its attendant evils, 404;<br /> +education preparatory to knighthood, 405;<br /> +chivalric festivals, 406;<br /> +tournaments and their dangers, 407;<br /> +privileges of knighthood, 408;<br /> +who were admissible thereto, <i>ib.</i> and <i>note</i>;<br /> +military service: knights and bachelors, 409, 410 and <i>notes</i>;<br /> +causes of the decline of chivalry, 411;<br /> +influences by which it was superseded, 412 and <i>note</i> <sup>d</sup>.</p> + +<p class="ind">Christianity, impetus given to the formation of civic institutions by, i. 121;<br /> +its beneficial effect upon the Normans, 136.</p> + +<p class="ind"><a name="CHUR" id="CHUR"></a>Church, wealth of the, under the empire, ii. 140;<br /> +its position after the irruption of the barbarians, 141;<br /> +source of its legitimate wealth, 142;<br /> +its religious extortions, 143;<br /> +privileges attached to its property, 144;<br /> +institution of tithes, 144-146 and <i>notes</i>;<br /> +liability of church property to spoliation, 146;<br /> +origin of <i>precariæ</i>, 147 <i>note</i> <sup>d</sup>;<br /> +extent of the church's landed possessions, 148 and <i>note</i> <sup>i</sup>;<br /> +its participation in the administration of justice, 149;<br /> +limitations interposed by Justinian, 150, 151;<br /> +its political influence, 152;<br /> +source thereof, 153;<br /> +its subjection to the state, <i>ib.</i>;<br /> +Charlemagne's edicts relative to its affairs, 154, 155, and <i>notes</i>;<br /> +its assumption of authority over the French kings, 156, 157;<br /> +obsequiousness of England to its pretensions, 158;<br /> +investiture of its bishops with their temporalities, 181;<br /> +their simoniacal practices, <i>ib.</i> and <i>note</i> <sup>q</sup>;<br /> +canons and chapters, 191;<br /> +liberties of the Gallican church, 256;<br /> +high church principles always dangerous, 257 <i>note</i> <sup>x</sup>;<br /> +privileges of sanctuary, iii. <a href="#Page_302">302</a>, <a href="#Page_303">303</a>.<br /> +See <a href="#CLER">Clergy</a>, <a href="#MONAS">Monasteries</a>, <a href="#PAPO">Papal Power</a>.</p> + +<p class="ind">Clan service not based on feudality, i. 187.</p> + +<p class="ind">Clarence (duke of), put to death by Edward IV., iii. <a href="#Page_199">199</a>.</p> + +<p class="ind">Clarendon, constitutions of, ii. 221;<br /> +<span class="pagenum"><a name="Page_493" id="Page_493">[Pg 493]</a></span> +their influence on Thomas à Becket's quarrel with Henry II., 223.</p> + +<p class="ind">Cistertian monk, blasphemous saying attributed to a, i. 29 <i>note</i> <sup>t</sup>.</p> + +<p class="ind">Cities. See <a href="#MINS">Municipal Institutions</a> and <a href="#TOWN">Towns</a>.</p> + +<p class="ind">Civil Law. See <a href="#LAW">Laws</a>.</p> + +<p class="ind">Clement IV., effect of a bull promulgated by, ii. 215;<br /> +opposition of the Scotch king to his edict, 217.</p> + +<p class="ind">Clement V. ratifies Robert's claim to the crown of Naples, i. 485;<br /> +his maxim relative to benefices, ii. 215;<br /> +he removes the papal court to Avignon, 233;<br /> +his contests with the emperor Louis, 234;<br /> +England remonstrates with him, 238, 239 <i>notes</i>;<br /> +his outrageous edict against Venice, 260.</p> + +<p class="ind">Clement VI. acquits Joanna of Naples of murder, i. 487;<br /> +his licentiousness, ii. 238.</p> + +<p class="ind">Clement VII., circumstances relative to his election as pope, ii. 240;<br /> +division of the papacy thereupon, 242;<br /> +proceedings after his death, 242, 243.</p> + +<p class="ind"><a name="CLER" id="CLER"></a>Clergy, ascendency of the (<i>temp.</i> Charles the Bald), i. 135;<br /> +their privileges under the feudal system, 195, 196;<br /> +fighting prelates, 195 <i>note</i> <sup>f</sup>;<br /> +their participation in legislative proceedings, 213, 215;<br /> +privileges of their tenants, 319;<br /> +bishops in Lombardy and their temporalities, 364, 366 and <i>note</i> <sup>x</sup>;<br /> +share of the citizens in their election, 366 and <i>note</i> <sup>y</sup>;<br /> +a robber archbishop, ii. 95;<br /> +immense territorial possessions of the clergy, 148 and <i>notes</i>;<br /> +their acquisition of political power, 152, 153;<br /> +their neglect of the rule of celibacy, 176, 177;<br /> +sufferings of the married clergy, 177 and <i>note</i> <sup>d</sup>;<br /> +lax morality of the English clergy, 178, 179 <i>notes</i>;<br /> +practice of simony, 179;<br /> +consent of the laity required in the election of bishops, <i>ib.</i>;<br /> +interference of the sovereigns therein, 180 and <i>note</i> <sup>n</sup>;<br /> +character of the clergy of Milan, 187 <i>note</i> <sup>g</sup>;<br /> +taxation of the clergy by the kings, 216;<br /> +tribute levied on them by the popes, 216, 217;<br /> +their disaffection towards Rome, 218;<br /> +their exemption from temporal jurisdiction, 219-221;<br /> +extortions of Edward I., 229;<br /> +effects of Wicliff's principles, 252;<br /> +priests executed for coining, <i>ib. note</i> <sup>e</sup>;<br /> +spiritual peers in the English parliament, iii. <a href="#Page_4">4</a>, <a href="#Page_5">5</a>;<br /> +their qualifications, <a href="#Page_122">122</a>;<br /> +clergy summoned to send representatives, <a href="#Page_131">131</a>;<br /> +cause of their being summoned, <a href="#Page_132">132</a>;<br /> +result of their segregating themselves from the commons, <a href="#Page_133">133</a>;<br /> +instances of their parliamentary existence, <a href="#Page_135">135-138</a>;<br /> +right of bishops to be tried by the peers, <a href="#Page_204">204-207</a>;<br /> +mediæval clergy not supporters of despotism, <a href="#Page_258">258</a>;<br /> +their ignorance of letters, <a href="#Page_287">287-289</a>;<br /> +their monastic vices, <a href="#Page_303">303</a>;<br /> +why a bishop made a Danish nobleman drunk, <a href="#Page_306">306</a> <i><a href="#Footnote_541_541">note</a></i> <sup>u</sup>.<br /> +See <a href="#CHUR">Church</a>, <a href="#MONAS">Monasteries</a>, +<a href="#PAPO">Papal Power</a>, <a href="#SUPER">Superstition</a>.</p> + +<p class="ind">Clisson (constable de), immense wealth amassed by, i. 69.</p> + +<p class="ind">Clodomir (son of Clovis), dominions allotted to, i. 4;<br /> +proposed alternative relative to his children, 311 <i>note</i>.</p> + +<p class="ind">Clotaire, portion of dominions allotted to, i. 4;<br /> +union of the whole under him, 5;<br /> +re-division amongst his sons, <i>ib.</i>;<br /> +criminality of his character, 119.</p> + +<p class="ind">Clotaire II., reunion of the French dominions under, i. 5;<br /> +nature of the authority exercised by him, 117.</p> + +<p class="ind">Clotilda converts her husband to Christianity, i. 3;<br /> +her sons, 4.</p> + +<p class="ind">Clovis invades Gaul and defeats Syagrius, i. 2;<br /> +accepts the title of consul, <i>ib.</i> and <i>note</i> <sup>d</sup>;<br /> +defeats the Alemanni, 3;<br /> +his conversion to Christianity, <i>ib.</i>;<br /> +defeats Alaric, 4;<br /> +his last exploits and sanguinary policy, <i>ib.</i> and <i>note</i> <sup>g</sup>;<br /> +division of his dominions amongst his sons, 4, 5 and <i>notes</i>;<br /> +the last of his race, 8;<br /> +his alleged subjection to the emperors discussed, <i>Note</i> III. 106-111;<br /> +his limited authority: story of the vase of Soissons, 155;<br /> +theory built on the story, 301, 302;<br /> +crimes of himself and his grandson, iii. <a href="#Page_306">306</a> and <i><a href="#Footnote_541_541">note</a></i> <sup>u</sup>.</p> + +<p class="ind">Clovis II., accession of, i. 120.</p> + +<p class="ind">Cobham, lord (<i>temp.</i> Richard II.). banished, iii. <a href="#Page_77">77</a>.</p> + +<p class="ind"><a name="COIN" id="COIN"></a>Coining, extensive practice of, amongst the French nobles, i. 205;<br /> +debased money issued by them, 206;<br /> +systematic adulteration of coin by the kings, 210, 228, 231;<br /> +measures adopted for remedying these frauds, 211 <i>note</i> <sup>h</sup>;<br /> +grant of taxes made conditional on restoration of the coin, 230;<br /> +priests executed for coining, ii. 252 <i>note</i> <sup>e</sup>;<br /> +an abbot hanged for the same offence, iii. <a href="#Page_205">205</a>;<br /> +clipping of coins by the Jews, <a href="#Page_369">369</a> <i><a href="#Footnote_720_720">note</a></i> <sup>t</sup>.</p> + +<p class="ind">Cologne, antiquity of the municipal institutions of, i. 350.</p> + +<p class="ind">Coloni, characteristics and privileges of the, i. 325.</p> + +<p class="ind">Combat. See <a href="#TRICOM">Trial</a>.</p> + +<p class="ind">Comines (Philip de), characteristic note on taxation by, i. 236.</p> + +<p class="ind">Commodianus, literary remains of, iii. <a href="#Page_281">281</a>;<br /> +specimen thereof, <i>ib. note</i> <sup>n</sup>.</p> + +<p class="ind">Comnenus. See <a href="#ALEX">Alexius</a>.</p> + +<p class="ind">Conrad (duke of Franconia), elected emperor of Germany, ii. 67.</p> + +<p class="ind">Conrad II. (the Salic), important edict of, relative to feuds, i. 166, 167 and <i>notes</i>;<br /> +elected emperor of Germany, ii. 68;<br /> +his ancestry, <i>ib. note</i> <sup>f</sup>.</p> + +<p class="ind">Conrad III. joins in the second crusade i. 38;<br /> +elected emperor of Germany, ii. 72.</p> + +<p class="ind">Conrad IV., accession of, i. 392; +<span class="pagenum"><a name="Page_494" id="Page_494">[Pg 494]</a></span><br /> +his struggles for dominion in Italy, and death, <i>ib.</i>;<br /> +his difficulties in Germany, ii. 76.</p> + +<p class="ind">Conradin (son of Conrad IV.) attempts to regain his inheritance, i. 407;<br /> +put to death by Charles of Anjou, <i>ib.</i></p> + +<p class="ind">Constance, council of. See <a href="#CON_COUN">Council</a>.</p> + +<p class="ind">Constance, treaty of, i, 376.</p> + +<p class="ind">Constantine V. dethroned by his mother, i. 122.</p> + +<p class="ind"><a name="CONST" id="CONST"></a>Constantinople, advantageous position of, ii. 125;<br /> +its resistance to the Moslem assaults, 126;<br /> +its capture by the Latins, 128;<br /> +its magnificence and populousness, 129, 130;<br /> +Vandalism of its conquerors, 130;<br /> +its recapture by the Greeks, 131;<br /> +besieged by Bajazet, 132, and by Amurath, 135;<br /> +attacked by Mahomet II., 136;<br /> +its fall, 136, 137;<br /> +unrealised schemes for its recovery, 137, 138.</p> + +<p class="ind">Constitution of England. See <a href="#ENG_CON">English Constitution</a>.</p> + +<p class="ind">Cordova taken from the Moors, ii. 9;<br /> +its extent and wealth, <i>ib. note</i> <sup>m</sup>.</p> + +<p class="ind">Corn. See <a href="#AGRI">Agriculture</a>, <a href="#TRD">Trade</a>.</p> + +<p class="ind"><a name="CORT" id="CORT"></a>Cortes of Castile, original composition of the, ii. 20;<br /> +dwindling down of their numbers, 21;<br /> +their remonstrance against corruption, 22;<br /> +spiritual and temporal nobility, 22, 23 and <i>notes</i>;<br /> +control of the Cortes over the taxes, 24, 25;<br /> +their resolute defence of their right, 26;<br /> +their control over expenditure, 27;<br /> +its active exercise, 28;<br /> +their forms of procedure, 29;<br /> +their legislative rights, and attempted limitations thereon by the kings, 29-32;<br /> +their right to a voice in the disposal of the crown, 33, 34;<br /> +position of the clergy therein, iii. <a href="#Page_106">106</a> <i><a href="#Footnote_245_245">note</a></i>.</p> + +<p class="ind"><a name="CORV" id="CORV"></a>Corvinus (Matthias) elected king of Hungary, ii. 106;<br /> +his patronage of literature, 107 and <i>note</i> <sup>d</sup>.</p> + +<p class="ind"><a name="COUN" id="COUN"></a>Council of Basle, enmity of the, towards the papal court, ii. 247;<br /> +reforms effected by it, 248 and <i>note</i>;<br /> +its indiscretions, <i>ib.</i> and 250 <i>note</i>.</p> + +<p class="ind"><a name="CON_COUN" id="CON_COUN"></a>Council of Constance condemns John Huss and Jerome of Prague to be burned, ii. 102;<br /> +deposes John XXIII., 243;<br /> +preponderance of Italian interests therein, 244;<br /> +French opposition to the English deputies, <i>ib. note</i>;<br /> +tactics of the cardinals, 246;<br /> +national divisions in the council, <i>ib.</i>;<br /> +its breach of faith relative to Huss and Jerome canvassed, 250 and <i>note</i>.</p> + +<p class="ind"><a name="FR_COUN" id="FR_COUN"></a>Council of Frankfort convoked by Saint Boniface, ii. 165;<br /> +its importance in papal history, <i>ib.</i></p> + +<p class="ind">Council of Lyons, i. 391, ii. 75.</p> + +<p class="ind">Council of Pavia, ii. 247.</p> + +<p class="ind">Council of Pisa, proceedings at the, ii. 243.</p> + +<p class="ind">Cours plénières, character of the, i. 220.</p> + +<p class="ind">Courtney (archbishop), despoiled of his temporalities, iii. <a href="#Page_66">66</a>.</p> + +<p class="ind">Crecy, battle of, i. 55.</p> + +<p class="ind">Crescentius put to death by Otho III., i. 359 and <i>note</i>.</p> + +<p class="ind"><a name="CRUS" id="CRUS"></a>Crusades, origin of the, i. 33;<br /> +energetic appeals of Peter the Hermit, 34;<br /> +inducements offered to those who joined in them, 35;<br /> +crimes and miseries attendant on them, 36;<br /> +results of the first crusade, 37;<br /> +second crusade, 38;<br /> +its failure, <i>ib.</i> and <i>notes</i>;<br /> +origin of the third crusade, 40;<br /> +its famous commanders and inconclusive results, <i>ib.</i>;<br /> +crusades of St. Louis and their miserable ending, 41 and <i>note</i>;<br /> +cause of the cessation of crusades, iii. <a href="#Page_305">305</a>;<br /> +their demoralizing influence, <a href="#Page_307">307</a>.</p> + +<p class="ind">Cyprian's views relative to church government, ii. 159 <i>note</i> <sup>h</sup>;<br /> +further observations thereon, 267, 268. +<br /> +<br /> +</p> + +<p class="ind">Dagobert I., insignificance of the successors of, i. 6;<br /> +nature of the authority exercised by him, 117;<br /> +progress of the arts in his reign, 119.</p> + +<p class="ind">Dagobert II., name of, how restored to history, i. 112.</p> + +<p class="ind">Damascus, degeneracy of the khalifs of, ii. 120, 121.</p> + +<p class="ind">Danes, England first infested by the, i. 21.</p> + +<p class="ind">Dante Alighieri expelled from Florence, i. 402;<br /> +his birth, iii. <a href="#Page_445">445</a>;<br /> +style of his Vita Nuova, <i>ib. <a href="#Footnote_878_878">note</a></i>;<br /> +characteristics of his great poem, <a href="#Page_446">446-448</a>;<br /> +enthusiasm which attended its publication, <a href="#Page_448">448</a>.</p> + +<p class="ind">Dauphiné annexed to the French crown, i. 100;<br /> +its origin, 101, <i>note</i> <sup>k</sup>.</p> + +<p class="ind">Defiance, institution of the right of, ii. 95;<br /> +its abolition, 96.</p> + +<p class="ind">De la Mare (Peter), opposes the duke of Lancaster, iii. <a href="#Page_56">56</a>;<br /> +conduct of the citizens on his imprisonment, <a href="#Page_57">57</a>;<br /> +elected speaker of the commons, <a href="#Page_58">58</a>.</p> + +<p class="ind">Della Bella (Giano), improves the Florentine constitution, i. 424;<br /> +driven into exile, 425.</p> + +<p class="ind">Derby (earl of). See <a href="#BOLIN">Bolingbroke</a>.</p> + +<p class="ind">Diet. See <a href="#COUN">Council</a>.</p> + +<p class="ind"><a name="DIET" id="DIET"></a>Diet of Worms, important changes effected by the, ii. 94;<br /> +abolishes the right of defiance, 96;<br /> +establishes the imperial chamber, 97-99.</p> + +<p class="ind">Domesday Book, origin of the term, iii. <a href="#Page_362">362</a> <i><a href="#Footnote_696_696">note</a></i> <sup>r</sup>.</p> + +<p class="ind"><a name="DOM_LIFE" id="DOM_LIFE"></a>Domestic life in the middle ages, iii. <a href="#Page_341">341-345</a>;<br /> +income and style of living, <a href="#Page_370">370</a>.</p> + +<p class="ind">Douglas (earl of) aids Charles VII., i. 78.</p> + +<p class="ind">Duelling, introduction of the practice of, iii. <a href="#Page_294">294</a> and <i><a href="#Footnote_519_519">note</a></i> <sup>u</sup>.</p> + +<p class="ind">Du Guesclin (Bertrand), proceeds to Castile, i. 58;<br /> +his character 64;<br /> +he serves against Peter the Cruel, ii. 15; +<span class="pagenum"><a name="Page_495" id="Page_495">[Pg 495]</a></span><br /> +is taken prisoner, <i>ib.</i></p> + +<p class="ind"><a name="DUNS" id="DUNS"></a>Dunstan and Odo, and their treatment of Edwy and Elgiva, ii. 158;<br /> +elucidatory remarks relative thereto, 264-267. +<br /> +<br /> +</p> + +<p class="ind">Earl, origin of the title of, ii. 274 <i>note</i> <sup>p</sup>.</p> + +<p class="ind"><a name="EBRO" id="EBRO"></a>Ebroin, exercise of supreme power by, i. 6, 115, 120.</p> + +<p class="ind"><a name="ECCE" id="ECCE"></a>Eccelin da Romano, tyrannic exercise of power by, i. 389;<br /> +pretexts to which his infamous cruelty gave birth, <i>ib. note</i> <sup>f</sup>;<br /> +his fall, 406.</p> + +<p class="ind">Ecclesiastical jurisdiction. See <a href="#CHUR">Church</a>, <a href="#CLER">Clergy</a>, +<a href="#PAPO">Papal Power</a>.</p> + +<p class="ind">Edessa, extent of the principality of, i. 37 and <i>note</i> <sup>f</sup>.</p> + +<p class="ind">Edward the Confessor, popularity of the laws of, ii. 324, 351.</p> + +<p class="ind">Edward I. offends Philip IV. of France, i. 43 and <i>note</i>;<br /> +his brother Edmund outwitted by Philip, 44;<br /> +he curbs the power of the clergy, ii. 224;<br /> +his tyranny towards them, 228;<br /> +his reign a constitutional epoch, iii. <a href="#Page_1">1</a>;<br /> +his despotic tendencies, <a href="#Page_2">2</a>;<br /> +he confirms the charters, <a href="#Page_3">3</a> and <i><a href="#Footnote_3_3">note</a></i> <sup>c</sup>.</p> + +<p class="ind">Edward II. marries Isabel of France, i. 45;<br /> +he yields to the pope, ii. 239.</p> + +<p class="ind"><a name="ED_III" id="ED_III"></a>Edward III. lays claim to the French throne, i. 48;<br /> +its injustice shown, <i>ib.</i> and <i>note</i> 49;<br /> +his policy prior to resorting to arms, 49;<br /> +his chances of success, 51;<br /> +attempt of the pope to dissuade him from the attempt, <i>ib. note</i>;<br /> +principal features in his character, 52;<br /> +extent of his resources, 53, 54, and <i>notes</i>;<br /> +excellence of his armies, 55 and <i>note</i>;<br /> +his acquisition after the battles of Crecy and Poitiers, 56;<br /> +his alliance with Charles the Bad, 57;<br /> +conditions of the peace of Bretigni, 59;<br /> +his stipulation relative to Aquitaine, 61 and <i>note</i> <sup>p</sup>;<br /> +his reverses and their causes, 62, 63 and <i>notes</i>;<br /> +his opposition to the pope, ii. 239;<br /> +progress of parliament under him, iii. <a href="#Page_42">42</a>;<br /> +his attempts at encroachment, <a href="#Page_44">44-47</a>;<br /> +ascendency of Lancaster and Alice Perrers over him, <a href="#Page_55">55</a>;<br /> +ordinance against Alice, <a href="#Page_56">56</a>;<br /> +repeal thereof, <a href="#Page_57">57</a>;<br /> +revival of the prosecution against her, <a href="#Page_58">58</a> and <i><a href="#Footnote_139_139">note</a></i> <sup>g</sup>;<br /> +his debts to Italian bankers, <a href="#Page_340">340</a>.</p> + +<p class="ind">Edward the Black Prince, character of, i. 52;<br /> +his victory at Poitiers, 55;<br /> +created prince of Aquitaine, 61;<br /> +his impolitic conduct in Guienne, 63;<br /> +summoned before the peers of France, <i>ib.</i> and <i>note</i> <sup>t</sup>;<br /> +machinations relative to his heir, iii. <a href="#Page_55">55</a> and <i><a href="#Footnote_133_133">note</a></i> <sup>a</sup>;<br /> +his jealousy of the duke of Lancaster, <a href="#Page_56">56</a>;<br /> +his death, 57.</p> + +<p class="ind">Edward IV. accepts a pension from Louis XI., i. 89;<br /> +his military force, <i>ib. note</i> <sup>p</sup>;<br /> +Louis's reasons for declining a visit from him, 90;<br /> +his accession to the throne, iii. <a href="#Page_198">198</a>;<br /> +his inexcusable barbarities, <a href="#Page_199">199</a>;<br /> +popularity of his government, <i>ib.</i>;<br /> +his system of benevolences, <a href="#Page_200">200</a>.</p> + +<p class="ind">Edwy and Elgiva. See <a href="#DUNS">Dunstan</a>.</p> + +<p class="ind"><a name="ENG" id="ENG"></a>England, first infested by the Danes, i. 21;<br /> +its resources under Edward III., 53, 54;<br /> +causes of the success of its armies, 55, 77;<br /> +high payment to its men-at-arms, 77 <i>note</i> <sup>t</sup>;<br /> +discomfiture of its troops by Joan of Arc, 79;<br /> +impolicy touching its relations with France, 82;<br /> +deprived of its French possessions by Charles VII., 83;<br /> +its obsequiousness to the hierarchy, ii. 158;<br /> +its opposition to ecclesiastical jurisdiction, 222-225;<br /> +its protest against the exactions of the church, 238, 239 and <i>notes</i>;<br /> +its share in the council of Constance, 244 and <i>note</i>;<br /> +enactment of the statute of præmunire, 251;<br /> +effect of Wicliff's principles, 252;<br /> +progress of the country under the Anglo-Saxons [see <a href="#ANG_SAX">Anglo-Saxons</a>];<br /> +its state at the period of the Norman conquest, 302, 303;<br /> +fruitless resistance of its people to Norman rule, 304 and <i>notes</i>;<br /> +expulsion of its prelates and maltreatment of its nobles, 305 and <i>note</i>;<br /> +attempted suppression of its language, 306 and <i>note</i>;<br /> +wholesale spoliation of property, 308;<br /> +abject condition of English occupiers, 309, 310;<br /> +vastness of the Norman estates explained, 310;<br /> +conquered England compared with conquered Gaul, 311;<br /> +forest devastations and forest laws, 311, 312 and <i>notes</i>;<br /> +depopulation of the towns, 312;<br /> +establishment of feudal customs, 314;<br /> +preservation of the public peace, 315;<br /> +difference between feudalism in England and in France, 316, 317;<br /> +hatred by the English of the Normans, 318;<br /> +oppressions and exactions of the Norman government, 318, 320;<br /> +nature of the taxes then levied, 321, 322;<br /> +laws and charters of the Norman kings, 323, 324;<br /> +banishment of Longchamp by the barons, 325;<br /> +establishment of Magna Charta, 326;<br /> +difficulty of overrating its value, 327;<br /> +outline of its provisions, 321, 328;<br /> +confirmation thereof by Henry III., 329;<br /> +constitutional struggles between him and his barons, 331, 334;<br /> +limitations on the royal prerogative, 334, 335 and <i>notes</i>;<br /> +institution of the various courts of law, 336-338;<br /> +origin of the common law, 339-341;<br /> +character and defects of the English law, 341-343;<br /> +hereditary right of the crown established, 343-346;<br /> +legal position of the gentry, 346-348;<br /> +causes of civil equality, 348-351;<br /> +character of its government, iii. <a href="#Page_147">147</a>;<br /> +prerogatives of its kings, <a href="#Page_147">147-150</a>; +<span class="pagenum"><a name="Page_496" id="Page_496">[Pg 496]</a></span><br /> +mitigation of the forest laws, <a href="#Page_150">150</a> and <i><a href="#Footnote_366_366">note</a></i> <sup>p</sup>;<br /> +jurisdiction of its constable and marshal, <a href="#Page_151">151</a>, <a href="#Page_152">152</a> and <i><a href="#Footnote_369_369">notes</a></i>;<br /> +spirit of independence exhibited in mediæval ballads, <a href="#Page_265">265-267</a>;<br /> +its customs farmed by Italian bankers, <a href="#Page_339">339</a>, <a href="#Page_340">340</a> <i><a href="#Footnote_640_640">note</a></i> <sup>d</sup>.</p> + +<p class="ind"><a name="ENG_CON" id="ENG_CON"></a>English constitution, character of the, iii. <a href="#Page_152">152</a>;<br /> +Sir John Fortescue's doctrine, <a href="#Page_153">153-155</a>;<br /> +Hume's erroneous views regarding it, <a href="#Page_155">155</a>, <a href="#Page_158">158</a>;<br /> +causes tending to its formation, <a href="#Page_159">159</a>;<br /> +effect of the loss of Normandy, <a href="#Page_160">160</a>;<br /> +real source of English freedom, <a href="#Page_162">162</a>;<br /> +principle involved in the relationship between lords and their vassals, <i>ib.</i>;<br /> +right of distress on the king's property, <a href="#Page_163">163</a>;<br /> +feudal sources of constitutional liberty, <a href="#Page_164">164</a>;<br /> +influence of the nobility, <a href="#Page_165">165</a>;<br /> +salutary provisions of Edward I., <a href="#Page_169">169</a>;<br /> +nature and gradual extinction of villenage, <a href="#Page_171">171-183</a>;<br /> +instances of regencies and principles whereon they are founded, <a href="#Page_184">184-190</a>;<br /> +doctrine of prerogative, <a href="#Page_257">257-260</a>.<br /> +See <a href="#ANG_SAX">Anglo-Saxons</a>, <a href="#ENG">England</a>, +<a href="#F_SYS">Feudal System</a>, <a href="#PARL">Parliament</a>.</p> + +<p class="ind">Erigena. See <a href="#SCOTUS">Scotus</a> (John).</p> + +<p class="ind">Ethelwolf, grant of, relative to tithes, ii. 146 <i>note</i> <sup>a</sup>, 263.</p> + +<p class="ind">Eudes elected king by the Franks, i. 127;<br /> +his qualifications for the dignity, <i>ib.</i></p> + +<p class="ind">Eudes (duke of Burgundy). See <a href="#E_BURG">Burgundy</a>.</p> + +<p class="ind">Eudon signally defeats the Saracens, i. 116;<br /> +receives aid from Charles Martel, <i>ib.</i></p> + +<p class="ind">Eugenius IV. (cardinal Julian) advises Uladislaus to break faith with Amurath, ii. 105;<br /> +its fatal consequences, 106;<br /> +other instances of his perfidy, 210 <i>note</i> <sup>e</sup>;<br /> +his contests with the councils, 247;<br /> +his deposition by the council of Basle, 247 and <i>note</i> <sup>q</sup>.</p> + +<p class="ind">Euric, harsh treatment of his catholic subjects by, i. 3 <i>note</i> <sup>f</sup>. +<br /> +<br /> +</p> + +<p class="ind">False Decretals. See <a href="#ISID">Isidore</a>.</p> + +<p class="ind">Famines in the middle ages, frequency and extreme severity of, i. 328.</p> + +<p class="ind">Felix V. (pope), election and supersession of, ii. 248.</p> + +<p class="ind">Ferdinand confirmed in his succession to the crown of Naples, i. 494;<br /> +attempt of John of Calabria to oust him, <i>ib.</i>;<br /> +his odious rule, 503 and <i>note</i>.</p> + +<p class="ind">Ferdinand I. of Aragon, independence of the Catalans towards, ii. 57.</p> + +<p class="ind"><a name="FER_II" id="FER_II"></a>Ferdinand II. of Aragon marries Isabella of Castile, ii. 18;<br /> +they succeed to the Castilian throne, <i>ib.</i>;<br /> +Ferdinand invested with the crown of Aragon, 42;<br /> +arrangement of the united governments, 58, 59;<br /> +conquest of Granada, 59, 60.</p> + +<p class="ind">Ferdinand III. of Castile, capture of Cordova by, ii. 9.</p> + +<p class="ind">Ferdinand IV. of Castile, prevalence of civil dissensions in the reign of, ii. 12, 13;<br /> +his gross violation of justice and remarkable death, 36.</p> + +<p class="ind"><a name="F_SYS" id="F_SYS"></a>Feudal system, rise of the, i. 145;<br /> +nature of alodial and salic lands, 147-149 and <i>notes</i>;<br /> +distinction of laws, 151;<br /> +origin of nobility, 157-159, 189;<br /> +fiscal lands or benefices, their nature, condition, and, extent, 159, 160;<br /> +introduction of subinfeudation, 161;<br /> +origin of feudal tenures, 163;<br /> +custom of personal commendation, 164;<br /> +its character, <i>ib.</i>, 165;<br /> +edict of Conrad II., 166, 167, and <i>notes</i>;<br /> +principle of a feudal relation, 167;<br /> +rights and duties of vassals, <i>ib.</i>;<br /> +ceremonies of homage, fealty, and investiture, 169;<br /> +obligations of the vassal to his lord, 170;<br /> +military service, its conditions and extent, 171 and <i>notes</i>;<br /> +feudal incidents: origin of reliefs, 172, 173;<br /> +of fines on alienation, 174;<br /> +the custom of <i>frérage</i> in France, 176;<br /> +escheats and forfeitures, 177;<br /> +objects for which aids were levied, <i>ib.</i>;<br /> +limitations thereof by Magna Charta, 178;<br /> +institution of wardships, <i>ib.</i>;<br /> +their vexatious character in later times, 179;<br /> +extortionate and oppressive practices relative to marriages, 179, 180;<br /> +introduction of improper feuds, 181;<br /> +fiefs of office, their nature and variety, 181, 182 and <i>notes</i>;<br /> +feudal law-books, 182;<br /> +the Milanese collection, 183;<br /> +difference between that and the French and English systems, 183, 184;<br /> +the feudal system not of Roman origin, 185, 186;<br /> +localities over which it extended, 187, 188;<br /> +privileges of nobility, 191-194;<br /> +difference between a French <i>roturier</i> and an English <i>commoner</i>, 191 <i>note</i> <sup>p</sup>;<br /> +condition of the clergy, 195, 196;<br /> +of the classes below the gentry, 196;<br /> +assemblies of the barons, 219;<br /> +the cours plénières, 220, 248;<br /> +legislative and judicial assemblies [see <a href="#LEGIS">Legislation</a>, +<a href="#S_GEN">States-General</a>, <a href="#JUST">Justice</a>];<br /> +decline of the feudal system, 249;<br /> +its causes: increase of the domains of the crown, 253, 254;<br /> +rise of the chartered towns, 255-261 [see <a href="#TOWN">Towns</a>];<br /> +commutation of military service, 261 [see <a href="#MS">Military Systems</a>];<br /> +decay of feudal principles, 268;<br /> +influence of feudalism upon the institutions of England and France, 269;<br /> +civil freedom promoted by it, 270;<br /> +its tendency to exalt warlike habits, 271;<br /> +its value as an element of discipline, <i>ib.</i>;<br /> +and as producing sentiments of loyalty, 272;<br /> +the <i>mundium</i>, 318 <i>note</i>;<br /> +essentials of the feudal system, 319;<br /> +its principles aristocratic and exclusive, 321;<br /> +Guizot's description of a feudal castle, 322;<br /> +laxity of feudal tenures in Italy, 365;<br /> +<span class="pagenum"><a name="Page_497" id="Page_497">[Pg 497]</a></span> +question of their existence in England prior to the Conquest, ii. 293-301;<br /> +feudalism under the Normans, 314;<br /> +innovation introduced by William I., 315;<br /> +difference between the feudal policy of England and France, 316, 318;<br /> +tenure of folcland and bocland, 406-410;<br /> +abuses of feudal rights, iii. <a href="#Page_150">150</a>.</p> + +<p class="ind">Feuds, nature of, and derivation of the word, i. 316.</p> + +<p class="ind">Fiefs. See <a href="#BENE">Benefices</a>, <a href="#F_SYS">Feudal System</a>.</p> + +<p class="ind"><a name="FOM" id="FOM"></a>Field of March (or Champ de Mars), origin of the assemblies so termed, i. 212, 213;<br /> +their character, 213, 214;<br /> +not attended by the Roman inhabitants of Gaul, 282;<br /> +how often held, 308.</p> + +<p class="ind">Field Sports. See <a href="#SPORT">Sports</a>.</p> + +<p class="ind">Fines, extent and singularity of, under the Anglo-Norman kings, ii. 320.</p> + +<p class="ind">Fire-arms. See <a href="#MS">Military Systems</a>.</p> + +<p class="ind">Fiscal lands. See <a href="#BENE">Benefices</a>.</p> + +<p class="ind">Flanders, fraudulent conduct of Philip IV. towards the count of, i. 44;<br /> +successful resistance of its people, <i>ib.</i>;<br /> +large capture of gilt spurs by them, <i>ib. note</i> <sup>a</sup>;<br /> +their commerce with England, 54;<br /> +their rebellion against count Louis, 66, 67 and <i>notes</i>;<br /> +their insubordination, 92;<br /> +their resistance to taxation, 93 and <i>note</i>;<br /> +their woollen manufacture, iii. <a href="#Page_318">318</a>, <a href="#Page_319">319</a>;<br /> +their settlement in England, <a href="#Page_320">320</a> <i><a href="#Footnote_578_578">note</a></i> <sup>h</sup>;<br /> +its policy relative thereto, <a href="#Page_321">321</a> and <i><a href="#Footnote_583_583">note</a></i> <sup>o</sup>.<br /> +See <a href="#TRD">Trade</a>.</p> + +<p class="ind"><a name="FLO" id="FLO"></a>Florence, curtailment of the power of, by Frederic Barbarossa, i. 420;<br /> +exclusion of the Ghibelins from offices of trust, <i>ib.</i>;<br /> +Dante's simile relative to its unsettled state, <i>ib.</i>;<br /> +corporations of the citizens, 421;<br /> +its magistracy, <i>ib.</i>;<br /> +curious mode of election, 422;<br /> +the consiglio di popolo, 423;<br /> +defiance of law by the nobility, 424;<br /> +Giano della Bella reduces them to obedience, 424, 425;<br /> +rise of the plebeian aristocracy, 426;<br /> +Walter de Brienne invested with extraordinary powers, 427;<br /> +his tyranny and excesses, 428;<br /> +his overthrow, 429;<br /> +singular ordinances relative to the nobles, 430;<br /> +machinations of the Guelfs and persecutions of the Ghibelins, 431-433 and <i>note</i> <sup>c</sup>;<br /> +prostration of the Guelfs, 434;<br /> +insurrection of the Ciompi and elevation of Lando, 435;<br /> +his judicious administration, 436;<br /> +restoration of the Guelfs, 437;<br /> +comparative security of the Florentines, 438;<br /> +their territorial acquisitions, revenue, population, &c., 439, 440 and <i>notes</i>;<br /> +Pisa bought by them, 443;<br /> +further disquietudes in their government, 496;<br /> +rise of the Medici [see <a href="#MEDI">Medici</a>];<br /> +first Florentine voyage to Alexandria, 499 and <i>note</i>;<br /> +Florentine bankers and their transactions, iii. <a href="#Page_340">340</a> and <i><a href="#Footnote_640_640">notes</a></i>.</p> + +<p class="ind">Folcland, nature of, ii. 406.</p> + +<p class="ind">Foreigners invested with power in Italian states, i. 397, 416, 421, 427, 449.</p> + +<p class="ind">Forest laws of the Anglo-Norman kings, ii. 312;<br /> +mitigation of their severity, iii. <a href="#Page_150">150</a>;<br /> +punishments inflicted, <a href="#Page_311">311</a>.</p> + +<p class="ind">Fortescue (Sir John), on the English constitution, iii. <a href="#Page_154">154</a>.</p> + +<p class="ind">France, policy observed in the territorial division of, i. 4 <i>note</i> <sup>i</sup>;<br /> +insignificance of its early monarchs, 6 and <i>note</i> <sup>m</sup>;<br /> +loss of the English possessions in, 27;<br /> +increase of the French domains, 42-45;<br /> +its state at the commencement of hostilities by Edward III., 51;<br /> +its condition after the battle of Poitiers, 56;<br /> +assembly of the States-General, <i>ib.</i>;<br /> +desolation of the kingdom by famine, 57 and <i>note</i>;<br /> +ravaged by banditti, 58;<br /> +the Jacquerie insurrection, <i>ib.</i> and <i>note</i> <sup>k</sup>;<br /> +state of the country under Charles V. and VI., 65, 66;<br /> +under Charles VII., 77, 84;<br /> +consolidation of its dominions, 100;<br /> +its historians, 101 <i>note</i> <sup>m</sup>;<br /> +its deplorable state under Charles the Bald, 135;<br /> +its provincial government under the Merovingian kings, 152;<br /> +succession to its monarchy, 154 and 217 <i>note</i>;<br /> +its progress from weakness to strength, 204;<br /> +revenue of its kings, how raised, 208;<br /> +its coinage, 210, 211;<br /> +taxation, 211, 212;<br /> +its constitution never a <i>free</i> one, 229 <i>note</i> <sup>b</sup>;<br /> +designs of its kings upon Naples, 503 <i>et seq.</i></p> + +<p class="ind">Franconia, rise of the House of, ii. 68;<br /> +its extinction, 71.</p> + +<p class="ind">Frankfort, council of. See <a href="#FR_COUN">Council</a>.</p> + +<p class="ind">Franks, territories occupied by the, i. 2 and <i>note</i> <sup>c</sup>;<br /> +their probable origin, <i>Note</i> II. 104, 105;<br /> +their position under Pepin, 117, 118;<br /> +their promise to Pepin, 127, 154;<br /> +character of their church dignitaries, 150 <i>note</i> <sup>q</sup>;<br /> +increase of the power of their kings, 155;<br /> +serfdom and villenage amongst them, 198-200;<br /> +extent to which they participated in legislation, 213 and <i>note</i>;<br /> +origin of the Ripuarian Franks and Salian Franks, 279;<br /> +their numbers during the reign of Clovis, 291, 292;<br /> +presumed infrequency of marriages between them and the Romans, 296;<br /> +extent of power possessed by their kings, 301-309.</p> + +<p class="ind">Fredegonde, queen. See <a href="#CHIL">Chilperic</a>.</p> + +<p class="ind"><a name="FRED_I" id="FRED_I"></a>Frederic I. (Frederic Barbarossa), third crusade undertaken by, i. 40;<br /> +title conferred by him on the archbishop of Lyons, 45;<br /> +commencement of his career in Italy, 371;<br /> +he besieges Milan, 372;<br /> +subjugation and second rise of its citizens, <i>ib.</i>;<br /> +destruction of their city, 373;<br /> +league of Lombardy against him, 374;<br /> +his defeat and flight, 375;<br /> +peace of Constance, 376;<br /> +his policy relative to Sicily, 378;<br /> +his response to Roman oratory, 415 and <i>note</i>;<br /> +his accession to the German throne, ii. 73;<br /> +<span class="pagenum"><a name="Page_498" id="Page_498">[Pg 498]</a></span> +Henry the Lion's ingratitude towards him, 74 and <i>note</i> <sup>y</sup>;<br /> +he institutes the law of defiance, 95;<br /> +his forced submission to pope Adrian IV., 195;<br /> +his limitation on the acquisition of property by the clergy, 227;<br /> +his intellectual acquirements, iii. <a href="#Page_286">286</a> <i><a href="#Footnote_504_504">note</a></i> <sup>d</sup>;<br /> +his patronage of learning, <a href="#Page_422">422</a>.</p> + +<p class="ind">Frederic II., position of, at his accession, i. 385;<br /> +cause of his excommunication by Gregory IX., 386;<br /> +rancour of papal writers against him, <i>ib. note</i> <sup>c</sup>;<br /> +result of his crusade, 387;<br /> +his wars with the Lombards, <i>ib.</i>;<br /> +his successes and defeats, 390;<br /> +animosity of the popes towards him, 390, 391;<br /> +sentence of the council of Lyons against him, 391;<br /> +his accession to the German throne, ii. 75;<br /> +his deposition, 76;<br /> +he restrains the right of defiance, 96;<br /> +his imperial tribunal, 97;<br /> +his poetry, iii. <a href="#Page_442">442</a>.</p> + +<p class="ind">Frederic III. of Germany, character of the reign of, ii. 88 and <i>note</i>;<br /> +his significant motto, 89 <i>note</i> <sup>i</sup>;<br /> +objects of his diets, 96, 97;<br /> +he betrays the empire to the pope, 253.</p> + +<p class="ind">Freemasonry, and its connection with architecture, iii. <a href="#Page_359">359</a> <i><a href="#Footnote_690_690">note</a></i> <sup>k</sup>.</p> + +<p class="ind">Freemen, existence of, prior to the tenth century, i. 323;<br /> +alodial proprietors evidently of this class, 324;<br /> +other freemen, 325;<br /> +consequence of their marriage with serfs, 333.</p> + +<p class="ind">Fregosi and Adorni factions, i. 496.</p> + +<p class="ind">Froissart, value of the Chronicles of, i. 67 <i>note</i> <sup>x</sup>.</p> + +<p class="ind">Fulk's saucy reproof of Louis IV., iii. <a href="#Page_286">286</a> <i><a href="#Footnote_505_505">note</a></i> <sup>e</sup>. +<br /><br /> +</p> + +<p class="ind">Gandia (duke of), claims the throne of Aragon, ii. 41;<br /> +his death and failure of his son, <i>ib. note</i> <sup>e</sup>.</p> + +<p class="ind">Gaul invaded by Clovis, i. 2;<br /> +condition of its Roman natives, 149;<br /> +privileges of the "conviva regis," 150 <i>note</i> <sup>r</sup>, 281 and <i>note</i> <sup>e</sup>;<br /> +retention of their own laws by the Romans, 282;<br /> +their cities, 286;<br /> +their subjection to taxation, 287;<br /> +their accession to high offices, 293;<br /> +their right to adopt the laws of the Franks, 293, 294;<br /> +presumed infrequency of marriage between the two races, 296.</p> + +<p class="ind"><a name="GENOA" id="GENOA"></a>Genoa, early history of, i. 444;<br /> +her wars with Pisa and Venice, <i>ib.</i>;<br /> +victory of her fleet over Pisani, 445;<br /> +insolence of her admiral towards the Venetian ambassadors, 446;<br /> +her subsequent reverses, 447;<br /> +surrender of her forces to Venice, 448;<br /> +decline of her power, 449;<br /> +her government and its various changes, <i>ib.</i>;<br /> +dissensions of the Guelfs and Ghibelins, 450;<br /> +her first doge, 451;<br /> +frequent revolutions of her citizens, <i>ib.</i>;<br /> +the Adorni and Fregosi factions, 496;<br /> +commercial dealings of the Genoese, iii. <a href="#Page_329">329</a>;<br /> +their position in Constantinople, <a href="#Page_330">330</a>;<br /> +their manufactures, <a href="#Page_331">331</a>;<br /> +their money transactions, <a href="#Page_337">337</a>, <a href="#Page_340">340</a>;<br /> +state security taken by their bankers, <a href="#Page_341">341</a>.</p> + +<p class="ind"><a name="GERM" id="GERM"></a>Germany conquered by Charlemagne, i. 9, 10;<br /> +held by Louis his grandson, 16;<br /> +passes away from his family, 17;<br /> +its Hungarian assailants, 19;<br /> +its first apostles, 121;<br /> +political state of ancient Germany, 145;<br /> +mode in which kings were chosen, <i>ib.</i>;<br /> +lands in conquered provinces, how-divided, 146;<br /> +customs respecting alodial and salic lands, 147-149 and <i>notes</i>;<br /> +superior position of its rulers as compared with those of France, 204;<br /> +causes of the reversal of this state of things, <i>ib.</i>;<br /> +degree of reliance due to Tacitus's accounts of German institutions, 273-275;<br /> +character of its governments, 302;<br /> +limited power of its kings, 302-304;<br /> +its position at the death of Charles the Fat, ii. 66;<br /> +election of its emperors, in whom vested, 77-80;<br /> +partitions of territory amongst its princes, 83, 84;<br /> +importance of its free cities, 90;<br /> +privileges conferred on them, <i>ib.</i>;<br /> +their warfare with the nobles, 91;<br /> +the sanctuary of the palisades, 92;<br /> +league of the cities, <i>ib.</i>;<br /> +polity of the principalities, 93;<br /> +extent of the imperial domains, <i>ib.</i>;<br /> +their gradual alienation by the emperors, <i>ib.</i>;<br /> +the diet of Worms and its results, 94-98;<br /> +limits of the German empire at various periods, 100;<br /> +absence of towns, iii. <a href="#Page_312">312</a>;<br /> +pre-eminence of its robber chiefs, <a href="#Page_314">314</a>.<br /> +See <a href="#DIET">Diet</a>, <a href="#JUST">Justice</a>.</p> + +<p class="ind">Ghent, populousness and impregnability of, i. 92, 93;<br /> +policy of its people relative to taxation, 93 <i>note</i>;<br /> +its trading eminence, iii. <a href="#Page_319">319</a>;<br /> +its houses and population, <a href="#Page_320">320</a> <i><a href="#Footnote_576_576">note</a></i> <sup>f</sup>.</p> + +<p class="ind">Ghibelins, origin of the word, ii. 73.<br /> +See <a href="#GUELF">Guelfs</a>.</p> + +<p class="ind">Giovanni di Vicenza, singular success of the exhortations of, i. 403;<br /> +result of his attempts at sovereignty, 404.</p> + +<p class="ind">Gloucester, duke of (<i>temp.</i> Richard II.), speaks for the parliament, +iii. <a href="#Page_67">67</a>, <a href="#Page_68">68</a> <i><a href="#Footnote_157_157">note</a></i> <sup>c</sup>;<br /> +made lord appellant, <a href="#Page_72">72</a>;<br /> +reinstated in the council, <a href="#Page_73">73</a>;<br /> +his animosity towards the duke of Lancaster, <a href="#Page_74">74</a>, <a href="#Page_75">75</a>;<br /> +his seizure by the king, <a href="#Page_76">76</a>;<br /> +his murder and posthumous attainder, <i>ib.</i></p> + +<p class="ind">Godfrey of Boulogne, eastern domains assigned to, i. 38;<br /> +his reasons for refusing the title of king, <i>ib. note</i> <sup>g</sup>;<br /> +his feats of strength, <i>ib. note</i> <sup>h</sup>.</p> + +<p class="ind">Granada, fertility and importance of, ii. 60;<br /> +its unavailing resistance to Ferdinand, <i>ib.</i></p> + +<p class="ind">Gratian, character of the Decretum compiled by, ii. 203.</p> + +<p class="ind">Greek church, marriage of priests permitted by the, ii. 176.</p> + +<p class="ind">Greek empire, degeneracy of the, ii. 120;<br /> +its theological dissensions, <i>ib.</i>;<br /> +revival of its power, 124; +<span class="pagenum"><a name="Page_499" id="Page_499">[Pg 499]</a></span><br /> +tactics of its emperors, 125 and <i>note</i> <sup>n</sup>;<br /> +exploits of celebrated usurpers, 126;<br /> +results of the first crusade, 127;<br /> +expeditions of Alexius Comnenus, 128;<br /> +sacking of the capital, 128-130;<br /> +partition of the empire, 130;<br /> +its declining state, 132;<br /> +lukewarmness of the western Christians, 135;<br /> +fall of the empire, 136;<br /> +the last of the Cæsars, <i>ib.</i>;<br /> +Greek anti-exportation anecdote, iii. <a href="#Page_315">315</a> <i><a href="#Footnote_567_567">note</a></i> <sup>a</sup>.<br /> +See <a href="#CONST">Constantinople</a>.</p> + +<p class="ind">Gregory I., character of, ii. 161;<br /> +he establishes the appellant jurisdiction, 162, <i>note</i> <sup>r</sup>.</p> + +<p class="ind">Gregory II., design of, for placing Rome under Charles Martel's protection, i. 122.</p> + +<p class="ind">Gregory IV. and V., submission of, to imperial authority, ii. 182.</p> + +<p class="ind"><a name="G_VII" id="G_VII"></a>Gregory VII., projection of the crusades by, i. 34;<br /> +his obligations to the countess Matilda, 380;<br /> +his ascendency over the clergy, ii. 183, 184;<br /> +elected pope, 184;<br /> +his differences with, and excommunication of, Henry IV. of Germany, 184, 185 and <i>note</i>;<br /> +rigorous humiliation imposed by him on Henry, 186;<br /> +his exile and death, 187;<br /> +his declaration against investitures, 189;<br /> +his illimitable ambition and arrogance, 192;<br /> +his despotism towards ecclesiastics, 193;<br /> +his arrogance eclipsed by Innocent III., 228.</p> + +<p class="ind">Gregory IX., excommunications of Frederic II. by, i. 387, 391;<br /> +his further designs against Frederic, <i>ib.</i>;<br /> +Decretals published by his order, ii. 203;<br /> +his encroachments on the English church, 212;<br /> +his pretext for levying contributions, 216;<br /> +immense sum extorted by him from England, 217.</p> + +<p class="ind">Gregory X., tax levied on the church by, ii. 218.</p> + +<p class="ind">Gregory XI. reinstates the papal court at Rome, ii. 240.</p> + +<p class="ind">Gregory XII. elected and deposed, ii. 242.</p> + +<p class="ind">Grimoald, usurpation of supreme power by, i. 6.</p> + +<p class="ind">Grostete (Robert, bishop of Lincoln), notices of, ii. 217 <i>note</i> <sup>f</sup>;<br /> +iii. <a href="#Page_429">429</a> <i><a href="#Footnote_844_844">note</a></i> <sup>k</sup>, <a href="#Page_464">464</a>.</p> + +<p class="ind">Guarnieri (duke), systematic levy of contributions by, i. 471;<br /> +success of his operations, <i>ib.</i></p> + +<p class="ind"><a name="GUELF" id="GUELF"></a>Guelfs and Ghibelins, origin of the rival factions of, i. 382;<br /> +their German antecedents, 383 and <i>note</i>;<br /> +characteristics of the two parties, 384;<br /> +irrationality of the distinctions, 406;<br /> +temporary union of the factions, <i>ib.</i>;<br /> +expulsion of the Ghibelins from Florence, 407;<br /> +revival of their party, 410;<br /> +origin of the name Guelfs, ii. 73;<br /> +See <a href="#FLO">Florence</a>, <a href="#GENOA">Genoa</a>.</p> + +<p class="ind">Gui de Lusignan, cause of his flight from France, i. 36.</p> + +<p class="ind">Guienne, seized by Philip IV., i. 43;<br /> +restored to England, 44;<br /> +insurrection of its people against Charles VII., 86 and <i>note</i>;<br /> +suspicious death of Charles duke of, 89 and <i>note</i>.</p> + +<p class="ind">Guiscard (Robert), territorial conquests of, i. 363;<br /> +he takes Leo IX. prisoner, <i>ib.</i>;<br /> +his English opponents at Constantinople, ii. 307.</p> + +<p class="ind">Guiscard (Roger), conquers Sicily, i. 363;<br /> +declared king by Innocent II., 364;<br /> +he shelters Gregory VII., ii. 187;<br /> +he subjugates Amalfi, iii. <a href="#Page_328">328</a>;<br /> +he introduces silk manufactures at Palermo, <a href="#Page_331">331</a>.</p> + +<p class="ind">Gunpowder. See <a href="#MS">Military Systems</a>.<br /> +<br /> +</p> + +<p class="ind">Hair, length of, a mark of nobility, i. 310;<br /> +Childebert's proposal relative to Clodomir's children, 311 <i>note</i>.</p> + +<p class="ind">Hanse towns, confederacy of the, iii. <a href="#Page_325">325</a>.</p> + +<p class="ind">Haroun Alraschid, magnificence of the rule of, ii. 121;<br /> +African principalities in his reign, 122.</p> + +<p class="ind">Hastings, lord (<i>temp.</i> Edward IV.), receives bribes from Louis XI., i. 90;<br /> +his reason for refusing to give receipts for the same, <i>ib. note</i> <sup>q</sup>.</p> + +<p class="ind"><a name="HAWK" id="HAWK"></a>Hawkwood (Sir John), military renown acquired by, i. 472;<br /> +gratitude of the Florentines towards him, <i>ib.</i>;<br /> +his skill as a general, 473.</p> + +<p class="ind">Haxey (Thomas), surrendered by the commons to the vengeance of Richard II., +iii. <a href="#Page_76">76</a>, <a href="#Page_102">102</a>;<br /> +important principles involved in his case, <a href="#Page_76">76</a> <i><a href="#Footnote_168_168">notes</a></i>.</p> + +<p class="ind">Henry II. of Castile rebels against Peter the Cruel, ii. 14;<br /> +his defeat and subsequent victory, 15;<br /> +his vow to preserve justice, 36.</p> + +<p class="ind">Henry III. of Castile marries John of Gaunt's daughter, ii. 15.</p> + +<p class="ind">Henry IV. of Castile, despicable character of, ii. 17;<br /> +deposed by a conspiracy of nobles, <i>ib.</i>;<br /> +futile efforts of his daughter to succeed him, 18;<br /> +contests after his death, <i>ib.</i>;<br /> +his reproof by the Cortes of Ocana, 33.</p> + +<p class="ind">Henry I. of England, extortions on the church by, ii. 216.</p> + +<p class="ind">Henry II. marries the repudiated wife of Louis VII., i. 25;<br /> +opposes the tyranny of the church of Rome, ii. 222;<br /> +cause of his dispute with Thomas à Becket, 223.</p> + +<p class="ind">Henry III. allows Italian priests in English benefices, ii. 213;<br /> +abets papal taxation on the clergy, 217;<br /> +his submissiveness, 226;<br /> +provisions contained in his charter, 327, 328;<br /> +worthlessness of his character, 329;<br /> +his perjuries, 330;<br /> +his pecuniary difficulties and extortions, 331;<br /> +<span class="pagenum"><a name="Page_500" id="Page_500">[Pg 500]</a></span> +his expensive foreign projects, 332;<br /> +demands of the pope and resolute conduct of the barons, 333;<br /> +his quarrel with, the earl of Pembroke, iii. <a href="#Page_164">164</a>.</p> + +<p class="ind"><a name="HIV" id="HIV"></a>Henry IV., policy and views of, towards France, i. 65, 74;<br /> +circumstances attending his succession, iii. <a href="#Page_81">81</a>;<br /> +invalidity of his hereditary title, <a href="#Page_82">82</a>;<br /> +his tactics towards the parliament, <a href="#Page_83">83</a>;<br /> +aid granted to him in 1400, <a href="#Page_85">85</a>;<br /> +policy of the commons towards him, <a href="#Page_86">86</a>, <a href="#Page_87">87</a>;<br /> +limitations imposed on him, <a href="#Page_93">93</a>, <a href="#Page_94">94</a>;<br /> +he comes to terms with them, <a href="#Page_94">94</a>.<br /> +See <a href="#BOLIN">Bolingbroke</a>.</p> + +<p class="ind">Henry V., his exorbitant demands on proposing to marry Catherine of France, i. 74 and <i>note</i> <sup>n</sup>;<br /> +invasion of France by, <i>ib.</i> and <i>note</i> <sup>o</sup>;<br /> +his negotiations with the duke of Burgundy, 75;<br /> +his marriage and death, 76;<br /> +life subsidies granted to him, iii. <a href="#Page_87">87</a>;<br /> +improbability of his alleged dissoluteness, <a href="#Page_96">96</a>;<br /> +his claims on popular affection, <i>ib.</i>;<br /> +his clemency to the earl of March, <a href="#Page_194">194</a>.</p> + +<p class="ind"><a name="H_VI" id="H_VI"></a>Henry VI., parliamentary policy during the minority of, iii. <a href="#Page_97">97</a>, +<a href="#Page_98">98</a>;<br /> +unpopularity of his marriage, <a href="#Page_98">98</a>;<br /> +his conduct on Suffolk's impeachment, <a href="#Page_99">99</a>;<br /> +state of the kingdom during his minority, <a href="#Page_183">183</a>;<br /> +his imbecility, <i>ib.</i>;<br /> +solemnities observed in nominating a regency during his infancy, <a href="#Page_186">186-190</a>;<br /> +provisions in consequence of his mental infirmities, <a href="#Page_190">190-194</a>.</p> + +<p class="ind">Henry VII., conduct of, towards the memory of his predecessors, iii. <a href="#Page_200">200</a> and <i><a href="#Footnote_455_455">note</a></i> <sup>q</sup>.</p> + +<p class="ind">Henry I. of France, alleged large army levied by, i. 24 <i>note</i> <sup>h</sup>;<br /> +extent of authority exercised by him, 137.</p> + +<p class="ind">Henry I. the Fowler, elected emperor of Germany, ii. 67;<br /> +his scheme for improving his territories, <i>ib. note</i> <sup>d</sup>.</p> + +<p class="ind">Henry II. of Bavaria, elected emperor of Germany, ii. 68.</p> + +<p class="ind">Henry III. of Germany, imperial influence extended by, ii. 68;<br /> +instances of his exercise of absolute power, 69, 95;<br /> +his judicious nomination of popes, 183.</p> + +<p class="ind">Henry IV. of Germany, primary cause of the misfortunes of, ii. 69;<br /> +conspiracy against him during his infancy, 70 <i>note</i> <sup>k</sup>;<br /> +his abduction by Hanno, <i>ib.</i>;<br /> +his excommunication and its consequences, <i>ib.</i> and <i>note</i> <sup>n</sup>;<br /> +his remains insulted by Rome, 71;<br /> +zeal of the cities in his cause, 90;<br /> +his contests with Gregory VII., 184, 185;<br /> +his humiliation by Gregory, 186;<br /> +the tables turned, 187;<br /> +animosity of Gregory's successors towards him, 187, 188.</p> + +<p class="ind">Henry V. of Germany, accession and death of, ii. 71;<br /> +privilege granted by him to the cities, 90;<br /> +his compromise with the popes, 188.</p> + +<p class="ind">Henry VI. of Germany, repudiates arrangements between his predecessor and the popes, i. 381;<br /> +production of his alleged will, <i>ib.</i>;<br /> +his ambitious project, ii. 74;<br /> +his death, 75.</p> + +<p class="ind">Henry VII. of Germany, acquires Bohemia for his son, ii. 85;<br /> +his opposition to the papal power, 234.</p> + +<p class="ind">Henry the Proud, ancestry and possessions of, ii. 72;<br /> +consequences of his disobedience to the emperor's summons, 72, 73.</p> + +<p class="ind">Henry the lion restored to his birthright, ii. 73;<br /> +fatal results of his ingratitude, 74.</p> + +<p class="ind"><a name="HE_SUC" id="HE_SUC"></a>Hereditary succession, how far observed among the Franks, i. 154 <i>note</i> <sup>f</sup>, 299;<br /> +disregarded by the Anglo-Saxons, ii. 273;<br /> +establishment of the principle in England, 343-346;<br /> +elucidatory note upon the subject, 425-428.</p> + +<p class="ind">Hereford (earl and duke of). See <a href="#BOHUN">Bohun</a>, <a href="#BOLIN">Bolingbroke</a>.</p> + +<p class="ind">Hereward, brave resistance of, to William the Conqueror, ii. 304 <i>note</i> <sup>f</sup>.</p> + +<p class="ind">Hilary deposed by Leo the Great, ii. 161 <i>note</i> <sup>p</sup>.</p> + +<p class="ind">Hildebrand. See <a href="#G_VII">Gregory VII</a>.</p> + +<p class="ind">Honorius III., establishment of mendicant orders by, ii. 206;<br /> +refusal of his requests by France and England, 213.</p> + +<p class="ind">Hugh the Great of France, procures the election of Louis IV., i. 128.</p> + +<p class="ind">Hugh Capet. See <a href="#CAPET">Capet</a>.</p> + +<p class="ind">Hungarians, ravages in Europe by the, i. 20;<br /> +their ferocity towards the clergy, <i>ib. note</i> <sup>z</sup>;<br /> +their conversion to Christianity, ii. 104;<br /> +their wars with the Turks, 105-107.</p> + +<p class="ind">Hungary, kings and chiefs of. See <a href="#AOH">Andrew</a>, <a href="#CORV">Corvinus</a>, +<a href="#HUNNI">Hunniades</a>, <a href="#LADH">Ladislaus</a>, <a href="#LOHUN">Louis of Hungary</a>, +<a href="#SIGIS">Sigismund</a>, <a href="#ULAD">Uladislaus</a>.</p> + +<p class="ind">Hungerford (Sir Thomas), elected speaker, iii. <a href="#Page_58">58</a>.</p> + +<p class="ind"><a name="HUNNI" id="HUNNI"></a>Hunniades (John), heroic career of, ii. 105, 106;<br /> +his death, 106.</p> + +<p class="ind">Huss (John), burned to death, ii. 102;<br /> +characteristics of his schism and his followers, iii. <a href="#Page_389">389</a> and <i><a href="#Footnote_757_757">note</a></i> <sup>m</sup>, +<a href="#Page_390">390</a>.<br /> +<br /> +</p> + +<p class="ind"><a name="I_III" id="I_III"></a>Innocent III., persecution of the Albigeois by, i. 28;<br /> +his ambitious policy, 379;<br /> +his significant production of the will of Henry VI. of Germany, 381;<br /> +position of the Italian cities towards him, <i>ib.</i>;<br /> +use made by him of his guardianship of Frederic II., 385;<br /> +increase of temporal authority under him, 416;<br /> +his accession to the papal chair, ii. 195;<br /> +extravagance of his pretensions, 196;<br /> +his scheme of universal arbitration, 197;<br /> +his decrees and interdicts, 199;<br /> +<span class="pagenum"><a name="Page_501" id="Page_501">[Pg 501]</a></span> +his interference with the German emperors, 200;<br /> +his claim, to nominate bishops, 212;<br /> +cause of his anger with the chapter of Poitiers, 213;<br /> +he levies taxes on the clergy, 216;<br /> +his pretext for exercising jurisdiction, 220;<br /> +he exempts the clergy from criminal process, 221;<br /> +his arrogance eclipsed by Boniface VIII., 228.</p> + +<p class="ind">Innocent IV., outrageous proceedings of, against Frederic II., i. 391;<br /> +his conduct towards Frederic's successors, 392;<br /> +he quarters Italian priests on England, ii. 213;<br /> +height of papal tyranny during his pontificate, 217;<br /> +his disposal of the crown of Portugal, 231 <i>note</i> <sup>g</sup>;<br /> +anecdote of him, 238 <i>note</i> <sup>r</sup>.</p> + +<p class="ind">Innocent VI. elected pope, ii. 242.</p> + +<p class="ind">Interdicts, ii. 172, 260 <i>note</i> <sup>g</sup>, and 261.<br /> +See <a href="#PAPO">Papal Power</a>.</p> + +<p class="ind">Ireland a mediæval slave depôt, iii. <a href="#Page_316">316</a> and <i><a href="#Footnote_570_570">note</a></i> <sup>d</sup>.</p> + +<p class="ind">Irene, dethronement of Constantine V. by, i. 122;<br /> +Leo III.'s project of marriage between her and Charlemagne, <i>ib.</i></p> + +<p class="ind">Isabel of Bavaria (queen of Charles VI.), infamous conduct of, towards her husband, i. 69;<br /> +her hatred of Armagnac, and its consequences, 72;<br /> +joins in the treaty with Henry V., 76.</p> + +<p class="ind">Isabel of France, marries Edward II. of England, i. 45.</p> + +<p class="ind">Isabella of Castile. See <a href="#FER_II">Ferdinand II</a>.</p> + +<p class="ind"><a name="ISID" id="ISID"></a>Isidore, publication of the False Decretals of, ii. 166;<br /> +their character and object, 166, 167 and <i>notes</i>;<br /> +authority accorded to them by Gratian, 203.</p> + +<p class="ind"><a name="ITA" id="ITA"></a>Italy, occupied by the Ostrogoths, i. 1;<br /> +its subjection by the Lombards, 8;<br /> +conquests of Pepin and Charlemagne, 9;<br /> +its king Bernard, 14;<br /> +its state at the end of the ninth century, 355;<br /> +authorities referred to for its history, <i>ib. note</i>;<br /> +its monarchs Berenger I. and II., 357 and <i>note</i> <sup>c</sup>;<br /> +assumption of power by Otho the Great, <i>ib.</i>;<br /> +execution of Crescentius by Otho III., 359;<br /> +election and subsequent troubles of Ardoin, <i>ib.</i>;<br /> +condition of its people under Henry II., 360;<br /> +cause of its subjection to German princes, <i>ib.</i>;<br /> +accession of Conrad II., and consolidation of Germanic influences, 360, 361;<br /> +its Greek provinces, 361, 362;<br /> +incursions and successes of the Normans, 362-364;<br /> +progress of the Lombard cities [see <a href="#LOMB">Lombards</a>];<br /> +accession of Frederic Barbarossa, 370 [see <a href="#FRED_I">Frederic I</a>.];<br /> +cause of the decadence of Italy, 377, 378;<br /> +its domestic manners, iii. <a href="#Page_342">342</a>, <a href="#Page_344">344</a>.<br /> +<br /> +</p> + +<p class="ind">Jacquerie, insurrection of the, i. 58, and <i>note</i> <sup>k</sup>.</p> + +<p class="ind">James II. of Aragon, renounces the Sicilian crown, i 485;<br /> +invested with the Sardinian crown, ii. 231 <i>note</i> <sup>g</sup>.</p> + +<p class="ind">Jane of Navarre, treaty entered into on behalf of, i. 45;<br /> +betrayal of her cause by the duke of Burgundy, 47;<br /> +she recovers Navarre, <i>ib. note</i> <sup>g</sup>.</p> + +<p class="ind">Janizaries, institution of the, ii. 137.</p> + +<p class="ind">Jerome of Prague, burned to death, ii. 102.</p> + +<p class="ind">Jerusalem, foundation of the kingdom of, i. 38;<br /> +its conquest by Saladin, 40;<br /> +restored to the Christians by the Saracens, 41;<br /> +oppressive system of marriages there, under the feudal system, 180;<br /> +title of the kings of Naples to sovereignty over it, 386 <i>note</i> <sup>d</sup>.</p> + +<p class="ind">Jews, wealth amassed and persecutions endured by the, i. 209;<br /> +their early celebrity as usurers, <i>ib. note</i> <sup>b</sup>;<br /> +their final expulsion from France, 210 and <i>note</i> <sup>d</sup>;<br /> +ordinances against them, 222;<br /> +exorbitant rates paid by them in England, ii. 320;<br /> +their massacre by the Pastoureaux, iii. <a href="#Page_297">297</a>;<br /> +their liability to maltreatment, <a href="#Page_305">305</a>;<br /> +barbarous customs regarding them, <i>ib. <a href="#Footnote_540_540">note</a></i>;<br /> +the Jew-drowning story, <a href="#Page_306">306</a> <i><a href="#Footnote_541_541">note</a></i> <sup>u</sup>;<br /> +their early money dealings, <a href="#Page_338">338</a>;<br /> +toleration vouchsafed to them, <i>ib.</i>;<br /> +decline of their trade, <a href="#Page_339">339</a>;<br /> +their addiction to coin-clipping, <a href="#Page_369">369</a> <i><a href="#Footnote_720_720">note</a></i> <sup>t</sup>.</p> + +<p class="ind">Joan of Arc, character, successes, and fate of, i. 79, 80;<br /> +her betrayer, 84 <i>note</i> <sup>f</sup>;<br /> +her name and birthplace, 143;<br /> +great merit of Southey's poem, <i>ib.</i></p> + +<p class="ind">Joanna of Naples, married to Andrew of Hungary, i 486;<br /> +her husband's murder imputed to her, <i>ib.</i> and <i>note</i> <sup>q</sup>;<br /> +she dies by violence, 487.</p> + +<p class="ind">Joanna II. of Naples, and her favourites, i, 489;<br /> +her vacillation relative to her successors, 490;<br /> +puts Caraccioli to death, 491 <i>note</i>.</p> + +<p class="ind">John I. of Castile, accession of, ii. 15;<br /> +his merited defeat by the Portuguese, 16.</p> + +<p class="ind">John II. of Castile, wise government by the guardians of, during his infancy, ii. 15, 16;<br /> +he disgraces and destroys his favourite Alvaro de Luna, 16, 17;<br /> +his death, 17;<br /> +its results, 58.</p> + +<p class="ind">John (king of England), cited before Philip Augustus, i. 26;<br /> +results of his contumacy, 27;<br /> +singular fines levied by him, ii. 320;<br /> +his rapacity, 326 and <i>note</i> <sup>q</sup>;<br /> +Magna Charta, 326, 329;<br /> +curious instance of the unpopularity of his name, iii. <a href="#Page_65">65</a> <i><a href="#Footnote_150_150">note</a></i> <sup>t</sup>.</p> + +<p class="ind">John I. of France, birth and death of, i. 46 and <i>note</i> <sup>e</sup>.</p> + +<p class="ind">John II. of France, character of, i. 53;<br /> +taken prisoner at Poitiers, 58;<br /> +bestows his daughter on Charles of Navarre, 57;<br /> +submits to the peace of Bretigni, 59;<br /> +his response to the citizens of Rochelle, 63.</p> + +<p class="ind">John of Procida, designs of, on Sicily, i. 483; +<span class="pagenum"><a name="Page_502" id="Page_502">[Pg 502]</a></span><br /> +result of his intrigues, 484.</p> + +<p class="ind">John VIII. (pope), insolence of, towards Charles the Fat, ii. 174;<br /> +asserts a right to nominate the emperor, <i>ib.</i></p> + +<p class="ind">John XXII. (pope), claims supremacy over the empire, ii. 235;<br /> +his dispute with Louis of Bavaria, <i>ib.</i>;<br /> +he persecutes the Franciscans, 237;<br /> +his immense treasures, 238;<br /> +his imposts on the clergy, 238 <i>note</i> <sup>x</sup>.</p> + +<p class="ind">John XXIII. (pope), convokes and is deposed by the council of Constance, ii. 243.</p> + +<p class="ind">Joinville (the chronicler), refuses to accompany St. Louis in his last crusade, i. 42 <i>note</i>.</p> + +<p class="ind">Judith of Bavaria, marries Louis the Debonair, i. 16.</p> + +<p class="ind">Julian's betrayal of Spain to the Moors: credibility of the legend, ii. 62-65.</p> + +<p class="ind">Jury. See <a href="#TRIJUR">Trial by Jury</a>.</p> + +<p class="ind"><a name="JUST" id="JUST"></a>Justice, administration of, under Charlemagne, i. 238;<br /> +various kinds of feudal jurisdiction, 239;<br /> +judicial privileges assigned to the owners of fiefs, 240;<br /> +cruel custom in Aragon, 241 <i>note</i> <sup>q</sup>;<br /> +trial by combat, 242, 243 and <i>notes</i>;<br /> +the Establishments of St. Louis, 244;<br /> +limitations on trial by combat, 245, 246, 247 <i>note</i> <sup>p</sup>;<br /> +royal tribunals and their jurisdiction, 246;<br /> +the court of peers, 247;<br /> +the parliament of Paris and its lawyers, 248;<br /> +jurisdiction of the court of the palace, 336, 337;<br /> +its constitution, 337;<br /> +imperial chamber of the empire, ii. 97;<br /> +its functions and jurisdiction, 98;<br /> +the six circles and the Aulic council, 99;<br /> +character of the king's court, in England, 336, 420-425;<br /> +importance of the office of chief justiciary, 336 <i>note</i> <sup>r</sup>;<br /> +functions of the court of exchequer, 336 and <i>note</i> <sup>s</sup>, 425;<br /> +institution of justices of assize, 337;<br /> +establishment of the court of common pleas, 338;<br /> +origin of the common law, 339;<br /> +difference between the Anglo-Saxon and Anglo-Norman systems of jurisprudence, 339, 340;<br /> +complicated character of English laws, 341;<br /> +necessity for a reformation of the statute-book, 342 and <i>note</i>;<br /> +jurisdiction of the king's council, iii. <a href="#Page_138">138-147</a>, <a href="#Page_249">249-257</a>;<br /> +safeguard for the independence of judges, <a href="#Page_152">152</a> <i><a href="#Footnote_370_370">note</a></i> <sup>t</sup>;<br /> +rarity of instances of illegal condemnation, <a href="#Page_156">156-158</a>;<br /> +origin and jurisdiction of the court of chancery, <a href="#Page_241">241-249</a>.<br /> +<br /> +</p> + +<p class="ind">King's council (England), Jurisdiction of the, iii. <a href="#Page_138">138</a>;<br /> +its composition, <i>ib.</i>;<br /> +its encroachments, <a href="#Page_140">140</a>;<br /> +limitations on its power, <a href="#Page_141">141</a>;<br /> +remonstrances of the commons, <i>ib.</i>;<br /> +its legislative status, <a href="#Page_143">143</a>;<br /> +its frequent junction with the lords' house, <a href="#Page_144">144-146</a> and <i><a href="#Footnote_357_357">notes</a></i>;<br /> +views of Sir F. Palgrave on the subject, <a href="#Page_249">249-257</a>.</p> + +<p class="ind">Knighthood. See <a href="#CHIV">Chivalry</a>.</p> + +<p class="ind"><a name="K_TEMP" id="K_TEMP"></a>Knights Templars, institution of the order of, i. 40;<br /> +their large possessions and rapacity, <i>ib.</i> and <i>note</i> <sup>s</sup>;<br /> +question of their guilt or innocence, 138, 139;<br /> +Count Purgstall's charges against them, 139-142;<br /> +Raynouard's attempted refutation, 142;<br /> +their estates and remarkable influence in Spain, ii. 8.</p> + +<p class="ind">Koran, characteristics of the, ii. 114-117.<br /> +<br /> +</p> + +<p class="ind"><a name="LAB" id="LAB"></a>Labourers, amount of wages paid to, iii. <a href="#Page_372">372</a>, <a href="#Page_373">373</a>;<br /> +degree of comfort thereby indicated, <a href="#Page_373">373</a>, <a href="#Page_374">374</a> and <i><a href="#Footnote_729_729">notes</a></i>.</p> + +<p class="ind">Ladislaus of Naples, accession of, i. 488;<br /> +energy displayed by him, 489;<br /> +his death, <i>ib.</i></p> + +<p class="ind"><a name="LADH" id="LADH"></a>Ladislaus of Hungary, defeat of the partisans of, ii. 105;<br /> +his accession to the throne, <i>ib.</i>;<br /> +his death, <i>ib.</i>;<br /> +suspicions relative thereto, 106 <i>note</i>.</p> + +<p class="ind">Lambertazzi (Imilda de), pathetic story of, i. 402.</p> + +<p class="ind">Lancaster (duke of), ascendency of, over Edw. III. iii. <a href="#Page_55">55</a>;<br /> +his ambitious projects, <i>ib.</i>;<br /> +cause of his retirement from court, <a href="#Page_58">58</a>;<br /> +he curries favour with the commons, <a href="#Page_65">65</a> and <i>note</i> <sup>t</sup>;<br /> +his quarrel with Arundel and Gloucester, <a href="#Page_74">74</a>;<br /> +his marriage with Katherine Swineford, <i>ib.</i>;<br /> +his antenuptial children by her, <a href="#Page_75">75</a>;<br /> +conduct of Richard II. on his death, <a href="#Page_80">80</a>.</p> + +<p class="ind">Lancastrians and Yorkists, wars of the, iii. <a href="#Page_197">197</a>.</p> + +<p class="ind">Lando (Michel di), cause of the elevation of, i. 435;<br /> +his just exercise of power, 436;<br /> +sent into exile, 438.</p> + +<p class="ind">Landwehr, antiquity of the, i. 263 <i>note</i> <sup>e</sup>.</p> + +<p class="ind">Lanfranc (archbishop), arrogant conduct of, ii. 305 <i>note</i> <sup>h</sup>.</p> + +<p class="ind">Languages, difficulty of accounting for the change of, i. 284, 285;<br /> +principles deducible from difference of language, 290, 291.</p> + +<p class="ind">Languedoc, spread of the Albigensian heresy in, i. 28 and <i>note</i>;<br /> +devastation of the country by the papal forces, 28, 29 and <i>notes</i>;<br /> +its cession to the crown of France, 29;<br /> +its provincial assembly, 234.</p> + +<p class="ind">Latimer (lord), impeached by the commons, iii. <a href="#Page_56">56</a>;<br /> +their further tactics regarding him, <a href="#Page_59">59</a>.</p> + +<p class="ind">Latin tongue, corruption of the, iii. <a href="#Page_275">275</a>.<br /> +See <a href="#LEARN">Learning</a>.</p> + +<p class="ind">Laura (Petrarch's mistress). See <a href="#PETR">Petrarch</a>.</p> + +<p class="ind"><a name="LAW" id="LAW"></a>Laws, characteristics of, at certain periods i. 297;<br /> +study of the civil law, iii. <a href="#Page_414">414</a>;<br /> +fame of the Bolognese school, <a href="#Page_415">415</a>;<br /> +necessity for legal knowledge in mediæval magistrates, <a href="#Page_416">416</a>;<br /> +unpopularity of the Roman law in England, <a href="#Page_417">417</a>;<br /> +neglect of the elder civilians, <a href="#Page_418">418</a>, <a href="#Page_419">419</a> and <i><a href="#Footnote_810_810">note</a></i> <sup>x</sup>. +<span class="pagenum"><a name="Page_503" id="Page_503">[Pg 503]</a></span><br /> +See <a href="#JUST">Justice</a>.</p> + +<p class="ind"><a name="LEARN" id="LEARN"></a>Learning, causes of the decline of, iii. <a href="#Page_270">270</a>;<br /> +neglect of pagan literature by the early Christians, <a href="#Page_273">273</a>;<br /> +blighting influence of superstition and asceticism, <a href="#Page_274">274</a>;<br /> +corruption of the Latin tongue, <a href="#Page_275">275</a>;<br /> +rules observed in its pronunciation, <a href="#Page_276">276-278</a>;<br /> +errors of the populace, <a href="#Page_278">278</a>;<br /> +changes wrought by the Italians and French, <a href="#Page_279">279</a>, <a href="#Page_280">280</a>;<br /> +neglect of quantity, <a href="#Page_281">281</a>;<br /> +specimens of verses by St. Augustin and others, <a href="#Page_282">282-284</a> <i><a href="#Footnote_491_491">notes</a></i>;<br /> +change of Latin into Romance, <a href="#Page_283">283</a>;<br /> +Italian corruptions of the Latin, <a href="#Page_285">285</a>;<br /> +effect of the disuse of Latin, <a href="#Page_286">286</a>;<br /> +ignorance of various sovereigns, <i>ib. <a href="#Footnote_503_503">notes</a></i>;<br /> +extent of Charlemagne's and Alfred's learning, <a href="#Page_286">286</a> and <i><a href="#Footnote_506_506">note</a></i> <sup>f</sup>;<br /> +ignorance of the clergy, <a href="#Page_287">287</a>, <a href="#Page_288">288</a>, and <i><a href="#Footnote_510_510">notes</a></i>;<br /> +scarcity of books, <a href="#Page_289">289</a> and <i><a href="#Footnote_514_514">note</a></i> <sup>p</sup>;<br /> +erasure of manuscripts, <a href="#Page_289">289</a>;<br /> +lack of eminent learned men, <i>ib.</i>;<br /> +John Scotus and Silvester II., <a href="#Page_290">290</a> and <i><a href="#Footnote_516_516">note</a></i> <sup>r</sup>;<br /> +preservative effects of religion on the Latin tongue, <a href="#Page_291">291-293</a>;<br /> +non-existence of libraries, <a href="#Page_292">292</a> <i><a href="#Footnote_517_517">note</a></i>;<br /> +prevalence of superstitions, <a href="#Page_293">293-295</a>;<br /> +revival of literature, <a href="#Page_413">413</a>;<br /> +study of civil law, <a href="#Page_414">414-419</a>;<br /> +establishment of public schools, <a href="#Page_419">419</a>;<br /> +Abelard and the university of Paris, <a href="#Page_420">420</a>, <a href="#Page_421">421</a>;<br /> +Oxford university and its founders, <a href="#Page_422">422</a>, <a href="#Page_423">423</a>, and <i><a href="#Footnote_824_824">notes</a></i>;<br /> +rapid increase of universities, <a href="#Page_423">423-425</a>;<br /> +causes of their celebrity, <a href="#Page_425">425</a>;<br /> +spread of the scholastic philosophy, <a href="#Page_426">426</a>;<br /> +its eminent disputants, <a href="#Page_427">427</a>;<br /> +influence of Aristotle and of the church, <a href="#Page_429">429</a>, <a href="#Page_430">430</a>;<br /> +unprofitableness of the scholastic discussions, <a href="#Page_430">430</a>, <a href="#Page_431">431</a>;<br /> +labours of Roger Bacon and Albertus Magnus, <a href="#Page_432">432</a> and <i><a href="#Footnote_851_851">note</a></i> <sup>s</sup>, <a href="#Page_433">433</a>;<br /> +cultivation of the new languages, <a href="#Page_433">433</a>;<br /> +the troubadours and their productions, <a href="#Page_434">434-436</a>;<br /> +origin of the French language, <a href="#Page_436">436</a>;<br /> +early French compositions, <a href="#Page_437">437</a>, <a href="#Page_438">438</a>;<br /> +Norman tales and romances, <a href="#Page_439">439</a>;<br /> +the Roman de la Rose, <a href="#Page_440">440</a>;<br /> +French prose writings, <a href="#Page_441">441</a>, <a href="#Page_442">442</a> and <i><a href="#Footnote_869_869">notes</a></i>;<br /> +formation of the Spanish language: the Cid, <a href="#Page_442">442</a>, <a href="#Page_443">443</a>, and <i><a href="#Footnote_874_874">notes</a></i>;<br /> +rapid growth of the Italian language, <a href="#Page_443">443</a>, <a href="#Page_444">444</a>;<br /> +excuses of Italians for writing in French, <a href="#Page_445">445</a> <i><a href="#Footnote_878_878">note</a></i> <sup>z</sup>;<br /> +Dante and his Divine Comedy, <a href="#Page_445">445-449</a>;<br /> +Petrarch and his writings, <a href="#Page_449">449-452</a>;<br /> +dawn of the English tongue, <a href="#Page_452">452</a>;<br /> +Layamon's Brut, <a href="#Page_453">453</a> and <i><a href="#Footnote_888_888">note</a></i> <sup>k</sup>;<br /> +Robert of Gloucester and other metrical writers, <a href="#Page_453">453</a>;<br /> +merit of Piers Plowman's Vision, <a href="#Page_454">454</a>;<br /> +cause of the slow progress of the English language, <i>ib.</i>;<br /> +earliest compositions in English, <a href="#Page_455">455</a>;<br /> +pre-eminence of Chaucer, <a href="#Page_456">456</a>;<br /> +revival of classical learning, <a href="#Page_457">457</a>;<br /> +eminent cultivators thereof, <a href="#Page_458">458</a>;<br /> +invention of paper, <a href="#Page_459">459</a>;<br /> +transcribers and booksellers, <i>ib. <a href="#Footnote_898_898">note</a></i> <sup>x</sup>;<br /> +rarity and dearness of books, <a href="#Page_460">460</a>;<br /> +recovery of classical manuscripts, <a href="#Page_461">461</a>;<br /> +eminent labourers in this field, <a href="#Page_462">462</a>, <a href="#Page_463">463</a>;<br /> +revival of the study of Greek, <a href="#Page_465">465</a>, <a href="#Page_466">466</a>;<br /> +state of learning in Greece, <a href="#Page_466">466</a>;<br /> +services rendered by the mediæval Greeks, <a href="#Page_467">467-469</a> and <i><a href="#Footnote_921_921">notes</a></i>;<br /> +opposition to the study of Greek at Oxford, <a href="#Page_470">470</a>;<br /> +fame due to Eton and Winchester schools, <i>ib.</i>;<br /> +invention of printing, <a href="#Page_471">471</a>;<br /> +first books issued from the press, <i>ib.</i>;<br /> +first printing presses in Italy, <a href="#Page_472">472</a>;<br /> +elucidatory note on the state of learning in the dark ages, <a href="#Page_474">474-476</a>;<br /> +Dr. Maitland's views thereon, <a href="#Page_476">476-479</a>;<br /> +earliest use of the English language in public documents, <a href="#Page_484">484-486</a>.</p> + +<p class="ind"><a name="LEGIS" id="LEGIS"></a>Legislation under the early French kings, i. 212;<br /> +the "Champ de Mars" or Field of March, 213, 214;<br /> +participation of the people in legislative proceedings, 214, 333-336;<br /> +Charlemagne's legislative assemblies, 215;<br /> +cessation of national assemblies, 218;<br /> +assemblies of the barons, 219;<br /> +the cours plénières, 220;<br /> +limitation of the king's power, 221;<br /> +substitutes for legislative authority, <i>ib.</i>;<br /> +ecclesiastical councils and their encroachments, 222;<br /> +general legislation, when first practised, <i>ib.</i>;<br /> +increase of the legislative power of the crown, and its causes, 223, 224;<br /> +convocation of the States-General, 224;<br /> +constitution of the Saxon witenagemot, ii. 279;<br /> +Anglo-Norman legislation, 322, 323 and <i>note</i>;<br /> +prerogatives of the crown, 410;<br /> +custom of the Anglo-Saxon kings, 412.<br /> +See <a href="#JUST">Justice</a>, <a href="#P_PARL">Parliament</a>, <a href="#S_GEN">States-General</a>.</p> + +<p class="ind">Leo the Great deposes Hilary, ii. 161 <i>note</i> <sup>p</sup>.</p> + +<p class="ind">Leo III. invests Charlemagne with the imperial insignia, i. 11;<br /> +his design of marrying Charlemagne to Irene, 122;<br /> +Charlemagne's authority over him, ii. 182.</p> + +<p class="ind">Leo VIII. confers on the emperor the right of nominating popes, ii. 182 and <i>note</i> <sup>x</sup>.</p> + +<p class="ind">Leo IX. leads his army in person, i. 363;<br /> +devotion of his conquerors towards him, 363, 364.<br /> +See <a href="#PAPO">Papal Power</a>.</p> + +<p class="ind">Leon, foundation of the kingdom of, ii. 3;<br /> +its king killed in battle, 4;<br /> +its union with Castile, 9.</p> + +<p class="ind">Leopold of Austria defeated by the Swiss, ii. 109.</p> + +<p class="ind">Libraries in the fourteenth and fifteenth centuries, iii. <a href="#Page_460">460</a>, +<a href="#Page_461">461</a>, and <i><a href="#Footnote_901_901">notes</a></i>.</p> + +<p class="ind">Literature. See <a href="#LEARN">Learning</a>.</p> + +<p class="ind">Lollards, rise of the, iii. <a href="#Page_388">388</a>;<br /> +their resemblance to the Puritans, <a href="#Page_389">389</a>.</p> + +<p class="ind"><a name="LOMB" id="LOMB"></a>Lombards, original settlement of the, i. 8 and <i>note</i> <sup>t</sup>;<br /> +extension of their dominions, <i>ib.</i>;<br /> +defeated by Pepin and Charlemagne, 9;<br /> +their mode of legislating, 212;<br /> +position of their Roman subjects, 295; +<span class="pagenum"><a name="Page_504" id="Page_504">[Pg 504]</a></span><br /> +progress of their cities, 365;<br /> +frequency of wars between them, <i>ib.</i>;<br /> +acquisition of territories by them, 368;<br /> +democratic tyranny of the larger cities, 369;<br /> +destruction of Lodi by the Milanese, <i>ib.</i> and <i>note</i> <sup>i</sup>;<br /> +courage of the citizens of Como, 370;<br /> +exclusion of royal palaces from Lombard cities, <i>ib.</i>;<br /> +siege and subjugation of Milan by Frederic Barbarossa, 371, 372;<br /> +efforts of the Milanese to regain their freedom, 372;<br /> +destruction of Milan, 373;<br /> +league of the Lombard cities, 374;<br /> +defeat and flight of Barbarossa, 375;<br /> +peace of Constance, 376;<br /> +their successful resistance a lesson to tyrants, 376, 377;<br /> +their wars with Frederic II., 387;<br /> +party nature of these struggles, 388;<br /> +arrangement of the Lombard cities, 388, 389;<br /> +chequered results of their conflicts with Frederic, 390;<br /> +their papal supporters, <i>ib.</i>;<br /> +causes of their success, 392;<br /> +their means of defence, 394, 395;<br /> +internal government of their cities, 395;<br /> +revival of the office of podestà, 396;<br /> +position of aristocratic offenders amongst them, 397;<br /> +duties and disabilities of the podestà, 397, 398;<br /> +their internal dissensions, 398, 399;<br /> +artisan clubs and aristocratic fortifications, 400;<br /> +vindictiveness of conquerors of all classes, 401;<br /> +inflammatory nature of private quarrels, and their disastrous results, 402;<br /> +effect of Giovanni di Vicenza's exhortations, 403, 404;<br /> +moral deducible from the fall of the Lombard republics, 408, 409;<br /> +the Visconti in Lombardy, 464.<br /> +See <a href="#VISC">Visconti</a>.</p> + +<p class="ind">Longchamp (William, bishop of Ely), constitutional precedent established by the banishment of, ii. 325.</p> + +<p class="ind">London, early election of the magistrates of, iii. <a href="#Page_219">219</a>;<br /> +its municipal divisions, <a href="#Page_220">220</a>;<br /> +its first lord mayor, <a href="#Page_221">221</a>;<br /> +not exclusively a city of traders, <a href="#Page_223">223</a>;<br /> +its extent and population, <i>ib.</i>;<br /> +comparison with Paris, <a href="#Page_224">224</a>.</p> + +<p class="ind">Loria (Roger di), naval successes of, i. 484.</p> + +<p class="ind">Lothaire (son of Louis the Debonair), associated in power with his father, i. 15;<br /> +his jealousy of his half-brother, 16;<br /> +territories allotted to him, 16, 17, and <i>notes</i> <sup>o, p</sup>;<br /> +cause of his excommunication, ii. 169, 170.</p> + +<p class="ind">Lothaire (duke of Saxony), elected emperor of Germany, ii. 71 and <i>note</i> <sup>p</sup>;<br /> +failure of his scheme of succession, 72;<br /> +the picture and couplet relative to his coronation, 195 <i>note</i> <sup>g</sup>.</p> + +<p class="ind">Louis of Bavaria, emperor of Germany, ii. 85;<br /> +his contest with the popes, 234;<br /> +he aids the Visconti, 235;<br /> +he dies unabsolved, 236.</p> + +<p class="ind">Louis I. (the Debonair) succeeds Charlemagne, i. 14;<br /> +his cruelty to his nephew, <i>ib.</i>;<br /> +his character, 15;<br /> +associates his sons in power with him, <i>ib.</i>;<br /> +his second marriage and its consequences, 16;<br /> +enmity of the clergy against him, <i>ib.</i>;<br /> +his practice relative to the hearing of causes, 239, <i>note</i> <sup>h</sup>;<br /> +his attempted deposition by the bishops, ii. 155, 156;<br /> +he prohibits trial by ordeal, iii. <a href="#Page_295">295</a> <i><a href="#Footnote_520_520">note</a></i> <sup>x</sup>.</p> + +<p class="ind">Louis of Germany (son of the above) made king of Bavaria by his father, i. 15;<br /> +share of empire allotted to him on his father's death, 16.</p> + +<p class="ind">Louis II. (the Stammerer), conditions exacted by the French nobles from, i. 126.</p> + +<p class="ind">Louis IV. ("Outremer") elected king, i. 128;<br /> +Fulk's saucy retort, iii. <a href="#Page_286">286</a> <i><a href="#Footnote_505_505">note</a></i> <sup>e</sup>.</p> + +<p class="ind">Louis V., i. 18, 128.</p> + +<p class="ind">Louis VI., state of France at the accession of, i. 24;<br /> +his contests with the Norman princes, 25;<br /> +his participation in judicial matters, 244 <i>note</i> <sup>c</sup>.</p> + +<p class="ind">Louis VII., untoward marriage of, and its consequences, i. 25;<br /> +confirms the rights of the clergy, 27;<br /> +joins in the second crusade, 38;<br /> +his submissiveness to Rome, ii. 223.</p> + +<p class="ind">Louis VIII. opposes Raymond of Toulouse, i. 29;<br /> +issues an ordinance against the Jews, 222.</p> + +<p class="ind"><a name="L_IX" id="L_IX"></a>Louis IX. (Saint Louis), accession of, i. 30;<br /> +revolt of the barons against him, <i>ib.</i>;<br /> +excellences of his character, his rare probity, &c., 31, 32;<br /> +undue influence exercised over him by his mother, 32;<br /> +his superstition, 33 and <i>note</i>;<br /> +he embarks in the crusades, 33;<br /> +calamitous results of his first crusade, 41;<br /> +his second expedition and death, <i>ib.</i>;<br /> +his Establishments, 222, 224, 244;<br /> +his open-air administrations of justice, 244;<br /> +the Pragmatic Sanction and its provisions, ii. 214 and <i>note</i>;<br /> +his submissiveness to the church, 226;<br /> +his restraint on the church holding land, 227 and <i>note</i>.</p> + +<p class="ind">Louis X. (Louis Hutin), accession and death of, i. 45;<br /> +treatment of his queen and family by Philip the Long, 46;<br /> +his edict for the abolition of serfdom, 202;<br /> +he renounces certain taxes, 227.</p> + +<p class="ind">Louis XI., accession of, i. 86;<br /> +his character and policy, 86, 87;<br /> +bestows Normandy on his brother as an appanage, 88;<br /> +and then deprives him of it, 89;<br /> +grants pensions to the English king and his nobles, 89, 90;<br /> +his contests with Charles of Burgundy, 90, 91, and <i>notes</i>;<br /> +and with Mary of Burgundy, 94, 95, and <i>notes</i>;<br /> +his last sickness and its terrors, 96;<br /> +his belief in relics, 97 and <i>note</i>;<br /> +court boast relative to his encroachments, 235;<br /> +civic liberty encouraged by him, 352;<br /> +he repeals the Pragmatic Sanction, ii. 255;<br /> +his people oppose the repeal, <i>ib.</i>; +<span class="pagenum"><a name="Page_505" id="Page_505">[Pg 505]</a></span><br /> +his treatment of cardinal Balue, 258, <i>note</i> <sup>c</sup>.</p> + +<p class="ind">Louis XII. See <a href="#ORL">Orleans</a>.</p> + +<p class="ind"><a name="LOHUN" id="LOHUN"></a>Louis of Hungary invades Naples, i. 486.</p> + +<p class="ind">Louis of Anjou adopted by Joanna of Naples, i. 487;<br /> +his death, 488.</p> + +<p class="ind">Louis II. of Anjou and Naples, accession of, i. 488;<br /> +subdued by Ladislaus, <i>ib.</i></p> + +<p class="ind">Louis III. of Anjou and Naples called in by Joanna II., i. 489;<br /> +his doubtful prospects, and death, 491.</p> + +<p class="ind">Lucius II. (pope), cause of the death of, i. 416.</p> + +<p class="ind"><a name="LUNA" id="LUNA"></a>Luna (Alvaro de), influence exercised by, ii. 16;<br /> +disgraced and beheaded, 17;<br /> +law on which his opponents relied, 38.</p> + +<p class="ind">Luna (Antonio de) assassinates the archbishop of Saragossa, ii. 41.</p> + +<p class="ind">Luna (Frederic count of) claims the throne of Aragon, ii. 41;<br /> +care taken of his interests by the court, <i>ib.</i></p> + +<p class="ind">Luna (Peter de). See <a href="#BEN_XIII">Benedict XIII</a>.</p> + +<p class="ind">Lupus Servatus, literary performances of, iii. <a href="#Page_475">475</a> <i><a href="#Footnote_935_935">note</a></i> <sup>a</sup>.</p> + +<p class="ind">Luxemburg (John of), execution of prisoners of war by, i. 84;<br /> +betrays Joan of Arc to the English, <i>ib. note</i> <sup>f</sup>.<br /> +<br /> +</p> + +<p class="ind">Magna Charta. See <a href="#ENG">England</a>.</p> + +<p class="ind">Mahomet the prophet. See <a href="#MOH">Mohammed</a>.</p> + +<p class="ind">Mahomet II. attacks the Venetians, i. 493;<br /> +his success, 495;<br /> +failure of his assault upon Belgrade, ii. 106;<br /> +he captures Constantinople, 136;<br /> +unrealised schemes for his expulsion, 136, 137;<br /> +his European successes and reverses, 138;<br /> +Æneas Sylvius's odd proposal, <i>ib. note</i>.</p> + +<p class="ind">Mandats and their abuses, ii. 212.</p> + +<p class="ind">Manfred, brave retention of the imperial throne by, i. 392;<br /> +killed, 406.</p> + +<p class="ind">Manicheans. See <a href="#RS">Religious Sects.</a></p> + +<p class="ind">Manners. See <a href="#CHIV">Chivalry</a>, <a href="#DOM_LIFE">Domestic Life</a>, +<a href="#LEARN">Learning</a>, <a href="#SUPER">Superstition</a>.</p> + +<p class="ind">Manufactures. See <a href="#TRD">Trade</a>.</p> + +<p class="ind">Manuscripts. See <a href="#LEARN">Learning</a>.</p> + +<p class="ind">Marcel (magistrate of Paris), why assassinated, i. 232.</p> + +<p class="ind">March (Roger, earl of) opposes the duke of Lancaster, iii. <a href="#Page_56">56</a>;<br /> +his significant policy, <a href="#Page_57">57</a>;<br /> +his popularity with the parliament, <a href="#Page_65">65</a>;<br /> +his exclusion from the throne, <a href="#Page_82">82</a>, <a href="#Page_194">194</a>;<br /> +clemency of Henry V. towards him, <a href="#Page_194">194</a>.</p> + +<p class="ind">Margaret of Anjou married to Henry VI., iii. <a href="#Page_98">98</a>;<br /> +consequences of her impolicy, <a href="#Page_194">194</a>, <a href="#Page_197">197</a>.<br /> +See <a href="#H_VI">Henry VI</a>.</p> + +<p class="ind">Mariner's compass, tradition of the invention of the, iii. <a href="#Page_332">332</a>, <a href="#Page_333">333</a>.</p> + +<p class="ind">Maritime laws of early times, iii. <a href="#Page_333">333</a>;<br /> +prevalence of piracy, <a href="#Page_334">334</a>;<br /> +law of reprisals, <a href="#Page_335">335.</a></p> + +<p class="ind">Marriages, capricious decrees of the popes concerning, ii. 208;<br /> +dispensations and their abuses, <i>ib.</i></p> + +<p class="ind">Martin (prince of Aragon) marries the queen of Sicily, i. 490;<br /> +his death, <i>ib.</i></p> + +<p class="ind">Martin (king of Aragon) succeeds to his son's Sicilian dominions, i. 490;<br /> +contests for the Aragonese throne at his death, ii. 39.</p> + +<p class="ind">Martin V. elected pope, ii. 246;<br /> +he convokes the council of Pavia, 247;<br /> +his anger at the English statute of præmunire, 251, <i>note</i> <sup>y</sup>;<br /> +his concordat with England, 251;<br /> +powers reserved to him by the German concordats, 252, 253;<br /> +rejection of his concordat by France, 254.</p> + +<p class="ind">Mary of Burgundy. See <a href="#M_BURG">Burgundy</a>.</p> + +<p class="ind">Matilda (countess) bequeaths her dominions to Rome, i. 380.</p> + +<p class="ind">Matthias Corvinus. See <a href="#CORV">Corvinus</a>.</p> + +<p class="ind">Maximilian of Austria marries Mary of Burgundy, i. 96;<br /> +becomes king of the Romans, ii. 89 and <i>notes</i>;<br /> +ascends the German throne, 94;<br /> +he extinguishes the robber-nobles, 96;<br /> +institutes the Aulic council, 99;<br /> +extent of the empire at his accession, 100.</p> + +<p class="ind">Mayor of the palace, importance of the office of, i. 6, 113-115, 157.<br /> +See <a href="#C_MART">Charles Martel</a>, <a href="#PEP_HER">Pepin Heristal</a>, +<a href="#EBRO">Ebroin</a>.</p> + +<p class="ind"><a name="MEDI" id="MEDI"></a>Medici (Salvestro de') proposes to mitigate the severity of the law in Florence, i. 434;<br /> +rise of his family, 498;<br /> +character of Giovanni, <i>ib.</i> and <i>note</i>;<br /> +banishment and recall of Cosmo, 499;<br /> +his death: his son Piero, 500;<br /> +death of Julian: popularity and princely career of Lorenzo, 501;<br /> +his bankruptcy repaired at the cost of the state, 502 and <i>note</i> <sup>q</sup>;<br /> +his title to esteem, 503.</p> + +<p class="ind">Mendicant friars, first appearance of the, ii. 205;<br /> +success of their preachings, 206;<br /> +their extensive privileges, 206, 207, and <i>notes</i>.</p> + +<p class="ind">Mercenary troops. See <a href="#MS">Military Systems</a>.</p> + +<p class="ind">Merovingian dynasty, character of the times during which it ruled, i. 5;<br /> +chronological sketch of its career, 118-120.</p> + +<p class="ind">Middle ages, period comprised under the term, iii. <a href="#Page_269">269</a>.</p> + +<p class="ind"><a name="MIL" id="MIL"></a>Milan, resolute conduct of the people of in the choice of a bishop, i. 366 and <i>note</i> <sup>y</sup>;<br /> +its siege by Frederic I., 372;<br /> +destruction of the city, 373;<br /> +its statistics in the 13th century, 393;<br /> +its public works, 394;<br /> +creation of the duchy of Milan, 412;<br /> +lax conduct of the Milanese clergy, ii. 187, <i>note</i> <sup>g</sup>.<br /> +See <a href="#LOMB">Lombards</a>.</p> + +<p class="ind"><a name="MS" id="MS"></a>Military systems of the middle ages.<br /> +character of the English troops at Crecy, Poitiers, and Azincourt, i. 55, 77;<br /> +disadvantages of feudal obligations in long campaigns, 262;<br /> +<span class="pagenum"><a name="Page_506" id="Page_506">[Pg 506]</a></span> +substitution of mercenaries, 264;<br /> +Canute's soldiers, and his institutes respecting them, 264 and <i>note</i> <sup>g</sup>;<br /> +the mercenaries of the Anglo-Norman kings, 265;<br /> +advantages of mercenary troops, <i>ib.</i>;<br /> +high rate of pay to English soldiers, 77 and <i>note</i> <sup>t</sup>, 266;<br /> +establishment of a regular force by Charles VII., 267;<br /> +military resources of the Italian cities, 467;<br /> +importance of their carroccio, 467 and <i>note</i> <sup>d</sup>;<br /> +their foreign auxiliaries, 468;<br /> +arms and armour, 469 and <i>note</i> <sup>k</sup>;<br /> +citizens excused from service, 469;<br /> +companies of adventurers: Guarnieri's systematic levies, 471;<br /> +spirited refusal of tribute by Florence, 472;<br /> +Sir John Hawkwood's career [see <a href="#HAWK">Hawkwood</a>];<br /> +eminent Italian generals and their services, 474, 475;<br /> +probable first instance of half-pay, 475 and <i>note</i> <sup>u</sup>;<br /> +small loss of life in mediæval warfare, 476, 477, and <i>notes</i>;<br /> +long bows and cross bows, 477, 478;<br /> +advantages and disadvantages of armour, 478;<br /> +introduction of gunpowder, 479;<br /> +clumsiness of early artillery and fire-arms, 480;<br /> +increased efficiency of infantry, 481.</p> + +<p class="ind">Mocenigo (doge), dying prophecy of, i. 465, 466, and <i>note</i>.</p> + +<p class="ind"><a name="MOG" id="MOG"></a>Moguls, ravages of the, ii. 131;<br /> +their exploits under Timur, 133.</p> + +<p class="ind"><a name="MOH" id="MOH"></a>Mohammed, advent of, ii. 114;<br /> +state of Arabia at the time, 115;<br /> +dearth of materials for his history, <i>ib. note</i>;<br /> +characteristics of his writings, 115, 116;<br /> +his knowledge of Christianity whence derived, 116, <i>note</i> <sup>c</sup>;<br /> +martial spirit of his system, 117, 118;<br /> +career of his followers.<br /> +See <a href="#ABBAS">Abbassides</a>, <a href="#MOOR">Moors</a>, <a href="#OTTO">Ottomans</a>, +<a href="#SARAC">Saracens</a>, <a href="#TURK">Turks</a>.</p> + +<p class="ind">Monarchy in France, character of the, i. 217 <i>note</i>;<br /> +means by which it became absolute, 223;<br /> +its power of enacting laws unlimited, 229 <i>note</i> <sup>h</sup>.</p> + +<p class="ind"><a name="MONAS" id="MONAS"></a>Monasteries, cultivation of waste lands by, ii. 142;<br /> +less pure sources of income, 144;<br /> +their exemption from episcopal control, 168 and <i>note</i> <sup>f</sup>;<br /> +preservation of books by them, iii. <a href="#Page_292">292</a>;<br /> +extent of their charities, <a href="#Page_302">302</a> and <i><a href="#Footnote_536_536">note</a></i>;<br /> +vices of their inmates, <a href="#Page_303">303</a>;<br /> +their anti-social influence, <a href="#Page_304">304</a>;<br /> +their agricultural exertions, <a href="#Page_360">360</a> and <i><a href="#Footnote_692_692">note</a></i>.</p> + +<p class="ind">Money, high interest paid for, iii. <a href="#Page_337">337</a>;<br /> +establishment of paper credit, <a href="#Page_339">339</a> and <i><a href="#Footnote_638_638">note</a></i> <sup>b</sup>;<br /> +banks of Italy, <a href="#Page_340">340</a>;<br /> +securities for public loans, <a href="#Page_341">341</a>;<br /> +changes in the value of money, <a href="#Page_366">366-369</a>;<br /> +comparative table of value, <a href="#Page_370">370</a> <i><a href="#Footnote_722_722">note</a></i> <sup>x</sup>;<br /> +See <a href="#COIN">Coining</a>.</p> + +<p class="ind">Montagu (minister of Charles VI.), arrest of, i. 68 <i>note</i> <sup>z</sup>.</p> + +<p class="ind">Montfort (Simon de), heads the crusade against the Albigeois, i. 29.</p> + +<p class="ind">Montfort (Simon de, earl of Leicester), his writs of summons to the towns of England, iii. <a href="#Page_27">27</a>.</p> + +<p class="ind">Montfort (ally of Edward III.) obtains the duchy of Britany, i. 99.</p> + +<p class="ind"><a name="MOOR" id="MOOR"></a>Moors, successes of the Spaniards against the, ii. 3;<br /> +victories of Alfonso VI., 5;<br /> +Cordova taken from them, 9;<br /> +its fabulous extent and wealth, <i>ib.</i> <i>note</i> <sup>m</sup>;<br /> +cause of their non-expulsion from Spain, 10, 11.</p> + +<p class="ind">Mosheim, error of, relative to Louis IX., i. 33 <i>note</i> <sup>z</sup>.</p> + +<p class="ind"><a name="MOW" id="MOW"></a>Mowbray (earl of Nottingham and duke of Norfolk), made lord appellant, iii. <a href="#Page_72">72</a>;<br /> +he espouses the king's interest, <a href="#Page_74">74</a>;<br /> +his quarrel with Bolingbroke and its results, <a href="#Page_79">79</a>, <a href="#Page_80">80</a> and <i><a href="#Footnote_176_176">note</a></i> <sup>z</sup>.</p> + +<p class="ind"><a name="MINS" id="MINS"></a>Municipal institutions of the Roman provincial cities, i. 338;<br /> +importance of the office of defensor civitatis, 340;<br /> +duties appertaining to it, 340;<br /> +responsibilities of the decurions, 341;<br /> +the senatorial orders, 342-344;<br /> +civic position of the Frank bishops, 345;<br /> +municipal government of the Frank cities, 345-347;<br /> +corporate towns of Spain, 347;<br /> +of France, 348;<br /> +their struggles for freedom, 348, 349;<br /> +early independence of the Flemish and Dutch cities, 349;<br /> +origin of the French communes, 350, 351;<br /> +growth of the burgages, 352;<br /> +policy of Louis XI. relative to civic liberty, <i>ib.</i>;<br /> +Italian municipalities, 353, 354 [see <a href="#LOMB">Lombards</a>];<br /> +free cities of Germany [see <a href="#GERM">Germany</a>].<br /> +See <a href="#PARL">Parliament</a>, <a href="#TOWN">Towns</a>.</p> + +<p class="ind"><a name="MURD" id="MURD"></a>Murder, gradation of fines levied as punishment for, amongst the Franks, i. 150, 151 and <i>notes</i>, 198 and <i>note</i> <sup>q</sup>, 281;<br /> +rates of compensation amongst the Anglo-Saxons, ii. 275.<br /> +<br /> +</p> + +<p class="ind">Naples subjugated by Roger Guiscard, i. 363, 364;<br /> +contest for its crown between Manfred and Charles of Anjou, 406;<br /> +murder of the rightful heir by Charles, 407;<br /> +schemes relative to the severance of Sicily, 483 [see <a href="#SICIL">Sicily</a>];<br /> +accession of Robert, 485;<br /> +queen Joanna and her murdered husband, 486 and <i>note</i> <sup>q</sup>;<br /> +Louis of Anjou and Charles III., 488;<br /> +reign of Louis II., <i>ib.</i>;<br /> +ambition of the young king Ladislaus, 489;<br /> +his death, <i>ib.</i>;<br /> +Joanna II., her vices and her favourites, 489, 490, and 491 <i>note</i>;<br /> +career of Alfonso, 492 [see <a href="#AL_V">Alfonso V</a>.];<br /> +invasion of the kingdom by John of Calabria, 494;<br /> +his failure, <i>ib.</i>;<br /> +Ferdinand secured on the throne, 495;<br /> +his odious rule, 503.</p> + +<p class="ind">Navarre, origin of the kingdom of, ii. 3, 4.</p> + +<p class="ind">Neustria, extent of the dominions so termed, i. 6 <i>note</i> <sup>o</sup>;<br /> +its peculiar features as distinguished from Austrasia, 118;<br /> +when first erected into a kingdom, 119 and <i>note</i>;<br /> +destruction of its independence, 120.</p> + +<p class="ind">Nevil (lord) impeached by the commons, iii. <a href="#Page_56">56</a>. +<span class="pagenum"><a name="Page_507" id="Page_507">[Pg 507]</a></span></p> + +<p class="ind">Nicolas II. (pope), innovations introduced by, ii. 183.</p> + +<p class="ind"><a name="NOB" id="NOB"></a>Nobility, origin of, in France, i. 157, 158 and <i>note</i>, 189;<br /> +privileges conferred on the class, 191;<br /> +consequences of marriage with plebeians, 192;<br /> +letters of nobility when first granted, 193;<br /> +different orders, and rights belonging to each, 194;<br /> +their gallows distinctions, <i>ib.</i> <i>note</i> <sup>c</sup>;<br /> +their right to coin money, 205, 206;<br /> +to levy private war, 207;<br /> +characteristics of the early Frank nobility 309-312;<br /> +excesses of the Florentine nobility, 423, 424;<br /> +turbulence of the Spanish nobles, ii. 13;<br /> +contests of the German nobles with the cities, 91, 92;<br /> +rural nobility, how supported, 94, 95;<br /> +their career, how checked, 95;<br /> +source of the influence of the English nobility, iii. <a href="#Page_165">165</a>;<br /> +their patronage of robbers, <a href="#Page_169">169</a>;<br /> +German robber lords, <a href="#Page_314">314</a>;<br /> +legislative province of the English nobility [see <a href="#PARL">Parliament</a>].</p> + +<p class="ind">Norfolk (earl and duke of). See <a href="#BIGO">Bigod</a>, <a href="#MOW">Mowbray</a>.</p> + +<p class="ind">Normans, piratical pursuits of the, i. 20;<br /> +their plan of warfare, 21;<br /> +sufferings of the clergy at their hands, 22;<br /> +their conversion and settlement in France, <i>ib.</i>;<br /> +terror excited by their audacity, 134, 135;<br /> +beneficial effects of their conversion, 135;<br /> +their incursions into Italy, 363 and <i>note</i> <sup>m</sup>;<br /> +successes of their leaders, 363, 364;<br /> +their invasion of England [see <a href="#ENG">England</a>].</p> + +<p class="ind">Nottingham (earl of). See <a href="#MOW">Mowbray</a>.<br /> +<br /> +</p> + +<p class="ind">Oaths, papal dispensations from, ii. 210;<br /> +notable instances thereof, <i>ib.</i> <i>note</i> <sup>c</sup>.</p> + +<p class="ind">Odo (archbishop). See <a href="#DUNS">Dunstan</a>.</p> + +<p class="ind">Oleron, laws of, iii. <a href="#Page_334">334</a>.</p> + +<p class="ind"><a name="ORD" id="ORD"></a>Ordeals, nature of, iii. <a href="#Page_294">294</a>, <a href="#Page_295">295</a>;<br /> +stories of queens Emma and Cunegunda, <a href="#Page_295">295</a> <i><a href="#Footnote_521_521">note</a></i> <sup>y</sup>;<br /> +instance of a failure of the water ordeal and its consequences, ii. 339 <i>note</i> <sup>b</sup>.</p> + +<p class="ind">Orleans (Louis, duke of), alleged amours of, with queen Isabel, i. 69 <i>note</i> <sup>c</sup>;<br /> +loses his popularity, 70;<br /> +his assassination and its probable causes, <i>ib.</i> and <i>notes</i>;<br /> +commotions which ensued, 71, 72.</p> + +<p class="ind"><a name="ORL" id="ORL"></a>Orleans (Louis, duke of, afterwards Louis XII.) claims the regency during the minority of Charles VIII., i. 98;<br /> +instigates the convocation of the States-General, 236.</p> + +<p class="ind">Ostrogoths, occupation of Italy by the, i. 1;<br /> +annihilation of their dominion, 8;<br /> +Roman jurisprudence adopted by them, 151.</p> + +<p class="ind">Othman. See <a href="#OTTO">Ottomans</a>.</p> + +<p class="ind">Otho I. (the Great), benefits conferred upon Germany by, ii. 67.</p> + +<p class="ind">Otho II. and III. chosen emperors of Germany, ii. 67.</p> + +<p class="ind">Otho IV. aided by the Milanese, i. 382;<br /> +enmity of the pope towards him, 384;<br /> +its consequences, ii. 75;<br /> +obtains a dispensation from Innocent III., 209;<br /> +rights surrendered by him to Innocent, 211, 212 and <i>note</i> <sup>f</sup>.</p> + +<p class="ind"><a name="OTTO" id="OTTO"></a>Ottoman dynasty, founded by Othman, ii. 132;<br /> +their European conquests, <i>ib.</i>;<br /> +their reverses and revival under Amurath, 134, 135;<br /> +they capture Constantinople, 136;<br /> +European alarm excited thereby, <i>ib.</i>;<br /> +institution of the Janizaries, 137;<br /> +suspension of Ottoman conquests, 138.</p> + +<p class="ind">Oxford university. See <a href="#LEARN">Learning</a>.<br /> +<br /> +</p> + +<p class="ind">Pagan superstitions, cause of the limited influence of, i. 136.</p> + +<p class="ind">Palaces (royal), why excluded from Lombard cities, i. 370.</p> + +<p class="ind">Palermo, foundation of silk manufacture in, iii. <a href="#Page_331">331</a>.</p> + +<p class="ind">Palestine, commercial value of the settlements in, iii. <a href="#Page_329">329</a>.<br /> +See <a href="#CRUS">Crusades</a>.</p> + +<p class="ind">Pandects, discovery of the, iii. <a href="#Page_415">415</a>.</p> + +<p class="ind"><a name="PAPO" id="PAPO"></a>Papal power, first germ of the, ii. 158, 159;<br /> +preceded by the patriarchate, 160;<br /> +character of Gregory I., 161;<br /> +his wary proceedings, 162 and <i>notes</i>;<br /> +convocation of the synod of Frankfort by Boniface, 165, 166 and <i>notes</i>;<br /> +effect produced by the False Decretals, 166, 167 and <i>notes</i>, 221;<br /> +papal encroachments on the hierarchy, 167;<br /> +exemption of monasteries from episcopal control, 168 and <i>note</i> <sup>f</sup>;<br /> +kings compelled to succumb to papal supremacy, 169;<br /> +origin of excommunications, 170;<br /> +helpless position of excommunicated persons, 171;<br /> +interdicts and their disastrous consequences, 172;<br /> +further interference with regal rights by the popes, <i>ib.</i>;<br /> +scandalous state of the papacy in the tenth century, 174;<br /> +Leo IX.'s reformatory efforts, 177;<br /> +prerogatives of the emperors relative to papal elections, 182;<br /> +innovations of pope Nicolas II., 183;<br /> +election and death of Alexander II., 184;<br /> +career of Gregory VII. [see <a href="#G_VII">Gregory VII</a>.];<br /> +contests of his successors with Henry IV. and V. of Germany, 188;<br /> +Calixtus II. and the concordat of Worms, <i>ib.</i>;<br /> +papal opposition to investitures, 181, 188, 189 and <i>notes</i>;<br /> +abrogation of ecclesiastical independence, 193;<br /> +papal legates and their functions, 194;<br /> +Alexander III. and Thomas à Becket, 195;<br /> +career of Innocent III. [see <a href="#I_III">Innocent III</a>.];<br /> +height of the papal power in the 13th century, 202;<br /> +promulgation of the canon law, 203;<br /> +its analogy to the Justinian code, 204 and <i>notes</i>;<br /> +establishment of the mendicant friars, 205;<br /> +dispensations of marriage, 208 and <i>notes</i>; +<span class="pagenum"><a name="Page_508" id="Page_508">[Pg 508]</a></span><br /> +dispensations from oaths, 210;<br /> +encroachments on episcopal elections, 211;<br /> +and on rights of patronage, 212;<br /> +mandats and their abuse, <i>ib.</i>;<br /> +the Pragmatic Sanction, 214 and <i>note</i>;<br /> +pretexts for taxing the clergy, 215, 216;<br /> +clerical disaffection towards the popes, 218;<br /> +progress of ecclesiastical jurisdiction, 219-221;<br /> +opposition thereto by England, 223 and <i>notes</i>;<br /> +faint opposition of France, 225;<br /> +career of Boniface VIII. [see <a href="#B_VIII">Boniface VIII</a>.];<br /> +decline of the papacy, 232;<br /> +removal of the papal court to Avignon, 233;<br /> +its contests with Louis of Bavaria, 234;<br /> +growing resistance to the popes, 236;<br /> +rapacity of the Avignon popes, 237;<br /> +participation of the French kings in the plunder, 238;<br /> +independent conduct of England, <i>ib.</i> and <i>notes</i>;<br /> +return of the popes to Rome, 240;<br /> +contest between Urban VI. and Clement VII., <i>ib.</i>;<br /> +the two papal courts, 242;<br /> +three contemporary popes, <i>ib.</i>;<br /> +proceedings at the councils of Pisa, Constance, and Basle, 243 [see <a href="#COUN">Councils</a>];<br /> +reflections pertinent thereto, 248-251;<br /> +effects of the concordat of Aschaffenburg, 253;<br /> +papal encroachments in Castile, 254;<br /> +restraints thereon in France, 254-256;<br /> +further limits on ecclesiastical jurisdiction, 257-259 and <i>notes</i>;<br /> +decline of papal influence in Italy, and its causes, 259;<br /> +despicable nature of later Interdicts, 260 <i>note</i>.<br /> +See <a href="#CHUR">Church</a>, <a href="#CLER">Clergy</a>, <a href="#MONAS">Monasteries</a>.</p> + +<p class="ind">Paper from linen, when invented, iii. <a href="#Page_459">459</a> and <i><a href="#Footnote_899_899">note</a></i> <sup>y</sup>.</p> + +<p class="ind">Paris, seditions at, i. 66;<br /> +defeat and harsh treatment of its citizens, 67 and <i>notes</i>;<br /> +their fear of the Normans, 134;<br /> +population of the city in early times, iii. <a href="#Page_224">224</a>;<br /> +See <a href="#P_PARL">Parliament of Paris</a>.</p> + +<p class="ind">Parishes, origin, of, ii. 144 and <i>note</i> <sup>r</sup>;<br /> +their slow growth, 145.</p> + +<p class="ind"><a name="PARL" id="PARL"></a>Parliament of England, constituent elements of the, iii. <a href="#Page_4">4</a>;<br /> +right by which the spiritual peers sit, <a href="#Page_4">4</a>, <a href="#Page_5">5</a>, <a href="#Page_122">122</a>;<br /> +earls and barons, <a href="#Page_5">5</a>, <a href="#Page_6">6</a>;<br /> +theories of Selden and Madox, <a href="#Page_6">6-9</a>;<br /> +tenants in chief in parliament, <a href="#Page_10">10</a>, <a href="#Page_11">11</a>;<br /> +first germ of representation, <a href="#Page_11">11</a>, <a href="#Page_12">12</a> and <i><a href="#Footnote_23_23">note</a></i> <sup>a</sup>;<br /> +county representation, <a href="#Page_12">12</a>;<br /> +parliaments of Henry III., <a href="#Page_13">13</a>, <a href="#Page_14">14</a> and <i><a href="#Footnote_25_25">notes</a></i>;<br /> +knights of the shire, how elected, <a href="#Page_15">15-19</a>;<br /> +first summoning of towns to parliament, <a href="#Page_27">27</a> and <i><a href="#Footnote_61_61">note</a></i> <sup>s</sup>;<br /> +question of an earlier date discussed, <a href="#Page_28">28-30</a> and <i><a href="#Footnote_63_63">notes</a></i>;<br /> +the parliament of Acton Burnell, <a href="#Page_31">31</a> <i><a href="#Footnote_71_71">note</a></i> <sup>e</sup>;<br /> +the Barnstaple petition, <a href="#Page_32">32</a>;<br /> +cause of summoning deputies from boroughs, <a href="#Page_35">35-37</a>;<br /> +division of parliament into two houses, <a href="#Page_37">37</a>;<br /> +proper business of the house of commons, <a href="#Page_38">38</a>;<br /> +complaint of the commons in 1309, <a href="#Page_40">40</a>;<br /> +rights established by them, <a href="#Page_42">42</a>;<br /> +their struggle with the king relative to taxation, <a href="#Page_42">42-47</a>;<br /> +concurrence of both houses in legislation made necessary, <a href="#Page_48">48</a>;<br /> +distinction between statutes and ordinances, <a href="#Page_49">49-52</a>;<br /> +interference of parliament in matters of war and peace, <a href="#Page_53">53</a>, <a href="#Page_54">54</a>;<br /> +right to inquire into public abuses, <a href="#Page_54">54</a>;<br /> +increase of the power of the commons under Richard II., <a href="#Page_58">58</a>;<br /> +their protests against lavish expenditure, <a href="#Page_59">59-61</a>;<br /> +success of their demands for accounts, <a href="#Page_61">61</a>;<br /> +boldness of their remonstrances, <a href="#Page_61">62-64</a>;<br /> +they aid the duke of Lancaster, <a href="#Page_65">65</a> <i><a href="#Footnote_150_150">note</a></i> <sup>t</sup>;<br /> +their charges against the earl of Suffolk, <a href="#Page_67">67</a>, <a href="#Page_68">68</a>;<br /> +submission of Richard to their demands, <a href="#Page_69">69-71</a>;<br /> +they come to an understanding with him, <a href="#Page_73">73</a>, <a href="#Page_74">74</a>;<br /> +they fall under his displeasure, <a href="#Page_75">75</a>;<br /> +servility of their submission, <a href="#Page_76">76-78</a>;<br /> +necessity for deposing Richard, <a href="#Page_80">80</a>;<br /> +cautious proceedings of parliament thereupon, <a href="#Page_82">82</a>, <a href="#Page_83">83</a>;<br /> +rights acquired by the commons during his reign, <a href="#Page_83">83</a>;<br /> +their constitutional advances under the house of Lancaster, <a href="#Page_84">84</a>;<br /> +their exclusive right of taxation, <a href="#Page_84">84-86</a>;<br /> +their right of granting and controlling supplies, <a href="#Page_86">86</a>;<br /> +and to make same depend in redress of grievances, <a href="#Page_86">86</a>, <a href="#Page_87">87</a>;<br /> +establishment of their legislative rights, <a href="#Page_87">87-88</a>;<br /> +falsification of their intentions how accomplished, <a href="#Page_88">88-90</a>;<br /> +their first petition in English, <a href="#Page_90">90</a>;<br /> +introduction of bills, public and private, <a href="#Page_91">91</a>, <a href="#Page_92">92</a>;<br /> +legislative divisions of king, lords, and commons, <a href="#Page_92">92</a> <i><a href="#Footnote_206_206">note</a></i> <sup>h</sup>;<br /> +parliamentary interference with royal expenditure, <a href="#Page_93">93</a>;<br /> +limitations laid on Henry IV., <a href="#Page_93">93</a>, <a href="#Page_94">94</a>;<br /> +re-establishment of a good understanding with him, <a href="#Page_95">95</a>;<br /> +harmony between Henry V. and the parliament, <a href="#Page_96">96</a>;<br /> +parliamentary advice sought on public affairs, <a href="#Page_97">97</a>;<br /> +their right to impeach ministers, <a href="#Page_98">98</a>;<br /> +Henry VI.'s mode of evading Suffolk's impeachment, <a href="#Page_99">99</a>;<br /> +assertion of the privilege of parliament, <a href="#Page_100">100</a>;<br /> +cases of Lark and Clerke <i>ib.</i>;<br /> +principles involved in Thorp's case, <a href="#Page_101">101</a>;<br /> +infringements on liberty of speech, <a href="#Page_102">102</a>;<br /> +privilege of originating money-bills, <a href="#Page_103">103-106</a>;<br /> +the three estates of the realm, <a href="#Page_105">105</a> <i><a href="#Footnote_244_244">note</a></i> <sup>b</sup>;<br /> +course of proceeding on other bills, <a href="#Page_106">106</a>, <a href="#Page_107">107</a>;<br /> +instance of excess of privilege, <a href="#Page_108">108</a>;<br /> +contested elections and proceedings thereon, <a href="#Page_109">109</a>, <a href="#Page_110">110</a>;<br /> +county franchise, in whom vested, <a href="#Page_111">111</a> and <i><a href="#Footnote_257_257">note</a></i>;<br /> +representation of towns, <a href="#Page_111">111</a>, <a href="#Page_112">112</a>;<br /> +partial omission of boroughs, <a href="#Page_113">113</a>, <a href="#Page_114">114</a> and <i><a href="#Footnote_259_259">notes</a></i>;<br /> +reluctance of boroughs to send members, <a href="#Page_115">115</a>;<br /> +in whom the right to vote was vested, <a href="#Page_116">116</a>, <a href="#Page_117">117</a> and <i><a href="#Footnote_275_275">note</a></i> <sup>m</sup>;<br /> +status of the members, <a href="#Page_117">117</a>;<br /> +exclusion of lawyers from the commons' house, <a href="#Page_118">118</a>;<br /> +<span class="pagenum"><a name="Page_509" id="Page_509">[Pg 509]</a></span> +members originally compelled to be residents, <a href="#Page_118">118</a>, <a href="#Page_119">119</a>;<br /> +election irregularities and crown interference, <a href="#Page_120">120</a>, <a href="#Page_121">121</a>;<br /> +constitution of the house of lords, <a href="#Page_121">121</a>;<br /> +qualification of spiritual barons, <a href="#Page_122">122</a>;<br /> +barons by writ, <a href="#Page_123">123-126</a> and <i><a href="#Footnote_295_295">notes</a></i>;<br /> +distinction between barons and bannerets, <a href="#Page_126">126-129</a>;<br /> +creation of peers by statute and by patent, <a href="#Page_129">129</a>, <a href="#Page_130">130</a>;<br /> +clergy summoned to send representatives, <a href="#Page_131">131-138</a>;<br /> +remonstrances of the commons against the encroachments of the council, <a href="#Page_140">140-142</a>.</p> + +<p class="ind"><a name="P_PARL" id="P_PARL"></a>Parliament of Paris, constitution and sittings of the, i. 248;<br /> +progress of its jurisdiction, 250;<br /> +enregistration of royal decrees confided to it, 251;<br /> +its spirited conduct in reference thereto, <i>ib.</i>;<br /> +interference of the kings with its privileges, 251;<br /> +establishment of its independence by Louis XI., 252;<br /> +its claims on the respect of posterity, <i>ib.</i>;<br /> +important ordinance of Charles V., iii. <a href="#Page_152">152</a> <i><a href="#Footnote_370_370">note</a></i> <sup>t</sup>.</p> + +<p class="ind">Paschal II. (pope), opposition to investitures by, ii. 187 <i>note</i> <sup>i</sup>, +and 189 <i>note</i> <sup>o</sup>;<br /> +his animosity against Henry IV. of Germany, 188.</p> + +<p class="ind">Pastoureaux. See <a href="#SUPER">Superstitions</a>.</p> + +<p class="ind">Paulicians. See <a href="#RS">Religious Sects</a>.</p> + +<p class="ind">Pauperism, slavery chosen as a refuge from the miseries of, i. 328.</p> + +<p class="ind">Pecock (bishop), character of, iii. <a href="#Page_389">389</a> <i><a href="#Footnote_755_755">note</a></i> <sup>i</sup>.</p> + +<p class="ind">Peers of England. See <a href="#NOB">Nobility</a>, <a href="#PARL">Parliament</a>.</p> + +<p class="ind">Peers of France, original constitution of the, i. 249.</p> + +<p class="ind">Pelagius II. and the bishop of Arles, ii. 164.</p> + +<p class="ind">Pembroke (William, earl of), resolute defiance of Henry III. by, iii. <a href="#Page_164">164</a>.</p> + +<p class="ind">People, state of the, <i>temp.</i> Charlemagne and his successors, i. 18, 19, <i>et seq.</i>;<br /> +their lawlessness, iii. <a href="#Page_307">307</a>;<br /> +their general immorality, <i>ib.</i></p> + +<p class="ind"><a name="PEP_HER" id="PEP_HER"></a>Pepin Heristal, usurpation of supremacy by, i. 7;<br /> +his influence over the destinies of France, 117;<br /> +he restores the national council, 215.</p> + +<p class="ind">Pepin (son of Charles Martel) deposes Childeric III., i. 8;<br /> +ascends the throne, <i>ib.</i>;<br /> +subdues the Lombards, 9;<br /> +his legislative assemblies, 215.</p> + +<p class="ind">Perjury, prevalence of, in the middle ages, iii. <a href="#Page_309">309</a>.</p> + +<p class="ind">Perrers (Alice). See <a href="#ED_III">Edward III</a>.</p> + +<p class="ind">Peter the Great compared with Charlemagne, i. 13.</p> + +<p class="ind">Peter the Cruel, succession of crimes perpetrated by, ii. 14;<br /> +his apologists, <i>ib.</i> and <i>note</i>;<br /> +his discomfiture and death, 15.</p> + +<p class="ind">Peter the Hermit. See <a href="#CRUS">Crusades</a>.</p> + +<p class="ind">Peter II. of Aragon surrenders his kingdom to the pope, ii, 200, 231.</p> + +<p class="ind">Peter III of Aragon assists John of Procida, i. 483;<br /> +he accepts the crown of Sicily, 484.</p> + +<p class="ind">Peter IV. of Aragon, character and reign of, ii. 39;<br /> +consequences of his attempts to settle the crown on his daughter, <i>ib.</i></p> + +<p class="ind"><a name="PETR" id="PETR"></a>Petrarch on the state of France in 1360, i. 59, <i>note</i>;<br /> +his extravagant views relative to Rome, 418, <i>note</i>;<br /> +his personal characteristics, iii. <a href="#Page_449">449</a> and <i><a href="#Footnote_883_883">note</a></i> <sup>e</sup>;<br /> +his great popularity, <a href="#Page_450">450</a>;<br /> +his goldsmith host, <i>ib.</i> <i><a href="#Footnote_884_884">note</a></i> <sup>f</sup>;<br /> +his passion for Laura, <a href="#Page_451">451</a>;<br /> +character of his poetry, <a href="#Page_452">452</a> and <i><a href="#Footnote_887_887">note</a></i>;<br /> +his efforts for the preservation of manuscripts, <a href="#Page_461">461</a>;<br /> +was Laura married or single? <a href="#Page_482">482-484</a>.</p> + +<p class="ind">Philip Augustus, accession of, i. 26;<br /> +he cites John king of England before him, <i>ib.</i>;<br /> +deprives the English crown of its French possessions, 27;<br /> +joins in the third crusade, 40;<br /> +his request to an abbot relative to coinage, 206;<br /> +pope Gregory's menaces towards him, ii. 192;<br /> +his fear of Innocent III., 197;<br /> +takes back his repudiated wife, 199.</p> + +<p class="ind">Philip III. (the Bold), accession of, i. 42;<br /> +his conduct towards the archbishop of Lyons, 45;<br /> +he taxes the clergy, ii. 219 <i>note</i> <sup>h</sup>.</p> + +<p class="ind">Philip IV. (the Fair), accession of, i. 43;<br /> +policy adopted by him, <i>ib.</i>;<br /> +his resentment against the English king, <i>ib. note</i>;<br /> +his fraudulent conduct towards him, 44;<br /> +successful resistance of the Flemings against his attacks, 44 and <i>note</i> <sup>a</sup>;<br /> +his further acquisitions, 44;<br /> +and siege of Lyons, 45;<br /> +claims a right to debase the coin, 206 <i>note</i> <sup>q</sup>;<br /> +his character according to Guizot, 224 <i>note</i>;<br /> +he convokes the States-General, 225 and <i>note</i>;<br /> +his motives in embodying the deputies of towns, 226;<br /> +he taxes the clergy, ii. 228;<br /> +he arrests the pope's legate, 230;<br /> +he burns the pope's bulls, <i>ib.</i>;<br /> +retaliation of the pope, 231;<br /> +his stratagem against the pope, 232;<br /> +its consequences, <i>ib.</i></p> + +<p class="ind">Philip V. (the Long), assumption of the regency of France by, i. 45;<br /> +violates his treaty with his brother's widow, 46;<br /> +Salic law confirmed in his reign, 48 decrees the abolition of serfdom, 202;<br /> +result of his attempt at an excise on salt, 228.</p> + +<p class="ind">Philip VI. (of Valois) regency and coronation of, i. 48;<br /> +sketch of his character, 53;<br /> +his debasements of the coin, 228.</p> + +<p class="ind">Philip of Suabia elected emperor of Germany, ii. 75;<br /> +his assassination, <i>ib.</i></p> + +<p class="ind">Phocas, supposed concession to the popes by, ii. 162 <i>note</i> <sup>s</sup>.</p> + +<p class="ind">Pickering (Sir James), tenor of a speech made by, iii. <a href="#Page_59">59</a>.</p> + +<p class="ind">Piedmont, comparative obscurity of the history of, i. 390 <i>note</i>.</p> + +<p class="ind">Piracy, temptations to the practice of, iii. <a href="#Page_334">334</a>;<br /> +difficulty of repressing it, <a href="#Page_335">335</a>.</p> + +<p class="ind"><span class="pagenum"><a name="Page_510" id="Page_510">[Pg 510]</a></span> +<a name="PIS" id="PIS"></a>Pisa, early naval and commercial importance of, i. 441;<br /> +her wars with Genoa, 442;<br /> +her reverses and sale to Florence, 443;<br /> +effect of the crusades on her prosperity, iii. <a href="#Page_329">329</a>.</p> + +<p class="ind">Pisani (Vittor) defeated by the Genoese, and imprisoned by the Venetians, i. 445;<br /> +his triumphant recall from prison, 446.</p> + +<p class="ind">Pius II. See <a href="#A_SYL">Æneas Sylvius</a>.</p> + +<p class="ind">Podestà, peculiarities of the office of, i. 397, 398.</p> + +<p class="ind">Podiebrad (George), vigorous rule of Bohemia by, ii. 104;<br /> +suspected of poisoning Ladislaus, 106 <i>note</i> <sup>c</sup>.</p> + +<p class="ind">Poggio Bracciolini, services of, in the revival of learning, iii. <a href="#Page_463">463</a>.</p> + +<p class="ind">Poitiers, battle of. See <a href="#ED_III">Edward III</a>.</p> + +<p class="ind">Poland, polity of, not based on feudality, i. 187.</p> + +<p class="ind"><a name="POLE" id="POLE"></a>Pole (Michael de la, earl of Suffolk), succeeds Scrope as chancellor, iii. <a href="#Page_66">66</a>;<br /> +refusal of Richard II. to dismiss him, <a href="#Page_67">67</a>;<br /> +his impeachment and sentence, <a href="#Page_68">68</a>;<br /> +subsequent proceedings relative to him, <a href="#Page_72">72</a>.</p> + +<p class="ind">Porcaro, revolt and death of, i. 419.</p> + +<p class="ind">Pragmatic Sanction of Bourges, ii. 255;<br /> +repealed by Louis XI., <i>ib.</i>;<br /> +its popularity with the people, <i>ib.</i>;<br /> +liberties secured by it, 256.</p> + +<p class="ind">Pragmatic Sanction of S. Louis, enactment of the, ii. 214 and <i>note</i>.</p> + +<p class="ind">Prague university, opposition of the nobles to the institution of, ii. 102 <i>note</i> <sup>t</sup>;<br /> +fate of its rector, <i>ib.</i></p> + +<p class="ind">Precarious, origin of the adjective, ii. 147 <i>note</i> <sup>d</sup>.</p> + +<p class="ind">Prerogative of the kings of England, observations on the, iii. <a href="#Page_147">147</a>, +<a href="#Page_257">257-260</a>.<br /> +See <a href="#ENG_CON">English Constitution</a>.</p> + +<p class="ind">Prices of commodities, iii. <a href="#Page_368">368-370</a>.</p> + +<p class="ind">Printing, invention of, iii. <a href="#Page_471">471</a>;<br /> +first books printed, <i>ib.</i>;<br /> +Italian presses, <a href="#Page_472">472</a>.<br /> +See <a href="#LEARN">Learning</a>.</p> + +<p class="ind">Protadius, oppressive conduct of, i. 114.</p> + +<p class="ind">Provence annexed to the French dominions, i. 100;<br /> +<i>note</i> upon its history, 101.</p> + +<p class="ind">Public weal, origin of the war of the, i. 85;<br /> +object of its chiefs, 87, 88 and <i>note</i> <sup>n</sup>;<br /> +their fate, 89.</p> + +<p class="ind">Punishments amongst the Franks for murder, i. 150, 151 and <i>notes</i>, 198 and <i>note</i> <sup>q</sup>, 281;<br /> +amongst the Burgundians, 151 and <i>note</i> <sup>s</sup>.</p> + +<p class="ind">Purveyance, oppressive operation of the prerogative of, iii. <a href="#Page_148">148</a>, +and <a href="#Page_149">149</a> <i><a href="#Footnote_363_363">note</a></i>.<br /> +<br /> +</p> + +<p class="ind">Races, turbulence of the Carlovingian period ascribed to the antipathy between, i. 128-134.</p> + +<p class="ind">Rachimburgii, the, i. 214;<br /> +difference between them and the Scabini, 216 <i>note</i> <sup>z</sup>.</p> + +<p class="ind">Ravenna, conquest and reconquest of. i. 8, 9.</p> + +<p class="ind"><a name="R_VI" id="R_VI"></a>Raymond VI. (count of Toulouse) excommunicated by Innocent III., i. 28;<br /> +reverses of his son Raymond, 29.</p> + +<p class="ind">Regencies, rule in France relative to, i. 68 and <i>note</i> <sup>a</sup>;<br /> +instances of regencies in England, and principles deducible therefrom, iii. <a href="#Page_184">184-190</a>.</p> + +<p class="ind"><a name="RS" id="RS"></a>Religious sects, moral improvement accelerated +by the growth of, iii. <a href="#Page_378">378</a>;<br /> +tenets of the Manicheans and Paulicians, <a href="#Page_378">378</a>, <a href="#Page_379">379</a> and <i><a href="#Footnote_741_741">notes</a></i>;<br /> +the Albigenses, and controversies respecting them, <a href="#Page_380">380</a>, <a href="#Page_381">381</a> and <i><a href="#Footnote_745_745">note</a></i>;<br /> +origin of the Waldenses, <a href="#Page_382">382</a>, <a href="#Page_383">383</a> and <i><a href="#Footnote_746_746">notes</a></i>;<br /> +morality of their life, <a href="#Page_384">384</a> <i><a href="#Footnote_748_748">note</a></i> <sup>b</sup>;<br /> +Manicheism of the Albigenses, <a href="#Page_385">385</a>;<br /> +persecutions at Oxford, <i>ib.</i> and <i><a href="#Footnote_749_749">note</a></i>;<br /> +secret readings of the scriptures, <a href="#Page_386">386</a>;<br /> +persecutions for witchcraft, <i>ib.</i> <i><a href="#Footnote_749_749">note</a></i>;<br /> +permissions and prohibitions concerning the sacred writings, <a href="#Page_387">387</a>;<br /> +continued spread of heresies, <a href="#Page_388">388</a>;<br /> +strictnesses of Lollardism, <a href="#Page_389">389</a>;<br /> +schism of the Hussites, <a href="#Page_389">389</a>, <a href="#Page_390">390</a> and <i><a href="#Footnote_757_757">note</a></i> <sup>m</sup>.</p> + +<p class="ind">Representation of the towns. See <a href="#PARL">Parliament</a>, <a href="#S_GEN">States-General</a>.</p> + +<p class="ind">Representative legislation, first germ of, i. 216.<br /> +See <a href="#PARL">Parliament</a>.</p> + +<p class="ind">Revenues of the kings of France, how derived, i. 208-212.<br /> +See <a href="#TAX">Taxation</a>.</p> + +<p class="ind">Richard I., non-success of, against Philip Augustus, i. 26;<br /> +joins with Philip in the crusades, 40;<br /> +his prowess; terror excited by his name, <i>ib.</i> and <i>note</i> <sup>t</sup>;<br /> +his refusal relative to the right of private war, 207 <i>note</i> <sup>t</sup>;<br /> +his submission to the pope, ii. 197;<br /> +deposition of his chancellor, 325;<br /> +enactment of the laws of Oleron imputed to him, iii. <a href="#Page_334">334</a>;<br /> +his character as a troubadour, <a href="#Page_439">439</a> and <i><a href="#Footnote_866_866">note</a></i> <sup>k</sup>.</p> + +<p class="ind">Richard II. loses ground in France, i. 64, 65;<br /> +his coronation, iii. <a href="#Page_58">58</a>;<br /> +his council during his minority, <i>ib.</i>;<br /> +his struggles with parliament, <a href="#Page_62">62-64</a>;<br /> +sketch of his character, <a href="#Page_65">65</a>;<br /> +his dependence on favourites, <a href="#Page_66">66</a>;<br /> +his refusal to dismiss de la Pole, duke of Suffolk, <a href="#Page_67">67</a>;<br /> +determined conduct of the commons towards him, <a href="#Page_67">67</a>, <a href="#Page_68">68</a>;<br /> +he yields to their demands, <a href="#Page_69">69</a>;<br /> +his further attempts at independent rule, <a href="#Page_73">73</a>;<br /> +his complaint against the commons, <a href="#Page_75">75</a>;<br /> +their submission, <a href="#Page_76">76</a>;<br /> +his seizure of the duke of Gloucester and other arbitrary acts, <a href="#Page_77">77-79</a>;<br /> +necessity for his deposition, <a href="#Page_80">80</a>;<br /> +progress of the constitution during his reign, <a href="#Page_83">83</a>;<br /> +extent of his malpractices relative to the raising of money, <a href="#Page_84">84</a>, <a href="#Page_85">85</a>;<br /> +his attack upon Haxey, <a href="#Page_76">76</a>, <a href="#Page_102">102</a>.</p> + +<p class="ind">Richard (earl of Cornwall), chosen emperor of Germany, ii. 76;<br /> +absurdity of the choice, 77.</p> + +<p class="ind">Richard (duke of York). See <a href="#YORK">York</a>.</p> + +<p class="ind">Richer (a mediæval historian), degree of value due to the testimony of, i. 130.</p> + +<p class="ind">"Riding the city," meaning of the phrase, i. 429.</p> + +<p class="ind"><span class="pagenum"><a name="Page_511" id="Page_511">[Pg 511]</a></span> +Rienzi (Nicola di), sudden accession to power of, i. 417;<br /> +his exile, recall, and death, 418;<br /> +Petrarch's enthusiasm towards him, <i>ib. note</i>.</p> + +<p class="ind"><a name="ROA" id="ROA"></a>Robert of Artois, impolitic act of forgery committed by, i. 47 <i>note</i> <sup>k</sup>.</p> + +<p class="ind">Robert of Gloucester, and other metrical writers, iii. <a href="#Page_453">453</a>.</p> + +<p class="ind">Robert of Naples, wise rule of, i. 485;<br /> +singular provision made by him, ii. 226 <i>note</i> <sup>x</sup>.</p> + +<p class="ind">Robert (count palatine) supersedes Wenceslaus as emperor of Germany, ii. 87.</p> + +<p class="ind">Robertson (the historian), value of his treatise on private warfare, i. 207 <i>note</i> <sup>t</sup>.</p> + +<p class="ind">Rochelle, patriotism of the citizens of, i. 63.</p> + +<p class="ind">Roderick the last of the Goths, credibility of the legend relative to, ii. 62-65.</p> + +<p class="ind">Rodolph of Hapsburg elected emperor of Germany, ii. 81;<br /> +Austria conferred upon his son, <i>ib.</i>;<br /> +his ascendency in Switzerland, 107.</p> + +<p class="ind">Rollo of Normandy, conversion of, i. 22.</p> + +<p class="ind">Romance language, ascendency in the Frank dominions of the, i. 131.<br /> +See <a href="#LEARN">Learning</a>.</p> + +<p class="ind">Romano (Eccelin da). See <a href="#ECCE">Eccelin</a>.</p> + +<p class="ind">Rome, subversion of the empire of, i. 1;<br /> +its division by barbarous races, <i>ib.</i>;<br /> +portion which remained subject to it, 2;<br /> +partition of its provinces amongst their conquerors, 146, 275-278;<br /> +its municipal institutions, 339, 340;<br /> +its internal state in the tenth century, 358;<br /> +infamous conduct of candidates for the papal chair, 359;<br /> +execution of the consul Crescentius, 359 and <i>note</i>;<br /> +schemes of Innocent III. for aggrandizing the holy see, 381, 382;<br /> +increase of the temporal authority of the popes, 414;<br /> +the Roman orator and Frederic Barbarossa, 415 and <i>note</i>;<br /> +expulsion of popes by the citizens, 416;<br /> +the senators and their jurisdiction, <i>ib.</i>;<br /> +mutual animosities of the nobles, 417;<br /> +rise and fall of Rienzi, <i>ib.</i>, 418;<br /> +transient revival of the republican spirit, 418;<br /> +miscarriage of Porcaro's revolutionary projects, 419.<br /> +See <a href="#PAPO">Papal Power</a>.</p> + +<p class="ind">Romeo and Juliet, parallel to the story of, i. 402 and <i>note</i>.<br /> +<br /> +</p> + +<p class="ind">Saint Bathilda, character of, i. 112.</p> + +<p class="ind">Saint Boniface. See <a href="#WINF">Winfrid</a>.</p> + +<p class="ind">Saint Denis, sum paid for redeeming the abbot of, i. 22.</p> + +<p class="ind">Saint John of Jerusalem, knights of, i. 40;<br /> +their saint, who he was, <i>ib. note</i> <sup>r</sup>;<br /> +their enormous possessions, <i>ib.</i> and <i>note</i> <sup>s</sup>.</p> + +<p class="ind">Saint Louis. See <a href="#L_IX">Louis IX</a>.</p> + +<p class="ind">Saint Medard, parentage of, i. 296.</p> + +<p class="ind">Saint Pol (count of), anecdote of, i. 84 <i>note</i> <sup>f</sup>;<br /> +executed on the scaffold, 89;<br /> +anecdote of his distrust of Louis XI, 97 <i>note</i>.</p> + +<p class="ind">Saint Wilfrid, historical service rendered by, i. 112.</p> + +<p class="ind">Saints, great addition to the calendar of, in the time of Clovis and his sons, i. 111;<br /> +historical value of their lives, <i>ib.</i>;<br /> +extent of their title to canonization, 112, 113.</p> + +<p class="ind">Saladin, conquest of Jerusalem by, i. 40.</p> + +<p class="ind">Salic lands, characteristics of, i. 147-149 and <i>notes</i>.</p> + +<p class="ind">Salic law, circumstances which led to the confirmation of the, i. 47, 48;<br /> +date of its enactment, 278, 279;<br /> +its incompleteness as a code, 280.</p> + +<p class="ind">Sancho the Great bestows Castile on his second son, ii. 4;<br /> +he incorporates Naxara, 6.</p> + +<p class="ind">Sancho IV. assassinates Don Lope, ii. 13;<br /> +clerical encroachments encouraged by, 220 <i>note</i> <sup>r</sup>.</p> + +<p class="ind">Sanctuary, institution of the privilege of, iii. <a href="#Page_302">302</a>.</p> + +<p class="ind"><a name="SARAC" id="SARAC"></a>Saracens, expulsion of the, from France, i. 7 and <i>note</i> <sup>q</sup>;<br /> +their inroads upon Italy, 19 and <i>note</i> <sup>u</sup>;<br /> +Eudon's great victory over them, 116;<br /> +their conflicts with the Christians [see <a href="#CRUS">Crusades</a>];<br /> +they conquer Spain, ii, 2;<br /> +encroachments of the Christians on their territories, 3;<br /> +mainspring of their heroism, 117;<br /> +their eastern conquests, 119;<br /> +their triumphs in the west, <i>ib.</i>;<br /> +effect of their successes, <i>ib.</i>;<br /> +their internal dissensions, 121.<br /> +See <a href="#CRUS">Crusades</a>, <a href="#MOOR">Moors</a>.</p> + +<p class="ind">Saragosa taken from the Moors, ii. 5.</p> + +<p class="ind">Sardinia conquered by the Pisans, i. 441;<br /> +its cession to the king of Aragon, 443.</p> + +<p class="ind">Saxons, obstinate resistance to Charlemagne by the, i. 10;<br /> +enormous number beheaded by him, 13;<br /> +true cause of their wars with the Franks, 120;<br /> +their early kings, 303.<br /> +See <a href="#ANG_SAX">Anglo-Saxons</a>.</p> + +<p class="ind">Scabini, representative character of the, i. 216;<br /> +difference between them and the Rachimburgii, <i>ib. note</i> <sup>z</sup>;<br /> +their functions, 238 and <i>note</i> <sup>g</sup>.</p> + +<p class="ind">Scanderbeg, protracted opposition to the Turks by, ii. 138.</p> + +<p class="ind">Scandinavia and her Sea Kings, ii. 271.</p> + +<p class="ind">Sclavonians, territories occupied by the, i. 19.</p> + +<p class="ind">Scotus (Duns), notices of, iii. <a href="#Page_427">427</a>, +<a href="#Page_428">428</a> <i><a href="#Footnote_843_843">note</a></i> <sup>i</sup>, <a href="#Page_429">429</a>.</p> + +<p class="ind"><a name="SCOTUS" id="SCOTUS"></a>Scotus (John), an exception to the ignorance +of his times, iii. <a href="#Page_290">290</a> and <i><a href="#Footnote_516_516">note</a></i> <sup>r</sup>;<br /> +character of the philosophy introduced by him, <a href="#Page_430">430</a> <i><a href="#Footnote_848_848">note</a></i> <sup>p</sup>.</p> + +<p class="ind">Scrope (lord steward), answers to the commons by, iii. <a href="#Page_60">60</a>;<br /> +cause of his dismissal from office, <a href="#Page_66">66</a>.</p> + +<p class="ind">Serfdom and villenage, distinctive features of, i. 197-200.<br /> +See <a href="#VILL">Villeins</a>.</p> + +<p class="ind"><span class="pagenum"><a name="Page_512" id="Page_512">[Pg 512]</a></span> +Servitude enforced upon the cultivators of the soil in the middle ages, i. 328, 329;<br /> +contrary hypothesis of M. Guérard, 329-331.</p> + +<p class="ind">Sforza Attendolo, rise to distinction of, i. 481;<br /> +his tactics relative to the crown of Naples, 489, 490.</p> + +<p class="ind">Sforza (Francesco), powerful position achieved by, i. 483;<br /> +becomes duke of Milan, <i>ib.</i>;<br /> +joins in the quadruple league, 493;<br /> +his policy towards Naples, 504;<br /> +accession and assassination of his son Galeazzo, 496;<br /> +policy of Ludovico Sforza, <i>ib.</i>;<br /> +he directs the French king's attention towards Naples, 505;<br /> +short-sightedness of his views, <i>ib.</i></p> + +<p class="ind">Sheriffs, partiality of, in elections, iii. <a href="#Page_113">113</a>;<br /> +how originally appointed, <a href="#Page_120">120</a> and <i><a href="#Footnote_285_285">note</a></i> <sup>y</sup>.</p> + +<p class="ind"><a name="SICIL" id="SICIL"></a>Sicily, conquest of, by Roger Guiscard, i. 363;<br /> +its subsequent fortunes, 378;<br /> +its rebellion against Charles of Anjou, 483;<br /> +the Sicilian Vespers, 484 and <i>note</i>;<br /> +opposition of the Sicilians to Charles II. of Naples, 484;<br /> +settlement of the crown on Frederic, 485;<br /> +Sicilian possessions of the Chiaramonti, 490;<br /> +union of Sicily with Aragon, <i>ib.</i></p> + +<p class="ind"><a name="SIGIS" id="SIGIS"></a>Sigismund elected emperor of Germany, ii. 87 and <i>note</i> <sup>g</sup>;<br /> +his safe-conduct violated, 102;<br /> +acquires the crown of Hungary, 104;<br /> +his conduct at the council of Constance, 249.</p> + +<p class="ind">Silk manufacture established in Palermo, iii. <a href="#Page_331">331</a>.</p> + +<p class="ind">Silvester II. (pope), scientific acquirements of, iii. <a href="#Page_290">290</a>, +<a href="#Page_291">291</a> <i><a href="#Footnote_516_516">note</a></i>.</p> + +<p class="ind">Simony. See <a href="#CHUR">Church</a>, <a href="#CLER">Clergy</a>.</p> + +<p class="ind">Slavery, existence of, in ancient times, i, 197;<br /> +its features amongst the Franks, 198 and <i>note</i> <sup>q</sup>;<br /> +voluntarily submitted to from superstitious motives, 199;<br /> +edicts for its abolition, 202;<br /> +submitted to by the poor for subsistence sake, 328;<br /> +Venetian and English slave-trading, iii. <a href="#Page_316">316</a> and <i><a href="#Footnote_570_570">note</a></i> <sup>d</sup>.</p> + +<p class="ind">Society, state of.<br /> +See <a href="#ARCH">Architecture</a>, <a href="#CHIV">Chivalry</a>, <a href="#CLER">Clergy</a>, +<a href="#F_SYS">Feudal System</a>, <a href="#LEARN">Learning</a>, <a href="#SUPER">Superstition</a>, +<a href="#TRD">Trade</a>, <a href="#VILL">Villenage</a>.</p> + +<p class="ind">Sorel (Agnes), examination of the story of, i. 80 <i>note</i> <sup>z</sup>.</p> + +<p class="ind">Southey's Joan of Arc, eulogium of a French writer upon, i. 143.</p> + +<p class="ind">Spain, character of the Visigothic kingdoms in, ii. 1;<br /> +its conquest by the Saracens, 2;<br /> +kingdoms of Leon, Navarre, Aragon, and Castile, 3, 4;<br /> +reverses of the Saracens, 5;<br /> +chartered towns, 6, 7, 8;<br /> +establishment of military orders, 8;<br /> +non-expulsion of the Moors, 10;<br /> +its probable cause, 11;<br /> +Alfonso X. and his shortcomings, 12;<br /> +frequent defection of the nobles, 13;<br /> +Peter the Cruel, 14;<br /> +accession of the Trastamare line, 15;<br /> +disgrace and execution of Alvaro de Luna, 16, 17;<br /> +contests after Henry IV.'s death, 18;<br /> +constitution of the national councils, 19;<br /> +composition of the Cortes, 21;<br /> +its trade relations with England, iii. <a href="#Page_327">327</a>.<br /> +See <a href="#ARAG">Aragon</a>, <a href="#CAST">Castile</a>, <a href="#CORT">Cortes</a>.</p> + +<p class="ind">Spelman (Sir Henry), remarkable mistake of, i. 166 <i>note</i> <sup>n</sup>.</p> + +<p class="ind"><a name="SPORT" id="SPORT"></a>Sports of the field, popularity of, iii. <a href="#Page_309">309</a>;<br /> +addiction of the clergy thereto, <a href="#Page_310">310</a>;<br /> +evils attendant thereon, <a href="#Page_311">311</a>.</p> + +<p class="ind"><a name="S_GEN" id="S_GEN"></a>States-General of France, memorable resistance to taxation by the, i. 66;<br /> +convoked by Philip IV., 225, 226;<br /> +probability of their earlier convocation canvassed, <i>ib. note</i>;<br /> +Philip's politic reasons for summoning them, 226;<br /> +extent of their rights as to taxation, 227, 228 and <i>notes</i>;<br /> +their resolute proceedings in 1355 and 1356, 228;<br /> +their protest against the debasement of the coin, 230 and <i>notes</i>;<br /> +disappointment occasioned by their proceedings in 1357, 231;<br /> +they compel Charles VI. to revoke all illegal taxes, 232;<br /> +effect of their limited functions, 233;<br /> +theoretical respect attached to their sanction, 234;<br /> +provincial estates and their jurisdiction, <i>ib.</i>;<br /> +encroachments of Louis XI., 235;<br /> +the States-General of Tours, 236;<br /> +means by which their deliberations were jeopardized, <i>ib.</i>;<br /> +unpalatable nature of their remonstrances, 237.</p> + +<p class="ind">Stephen (king), cruel treatment of the people in his reign, ii. 319 <i>note</i>.</p> + +<p class="ind">Stratford (archbishop), circumstances attending the trial of, iii. <a href="#Page_205">205</a>.</p> + +<p class="ind">Succession to kingly and other dignities. See <a href="#HE_SUC">Hereditary Succession</a>.</p> + +<p class="ind">Suevi, part of the Roman empire held by the, i. 1.</p> + +<p class="ind">Suffolk (duke of), impeachment of, iii. <a href="#Page_99">99</a>.</p> + +<p class="ind">Suffolk (earl of). See <a href="#POLE">Pole</a>.</p> + +<p class="ind">Sumptuary laws, enactment and disregard of, iii. <a href="#Page_343">343</a>, <a href="#Page_344">344</a> and <i><a href="#Footnote_651_651">notes</a></i>.</p> + +<p class="ind"><a name="SUPER" id="SUPER"></a>Superstition, learning discouraged by, iii. <a href="#Page_274">274</a>;<br /> +its universal prevalence, <a href="#Page_293">293</a>;<br /> +instances of its results, <a href="#Page_294">294</a>;<br /> +ordeals, <a href="#Page_294">294</a>, <a href="#Page_295">295</a> and <i><a href="#Footnote_519_519">notes</a></i>;<br /> +fanatical gatherings: the White Caps, <a href="#Page_296">296</a>;<br /> +the Pastoureaux, <i>ib.</i>;<br /> +the Flagellants, <a href="#Page_297">297</a>;<br /> +the Bianchi, <a href="#Page_298">298</a>;<br /> +pretended miracles, and their attendant evils, <a href="#Page_298">298</a>, <a href="#Page_299">299</a>;<br /> +miracles ascribed to the Virgin, <a href="#Page_300">300</a> and <i><a href="#Footnote_534_534">note</a></i>;<br /> +redeeming features of the system, <a href="#Page_301">301</a>;<br /> +penances and pilgrimages, <a href="#Page_306">306</a>, <a href="#Page_307">307</a>.<br /> +See Religious Sects.</p> + +<p class="ind">Surnames, introduction of, i. 190.</p> + +<p class="ind">Sweden, semi-feudal custom in, relative to military service, 188 <i>note</i> <sup>g</sup>.</p> + +<p class="ind">Swineford (Katherine), proceedings relative to the marriage of, iii. <a href="#Page_74">74</a>, +<a href="#Page_75">75</a>.</p> + +<p class="ind">Switzerland, early history of, ii. 107;<br /> +ascendency of Rodolph, <i>ib.</i>;<br /> +<span class="pagenum"><a name="Page_513" id="Page_513">[Pg 513]</a></span> +expulsion and defeat of Albert and Leopold, 108, 109;<br /> +formation of the Swiss confederation, 109;<br /> +indomitable heroism of the Swiss, 111;<br /> +their military excellence, <i>ib.</i>;<br /> +failure of Maximilian's attempt to subjugate them, 112.</p> + +<p class="ind">Syagrius, Roman provinces governed by, i. 2;<br /> +defeated by Clovis, <i>ib.</i> and 106.<br /> +<br /> +</p> + +<p class="ind">Taborites, fanaticism and courage of the, ii. 103;<br /> +iii. <a href="#Page_390">390</a>.</p> + +<p class="ind">Tacitus, general accuracy of the descriptions of, i. 273;<br /> +qualifications necessary to be observed touching his account of the Germans, 274.</p> + +<p class="ind">Tartars. See <a href="#MOG">Moguls</a>.</p> + +<p class="ind"><a name="TAX" id="TAX"></a>Taxation, remarks on the philosophy of, i. 68;<br /> +clumsy substitutes for taxes in the middle ages, 208;<br /> +arbitrary course adopted by Philip Augustus, 212;<br /> +conditions annexed by the States-General to a grant of taxes, 230;<br /> +Philip de Comines on taxation, 236;<br /> +taxes under the Anglo-Norman kings, ii. 321, 322 and <i>notes</i>.<br /> +See <a href="#S_GEN">States-General</a>.</p> + +<p class="ind">Temple, knights of the. See <a href="#K_TEMP">Knights Templars</a>.</p> + +<p class="ind">Tenure of land under the Anglo-Saxons and Anglo-Normans, ii. 293-301, 406-410.<br /> +See <a href="#F_SYS">Feudal System</a>.</p> + +<p class="ind">Teutonic knights, establishment of the order of, i. 40.</p> + +<p class="ind">Theodebert, story of the wife of, iii. <a href="#Page_306">306</a> <i><a href="#Footnote_541_541">note</a></i> <sup>u</sup>.</p> + +<p class="ind">Theodoric, disregard of learning by, iii. <a href="#Page_275">275</a>.</p> + +<p class="ind">Thierry (son of Clovis), territories possessed by, i. 4, and 5 <i>note</i>.</p> + +<p class="ind">Timur, conquering career of, ii. 133.</p> + +<p class="ind">Tithes, establishment of, ii. 144;<br /> +Charlemagne's capitulary relative thereto, 145 and <i>notes</i>;<br /> +origin of lay impropriators, 148;<br /> +<i>note</i> relative to the subject, 263.</p> + +<p class="ind">Toledo taken from the Moors, ii. 5.</p> + +<p class="ind">Torriani. See <a href="#VISC">Visconti</a>.</p> + +<p class="ind">Toulouse, non-submission of the counts of, to the kings of France, i. 27 and <i>note</i> <sup>r</sup>;<br /> +their fall, 29.<br /> +See <a href="#R_VI">Raymond VI</a>.</p> + +<p class="ind"><a name="TOWN" id="TOWN"></a>Towns and cities, earliest charters granted to, i. 256;<br /> +considerations on the causes of such grants, <i>ib.</i> 257;<br /> +privileges of incorporated towns, 258;<br /> +their relationship towards the crown, 259-261;<br /> +independence of maritime towns, 261;<br /> +chartered towns of Spain, ii. 6;<br /> +their privileges and duties, 7, 8;<br /> +cause of their importance, 20;<br /> +cities of Germany [see <a href="#GERM">Germany</a>];<br /> +cities of Italy [see <a href="#FLO">Florence</a>, <a href="#GENOA">Genoa</a>, +<a href="#MIL">Milan</a>, <a href="#PIS">Pisa</a>, <a href="#VENI">Venice</a>].</p> + +<p class="ind">Towns of England, progress of the, iii. <a href="#Page_19">19</a>;<br /> +Canterbury, Lincoln, and Stamford, <a href="#Page_20">20</a> <i><a href="#Footnote_38_38">note</a></i> <sup>r</sup>;<br /> +conversion of individual tributes into borough rents, <a href="#Page_21">21</a>;<br /> +incorporation of towns by charter, <a href="#Page_22">22</a> and <i><a href="#Footnote_43_43">notes</a></i>;<br /> +curious bond relative to Cambridgeshire, <a href="#Page_23">23</a> <i><a href="#Footnote_46_46">note</a></i> <sup>b</sup>;<br /> +prosperity of the towns, <a href="#Page_24">24</a>;<br /> +early importance and populousness of London, <a href="#Page_24">24</a>, <a href="#Page_25">25</a> and <i><a href="#Footnote_53_53">notes</a></i>;<br /> +participation of its citizens in constitutional struggles, <a href="#Page_26">26</a>;<br /> +first summoning of towns to parliament, <a href="#Page_27">27</a>.<br /> +See <a href="#MINS">Municipal Institutions</a>.</p> + +<p class="ind"><a name="TRD" id="TRD"></a>Trade and commerce, mediæval non-existence of, iii. <a href="#Page_313">313</a>;<br /> +barriers to their progress, <i>ib.</i> <a href="#Page_314">314</a>;<br /> +extent of foreign commerce, <a href="#Page_315">315</a>;<br /> +home traffic in slaves <a href="#Page_316">316</a> and <i><a href="#Footnote_570_570">note</a></i> <sup>d</sup>;<br /> +woollen manufactures and vacillating policy of the English kings relative thereto, <a href="#Page_318">318-323</a> and <i><a href="#Footnote_571_571">notes</a></i>;<br /> +opening of the Baltic trade, <a href="#Page_324">324</a>;<br /> +growth of English commerce, <a href="#Page_325">325</a>;<br /> +opulence of English merchants, <i>ib.</i> <a href="#Page_326">326</a>;<br /> +increase of maritime traffic, <a href="#Page_326">326-328</a>;<br /> +commercial eminence of the Italian states, <a href="#Page_328">328-330</a> and <i><a href="#Footnote_602_602">notes</a></i>;<br /> +invention of the mariners' compass, <a href="#Page_332">332</a>, <a href="#Page_333">333</a>;<br /> +compilation of maritime laws, <a href="#Page_333">333</a>;<br /> +frequency and irrepressibility of piracy, <a href="#Page_334">334</a>;<br /> +practice of reprisals, <a href="#Page_335">335</a>, <a href="#Page_336">336</a> and <i><a href="#Footnote_616_616">notes</a></i>;<br /> +liability of aliens for each other's debts, <a href="#Page_336">336</a>;<br /> +trade profits and rates of interest, <a href="#Page_337">337</a>;<br /> +price of corn and cattle, <a href="#Page_368">368</a>.</p> + +<p class="ind"><a name="TRICOM" id="TRICOM"></a>Trial by combat, ceremonials attending, i. 242, 243 and <i>notes</i>;<br /> +abolished by St. Louis, 244.</p> + +<p class="ind"><a name="TRIJUR" id="TRIJUR"></a>Trial by jury and its antecedents, ii. 285-288;<br /> +early modes of trial, 386-388;<br /> +abolition of trial by ordeal, 390;<br /> +difference between ancient and modern trial by jury, 392;<br /> +original functions of juries, <i>ib.</i>;<br /> +origin of the modern system, 402-404;<br /> +character of the early system, 405.</p> + +<p class="ind">Troubadours (the), and their productions, iii. <a href="#Page_434">434-436</a>.</p> + +<p class="ind">Troyes, conditions of the treaty of, i. 76 and <i>note</i>.</p> + +<p class="ind"><a name="TURK" id="TURK"></a>Turks, Italian fears of the, i. 495;<br /> +triumphant progress of their arms, ii. 127;<br /> +their defeat by the crusaders and Alexius, 128;<br /> +their settlement under Othman, 132;<br /> +war declared against them at Frankfort, 136;<br /> +the Janizaries, 137.<br /> +See <a href="#OTTO">Ottomans</a>.</p> + +<p class="ind">Tuscany (Boniface, marquis of), flogged for simony, ii. 181 <i>note</i> <sup>q</sup>.</p> + +<p class="ind">Tuscany, league of the cities of, i. 382;<br /> +espousal of the papal cause, <i>ib.</i> 389;<br /> +progress of its cities.<br /> +See <a href="#FLO">Florence</a>.<br /> +<br /> +</p> + +<p class="ind"><a name="ULAD" id="ULAD"></a>Uladislaus crowned king of Hungary, ii. 105;<br /> +violates his treaty with the Turks, <i>ib.</i>;<br /> +its fatal results, <i>ib.</i></p> + +<p class="ind">Urban II., encouragement of the crusades by, i. 34;<br /> +he succeeds Gregory VII., ii. 187;<br /> +his concession to the kings of Castile, 190.</p> + +<p class="ind">Urban V. retransfers the papal court to Avignon, ii. 240.</p> + +<p class="ind"><span class="pagenum"><a name="Page_514" id="Page_514">[Pg 514]</a></span> +Urban VI. aids Charles of Durazzo in his designs on Joanna of Naples, i. 487;<br /> +sanctions perjury towards heretics, ii. 210 <i>note</i> <sup>c</sup>;<br /> +his contest with Clement VII., 240;<br /> +validity of his election, 241.</p> + +<p class="ind">Urgel (count of), lays claim to the crown of Aragon, ii. 40, 41;<br /> +rejection of his pretensions, 42;<br /> +consequences of his unwise resort to arms, <i>ib.</i></p> + +<p class="ind">Usury treated as a crime, iii. <a href="#Page_337">337</a>, <a href="#Page_339">339</a> <i><a href="#Footnote_639_639">note</a></i> <sup>c</sup>.<br /> +<br /> +</p> + +<p class="ind">Valencia, constitution of the kingdom of, ii. 57.</p> + +<p class="ind">Valentinian III., authority of the holy see extended by, ii. 161.</p> + +<p class="ind">Vandals, portions of the Roman empire possessed by the, i. 1.</p> + +<p class="ind">Vase of Soissons, story of the, i. 155;<br /> +principle involved in the anecdote, 301, 302 and <i>note</i> <sup>p</sup>.</p> + +<p class="ind">Vassals and Vassalage. See <a href="#F_SYS">Feudal System</a>.</p> + +<p class="ind">Vavassors, privileges attaching to the rank of, i. 194 and <i>note</i> <sup>b</sup>;<br /> +their manorial courts, 219.</p> + +<p class="ind"><a name="VENI" id="VENI"></a>Venice, conflicts of, with Genoa, i. 444;<br /> +defeat of her admiral by the Genoese, 445;<br /> +insolence of the latter towards her ambassadors, 446;<br /> +successful tactics of her doge, 447;<br /> +triumph of her fleet, 448;<br /> +her alleged early independence, 452;<br /> +her subjection to the emperors, 453 and <i>note</i> <sup>n</sup>;<br /> +her Dalmatian and Levantine acquisitions, 454;<br /> +her government: powers of the doge, 455;<br /> +the great council, 456;<br /> +criminal jurisdiction, how exercised, 457;<br /> +checks to undue influence on the part of the doge, 458;<br /> +singular complication in ballots for the dogeship, 459;<br /> +Marin Falieri's treason, 460;<br /> +the council of ten and its secret proceedings, 460, 461;<br /> +exclusion of the nobles from trade, 461 <i>note</i> <sup>y</sup>;<br /> +Venetian form of government not entitled to high admiration, 462, 463 and <i>note</i>;<br /> +territorial acquisitions of Venice, 464;<br /> +prophecy of the doge Mocenigo, 465, 466 and <i>note</i>;<br /> +Venetian conquests under Carmagnola, 466;<br /> +wars of the republic with Mahomet II., 493, 495.</p> + +<p class="ind">Verdun, treaty of, i. 16;<br /> +its results, 17 and <i>notes</i>.</p> + +<p class="ind">Vere, favouritism of Richard II. towards, iii. <a href="#Page_66">66</a>;<br /> +his funeral, <a href="#Page_74">74</a>.</p> + +<p class="ind">Verona, seized by Francesco da Carrara, i. 464.</p> + +<p class="ind">Vienna, Æneas Sylvius's florid description of, iii. <a href="#Page_345">345</a> <i><a href="#Footnote_655_655">note</a></i> <sup>u</sup>.</p> + +<p class="ind">Villani (John) falls a victim to the plague, i. 57 <i>note</i>.</p> + +<p class="ind"><a name="VILL" id="VILL"></a>Villeins and villenage: conditions of villeins, i. 199;<br /> +consequences of their marriage with free persons, 200, and 201 <i>note</i> <sup>b</sup>;<br /> +privileges acquired by them, 201, 202 and <i>notes</i>;<br /> +their obligations, 331;<br /> +their legal position in England, 333;<br /> +villenage never established in Leon and Castile, ii. 6;<br /> +question of its existence among the Anglo-Saxons, 276;<br /> +dependence of the villein on his lord, iii. <a href="#Page_171">171</a>;<br /> +condition of his property and children, <a href="#Page_172">172</a> and <i><a href="#Footnote_398_398">note</a></i> <sup>b</sup>;<br /> +legal distinctions, <a href="#Page_172">172</a> and <i><a href="#Footnote_399_399">notes</a></i>;<br /> +difficulties besetting the abolition of villenage, <a href="#Page_173">173</a>;<br /> +gradual softening of its features, <a href="#Page_174">174-176</a>;<br /> +merger of villeins into hired labourers, <a href="#Page_177">177</a>;<br /> +effects of the anti-poll-tax insurrection, <a href="#Page_181">181</a>;<br /> +disappearance of villenage, <a href="#Page_181">181</a>, <a href="#Page_182">182</a>;<br /> +elucidatory <i>notes</i> on the subject, <a href="#Page_260">260-264</a>.</p> + +<p class="ind">Virgin, absurd miracles ascribed to the, iii. <a href="#Page_300">300</a> <i><a href="#Footnote_534_534">note</a></i>.</p> + +<p class="ind"><a name="VISC" id="VISC"></a>Visconti and Torriani families, rivalry of the, i. 409, 410;<br /> +triumph of the Visconti, 410;<br /> +their power and unpopularity, 411;<br /> +their marriages with royalty, 412 and <i>note</i> <sup>e</sup>;<br /> +tyranny of Bernabo Visconti, 439;<br /> +Giovanni Visconti's brutality, <i>ib.</i>;<br /> +his assassination, 466;<br /> +Filippo Visconti's accession, <i>ib.</i>;<br /> +his ingratitude to Carmagnola, <i>ib.</i>;<br /> +his mistrust of Sforza, 482;<br /> +his alliance with Alfonso, 492;<br /> +quarrels of the family with the popes, ii. 235.</p> + +<p class="ind">Visigoths, portions of the Roman provinces possessed by the, i. 1;<br /> +conduct of their earlier rulers towards the catholics, 3 <i>note</i> <sup>f</sup>;<br /> +their mode of dividing conquered provinces, 146;<br /> +their laws, how compiled, 151, 152 <i>note</i> <sup>z</sup>;<br /> +difference between the Frank monarchy and theirs, ii. 1, 2.</p> + +<p class="ind">Voltaire, limited knowledge of early French history by, i. 213 <i>note</i> <sup>p</sup>.<br /> +<br /> +</p> + +<p class="ind">Wages, futility of laws for the regulation of, iii. <a href="#Page_178">178</a>.<br /> +See <a href="#LAB">Labourers</a>.</p> + +<p class="ind">Waldenses. See <a href="#RS">Religious Sects</a>.</p> + +<p class="ind">Wales, causes of the turbulent state of, iii. <a href="#Page_169">169</a> <i><a href="#Footnote_392_392">note</a></i>.</p> + +<p class="ind">Walworth, and Philpot made stewards of a subsidy (temp. Richard II.), iii. <a href="#Page_59">59</a>;<br /> +allegations relative to their stewardship, <a href="#Page_60">60</a>.</p> + +<p class="ind">Wamba (king of the Visigoths), question of his deposition discussed, ii. 156.</p> + +<p class="ind">War, private, exercise of the right of, i. 207;<br /> +by whom checked and suppressed, <i>ib.</i> and <i>note</i> <sup>t</sup>;<br /> +its prevalence amongst the German nobles, ii. 95, 96.</p> + +<p class="ind">Warna, circumstances which led to the battle of, ii. 105.</p> + +<p class="ind">Warwick (earl of), popularity of the, iii. <a href="#Page_65">65</a>;<br /> +made a lord appellant, <a href="#Page_72">72</a>;<br /> +banished by Richard II., <a href="#Page_77">77</a>.</p> + +<p class="ind">Water-Ordeal. See <a href="#ORD">Ordeals</a>.</p> + +<p class="ind">Wenceslaus, confirmed in the imperial succession, ii. 87;<br /> +his deposition, <i>ib.</i>;<br /> +he abets the league of the Rhine, 93.</p> + +<p class="ind">Weregild, or compensation for murder. See <a href="#MURD">Murder</a>.</p> + +<p class="ind"><span class="pagenum"><a name="Page_515" id="Page_515">[Pg 515]</a></span> +Wicliff (John), influence of the tenets of, ii. 252;<br /> +iii. <a href="#Page_179">179</a> and <i><a href="#Footnote_414_414">note</a></i> <sup>t</sup>, <a href="#Page_388">388</a>, <a href="#Page_389">389</a>.</p> + +<p class="ind">Widows in Burgundy, reason for the speedy remarriage of, i. 93 <i>note</i> <sup>x</sup>.</p> + +<p class="ind">Wilfrid (bishop of Hexham), question involved in his appeal to the pope, ii. 164 <i>note</i> <sup>t</sup>.</p> + +<p class="ind">William of Holland elected emperor of Germany, ii. 76.</p> + +<p class="ind">William the Conqueror, separation of the ecclesiastical and civil tribunals by, ii. 222 and <i>note</i> <sup>a</sup>;<br /> +position of England at its conquest by him, 302;<br /> +his considerate treatment of Edgar, <i>ib.</i> <i>note</i> <sup>b</sup>;<br /> +alleged inadequacy of the military forces of the Saxons, 303 <i>note</i>;<br /> +their fruitless rebellions against him, 304 and <i>notes</i>;<br /> +instances of his oppressive conduct, 305;<br /> +his devastating clearances for forests, 311;<br /> +and inhuman forest laws, 312 and <i>note</i>;<br /> +his enormous revenues, 313;<br /> +his feudal innovations, 314;<br /> +his preservation of public peace and efforts to learn English, 315 and <i>note</i>;<br /> +policy of his manorial grants, 317;<br /> +tyranny of his government, 318.</p> + +<p class="ind">Winchester, early opulence and populousness of, iii. <a href="#Page_225">225</a>.</p> + +<p class="ind">Windsor castle, labourers for the erection of, how procured, iii. <a href="#Page_150">150</a>.</p> + +<p class="ind"><a name="WINF" id="WINF"></a>Winfrid (St. Boniface), importance of the ecclesiastical changes effected by, ii. 164.</p> + +<p class="ind">Winkelried, the Swiss patriot, heroic death of, ii. 111.</p> + +<p class="ind">Wisbuy, ordinances of, iii. <a href="#Page_334">334</a> and <i><a href="#Footnote_615_615">note</a></i> <sup>a</sup>.</p> + +<p class="ind">Witchcraft, cruel treatment of persons charged with, iii. <a href="#Page_385">385</a> <i><a href="#Footnote_749_749">note</a></i> <sup>c</sup>.</p> + +<p class="ind">Witikind, acknowledgment of Charlemagne's authority by, i. 10.</p> + +<p class="ind">Witenagemot, bishops appointed by the, ii. 180;<br /> +its characteristics, 279;<br /> +how often assembled, 411, 412.<br /> +See <a href="#ANG_SAX">Anglo-Saxons</a>.</p> + +<p class="ind">Women, legal position of, in Italy during coverture, i. 152 <i>note</i> <sup>z</sup>;<br /> +perils attending their marriage with slaves, 200 <i>note</i> <sup>a</sup>.</p> + +<p class="ind">Woollen manufacture established in Flanders, iii. <a href="#Page_318">318</a>;<br /> +impolitic regulations respecting it, <a href="#Page_319">319</a> and <i><a href="#Footnote_573_573">note</a></i> <sup>c</sup>;<br /> +export of wool from England, <a href="#Page_320">320</a>;<br /> +English woollen manufacture, <a href="#Page_321">321</a>;<br /> +policy adopted towards the Flemings, <i>ib.</i> and <i><a href="#Footnote_583_583">note</a></i> <sup>o</sup>;<br /> +laws relative to the trade, <a href="#Page_322">322</a>;<br /> +relations of England and Spain regarding it, <a href="#Page_323">323</a> <i><a href="#Footnote_585_585">notes</a></i>.</p> + +<p class="ind">Worms, diet of. See <a href="#DIET">Diet</a>.</p> + +<p class="ind">Wykeham (bishop of Winchester) invested with the great seal, iii. <a href="#Page_73">73</a>.<br /> +<br /> +</p> + +<p class="ind"><a name="YORK" id="YORK"></a>York (Richard, duke of) appointed protector to Henry VI., iii. <a href="#Page_191">191</a>;<br /> +his claim to the throne, <a href="#Page_194">194</a>;<br /> +his cautious policy <a href="#Page_195">195</a>.</p> + +<p class="ind">Yorkists and Lancastrians, wars of the, iii. <a href="#Page_197">197</a>.<br /> +<br /> +</p> + +<p class="ind">Zimisces (John), military exploits of, ii. 126.</p> + +<p class="ind">Zisca (John), the blind hero, victories of the Bohemians under, i. 481;<br /> +his exploits; enthusiasm of his followers, ii. 103.</p> + +<p class="padboth">THE END.</p> + +<p class="center"><small>LONDON: PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET, AND CHARING +CROSS.</small></p> + +<p class="tnote">Transcribers note:<br /> + +In the original work the footnotes were alphabetical. 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